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#1, 2009
saerTaSoriso
samarTlis
Jurnali
JOURNAL OF
INTERNATIONAL
LAW
Tbilisi, Tbilisi,
2009
`saerTaSoriso samarTalis Jurnali~ samecniero xasiaTis samenovani gamocemaa. mas-
Si warmodgenilia rogorc saerTaSoriso samarTlisa da saerTaSoriso urTierTobebis
problemebi, aseve saqarTvelos kanonmdeblobis sakiTxebi.
© Tsu
ISSN 1512-0368
saredaqcio kolegia
mTavari redaqtori
aleqsiZe levan
iv. javaxiSvilis sax. Tbilisis sax. universiteti
(Tsu)
aRmasrulebeli redaqtori
tuSuri rusudan
(Tsu)
saredaqcio kolegiis wevrebi:
BOARD OF EDITORS
Editor in Chief
ALEXIDZE LEVAN
Iv. Javakhishvili Tbilisi State University
(TSU)
Executive Editor
TUSHURI RUSUDAN
(TSU)
Members of the Board:
BUTKEVICH VOLODIMIR KOCHARYAN VIGEN
European Court of Human Rights Yerevan State University (Armenia)
(Strasbourg, France) MAMEDOV RUSTAM
GABRICHIDZE GAGA Baku State University (Azerbaijan)
(TSU) PATARAIA DAVID
HANNIKAINEN LAURI (TSU)
University of Turku (Finland) KURDADZE IRINE
DEMETRASHVILI AVTANDIL (TSU)
(TSU) UGREKHELIDZE MINDIA
KERESELIDZE DAVID (Strasbourg, France)
(TSU)
KORKELIA KONSTANTINE
(TSU)
3
sarCevi CONTENTS
4
vasilios gramatikasi*
5
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
6
v. gramatikasi, kosovo samxreT oseTis winaaRmdeg?
7
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
8
v. gramatikasi, kosovo samxreT oseTis winaaRmdeg?
9
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
10
v. gramatikasi, kosovo samxreT oseTis winaaRmdeg?
11
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
garkveulma jgufma mxari dauWira se- magaliTebs, (b) am sferoSi arsebuli sa-
cesiis uflebas maSin, rodesac meore marTlebrivi dokumentebis naklebobas
jgufma neitraluri pozicia SeinarCuna. (dokumentebi, saerTaSoriso sasamarT-
franki miuTiTebs, rom gaeros wesdeba- loTa gadawyvetilebebi da sxva organo-
Si, aseve paqtebSi (samoqalaqo da poli- ebi da a.S.), romlebic mxars dauWerda im
tikur uflebaTa paqti da ekonomikur, faqts, rom secesia aris Tanamedrove sa-
socialur da kulturul uflebaTa sa- erTaSoriso samarTlis mier daSvebuli
erTaSoriso paqti), helsinkis daskvniT ufleba.
aqtsa da aseve saxelmwifoTa praqtikaSi zemoT naTqvamis sapirispirod saxel-
araferia naTqvami imis Sesaxeb, rom sa- mwifoebma naTlad gamoxates TavianTi
erTaSoriso sazogadoebebs ekrZalebaT neba saerTaSoriso samarTlis iuridi-
aRiaron warmatebuli secesiis Sedegi.47 uli Tu politikuri formis sxvadasxva
kroufordi aseve amtkicebda, rom `saer- dokumentis meSveobiT, rom isini katego-
TaSoriso samarTalSi secesia arc kano- riuli winaaRmdegni arian saxelmwifos
nieria, arc ukanono, is aris iuridiulad teritoriuli mTlianobis nebismieri
neitraluri, romlis Sedegebic regu- darRvevisa. kvebekis secesiis saqmesTan
lirdeba saerTaSoriso doneze~.48 dakavSirebiT kanadis uzenaesma sasamar-
am sakiTxTan dakavSirebiT kasese mx- Tlom kanadis mTavrobis mier dasmuli
ars uWers secesiis uflebas, Tu jgufi SekiTxvebis Taobaze Semdegi ganacxada:
(rasis mixedviT) Zaladobrivad ar aris `saxelmwifo, romlis mTavro-
daSvebuli saxelmwifo mmarTvelobas- bac aradiskriminaciisa da Tanas-
Tan. avtori aRniSnavs, rom aseT jgufs worobis principis safuZvelze
aqvs Zalis gamoyenebis samarTlebrivi warmoadgens xalxs mTlianad an
ufleba da aseve secesiis meSveobiT Se- xalxs, romelic saxelmwifos te-
uZlia, SeuerTdes sxva saxelmwifos, an ritoriaze cxovrobs, aseve pativs
Seqmnas Tavisi saxelmwifo.49 scems Tavis saSinao SeTanxmebebSi
mosamarTle higinsi, Tumca pirda- TviTgamorkvevis princips, ufle-
pir ar miuTiTebs secesiis Sesaxeb, xazs bamosilia, saerTaSoriso samar-
usvams, rom `uti possidetis-is principi ... Tlis safuZvelze daicvas Tavisi
ar avaldebulebs umciresobaTa jgufs, teritoriuli mTlianoba~.52
darCes im saxelmwifos daqvemdebare- Zalian sainteresoa ruseTis sakon-
baSi, romelic cudad epyroba mas, an sa- stitucio sasamarTlos mier CeCneTSi
xelmwifoSi, sadac am jgufs ar hyavs SeiaraRebuli konfliqtis Sesaxeb gacx-
warmomadgenloba~.50 adebuli mosazreba:
aRsaniSnavia, rom kvebekis saqmis Se- `ruseTis federaciis mTliano-
saxeb moxsenebaSi, romelic frankma da bis SenarCunebis konstituciuri
higinsma sxva saerTaSoriso mosamar- mizani Seesabameba xalxTa TviTga-
TleebTan erTad moamzades, xazgasmu- morkvevis universalurad aRiare-
lia, rom ar arsebobs samarTlebrivi uf- bul princips~.53
leba secesiis sasargeblod, radgan es secesiasTan dakavSirebuli isedac
teritoria dasaxlebulia lingvisturi rTuli situacia ufro garTuldeba,
umciresobebiT, romlebic am teritori- Tu SevecdebiT, secesias davukavSiroT
is masStabiT mosaxleobis umravlesobas iseTi sakiTxebi, rogorebicaa xalxTa
warmoadgenen.51 TviTgamorkvevis ufleba, umciresobe-
avtorTa umetesobis meryeoba se- bis uflebebi, uti possidetis-is principi da
cesiis kanonieri uflebis aRiarebaze, secesiis terminis ganmarteba.54
Zalian mkacri pirobebis dayenebisa da winamdebare naSromis avtoris azriT,
mkveTrad gamoxatuli am uflebis mata- Tu sayovelTaod aRiarebulia, rom ar-
rebeli jgufis Camoyalibebis miuxeda- sebobs TviTgamorkvevis zogadi ufleba,
vadac, eyrdnoba Semdeg garemoebebs: (a) aqve isic unda iyos aRiarebuli, rom, ro-
qveynebis ukanaskneli drois praqtikul gorc saWiro Sedegi, zogjer TviTgamor-
12
v. gramatikasi, kosovo samxreT oseTis winaaRmdeg?
13
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
gaxda. zemoxsenebuli qveynebis daSlam- Wos 1999 wlis 1244 rezoluciiT.64 koso-
de secesiis erTaderT warmatebul maga- vos transformaciam, garkveulwilad, sa-
liTad SeiZleba CaiTvalos aRmosavleT erTaSoriso proteqtoratis qveS myof
pakistanis secesia da Semdgom misi ban- teritoriad, mniSvnelovnad Seasusta
gladeSis saxelmwifod aRiareba.61 serbeTis suvereniteti da albaT am si-
tuaciis saboloo Sedegi iqneba koso-
(a) kosovo vos sruli damoukidebloba an mudmivi
iugoslaviidan (Semdgom ki serbeTi- saerTaSoriso reJimi.65 kosovom Tavisi
dan) kosovos secesiis sakiTxi ar wamoW- damoukidebloba calmxrivad gamoacxa-
rila Crdiloatlantikuri organizaciis da 2008 wlis 17 Tebervals. is aRiarebul
mier 1999 wels ganxorcielebuli dabom- iqna 52 saxelmwifos mier, maT Soris iyo
bvis dros, igi gacilebiT adre dadga. es amerikis SeerTebuli Statebi da evro-
iyo jer kidev iugoslaviis daSlis pro- pis kavSiris 27 wevri qveynidan 22 qveya-
cesSi. albanelma liderebma kosovoSi na.66 sainteresoa aRiniSnos, rom aqamde
1991 wels Caatares referendumi, romel- kosovo arc erT saerTaSoriso organi-
Sic monawileoba adgilobrivi mosaxleo- zaciaSi ar gawevrianebula.
bis 87%-ma miiRo. Sedegad, 99.87%-ma mxari sxva separatistuli moZraobebisgan
dauWira damoukideblobas, Sesabamisad, gansxvavebiT, serbeTis Zalebis gayvana
adgilobrivma liderebma damoukideblo- da suverenitetis de facto cvlileba miR-
ba gamoacxades. amasTan, Tavis Tavze aiRes weuli iyo ara kosovoelTa mier (koso-
yvela im moTxovnisa da pirobis Sesrule- vos ganmaTavisuflebeli armiis mebrZo-
ba, rac evropulma sazogadoebam yofili lebis samxedro aqtiuroba Zalze umniS-
iugoslaviis teritoriidan Seqmnili sa- vnelo iyo), aramed es moxda natos Za-
xelmwifoebis aRiarebisTvis daawesa.62 lisxmeviT, romelmac Zalis gamoyenebiT
am droisTvis evropis kavSirma gamo- aiZula serbeTi, daetovebina kosovo.67
aqveyna gancxadeba, romelic Semdegna- serbeTis ukanaskneli reaqcia aRniSnul
irad ikiTxeboda: „...sazRvrebis Secvla movlenebTan dakavSirebiT aris misi yo-
SesaZlebelia mxolod mSvidobiani saSu- velmxrivi cda, daakavSiros yvela Sede-
alebebiT da (evrokavSiris wevri qveyne- gi, rac kosovosTanaa miRweuli, bosniel
bi) Seaxseneben kosovos, rom misi legi- serbTa respublikasTan (bosnia-herce-
timuri avtonomiisa survili unda gan- govinas Semadgeneli serbiuli politi-
xorcieldes mxolod evropis kavSiris kuri erTeuli). serbeTi acxadebs, rom
mSvidobiani konferenciis farglebSi~.63 is mimarTavs zustad im gamosavals bos-
ramdenime weliwadSi, Crdiloatla- niel serbTa respublikis mimarT, rac
ntikuri organizaciis mier 1999 wels miiRweva kosovosTan dakavSirebiT.68
serbeTis winaaRmdeg ganxorcielebuli
dabombvis Semdgom, moxda serbeTis te-
(b) samxreT oseTi da afxazeTi*
ritoriis Zaladobrivi gamoyofa. es san- sabWoTa kavSiris daSlis Semdeg war-
qcirebuli iyo gaeros uSiSroebis sab- moqmnilma 14-ma axalma saxelmwifom (ru-
*
am statiis avtori exeba Zalian saintereso sakiTxs, kerZod xalxTa TviTgamorkvevis (gamoyofis)
uflebas. winamdebare Jurnalis saredaqcio kolegiis politikidan gamomdinare, romelic JurnalSi
gamoqveynebuli statiebis avtorebis azrs ar exeba, Tundac es azri gansxvavdebodes kolegiis
azrisagan, saWirod migvaCnia, mivaqcioT avtoris yuradReba zogierT faqtobriv da konceptualur
uzustobas, rodesac is afasebs situaciebs afxazeTSi, egreT wodebul samxreT oseTsa da yofili
sabWoTa kavSiris teritoriaze arsebul sxva konfliqtur regionebSi.
kolegia urCevs avtors, momavalSi msgavs problemaze msjelobisas daeyrdnos im Sefasebebs,
romlebsac iZlevian WeSmaritad damoukidebeli da sayovelTaod cnobili saerTaSoriso ara-
samTavrobo organizaciebi da saerTaSoriso samarTlebrivi eqspertebi, romlebic kargad erkvevian
gansaxilvel problemebSi. magaliTad SeiZleba mivuTiToT monacemebi da Sefasebebi, romlebsac
akeTebs organizacia `Human Rights Watch~, da romelic gadmocemulia cnobili italieli profesoris,
saerTaSoriso samarTlis eqspertis, antonio kaseses statiaSi (ix. danarTi 1-4), agreTve is informacia,
romelsac Seicavs winamdebare Jurnalis 2008 wlis #2.
14
v. gramatikasi, kosovo samxreT oseTis winaaRmdeg?
seTis federaciis gamoklebiT) rusi da maxeSi varT ... arsebobs ormagi meqanizmi,
prorusi mosaxleobis seriozuli vneba- romelsac SeiZleba hqondes dadebiTi
TaRelva gamoiwvia. es mosaxleoba, Tavis Sedegi erTi mxarisTvis, magram ara meo-
mxriv, amtkicebda axlad warmoqmnili re mxarisTvis. aq ar SeiZleba iyos `moge-
saxelmwifoebidan secisiis TavianT uf- ba-mogeba~ mdgomareoba..~.73
lebas. ori aseTi umniSvnelovanesi mov- 2008 wlamde arsebuli status quo swra-
lena moxda saqarTvelos teritoriaze. fad Seicvala mas mere, rac moxda saqar-
1978 wlis sabWoTa konstituciis mixed- Tvelos SeiaraRebuli Zalebis samxreT
viT, afxazeTs hqonda avtonomiuri sab- oseTSi SeWra. aman gaarTula saqarTve-
WoTa socialisturi respublikis sta- los suverenitetis mdgomareoba ori
tusi (85-e muxli), maSin, roca samxreT safuZvlis gamo: pirveli, 2008 wlis 7-8
oseTi avtonomiur olqs warmoadgenda agvistos saqarTvelos samxedro Senaer-
(87-e muxli), Tumca orive saqarTvelos Tebis mier samxreT oseTis dedaqalaqis
sabWoTa respublikis teritoriis far- – cxinvalis – teritoriaze aradiskrimi-
glebSi.69 naciulma srolam Tavidan wamowia osebis
rodesac saqarTvelom damoukideb- winaaRmdeg saqarTvelos mier ganxorci-
loba gamoacxada, am ori regionis mo- elebuli genocidis sakiTxi. marTlac,
saxleobam amas SeiaraRebuli konfliq- Setevis buneba da gamoyenebuli iaraRi
tiT upasuxa. moskovis waqezebiTa da mi- (Ramis srolebi, dabombva, zusti damiz-
si mxardaWeriT, samxedro operaciebSi nebis iaraRi, gamoyenebuli rogorc ar-
arapirdapiri CareviT, zemoxsenebuli tileria) Zalian mcire eWvs tovebs imi-
regioni de facto mainc gamoeyo saqarTve- sas, rom mTavari samizne iyo samoqalaqo,
los teritorias. Tumca uSiSroebis sab- mSvidobiani mosaxleoba; da daRupulTa
Wos mravalricxovani rezolucia,70 ase- raodenoba, ruseTisa da samxreT oseTis
ve sxvadasxva saxelmwifos saxeliT gake- mxridan romc yofiliyo gazviadebuli
Tebuli gancxadebebi naTlad miuTiTebs (1500 gardacvlili), mainc Zalian didia.
im faqtze, rom grZeldeba saqarTvelos am faqtma ki gaamyara mosazreba, rom sa-
teritoriuli mTlianobis mxardaWera. qarTvelos mTavrobam oseTis mosaxleo-
ori regionis gamoyofisa da maTi de jure baze genocidi ganaxorciela.74
aRiarebisgan ki yvela Tavs ikavebs. saqarTvelos Setevam gamoiwvia ru-
miuxedavad yvelafrisa, 2006 wels seTis dauyovnebeli reaqcia, rac gada-
samxreT oseTSi Catarda referendumi. izarda aramarto oseTSi (afxazeTSic)75
mosaxleobis 99%-ma mxari dauWira sam- saqarTvelos Zalebis okupaciaSi, aramed
xreT oseTis saqarTvelosgan damouki- saqarTvelos teritoriis SigniT ramde-
deblobas.71 ruseTis oficialuri pirebi nime strategiulad mniSvnelovani po-
sistematurad adarebdnen samxreT oseT- ziciis dakavebaSi, maT Soris iyo qalaqi
Si (aseve afxazeTSi) Seqmnil mdgomare- gori da foTis porti. ruseTma mogviane-
obas kosovos saqmes. bolo periodSi ki biT gaiyvana Tavisi jarebi am teritori-
im mizniT, rom sabolood Camoayalibos ebidan, Tumca SeinarCuna Tavisi pozicia
analogia kosovosTan, ruseTi cdilobs konfliqtur zonebSi. zemoxsenebuli
daamtkicos saqarTvelos mier samxreT samxedro konfrontaciis praqtikuli
oseTze ganxorcielebuli `genocidi~ da Sedegi iyo saqarTvelos Zalebis gasvla
amiT saboloo asimilacia moaxdinos or samxreT oseTidan da afxazeTidan, xo-
regionSi Seqmnili mdgomareobis damaxa- lo politikuri Sedegi gamovlinda ru-
siaTebeli niSnebisa.72 seTis mier orive regionis damoukideb-
zemoxsenebuli analogi aRiarebuli lobis dauyovnebliv aRiarebaSi. Tumca,
iyo xavier solanas mierac. man intervi- kosovosgan gansxvavebiT, saerTaSoriso
uSi ganacxada, rom kosovos savaraudo sazogadoebis pasuxi samxreT oseTisa da
damoukideblobas SeiZleboda negatiu- afxazeTis damoukideblobis Sesaxeb nak-
ri gavlena moexdina saqarTvelos teri- lebad sasiamovno iyo regionebisTvis.
toriul mTlianobaze. man aRniSna: `Cven sxva yofil sabWoTa respublikebze ru-
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saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
seTis zewolis miuxedavad, mxolod ni- pasuxi Seqmnil situaciaze iyo is, rom
karaguam aRiara maTi damoukidebloba.76 mas surda gauqmebuliyo mTiani yaraba-
Tumca `saerTaSoriso sazogadoe- xis avtonomia, ramac isedac rTuli da
bis~ mier afxazeTisa da samxreT oseTis daZabuli mdgomareoba ufro gaamwva-
mimarT gatarebul qmedebaTa kurss Za- va.80 cota xanSi daiwyo Setakebebi, rac
lian cota eqneba saerTo saqarTvelos somxeT-azerbaijanis farTomasStabian
teritoriul mTlianobasTan, es ufro omSi gadaizarda. Sedegad, somxeTis dax-
regionSi, da mTlianad msoflioSi, gan- marebiT, separatistebma daikaves mTeli
viTarebul geopolitikur mdgomareo- mTiani yarabaxi, iseve rogorc sxva azer-
baze iqneba damokidebuli. baijanuli teritoriebi, raTa gaemya-
rebinaT somxeTis teritoriasa da mTi-
(g) mTiani yarabaxi an yarabaxs Soris koridori. 1994 wlis
mTiani yarabaxis (sabWoTa konsti- cecxlis Sewyvetis Sesaxeb SeTanxmebam
tuciis 87-e muxlis Sesabamisad, es aris datova kidev erTi `gayinuli~ konfliq-
azerbaijanis avtonomiuri regioni) Sem- ti kavkasiaSi da aseve sxva de facto sece-
Txvevas Tavisi unikaluri damaxasiaTe- sia. es yvelaferi ki maSin, rodesac gamo-
beli niSnebi aqvs, rac TavisTavad gamo- savali ar Cans.
yofs mas yofili sabWoTa kavSiris sxva vinaidan `saerTaSoriso sazogado-
separatistuli moZraobebisgan. rode- ebis~ reaqcia gaxda saWiro, uSiSroe-
sac azerbaijanma sabWoTa kavSirisgan bis sabWos ramdenime rezoluciam da-
damoukidebloba gamoacxada, sapasuxod, adastura azerbaijanis teritoriuli
mTianma yarabaxmac, romlis mosaxleoba mTlianoba.81 Tumca ukanasknel period-
somxebis 80%-s Seadgenda, azerbaijanis- Si mTian yarabaxSi `konstituciuri re-
gan damoukidebloba gamoacxada. ferendumis~ Catarebis Semdeg ganaxlda
1978 wlis sabWoTa kavSiris konsti- diskusia misi statusis Sesaxeb.82 Zalian
tuciis mixedviT, nebismier sabWoTa so- saintereso winadadeba warmoadgina ev-
cialistur respublikas SeeZlo Tavi- ropis kavSiris prezidenti qveynis – fi-
suflad moexdina secesia (72-e muxli), neTis – warmomadgenlma zemoxsenebuli
magram aseTi ufleba ar iyo gamyarebuli `referendumis~ Sesaxeb. evropis kavSi-
mcire administraciuli erTeulisTvis ris mier, imis miuxedavad, rom ar iqne-
(avtonomiuri sabWoTa socialisturi boda aRiarebuli arc `referendumis~
respublikebisa da olqebisTvis). am ga- Sedegebi da, Sesabamisad, arc mTiani ya-
ugebrobis aRmosafxvrelad 1990 wels rabaxis damoukidebloba, azerbaijanis
SemoiRes kanoni sabWoTa kavSiridan res- teritoriuli mTlianobisadmi pativis-
publikebis secesiis proceduris Sesa- cema, razec xSirad laparakobdnen adre,
xeb,77 romlis mixedviT, Tu respublika ar iyo naxsenebi.83
Caatarebda sabWoTa kavSiridan secesiis mTiani yarabaxis SemTxveva imiT gan-
Taobaze referendums, msgavsi ufleba sxvavdeba sxva separatistuli moZrao-
miecemoda yvela avtonomiur regions, im bebisgan, rom am SemTxvevaSi ar momxdara
teritoriasac ki, sadac sxvadasxva erov- ruseTis Careva da, aqedan gamomdinare,
nuli jgufi warmoadgenda adgilobriv dResdReobiT es ukanaskneli cdilobs,
umravlesobas. am referendumebis mTava- gaxdes mediatori mxareebs Soris da Ta-
ri sakiTxi iqneboda teritoriis Semdgo- visi Zalisxmeva mimarTos am konfliqtis
mi mdgomareoba – darCeboda sabWoTa kav- mogvarebisken.84
Siris nawili, Tu gadawyvetda Tavis po-
litikur statuss TviTon (me-3 muxli).
(d) dnestrispireTi
rodesac azerbaijanma damoukideb- dnestrispireTi mdinare dnestris
loba gamoacxada, TiTqmis paralelu- aRmosavleTiT arsebuli miwis mcire mo-
rad mTianma yarabaxmac gamoacxada da- nakveTia. es teritoria geopolitikur
moukidebloba78, zemoxsenebuli kanon- cvlilebaTa mTeli rigis Semdeg, 1945
mdeblobis79 moSveliebiT. azerbaijanis wlidan (ruseTis mier moldovis aneqsi-
16
v. gramatikasi, kosovo samxreT oseTis winaaRmdeg?
17
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
*
saerTaSoriso samarTlis leqtori, Treisis demokratiuli universite-
ti, komotini, saberZneTi. sakiTxTan dakavSirebuli nebismieri komenta-
ri SeiZleba avtors gaegzavnos Semdeg misamarTze: bgramm@bscc.duth.gr.
1
ruseTis prezidentis 2006 wlis 31 ianvris preskonferencia <http://www.
kremlin.ru/eng/text/speeches/2006/01/31/0953_type82915type82917_100901.
shtml>.
2
am procesis dros da kosovos damoukideblobis gamocxadebis Semdegac
ki ruseTs hqonda uryevi pozicia, rom kosovosTan dakavSirebuli ne-
bismieri gadawyvetileba unda Seexos yvela separatistul mxares, gan-
sakuTrebiT ki sabWoTa kavSiris yofil teritoriebze. (ix., inter alia,
ruseTis internetgazeT “komersantis” statia _ New Plan for Abkhazia and South
Ossetia, http://www.kommersant.com/p729445/Abkhazia_South_Ossetia_Kosovo,
Measuring South Ossetia by Kosovo, http://www.kommersant.com/p721626/r_527/
South_Ossetia_by_Kosovo).
3
ix. Cassesse A., Self-Determination of Peoples: A Legal Reappraisal, (Cambridge:
Cambridge University Press, 1995), 11-13.
4
UNGA Res. 1514 (XV), of 14-12-1960, Declaration on the Granting of Independence
to Colonial Countries and Peoples.
5
UNGA Res. 2625 (XXV), of 10-12-1970, UN Declaration of Principles of International
Law Concerning Friendly Relations. Tumca zogierTi avtoris mtkicebiT,
megobruli urTierTobebis deklaraciaSi araferia naTqvami, rac gaa-
farToebda TviTgamorkvevis uflebas dekolonizaciis gareT (ix., inter
alia, Hannum H., Rethinking Self-Determination, 34 Virginia JIL 1 (1993), 8, sa-
dac avtori xazs usvams, rom arc gaeros sxvadasxva dokumenti da arc
ori konvenciis – samoqalaqo da politikur uflebaTa saerTaSoriso
paqti (ICCPR), da ekonomikur, socialur da kulturul uflebaTa saer-
TaSoriso paqti (ICESCR) – mosamzadebeli samuSaoebi ar afarToebs
TviTgamorkvevas koloniuri konteqstis gareT.
6
International Covenant on Civil and Political Rights (ICCPR), 999 UNTS 171 and 6
ILM 368 (1967).
7
International Covenant on Economic, Social and Cultural Rights (ΙCESCR), 993
UNTS 3 and 6 ILM 360 (1967).
18
v. gramatikasi, kosovo samxreT oseTis winaaRmdeg?
8
gaeros mixedviT, dResdReobiT (05.11.2008) ICCPR-is monawile 162 qveya-
naa (http://www.ohchr.org/ english/countries/ratification/4.htm), xolo ICESCR-is
_ 159 qveyana (http://www.ohchr.org/english/ countries/ratification/3.htm).
9
teqsti: 21 ILM 59 (1982), 7 HRLJ 403 (1986), http://www1.umn.edu/humanrts/
instree/zlafchar.htm.
10
Namibia Advisory Opinion, ICJ Reports (1971) 16, 31.
11
Western Sahara Advisory Opinion, ICJ Reports (1975) 12, 31.
12
Burkina Faso/Mali Case, ICJ Reports (1986) 554, 567. ix. aseve: the arbitration
Guinea Bissau v. Senegal, 83 ILR 1, 24 et seq.
13
East Timor Case, ICJ Reports (1995) 90, 102 (§ 29). Tavis gadawyvetilebaSi
sasamarTlom xazi gausva, rom `(TviTgamorkveva aris) ... Tanamedrove
saerTaSoriso samarTlis erT-erTi umniSvnelovanesi principi~. ix.
aseve marTlmsajulebis saerTaSoriso sasamarTlos sakonsultacio
daskvna israelis mier okupirebul teritoriaze kedlis mSeneblobis
Sesaxeb (Legal Consequences of the Construction of a Wall. Advisory Opinion of
July 9th, 2004, §§ 88, 156. http://www.icj-cij.org).
14
Western Sahara Case, ICJ Reports (1975) 12, p. 33, UNGA Res. 2625 (XXV). See
also Shaw M.N., Peoples, Territorialism and Boundaries, 8 EJIL 478 (1997), 480.
15
Sromis saerTaSoriso organizaciis konvencia 169, konvenciis 1-li mux-
lis naTeli miTiTebiT, termini `aborigeni xalxi~ ar unda ganimartos
ise, rom maT waerTvaT uflebebi, rasac saerTaSoriso samarTali xalxs
aniWebs. ix. generally Barsh R., Indigenous Peoples in the 1990s: From Object to
Subject of International Law?, 7 Harv. HRJ 33 (1994), Marquardt S.: “International
Law and Indigenous Peoples”, 3 Int. J. Group R. 47 (1995).
16
gaeros generaluri asambleis proeqti `aborigeni xalxis konvenciis
Sesaxeb~ aZlevda maT uflebas, ganesazRvraT TavianTi politikuri sta-
tusi (me-2 muxli) da aseve sTavazobda sxva uflebebsac, magram mxolod
TavianTi Sesabamisi saxelmwifos teritoriis farglebSi (UN Doc. E/
CN.4/Sub.2/1994/2/Add.1 of 20-4-1994), Tumca proeqtis miRebis procesi
dRemde aqtualuria. ukanaskneli movlenebi am sakiTxTan dakavSirebiT
Seexeba adamianis uflebaTa komitetis mier Seqmnili samuSao jgufis
winadadebebs, dakavSirebuls aborigeni xalxis konvenciis proeqtTan
(UN Doc. E/CN.4/2006/79). proeqtis me-3 muxlSi aseve gacxadebulia, rom
aborigen xalxebs aqvT ufleba TviTgamorkvevisa, ris mixedviTac isini
Tavisuflad airCeven TavianT politikur statuss, magram me-4 muxli
akonkretebs, rom `...TviTgamorkvevis uflebis gamoyenebis dros abori-
gen xalxs aqvs avtonomiis an TviTmmarTvelobis ufleba TavianT Sida da
lokalur urTierTobebTan dakavSirebul sakiTxebTan mimarTebiT...~,
riTac ufro metad aqcevs aborigenebs TviTgamorkvevis uflebis gamoy-
enebis CarCoSi. zemoxsenebuli winadadebebi miRebuli iyo adamianis
uflebaTa sabWos mier (rezolucia 2006/2 of 29-6-2006), Semdgom gadag-
zavnili gaeros generaluri asambleisTvis (UN Doc. A/HRC/1/L.10 of 30-6-
2006), Tumca dRemde reagirebisa da miRebis gareSe.
17
Cassese A.: International Law, 2nd ed., (Oxford: Oxford University Press, 2005), 63.
18
ix. Grammatikas V., ~The Definition of Minorities in International Law: A Problem
still Looking for a Solution”, 52 RHDI 321 (1999), pp. 333-336. kristeskus
mixedviT, gaeros diskriminaciis akrZlvisa da umciresobebis dacvis
qvekomitetis specialuri momxsenebeli gansazRvravs `xalxis~ damaxasi-
aTebel niSnebs im mizniT, rom maT mieniWoT TviTgamorkvevis ufleba. es
niSnebia: `(a) termini `xalxi~ moicavs socialur gaerTianebas, romelT-
ac aqvT mkveTrad gamoxatuli individualoba da TavianTi damaxasiaTe-
beli niSnebi; (b) es dakavSirebulia teritoriasTan, imis miuxedavad,
kiTxvis niSnis qveS arsebuli xalxi iyo Tu ara usamarTlod gaZevebuli
am teritoriidan da xelovnurad gadaadgilebuli sxva mosaxleobis
19
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
20
v. gramatikasi, kosovo samxreT oseTis winaaRmdeg?
32
UNGA Res. 2625 (XXV) of 24-10-1970. Tanabari uflebebisa da xalxTa
TviTgamorkvevis uflebebis principi.
33
ETS 157, 1-2-1995, 34 ILM 351 (1995).
34
Ratner D., “Drawing a Better Line: Uti Possidetis and the Borders of New States”,
90 AJIL 590 (1996), 614-615.
35
See. Shaw, supra n. 13, 501, sadac avtori akritikebs ratneris pozicias:
Franck T. Fairness in International Law and Institutions, (Oxford: Clarendon Press,
1995), 147-149, 159; Brownlie I., General Course on Public International Law, 255
RCADI 9 (1995), . 59; Brownlie I., Prιnciples of Public International Law, 6th ed.,
(Oxford: Oxford University Press, 2003), 130; Jimenez de Arechaga, International
Law in the Last Third of a Century, 159 RCADI 9 (1978-I), 100-107.
36
SC Res. 1244 (1999) of 10.6.1999.
37
unda aRiniSnos, rom, vinaidan palestinelebi dainteresebulebi arian,
palestinuri saxelmwifos Seqmnis SesaZlebloba aris mxolod mezobeli
arabuli saxelmwifos teritoriebze, romlebic israelis mier iyo ok-
upirebuli iran-israelis omebis dros, 1967 da 1973 wlebSi. Sesabamisad,
ver visaubrebT israelis teritoriuli mTlianobis darRvevaze, im mar-
tivi mizezis gamo, rom israelis teritorias aravin Sexebia.
38
Brownlie I., Principles of Public International Law, 6th ed., (Oxford University
Press, Oxford, 2003), 555. amgvari daskvna momdinareobs aRmosavleT paki-
stanis teritoriaze 1971 wels indoeTis SeWris magaliTidan, rasac mo-
hyva am teritoriis saerTaSoriso sazogadoebis mier umalve aRiareba,
rogorc damoukidebeli saxelmwifosi (bangladeSi). msgavsi daskvnebis
gamotana SeiZleba aseve xorvatiis aRiarebis Sesaxeb badinteris komisi-
is daskvnis ganxilvisas (4 EJIL (1993), p. 74).
39
Chernichenko S. & Kotliar V., ~ Ongoing Global Legal Debate on Self-determination
and Secession: Main Trends”, in Dahlitz J.(ed.): Secession and International Law:
Conflict Avoidance – Regional Appraisals, (T.M.C. Asser Press, 2003), 84.
40
iqve.
41
Higgins R.,~Self-Determination and Secession” in Dahlitz J.(ed.): Secession and
International Law: Conflict Avoidance – Regional Appraisals, (T.M.C. Asser Press,
2003), 35.
42
Dahlitz J.(ed.): Secession and International Law: Conflict Avoidance – Regional
Appraisals, (T.M.C. Asser Press, 2003), 261. unda aRiniSnos, rom zemoxseneb-
uli daskvnebi dafuZnebulia gaeros praqtikaze, ix. megobruli urTi-
erTobebis deklaracia da 1993 wlis venis deklaracia da samoqmedo
programa.
43
Dahlitz J.(ed.): Secession and International Law: Conflict Avoidance – Regional
Appraisals, (T.M.C. Asser Press, 2003), 265. amerikis regionulma konferen-
ciam daaskvna, rom dekolonizaciis Sedegad miRebuli damoukidebloba
samarTlebrivad SesaZlebelia, Tumca ar unda iqnes miCneuli rogorc
secesia.
44
iqve, 273.
45
msgavs Sexedulebebs SeiZleba wavawydeT evropuli konferenciebis da-
skvnebSic, sadac naTqvamia, rom isini ganixilaven mxolod im sakiTxebs,
romlebic winaaRmdegobrivia saerTaSoriso samarTalSi. ufro konkre-
tulad ki, daskvnaSi naTqvamia: `misaRebia aseve, rom secesia... zogadad
motivirebulia gareTviTgamorkveviT da, Sesabamisad, mWidro kavSir-
Sia TviTgamorkvevis sxva gamoxatulebebTan. TviTgamorkvevis am sxva
gamoxatulebaTa detaluri ganxilva... garda imisa, rac gavlenas axdens
saxelmwifos suverenul statusze..., amoRebul iqna dRis wesrigidan...,
raTa saerTaSoriso samarTlis sadavo sakiTxebisTvis ufro meti dro
daeTmoT, gansakuTrebiT ki iseTi sakiTxisTvis, romelic exeba secesiis
procesSi arsebul farTo Zaladobas~. (iqve, 269 - 270).
21
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
46
damaxasiaTebeli magaliTia golanis simaRleebis saqme (siriis terito-
ria, romelic 1967 wels iqna okupirebuli israelis mier da dResac oku-
pirebulia). okupanti Zalebis gayvana ar CaiTvleba secesiad, radgan
okupacia ukve iyo ukanono.
47
Franck T., Fairness in International Law and Institutions, (Oxford: Clarendon Press,
1995), 158.
48
Crawford J., The Creation of States in International Law, 2nd ed., (Oxford: Clarendon
Press, 2006), 390. Tumca avtori aRniSnavs, rom 1945 wlis Semdeg arako-
loniuri teritoriebis calmxriv secesiasTan dakavSirebuli saxelmwi-
fo praqtika sruliad gansxvavebulia im mdgomareobisgan, romelic
yofili koloniebis damoukideblobas exeboda. saxelmwifoebi ki Tavs
ikaveeben amis aRiarebisgan.
49
Cassese A., International Law, 2nd ed., (Oxford: Oxford University Press, 2005),
68. avtori am gamonakliss ukavSirebs aparteidis msgavsi situaciebis
arsebobas. Tan amatebs, rom saxelmwifoebs kvlav aqvT negatiuri midgo-
ma secesiis mimarT. Tumca avtori ar warmoadgens arc erT praqtikul
magaliTs, romelsac daeyrdnoboda mis mier warmodgenili Tezisi.
50
Higgins R., Problems and Process: International Law and how we Use it, (Oxford:
Clarendon Press, 1994), 125.
51
erToblivi Sexeduleba kvebekis secesiis Sesaxeb momzadda 1992 wels pe-
letis, Sous , higinsis, frankisa da tomuSatis mier. (Higgins, supra n. 41, 36).
52
Reference re Secession of Quebec, Supreme Court of Canada, Ruling of 20th
August 1998, (Source: 115 ILR 537, 594-595.
53
Armed Conflict in Chechnya Case, Russian Constitutional Court, Decision of
31st July 1995 (Source: CoE Doc. CDL-INF(1996)001). ruseTis sakonstitu-
cio sasamarTlos eTxova, gamoetana gadawyvetileba CeCneTis Sesaxeb
ruseTis federaciis mTavrobis me-4 dekretis konstituciasTan Sesa-
bamisobis Taobaze. yvelaze saintereso iyo sasamarTlos gancxadeba,
rom mas ruseTis federaciis sakonstitucio samarTlis safuZvelze ar
hqonda uflebamosileba, ganexila saqme, Tumca, miuxedavad amisa, mainc
ganavrco Tavisi analizi saerTaSoriso samarTlis iseT sakiTxebze,
rogoricaa, magaliTad, hqonda Tu ara CeCneTs secesiis ufleba saer-
TaSoriso samarTlis mixedviT. (For a review of the case see Gaeta P., ~he
Armed Conflict in Chechnya Before the Russian Constitutional Court”, 7 EJIL 563
(1996)).
54
es problema aqtualuri iyo ukve 21-e saukunis dasawyisSi, rodesac pr-
ezidentma vilsonma win wamowia ZalTa (da saxelmwifoebriobis) gada-
nawilebis sakiTxi, romelic damyarebuli iyo TviTgamorkvevis principze.
am periodSi vilsonis sagareo saqmeTa ministrma lensingma ganacxada: `...
fraza, romelsac Zalian ufrTxildebian da ase saTuTad icavs prezi-
denti vilsoni, ubralod, datenilia dinamitiT... erovnuli sazRvrebis
xelSeuxebloba gamoricxuli iqneboda, es principi erTxmad rom yofil-
iyo aRiarebuli... rogori efeqti eqneba mas irlandielebze, indoele-
bze, egviptelebze?.. nuTu es ar gamoiwvevs ukmayoflebas, areulobasa
da ajanyebas, nuTu ar daeyrdnobian am princips siriis, palestinis, da,
SesaZloa, marokosa da tripolis muslimebi? da rogor SeiZleba es iyos
harmoniulad Serwymuli sionizmTan, romelsac prezidenti praqtiku-
lad mimarTavs?~ ( Cassese, International Law, supra n. 49, 61).
55
ramdenime avtorma gaakritika orive – bedinteris komisiis daskvnebic da
TviTgamorkvevis arCeviTi ufleba – iugoslaviis yofil teritoriaze
(ix., inter alia, Warbrick, supra n. 51, p. 217, Radan P.,~Post Secession International
Borders”, 24 Melbourne ULR 50 (2000), Harris D.J.: Cases and Materials on
International Law, 6th ed., (London: Sweet & Maxwell, 2004), 120-121).
56
ix., Gilbert P., The Philosophy of Nationalism, (Boulder: Westview Press, 1998),
16, Miller D.: On Nationality, (Oxford University Press, Oxford, 1995).
22
v. gramatikasi, kosovo samxreT oseTis winaaRmdeg?
57
Costa J.,~On Theories of Secession: Minorities, Majorities and the Multilateral
State”, 6 CRISPP 63 (2003), 65.
58
Norman W., ~The ethics of secession as the regulation of secessionist policies’ in
Moore M.: National Self-Determination and Secession, (Oxford: Oxford University
Press, 1998), p. 37, Philpott D., ~Self-Determination in Practice’ in Moore, ibid.,
σελ. 83, Nielsen K.: “Secession: The Case of Quebec”, 10 Journal of Applied
Philosophy 29 (1993).
59
Buchanan A., Secession, (Boulder: Westview Press, 1991), 49, Moore M.: The
Ethics of Nationalism, (Oxford: Oxford University Press, 2001).
60
CeCneTis saqme zemoxsenebuli Teoriebis potenciuri gamoyenebis Sesa-
xeb, ix. Khalilov R., “Moral justifications of secession: the case of Chechnya”, 22
Central Asian Survey 405 (2003), esp. 409-416.
61
See Thio L-A., ‘International Law and Secession in the Asia and Pacific Regions’,
in Kohen M. (ed.): Secession: International Law Perspectives, (Cambridge:
Cambridge University Press, 2006), p. 306; Heraclides A., ~Secessionist Move-
ments and External Involvement”, 44 International Organisation 341 (1990), p.
349; Ganguly R., Ethnic Conflicts: Lessons from South Asia (New Delhi: Sage
Publications, 1998), 96. Crawford also cites the case of Guinea Bissau in Africa as
comparable to the one of Bangladesh, however, the comparison is only made as
to the course of the recognition process, since Guinea-Bissau was a Portuguese
colony, Crawford J.: The Creation of States in International Law, 2nd ed., (Oxford:
Clarendon Press, 2006), 386.
62
Rich R., ~ Recognition of States: The Collapse of Yugoslavia and the Soviet Union”,
4 EJIL 36 (1993), 61.
63
EC Press Statement, Luxemburg, 15 June 1992.
64
dabombvis dros da mis Semdeg Crdiloatlantikuri organizaciis
wevrma qveynebma (romelTa umetesoba aseve evropis kavSiris wevri qvey-
anacaa) Tavi gaimarTles humanitaruli intervenciis samarTlebrivi
uflebiT, raTa daecvaT kosovos mosaxleoba humanitaruli katastro-
fisgan, rac gamowveuli iyo, erTi mxriv, serbeTis reJimis mier adami-
anis uflebebis masobrivi darReviT da, meore mxriv, ltolvilTa ukon-
trolo SemodinebiT. serbeTma marTlmsajulebis saerTaSoriso sasa-
marTloSi dabombvaSi monawile Crdiloatlantikuri organizaciis 10
wevri saxelmwifos winaaRmdeg ganacxadi Seitana. procesis dros natos
wevri qveynebi kvlav iyenebdnen argumentad intervenciis humanitarul
xasiaTs. mxolod belgia cdilobda, qmedeba gaemarTlebina saerTaSor-
iso samarTlis arsebuli normiT (text: Harris D.J., Cases and Materials on
International Law, 6th ed., (London: Sweet & Maxwell, 2004), 956). Tu vinme
mainc aRiarebda Tanamedrove saerTaSoriso samarTalSi Zaladobrivi
humanitaruli intervenciis arsebobas (rac Zalian saeWvoa), misi, aseve
sxva Sesabamisi Teoriebis, umTavresi mizani unda yofiliyo Zaladobis
Sewyveta da samarTlianobis aRdgena da araviTar SemTxvevaSi ar unda
dakavSireboda igi teritoriuli cvlilebebis sakiTxs. Sesabamisad,
humanitarul intervencias ar SeiZleba raime kavSiri hqondes secesiis
sakiTxTan. (humanitaruli intervenciis ganviTarebisa da misi evolu-
ciis sakiTxis ukeT gasacnobad ix. Grammatikas V., ~From the Crusades to
Humanitarian Intervention and ‘Peacemaking’: New forms of the Just War Theory?”
17 Panorama IJCREV 116 (2005), 120-126).
65
kosovos saboloo statusis gegma, romelic warmodgenili iyo gaeros
uSiSroebis sabWos specialuri elCis – batoni marti axtisaaris – mier,
kosovos damoukideblobas oficialurad aRaiarebis gareSe acxadebda,
magram, amasTan, serbeTis mxridan yovelgvari Caurevlobis garantiiT,
evropuli kavSiris mier regionis mudmivi zedamxedvelobiT (gegmis
teqsti: UN Doc. S/2007/168/Add1 of 26.3.2007, and http://www.unosek.org/un-
osek/en/ statusproposal.html).
23
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
66
aRiarebis procesze, aseve masTan dakavSirebul sxva sakiTxebze
ix. http://www.kosovothanksyou.com.
67
erTi avtori sworad miiCnevs, rom, saerTaSoriso xelSekrulebe-
bis Sesaxeb venis konvenciis 52-e muxlis Sesabamisad, nato-serbeTis
SeTanxmeba serbeTis mier Tavisi samxedroebis gamoyvanisa da kosovos
daTmobis Sesaxeb iyo baTili, radgan SeTanxmeba dadebuli iyo muqariT
da Zalis gamoyenebiT. amasTan, gaeros uSiSroebis sabWos 1999 wlis 1244
rezoluciis operatiuli nawilic (operative part), romelic mxars uWerda
da amarTlebda SeTanxmebas, aseve baTili iyo (Milano E., ~Security Council
Action in the Balkans: Reviewing the Legality of Kosovo’s Territorial Status”, 14
EJIL 999 (2003), pp. 1007-1009, 1015-1020).
68
im mizniT, rom gaaZlieros kosovos mimarT Tavisi iuridiuli gavlena,
serbeTis axal konstituciaSi, romelic damtkicebuli iyo 2006 wlis
referendumis ZaliT, warmodgenilia 182-e muxli, sadac aRniSnulia,
rom kosovo serbeTis teritoriis ganuyofeli nawilia (konstituciis
teqsti: http://www.parlament.sr.gov.yu/content/eng/akta/ustav/ustav_ceo.asp).
69
sabWoTa konstituciis teqsti: http://www.departments.bucknell.edu/russian/
const/77cons03/html.
70
maT Soris, SC Res. 876 (1993), 896 (1994), 906 (1994), 937 (1994), 977 (1995),
993 (1995), 1036 (1996) – yvela adasturebs saqarTvelos suverenitetsa
da mis teritoriul mTlianobas.
71
miuxedavad imisa, rom samxreT oseTSi cxovrobs daaxloebiT 12.000 qarT-
veli (rac mTliani mosaxleobis 1/7-ia), maT referendumSi monawileoba
ar SeeZloT, radgan saarCevno siebSi registraciisTvis saWiro iyo ru-
seTis pasporti, dokumenti, romelic, qarTvelebis garda, yvela oss
hqonda. Tumca, rogorc eqspertebi amboben, qarTvelebs romc mieRoT
monawileoba referendumSi, es saboloo Sedegze gavlenas mainc ver
moaxdenda. (ttp://www.isn.ethz.ch/news/sw/details.cfm?ID=16920, Comment of
15/11/2006). es iyo mesame referendumi (wina referendumebi Catarda 1992
da 2001 wlebSi). 2006 wlis 13 noembris gancxadebaSi evropuli kavSiris
imdroindeli prezidenti qveynis – fineTis – warmomadgenelma aRniSna,
rom `referendumi~ ewinaaRmdegeba saqarTvelos suverenitetsa da mis
teritoriul mTlianobas im sazRvrebSi, romlebic saerTaSorisodaa
aRiarebuli. evropuli kavSiri Tvlis, rom samxreT oseTSi Seqmnili md-
gomareoba ar aZlevda uflebas, gamoxatuliyo popularuli neba~.
72
2006 wlis 12 oqtombers samxreT oseTis parlamentis Tormetma wevrma
mezobeli ruseTis federaciis mTavrobisgan moiTxova, eRiarebina 1920
da 1989-1992 wlebSi saqarTvelos mier osebze ganxorcielebuli geno-
cidi. (http://www.kommersant.com/p721626/r_527 /South_Ossetia_by_Kosovo).
meti informaciisTvis aRniSnuli genocidis sakiTxis Sesaxeb ix. http://
www.OSgenocide.ru
73
Interview by J. Solana of 4/10/2006 (http://www.rferl.org/featuresarticleprint/2006/10 ...).
74
movlenaTa Sesaxeb arsebuli uamravi wyarodan Semdegi sami (dasavluri
warmomavlobis) SeirCa, vinaidan isini SeiZleba CaiTvalos yvelaze nei-
tralur da faqtebze damyarebulad, Tumca bolomde neitraluri wy-
aros povna mainc SeuZlebeli gaxda: http://www.globalsecurity.org/military/
world/war/south-ossetia.htm, http://en.wikipedia.org/wiki/2008_South_Ossetia_
war, http://www.economist.com/opinion/displaystory.cfm?story_id=12009678 (sa-
mxreT oseTi kosovo ar aris)
75
ruseTisa (elcini) da saqarTvelos (SevardnaZe) prezidentebis 1992
wlis soWis SeTanxmebis safuZvelze samxreT oseTSi ganTavsda mSvido-
bismyofelTa erToblivi sami batalioni) – 1 ruseTis, 1 oseTisa da 1
saqarTvelos mxridan. Sesabamisad, saqarTvelos mainc axorcielebda
samxedro kontrols samxreT oseTis teritoriis garkveul nawilze.
ruseTis sapasuxo Seteva samxreT oseTSi gavrcelda afxazeTSic da
24
v. gramatikasi, kosovo samxreT oseTis winaaRmdeg?
25
VASSILIOS GRAMMATIKAS, LLM, PHD*
26
V. GRAMMATIKAS,
v. gramatikasi, KOSOVO
kosovo samxreT V. SOUTH
oseTis OSSETIA?
winaaRmdeg?
“… to freely determine their political status In the Western Sahara11 and Burkina Faso
and to freely pursue their economic, social / Mali12 Cases the ICJ reaffirmed the validity of
and cultural development”.4 The Declaration the self-determination principle, while, in the
on Friendly Relations (1970) reaffirmed the Eastern Timor Case, the Court went even fur-
above definition, attaching it a much broader ther by declaring self-determination to have an
dimension, as its content was not confined to erga omnes character.13
colonialism.5
The first description of the principle of (i) Recipients of the right of
self-determination in legal documents can be self-determination
found in the text of common Article 1 § 1 to
Self-determination is defined as the abil-
the two UN Covenants on Civil and Political
ity of a people to freely define its own politi-
Rights – ICCPR6 and on Economic, social and
cal regime. Consequently, this may amount to
Cultural Rights – ICESCR,7 which provides
independence, unification with another state
that self-determination is the right of all peo-
or any other form of organization the people
ples to “…freely determine their political status
might choose.14 The ways of application of this
and freely pursue their economic, social and
right were almost limitless when exercised by
cultural development”, while common Article 1
colonial peoples, however, state practice im-
§ 3 states that “The States Parties to the pres-
posed significant limitations or even selective
ent Covenant … shall promote the realization
application in other, non-colonial cases.
of the right of self-determination, and shall re-
As an example, if we examine the case
spect that right, in conformity with the provi-
of indigenous peoples, recent international in-
sions of the Charter of the UN”. The very high
struments elevate them into peoples (from the
number of participant State to both Covenants
previously used term ‘populations’) and their
is indicative of the global acceptance of the
right to self-determination is acknowledged,15
principle, at least within the limits of the above
however, they are not granted the fundamen-
phrasing.8
tal element of self-determination, the free de-
At the regional level, Article 20 § 1 of the
termination of their political status.16
African Charter on Human and Peoples’ Rights
In reality, we cannot refer to an actual right
provides that:
of self-determination, but rather to a meaning-
“All peoples shall have the right to less term, granted to indigenous peoples as
existence. They shall have the unques- a form of “charity”, or maybe as an indirect
tionable and inalienable right to self- de- way for the developed states to recognise the
termination. They shall freely determine crimes committed against these populations.
their political status and shall pursue According to Cassese, “… current inter-
their economic and social development national law on self-determination is blind to
according to the policy they have freely the demands of ethnic groups (not constituting
chosen”.9 a racial group)…”.17 He draws this distinction
on the basis of the non-existence of common
The ICJ had the opportunity to deal with
racial characteristics in ethnic groups, in con-
the right to self-determination and to acknowl-
trast to peoples.18
edge its legal force on several occasions. In
its Advisory Opinion on the Namibia Case
(ii) Self-determination and minorities
the Court declared that “... the subsequent
development of international law in regard to Current international law does not en-
non-self-governing territories as enshrined in dorse the right of self-determination for minori-
Charter of the United Nations, made the prin- ties either. Initially, it should be noted that all
ciple of self-determination applicable to all of international instruments referring to the pro-
them”,10 thus extending the application of the tection of minorities do not recognise collec-
principle to any case of non self-governing ter- tive rights for minorities, but merely individual
ritory, beyond the narrow limits of the decolo- rights in favour of the persons belonging to
nisation process. them.19 Even if one accepted that minorities,
27
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
as collective entities, do enjoy the right of self- As a legal principle, uti possidetis appeared
determination, since no collective rights are initially in Latin America and aimed at secur-
afforded to them, self-determination should be ing the borders of the Latin American states
transformed to an individual right in favour of from the possibility of recolonisation by the
their members. However, such an interpreta- European Colonial powers, due to the fact that,
tion would amount to the acceptance of a right in large parts of South America, there wasn’t
of “individual self-determination”, thus distort- effective occupation by any country and any
ing the notion and reasoning of self-determi- foreign power could seize that territory as terra
nation as it emerged and developed during the nullius. Since the only pre-existing territorial ar-
UN period. rangements were the boundaries of the admin-
Taking into account that most minorities istrative regions, as they were drawn up by the
are parts of peoples which for historical, geo- colonial powers (mainly Spain), the principle of
graphical or political reasons were enclosed uti possidetis was used for the transformation
within the territorial boundaries of another of the colonial administrative boundaries as le-
state, it would be unrealistic –even irrational- gally acceptable international borders of the in-
to recognise the same right for the people, as dependent Latin American states. Additionally,
well as for every part of it residing outside its the application of the uti possidetis principle
main territorial entity. Additionally, there is no prevented –to a large extent- territorial conflicts
evidence, both in international jurisprudence between the Latin American states.21
and in state practice, to support such a con- From Latin America the principle was
clusion in favour of minorities. transferred to Africa,22 in order to settle the
The situation appears to be slightly dif- territorial boundaries of the newly constituted
ferent for ethnic groups that constitute minori- states. Although the prevailing situation was
ties within their states of residence but do not quite different from Latin America (many colo-
belong to another people. Thus, Ossetians or nial powers, geometrically drawn borders, nu-
Abkhazians who have distinct national identi- merous and small colonies), the principle was
ties -but constitute minorities within the territory accepted by the Organization of African Unity
of Georgia- bear the essential characteristics through its Resolution 16 (1) (Cairo, 1964).
of Peoples and, consequently, have the right According to that Resolution, the colonial bor-
to self-determination, at least theoretically. ders that existed at the time of decolonisation
In practice, however, as there aren’t any constituted a reality which all member states
generally accepted definitions of the terms of the OAU undertook to respect.
“people” and “minority” in international law, Several years later, the ICJ, in the Burkina
the recipients and the actual content of these Faso / Mali Case, dealt with the above OAU
rights are not always clear. As a result, the so- Resolution and attached special importance
lutions provided by state practice in various to it, stating that the agreement of the newly
situations appear to be purely political, based constituted African states “… should not be
upon the individual interests of the major pow- taken merely as a practice contributing to the
ers (mainly) and the neighbouring states and gradual formation of rule of customary inter-
without any legal content. national law … but as the application in the
African Continent of a rule of more general
(b) The principle of uti possidetis importance”.23 In the El Salvador / Honduras
Case the ICJ reaffirmed its opinion on the gen-
The principle of uti possidetis has its roots
eral application of the uti possidetis rule.24
in Roman law as a means to preserve the sta-
The limits of application of the rule, how-
tus quo in a given situation, regardless of the
ever, were put to the practical test during and
manner of creation of this situation. It was also
after the collapse of the Soviet Union and the
used during the early colonisation period as a
former Yugoslavia. The question that needed
principle that recognised the occupation of a
to be addressed both in legal and actual terms
certain territory by a colonial power vis-a-vis
was whether the uti possidetis principle, ex-
the others, in order for colonial states to be
cept Latin America and the colonial regimes,
able to resolve their differences peacefully.20
28
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was equally valid in any case of independence ting out the conditions for the recognition of
of a state. the new states. Among the terms that were
The question was dealt with by the spe- set was “respect for the inviolability of all fron-
cial Arbitration Commission (also known as the tiers which can only be changed by peaceful
Badinter Commission) that was created by the means and by common agreement”.29 In or-
European Communities in order to set out the der to be recognised by the EC, all new states
conditions for the recognition, by the EC, of the had to conform with the EC terms, including
entities that were created in the course of the the latter.30
break-down of Yugoslavia. Based exclusively Another example of the application of the
on the findings of the ICJ in the Burkina Faso / uti possidetis principle can be found in the proc-
Mali Case, the Commission adopted the gen- ess of dissolution of Czechoslovakia in 1993.
eral application of the uti possidetis principle: When it was decided that Czechoslovakia
would cease to exist, the two new states that
“… except where otherwise agreed,
emerged, the Czech Republic and Slovakia,
the former boundaries become frontiers
decided to retain the administrative borders
protected by international law. This con-
between the two constituent entities of the old
clusion follows from the principle of re-
state and this decision was confirmed by a bi-
spect for the territorial status quo and in
lateral treaty.
particular from the principle of uti possi-
Conclusively, there cannot be any doubt
detis. Uti possidetis, though initially ap-
that all relevant international and state prac-
plied in settling decolonization issues in
tice that followed the breakdown of the USSR
America and Africa, is today recognised
and Yugoslavia in the early 90’s shows a gen-
as a general principle, as stated by the
eralised acceptance and application of the
ICJ in its Judgement of 22 December
uti possidetis principle, without exceptions or
1986 in the case between Burkina Faso
qualifications.
and Mali …”.25
The final dissolution of Yugoslavia, which (c) Self-determination of peoples
acquired a legal dimension through the Dayton and uti possidetis
Agreements (1995), confirmed the principle of
An issue that was not dealt with by the
uti possidetis. In particular, with Article X of the
ICJ in its relevant decisions (it was not under
Framework Agreement for the Peace in Bosnia
examination) and cannot be inferred by the re-
& Herzegovina, Yugoslavia and Bosnia were
cent state practice is the relationship between
mutually recognised “within their International
the principles of self-determination, on the one
borders”.26
hand, and the territorial integrity, on the oth-
A similar settlement was reached by the re-
er hand. The practical problem that arises is
spective states after the collapse of the USSR.
which of the two principles will prevail when a
The states participating in the Commonwealth
people wishes to exercise its right to self-deter-
of Independent States (CIS) agreed to respect
mination in a territory which belongs to another
each other’s territorial integrity “the inviolabil-
state, without the consent of the latter.
ity of state borders, the recognition of existing
A number of international instruments refers
borders and the rejection of unlawful territo-
– indirectly – to this possibility. The Helsinki Final
rial annexations” (Art. 3).27 A few days later the
Act (1975) declares the inviolability of existing
Alma Ata Declaration, which was signed by
borders (Principle III) and the territorial integrity
11 of the 15 SSR, stated that the participating
of the participating states (Principle IV) while
States: “recognise and respect the territorial
recognising – at the same time – the right of self-
integrity of each other and the inviolability of
determination of peoples (Principle VIII).31 The
existing borders”.28
Friendly Relations Declaration provides that:
The European Community, confronted
with a new political environment which was “Nothing in the foregoing paragraphs
brought about by the collapse of Yugoslavia shall be construed as authorising or encou-
and the USSR, adopted a Declaration set- raging any action which would dismember
29
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or impair … the territorial integrity or politi- peoples were recognised by the Constitutions
cal unity of sovereign and independent of those States, the basic issue was whether
states conducting themselves in compli- these entities had the right to secede and un-
ance with the principle of equal rights and der which conditions.
self-determination of peoples … A much more complex situation emerges
Every State shall refrain from any in cases where either the sovereign state refus-
action aimed at the partial or total dis- es to recognise the identity of a population as
ruption of the national unity and ter- a people or the people has no administrative
ritorial integrity of any other State or autonomy within the borders of the respective
country”.32 state. The most characteristic examples are
the Kurds (mainly in Turkey but also in Iraq
Article 21 of the Framework Convention
until recently) and the Palestinians (in Israel).
for the Protection of National Minorities pro-
Although the legitimacy of the international
vides that:
borders of the latter states is not under ques-
“Nothing in the present framework tion, since the principle of self-determination
Convention shall be interpreted as im- has a general application and therefore these
plying any right to engage in any activity peoples have the right to exercise it in the ter-
or perform any act contrary to the fun- ritories in which they live, we cannot rule out
damental principles of international law the possibility of secession which will neces-
and in particular of the sovereign equal- sarily violate the territorial integrity of these
ity, territorial integrity and political inde- States.37
pendence of States”.33 A very interesting view is expressed by
The same terminology can be found in Brownlie, who emphasized that if a territory
several other international instruments. The is occupied by the use of force and the prin-
almost identical phrasing of the relevant provi- ciple of self-determination is invoked in order
sions underscores the will of States to value to justify the occupation, the outcome can be
their territorial integrity higher than any other recognised more easily than in other cases of
principle, in this instance, self-determination. illegal occupation of territory.38
The relevant literature appears to be di-
vided regarding the supremacy of any of the (d) Definition and function of secession
two principles (uti possidetis v. self-determi- (i) From the point of view of
nation). Ratner supports that, after the geopo- international law
litical developments that followed the collapse
During a series of conferences on self-de-
of Yugoslavia and the USSR, the principle of
termination and secession, which were organ-
self-determination was reinforced and was el-
ised under the auspices of several research
evated to a primary right, prevailing over the
institutes in Europe and the US, the following
traditional rules of international law on the ter-
definition of secession was provided:
ritorial integrity of States.34
Contrary to the above opinion, the majori- “The issue of secession arises whe-
ty of authors continue to link the application of never a significant portion of the popula-
self-determination with the principle of uti possi- tion of a given territory, being part of a
detis.35 This seems to be the correct approach State, expresses by word or deed the
as the principle of uti possidetis is reconfirmed wish to withdraw from the State and be-
in almost every official declaration or treaty be- come a State in itself or become part of
tween states. Even SC Resolution 1244 (1999), another State”.39
by which Serbian sovereignty over Kosovo was This view probably reflects the dominant
effectively abolished, declared respect to the … position of western states towards the seces-
territorial integrity of Serbia.36 sionist issues in Yugoslavia and the USSR.
In the cases of the former Yugoslavia or The wording of the above definition became
the USSR, where there existed internal ad- the object of severe criticism by scientists from
ministrative boundaries and the respective the CIS, the main points of which were the fol-
30
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lowing: (a) the notion of secession is examined termination of peoples and which does not
without any connection with the right of self- ensure representation of all its peoples in
determination and (b) the possibility of seces- its government without discrimination.42
sion, connected with the right of self-determi- (b) Americas Regional Conference:
nation, is recognised only for peoples and not 1) International law at present confers nei-
for “a significant portion of the population of a ther a right of unilateral secession, nor
given territory”. They also underlined that if the does it deny any such right.
latter proposition were to be accepted, even 2) Secession is legally possible in the follow-
religious groups would have such a right.40 ing cases:
Although many discussions were held, • By mutual consent and agreement of
both on political and scientific levels, about all those concerned;
the groups and the conditions, according to • Pursuant to the constitution or laws of
which, they would be entitled to pursue their the State.
secession from a State, there does not exist, • Where peoples are under colonial
until now, a uniform theoretical formulation of rule or illegal foreign occupation.43
an alleged “right to secession”. (c) European Regional Conference: In an
A point everyone seems to agree upon is otherwise vague and rather complicated
that the colonial peoples have a general right text it is stated that “Recent State prac-
of self-determination which includes the possi- tice suggests that there is a presumption
bility of statehood. However, as judge Higgins against recognition of secession from a
correctly observed, this right did not allow the non-consenting state”.44
colonial peoples to secede from an existing It is the opinion of the present author
State, but imposed an obligation on colonial that, if secession occurs either by consent of
powers to leave their colonies, thus leaving the parties involved (eg. Czechoslovakia) or
the former colonial peoples free to administer through the application of a Constitutional or
their political future and, therefore, the decolo- other legal provision, this should not be the
nisation process had no relation to the issue object of scrutiny under international law and
of secession.41
be recorded as an acceptable case of seces-
A general conclusion that could be de-
sion, as it is almost self-evident.45 Additionally,
duced from reviewing all theoretical positions
liberation of a certain territory under military
that have been expressed is that, through
occupation cannot be considered as seces-
many and rather different approaches, there
sion – legally or actually – since the military
seems to be an acceptance of the possibility
occupation is ipso facto illegal and is not rec-
for certain groups to be able to secede from
ognised by international law.46 Therefore, the
existing states.
only possibility that is left for a legal right of
The conclusions of the regional confer-
secession is when there are serious violations
ences on secession and international law
of human rights of a group by its State and this
adopted the following points:
group is also excluded from the governance
(a) CIS regional conference: Secession is
mechanisms of the respective state.
possible in the following cases:
Especially after the dissolution of the
1) If it relates to peoples in the territories to
USSR and Yugoslavia several authors have
be decolonized (at present this norm has
adopted an approach in favour of a right to se-
lost its original significance as the process
cession, while others seem to maintain a neu-
of decolonization is virtually over),
2) If it is laid down in a Constitution (or in an- tral position. Franck points out that in the UN
other law) of a State, Charter, the Covenants (ICCPR & ICESCR),
3) If a territory populated by a certain people the Helsinki Final Act or state practice, there
has been annexed after 1945 [this corre- is nothing to prohibit members of the interna-
sponds to the Palestinian issue] tional community to recognise the outcome of
4) If a given people live in a territory of a a successful secession.47 Crawford also held
State which does not conduct itself in that “The position is that secession is neither
compliance with equal rights and self-de- legal nor illegal in international law, but a le-
31
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
gally neutral act the consequences of which In a very interesting – in legal terms –
are regulated internationally”.48 decision the Russian Constitutional Court,
In this context, Cassese supports that in the Case concerning the Armed conflict in
there is a right of secession when a racial Chechnya noted that:
group is forcibly excluded from access to gov-
“The constitutional goal of preserv-
ernance. He also notes that the group in ques-
ing the integrity of the Russian State
tion has a legal right to use force and can –by
accords with the universally recognised
seceding- unite with another state or create its
principles concerning the right of nations
own.49
to self-determination”.53
Judge Higgins, without explicitly referring
to secession, underlines that “the principle of The already vague situation regarding
uti possidetis … places no obligation upon mi- secession becomes even more complicated if
nority groups to stay part of a unit that maltreats we attempt to combine all relevant principles
them or in which they feel unrepresented”.50 that might play a role, self-determination of
It is interesting to note though, that in a peoples, minority rights, uti possidetis and the
report that Franck and Higgins prepared to- notion of secession.54
gether with other prominent international law- According to the present author, if it is ac-
yers on the case of Quebec, they emphasized cepted that there is a general right of self-de-
that there is no legal right in favour of seces- termination, it should also be accepted that, as
sion based on the fact that a given territory is a necessary consequence, it will sometimes
inhabited by a linguistic minority which, within lead to secession. However, in the present
the limits of this area, is the majority of the phase, it is extremely difficult to formulate a
population.51 specific international rule towards the creation
The obvious hesitation on the part of many of a legal right to secession, as the relevant
authors to recognise a legal right to secession, state practice does not bear any uniformity
even under very strict preconditions and for well and is dictated solely by short or long term po-
defined recipient groups and the expression of litical expediencies. Thus, it is very difficult to
views that, at times, might sound contradictory understand why the Kurds or the Palestinians
to each other should be attributed to the follow- (which no-one denies that they constitute peo-
ing realities: (a) elements of recent state prac- ples) cannot exercise their right to self-deter-
tice subscribing to the acceptance of such a mination while, at the same time, the “interna-
right (b) the total lack of legal rules (instruments, tional community” declared the right of Croats
decisions of international courts or other bodies and Bosniacs to self-determination, assisting
etc.) to support the position that secession is a them politically and even militarily to suc-
right sanctioned by modern international law. ceed. Moreover, it is incomprehensible why a
In contrast, the will of states, as it has been Serbian region (Kosovo) is driven by various
expressed in instruments of legal or political powers to independence while the same pow-
nature and also in relevant jurisprudence, is ers deny this right to the Serbs of Bosnia.55
clearly against any violation of the territorial
integrity of states. In the case concerning the (ii) The viewpoint of political science
Secession of Quebec, the Supreme Court of Contrary to the futile efforts made by le-
Canada, in responding to the questions asked gal authorities to try and substantiate the right
by the Canadian Government held that: to secession as part of modern international
“A State whose government repre- law, political scientists examining the same
sents the whole of the people or the peo- phenomenon do not face similar difficulties.
ples resident within its territory, on a basis The theories that were developed about se-
of equality and without discrimination, and cession can be summarized into three main
respects the principles of self-determina- directions:
tion in its own internal arrangements, is (a) National self-determination theories:
entitled to the protection under interna- According to these theories nations have
tional law of its territorial integrity”.52 an inherent right of self-determination,
32
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which includes the creation of a state.56 The and Yugoslavia, is rather rich. Arguably, the
main criticism against these theories is that only successful case of secession in the UN
it is impossible to decide which group will period, prior to the collapse of the USSR and
have the status of a people in order to have Yugoslavia, is the secession of East Pakistan
such a right, as the designation of groups and the eventual recognition of its statehood
that acquire the status of peoples is sub- as Bangladesh.61
ject to external decision-making.57
(b) Choice theories: This category of theo- (a) The case of Kosovo
ries shares the following common charac-
The issue of the secession of Kosovo
teristics:
from Yugoslavia (and later from Serbia) did
1) The majority of the population in a certain
not emerge during the NATO bombings of
area must express its will to secede.
1999 but much earlier, during the process
2) There is no need for the group either to
of the dissolution of Yugoslavia. In 1991 the
possess common characteristics or to
Albanian leadership in Kosovo held a “referen-
have suffered oppression.
dum” where 87% of the local population partic-
3) Solely the will of the group to secede is
ipated. The outcome was 99.87% in favour of
enough to justify the secession.58
independence and the local leaders declared
(c) Just cause theories: This category of theo-
independence, undertaking to fulfill all the cri-
ries appears to have a very different starting
teria set by the EC for the recognition of States
point, initially denying the existence of a gen-
emerging from the former Yugoslavia.62
eral right of secession. However, it accepts
At that time, the EC issued a statement
the possibility of secession in two cases: 1)
reading as follows: “…frontiers can only be
when the group is subjected to systematic
changed by peaceful means and (the EC
discrimination, exploitation or massive viola-
countries) remind the inhabitants of Kosovo
tions of human rights and 2) when the area
that their legitimate quest for autonomy should
where the group is concentrated was ille-
be dealt within the framework of the EC Peace
gally incorporated to the respective state.59
Conference”.63
These theories use moral arguments to a
Several years later, in 1999, the NATO
much greater extent than the previous ones,
bombings against Serbia resulted in the vio-
thus presenting secession as a moral right
lent removal of a part of Serbian territory,
for those groups fulfilling the above condi-
which was sanctioned by SC Resolution 1244
tions.60 They tend to ignore, however, that
(1999).64 The transformation of Kosovo into
international politics have very little – if any-
some kind of international protectorate further
relation to moral values and that, even if
weakened Serbian sovereignty and the final
such a moral right exists, it can be valid only
solution seems to be either full independence
through a uniform application.
or a permanent international regime.65 Kosovo
Following the aforementioned, one may
has declared its unilateral independence on
conclude that all these political theories are
17 February, 2008 and has been recognised
basically descriptive of an existing phenom-
by 52 states, including the US and 22 out of
enon in international relations, they have very
27 EU member states.66 It is interesting to note
little usage on the legal approach to secession
though that Kosovo has not been accepted to
and even less on the formulation of a legal
any international organization so far.
right of secession.
In contrast to other separatist movements,
the withdrawal of the Serbian forces and the
3. RECENT STATE PRACTICE de facto change of sovereignty was not ac-
complished through the struggle of Kosovars
Upon examining a phenomenon in inter-
(the military activity of the UCK guerillas was
national relations, which is constantly devel-
rather insignificant) but by NATO which used
oping, it is essential that recent state practice,
force in order to compel Serbia to agree on
on the issue of secession, be reviewed, which,
its withdrawal from Kosovo.67 The most recent
especially after the dissolution of the USSR
Serbian reaction is its effort to associate any
33
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
solution regarding Kosovo to the case of the to recognise the “genocide” against Ossetians
Republika Srpska (the Serbian constituent from Georgia, so as to totally assimilate the
entity of Bosnia & Herzegovina) stating that characteristics of the two cases.72
it will seek to apply the same solution of RS This analogy was also recognised by EU
as the one that will eventually be applied in High representative on CFSP Mr. Solana in an
Kosovo.68 interview who emphasized that that the pos-
sible independence of Kosovo could have a
(b) South Ossetia and Abkhazia* negative influence towards the territorial integ-
rity of Georgia. He noted that “We are trapped
During the breakdown of the Soviet Union
here … in a double mechanism that may have
the creation of 14 new states (excluding the
good consequences for one, but not for the
Russian Federation) provoked a series of re-
other. It may not be a win-win situation …”.73
actions by Russian or pro-Russian populations
The status quo existing until this year
who, in their turn, claimed their right of secession
changed rapidly after the recent offensive
from the new states. Two of the most important
by the Georgian armed forces against South
such cases emerged in the territory of Georgia.
Ossetia deteriorated the situation against
According to the 1978 Soviet Constitution
Georgian sovereignty on two grounds. First,
Abkhazia had the status of an Autonomous
the indiscriminate shelling of the Ossetian
SSR (Art. 85), while South Ossetia was an
capital Tskhinvali on the night of 7-8 August
Autonomous Region (Art. 87), both within the
2008 by the Georgian military reinforced the
boundaries of the Georgian SSR.69
arguments about a genocide being commit-
When Georgia declared its independence
ted against Ossetians. Indeed, the nature and
the populations of the two regions reacted and
weaponry used during the attack (night shell-
after an armed struggle -with the encourage-
ing, area bombardment and low precision
ment and support of Moscow but without the
weapons used as artillery and mortars) leave
direct involvement of Russian troops in the
very little margin of doubt that the primary tar-
fighting- they succeeded to de facto secede
get was the civilian population of the city. Even
from Georgian territory. However, the numer-
if the casualty number given by Moscow and
ous SC Resolutions on the issue70 as well as
the Ossetians (about 1500 dead) is exagger-
various statements on behalf of states, contin-
ated, the number is still extremely high and it
ue to support the territorial integrity of Georgia
reinforced the allegations for a policy of geno-
and refrain from legally recognizing the seces-
cide pursued by the Georgian Government
sion of the two territories.
against the Ossetian population.74
In 2006 though, on the occasion of a
The Georgian attack provoked a fierce
“referendum” that was conducted in South
Russian military response which, not only
Ossetia where 99% of the population voted
threw the Georgian forces out of Ossetia (and
in favour of independence from Georgia,71
Abkhazia too),75 but went on to occupy several
Russian officials systematically compared the
strategic positions deep inside the Georgian
case of South Ossetia (and Abkhazia too) with
territory, including the city of Gori and the port
Kosovo. Lately, in order to draw a direct analo-
of Poti. The Russian troops pulled out much
gy to the situation in Kosovo, there is an effort
*
The author of this article offers a very interesting concept of “The right of people to succeed”. Given the Editorial
Board policy aimed at publishing any doctrinal opinion even when it cannot be shared by the Board, it seems to
be necessary to attract the authors attention to some factual and conceptual discrepancies while he is examining
situations in Abkhazia, so called South Ossetia and other conflicts which have taken place on the territories of
former Soviet Union Republics.
The Board would advise the author in the future to base his judgment on an evaluation given by really
independent and well-known international nongovernmental organizations and experts in international law aware of
the events under consideration.
As an example we refer to evidences and evaluation provided by the Human Rights Watch, a well-known
professor of International Law Antonio Cassesse (see Attachment N1-4), a very helpful information is contained in
issue №2, 2008 of the “Journal of International Law”.
34
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later but held their positions in the breakaway the local majority. The question of these ref-
regions. The practical outcome of this military erenda would be whether to follow the break-
confrontation was that Georgian presence in away SSRs, to remain part of the Soviet Union
South Ossetia and Abkhazia was abolished or to decide their own political status (Art. 3).
and the political outcome was the immediate When Azerbaijan declared its indepen-
recognition of the independence for both re- dence from the USSR, almost simultaneously,
gions by Russia. The international response NK declared its own,78 invoking the latter leg-
was less favourable for the two regions than in islation.79 The response of Azerbaijan was to
the case of Kosovo. So far only Nicaragua has revoke the autonomy of NK, thus further ag-
recognised their independence,76 despite the gravating the already tense situation.80 Very
pressure exerted by Moscow on other former soon hostilities started and they quickly de-
Soviet republics. veloped into a full scale war between Armenia
However, the eventual course of action and Azerbaijan. Eventually the separatists,
by the “international community” towards assisted by the Armenian army, occupied all
Abkhazia and South Ossetia will have very of NK as well as the neighbouring Azeri ter-
little to do with respect for Georgian territorial ritories in order to secure a corridor between
integrity but rather with the geopolitical devel- NK and the Armenian territory. The ceasefire
opments in the area and around the world, the which was signed in 1994 has left another “fro-
obvious similarities between the two regions zen” conflict in Caucasus and another de facto
and Kosovo and the virtually non-existent secession, while the solution seems to be a
potential of the two breakaway regions co- remote possibility.
existing within the borders of the Georgian As far as the reaction of the “interna-
state. (This latter proposition was systemati- tional community” is concerned, several SC
cally used by western states as an argument Resolutions confirm the territorial integrity of
against the reintegration of Kosovo to Serbia Azerbaijan.81 Recently though, the conduct
by stating that it would be unrealistic to expect of a “constitutional referendum” in NK rekin-
Kosovo to be part of the Serbian state again). dled the discussion on its status.82 A very in-
teresting statement was issued by the Finish
(c) Nagorno Karabakh (NK) Presidency of the EU on the occasion of the
above “referendum”. Although it is stated that
The case of Nagorno Karabakh (Autono-
the EU neither recognises the referendum and
mous Region of Azerbaijan according to Art.
its results, nor the independence of NK, the
87 of the Soviet Constitution) has some unique
previously repeated typical reference to the
legal features that separate it from all other
respect for the territorial integrity of Azerbaijan
separatist issues in the former Soviet Union.
was omitted.83
When Azerbaijan declared its independence
The unique feature in the NK issue is that
from the Soviet Union, NK in its turn, whose
it constitutes the only secessionist conflict in
population consisted of 80% Armenians, de-
the former Soviet Union which has a localized
clared its independence from Azerbaijan.
character, without any involvement of Russia.
The 1978 Soviet Constitution provided
Recently, given its abstention from the conflict,
that any SSR could freely secede from the
Russia is trying to become a credible mediator
USSR (Art. 72) but such right was not secured
in an effort to resolve it.84
for the smaller administrative units (ASSRs
and oblasts), without, however, being explic-
(a) Transdniestria (Transnistria)
itly denied to them. This vagueness was sup-
posed to be rectified by the 1990 Law on the Transdniestria is a thin strip of land east of
Procedures for Secession of Republics from the Dniestr (Nistru in Romanian) river which,
the USSR.77 According to that legislation, if an after a series of geopolitical changes, became
SSR conducted a referendum on secession part of the Moldovan SSR from 1945 (when
from the USSR, the same right was provided Moldova was annexed by the Russians) until
for all the Autonomous SSRs, Oblasts, even the dissolution of the USSR in 1990.85 When
territories where different national groups were Moldova acquired its independence, it de-
35
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
clared the compulsory use of the Romanian ject secession in similar cases. Political scien-
language in the fields of education and pub- tists have developed theories on a moral right
lic administration. Under this pretext, the of groups to secession. If, however, we accept
population of Transdiestria (65% of which that such a right exists, it should be applied in
are Russians and Ukrainians – the rest being every situation, unless we are referring to a
Moldovans) created a separatist movement selective and flexible morality, which amounts
and, after they defeated the Moldovan troops to the very definition of immorality.
(through the indirect assistance of the 14th In practice, Russia has made it clear that
Russian Army), they accomplished their de the final solution to the issue of Kosovo will
facto secession from Moldova. As in any other also apply to South Ossetia and Abkhazia. In
post soviet secessionist issue, there is no de parallel, Serbia has repeatedly declared that
jure recognition of the outcome but, since the any solution provided for Kosovo should be im-
ceasefire in 1993 there has not been a solu- plemented for the Serbian Republic of Bosnia
tion until now. too. So, if the western countries finalize the
The element that distinguishes this seces- independence of Kosovo will they also simul-
sion from the other cases is that two different taneously accept the independence of South
peoples (Russians and Ukrainians residing in Ossetia, Abkhazia and Republika Srpska? In
Transdniestria) are pursuing their secession such a case will there be a rational argument
together. However, the two interested parties, to deny the independence of Chechnya? And
Russia and Ukraine, are not in favour of inde- will the Serbian population of North Kosovo
pendence for Transdniestria, possibly because have the same right as the rest of the terri-
its viability as a state is highly doubtful, but in- tory? Eventually, will the Russian population of
stead, they promote a solution of a Federal Latvia (about 50% of the total) have the right
Moldovan State of which Transdniestria will be to secede? Finally, how and by which criteria
a constituent entity, with enhanced autonomy.86 could such a procedure be ended?
If the international community, specifically
those States that play the major role, wish to
4. CONCLUSIONS
promote a principle that will allow secession
The cases analysed above, together with if certain conditions are met, this can only
other, similar ones, display that secession of be based upon a clear and uniform practice.
territories is part of current international reality. However, the conclusion that can easily be in-
The question to which international law has to ferred by the recent state practice is that sup-
respond is whether, by examining these be- port or deterrence of such movements is just
haviours and the stand of the international part of a game, which is played according to
community in general, we can deduce a legal the geopolitical concerns of every major pow-
principle that, under specific circumstances, er, which are constantly changing as well.
would recognise the possibility of secession Therefore, it is the opinion of the present
as part of international law. author that, by examining the relevant state
The common conclusion of the confer- practice, which does not bear any element of
ences that were held on the issues of self-de- uniformity, and by the total luck of opinio juris
termination and secession simply confirmed on behalf of states, we cannot detect any cus-
the absence of a common position on the tomary rule to support the existence of seces-
existence of a right to secession.87 The offi- sion as a right in international law and there
cial position of States, as expressed through is certainly no piece of treaty law to accept its
resolutions of international organizations and existence.
other international instruments or statements As shown by the “frozen” conflicts in the
clearly favours upholding territorial integrity as former USSR, the deadlock in the ethnic con-
the fundamental legal principle to govern their flicts in the former Yugoslavia and by the in-
international relations. ability of the international organizations to
Nevertheless, the same states, according achieve feasible and lasting solutions, the pol-
to their geopolitical interests, applause or re- itics of secession is a dead end for the peoples
36
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involved and for the international community Intl. J. Group R. International Journal of
as a whole and in the long term, they cannot Group Rights
provide viable responses to ethnic conflicts LSE London School of
worldwide. Economics
Melbourne ULR Melbourne University Law
LIST OF ABBREVIATIONS Review
NATO North Atlantic Treaty Organization
AJIL American Journal of International
NILR Netherlands International Law
Law
Review
CIS Commonwealth of Independent
OAU Organization of African Unity
States
OSCE Organization on the Security and
CoE Council of Europe
Cooperation in Europe
CRISPP Critical Review of International
Panorama IJCREV Panorama International
Social & Political Philosophy
Journal on Comparative
CSCE Conference on the Security and
Religious Education and
Cooperation in Europe
Values
EC European Community
RCADI Recueil des Cours de l’Académie
EJIL European Journal of International
de Droit International
Law
Res. Resolution
ETS European Treaty Series
RHDI Revue Hellénique de Droit
EU European Union
International
Harv. HRJ Harvard Human Rights Journal
RS Republika Srpska
HRLJ Human Rights Law Journal
SC Security Council
ICCPR International Covenant of Civil and
SSR Soviet Socialist Republic
Political Rights
UCK Ushtria Çlirimtare e Kosovës
ICESCR International Covenant on
(Kosovo Libearation Army)
Economic, Social and Cultural
UN United Nations
Rights
UNGA United Nations General Assembly
ICJ International Court of Justice
UNTS United Nations Treaty Series
ILM International Legal Materials
USSR Union of Soviet Socialist Republics
ILO International Labour Organization
Virginia JIL Virginia Journal of International
ILR International Law Reports
Law
*
Lecturer in International Law, Democritus University of Thrace, Komotini,
Greece. Any comments or observations may be sent to the author at bgramm@
bscc.duth.gr .
1
Press conference of the Russian President of 31.1.2006 (Source: http://www.krem-
lin.ru/eng/text/ speeches/2006/01/31/0953_type82915type82917_100901.shtml).
2
During this process and even after the declaration of independence by Kosovo,
the steady position of Russia has been that any solution must be applicable to
all separatist areas, specifically in the former USSR. (see inter alia the articles
of the Russian internet newspaper Kommersant: New Plan for Abkhazia and
South Ossetia, http://www.kommersant.com/p729445/ Abkhazia_South_Ossetia_
Kosovo, Measuring South Ossetia by Kosovo, http://www.kommersant.com/
p721626/r_527/ South_Ossetia_by_Kosovo).
3
See Cassese A.: Self-Determination of Peoples: A Legal Reappraisal, (Cambridge:
Cambridge University Press, 1995), pp. 11-13.
4
UNGA Res. 1514 (XV), of 14-12-1960, Declaration on the Granting of Independence
to Colonial Countries and Peoples.
5
UNGA Res. 2625 (XXV), της 10-12-1970, UN Declaration of Principles of
International Law Concerning Friendly Relations. Nevertheless, some authors
claim that there is nothing in the Friendly Relations declaration to extend the right
37
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38
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Politics: Developments in Eastern Europe and the CIS (London – New York: LSE
& Routledge, 1994), p. 74).
19
See Art. 27 ICCPR, Framework Convention for the Protection of National Minorities,
ETS 157, 1-2-1995, (34 ILM 351 (1995)), Declaration on the Rights of Persons
Belonging to National, Religious or Linguistic Minorities (UNGA Res. 47/135 of
18-12-1992). In the few instances where international documents refer to collec-
tive minority rights they are either of political character, or conclusions of scien-
tific committees and do not have a legally binding nature for states (See. Report
of the CSCE Geneva Meeting of Experts on National Minorities, 12 HRLJ 331
(1991), Document of the Copenhagen Meeting of the Conference on the Human
Dimension of the CSCE, 11 HRLJ 232 (1990), Human Rights Committee, General
Comment No. 23 (50) on Article 27, 15 HRLJ 233 (1994)).
20
See Shaw, supra n. 14, p. 492.
21
See the cases Colombia v. Venezuela (1 Reports of International Arbitral Awards,
p. 223) and El Salvador v. Honduras, ICJ Reports (1992) 251, at p. 387. See
also Nelson: The Arbitration of Boundary Disputes in Latin America, 20 NILR 267
(1973), pp. 268-271.
22
We should also note the application of the principle of uti possidetis in Asia too
(Preah Vihear Temple Case, ICJ Reports (1962) 6, p. 16).
23
Burkina Faso/Mali Case, ICJ Reports (1986) 554, pp. 565-566. With regard to the
importance of the rule the ICJ stated that: “[the essence of the principle] lies in
its primary aim of securing respect for territorial boundaries at the moment when
independence is achieved. Such territorial boundaries might be no more than de-
limitations between different administrative divisions or colonies all subject to the
same sovereign. In that case the application of the principle of uti possidetis result-
ed in administrative boundaries being transformed into international frontiers…”
(ibid., p. 566). In explaining the practical application of the rule it also held that «the
principle of uti possidetis freezes the territorial title; it stops the clock but does not
put back the hands» (ibid., p. 568).
24
El Salvador/Honduras case, ICJ Reports (1992) 351, p. 386. Describing the func-
tion of the principle the Court underlined that «[uti possidetis] is a retrospective
principle, investing as international boundaries administrative limits intended origi-
nally for quite other purposes» (ibid., p. 388).
25
EC Arbitration Commission on Yugoslavia, Opinion No 3, 92 ILR 168, p. 171.
Furthermore, in Opinion No. 2 it was stated that «… it is well established that, what-
ever the circumstances, the right to self-determination must not involve changes
to existing frontiers at the time of independence (uti possidetis juris) except where
the states concerned agree otherwise». (Opinion No. 2, ibid., p. 168). The text of
Opinions Nos. 1, 2, 3 can also be found in 3 EJIL (1992), pp. 182-185.
26
Text: http://www.ohr.int/dpa/default.asp?content_id=379.
27
Agreement Establishing the Commonwealth of Independent States, Minsk 8-12-
1991, 31 ILM 138 (1992). The initial Agreement was signed between Russia, Ukraine
and Belarus and eventually 12 out of the 15 former Soviet republics became parties
(excluding the Baltic States). Georgia became the last state to accede in 1993.
28
Alma Ata Declaration, Preamble para. 2. Source: Brzezinski Z., Sullivan P. (eds.):
Russia and the Commonwealth of Independent States: Documents, Data and
Analysis, (M.E. Sharpe, 1997), p. 48, also 31 ILM 148 (1992). The Baltic States
and Georgia refrained from signing the Declaration.
29
EC Declaration on the “Guidelines on the Recognition of New States in Eastern
Europe and in the Soviet Union”, 4 EJIL (1993), p. 72.
30
See. inter alia Opinions No. 4 and 5 of the EC Arbitration Commission for Yugoslavia
on Bosnia and Croatia, where the Commission notes the explicit acceptance of the
Declaration on behalf of the two states. 4 EJIL (1993), pp. 74, 76.
31
Final Act of the Conference on Security and Cooperation in Europe 1975 (the
Helsinki Declaration), 14 ILM 1292 (1975).
32
UNGA Res. 2625 (XXV) of 24-10-1970. Principle of equal rights and self-determi-
nation of peoples.
33
ETS 157, 1-2-1995, 34 ILM 351 (1995).
34
Ratner D.: “Drawing a Better Line: Uti Possidetis and the Borders of New States”,
90 AJIL 590 (1996), pp. 614-615.
35
See. Shaw, supra n. 13, p. 501, where the author criticises the position of Ratner,
Franck T.: Fairness in International Law and Institutions, (Oxford: Clarendon Press,
39
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
1995), pp. 147-149, 159, Brownlie I.: General Course on Public International Law,
255 RCADI 9 (1995), p. 59, Brownlie I.: Prιnciples of Public International Law, 6th ed.,
(Oxford: Oxford University Press, 2003), p. 130, Jimenez de Arechaga, International
Law in the Last Third of a Century, 159 RCADI 9 (1978-I), pp. 100-107.
36
SC Res. 1244 (1999) of 10.6.1999.
37
As far as the Palestinians are concerned, it should be noted that the possibility of
creating a Palestinian state refers only to the territories of the neighbouring Arab
states, which were occupied by Israel during the Arab-Israeli wars of 1967 and
1973. Therefore, the territorial integrity of Israel is not violated, since its own terri-
tory is not affected.
38
Brownlie I.: Principles of Public International Law, 6th ed., (Oxford University Press,
Oxford, 2003), p. 555. This conclusion is drawn in the case of the Indian invasion
of Eastern Pakistan in 1971 which resulted in the almost immediate recognition of
this territory as an independent state (Bangladesh) by the international community.
A similar conclusion can be inferred from the opinions of the Badinter Commission
on the recognition of Croatia (4 EJIL (1993), p. 74).
39
Chernichenko S. & Kotliar V.: “Ongoing Global Legal Debate on Self-determination
and Secession: Main Trends”, in Dahlitz J.(ed.): Secession and International Law:
Conflict Avoidance – Regional Appraisals, (T.M.C. Asser Press, 2003), p. 84.
40
Ibid.
41
Higgins R.: “Self-Determination and Secession” in Dahlitz J.(ed.): Secession and
International Law: Conflict Avoidance – Regional Appraisals, (T.M.C. Asser Press,
2003), p. 35.
42
Dahlitz J.(ed.): Secession and International Law: Conflict Avoidance – Regional
Appraisals, (T.M.C. Asser Press, 2003), p. 261. It should be noted that the above
conclusions are based on UN practice, the Friendly Relations Declaration and the
1993 Vienna Declaration and Program of Action.
43
bid., p. 265. The American regional conference concluded that independence as
a result of decolonization is legally possible but should not be classified as seces-
sion.
44
bid., p. 273.
45
A similar view can be found in the conclusions of the European conference, where
it is stated that they only dealt with issues that are controversial under international
law. More specific, it was held that “It was also accepted that secession … is
generally motivated by aspirations of external self-determination and is therefore
closely connected with other expressions of self-determination. Detailed consid-
eration of these other expressions of self-determination … short of affecting a
change in sovereign status were excluded from consideration … in order to devote
more time to contentious issues of international law, especially those involving the
exercise of extensive violence in the process of secession”. (ibid., pp. 269-270).
46
A characteristic example is the case of the Golan Heights (Syrian territory that
was invaded by Israel in 1967 and is still under occupation). The removal of the
occupying troops would not amount to secession, due to the previous illegal oc-
cupation.
47
Franck T.: Fairness in International Law and Institutions, (Oxford: Clarendon
Press, 1995), p. 158. Franck sets as the only exception the use of illegal military
force, the results of which are not recognized, referring to the Turkish invasion
and occupation of Cyprus as an example. In another article, he supports that in
extreme cases, there could be a right of secession in favour of minorities, the
rights of which are gravely violated (Franck T.: ‘Post Modern tribalism and the
Right to Secession’, in Brölman, Lefeber, Zieck (eds.): Peoples and Minorities in
International Law (Martinus Nijhoff, 1993), p. 3.
48
Crawford J.: The Creation of States in International Law, 2nd ed., (Oxford: Clarendon
Press, 2006), p. 390. However, the author emphasizes that the practice of states
regarding unilateral secession of non-colonial territories since 1945 is very differ-
ent from the issue of independence of former colonies and states have been very
reluctant to accept it.
49
Cassese A.: International Law, 2nd ed., (Oxford: Oxford University Press, 2005),
p. 68. The author attributes the existence of this exception –at the legal level- to
apartheid-like situations, adding however that states still continue to have a nega-
tive approach towards secession. Nevertheless, he offers no practical examples
to support the exceptional legalisation that he proposes.
40
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50
Higgins R.: Problems and Process: International Law and how we Use it, (Oxford:
Clarendon Press, 1994), p. 125.
51
Joint Opinion on the Secession of Quebec prepared in 1992 by Professors Pellet,
Shaw, Higgins, Franck and Tomuschat, (Higgins, supra n. 41, p. 36). Although
Warbrick agrees with the above conclusion, he reverses the argument support-
ing that if there is change of sovereignty, the population of that state should be
asked and, if they do not accept the change of sovereignty, this might have con-
sequences on the legality of creation of the new state. (Warbrick C.: ‘States and
Recognition in International Law’, in Evans M.D. (ed.): International Law, (Oxford:
Oxford University Press, 2003), p. 217).
52
Reference re Secession of Quebec, Supreme Court of Canada, Ruling of 20th
August 1998, (Source: 115 ILR 537, pp. 594-595.
53
Armed Conflict in Chechnya Case, Russian Constitutional Court, Decision of 31st
July 1995 (Source: CoE Doc. CDL-INF(1996)001). The Russian Constitutional Court
was asked to judge the constitutionality of 4 decrees of the Russian Government
on Chechnya, following the application of four members of the Russian Duma. The
most interesting part of the ruling was that the court did not confine itself to exam-
ining the case under the Russian constitutional law, but expanded its analysis on
issues of international law as well, specifically, whether Chechnya had the right to
secession according to international law. (For a review of the case see Gaeta P.:
“The Armed Conflict in Chechnya Before the Russian Constitutional Court”, 7 EJIL
563 (1996)).
54
These problems were already detected in the beginning of the 21st century when
the US President Wilson promoted the redistribution of power (and statehood)
based on the principle of self-determination. At that time, his foreign minister
Lansing commented that «… the phrase so deeply cherished and so warmly ad-
vocated by President Wilson was simply loaded with dynamite … the fixity of na-
tional boundaries would disappear if this principle was uniformly applied … What
effect will it have on the Irish, the Indians, the Egyptians, and the nationalists
among the Boers – Will it not breed discontent, disorder and rebellion – Will not
the Mohammedans of Syria and Palestine and possibly of Morocco and Tripoli rely
on it – How can it be harmonized with Zionism to which the President is practically
committed?» (Sourcce: Cassese, International Law, supra n. 49, p. 61).
55
Various authors have criticized both the findings of the Badinter Commission and the
selective application of self-determination in the territory of the former Yugoslavia
(see inter alia Warbrick, supra n. 51, p. 217, Radan P.: “Post Secession International
Borders”, 24 Melbourne ULR 50 (2000), Harris D.J.: Cases and Materials on
International Law, 6th ed., (London: Sweet & Maxwell, 2004), pp. 120-121).
56
See Gilbert P.: The Philosophy of Nationalism, (Boulder: Westview Press, 1998),
p. 16, Miller D.: On Nationality, (Oxford University Press, Oxford, 1995).
57
Costa J.: “On Theories of Secession: Minorities, Majorities and the Multilateral
State”, 6 CRISPP 63 (2003), p. 65.
58
Norman W.: ‘The ethics of secession as the regulation of secessionist policies’ in
Moore M.: National Self-Determination and Secession, (Oxford: Oxford University
Press, 1998), p. 37, Philpott D.: ‘Self-Determination in Practice’ in Moore, ibid.,
σελ. 83, Nielsen K.: “Secession: The Case of Quebec”, 10 Journal of Applied
Philosophy 29 (1993).
59
Buchanan A.: Secession, (Boulder: Westview Press, 1991), p. 49, Moore M.: The
Ethics of Nationalism, (Oxford: Oxford University Press, 2001).
60
On the potential application of the above theories in the case of Chechnya, see
Khalilov R.: “Moral justifications of secession: the case of Chechnya”, 22 Central
Asian Survey 405 (2003), esp. 409-416.
61
See Thio L-A.: ‘International Law and Secession in the Asia and Pacific Regions’,
in Kohen M. (ed.): Secession: International Law Perspectives, (Cambridge:
Cambridge University Press, 2006), p. 306, Heraclides A.: “Secessionist Move-
ments and External Involvement”, 44 International Organisation 341 (1990), p.
349, Ganguly R.: Ethnic Conflicts: Lessons from South Asia (New Delhi: Sage
Publications, 1998), p. 96. Crawford also cites the case of Guinea Bissau in Africa
as comparable to the one of Bangladesh, however, the comparison is only made as
to the course of the recognition process, since Guinea-Bissau was a Portuguese
colony, Crawford J.: The Creation of States in International Law, 2nd ed., (Oxford:
Clarendon Press, 2006), p. 386.
41
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62
Rich R.: “Recognition of States: The Collapse of Yugoslavia and the Soviet Union”,
4 EJIL 36 (1993), p. 61.
63
EC Press Statement, Luxemburg, 15 June 1992.
64
During and after the bombings the NATO countries (most of which are also EU
members) invoked a legal right of humanitarian intervention in order to save the
population of Kosovo from an alleged humanitarian catastrophe which was caused
on the one hand by the massive violations of human rights by the Serbian regime
and, on the other hand, by the uncontrolled flow of refugees. Serbia filed an ap-
plication before the ICJ against the 10 NATO members that participated in the
bombings. During the proceedings the NATO members invoked the humanitarian
nature of the intervention, but only Belgium tried to bring the NATO action un-
der an existing rule of international law (text: Harris D.J.: Cases and Materials on
International Law, 6th ed., (London: Sweet & Maxwell, 2004), p. 956). Even if one
accepted the existence of a right of forcible humanitarian intervention in modern
international law (something which is highly doubtful) all relevant theories set as
the main objective of the intervention to stop the violations and restore legality and
under no circumstances is humanitarian intervention linked to territorial changes.
Therefore, humanitarian intervention cannot have any relation to the issue of se-
cession. (For a review of the trends and the evolution of humanitarian interven-
tion see Grammatikas V.: “From the Crusades to Humanitarian Intervention and
‘Peacemaking’: New forms of the Just War Theory?” 17 Panorama IJCREV 116
(2005), pp. 120-126).
65
The general provisions of the plan that was pursued by the Special Envoy of the
UN Secretary General on the final status of Kosovo Mr. Marti Ahtisaari provided for
a permanent supervision of the region by the EU, without an official proclamation
of independence but also without any statutory involvement of the Serbian state
inside Kosovo. (Text of the Plan: UN Doc. S/2007/168/Add1 of 26.3.2007, and
http://www.unosek.org/unosek/en/ statusproposal.html).
66
On the recognition process and other related issues see http://www.kosovothanksy-
ou.com.
67
One writer –correctly- observes that the agreement between NATO and Serbia on
the withdrawal of the Serbian troops and the surrender of Kosovo to NATO forces
was void, according to Article 52 of the Vienna Convention on the Law of Treaties,
as it was concluded through the threat and use of force, while the operative part of
SC Res. 1244 (1999) which endorses the agreement is also legally void. (Milano
E.: “Security Council Action in the Balkans: Reviewing the Legality of Kosovo’s
Territorial Status”, 14 EJIL 999 (2003), pp. 1007-1009, 1015-1020).
68
To strengthen its legal title to Kosovo, the new Serbian Constitution, which was ap-
proved of by a referendum in 2006, provides, in Art. 182, that Kosovo is an integral
part of the Serbian territory (text of the constitution: http://www.parlament.sr.gov.
yu/content/eng/akta/ustav/ustav_ceo.asp).
69
Text of the Soviet Constitution: http://www.departments.bucknell.edu/russian/
const/77cons03/html.
70
Among others, SC Res. 876 (1993), 896 (1994), 906 (1994), 937 (1994), 977
(1995), 993 (1995), 1036 (1996) all confirm the sovereignty and territorial integrity
of Georgia.
71
Despite the fact that in South Ossetia there are about 12,000 Georgians (com-
prising 1/7 of the total population) they could not participate in the voting process
since, in order to register to the voters list, they should hold a Russian passport,
a document that all Ossetians had in their possession, but not the Georgians.
However, political analysts of the region noted that even if the Georgians voted,
the result would not be altered significantly (source: http://www.isn.ethz.ch/news/
sw/details.cfm?ID=16920, Comment of 15/11/2006). It was the 3rd “referendum” of
its kind (the previous ones being held in 1992, 2001). In a statement of 13.11.2006
the Finish Presidency of the EU underlined that “the ‘referendum’ contradicts
Georgia’s sovereignty and territorial integrity within its internationally recognized
borders. The EU considers the situation in South Ossetia did not allow the expres-
sion of the popular will”.
72
On 12.10.2006, 12 members of the south Ossetian parliament requested the
recognition of the Georgian genocide against Ossetians of 1920 and 1989-1992
from the governments of the neighbouring Autonomous republics of the Russian
Federation. (Source: http://www.kommersant.com/p721626/r_527 /South_Osse-
42
V. GRAMMATIKAS,
v. gramatikasi, KOSOVO
kosovo samxreT V. SOUTH
oseTis OSSETIA?
winaaRmdeg?
tia_by_Kosovo). For a more detailed account of the alleged genocide dating back
from the early 20th century until 1993 see http://www.OSgenocide.ru (most of the
information is in Russian but data in English can also be found).
73
Interview by J. Solana of 4/10/2006 (http://www.rferl.org/featuresarticleprint/2006/10 ...).
74
Out of the many sources on the internet to cover the events, the following three
(of western origin) were chosen due to the fact that they can be viewed as more
neutral and biased, although it proved impossible to find a totally neutral account
of the events: http://www.globalsecurity.org/military/world/war/south-ossetia.htm,
http://en.wikipedia.org/wiki/2008_South_Ossetia_war, http://www.economist.com/
opinion/ displaystory.cfm?story_id=12009678 (South Ossetia is not Kosovo).
75
Under the Sochi Agreement signed in 1992 by the Presidents of Russia (Yeltsin)
and Georgia (Sevardnatze), under the auspices of the CIS, there was a joint
peacekeeping operation in South Ossetia comprising 3 battalions (for Ossetia) 1
Russian, 1 Ossetian and 1 Georgian. Thus, Georgia still had military control over
certain portions of territory in South Ossetia. The Russian counterattack in South
Ossetia was extended to Abkhazia too and Georgian forces were thrown out from
both territories (For more information on the Agreement and the peacekeeping
scheme see the relevant US State Department webpages http://www.state.gov/r/
pa/ei/bgn/5253.htm).
76
Source: http://www.iht.com/articles/2008/09/04/america/georgia.php.
77
Hannum H.: Documents on Autonomy and Human Rights, (Martinus Nijhoff, 1993),
pp. 753-760.
78
See the White Bible of the Armenian Ministry of Foreign Affairs on NK (http://www.
armeniaforeignministry.com/fr/nk/white_paper.html). Even though the letter of the
law regarding the complex bureaucratic procedures was not upheld, it should be
noted that it was the only case in the process of dissolution of the USSR that this
legislation was invoked. However, see contra the arguments of Azerbaijan (http://
www.mfa.gov.az/eng/armenian_aggression/legal index.shtml).
79
See the declaration of independence by NK (http://www.nkr.am/en/
declaration/10).
80
Ibid. The NK autonomy was abolished on 23rd November, 1991.
81
SC Res 822 (1993), 853 (1993), 874 (1993) and 884 (1993).
82
See the statement of Azerbaijan of 14.12.2006 before the Permannent Council of
the OSCE (http://www.osce.org/ documents/html/pdftohtml/22803_en.pdf_s.html).
83
Doc. PC.DEL/1164/06/14.12.2006 (http://www.osce.org/documents/html/pdftoht-
ml/ 228124_en.pdf_s.html)
84
Since a ceasefire was signed, in 1994, the OSCE mandated the so-called “Minsk
group”, composed of Russia, US and France, to seek for a solution, but without any
serious progress until now. However, on November 2, 2008 the Russian President
Medvedev invited the leaders of Armenia and Azerbaijan for talks on NK, (Source:
http://www.reuters.com/article/europeCrisis/idUSL2389234) the outcome of which
was the signing of a joint declaration stating that “The presidents of Azerbaijan
and Armenia agreed to continue work ... on reaching a political settlement to the
conflict” (For the text of the Declaration see http://www.armeniaforeignministry.
com/perspectives/20081104_declaration.pdf). In his address to the Russian Duma
on 5.11.2008 Mr. Medvedev proclaimed this new Russian policy by saying “And by
respecting existing forums we will promote a settlement in Nagorno-Karabakh and
Transdniestria” (http://www.kremlin.ru/eng/speeches/2008/11/05/2144_type70029
type82917type127286_208836.shtm).
85
For an overview of the historical and political issues surrounding the problem of
Transdniestria see OSCE Conflict Prevention Centre: Transdniestrian Conflict:
Origins and Main Issues (10-6-1994) available at http://www.osce.org/ documents/
mm/06/455_en.pdf, Neukirch K.: “Transdniestria and Moldova: Cold Peace at the
Dniestr”, 12 Helsinki Monitor 122 (2001), International Crisis group: Moldova: No
Quick Fix, Europe Report No. 147, Chisinau/Brussels, 2003.
86
The two most recent plans for the solution of the issue, as well as the previous
ones, support the federal model for Moldova (For the Ukrainian plan see http://
eurojournal.org/files/nantoi1.pdf. For the Russian plan see http://eurojournal.org/
files/ruproposal.pdf).
87
Dahlitz J.(ed.): Secession and International Law: Conflict Avoidance – Regional
Appraisals, (T.M.C. Asser Press, 2003), p. 260 et seq.
43
nino ruxaZe
44
n. ruxaZe, humanitaruli intervencia
v. gramatikasi,
Tanamedrove
kosovo samxreT
saerTaSoriso
oseTis winaaRmdeg?
samarTalSi
45
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46
n. ruxaZe, humanitaruli intervencia
v. gramatikasi,
Tanamedrove
kosovo samxreT
saerTaSoriso
oseTis winaaRmdeg?
samarTalSi
47
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
48
n. ruxaZe, humanitaruli intervencia
v. gramatikasi,
Tanamedrove
kosovo samxreT
saerTaSoriso
oseTis winaaRmdeg?
samarTalSi
49
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
50
n. ruxaZe, humanitaruli intervencia
v. gramatikasi,
Tanamedrove
kosovo samxreT
saerTaSoriso
oseTis winaaRmdeg?
samarTalSi
operaciis dawyebis win da arc samxedro Tebeli faqtebis arsebobs.69 Tavis mxriv,
operaciis msvlelobisas. rogorc Cans, monitoringis komitetis moxsenebis sa-
rusul mxares isini ubralod ar gaaCnda, fuZvelze saparlamento asambleis mi-
vinaidan, rogorc ruseTis premier-mi- er miRebul iqna rezolucia 1683, sadac
nistrma ganacxada, samxedro moqmedebe- dafiqsirda, rom `asamblea gansakuTre-
bis dawyebis Semdeg igi Sexvda samxreT biT SeSfoTebulia qarTul soflebsa
oseTidan devnilebs, romlebTan saub- da `buferul zonebSi~ araregularuli
ris Semdegac mas Seeqmna STabeWdileba, samxedro SenaerTebisa da bandituri
rom ikveTeboda `genocidis elemente- formirebebis mier ganxorcielebuli
bi~. amis Semdeg is gamovida iniciativiT, eTnikuri wmendis faqtebiT, romelTa
rom ruseTis samxedro prokuratura SeCerebasac ver uzrunvelyofen ruse-
`garkveuliyo~ momxdar faqtebSi da do- Tis SeiaraRebuli Zalebi~.70 genocidis
kumenturad aRenusxa isini.62 niSnebis ararsebobis Sesaxeb saubrobs
ruseTis poziciebi da argumentebi, Tavis moxsenebaSi komitetis kidev erTi
nikaraguis, venesuelisa da kubis gar- wevri, goran lindbladi: `osebis mier ga-
da, arc erTma saxelmwifom ar gaiziara.63 Rebuli msxverplisadmi pativiscemis mi-
garda amisa, arc erTma avtoritetulma uxedavad, mimaCnia, rom cxinvalze saqar-
saerTaSoriso samTavrobaTaSoriso Tu Tvelos Tavdasxmis monaTlva, rogorc
arasamTavrobaTaSoriso saerTaSoriso genocidis mcdelobisa, aris ganzrax
organizaciam aramc Tu ar daadastu- utrireba viTarebisa, romlis gamoyene-
ra ruseTis mier saqarTvelosTvis wa- bac xdeba ruseTis araproporciuli sam-
yenebuli genocidis braldeba, aramed xedro intervenciis gasamarTleblad,
srulad uaryo igi. rogorc moskovSi, politikuri interesebis gasatareblad
cxinvalsa da TbilisSi oficialuri vi- da sazogadoebrivi azris manipulire-
zitebis dasrulebis Semdeg ganacxada bisaTvis~.71 saqarTvelos mxridan geno-
evropis sabWos saparlamento asamble- cidis faqtebs ar adasturebs agreTve
is (SemdgomSi – saparlamento asamblea) evropis sabWos samarTlebrivi sakiTx-
ad hoc komitetis (SemdgomSi – komite- ebisa da adamianis uflebebis komiteti.
ti)64 xelmZRvanelma luk van de brandma, misi momxseneblis, kristos purguri-
`agvistos dasawyisSi saqarTvelos Sei- desis (kviprosi), gancxadebiT, `faqtebi
araRebuli Zalebis cxinvalis region- ar adasturebs saqarTvelos winaaRmdeg
Si moqmedebisas genocidi ar yofila~.65 wayenebul genocidis braldebebs: sa-
`Cven unda viyoT frTxilebi, rodesac qarTvelos Tavdasxmis Sedegad osuri
vsaubrobT genocidze. Cven ver vuwo- mxaris (samoqalaqo) msxverplis odenoba
debT movlenebs cxinvalSi genocids~.66 (`aTasobiT~, rogorc amas `winaswar mona-
luk van de brandma dasZina, rom genoci- cemebze~ dayrdnobiT adre acxadebdnen
dis nacvlad mizanSewonili iqneboda ga- ruseTis xelisuflebis warmomadgenle-
moyenebuliyo termini `eTnikuri wmen- bi), rogorc Cans, aris Zalian gadaWarbe-
da~, oRond ara osuri mosaxleobis mi- buli; rogorc amJamad ikveTeba, osuri
marT.67 van de brands ar daukonkretebia mxaris msxverplidan (romlis odenobac
Tavis gancxadebaSi, Tu vis miiCnevda is axla aris gacilebiT ufro dabali) um-
eTnikuri wmendis msxverplad, magram aS- ravlesoba iyvnen kombatantebi. calke-
karaa, rom is gulisxmobda swored qar- uli sastiki qmedebebi, romlebic aRwe-
Tvel mosaxleobas. amaze metyvelebs is rili iyo ruseTis mediasaSualebebsa
faqti, rom mogvianebiT maTias iorSisa da ministrTa komitetisadmi gakeTebul
da van de brandis mier momzadebuli mox- wardginebebSi, TavisTavad, SesaZloa iyo
senebis safuZvelze monitoringis ko- danaSauli, magram ara genocidis mcde-
mitetis68 mier SemuSavebul moxsenebaSi loba~.72
xazi gaesva konfliqtis zonaSi qarTuli genocidis danaSaulis Sesaxeb ara-
mosaxleobis mimarT ganxorcielebuli feria naxsenebi evropaSi uSiSroebisa da
eTnikuri wmendis sarwmuno da SemaSfo- TanamSromlobis organizaciis (euTo)
51
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52
n. ruxaZe, humanitaruli intervencia
v. gramatikasi,
Tanamedrove
kosovo samxreT
saerTaSoriso
oseTis winaaRmdeg?
samarTalSi
53
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
54
n. ruxaZe, humanitaruli intervencia
v. gramatikasi,
Tanamedrove
kosovo samxreT
saerTaSoriso
oseTis winaaRmdeg?
samarTalSi
55
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
56
n. ruxaZe, humanitaruli intervencia
v. gramatikasi,
Tanamedrove
kosovo samxreT
saerTaSoriso
oseTis winaaRmdeg?
samarTalSi
57
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
1
am statiis miznebisTvis humanitaruli intervencia aris calmxrivi in-
tervenciuli aqti, romelic xorcieldeba gaerTianebuli erebis orga-
nizaciis uSiSroebis sabWos nebarTvis gareSe.
2
R. Goodman, Humanitarian Intervention and Pretexts For War, American Journal of
International Law 100, 2006, 107 (gadmotvirTulia Lexis Nexis-is monacemTa
bazidan 2008 wlis noemberSi).
3
J. Mertus, Humanitarian Intervention And Kosovo: Reconsidering The Legality Of
Humanitarian Intervention: Lessons From Kosovo, William & Mary Law Review
41, 2000, 1752 (gadmotvirTulia Lexis Nexis-is monacemTa bazidan 2008
wlis noemberSi).
58
n. ruxaZe, humanitaruli intervencia
v. gramatikasi,
Tanamedrove
kosovo samxreT
saerTaSoriso
oseTis winaaRmdeg?
samarTalSi
4
R. Goodman, dasaxelebuli naSromi, 111.
5
C.Ch. Joyner and A.C. Arend, Anticipatory Humanitarian Intervention: An Emerging
Legal Norm?, USAFA Journal of Legal Studies 10, 1999/ 2000, 30. (gadmot-
virTulia Lexis Nexis-is monacemTa bazidan 2008 wlis noemberSi).
6
iqve.
7
iqve.
8
S. V. Jones, Darfur, The Authority Of Law, And Unilateral Humanitarian Intervention,
The University of Toledo Law Review 39, 2007, 101. (gadmotvirTulia Lexis
Nexis-is monacemTa bazidan 2008 wlis dekembeSi).
9
R. Zacklin, Beyond Kosovo: The United Nations and Humanitarian Intervention,
Virginia Journal of International Law Association 41, 2001, 932. (gadmotvirTu-
lia Lexis Nexis-is monacemTa bazidan 2008 wlis noemberSi).
10
iqve, 933.
11
H.R. Fabri, Human Rights and State Sovereignty: Have the Boundaries been
Significantly Redrawn? (in Human Rights, Intervention, and the Use of Force
(edited by Philip Alston and Euan Macdonald, Oxford University Press:New-York,
2008), 34.
12
iqve.
13
iqve.
14
W.A. Klinton, Ignoring The Lessons Of The Past: The Crisis In Darfur And The
Case For Humanitarian Intervention, 15 Journal of Transnational Law & Policy
1, 2005, 5. (gadmotvirTulia LexisNexis-is monacemTa bazidan 2008 wlis
noemberSi).
15
l. aleqsiZe, Tanamedrove saerTaSoriso samarTali, Tb., 2006, 44.
16
Ph. Alston and E. Macdonald, Sovereignty, Human Rights, Security: Armed
Intervention and the Foundational Problems of International Law (in Human
Rights, Intervention, and the Use of Force (edited by P. Alston and E. Macdonald,
Oxford University Press: New-York, 2008), 2.
17
iqve.
18
iqve, 74.
19
D. Murphy, Humanitarian Intervention, The United Nations in an Evolving World
Order, 65 (Procedural Aspects of International Law Series, Vol. 21, 1996) (ix.
J.L. Czernecki, The United Nations’ Paradox: The Battle between Humanitarian
Intervention and State Sovereignty, 41 Duquesne Law Review 391, 2003. (gad-
motvirTulia Lexis Nexis-is monacemTa bazidan 2008 wlis dekemberSi).
20
V.P. Nanda, Th.F. Muther, Jr., A.E. Eckert, Tragedies In Somalia, Yugoslavia, Haiti,
Rwanda and Liberia - Revisiting the Validity of Humanitarian Intervention Under
International Law- Part II, 26 Denver Journal of International Law and Policy, 1998,
828. (gadmotvirTulia Lexis Nexis-is monacemTa bazidan 2008 wlis de-
kemberSi).
21
iqve, 829.
22
P. Upadhyaya, Human Security, Humanitarian Intervention, and Third World
Concerns, 33 Denver Journal of International Law and Policy 71, 82. (gadmot-
virTulia Lexis Nexis-is monacemTa bazidan 2008 wlis noemberSi).
23
Y.K. Tyagi, The Concept Of Humanitarian Intervention Revisited, Michigan Journal
of International Law 16, 1995, 893. (gadmotvirTulia Lexis Nexis-is monacem-
Ta bazidan 2008 wlis noemberSi).
24
L.F. Berger, State Practice Evidence of the Humanitarian Intervention Doctrine:
The ECOWAS Intervention in Sierra Leone, Indiana International & Comparative
Law Review 11, 2001, 611. (gadmotvirTulia Lexis Nexis-is monacemTa ba-
zidan 2008 wlis noemberSi).
25
R. B. Bilder, Kosovo and the “New Interventionism”: Promise or Peril? Journal
of Transnational Law and Policy 9, 1999; I. Brownlie, Humanitarian Intervention;
I.Brownlie, Thoughts on Kind-Hearted Gunmen; T.M. Franck & N.S. Rodley, After
Bangladesh: The Law of Humanitarian Intervention by Military Force, American
Journal of International Law 67, 1973; L. Henkin, How Nations Behave: Law And
Foreign Policy (2d ed. 1979); L. Henkin, Kosovo and the Law of Humanitarian
59
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
60
n. ruxaZe, humanitaruli intervencia
v. gramatikasi,
Tanamedrove
kosovo samxreT
saerTaSoriso
oseTis winaaRmdeg?
samarTalSi
51
iqve.
52
iqve.
53
«Медведев: действия Грузии в Южной Осетии – геноцид», Вести.Ru,
10.02.2008, ix.: http://www.vesti.ru/doc.html?id=199965. (26.02.2009); garda
amisa, ix.: «Медведев называет геноцидом действия Грузии в Южной Осетии»,
ИнтерFax, 10.02.2008. ix.: http://www.interfax.ru/politics/news.asp?id=26311
(26.02.2009).
54
konvencia genocidis danaSaulis acdenisa da genocidisaTvis dasjis
Sesaxeb, miRebulia 1948 wlis 9 dekembers, ZalaSi Sevida 1951 wlis 12
ianvars; konvencia moqmedebs ruseTis federaciis mimarT sabWoTa kav-
Siris uflebamemkvidris statusidan gamomdinare, romelic SeuerTda
konvencias 1949 wlis 16 dekembers da romlisTvisac konvencia ZalaSi
Sevida 1954 wlis 3 maiss, ix.: http://preventgenocide.org/law/convention/
UNTreatyCollection GenocideConventionStatusReport.htm
55
genocidis danaSaulis acdenisa da genocidisaTvis dasjis Sesaxeb kon-
venciis me-2 muxli, miRebulia 1948 wlis 9 dekembers, ZalaSi Sevida 1951
wlis 12 ianvars.
56
iqve.
57
«Следственный комитет подтвердил, что Грузия совершила геноцид
в отношении осетин», Regnum, 25.02.2009, ix.: http://pda.regnum.ru/
news/1129519.html (26.02.2009).
58
«Следственный комитет подтвердил, что Грузия совершила геноцид
в отношении осетин», Regnum, 25.02.2009, ix.: http://pda.regnum.ru/
news/1129519.html (26.02.2009).
59
iqve.
60
ruseTis samarTaldamcavi organoebis mier mopovebul mtkicebule-
bebs TavisTavad araviTari samarTlebrivi Rirebuleba ar aqvT, Tu ar
moxdeba maTi dadastureba saerTaSoriso Tanamegobrobis mier, vinaid-
an, rogorc zemoT aRiniSna, humanitaruli intervenciis doqtrinis
Sesabamisad, humanitaruli katastrofis faqtebi unda dadasturdes
neitraluri, miukerZoebeli mxaris mier. ruseT-saqarTvelos Soris
2008 wlis agvistoSi ganxorcielebuli samxedro qmedebebis saerTaSo-
riso gamoZiebis aucileblobaze saubrobs adamianis uflebebis dacvis
sferoSi moqmedi saerTaSoriso, magram aramTavrobaTaSorisi, organ-
izacia Amnesty International.
61
“Up in Flames, Humanitarian Law Violations and Civilian Victims in the Conflict
over South Ossetia, Human Rights Watch Report, New-York, January 2009, 70.
angariSi xelmisawvdomia Human Rights Watch-is vebgverdze: http://www.
hrw.org/en/reports/2009/01/22/flames-0.
62
«Медведев: действия Грузии в Южной Осетии – геноцид», Вести.Ru,
10.02.2008, ix.: http://www.vesti.ru/doc.html?id=199965 (26.02.2009).
63
unda aRiniSnos, rom kubam, Tumca gamarTlebulad miiCnia ruseTis samxe-
dro qmedebebi saqarTvelos winaaRmdeg, ar aRiara samxreT oseTisa da
afxazeTis damoukidebloba.
64
2008 wlis 5 seqtembers, saparlamento asambleis biuros gadawyvetile-
biT, Camoyalibda ad hoc komiteti, romlis mizani iyo, adgilze Seeswavla
viTareba ruseT-saqarTvelos samxedro krizisis irgvliv, risTvisac
komisia samuSao vizitiT imyofeboda ruseTsa da saqarTveloSi, maT Soris
samxreT oseTSi 2008 wlis 21-26 seqtembers. komitetis SemadgenlobaSi
Sevidnen saparlamento asambleis ruseTze monitoringis komitetis
Tanamomxseneblebi: luk van de brandi (belgia) da Teodoros pangalo-
si (saberZneTi); saparlamento asambleis saqarTveloze monitoringis
komitetis Tanamomxseneblebi: maTias iorSi (ungreTi) da kastriot is-
lami (albaneTi); saparlamento asambleis politikur saqmeTa komitetis
Tavmjdomare goran lindbladi (SvedeTi); saparlamento asambleis mi-
graciis, mosaxleobisa da ltolvilTa komitetis Tavmjdomare korin
ionkeri (niderlandebi); saparlamento asambleis socialisturi jgu-
61
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v. gramatikasi,
Tanamedrove
kosovo samxreT
saerTaSoriso
oseTis winaaRmdeg?
samarTalSi
63
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V. GRAMMATIKAS,
v. gramatikasi, KOSOVO
kosovo samxreT V. SOUTH
oseTis OSSETIA?
winaaRmdeg?
NINO RUKHADZE
65
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
the territorial integrity or political independence 1.2. The Principles of Sovereign Equality
of any state, or in any other manner inconsis- of States and Non-Intervention into
tent with the Purposes of the United Nations.” Domestic Affairs of the Other State
In international law the use of force is allowed
Along with the principle of the prohibition
only for the purpose of self-defence or under
from the treat or use of force, the principles
the mandate of the UN Security Council (here-
of sovereign equality and non-intervention into
inafter the “Security Council”). Article 51 of the
domestic affairs of the other states also rep-
Charter says: “Nothing in the present Charter
resent serious obstacles to the recognition of
shall impair the inherent right of individual or
the humanitarian intervention as an admissib-
collective self-defence if an armed attack oc-
le international legal act.10 In accordance with
curs against a Member of the United Nations,
Article 2(1) of the Charter: “The Organisation
until the Security Council has taken measures
is based on the principle of the sovereign equ-
necessary to maintain international peace and
ality of all its Members”. The concept of state
security”. Along with the self-defence purpo-
sovereignty implies two aspects: national and
ses, the Charter directly allows for the Secu-
international.11 The national aspect means the
rity Council sanctioned use of force. Article 42
supremacy of the state power on the territory
authorises the Security Council to sanction the
of a state and subordination of the population
use of military force if the latter concludes that
the international peace and security are jeo- of that territory to this power,12 whilst the in-
pardised or the military aggression was com- ternational law aspect means the non-subor-
mitted. For example, if the massive violations dination of the state power to the other state
of human rights have occurred in some state, power.13 The principle of non-intervention in-
the Security Council is bound to clarify two cir- to domestic affairs of other states guarante-
cumstances before the other states react to es the principle of sovereign equality.14 Article
these atrocities through the use of military for- 2(7) of the Charter says: “Nothing contained in
ces: 1) Have the massive violations of human the present Charter shall authorise the United
rights really occurred, or are they about to oc- Nations to intervene in matters which are es-
cur in the future? 2) Do these cases of human sentially within the domestic jurisdiction of any
rights atrocities actually constitute a threat to state or shall require the Members to submit
international peace and security?5 Only after such matters to settlement under the present
the determination of these circumstances the Charter”. There is an exemption from this rule,
Security Council will discuss the authorisation when the state itself applies to the other sta-
of the use of force.6 Any military operation ai- te for assistance in the settlement or solution
ming at the suppression of massive violations of some issue, falling within the domestic ju-
of human rights which was undertaken without risdiction.15 In any other case the intervention
the observance of this procedure will be regar- into internal affairs of a state will be construed
ded as a breach of the Charter and, therefore as an unlawful act.
of the international law.7 Based on the forego- The above discussed contents of the prin-
ing, certain cases of massive violation of hu- ciples of sovereign equality and non-interven-
man rights, despite their gravity, may remain tion into domestic affairs of the other states
unanswered if due to political, economic or ot- evidence the existence of the controversy bet-
her interests of its members the Security Co- ween these fundamental principles of the in-
uncil fails to be capable and makes a decision ternational law and humanitarian intervention.
on the application of the adequate preventive In particular, commensurate with the principles
measures.8 of sovereign equality and non-intervention into
These are the exemptions from the prin- domestic affairs of the other states the states
ciple of prohibition of threat or use of force, should not interfere into the relationships bet-
directly specified by the Charter. Consequ- ween a state and the persons residing on its
ently, the Charter strictly defines that use of territory,16 what is generally done by humani-
force, unless a self defence or sanctioned by tarian intervention. However, it should as well
the Security Council, constitutes a violation of be mentioned that for the past period, there
the Charter.9 has been a trend of bringing together the afo-
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rementioned principles and humanitarian in- human rights.22 This background gave a rise
tervention and to present them as concurrent to the opinion that the humanitarian interventi-
institutes. Against this background there are on has transferred into the realm of customary
intensive debates about the development of law. But only the state practice does not suf-
the humanitarian intervention into the rule of fices for the creation of a new norm of cus-
the customary law.17 tomary law – it is necessary for the states to
recognise this norm as a legally binding rule
(opinio juris). For the past decades the state
2. IS A HUMANITARIAN INTERVENTION A
practice on humanitarian intervention became
NORM OF CUSTOMARY LAW?
particularly intensive “not because they [the
The legal order, secured by the Charter, is states] felt legally bound to do so, but beca-
regarded as an inefficient mechanism for the use they felt it convenient and desirable to do
prevention of the violation of human rights. so”.23 At this stage the states are not ready
Due to the non-efficiency of the UN, the to recognise the legally binding nature of this
international community often finds itself in a practice,24 as the legalisation of the humanita-
deadlock and faces a dilemma: should it act rian intervention is linked with certain risks.
strictly within the legal framework set by the UN Such renowned authorities of international
Charter and turn a blind eye to massive mas- law as Richard Bilder, Ian Brownlie, Thomas
sacres, tortures and other violent acts or it sho- Franck, Oscar Schachter, Brunno Simma, Ja-
uld overstep these frames and undertake effici- ne Stromseth and others are against humani-
ent steps for suppression of similar atrocities. tarian intervention.25
During the Cold War the security concept Those opposing legalisation of humanita-
was state-centric and was based on the prin- rian intervention argue that despite its aim – to
ciples of “security of the national boundaries, protect human rights – humanitarian interven-
territorial integrity and the community of the tion still is an act of violence and is rather un-
state institutions”.18 During that period the do- likely to employ it in practice without casualti-
minating priority was guaranteeing the princip- es.26 The military intervention exercised by the
le of non-intervention,19 that promoted the he- North Atlantic Treaty Organisation (NATO) in
gemony of the state power on the own territory. Kosovo demonstrated that the number of lives
After the end of the Cold War the state-centric lost due to the intervention may be small com-
system was transformed into human-oriented pared to the number of lives that were saved,
one as a result of what the human rights and but “there is no such thing as a clean war –
freedoms acquired increasing importance. even a humanitarian one.27
Then the hope originated that the UN would The next jeopardy stressed when discus-
have become as an efficient organisation as sing the legalisation of humanitarian interven-
it was supposed to be from the very outset.20 tion is the danger of its abuse. The likelihood
But these expectations did not come true and is high that states might use humanitarian in-
later occurrences demonstrated that the UN’s tervention for achieving their political, econo-
efficiency was sacrificed to the bipolarity.21 He- mic, financial and other interests.28 It is easy
re a question arises: What is the global com- to “fabricate” the humanitarian intervention, as
munity supposed to do when human rights any hostility “may be justified under the pretext
are treaded down by the dictatorial regime of of humanitarian purposes”.29
a country, and the Security Council – owing One of the crucial problems related to the
to the controversial interests and opinions of humanitarian intervention is the inevitability of
its Permanent Members States – is unable to selectivity.30 The degree of democracy and fa-
adequately react and make a decision, which irness principles, a legal system is based on,
would have ensured the limination of the hu- is demonstrated by the ability of the system
man rights violations? The practice of the past concerned to uniformly and impartially regu-
decades evidences that the international com- late similar relationships and situations.31 The
munity tries not to be reluctant and undertake renowned British constitutionalist Albert Ven
efficient measures in case of gross violation of Dicey called this feature of the legal system,
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which is based on the principles of democracy the governments; furthermore, some of them
and fairness, as “equality before the law.”32 were formulated as a result of debates at the
According to the assertions of the opponents General Assembly.38 If the issue of legalisati-
of the formalisation of the humanitarian inter- on of the humanitarian intervention within the
vention: “if accepted in law, the right of huma- international law will arise in the future, the-
nitarian intervention would introduce endless se standards will almost probably become the
opportunities for the selective use of force in guidelines for the development of the criteria
cases of humanitarian need”.33 In this situation of the legal humanitarian intervention.
~Humanitarian intervention would be highly Furthermore, this chapter will provide for
selective and nearly always dictated by politi- the assessment of the compatibility of the mi-
cal and strategic interest”.34 litary operation undertaken by Russia against
And finally the humanitarian intervention is Georgia in August 2008 with the criteria of le-
a very expensive military operation.35 Due to this gitimate humanitarian intervention. As mentio-
reason many states either fully refrain from the ned above, the contemporary international law
participation in the humanitarian intervention or does not recognise the humanitarian interven-
if participating, try to minimise their expenses to tion as the legal basis for the use of military
maximum practicable level what has its impact force. Based on the foregoing, it may be mea-
on the efficiency of the military actions and pro- ningless prima facie to pay attention to this is-
vides for the failure of the whole initiative.36 As a sue, because, in any case, whatever Russia’s
result, the humanitarian intervention has a co- qualification for its actions is, the use of force
unter effect and the jurisdictions, against whom against Georgia can be regarded only as a vi-
it is conducted commit their criminal action with olation of the international law. In the context
increased violence.37 Based on the foregoing of use of force, Russia explicitly acted beyond
the states initiating the intervention are bound the framework of the modern international law
to provide adequate resources for the military and, respectively, its actions can be qualified
operations. For the humanitarian intervention only as an aggression. Despite foregoing it is
to have maximum effect it is necessary for the reasonable to consider this issue insofar as if
state, initiating the intervention to be adequa- a humanitarian intervention is regarded as an
tely prepared in order to account for every de- act committed for humanitarian purposes, the
tail and figure out all the possible developments gravity of the actions of an intervener will be
of the situation to maximum possible extent. It neutralised to a certain extent in the eyes of
is very difficult to demand the fulfilment of all the international community and the responsi-
the aforementioned conditions from a state just bility will be distributed between the parties in
on an altruistic basis. the conflict. As a result the reaction of the in-
The above discussed circumstances cre- ternational community will not be as stringent
ate a major obstacle – despite the existing as required for the grave act, committed by the
practice the states do not recognise the huma- intervener.
nitarian intervention as a legal act and the lat- Having not been recognised by internati-
ter will remain to be an illegal act until the ag- onal law the mentioned criteria, it seems re-
reement is reached between the states about asonable to base our discussions related to
these highly-disputed issues. Russia’s actions in August 2008 upon them
as they are usually used by international law
scholars, as well as by governments, to define
3. THE CRITERIA OF THE LEGITIMATE
weather or not a military intervention consti-
HUMANITARIAN INTERVENTION
tutes humanitarian intervention. These criteria
This chapter will offer the overview of the greatly promote the delimitation between the
criteria and conditions, an intervention is to intervention, which really serves the humanita-
comply with to be qualified as a humanitari- rian purposes and its “cynical manipulation”39.
an intervention according to the humanitarian The most common preconditions of the
intervention doctrine. These criteria were de- humanitarian intervention are: a) massive and
veloped by the international law scholars and gross violation of human rights; b) exhaustion
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of all possible means of settlement of a dispute ous and trustworthy by the international orga-
within the framework of the international law. nisations.49 Such evidence should come from
The criteria, a humanitarian intervention is “independent” sources without an interest at
to comply with are as follows: a) the interven- stake in the “consequences of the crisis”.50
tion is to be undertaken only for the humani- The closest thing to such an independent so-
tarian purposes; b) the intervention should be urce is the United Nations itself.51 Other so-
multilateral and c) the intervention should be urces widely regarded as credible will include
proportional. the various nongovernmental organisations li-
Below we shall discuss every preconditi- ke Human Rights Watch, Doctors without Bor-
on and criterion of humanitarian intervention; ders, and the International Red Cross, etc.52
furthermore, we shall discuss the Russia’s mi- Based on the foregoing it can be conclu-
litary action against Georgia on the light of the ded that core precondition for humanitarian in-
mentioned criterion and precondition. tervention is existence of the systematic, par-
ticularly grave violation of human rights that
3.1. Massive, Gross and Systematic pose danger to human life and health and are
Violation of Human Rights proved by impartial and highly-recognised in-
3.1.1. General overview ternational body on the basis of sound and ve-
The first and the paramount precondition racious evidence.
of a humanitarian intervention, with respect to
3.1.2. Assessment of the humanitarian
which there is a universal consensus and ag-
pretext of Russia’s hostilities
reement, is the existence of the humanitarian
crisis elements on the territory of a state. In Can it be presumed that Russia had suf-
particular there should be the cases of grave ficient grounds to commit an act of interven-
violations of human rights, shocking “the con- tion for humanitarian purposes (as stated by
science of mankind”.40 The examples of such the Russian officials)? Russia denominated
violations are: “genocide, other large-scale the military operation undertaken by Georgia
human rights atrocities, and internal aggressi- in the South Ossetia for the reestablishment
on placing large numbers of people in life-thre- of the constitutional order as an international
atening danger”.41 In addition, these violations crime of genocide. The President of the Rus-
should be systematic.42 Together with the hu- sian Federation accused Georgia of genoci-
manitarian crisis there should be the derelic- de when he said that: “the modus operandi of
tion or impossibility to act on the part of the the Georgian party can be called nothing else,
state, on whose territory the massive and cru- than the genocide as these actions became
el violations of human rights occur or a state massive and were directed against specific
is to be engaged in gross violation of human persons: civilians, peace-keepers”.53
rights on its territory. The specific meaning of Commensurate with the Convention of
massive violations has never been establis- Genocide54 genocide means such acts that
hed yet.43 The Genocide Convention44 does are “committed with intent to destroy, in whole
not specify the number or percentage of a or in part, a national, ethnical, racial or religio-
national, ethnic, racial, or religious group that us group”.55 According to the Convention the-
must be killed to constitute genocide.45 Thus, se actions are: a) killing members of the gro-
it seems that this issue should be decided on up; b) causing serious bodily or mental harm
a case-by-case basis.46 However, it should be to members of the group; c) deliberately inflic-
mentioned that a single case of human rights ting on the group conditions of life calculated
violations, even though constitutes violations to bring about its physical destruction in who-
of international law as well, will not entitle sta- le or in part; d) imposing measures intended
tes to use force under the doctrine of humani- to prevent births within the group; e) forcibly
tarian intervention.47 What is most important, transferring children of the group to another
massive violation of human rights should be group.56 Furthermore, these acts should be
proved by credible evidences.48 Credible are massive and systematic. Russia blames Ge-
the evidences that are recognised as veraci- orgia in commitment of such actions, which
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are related to killing members of the group an party simply did not have them, because,
(Ossetians). By itself, according to the hu- as stated by the Prime-Minister of Russia after
manitarian intervention doctrine the cases of launching the hostilities he met the refugees
genocide are the grounds for initiating a hu- from South Ossetia and after talking to them
manitarian intervention, but were the elements he had the impression that the “elements of
of genocide present in the facts mentioned by genocide” were outlining. Following that he
Russia and can these facts be regarded as proposed for the Military Prosecutor’s Office
proved? The very first statements of the Rus- of Russia to “investigate” these facts and do-
sian Government for the “reinforcement” of the cument them.62
“genocide” allegations against Georgia, were None of the states has shared the Russi-
made seven month after the initiation of the a’s positions and arguments, save Nicaragua,
hostilities by Russia. In particular, on February Venezuela and Cuba.63 Furthermore, no aut-
25, 2009 the Investigation Committee of the horitative international intergovernmental or
Prosecutor’s Office of the Russian Federati- non-governmental organisation has confirmed
on (hereinafter the “Investigation Committee”) Russia’s allegations in genocide against Ge-
stated that it had almost completed the inves- orgia, but rather fully denounced them. After
tigation of the August occurrences and obtai- the completion of the official visits in Moscow,
ned evidences, which proved the genocide of Tskhinvali and Tbilisi the Chairman of the ad
the Ossetian people by Georgia.57According to hoc committee (hereinafter the Committee) of
the data of the Investigation Committee more the Council of Europe Parliamentary Assembly
than 5 000 civilians suffered damage as a re- (hereinafter the Parliamentary Assembly),64
sult of the conflict, 655 residence houses and Mr Luc Van den Brande stated: “There was
more than 2 000 dwelling constructions were no genocide during the operations conducted
destroyed.58 As regards to casualties amongst by the armed forces of Georgia in early Au-
the civilian population – unlike the data of the gust.”65 “We must be very cautious when we
illegitimate government of the South Ossetia, speak about genocide. We cannot call genoci-
which stated that 1 492 persons were killed de whatever happened in Tskhinvali.”66 Mr Luc
– the data of the Investigation Committee al- Van den Brande added that it would have been
low for the identification of 162 residents of more reasonable to use the term “ethnic clea-
the South Ossetia, who were killed during this ning” instead of genocide, but not against the
period.59 The representatives of the Russian Ossetian population.67 Mr Luc Van den Brande
Government did not present any other speci- did not specify in his statement, whether who
fic facts and, what is more, evidences, for the was the victim of ethnic cleaning in his opini-
reinforcement of their position with legal argu- on, but it is apparent that he meant the Ge-
ments. As of to date, even these evidences orgian population. This is also proved by the
cannot be regarded as presented because the fact, that later the report, prepared by the Mo-
Russian Investigation Committee has not sub- nitoring Committee68 on the basis of the report
mitted them to any international agency60 or prepared by Mr Mátyás Eörsi and Mr Luc Van
media. It should be also mentioned that when den Brande, stressed the existence of credible
the Chairperson of the Investigation Commit- and bothering facts of ethnic cleaning against
ted made a public announcement in Septem- the Georgian population within the conflict zo-
ber 2008 on obtaining the initial evidences, the ne.69 Based on the Report of the Monitoring
international non-governmental organisation Committee the Parliamentary Assembly adop-
Human Rights Watch repeatedly applied to ted the Resolution N1683, where it was stated
the Investigation Committee in writing, requ- that “The Assembly is especially concerned
esting the access to the obtained evidences. about credible reports of acts of ethnic clean-
But the Committee never responded to these sing committed in ethnic Georgian villages in
requests.61 What is more, the Russian party South Ossetia and the “buffer zone” by irregu-
has not presented any evidence or credible lar militia and gangs which the Russian troops
fact neither before the initiation of the military failed to stop.”70 The absence of the elements
operation or during it. As it seems the Russi- of the genocide is also stressed in the report of
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another member of the Committee Mr Göran horities)”.75 The organisation refers to several
Lindblad: “With all due respect for the South cases of human rights gross violation, which
Ossetian victims of this war, I think that label- according to the assertions of the Russian
ling the Georgian attack against Tskhinvali as Investigation Commission occurred within the
attempted genocide is a deliberate exaggera- conflict zone, but they were impossible to be
tion, which is used to justify Russia’s dispro- proved by the organisation.76
portionate military intervention, advance politi- The genocide allegations are proved ne-
cal objectives and manipulate the public opini- ither by the report prepared by the internati-
on”.71 Neither the Council of Europe Committee onal non-governmental organisation Amnesty
on Legal Affairs and Human Rights confirms International.77
the commitment of the acts of genocide by the Based on the foregoing it can be said that
Georgian party. According to the statement of according to the data on hand as of to date
the Committee rapporteur, Mr Christos Pour- it can be presumed that Russia’s statements
gourides (Cyprus): “The facts do not seem to about genocide in Georgia are absolutely gro-
support the genocide allegations against Ge- undless. No relatively credible evidence was
orgia: the number of Ossetian (civilian) victims presented to prove the commitment of such
of the Georgian assault (“thousands” accor- criminal actions by the Georgian armed forces
ding to early numbers cited by the Russian of, which would have enabled Russia to beli-
authorities relying on “provisional data”) seem eve that the genocide of the ethnic group of
to be much exaggerated; now it appears that Ossetians was committed and to initiate the
most Ossetian victims (whose number is also humanitarian intervention commensurate with
much lower now) were combatants. Individual the humanitarian intervention doctrine. None
atrocities such as those described in certain of the independent and authoritative interna-
Russian media and submissions to the Com- tional institution has provided sound and ve-
mittee of Ministers would be serious crimes in racious evidence of systematic and grave vio-
their own right, but not attempted genocide”.72 lations of human rights by the Government of
Nothing is said about the crime of geno- Georgia, what would have endangered human
cide in the report of the Office for Democratic life and health, in this case of ethnic Ossetian
Institutions and Human Rights under the aegis population. Respectively, there is no precondi-
of theOSCE, which was prepared specifically tion which would have given reason to Russia
to study the status of human rights in the con- to exercise an act of intervention against Ge-
flict regions of Georgia after the August occur- orgia for humanitarian purposes.
rence.73
The existence of the elements of genoci- 4.2. All the Means of Dispute Settlement,
de was not confirmed by Human Rights Watch Allowed by the International Law Should
either. As highlighted in its report, which is fully Be Exhausted
dedicated to the assessment of the hostilities 4.2.1. General overview
between Russia and Georgia in August 2008 in
According to the doctrine on humanita-
the context of the international law standards,
rian intervention, another core precondition
the evidences obtained by the organisation do
thereof would be that a state concerned has
not prove the commitment of the crime of ge-
exhausted all available peaceful dispute set-
nocide by the Georgian side.74 What is more,
tlement procedures. This precondition should
based on the data double-checked by them,
be construed in a way that this state has ma-
some official statements, made by the Russi-
de every possible effort to resolve the problem
an Investigation Commission concerning cri-
through non-intervening methods and that it
minal actions of the Georgian government
has put in place and applied all the possible
against the Ossetian population turned out to
mechanisms. These mechanisms, first of all,
be fake, what in the opinion of the organisation
imply such peaceful means of dispute set-
“raise[s] serious concerns about the accuracy
tlement as: warnings, preventive diplomacy,
and thoroughness of the investigation (carri-
etc.78 Apart from this it should be clearly visible
ed out by the Russian law enforcement aut-
that the Security Council is unable to act effici-
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ently under the current circumstance.79 In the the Ossetian separatist leaders.84 The Head of
first place the states are supposed to apply to the “Peacekeeping Forces” of Russia and the
the Security Council with their concern about Special Envoy of the Russia’s Foreign Ministry
the violation of human rights and try to obtain also failed to involve the Ossietian separatists
the approval for the enforcement action under into negotiations. As stated by the Head of the
Chapter VII of the Charter.80 “Peacekeeping Forces” of Russia he could
Only in the case of failure of the Security not even access to the separatist leaders.85
Council to come to an agreement with respect In anticipation of the negotiations the Georgi-
to the issue concerned, the states will be en- an villages were still intensively shelled.86 The
titled to exercise the humanitarian intervention President of Georgia made a unilateral cea-
under the humanitarian intervention doctrine. se-fire decision, but the Ossetian party did not
In this case the role and the duty of the Se- cease the fire. Under the given circumstances
curity Council, as the main guarantor of the Georgia launched the operation for reestablis-
international peace and security shall be en- hment of the order on 7 August 2008 to what
sured.81 Russia responded with massive air and land
hostilities on the whole territory of Georgia on
4.2.2. Has Russia exhausted all the means 8 August 2008.
of dispute settlement? Russia made no efforts to prevent the
complication of the situation and the escalation
The answer to the question, whether or
of the conflict and the very next day following
not Russia has made every effort to settle the
the commencement of the military operation
existing problem through means recognised
by Georgia, or to be more precise, within a few
by the international law and exhausted all the-
hours it launched the large-scale intervention.
se means, is explicit and straightforward – No.
A reasonable doubt arises that Russia was not
Russia had not enforced any of the mecha-
willing and trying to prevent the use of military
nisms or means recognised by the internatio-
force, but rather was awaiting for the moment
nal law before it resorted to the use of force.
to use its military machine against Georgia.
When the situation in the conflict region
Based on the foregoing it is needless to speak
became strained by the end of July and begin-
about the exhaustion of all the other alternati-
ning of August 2008, the Georgian party ad-
ve means of conflict settlement by Russia.
dressed Russia requesting the latter to arran-
ge negotiations with the Ossetian separatists’
4.3. The Intervention Should Serve only
leaders aimed at dealing with the situation. the Humanitarian Purposes
However, irrespective of this request Russia
4.3.1. General overview
abstained from any action. In particular: on
July 29, 2008 the armed gangs of the sepa- According to the humanitarian interventi-
ratist regime began intensive shelling of ethni- on doctrine an intervention is legal if it serves
cally Georgian villages and the check-points only humanitarian purposes.87 In other words,
of the Georgian peacekeepers. The bombing the use of force by a state should serve the
continued until 7 August on a regular basis. only goal: protection of those, whose life and
This fact was formally acknowledged by the health is endangered. Humanitarian interven-
Head of “Peacekeeping Forces” of Russia.82 tion should not be committed for the “personal
On August 1 2008 a pickup truck of the Mi- gain” of the interventionist state.88 Respecti-
nistry of Internal Affairs of Georgia was hit vely, the intervention should not serve the po-
by remote-control explosive devices on the litical, economic or other interests of a state.
Eredvi-Kheiti bypass road resulting in woun- First and foremost, the intervention should not
ded five policemen.83 The Georgian party ma- aim at the derogation of territorial integrity and
de several attempts to hold negotiations with political independence of the state in whose
the Ossetian separatist leaders to regulate the territory the action occurred.89 It is inadmissib-
situation and achieve cease-fire, but with not le for the intervention to aim at the invasion,
success. Neither the State Minister of Geor- separation of some territory or overthrow of
gia for Reintegration succeeded in talking with the state power.90
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4.3.2. Did Russian intervention have only tary crisis also speak about the political bias of
the humanitarian purposes? the Russian intervention. It is stressed in the
memorandum of Mr Luc Van den Brande and
The history of Russian-Georgian relations
Mr Mátyás Eörsi that the prospect of a Mem-
for the past years evidences, that amongst
bership Action Plan (the so-called MAP) for
purposes of Russia’s intervention against Ge-
Georgia to enter NATO would appear to have
orgia, the humanitarian one was definitely of
not the first priority for the Russian Gover- had a non-negligible influence on Russia’s de-
nment. In the opinion of the Professor of in- cision to commit the military intervention aga-
ternational law, Mr Levan Alexidze, Russia’s inst Georgia.97 Furthermore, the Memorandum
military intervention was markedly “revan- further states that with due consideration of
chist”.91 Professor Alexidze stressed the fact, the intensity of the military hostilities of Russia
that starting from splitting up of the Soviet Uni- and repeated public calls for regime change
on the Russia’s policy has been the mainte- in Georgia, one may have the impression that
nance of its influence within the Post-Soviet when doing so Russia aimed at the “reestablis-
space and respectively prevention of the in- hment of its direct and decisive influence over
tegration of the newly emerged states into the Georgia”.98 It is also mentioned that the factors
European dimension and institutions.92 Russi- of Abkhazia and the South Ossetia played no
a’s ex-President, and now the Prime-Minister, less important role in making the decision on
was absolutely frank, when he said, that in his intervention.99 In his Memorandum one more
opinion “Collapse of the Soviet Union was the member of the Committee Mr Göran Lindblad
“greatest evil of the twentieth century”. [Res- wrote about the recognition of Abkhazia and
pectively] ... democratic Georgia and Ukraine South Ossetia: “The promptness with which
are not only the historical anomalies for Pu- the recognition was declared makes me think
tin, but also the direct political threat”.93 Russia that the script had already been written befo-
has committed more than one provocative and re.”100 Lindblad refers to the statement of the
aggressive act against Georgia as the most Minister of Internal Affairs of Russia that “the
“disobedient” state, which clearly and openly declaration and recognition of Kosovo’s inde-
tries to get rid of the Russia’s influence and pendence will force Russia to adjust its line
undertakes efficient efforts for the European regarding Abkhazia and South Ossetia, whe-
integration. August war of 2008 was the cul- re the majority of the population has Russian
mination. The August occurrences should be citizenship.”101 As already mentioned Lindblad
analysed in the light of statements frequently says in his Memorandum that in his opinion
made by the Russian political leaders , in par- labelling the Georgia’s actions in the conflict
ticular, that “Russia will not allow Georgia’s zone had only one purpose – to use this chan-
joining to the NATO”.94 Russia’s open aggres- ce “to advance its political objectives”.102 In his
sive actions are always escalated if likelihood Memorandum Lindblad also stresses that thro-
of Georgia’s integration into NATO turns out ugh its actions Russia was advancing its politi-
to be serious and tangible. It is not occasional cal objectives not only against Georgia, but al-
that Russia’s aggression became particularly so other former Soviet Republics. In particular,
intense just a few months after the adoption of he believes, that: “one of the consequences of
the NATO declaration at Bucharest Summit in the recent war between Russia and Georgia is
April 2008, stating that Georgia “will become a that all the former members of the USSR ha-
NATO Member State”.95 ve received a strong warning that they should
Professor Alexidze mentions one more im- respect Russia and its strategic interests”.103
portant motive of Russia’s actions: through its Furthermore the consequences of the inter-
intervention into Georgia Russia enforced its vention allowed Russia to attain “immediate
long-thought-of goal: recognised the indepen- strategic advantages,” in particular now it has
dence of the South Ossetia and Abkhazia.96 possibility to have military bases in Abkhazia
The members of the Council of Europe ad and South Ossetia, what may cause the dis-
hoc Committee on the Georgian-Russian mili- mantlement of Georgia’s military capability,
73
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
make Georgia less attractive for the NATO in 4.4. Humanitarian Intervention Should
the context of strategic partnership.104 Be Multilateral
It is stressed in Lindblad’s Memorandum 4.4.1. General Overview
that “Georgia has a pivotal role as a transit
There is a dual interpretation of this requ-
country for transporting Caspian oil to world
irement: according to the first one the requ-
markets, bypassing Russia”.105 Russia’s mili-
irement that the intervention should be mul-
tary hostilities could have caused material da-
tilateral does not mean the actual presence
mage to the stability and security in the region,
of more than one state.109 This means that a
what might have resulted in loosing confiden-
humanitarian intervention must be openly or
ce in Georgia as a reliable transit country and
tacitly be supported by the world community
Russia would have had no competitor in the
as a whole.110 According to the other definiti-
transportation of Caspian oil.106 Accounting for
on, if the intervention deems impossible within
the public excitement caused by Russia when
the framework of the UN, then the states are
making the decision on passing Baku-Tbili- supposed to act jointly, with the help of the re-
si-Ceyhan oil pipeline through the territory of gional international organisations.111 However,
Georgia and its efforts to ruin this project, also ultimately, the essence of this approach is that
the fact, that one of the targets of Russia’s at- the intervention should be supported by the in-
tack was the oil pipeline, a reasonable doubt ternational community.
occurs, that one of the main purposes of Rus-
sia’s aggression was the damage of Georgia’s 4.4.2. Did Russia enjoy the support of the
reputation as a stable and safe economic an international community in its actions?
strategic partner for the West. No explanation is required with respect to
The American experts are also of the sa- the issue whether or not Russia enjoyed the
me opinion. For example, in his analysis of international support in its actions. After the
the Georgian-Russian relations further deve- war with Georgia Russia is in the international
lopment Professor of Stanford University Mic- isolation. Its actions were explicitly denounced
hael A.Mcfoul stresses that “Kremlin’s moves by the international community. The world’s
represent the … boldest moves in a long-term opposition and especially that of the West to
strategy to undermine Georgian sovereignty, Russia’s policy and actions was (and still is) so
cripple the Georgian economy, and ultimately dramatic, that there was a danger of revival of
overthrow the democratically-elected gover- the Cold War. Russia failed to gain the support
nment of Georgia. Moreover, Russia’s gover- of either the West or such partners as China,
nment actions in Georgia constitute just one which traditionally upholds Russia’s position in
front of a comprehensive campaign to reas- the diplomatic disputes. Russia’s actions po-
sert Russian dominance in the regionp”.107 sed significant threat to the stability in Europe
The above assessments of the Russia’s and make the whole civilised world extremely
intervention, committed in August 2008 are anxious, as a result of what many states and
mainly the comments made by the heads of international organisations reassessed their
the states, the representatives of the interna- relationships with Russia and noted that major
tional organisations, the experts of internatio- efforts will be required from Russia to regain
nal law and international relations on these oc- confidence it was enjoying before its war with
currences, what means that the international Georgia.
community recognises, first of all the political
4.5. The Intervention Should Be
motivation in the Russia’s action – to cause
Proportional
essential damage to the sovereignty and terri-
torial integrity of Georgia. Such a decision also 4.5.1. General overview
derives from the facts that nobody believes in According to the humanitarian interventi-
that Russia is the state the policy of which, on on doctrine, for an intervention to be legal it
international or national level, is governed by should be proportional to the level of violence
the aspirations of human rights protection.108 displayed by the other party.112 Furthermore,
74
N. RUKHADZE, HUMANITARIAN INTERVENTION
V. GRAMMATIKAS,
v. gramatikasi, IN THE
kosovo MODERN
KOSOVO
samxreT INTERNATIONAL
V. SOUTH
oseTis OSSETIA?
LAW
winaaRmdeg?
the armed forces are to be used only to the larly concerned that the ultimate goal of Rus-
extent, necessary for the suppression of the sia’s military actions was the occupation of the
violation of human rights.113 Humanitarian in- whole territory of Georgia and overthrow of the
tervention should be followed by the improve- current government. Russia’s counter military
ment and not the deterioration of the situati- actions were so inadequate that the leading
on, meaning that the intervention should not countries unilaterally condemned Russia’s ac-
cause graver consequences than in the case tions. According to their statements it is very
of non-intervention.114 Graver consequences difficult to find the justification irrespective to
may mean larger-scale violations of human the motivation of these actions. Practically all
rights, as well as more significant material da- the major cities of Georgia were bombed, in-
mage. Respectively, when deciding on huma- cluding the capital. The armed forces of Rus-
nitarian intervention, the account should be ta- sia occupied the cities and villages of not only
ken of the casualties of the intervention along the Eastern, but also the Western Georgia,
with the cases of massive violation of human which had nothing to do with the conflict zo-
rights and comparison should be made with ne. It should as well be stressed, that these
“the amount of destruction which almost ine- aggressive actions of Russia, which resulted
vitably will be caused by armed intervention, in major casualties and the destruction of the
and the importance of the human rights so- civil and military infrastructure of Georgia, be-
ught to be protected”.115 came particularly intensive after the armed
forcec of Georgia left the conflict zone and the
4.5.2. Where Russia’s actions Georgian Government proposed the negotiati-
proportionate? on of the ceasefire agreement.
As already mentioned the principle of pro-
4.5.2.2. Have Russian hostilities caused
portionality includes two elements: a) the ar-
larger-scale violations?
med forces should be only to the extent, that is
necessary for the suppression of the violation As mentioned above, Russia went far be-
of human rights; and b) the use of armed for- yond the conflict zone, where the hostilities
ces should not result in the violations of larger went. When Georgian armed forces ceased
scale. Russia’s military intervention against fire and left the conflict zone, Russian party
Georgia should be analysed in the context of unilaterally and artificially expanded the area
of these two conditions. of hostilities and covered the territories, which
had nothing to do with the conflict zone. As a
4.5.2.1. Has Russia used armed forces consequence, the military actions, initiated by
to the extent that was necessary for the Russia under the pretext of protection of hu-
suppression of the violations of human man rights became the punitive operation aga-
rights? inst Georgia which resulted in humanitarian
crises not only within the conflict zone, but also
Russia has significantly exceeded both
far beyond it. Major casualties amongst both
“tactically” and “geographically” those measu-
civilian population and military men, atrocio-
res, which were necessary for the attainment
us violations of human right not only within the
of the goals stated by Russia.116 It has spread
conflict zone, but also in Gori, its nearby villa-
its military actions over the whole territory of
ges and in Western Georgia, large amount of
Georgia and made its targets practically all the
displaced people, destroyed houses and civil
civil and military key units irrespective whether
infrastructure, burnt down villages, numerous
they were close to or far away from the conflict
cases of marauding, occupation of Georgian
zone. Russia’s military campaign exceeded
territories, persecution of the local Georgian
the boundaries of the South Ossetian region
population and ethnic cleaning – these are the
and opened one more war arena in another
consequences of Russia’s hostilities, which
conflict zone of Georgia – Abkhazia. Russia’s
occurred after the armed forces of Georgia
fierce and uncontrolled military hostilities ma-
left the conflict zone and the Georgian Gover-
de the international community feel particu-
nment announced its ceasefire initiative.
75
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
1
For the purposes of this article the humanitarian intervention is an unilateral act
undertaken without the mandate of the United Nations Organisation.
2
R. Goodman, Humanitarian Intervention and Pretexts for War, American Journal
of International Law 100, 2006, 107 (Downloaded from Lexis Nexis Database in
November 2008).
3
J. Mertus, Humanitarian Intervention and Kosovo: Reconsidering The Legality Of
Humanitarian Intervention: Lessons From Kosovo, William & Mary Law Review
41, 2000, 1752 (Downloaded from Lexis Nexis Database in November 2008).
4
R. Goodman, Ibid, 111.
5
C.Ch. Joyner and A.C. Arend, Anticipatory Humanitarian Intervention: An Emerging
Legal Norm?, USAFA Journal of Legal Studies 10, 1999/ 2000, 30. (Downloaded
from Lexis Nexis Database in November 2008).
6
Ibid.
7
Ibid.
8
S. V. Jones, Darfur, The Authority Of Law, And Unilateral Humanitarian Intervention,
The University of Toledo Law Review 39, 2007, 101. (Downloaded from Lexis
Nexis Database in December 2008).
9
R. Zacklin, Beyond Kosovo: The United Nations and Humanitarian Intervention,
Virginia Journal of International Law Association 41, 2001, 932. (Downloaded from
Lexis Nexis Database in November 2008).
76
N. RUKHADZE, HUMANITARIAN INTERVENTION
V. GRAMMATIKAS,
v. gramatikasi, IN THE
kosovo MODERN
KOSOVO
samxreT INTERNATIONAL
V. SOUTH
oseTis OSSETIA?
LAW
winaaRmdeg?
10
Ibid, 933.
11
H.R Fabri, Human Rights and State Sovereignty: Have the Boundaries been
Significantly Redrawn? (in Human Rights, Intervention, and the Use of Force
(edited by Philip Alston and Euan Macdonald, Oxford University Press: New-York,
2008), 34.
12
Ibid.
13
Ibid.
14
W.A. Klinton, Ignoring The Lessons Of The Past: The Crisis In Darfur And The
Case For Humanitarian Intervention, 15 Journal of Transnational Law & Policy 1,
2005, 5. (Downloaded from the Lexis Nexis database in November 2008)
15
L. Alexidze, Modern International Law, Tbilisi, 2006, 44.
16
Ph. Alston and E. Macdonald, Sovereignty, Human Rights, Security: Armed
Intervention and the Foundational Problems of International Law (in Human
Rights, Intervention, and the Use of Force (edited by P. Alston and E. Macdonald,
Oxford University Press: New-York, 2008), 2.
17
Ibid.
18
Ibid.
19
D. Murphy, Humanitarian Intervention, The United Nations in an Evolving World
Order, 65 (Procedural Aspects of International Law Series, Vol. 21, 1996) (See:
J.L. Czernecki, The United Nations’ Paradox: The Battle between Humanitarian
Intervention and State Sovereignty, 41 Duquesne Law Review 391, 2003.
(Downloaded from the Lexis Nexis database in December 2008).
20
V.P. Nanda, Th.F. Muther, Jr., A.E. Eckert, Tragedies In Somalia, Yugoslavia, Haiti,
Rwanda and Liberia - Revisiting the Validity of Humanitarian Intervention Under
International Law, Part II, 26 Denver Journal of International Law and Policy, 1998,
828. (Downloaded from the Lexis Nexis database in December 2008).
21
Ibid, 829.
22
P. Upadhyaya, Human Security, Humanitarian Intervention, and Third World
Concerns, 33 Denver Journal of International Law and Policy 71, 82. (Downloaded
from Lexis Nexis Database in November 2008).
23
Y.K. Tyagi, The Concept Of Humanitarian Intervention Revisited, Michigan Journal
of International Law 16, 1995, 893. (Downloaded from Lexis Nexis Database in
November 2008).
24
L.F. Berger, State Practice Evidence of the Humanitarian Intervention Doctrine:
The ECOWAS Intervention in Sierra Leone, Indiana International & Comparative
Law Review 11, 2001, 611. (Downloaded from Lexis Nexis Database in November 2008).
25
R. B. Bilder, Kosovo and the “New Interventionism”: Promise or Peril? Journal
of Transnational Law and Policy 9, 1999; I. Brownlie, Humanitarian Intervention;
I.Brownlie, Thoughts on Kind-Hearted Gunmen; T.M. Franck & N.S. Rodley, After
Bangladesh: The Law of Humanitarian Intervention by Military Force, American
Journal of International Law 67, 1973; L. Henkin, How Nations Behave: Law And
Foreign Policy (2d ed. 1979); L. Henkin, Kosovo and the Law of Humanitarian
Intervention, American Journal of International Law 93, 1999; O. Schachter,
International Law In Theory And Practice 1991; B. Simma, NATO, the UN and
the Use of Force: Legal Aspects, European Journal Of International Law 10,1999;
J.E. Stromseth, Rethinking Humanitarian Intervention: The Case for Incremental
Change, in Humanitarian Intervention: Ethical, Legal and Political Dilemmas (J.L.
Holzgrefe & R. O. Keohane eds., Cambridge University Press, 2003). (R.Goodman,
see supra note 2, 108).
26
B.F. Burmester, On Humanitarian Intervention: The New World Order and Wars to
Preserve Human Rights, Utah Law Review, 1994, 295. (Downloaded from Lexis
Nexis Database in January 2009).
27
B. Valentino, The Perils Of Limited Humanitarian Intervention: Lessons From The
1990S, Wisconsin International Law Journal 24, 2006, 731. (Downloaded from
Lexis Nexis Database in January 2009).
28
R. Falk, The United States and the Doctrine of Non-Intervention in the Internal
Affairs of Independent States, Howard Law Journal 5, 1959, 163, 167. (See:
77
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78
N. RUKHADZE, HUMANITARIAN INTERVENTION
V. GRAMMATIKAS,
v. gramatikasi, IN THE
kosovo MODERN
KOSOVO
samxreT INTERNATIONAL
V. SOUTH
oseTis OSSETIA?
LAW
winaaRmdeg?
58
“Следственный комитет подтвердил, что Грузия совершила геноцид в
отношении осетин”, Regnum, 25.02.2009, See: http://pda.regnum.ru/news/
1129519.html (26.02.2009).
59
Ibid.
60
The evidences collected by Russian law enforcement authorities are of no legal
value unless they are confirmed by the international community, because, as
already mentioned, according to the humanitarian intervention doctrine the facts
of humanitarian crisis should be proved by an impartial, independent party. The
necessity of international investigation of the hostilities between Georgia and
Russia in August 2008 is stressed by Amnesty International – an international
though non-governmental organisation working in the field of human rights
protection.
61
Up in Flames, Humanitarian Law Violations and Civilian Victims in the Conflict
over South Ossetia, Human Rights Watch Report, New-York, January 2009, 70.
62
“Медведев: действия Грузии в Южной Осетии – геноцид”, Вести.Ru, 10.02.2008,
See: http://www.vesti.ru/doc.html?id=199965 (26.02.2009).
63
It should be mentioned, that although Cuba considered that Russia’s hostilities
against Georgian were Justified, it has not recognised the independence of South
Ossetia and Abkhazia.
64
Under the decision of the Bureau of the Parliamentary Assembly the Ad Hoc
Committee was set up to study the situation on the ground in Russia and Georgia
(amongst them in South Ossetia) on 5 September 2008. The committee members
visited Russia and Georgia (including South Ossetia) from 21 to 26 September
2008 The Ad Hoc Committee was composed of the co-rapporteurs of the Monitoring
Committee for Russia, Mr Luc Van den BRANDE (Belgium) and Mr Theodoros
Pangalos (Greece, SOC); the co-rapporteurs of the Monitoring Committee for
Georgia, Mr Mátyás Eörsi (Hungary, ALDE) and Mr Kastriot Islami (Albania, SOC);
the Chairman of the Political Affairs Committee, Mr Göran Lindblad (Sweden, EPP/
CD); the Chairwoman of the Committee on Migration, Population and Refugees,
Ms Corien Jonker (Netherlands, EPP/CD); the Chairman of the Socialist Group,
Mr Andreas Gross (Switzerland); the Chairman of the Unified Left Group, Mr Tiny
Kox (Netherlands); and the First Vice-Chairman of the European Democrat Group,
Mr David Wilshire (United Kingdom). The composition of the Committee is given in
the Report prepared by the monitoring Committee: The consequences of the war
between Georgia and Russia, document No.11724, 01.02.2008., available at the
Council of Europe webpage: http://assembly.coe.int/Main.asp?link=/Documents/
WorkingDocs/Doc08/EDOC11724.htm (02.02.2009).
65
Comments made by the Chairman of the Ad Hoc Committee of the Parliamentary
Assembly during his press-conference in Tbilisi, see: http://www.top ix. com/world/
russia/2008/09/pace-mission-no-genocide-in-south-ossetia.
66
Ibid.
67
Ibid.
68
Committee on the Honouring of Obligations and Commitments by Member States
of the Council of Europe (Monitoring Committee).
69
The report of the Monitoring Committee is available at the Council of Europe
webpage: http://assembly.coe.int/Main.asp?link=/Documents/WorkingDocs/
Doc08/EDOC11724.htm (02.02.2009)/
70
Paragraph 13 of the Parliamentary Assembly Resolution No.1633 (2008). The
text of the Resolution is available at the Council of Europe webpage: http://
assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta08/ERES1633.
htm#1 (02.02.2009).
71
The explanatory memorandum of Mr G.Lindblad is available at the Council of Europe
webpage: http://assembly.coe.int/Main.asp?link=/Documents/WorkingDocs/Doc08/
EDOC11731.htm (02.02.2009).
72
The explanatory memorandum of Mr Christos Pourgourides is available at the
Council of Europe webpage: http://assembly.coe.int/Main.asp?link=/Documents/
WorkingDocs/Doc08/EDOC11732.htm#P18_105 (02.02.2009).
79
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
73
“Human Rights in the War-Affected Areas Following the Conflict in Georgia”, OSCE
Office for Democratic Instututions and Human Rights Report, Warsaw, November
2008. The report is available at the OSCE webpage: http://www.osce.org/odihr//
74
“Up in Flames, Humanitarian Law Violations and Civilian Victims in the Conflict
over South Ossetia,” Human Rights Watch Report, New-York, January 2009, 71.
The report is available at the webpage of Human Rights Watch: http://www.hrw.
org/en/reports/2009/01-22/flames-0.
75
Ibid.
76
bid.
77
Civilians in the Line of Fire: The Georgia-Russian Conflict, Amnesty International
Report, London, 2008; The report is available at the webpage of Amnesty
International: http://www.amnesty.org/en/library/info/EUR04/005/2008/en/
78
R. Zacklin, supra note 9, 930.
79
M.L. Burton, Legalizing the Sublegal: A Proposal for Codifying a Doctrine of
Unilateral Humanitarian Intervention, Georgetown Law Journal 85, 1996, 425.
(Downloaded from Lexis Nexis Database in November 2008).
80
L. Geissler, The Law Of Humanitarian Intervention And The Kosovo Crisis, Hamline
Law Review 23, 2000, 346. (Downloaded from Lexis Nexis database in January
2009).
81
R. Zacklin, supra note 9, 939.
82
See the report prepared by the Government of Georgia, offering the detailed
chronology of the military crisis between Georgian and Russia in august 2008,
5. The report is available at the webpage of the Ministry of Justice of Georgia
http://www.justice.gov.ge/haaga/Timeline%20of%20Russian%20Aggression%20
in%20Georgia,%20Ethnic%20Cleansing%20of%20Georgians%20since%20
August%208,%202008%20and%20Violations%20of%20IHL%20and%20
IHRL%20in%20course%20of%20an%20International%20Armed%20Conflict.pdf
83
Ibid.
84
Ibid.
85
Ibid.
86
Ibid.
87
M. Bazyler, Re-examining the Doctrine of Humanitarian Intervention in Light of the
Atrocities in Kampuchea and Ethiopia, Stanford Journal of International Law 23,
1987, 601-602. (L.F. Berger, supra note 24, 613).
88
C.Ch. Joyner and A.C Arend, supra note 5, 45.
89
O. Schachter, General Course in Public International Law, 178 Recueil Des Cours,
1982, 145 (N. Krylov, supra note 43, 387).
90
J.J. Merriam, supra note 48, 133.
91
Л. Алексидзе, И Снова Агрессия, Интервенция и Оккупация Грузии с Целью
Ликвидации Суверенитета и Территориальной Целостности Страны, Journal
of International Law, No.2, 2008, 185.
92
Ibid.
93
Z.Brzezinski, Staring down the Russians, Time, See: http://www.time.com/
time/specials/packages/article/0,28804,1832294_1832295_1832699,00.html
(01.03.2009)
94
Ibid.
95
See: the NATO Council Summit Declaration, Bucharest, 2008.
96
Л. Алексидзе, И Снова Агрессия, Интервенция и Оккупация Грузии с Целью
Ликвидации Суверенитета и Территориальной Целостности Страны, Journal
of International Law, No.2, 2008, 185.
97
See the Memorandum of Mr Luc Van den Brande and Mr Mátyás Eörsi in the
Report of the Monitoring Committee of the Parliamentary Assembly: The
consequences of the war between Georgia and Russia, Document No.117124,
The Report is available at the Council of Europe webpage: http://assembly.coe.int/
Main.asp?link=/Documents/WorkingDocs/Doc08/EDOC11724.htm.
98
Ibid.
99
Ibid.
80
N. RUKHADZE, HUMANITARIAN INTERVENTION
V. GRAMMATIKAS,
v. gramatikasi, IN THE
kosovo MODERN
KOSOVO
samxreT INTERNATIONAL
V. SOUTH
oseTis OSSETIA?
LAW
winaaRmdeg?
100
See the Memorandum of Mr G.Lindblad in the Report of the Monitoring Committee
of the Parliamentary Assembly: The consequences of the war between Georgia
and Russia, Document No.11731, The Report is available at the Council of Europe
webpage: http://assembly.coe.int/Main.asp?link=/Documents/WorkingDocs/
Doc08/EDOC11731.htm.
101
Ibid.
102
Ibid.
103
Ibid.
104
Ibid.
105
Ibid.
106
Ibid.
107
M. Mcfoul, US-Russia Relations in the Aftermath of the Georgia Crisis,
Testimony, House Committee on Foreign Affairs, September, 2009, 2. See:
http://iis-db.stanford.edu/pubs/22223/MCFAUL-Testimony-9-9-2008-FINAL.pdf
(21.02.2009).
108
There is an opinion, that it is necessary for the states to have moral right for
committing the humanitarian intervention. To this end, the states should be
themselves guided by those principles the protection they demand from the
other states (Y.K. Tyagi, supra note 23, 889-890). Against the background of
the situation in Russia in the context of protection of human rights, its unruly
and aggressive actions in Chechnia, also the traditional attitude towards those
jurisdictions, which have been and are still committing massive and gross
violation of human rights a justified doubt arises, that the protection of human
rights is not a priority value for Russia.
109
J.J. Merriam, supra note 48, 135-136.
110
Ibid.
111
M. Bazyler, supra note 87, 602-603 (L.F. Berger, supra note 24, 614).
112
It should as well be mentioned, that the proportionality principle within the
understanding of the humanitarian intervention principle differs from the principle
of proportionality, developed by international humanitarian law is embodied
in Article 51 of the Protocol 1 Additional to Geneva Convention under which
“”incidental loss of civilian life, injury to civilians, damage to civilian objects, or a
combination thereof, … would be excessive in relation to the concrete and direct
military advantage anticipated”.
113
M.J. Bazyler, supra note 87, 601. (B.F. Burmester, supra note 26, 280).
114
C.Ch. Joyner, supra note 5, 713.
115
J.L. Fonteyne, The Customary International Law Doctrine of Humanitarian
Intervention: Its Current Validity Under the U.N. Charter, 4 California Western
International Law Journal, 1974, 258-59. (N. Krylov, supra note 43, 392).
116
The Georgia-Russia Crisis and the Responsibility to Protect: Background Note,
Global Centre for the Responsibility to Protect, See http://www.globalr2p.org/pdf/
related/GeorgiaRussia.pdf.
81
ЛЕВАН АЛЕКСИДЗЕ
82
Л. АЛЕКСИДЗЕ, БЕССИЛИЕ СОВЕТА БЕЗОПОСНОСТИ OOH УРЕГУЛИРОВАТЬ КОНФЛИКТ В АБХАЗИИ, ГРУЗИЯ, ПОДРЫВАЕТ ...
83
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84
Л. АЛЕКСИДЗЕ, БЕССИЛИЕ СОВЕТА БЕЗОПОСНОСТИ OOH УРЕГУЛИРОВАТЬ КОНФЛИКТ В АБХАЗИИ, ГРУЗИЯ, ПОДРЫВАЕТ ...
85
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86
Л. АЛЕКСИДЗЕ, БЕССИЛИЕ СОВЕТА БЕЗОПОСНОСТИ OOH УРЕГУЛИРОВАТЬ КОНФЛИКТ В АБХАЗИИ, ГРУЗИЯ, ПОДРЫВАЕТ ...
бомбил Сухуми и другие населенные мир- около 6 000 невинных жителей и изгнано
ными жителями объекты. Факты свидетель- более 200000 лиц грузинской националь-
ствуют, что абхазская сторона не выполни- ности.
ла обязательств, и, вместо разоружения, Резолюция, принятая почти через двад-
укрыла тяжелую технику и пополнила свои цать дней, несмотря на решительный тон,
ряды новыми силами. Грузинской же сто- продолжала соответствовать резолюциям,
роне удалось вернуть затворы от пушек и принятым на основании главы VI Устава
подвести технику лишь к концу боев, когда ООН “Мирные средства разрешения спо-
исход сражения был почти предрешен. ров”, т.е. рассматривала сепаратистский
Наблюдатели ООН не смогли, к сожа- режим как равноправную сторону в конф-
лению, проконтролировать процесс отво- ликте, без согласия которой не могло быть
да войск абхазской стороной и тем самым принято никакого решения в плане широко-
объективно содействовали сепаратистам масштабного урегулирования конфликта в
в их действиях по сокрытию оружия для Абхазии.
дальнейшего нападения. После сентября 1993 года на линии
Совет Безопасности ООН был вынуж- противостояния сторон установилось за-
ден резко прореагировать на случившееся, тишье. Несмотря на отсутствие каких-либо
заявив: миротворческих сил, стороны в конфликте
“будучи глубоко озабочен человечески- соблюдали обязательства по прекращению
ми страданиями, вызванными конфликтом огня, воздерживаясь от каких-либо дейс-
в регионе, и сообщениями об “этнической твий, могущих обострить обстановку, ибо
чистке” и других серьезных нарушениях реакция Совета Безопасности, в силу рез-
международного гуманитарного права, кости некоторых параграфов, все же насто-
полагая, что продолжение конфликта в рожила сепаратистов, заставила их трезво
Абхазии, Республика Грузия, создает угро- оценить ситуацию, настроение междуна-
зу миру и стабильности в регионе, родного сообщества государств, попытать-
1) подтверждает суверенитет и тер- ся закрепить достигнутый успех. Это дало
риториальную целостность Республики Совету Безопасности повод для поэтапного
Грузия; размещения дополнительных военных на-
2) вновь подтверждает свое реши- блюдателей ООН в количестве 50 человек,
тельное осуждение серьезного нару- в результате чего состав МООННГ соста-
шения абхазской стороной Соглашения вил 60 военных наблюдателей (13).
о прекращении огня, заключенного 27 По просьбе Грузии Генеральный Секре-
июля 1993 года Республикой Грузия и тарь ООН направил в Тбилиси своего спе-
силами в Абхазии, и последующих дейс- циального представителя для организации
твий в нарушение международного гу- встречи грузинской и абхазской сторон, а
манитарного права; также России и под председательством
3) осуждает также убийство Предсе- специального представителя Генерального
дателя Совета обороны и Совета Минис- Секретаря ООН.
тров Автономной Республики Абхазии; Эти встречи, известные как Женевские
4) призывает все государства не переговоры, завершились принятием пер-
допускать предоставления абхазской вого Меморандума о понимании между гру-
стороне, с их территории или лицами, зинской и абхазской сторонами, подписан-
находящимися под их юрисдикцией, лю- ным представителями грузинской и абхазс-
бой помощи, помимо гуманитарной, и в кой сторон и России 1 декабря 1993 года в
частности не допускать поставок любых Женеве.
видов оружия и боеприпасов…” (12). Была выделена группа экспертов во
Однако это было запоздалое решение, главе с известным швейцарским ученым
ибо еще 27 сентября прекратились бои, в Дж.Малинверни, которой было поручено
ходе которых, как было отмечено, сепара- выработать статус Абхазии.
тистам удалось захватить почти всю терри- В ходе встречи экспертов 15 и 16 де-
торию Абхазии, в результате чего погибло кабря в Москве абхазская сторона активно
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нию поэтапного процесса возвращения бе- Грузии государством. Поэтому все Женевс-
женцев и перемещенных лиц в Абхазию и в кие встречи заканчивались ничем и практи-
качестве первого этапа – в Гальский район. чески проходили в увещеваниях абхазской
Стороны примут необходимые меры для стороны согласиться на предлагаемые ус-
обеспечения безопасности беженцев, пере- ловия. Свою роль сыграла и внешне ней-
мещенных лиц и персонала, задействован- тральная, а на самом деле активно подде-
ного в этой операции. Абхазская сторона рживающая сепаратистов позиция россий-
несет первоочередную ответственность за ской делегации на переговорах.
прием и безопасность беженцев и переме- В резолюции 901 (1994) 4.03.94 Совет
щенных лиц, а также указанного персонала. Безопасности еще и еще раз “настоятель-
Кроме того, Стороны обращаются к ООН, но призывая стороны как можно скорее
Российской Федерации с просьбой оказать добиться существенного прогресса на
им содействие в создании безопасной об- пути к политическому урегулированию на
становки, способствующей возвращению основе принципов, изложенных в его пре-
беженцев и перемещенных лиц”. дыдущих резолюциях, с тем, чтобы Совет
Однако Совет Безопасности не смог Безопасности мог должным образом рас-
организовать посылку сил по поддержа- смотреть вопрос о возможном развер-
нию мира в Абхазию. Хотя резолюция 896 тывании сил по поддержанию мира в
(1994),311.01.94 и приняла к сведению опи- Абхазии, Республика Грузия…
санные Генеральным Секретарем ООН в 2) просит Генерального Секретаря пре-
его докладе (S/1994/8) варианты для воз- дставить Совету к 21 марта 1994 года до-
можного развертывания операции по под- клад о любом прогрессе, достигнутом на
держанию мира в Абхазии, Республика переговорах, и о положении на месте, уде-
Грузия”, и даже предпринять соответству- лив особое внимание обстоятельствам, ко-
ющие шаги, но при условии достижения торые могли бы послужить основанием
значительного прогресса на пути к поли- для развертывания сил по поддержанию
тическому урегулированию на следующем мира, и о формах создания таких сил;
раунде переговоров”, который был запла- 3) подчеркивает право всех бежен-
нирован на 22 февраля 1994 года. цев и перемещенных лиц на возвраще-
Тут же содержится еще несколько важ- ние в свои дома в безопасных условиях
ных положений: Совет Безопасности на всей территории Абхазии, Республика
“11) признает право всех беженцев и Грузия, и настоятельно призывает стороны
перемещенных лиц, пострадавших в ре- в скорейшем порядке достичь соглашения
зультате конфликта, на возвращение без с целью содействовать эффективному осу-
предварительных условий в места их ществлению этого права;
проживания в безопасных условиях, 4) настоятельно призывает также сто-
призывает стороны соблюдать обязательс- роны как можно скорее возобновить пере-
тва, которые они уже взяли на себя в этой говоры и достичь существенного прогресса
связи, и настоятельно призывает стороны на пути к политическому урегулированию,
в скорейшем порядке достичь соглашения, включая вопрос о политическом статусе
включая обязательный для выполнения Абхазии, при полном уважении сувере-
график, которое обеспечило бы быстрое нитета и территориальной целостности
возвращение этих беженцев и перемещен- Республики Грузия, на основе принципов,
ных лиц в безопасных условиях; изложенных в его предыдущих резолюци-
12) осуждает любые попытки изме- ях, с тем, чтобы Совет Безопасности мог
нить демографический состав Абхазии, должным образом рассмотреть вопрос
Республика Грузия, в том числе путем о возможном развертывании сил по
заселения ее лицами, ранее там не про- поддержанию мира в Абхазии, Респуб-
живавшими”. лика Грузия” (16).
Однако абхазская сторона продолжа- В этих условиях Грузия вынуждена
ла саботировать конструктивные решения была принять во внимание мнение между-
о статусе, объявляя себя не зависимым от народного сообщества государств и 4 апре-
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кто имеет влияние на стороны, содейство- Несмотря на то, что начался новый этап
вать такому итогу” (п. 6). Женевских встреч ответственных пред-
И после того, как еще раз стала извес- ставителей группы друзей Генерального
тна официальная позиция сепаратистов – Секретаря ООН, проводимых под руко-
даже не брать в руки этот документ, Совет водством ООН (февраль, июль 2003 г.),
Безопасности в резолюциях 1462(2003) прошли встречи президентов Грузии и
30.01.03 и 1494(2003) 30.07.03, по-прежне- России, где были намечены новые меры по
му считает возможным заявить, что целью активизации усилий по достижению полно-
документа является содействовать перего- масштабного урегулирования конфликта,
ворам между сторонами, под руководством ситуация в зоне конфликта не менялась:
ООН, по поводу статуса Абхазии в соста- вновь нарушались российской стороной
ве Государства Грузия, а не является по- наложенные на сепаратистов санкции,
пыткой навязать или диктовать сторонам особенно активничали руководители реги-
какое-либо конкретное решение (пп. 5 и 6 онов, действующих односторонне и неза-
соответственно); подчеркивается, “что пе- конно; вновь свободно функционировало
реговоры требуют уступок с обеих сторон” железнодорожное сообщение между Сочи
(пп. 6 и 7 соответственно). и Сухуми. Несмотря на обращение Грузии
Совет Безопасности в этих резолю- к Генеральной Ассамблее ООН, не ослабе-
циях всего лишь “глубоко сожалеет” по вал темп представления российского граж-
поводу, в частности, “постоянного от- данства населению Абхазии; продолжалось
каза абхазской стороны согласиться на приобретение российскими органами влас-
обсуждение по существу этого докумен- ти, физическими и юридическими лицами
та...” (пп. 7 и 5 соответственно). собственности, расположенной на террито-
Совершенно очевидно противоречие рии Абхазии, в том числе незаконное при-
между отдельными пунктами и в самих обретение собственности насильственно
пунктах – от грузинской и абхазской сторо- перемещенных лиц. Эти действия грубо на-
ны требовались уступки, хотя грузинская рушали международное право, суверенитет
сторона выступила за “документ Бодена”,
Грузии, ее законодательство, объявляющее
а вот абхазская сторона отказывалась вы-
недействительными любые сделки, заклю-
полнять рекомендацию Совета. А что это
ченные с сепаратистским режимом.
лишь рекомендация, свидетельствуют фра-
Одной из самых больших опасностей
зы в пункте 5, и прежде всего, указания на
представлял собой тот факт, что с “легко-
то, что цель этого документа – всего лишь
стью” выдаваемые российские паспорта
облегчить переговоры, а не попытка навя-
оказались в руках террористов, торговцев
зать или диктовать какое-либо конкретное
наркотиками и т.д., которые прочно осели
решение сторонам.
в неконтролируемой грузинским государс-
И вновь сепаратисты отказывались об-
твом зоне конфликта, населению которой
суждать данный документ, и он так и повис
предоставлен льготный въезд на террито-
в воздухе.
рию России и обратно.
Это тенденция продолжалась до авгус-
На каждом шагу власти России утве-
та 2008 года – Совет Безопасности прини-
рждали, что они “не допустят малейшего
мал резолюции, осуждавшие действия аб-
ущемления прав граждан России в Абхазии
хазских сепаратистов, препятствовавших
и Южной Осетии”.
расширению зоны действия полицейских
Совершенно очевидно, что международ-
сил ООН и ввведения их в Гальский район;
снова, и снова Совет Безопасности считал ное сообщество государств, и прежде всего
недопустимым насильственное изменение ООН, должны были найти новые средства,
демографической структуры, возникшей способные эффективно ответить на цинич-
входе конфликта, подтверждая неотчужда- ный вызов со стороны сепаратистов.
емые права всех изгнанных из зоны конф- Примечателен тот факт, что еще в июле
ликта вернуться в свои дома (32). 2008 года автор данной статьи писал:
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1
E/CN 4/194/123, E/CN 4/195/139, E/CN 4/196/146; S/194/225, S/195/200; E/CN
4/1997/132.
2
S/26725, 24 ноября 1993 года.
3
Встреча Глав государств и правительств государств участников ОБСЕ, 4-5
декабря 1994 года. “На пути к подлинному партнерству в новую эпоху”.
Будапешт, Решения, Региональные вопросы, “Грузия”, пункт 2, S/1994/1435,
приложение.
4
Декларация Лиссабонской встречи на высшем уровне”, пункт 20, 3 декабря
1996 года). (S/1997/57, приложение.
5
Отчет Миссии ОБСЕ в Грузии и персонала ООН в Тбилиси “О положении
с правами человека в Гальском районе Республики Грузия, о поездке в
Западную Грузию и Гальский район, контролируемые абхазами”, 19-21 апре-
ля 1996 г.
6
Декларация Стамбульского Саммита ОБСЕ, 1999, пар.17 (www.ocse.org).
7
S/RES/1036/(1996) 12.01.1996 и S/RES 1065/1996 12.07.1996.
8
S/RES/ 1096 (1997), 30.01.1997.
9
А/RES/62/249, 29.05.2008.
10
S/RES/ 849(1993), 09.07.93, п.2.
11
Сборник документов, касающихся вопроса урегулирования конфликта в
Абхазии, Грузия, принятых в период с 1992 по 1999 гг. UNDP, С.12-14. (Далее
“Сборник документов”).
12
S/RES/ 876 (1993), 19.10.03.
13
S/RES/ 892 (1993), 22.12.93.
14
Доклад о первой встрече группы экспертов, ответственных за подготовку
рекомендаций по политическому статусу Абхазии (Москва, 15-16 декабря
1993 г.), представленный проф.Дж.Малинверни председателю группы послу
Эдуарду Бруннеру, специальному представителю Генерального Секретаря
ООН по Грузии.
15
Сборник документов… стр.21-23.
16
S/RES/ 901 (1994), 4.03.94.
17
Заявления глав Государства и Правительства государств-участников СНГ от
15 апреля 1994 г. – “Сборник документов…”, стр.35-36.
18
“Сборник документов…” , стр.28-30.
19
S/RES/ 937 (1994), 21.07.94.
20
S/RES/ 1036 (1996), 02.01.96.
21
“Сборник документов…”, стр.59.
22
“Сборник документов…”, стр.77-79.
23
S/1997/57, приложение.
24
S/RES/ 1096 (1997), 30.1.97.
25
“Сборник документов…”, стр.88.
26
S/RES/ 1124 (1997), 31.07.1997.
27
“Сборник документов…”, стр.281-284.
28
S/RES/ 1187 (1998), 30.07.98.
29
“Сборник документов…”, стр.128-129.
30
См.выше, Декларация Стамбульского Саммита ОБСЕ, 1999, пар.17
(www.ocse.org).
31
S/RES 1393(2002), 31.01.2002.
32
S/RES 1615 (2005), S/RES 1656 (2006), резолюции 2007 года.
33
Основные принципы, определяющие статус Абхазии в составе нового госу-
дарственного устройства Грузии – S/1999/813 23.07.1999.
34
Levan Alexidze, Vital Role of OSCE in Condemnini Ethnic Cleansing of Georgian
Population in Abkhazia, Georgia, by the International Community. – Journal of
International Law, Tbilisi, 2008, #1, p.42-43.
100
LEVAN ALEXIDZE
At last, the secret of Polichinelle has be- separate this one if the ancient regions of Ge-
en disclosed – Russia revealed its face, which orgia from the country. Controlling 2/3 of the
had been hidden very carefully manner for territory of the autonomous republic, Georgia
many years, notwithstanding of perennial par- accepted mediation by the Russian Federati-
ticipation of its regular and irregular troops in on and on 3 September, 1992 in Moscow an
the conflict and endless financial and econo- agreement on ceasefire and separation of for-
mic support by the Moscow authorities rende- ces was signed.
red to the separatist authorities in Abkhazia, However, separatists breached the agre-
inalienable part of Georgia, recognized to be ement. In October 1992 by using thousands
such by the entire international community of of mercenaries, mainly from the Russian Fe-
states – UN, OSCE, EU, Council of Europe deration in addition to some fighters from the
and even the CIS. states of the Middle East, where Abkhazian
Under the pretense of a facilitator the Rus- Diaspora exists, as well as regular Russian
sian Federation did everything to prepare a di- troops dislocated in Abkhazia since the Soviet
rect annexation of Abkhazia. Having initiated era. The Georgian Governmental forces were
an aggressive war against Georgia in the so forced out and afterwards ethnical Georgian
called region of South Ossetia and Abkhazia population of Abkhazia was subjected to sava-
(Kodori Gorge) and consequently occupied ge treatment. As a result no ethnic Georgian
these regions, the Russian Federation recog- remained in the region. However, the ethnic
nized the independence of these “republics” Georgians constituted 46 percent of the popu-
and after ultimately entering in military agree- lation before the conflict. Later on, announced
ments with them, began to transform them into to be the terrorist number one Shamil Basaev,
the springboards of its armed forces violating exercised his terrorist practice as a Minister of
all the norms of international law. Defense of Abkhazia and became notorious
It is high time to once again make con- employing extreme cruelty towards Georgian
clusions about Georgia’s long-lasting struggle population with his so called “Abkhazian bat-
within the framework of the UN for restorati- talion”, composed of the ethnic Chechen fig-
on of its territorial integrity and the role of this hters.
organization in a full-scale settlement of this These forces, occupying districts of Ab-
conflict. khazia, Georgia step by step from 14 August,
1992 to 27 September, 1993, targeted ethnic
…
Georgians and first of all civilian population:
Approximately twenty years have passed politicians, teachers, doctors, writers, cultu-
since breking out a military insurgence by hos- ral workers. They were destroying Georgian
tile leaders of one of the regions of Georgia – architectural and archeological monuments,
Autonomous Republic of Abkhazia, in order to which could prove the inhabitance of ethnic
101
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
Georgians in Abkhazian region since the an- Rights, was tasked to determine in very short
cient times. term whether the reports of the Georgian side
Survivors, under the pressure of physi- were legitimate.
cal reprisal, were forced to leave their native In November the Mission presented its re-
places in Abkhazia, which was declared “Inde- port to the UN Secretary-General – this was
pendent State”. As a result more than 6 thou- the result of the work carried out by the Mis-
sand people, mostly civilian population were sion during 5 days in Abkhazia and 2 days in
killed, nearly 250 thousand Georgians were Tbilisi.
forced to escape blood freezing horrifying hu- Certainly, it was difficult for the Mission to
miliations, tortures, shootings. determine whether the accusations were rig-
Apart for ethnic Georgians, nearly 100 htful, as it was impossible to gather reliable in-
thousand persons of other ethnic origin esca- formation in depopulated, “liberated from the
ped from Abkhazia, including ethnic Russians, Georgians” Abkhazia.
Greeks, Armenians, Estonians. Even thou- Unfortunately, the Mission had no oppor-
sands of Abkhazians left native land, unwilling tunity to acquire detailed information from Ge-
to be the part of the Fascist Regime. Thus, in orgian refugees and displaced persons settled
1996 4/5 of the regions’ population was out of in the Western part of Georgia. However the
Abkhazia, Georgia borders. report presented to the UN Secretary-General
Continuing to deny the right of refugees was giving more or less accurate information
and internally displaced persons to freely re- apart from some inaccuracies related to histo-
turn to their places of origin under the agree- rical facts.2
ment of 1994, elaborated with the participation
Having noticed that human rights vio-
of the United Nations High Commissioner for
lations were committed by both parties, the
Refugees, separatists were feverishly popu-
Mission ascertained that infringements by
lating Abkhazia with mercenaries and other
the Abkhazian forces and their merce-
persons; aimed at changing the demographi-
naries, in territory where military opera-
cal situation in the region. Those, who dare to
tions were not conducted any more and
return into their native places in the district of
where there were only civilians, had the
Gali, were threatened, terrorized and in May
most mass and severe character (Paras.
1998 exiled again.
18,19,20,21,22,27,28,29,33-37,38, etc.).
All these events were reported systemati-
Understanding that in such a short visit
cally, in the form of Statements of the Republic
the Mission could not undertake the full-scale
of Georgia State Committee on Investigation
studying of a situation and extensive verificati-
of the Policy of Genocide and Ethnic Clean-
on of facts, it gave a following conclusion: “On
sing against the ethnic Georgian population of
the basis of the collected information the Mis-
Abkhazia, Georgia, were brought before the
international community. This included first of sion could not establish, whether the authoriti-
all the UN Security Council and the Human es of each of the parties have at any given mo-
Rights Commission.1 The same information had ment of time carried out the active, purposeful
been submitted to the OSCE and the CIS. policy to clear the areas which are under their
The following circumstances need certain control, either from Abkhazian, or from ethnic
attention. Georgian population. Only the further careful
Initially, in autumn 1993, just after the ce- investigation and evaluation will allow estab-
asefire agreement was reached, on the requ- lishing the convincing image of the correspon-
est of the Georgian Government, the UN Sec- ding facts” (ibid, para 52).
retary-General sent a fact-finding mission to However, this was exactly what was never
investigate serious violations of international done afterwards, and that had negative influ-
humanitarian law, including reports on “ethnic ence on the overall process of regulation of
cleansing”. the conflict in Abkhazia, Georgia.
The Mission, composed of three represen- Summits of the OSCE and reports of its
tatives of the United Nations Centre for Human mission to Georgia were even harsher:
102
L. ALEXIDZE, THE FAILURE OF THE UN SECURITY COUNCIL IN SETTLEMENT OF THE CONFLICT IN ABKHAZIA, GEORGIA ...
“We (the OSCE participant states) ex- tists on 23 November which, inter alia, provi-
press deep concern over “ethnic cleansing”, des for the following: “European Parliamentp
the massive expulsion of people, predomi- is deeply concerned about the great number
nantly Georgian, from their living areas and of refugees from Abkhazia living in Georgia,
the deaths of large numbers of innocent civi- and deeply concerned about the continuing
lians”.3 process of ethnic cleansing in the Abkhaz
“We (the OSCE participant states) con- regionp
demn the “ethnic cleansing” resulting in …2. Stresses that a final peaceful soluti-
mass destruction and forcible expulsion on to the conflict in Abkhazia should be based
of predominantly Georgian population in on a comprehensive political settlement, res-
Abkhazia. Destructive acts of separatists, in- pecting the sovereignty and territorial integrity
cluding obstruction of the return of refugees of Georgia within its internationally recognized
and displaced persons.., undermine the posi- borders.
tive efforts undertaken to promote political set- …3. Stresses that elections can only
tlement of this conflict”.4 be held in Abkhazia after the determination
“The Abkhazian authorities continue re- through negotiations of the political status of
alization of a policy of the violent ethnic Abkhazia and with the guaranteed possibility
cleansing, aimed to prevent considerable re- of full participation for all refugees and displa-
patriation in the district of Gali, or in any ot- ced persons”.
her place in Abkhazia. Applied tactics varies On 30 January 1997 the UN Security Co-
from simply oral intimidations and short- uncil “Recall[ed] the conclusions of the Lisbon
term arrests before murders... Some most Summit of the OSCE regarding the situation in
terrible atrocities, apparently, have been Abkhazia, Georgia, and reaffirm[ed] the unac-
made by order from Sukhumi...”.5 ceptability of the demographic changes resul-
In November 1999, in the declaration ting from the conflict (Para. 9). The Security
adopted at the OSCE Istanbul Summit, partici- Council reiterated its demand that the Abk-
pant states reiterated their strong condemna- haz side accelerate significantly the pro-
tion of the “ethnic cleansing”, as formulated in cess of voluntary return of refugees and
the Documents of Budapest and Lisbon Sum- displaced persons without delay or pre-
mits, resulting in mass destruction and forcible conditionsp” (Para. 11). 8
expulsion of predominantly Georgian popula- However, insufficient action and reacti-
tion in Abkhazia, Georgia, and of the acts of on of the international community on events
violence committed against returnees to Gali in Abkhazia, Georgia, and sabotage by the
Region in May 1998 aimed at frightening tho- separatists of recommendations of the UN
se wishing to return therein6 Security Council and OSCE on a constructi-
The UN Security Council shared this po- ve approach to development of the political
sition and permanently was “recalling the con- status of Abkhazia: “as a part of the State of
clusions” of the Budapest Summit of the Con- Georgia within the limits of its internationally
ference on Security and Cooperation in Europe recognized borders”, have induced the autho-
regarding the situation in Abkhazia, Georgia, rities in Sukhumi to attempt to legalize results
and “declare[ed] unacceptability of demograp- of “ethnic cleansing”. Ignoring opinion of the
hic changes in result of the conflict”.7 UN Security Council, European Parliament
The Council of the Heads of the Member- and OSCE, separatists organized so-called
States of the CIS also supported conclusions elections of parliament in the depopulated ter-
of the Budapest meeting, having quoted the ritory of Abkhazia (out of 540,000 only about
above-stated position in Minsk, in the State- 150,000 inhabitants remaining) on 23 Novem-
ment of the Council of Heads of the States and ber 1996.
Government of CIS on 26 May 1995. This political mockery was stamped by
On 14 November 1996 European Parli- the international community as illegal.
ament adopted the resolution in relation with Some while ago, in May 2008 the UN
the elections appointed by Abkhazian separa- General Assembly adopted a Resolution. In
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saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
this Resolution first time ever within the UN it tion from 29 July 1993. The sides shall agree
was directly stressed that General Assembly the composition and personnel of the groups.
“recalling all relevant Security Council resolu- Interim monitoring groups shall obser-
tions, and noting the conclusions of the Bu- ve cease-fire regime. They will be dislo-
dapest (1994), Lisbon (1996) and Istanbul cated in Sukhumi, Gulripshi, Ochamchire,
(1999) summits of the OSCE, in particular the Gudauta, Novi Afon, Tkvarcheli, Gagra and
reports of “ethnic cleansing” and other serio- Gali.
us violations of international humanitarian law And if necessary, upon agreement of the
in Abkhazia, GeorgiapEmphasizes the impor- sides, such groups will be dislocated in other
tance of preserving the property rights of re- places as well. The monitoring groups are aut-
fugees and internally displaced persons from horized to enter any place of the conflict of
Abkhazia, Georgia, including victims of “ethnic their interest after informing the sides about
cleansing”.9 their intention. The conflicting sides shall se-
As clearly appears from the above cited, cure protection of monitoring groups and pro-
the international community of states unequi- vide them with adequate living conditions and
vocally recognized that the Abkhazian separa- means of transportation”.
tists conducted and are still conducting, in the Establishment of the Joint Commission,
territory under their effective control “ethnic with the UN and the OSCE representatives,
cleansing”, using the most inhumane methods on the settlement of situation in Abkhazia was
that lead to mass killing and violent exile of also envisaged.
the ethnic Georgian population, constituting “5. The sides shall consider necessity of
almost half of the population of Abkhazia be- inviting international observers and peaceke-
fore the conflict. epers to the conflict zone. The number and
The UN Security Council got involved in structure of peacekeeping forces will be defi-
the conflict settlement in Abkhazia, Georgia, ned only after consultations with the UN Sec-
at a later stage – in July 1993 when, following retary general and Security Council, provided
the request of Georgia, the Security Council the parties agree.
undertook a number of actions. The Security 6. Stepwise demilitarization of the con-
Council called parties to the conflict to end flict is commenced”.
military actions and requested the Secretary- Immediate delivery of international obser-
General to begin immediately the necessary vers was carried out and in 10-15 days after
preparations for sending a team of 50 military cease-fire was in force, the Georgian military
observers to Abkhazia “once the cease-fire is formation shall be withdrawn from the territory
implemented”.10 of Abkhazia.
On 27 July 1993 an Agreement on Cease- Concurrently all armed formations, gro-
fire and the Mechanism of its Implementation ups and individuals shall be withdrawn from
in Abkhazia was reached in Sochi . The follo- the conflict zone.
wing provisions shall be mentioned from the In accordance with the Moscow Final Do-
agreement: cument signed on 3 September 1992, the Unit
“1. Usage of aviation, artillery, navigation of Interior Forces of Georgia shall be created
and other military equipment is strictly prohi- from the local population in the conflict zone
bited. accommodated in barracks. Later on this unit
The additional forces shall not be dispat- will be included in the multinational internal
ched to the conflict zone (on the territory of troops of Abkhazia.
Abkhazia); the mobilization shall not be an- Armed formations of Abkhazia were in-
nounced; military equipment and ammunition cluded in the Regiment of Interior Troops that
shall not be delivered without agreement, as exercised the barracks regime of operation
well as the construction of objects for military and perform the function of internal troops un-
infrastructure. til comprehensive settlement of the conflict
2. Georgian-Abkhaz-Russian interim mo- (Protection of rail and motor routes, important
nitoring groups (3-9 people) shall start opera- objects).
104
L. ALEXIDZE, THE FAILURE OF THE UN SECURITY COUNCIL IN SETTLEMENT OF THE CONFLICT IN ABKHAZIA, GEORGIA ...
All of these activities were carried out un- However, despite the fact that Georgian
der the strict control of the Joint Commission. side withdrew heavy machinery out of Abkha-
The international observers are deplo- zia and transferred its shutters of artillery to
yed on the rivers Gumista, Psou and Inguri. the UN observers and Russia, the Abkhazian
The international peacekeeping forces separatists and their allies bean mass attack
will be used to observe cease-fire and pro- on Sukhumi on 16 September 1993. The Ge-
tect public safety, as well as the Russian orgian army actually barehanded tried to stop
military contingent temporarily located in the opposing party comprised of the Abkhaz
the zone of the conflict, upon the consulta- insurgents, the armed groups of Chechens
tions with the United Nations. led by Bassayev, and the selected groups of
The sides to the conflict shall secure pro- the “former” soldiers and officers of the Russi-
tection of multi ethnic population. an army and special troops, supported by air
The measures for returning of refugees to strikes from planes SU-25 and SU-27, opera-
the places of their permanent residence will be ted by pilots belonging to the Armed forces of
carried out. Russia, as confirmed by the documents found
In order to solve the problems relating to with the pilot from the crashed plane SU-27,
the refugees the Joint Commission shall set was bombing Sukhumi and other civilian tar-
up special groups. gets. The Georgian side managed to return
7. Russian military troops temporary shutters from arms and to bring techniques
deployed on the territory of Abkhazia keep only by the end of fights when the outcome of
the strict neutrality. the battle was almost predetermined.
The status of temporary presence, functi-
Unfortunately, the UN observers did not
oning conditions, duration and specifications
supervise process of withdrawal of troops and
for withdrawal of the military forces and bor-
weapons by the Abkhazian side and involunta-
derguards of the Russian Federation shall be
rily let separatists to hide the weapon and use
specified in the agreements.
it for the attacks in future.
The parties shall secure protection of Rus-
The UN Security Council was called. It re-
sian military servicemen and their families”.11
acted against the happened by declaring the
On 6 August 1993 the UN Security Coun-
following:
cil decided that “an advanced team of up to
“[The Security Council,] p[d]eeply concer-
ten United Nations military observers be dep-
ned at the human suffering caused by conflict
loyed to the region as soon as possible to be-
in the region, and at reports of “ethnic clean-
gin to help verify compliance with the cease-fi-
sing” and other serious violations of internatio-
re as envisaged in the cease-fire agreement,
nal humanitarian law,
the mandate of the team to expire within the
three month and contemplates that this ad- Determining that continuation of the con-
vance team will be incorporated into a United flict in Abkhazia, Republic of Georgia, threa-
Nations observer mission if such a mission is tens peace and stability in the region,
formally established by the Council”(Resoluti- 1) Affirms the sovereignty and territori-
on 854 (1993). al integrity of the Republic of Georgia;
Soon the UN Secretary-General sent 5 mi- 2) Reaffirms its strong condemnation
litary observers comprising the first UNOMIG of the grave violation by the Abkhaz side
with the following interim mandate: of the cease-fire agreement of 27 July 1993
“a) to maintain contacts with both sides between the Republic of Georgia and for-
to the conflict and military contingents of the ces in Abkhazia, and subsequent actions
Russian Federation; in violation of international humanitarian
b) to monitor the situation and report to law;
headquarters, with particular reference to any 3) Condemns also the killing of the
developments relevant to the efforts of the Chairman of the Defense Council and Co-
United Nations to promote a comprehensive uncil of Ministers of the Autonomous Re-
political settlement”. public of Abkhazia;
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106
L. ALEXIDZE, THE FAILURE OF THE UN SECURITY COUNCIL IN SETTLEMENT OF THE CONFLICT IN ABKHAZIA, GEORGIA ...
at its forthcoming consideration of the ac- security of the refugees and also of the abo-
tivities of the United Nations Observer Mis- ve-mentioned personnel. Moreover, the UN
sion in Georgia (UNOMIG) for an approp- and the Russian Federation call upon to ren-
riate expansion of its mandate, inter alia, der them assistance in creating a safe envi-
to entrust it with control of the non-resum- ronment conduct to the return of refugees and
ption of hostilities in the zone of conflict. displaced persons”.
The parties continued to favour the deploy- The UN SC could not organize to send
ment in the conflict zone of the UN peace- peacekeeping forces to Abkhazia. However,
keeping forces or other forces authorized UN SC Resolution 896 has taken into account
by the United Nations. They expressed the- the reports of the Secretary-General concer-
ir mutual consent to the use of a Russian ning the ways of possible peacekeeping ope-
military contingent as part of such forces. rations in Abkhazia, Republic of Georgia, and
Within five days after deployment in the even agreed to make some steps in this direc-
zone of conflict, in accordance with a deci- tion if these would be a significant progress in
sion of the UN Security Council, of an addi- finding ways for political settlement at the next
tional number of international observers and round of negotiations in Geneva on 22 Febru-
following the arrival of peacekeeping forces ary, 1994, the Security Council couldn’t mana-
the Parties shall carry out the withdrawal of ge to send any peacekeeping forces.
all armed units, with their weapons and mili- The very Resolution contains some ex-
tary equipment, from the Inguri River and ot- ceptionally important statements:
her possible lines of active confrontation in the “The UN Security Council,
conflict zone to a distance to be determined
…
by the officers commanding the peacekeeping
forces and UNOMIG, with the agreement of 11) recognizes the right of all refugees
the parties. Simultaneously, international ob- and displaced persons effected by the conflict
servers and peacekeeping forces will enter to return, without preconditions, to their
the areas thus formed. homes in the secure conditions, calls upon
There shall be complete disarmament the parties to honour the commitments they
and withdrawal of all kinds of volunteer units have already made in this regard, and urges
and individuals participating in the conflict. the parties to come to an expeditious agree-
Inspections by international observers are ment, including a binding timetable, that would
permitted at crossing points on the Psou assure the rapid return of these refugees and
River. displaced persons in secure conditions;
The Parties appeal to the Security Co- 12) Condemns any attempts to change
uncil for an intensification of the international the demographic composition of Abkhazia,
civilian presence in the conflict zone and for Republic of Georgia, including by repopu-
this purpose it would be necessary to deploy lating it with persons not previously resi-
appropriate civilian experts who will assist in dent there”.
resolving the problems of refugees and other However, the Abkhazian party continu-
humanitarian issues”.15 ed to sabotage constructive decisions on the
The following statement shall be cited status, declaring itself independent from Ge-
from the Communiqué: orgia. Therefore, all Geneva meetings, having
The Parties agreed to begin on 10 Feb- Abkhazian side considering the offered con-
ruary, 1994, the implementation of the pha- ditions, came to an end without results. The
sed process of the return of the refugees and notorious influence was made by the Russian
displaced persons to Abkhazia, and as first side, who though formally declared neutral
step to the Gali region. The Parties will take actively supported the Abkhazian side during
necessary measures to ensure the safety of the negotiations.
refugees, displaced persons and personnelin- In Resolution 901 the UN Security Council
volved in this operation. The Abkhaz side has “Urging the parties to achieve as soon as pos-
the primary responsibility for the reception and sible substantive progress towards a political
107
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
settlement based on its principles set out in its right of filtration and sabotage of process of
previous resolutions so that the Security Co- returning of refugees and internally displaced
uncil may adequately consider the possible persons. It will suffice to mention that until the
establishment of a peace-keeping force in present time only 311 persons have officially
Abkhazia, Republic of Georgiap. returned within the frame of the quadrilateral
2) Requests the Secretary-General to agreement (There are tens of thousands re-
report to the Council by 21 March 1994 on turness back to their places of origin at their
whatever progress has been made in the ne- own risk).
gotiations and on the situation on the ground, The UN Security Council, while welcoming
with special attention to circumstances which these documents, was still postponing dispat-
might warrant a peace-keeping force and ching the peacekeepersin Abkhazia, Georgia.
on the modalities for such a force; On 15 April, 1994, the Council of the CIS
3) Stresses the right of all refugees and Heads of States adopted a statement, highlig-
displaced persons to return to their homes hting the following:
in secure conditions, throughout Abkha- “In the documents, which were adopted in
zia, Republic of Georgia, and urges the par- the process of negotiations on settlement of
ties to come to an expeditious agreement with the Georgian-Abkhaz conflict under the auspi-
a view to facilitating the effective realization of ces of the UN and facilitation of Russia, star-
this right; ting from December of the last year, are in-
4) Urges also the parties to resume the cluded appeals to the UN Security Council on
negotiations as soon as possible and to ac- the immediate commencing of peacekeeping
hieve substantive progress towards a political operations (PKO) with inclusion into the UN
settlement, including on the political status of peacekeeping forces of the Russian troops.
Abkhazia, respecting fully the sovereignty and Realization of this operation shall facilitate the
territorial integrity of the Republic of Georgia, settlement of the most acute problem – secure
based on the principles set out in its previous return of tens of thousands of refugees to their
resolutions, so that the Security Council may native places. But the decision on implemen-
adequately consider the possible establis- tation of the PKO is not so far adopted.
hment of a peace-keeping force in Abkha- The situation in the conflict zone needs
zia, Republic of Georgia”.16 immediate actions. It is inadmissible to delay
In these circumstances Georgia had to the deployment of the peacekeeping forces
take into consideration an opinion of the inter- therein.
national community and to accept the State- Confirming its endeavors for immedi-
ment for measures on political settlement of ate solution of refugees’ problems, protec-
the Georgian-Abkhazian conflict and conse- tion of human rights and national minori-
quently sign the Quadrilateral Agreement on ties, principal of territorial integrity of the
Voluntary Return of Refugees and Displaced Republic of Georgia and guaranteeing the
Persons at a meeting in Moscow in the format statehood of Abkhazia, the countries of
of the Geneva negotiating process together the Commonwealth of Independent States
with the Abkhaz side, with the presence of rep- – members of the agreement on collecti-
resentatives of Russia, the UN and OSCE, on ve security – appeal to the Security Coun-
4 April, 1994. The signed Agreement, despite cil of the UN to adopt immediate decision
a number of accepted compromises made first on conducting peacekeeping operation in
of all by the Georgian side, could have led to Abkhazia.
mass return of exiled persons and to the be- The Council of the Heads of States ex-
ginning of a meaningful dialogue on the status presses readiness in case, if for some re-
of Abkhazia. ason such decision is not approved in the
From the very first days after the signatu- nearest future, in compliance with the prin-
re however it became clear that the Abkhaz si- ciples and the essence of the agreement,
de interpreted the documents unilaterally and meant to provide for peaceful and secure
tried to prove both the independence, and its development of the member-states, with
108
L. ALEXIDZE, THE FAILURE OF THE UN SECURITY COUNCIL IN SETTLEMENT OF THE CONFLICT IN ABKHAZIA, GEORGIA ...
agreement of the sides in the conflict to in- comprehensive political settlementp” “Deman-
troduce to the conflict zone the peacekee- d[ed] that the Abkhaz side accelerate sig-
ping Forces, composed of the armed units nificantly the process of voluntary return
of the interested parties to the treaty. of refugees and displaced persons by ac-
We appeal to all the member states of the cepting a timetable on the basis of that propo-
Commonwealth of Independent States with a sed by the Office of the United Nations High
call to participate in the peacekeeping mission Commissioner for Refugees, and further de-
in the zone of the Georgian-Abkhaz conflict. mand[ed] that it guarantee the safety of spon-
All the actions of the CIS member states, taneous returnees already in the area and
parties to the Agreement on Collective Secu- regularize their status in accordance with the
rity – shall be combined with the supportive Quadripartite Agreements”.20
actions of the UN and the OSCE. The positive By recalling the fact that in the pream-
role might have been played by the interna- ble of the resolution the UN Security Co-
tional observers who were already deployed uncil expresses deep concern about “the
in Abkhazia under the decision of the UN SC continued obstruction of such return by
and their close cooperation with the command the Abkhaz authorities” and recalls the
of the peacekeeping forces. We would also “conclusions of the Budapest summit of
welcome the readiness of the UN to sup- the Conference on Security and Coopera-
port such peacekeeping operation by addi- tion in Europe (S/1994/1435, annex) regar-
tional contingent”.17 ding the situation in Abkhazia, Georgia”,
Te situation was progressively aggrava- the negative assessment of separatists’
ting. actions by the Security Council becomes
On 14 May, 1994, the Agreement on Cea- obvious.
se-fire and Separation of forces was signed in However, subsequently only little has
Moscow. The Georgian and Abkhaz sides the- changed – the Abkhaz side was continuously
rein reaffirmed their commitment to the “non refusing to discuss the status of Abkhazia,
use of force”. The creation 12 meters safety suggesting that it was already recognized as
zones and also zones of restriction of arms on an “independent republic of Abkhazia”, and
the both sides of the Inguri river was agreed. was refusing to negotiate on returning of ex-
Peacekeeping forces of the CIS tasked to co- pelled persons until the full-scale settlement of
operate closely with the UNOMIG entered the- the conflict.
se zones to provide patrolling and monitoring On 26 May, 1995, the Summit of the CIS
over the fulfillment of the parties’ obligations. in Minsk made a statement on the conflict in
At that time the UNOMIG consisted of about Abkhazia, Republic of Georgia, which reads
200 observers and support personnel. as follows:
It should be mentioned that the Protocol at- “More than a year and a half has passed
tached to this Agreement emphasizes that the since the process of full-scale settlement of
peacekeeping forces and “its presence should the armed conflict in Abkhazia, the Republic
promote a safe return of refugees and displa- of Georgia had started. Despite the peaceke-
ced persons, especially to the Gali region”.18 eping efforts of Russia and the CIS in general
The UN Security Council welcomed the and also the UN and the OSCE, this process
above-mentioned and stressed again that is far from the settlement.
“this progress would allow the Council to The conflict has caused the death of tho-
reconsider the possible establishment of a usands of mainly civilian population. Over
peace-keeping force in Abkhazia, Republic 300,000 people were forced to leave their
of Georgia”.19 permanent places of residence. Nearly entire
At the same time the UN Security Coun- ethnic Georgian population which constituted
cil reaffirmed the importance of decision of all 47% of population of Abkhazia appeared out-
refugees and “call[ed] upon the parties, in par- side it.
ticular the Abkhaz side, to achieve substan- The Budapest Summit of the OSCE ex-
tive progress without further delay towards a pressed a deep concern in relation with the
109
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
110
L. ALEXIDZE, THE FAILURE OF THE UN SECURITY COUNCIL IN SETTLEMENT OF THE CONFLICT IN ABKHAZIA, GEORGIA ...
“… Noting with deep concern the continu- demns the continued obstruction of that re-
ed failure by the parties to resolve their diffe- turn, and stresses the unacceptability of
rences due to the uncompromising positi- any linkage of the return of refugees and
on taken by the Abkhaz side, and underli- displaced persons with the question of the
ning the necessity for the parties to intensify political status of Abkhazia, Georgia;
without delay their efforts, under the auspices …
of the United Nations and with the assistan-
9. Recalls the conclusions of the Lis-
ce of the Russian Federation as facilitator, to
bon summit of the OSCE (S/1997/57, an-
achieve an early and comprehensive political
nex) regarding the situation in Abkhazia,
settlement of the conflict, including on the poli-
Georgia, and reaffirms the unacceptabi-
tical status of Abkhazia within the State of Ge-
lity of the demographic changes resulting
orgia, which fully respects the sovereignty and
from the conflict;
territorial integrity of Georgia;
Noting with concern resent frequent viola- …
tions on both sides of the Moscow Agreement 10. Reiterates its condemnation of kil-
of 14 May 1994 on a Cease-fire and Separati- lings, particularly those ethnically motiva-
on of Forces (S/1994/583, annex I) (the Mos- ted and other ethnically related acts of vi-
cow Agreement), as well as acts of violence olence;
organized by armed groups operating from so- …
uth of the Inguri River and beyond the control
11. Reiterates its demand that the Abk-
of the Government of Georgia;
haz side accelerate significantly the process
… of voluntary return of refugees and displaced
3. Reaffirms its commitment to the so- persons without delay or preconditions, in par-
vereignty and territorial integrity of Geor- ticular by accepting a timetable on the basis of
gia, within its internationally recognized that proposed by the Office of the United Na-
borders, and to the necessity of defining tions High Commissioner for Refugees (UN-
the status of Abkhazia in strict accordan- HCR), and further demands that it guarantee
ce with these principles, and underlines the safety of spontaneous returnees already
the unacceptability of any action by the in the area and regularize their status in coo-
Abkhaz Leadership in contravention of the peration with UNHCR and in accordance with
principles, in particular the holding on 23 the Quadripartite Agreement, in particular in
November 1996 and 7 December 1996 of the Gali region;24
illegitimate and self-styled parliamentary On 28 March, 1997, the CIS Summit in its
elections in Abkhazia, Georgia; decision “on Implementation of the Measures
… for Conflict Settlement in Abkhazia, Georgia,
6. Calls upon the parties, in particular the stated:
Abkhaz side, to achieve substantive progress “… Confirming its commitment to the so-
without further delay towards a comprehensi- vereignty and territorial integrity of Georgia,
ve political settlement, and further calls upon Taking note of the Declaration of Lisbon
them to cooperate fully with the efforts under- Summit of the Heads of OSCE member-sta-
taken by the Secretary-General, with the assis- tes (December 1996) condemning the “ethnic
tance of the Russian Federation as facilitator; cleansing” resulting in mass destruction and
forcible expulsion of predominantly Georgian
…
population in Abkhazia”, as well as obstruction
8. Reaffirms the right of all refugees and to the return of refugees and displaced per-
displaced persons affected by the conflict to sons,
return to their homes in secure conditions in Being guided by the provisions of the “Me-
accordance with international law and as set morandum on Peacekeeping and Stability in
out in the Quadripartite Agreement of 4 April the Commonwealth of Independent States” (Al-
1994 on voluntary return of refugees and dis- maty, 10 February, 1995) and Declaration of the
placed persons (S/1994/397, annex II), con- Council of the Heads of States of the Common-
111
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
wealth of Independent States (Minsk 26 May, vated, and other ethnically related acts of
1995) on elimination of separatism as the most violence;
important prerequisite for stability in the Cauca- 11. Reaffirm[ed] the right of all refugees
sus and regulation of conflicts in this region, and displaced persons affected by the conflict
Condemning the position of the Abkhaz to return to their homes in secure conditions in
side blocking the reaching the mutually ac- accordance with international law and as set
ceptable agreement on political regulation out in the Quadripartite Agreement of 4 April
of the conflict in Abkhazia, Georgia, and re- 1994 on voluntary return of refugees and dis-
turn of refugees and displaced persons to placed persons (S/1994/397, annex II), con-
the places of their permanent residence, demn[ed] the continued obstruction of that
Noting that the measures undertaken pur- return, and stresses the unacceptability of
suant to the Decision of 19 January, 1996, on any linkage of the return of refugees and
conflict settlement in Abkhazia, Georgia, have displaced persons with the question of the
considerably encouraged the process of ne- political status of Abkhazia, Georgia;
gotiations”.25 12. Reiterat[ed] its demand that the Abk-
On 31 July, 1997, the UN Security Council: haz side accelerate Significantly the process
“…3. Reaffirm[ed] its commitment to the of voluntary return of refugees and displaced
sovereignty and territorial integrity of Georgia, persons without delay or preconditions, in par-
within its internationally recognized borders, ticular by accepting a timetable on the basis of
and to the necessity of defining the status of that proposed by the Office of the United Na-
Abkhazia in strict accordance with these prin- tions High Commissioner for Refugees (UNH-
ciples, and underlines the unacceptability CR), and further demand[ed] that it guarantee
of any action by the Abkhaz leadership in the safety of spontaneous returnees already
contravention of these principles; in the area and regularize their status in coo-
peration with UNHCR and in accordance with
…
the Quadripartite Agreement, in particular in
6. Not[ed] the Addendum to the Report of the Gali region”.26
the Secretary-General, supports the intention The Abkhaz side, persuading its destruc-
of the Special Representative of the Secretar- tive policy, abandoned the Geneva negotiating
y-General to resume the adjourned meeting in process and returned to negotiations only in
September, and call[ed] upon in particular the July 1997; however it again obstracted a pos-
Abkhaz side to engage constructively at this sibility of a constructive dialogue. The Abkhaz
resumed meeting; side did object the granting the Group of Fri-
7. Stress[ed] that the primary responsibi- ends of the Secretary-General the right to offi-
lity for reinvigorating the peace process rests cially participate in negotiations.
upon the parties themselves, call[ed] upon The Group of Friends – the United Sta-
them, to achieve substantive progress without tes of America, France, Germany, the United
further delay towards a comprehensive politi- Kingdom (Russia, the member of the group,
cal settlement, and further calls upon them to participated as a “facilitator” from the very out-
cooperate fully with the efforts undertaken by set) – were actively trying to contribute to the
the Secretary-General and his Special Repre- full-scale settlement of the conflict. However,
sentative, with the assistance of the Russian the Group was officially deprived of its right to
Federation as facilitator; participate in the Geneva negotiations. Never-
9. Recall[ed] the conclusions of the Lis- theless, on 17-19 November, 1997, the Gene-
bon summit of the OSCE (S/1997/57, annex) va negotiating process was resumed betwe-
regarding the situation in Abkhazia, Georgia, en the Georgian and Abkhaz sides under the
and reaffirm[ed] the unacceptability of the auspices of the Special Representative of the
demographic changes resulting from the Secretary-General for Georgia. The Russian
conflict; Federation participated as a facilitator, along
10. Reiterat[ed] its condemnation of with OSCE. The status of the states of the
killings, particularly those ethnically moti- Group of Friends of the UN Secretary-General
112
L. ALEXIDZE, THE FAILURE OF THE UN SECURITY COUNCIL IN SETTLEMENT OF THE CONFLICT IN ABKHAZIA, GEORGIA ...
was agreed at the meeting. Despite the oppo- wards the comprehensive settlement in the
sition of the Abkhaz side blaming the Group conflict zonep
of Friends in the predisposition and pro-Geor- Decided:
gian positions finally an agreement was reac- …
hed, as stated in the “Final Statement on the
“2. To consider inadmissible further de-
Results of the Resumed Meeting between the
lay of the organized return of refugees and
Georgian and Abkhaz sides”. The document
displaced persons to the entire territory of
was granting the Group of Friends a status
Abkhazia and to accomplish their return to
similar to the status of other observers. The
the Gali region (within the old lines) before the
document provided that: “they [the Group of
end of 1998 on the basis of the mechanisms
Friends] may participate in meetings and ses-
elaborated by representatives of the sides, the
sions, make statements and proposals on va-
Russian Federation and UNHCR,
rious aspects of the peace process, including
Actions for the economic recovery of the
a political settlement. They are not the sides
region and the regulation of the border and
to the negotiations and shall not be invited to
customs regimes should only be taken in im-
sign documents agreed upon by the sides du-
mediate, direct connection with the process of
ring the negotiations”.
the steady, organized return of refugees and
The enduring disruptive position of the se-
displaced persons, first of all to the Gali district
paratists made the CIS to fix even stricter po-
(within the old borders).
sition. In its decision on additional measures
To strongly recommend to the sides to
for the conflict settlement in Abkhazia, Geor-
the conflict to consider and resolve the qu-
gia, signed on 28 April, 1998, the Council of
estion of the establishment, at the stage of
the Heads of States of CIS:
the return of refugees and the full normali-
“… Being guided by the provisions set out
zation of life in the Gali district (within the
in the “Memorandum on Peacekeeping and
old borders), of a temporary transitional
Stability in The Commonwealth of Independent
administration, which would work with the
States” (Almaty, 10 February, 1995) on Elimi-
direct participation of the intermediaries,
nation of the Threat of Separatism as Impor-
the United Nations and OSCE;
tant Precondition to Stability and Conflicts’
settlement in the Region, Reaffirming all its …
previous decisions, in particular of 19 Ja- 4. To express deep concern due to the
nuary, 1996, and of 28 March, 1997, aimed at fact that the provisions of the decision of the
achieving the comprehensive settlement of the Council of Heads of State of the Commonwe-
conflict in Abkhazia, Georgia, and stressing the alth of 28 March, 1997, concerning the expan-
necessity of their implementation, sion of the security zone have remained unim-
Once again expressing serious concern plemented.
that due to the failure of the implementation of To call upon the Abkhaz side to revert
previous decisions made within the framework to this question, consider it and resolve it
of the Commonwealth no process of organi- positively.
zed return of refugees has commenced, In case of opposition to the return of
Noting with concern that due to the ob- refugees and the emergence of a threat to
structive approach of the Abkhaz side, the peace and security in the region, to con-
negotiations on determining the political sider the introduction of appropriate chan-
status of Abkhazia, Georgia, are frozen, ges in the nature and content of the peace-
Deeply concerned about the holding keeping operation on the basis of the rele-
election of so-called local self-governance in vant provisions of the UN Charter.
Abkhazia, Georgia, that cannot be recogni- 5. The Council of Heads of State of the
zed legitimate against the background of Commonwealth calls upon the Member Sta-
undefined status of Abkhazia, unresolved tes of the Commonwealth of Independent Sta-
problems of the return of refugees and tes, signatories to the decisions on the dep-
displaced persons causing the tension to- loyment of Collective Peacekeeping Forces
113
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
(hereinafter – CPF) in the Georgian-Abkhaz The Georgian side has considered that
conflict zone and on determining the mandate these actions constituted a new wave of ethnic
for the peacekeeping operation in the Georgi- cleansing against the ethnic Georgian popula-
an-Abkhaz conflict zone to take a more active tion of Abkhazia.
part in the peacekeeping operation together On 30 July, 1998, the UN Security Council
with the Russian Federation, at present bea- in principle agreed with this opinion:
ring the whole burden of this operationp The Security Council:
7. To consider it essential to approach “… 3) Express[ed] its deep concern at the
the UN to include into the UN Observer Mis- significant outflow of refugees resulting from
sion in Georgia of a group of observers from the recent hostilitiesp demand[ed] in particu-
the Members States of the Commonwealth of lar that the Abkhaz side allow the uncondi-
Independent Statesp”.27 tional and immediate return of all persons
In the above cited decision, not only displaced since the resumption of hostilities in
the provisions sharply condemning positi- May 1998;
on of the Abkhaz side (stated in a preamble 4) Condemn[ed] the deliberate destruc-
and paragraphs 2 and 4 of the decision) at- tion of houses by Abkhaz forces, with the
tracts attention, but also a risk to address apparent motive of expelling people from
to the chapter VII of the UN Charter. Even their home areasp”28
though the decision does not directly men- Therein, the Security Council “recall[ed]
tion this, it is impossible to interpret the the conclusions of the Lisbon summit of the
last sentence of the paragraph 4 in another OSCE (S/1997/57, annex) regarding the situ-
manner. ation in Abkhazia, Georgia, and reaffirms the
Thus, by May 1998 the United Nations, unacceptability of the demographic changes
CIS and OSCE demanded from separatists: resulting from the conflictp”
a) To immediately begin return process of exi- It is difficult to express in more clear terms
led persons, having separated this issue the position of the Security Council concerning
from the decision on the status of Abkha- the continuing ethnic cleansing, the victim of
zia as a part of Georgia; which largely was and still is the Georgian po-
b) To end the destructive actions aimed at: pulation of Abkhazia.
i) breaking the peace process of settle- In decision on further steps towards the
ment of the political status of Abkha- settlement of conflict in Abkhazia, Georgia, the
zia; summit of CIS29 on 2 April 1999 decided:
ii) “legalising” the authorities establis- “… 7) To ensure the implementation of the
hed without participation of the majo- measures provided for in the decisions of the
rity of the population, and first of all Council of Heads of State of the Commonwe-
the expelled ethnic Georgian popula- alth of 28 March, 1997 and 1998 with regard
tion, constituting before the beginning to the broadening of the security zone and the
of the conflict almost half of the po- redeployment of the Collective Peacekeeping
pulation of the Abkhaz Autonomous Forces on the basis of the mechanism develo-
Republic. ped by the parties to the conflict.
c) creating the temporary mixed administrati- 8) To consider unacceptable any delays in
on, starting from Gali region. the process of the organized return of refugees
However, as a reaction to the above, in and displaced persons to all parts of Abkha-
May 1998 the confrontation was provoked in zia, Georgia, first of all to Gali district (within
Gali region again, according to the report of its old borders) with the provision of safety.
UN Secretary-General (S/1998/647), resulting To urge the Abkhaz side to revert to
into nearly 40,000 persons from Gali region this issue, consider it and resolve it in a
again being compelled to search for shelter on positive manner.
other bank of river Inguri. Thousand houses In the case of opposition to the return
were burnt for restoration of which UNCHR of refugees, or a threat to peace and secu-
had spent 2 million US dollars. rity in the region, to consider making ap-
114
L. ALEXIDZE, THE FAILURE OF THE UN SECURITY COUNCIL IN SETTLEMENT OF THE CONFLICT IN ABKHAZIA, GEORGIA ...
propriate changes in the nature and con- It is true that this document did not corres-
tent of the peacekeeping operation on the ponded to positions of Georgia in everything,
basis of the provisions of the UN Charter however Georgia agreed to use it as a ground
applicable to such circumstances. for negotiations about the status and return of
9) To urge the parties to the conflict to re- the expelled.
solve the issue of the establishment, during However Abkhaz side not only rejected
the phase involving the return of refugees and this document, as in the past it did with others,
complete normalization of life in Gali district it even refused to discuss the document for a
(within its old borders), of temporary transiti- simple reason that the document defined the
onal administrations that would work with the status of “Abkhazia as a part of Georgia”. Dec-
direct participation of the mediators, the UN laring themselves as independent, the sepa-
and the OSCE. ratists demanded from Georgia to recognize
10) Measures for the economic rehabilita- independence of Abkhazia as a key condi-
tion of the region should be taken only in direct tion to starting negotiations about the status
association with the process of the steady and of Abkhazia; i.e. the Abkhaz separatists were
organized return of refugees and displaced redirecting this issue into a scope of the in-
persons(S/1999/392). ternational legal relations of two independent
As noted above the CIS Istanbul Summit subjects of international law. This does defi-
did resolutely condemn ethnic cleansing in nitely contradict the modern international law
Abkhazia (Footnote 30, WHICH I CAN NOT and the resolutions of the UN Security Coun-
INSERT DUE TO FORMAT) cil, OSCE, CIS, the European Union and the
On the Yalta Summit the CIS Member Council of Europe.
States once again recognized the territorial in- The fact is that, acting within the limits
tegrity and sovereignty of Georgia and its de- of the Chapter VI of the UN Charter – “Pe-
dication to the principles of the Almaty Memo- aceful Means of the Conflict Settlement”,
randum on Supporting the Peace and Stability the UN Security Council again and again
in the CIS (Alma-Aty, 26.05.95) and Decision hoped for “good will” of the separatists.
“On the Measures on Conflict Settlement in In its resolution the UN Security Coun-
Abkhazia, Georgia” (Moscow, 19.01.96). The cil31 welcomed “the finalization of drafting” of
latter condemned separatism as a whole and the “Boden Document”, “Strongly urg[ed] the
particularly in Abkhazia and formulated coun- parties, in particular the Abkhaz side, to rece-
termeasures.30 ive the document and its transmittal letter in
Meanwhile the UN Security Council again the nearest future, to give them full and open
appealed “to both sides” and demanded to dis- consideration, and to engage into constructive
play without delay the will to achieve political negotiations on their substance without delay
settlement of status of Abkhazia within the sta- thereafter, and call[ed] on others having influ-
te of Georgia, requested the parties to display ence over the parties to promote this outco-
the will to settle the conflict by dialogue and me” (Para 6).
mutual compromises (from RES.1225(1999), As the official position of the separatists
20.01.99 till RES.1494(2003), 30.07.2003). was made clear, to refuse even to touch that
The entire history of settlement of the con- document, the UN Security Council in its reso-
flict in Abkhazia confirms that Georgia did all lutions 1462 (2003) 30.01.03 and 1494 (2003)
possible to facilitate the achievement of full- 30.07.03 once again considered it possible to
scale settlement of the conflict; The resoluti- possible to state that the purpose of these do-
ons of the UN, OSCE, and the CIS do confirm cuments was to facilitate the negotiations bet-
this thesis. ween the sides, under the leadership of the
One more evident example is the destiny United Nations, on the status of Abkhazia wit-
of the so-called “Boden Document” elaborated hin the State of Georgia, and this was not an
by Special Representative of the UN Secre- attempt to impose or dictate any specific solu-
tary General with the participation of the Gro- tion to the sides (paras 5 and 6 respectively);
up of Friends. the UN Security Council underlined that “the
115
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
process of negotiation leading to a lasting po- especially by the heads of the regions of the
litical settlement acceptable to both sides will Russian Federation, operating illegally; The
require concessions from both sides” (Para 6 railway communication between Sochi and
and 7). Sukhumi continued free functioning. Despi-
In these resolutions the Security Coun- te the application of Georgia to the General
cil just “deeply regrets the continued refu- Assembly of the United Nations, the speed of
sal of the Abkhaz side to agree to a discus- granting the Russian citizenship to the popula-
sion on the substance of this documentp.” tion of Abkhazia did not drop; the acquisition of
(Paras 5 and 7). the property located in the territory of Abkha-
The contradictions are abundantly clear zia, including illegal acquisition of the property
between separate paragraphs and in the pa- of violently displaced persons by the Russian
ragraphs itself – from the both Georgian and authorities, physical and legal bodies, prece-
Abkhaz sides the concessions requested, tho- ded. These actions flagrantly violated interna-
ugh the Georgian side has supported “The tional law, the sovereignty of Georgia, and its
Boden Plan”, but the Abkhaz one refused to legislation, declaring invalid any agreements
carry out the Council’s recommendation. The concluded with the separatist regime.
fact that this is only recommendation is confir- The greatest danger constituted the fact
med by the phrases in paragraph 5, and first that Russian passports given out with ~ease~
of all by the provision according to which the appeared in hands of terrorists, drug dealers,
purpose of this document is to facilitate mea- etc., who densely settled in conflict zones, on
ningful negotiations between the parties, un- the territories outside the control of the Geor-
der the auspices of the United Nations, on the gian authorities, population of which territories
status of Abkhazia within the State of Georgia, had been given preferential exit and entrance
and this is not an attempt to impose or dictate on territory of Russia.
any specific solution to the parties. The authorities of Russia asserted in
And again separatists refused to discuss every possible manner that they “will not ad-
the given document and it was stuck in the mit the slightest infringement of the rights of
middle of nowhere. citizens of Russia in Abkhazia and in South
This tendency proceeded untill August Ossetia”.
2008 – the Security Council continued adop- It is quite clear that the international com-
ting the resolutions condemning actions of the munity of states, and first of all the United Na-
Abkhaz separatists hampering the broadening tions, was obliged to find the new means to
of controlled zone by police forces of the Uni- respond effectively to cynical challenges from
ted Nations and their introduction to Gali regi- the side of separatists.
on; Again and again Security Council declared It should be noted that in July 2008 the
inadmissible violent change of the demograp- author of this article wrote:
hic structure, which arose as a result of con- “The United Nations Security Council has
flict, confirmed the rights of all expelled to re- taken very inactive role in resolving the con-
turn to their houses in a conflict zone.32 flict in Abkhazia lately, it leaves without any re-
Despite the fact that the new stage of the action sabotage exercised by the separatists
Geneva negotiations of responsible represen- and an uncompromising refusal to consider
tatives of the Group of Friends of the UN Sec- proposal submitted by any international orga-
retary General organized under the auspices nization (The Boden Plan) or the government
of the United Nations (February, July 2003) of Georgia (one of which was disseminated by
has begun, the meetings of presidents of Ge- Georgia as the Security Council document in
orgia and Russia were held, during which the 1999).33
new effort on achievement of a full-scale set- The current policy of Russia with regard to
tlement of the conflict was considered, the the conflict in Abkhazia backs up the separatist
situation in the conflict zone did not change: regime both de-facto and de-jure. Despite the
again the sanctions imposed on the separatist fact that Russia had never formally recognized
regime were not upheld by the Russian side, independence of Abkhazia, the former has ac-
116
L. ALEXIDZE, THE FAILURE OF THE UN SECURITY COUNCIL IN SETTLEMENT OF THE CONFLICT IN ABKHAZIA, GEORGIA ...
tually established close relations with the se- Trying to justify such position of the UN
paratist, that is expressed in dropping econo- Security Council and its refusal to accept strict
mic blockade, mass granting of the Russian measures within the limits of the chapter VI of
nationality, establishing official legal relations Charter, ones refer to possible application of
with the separatist bodies, without the consent the veto by Russia, though today it is already
of Georgia, introduction of the so-called rail- clear, that Russia is not a “facilitator”, but the
way army forces for the sake of reconstruction active party to the conflict and according to
of strategically important roadsp”.34 paragraph 27(3) of the Charter of the United
Today, as this article is being drafted, Nations “Permanent member of the Council
in June 2009, it is clear to all that aggres- who is a party to a dispute shall abstain from
sion of Russia and its occupation of Ge- voting”.
orgia, particularly Abkhazia and so-called The fact that Russia is the party in the
South Ossetia, was prepared long time ago conflict is confirmed by the documents accep-
and entered into a final phase as soon as ted within the frameworks of the Council of Eu-
rapprochement of Georgia and NATO beca- rope, the European Union, NATO demanding
me obvious and after the statement of this to stop occupation of Georgia and to annul an
organization “that Georgia will become in- illegal recognition of independence of regions
dispensable member of this organization” of Georgia.
(see annex). How long will the policy of appeasement,
Having violated the agreement with the not only of the aggressive separatism but also
European Union, the so-called Sarkozy-Med- the aggressive super-state, flagrantly violating
vedev’s Six-point plan, Russia has gone fur- the basic norms of the international moral and
ther away and, violated all of existing univer- international law, last?! But one is assured that
sally recognized norms of international law if the UN Security Council had at least tried to
and decisions of the United Nations, OSCE, discuss the problem of Russian-Georgian war
the European Union, the Council of Europe on a public meeting, the Russia’s veto would
and the very CIS, when officially recognized have isolated the aggressor morally and politi-
independence of separatist regimes, having cally, as it occurs within the frameworks of the
occupied them and transformed them into de OSCE, the European Union, NATO and the
facto and recognized them de jure integral Council of Europe.
parts of the Russian Federation.
It is amazing that while the European Uni- Prof. Levan Alexidze, The Head of the
on did everything to stop Russian aggression Committee on the Policy of Ethnic
against Georgia, the UN Security Council did Cleansing/Genocide against the
not mention anything on this roughest infringe- Georgian Population in Abkhazia,
ment of the Charter of the United Nations. Georgia, and Submission of Such
Materials to an International Tribunal
1
E/CN. 4/194/123, E/CN. 4/195/139, E/CN. 4/196/146; UN Doc. S/194/225,
S/195/200; E/CN. 4/197/132.
2
UN Doc. S/26725, 24 November 1993.
3
Meeting of the Head of States and Government of the OSCE Participating States, 4
and 5 December 1994, in “Towards a Genuine Partnership in a New Era”. UN Doc.
S/1994/1435, Annex. Budapest Decisions, Regional Issues, Georgia, para. 2.
4
Lisbon Summit Declaration, 3 December 1996. UN Doc. S/1997/57, Annex, para.
20.
5
The report of the OSCE mission in Georgia and the UN’s personnel in Tbilisi “on
the Situation regarding Human Rights in Gali region Georgian Republic, visit to the
West Georgia and Gali region, controlled by Abkhazians”. 19-21 April 1996.
6
OSCE Istanbul Summit Declaration, 19 November 1999, para. 17, www.osce.org
117
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
7
S/RES/1336/(1996); S/RES/1065/(1996).
8
S/RES/1096/(1997)/.
9
UN Doc. A/RES/62/249 (2008).
10
UN Doc. S/RES/849(1993) Para 2.
11
Сборник документов касающийся вопроса урегулирования конфликта в Аб-
хазии принятых в период с 1992 по 1999 гг. Грузия, UNDP, с.12-14 [further “Col-
lected Documents”].
12
UN Doc. S/RES/876(1993).
13
UN Doc. S/RES/892(1993).
14
Report on first expert-level discussions, responsible for Preparation of
Recommendations on defining the political status of Abkhazia (15-16 December
1993, Moscow), submitted by Prof. Giorgio Malinverni to the chairman of the
group Eduard Brunner, the Special Representative of the UN Secretary General in
Georgia.
15
Collected Documents, Supra note 11, pp. 21-23.
16
UN Doc. S/RES/901(1994).
17
The Statement of the Council of the CIS Heads of States, on 15 April 1994.
Collected Materials, Supra note pp. 35-36.
18
Collected Documents, Supra note 11, pp.28-30.
19
UN Doc. S/RES/937(1994).
20
UN Doc. S/RES/1036(1996).
21
Collected Documents, Supra note 11, pp. 59.
22
Collected Documents, Supra note 11, pp. 77-79.
23
UN.Doc. S/1997/57, Annex.
24
UN Doc. S/RES/1096(1997).
25
Collected Documents, Supra note 11, pp. 88.
26
UN Doc. S/RES/1124(1997).
27
Collected Documents, Supra note 11, pp. 281-284.
28
UN Doc. S/RES/1187(1998).
29
Collected Documents, Supra note 11, pp. 128-129.
30
See above the Lisbon Summit Declaration, Para 17.
31
UN Doc. S/RES/1393(2002).
32
UN Doc. S/RES/1615(2005), S/RES/1656(2006), Resolutions of 2007.
33
Basic Principles for Determining the Status of Abkhazia within a New State
Structure of Georgia – doc S/1999/813, annex.
34
Levan Alexidze, Vital Role of OSCE in Condemning Ethnic Cleansing of Georgian
Population in Abkhazia, Georgia, by the International Community. – “Journal of
International Law”, Tbilisi, State University, 2008 #1, pp. 42-43.
118
nino farsadaniSvili
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saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
im ubralo mizezis gamo, rom erTi pro- gaixsna 1992 wels rio-de-JaneiroSi. kon-
duqtis gamoyenebam SeiZleba didi gav- vencias aqvs 3 mTavari mizani:
lena ar moaxdinos adamianis organizmze, 1. biomravalferovnebis SenarCuneba;
magram, rogorc wesi, momxmarebeli ram- 2. misi komponentebis jerovani gamoye-
denime produqts iRebs erTdroulad neba;
da maTi mciredi gansxvavebebi bunebri- 3. genetikuri resursebidan miRebuli
vi analogebisagan, sabolood, erT did sargeblis Tanabari da samarTliani
zianad iqceva, msgavsad garemoSi mox- ganawileba.32
vedrili genmodificirebuli mcenaris sxva sityvebiT rom vTqvaT, konvenci-
Teslisa, romelic cotaTi gansxvavdeba is umTavresi amocanaa erovnuli stra-
bunebrivi jiSisagan, magram aferxebs mis tegiebis ganviTareba biomravalferov-
ganviTarebas da garemoSi damkvidrebiT nebis Senaxvisa da jerovani gamoyenebis
spobs biomravalferovnebas. uzrunvelsayofad.
biologiuri mravalferovnebis Se-
saxeb konvenciis umTavresi roli, zoga-
3. momxmarebelTa uflebebisa da
dad, garemos dacvisa da SenarCunebisaT-
garemos dacvis saerTaSoriso
vis brZolaSi, isaa, rom, pirvel rigSi, is
meqanizmebi
gamoxatavs saxelmwifoTa saerTo nebasa
momxmarebelTa uflebebisa da gare- da damokidebulebas am sakiTxebisadmi
mos dacvis saerTaSoriso meqanizmebi da, meore, swored am xelSekrulebis mi-
udides rols asrulebs, zogadad, biom- Rebas mohyva metad mniSvnelovani biou-
ravalferovnebis SenarCunebisa da dac- safrTxoebis dacvis Sesaxeb kartaxenis
vis sakiTxSi, rameTu swored maTi meSve- oqmis miReba.
obiT xdeba saxelmwifoTa mier erTiani
3.2. biologiuri mravalferovnebis
politikis SemuSaveba saerTo probleme-
konvenciis biousafrToxebis
bis mowesrigebis mizniT, am konkretul
kartaxenis oqmi
SemTxvevaSi ki genmodificirebuli pro-
duqtebisa Tu organizmebis SesaZlo ne- kartaxenis oqmi, biomravalferovne-
gatiuri gavlenis Sesamcireblad gare- bis Sesaxeb konvenciisagan gansxvavebiT,
mosa da momxmareblis janmrTelobaze. Seicavs im specialur normebs, romle-
bic genetikurad modificirebuli pro-
3.1. gaeros konvencia biologiuri duqtebis markirebas emsaxureba. rac,
mravalferovnebis Sesaxeb Tavis mxriv, udavod Zalze mniSvnelo-
vania, radganac erTia saxelmwifoebis
biologiuri mravalferovnebis Se-
mier gacnobiereba imisa, rom biomraval-
saxeb gaeros konvenciam saerTaSoriso
ferovnebis SenarCuneba aris umTavresi
samarTalSi pirvelad gamoacxada, rom
mizani kacobriobisaTvis, magram meorea
biomravalferovnebis SenarCuneba aris momxmareblebis informireba ama Tu im
„kacobriobis umTavresi mizani“ da gan- produqtSi genmodificirebuli ingre-
viTarebis procesis ganuyofeli nawi- dientis Semcvelobis Sesaxeb, raTa mas
li. SeTanxmeba moicavs yvela ekosiste- hqondes SesaZlebloba, sakuTari survi-
mas, jiSebsa da genetikur resursebs. is liT gaakeTos arCevani.
tradiciul garemos dacvis RonisZie- „am oqmis miReba garemos gamarjve-
bebs uTavsebs biologiuri resursebis baa, magram ar unda daviviwyoT, rom es
gamoyenebis ekonomikur miznebs da, Se- mxolod dasawyisia. Cven winaSe jer ki-
sabamisad, uzrunvelyofs biologiuri dev aris didi gamowveva“,33 – ganacxada
mravalferovnebis imgvarad dacvas, rom kolumbiis garemos dacvis ministrma xu-
ziani ar miadges saxelmwifoTa ekonomi- an meierma. gaeros biomravalferovnebis
kuri ganviTarebis process. Sesaxeb konvenciis kartaxenis oqmi, ro-
biologiuri mravalferovnebis Se- melic biousafrTxoebas ukavSirdeba,
saxeb gaeros konvencia xelmosawerad Seicavs normebs, romelTa mizania, da-
124
n. farsadaniSvili, momxmarebelTa dacva genuri inJineriisagan saerTaSoriso samarTliTa da msoflios...
icvas garemo im zianisagan, rac SeiZleba rom misi standartebi ar aris savalde-
man miiRos genetikurad modificirebu- bulo xasiaTis, isini mainc vaWrobasTan
li mcenareebis, cxovelebisa da baqte- dakavSirebuli davebis gadawyvetis amo-
riebisagan. oqmi uflebas aniWebs saxel- saval wertilad iTvlebian msoflio sa-
mwifos, dablokos genmodificirebuli vaWro organizaciisaTvis,36 rac, Tavis
produqtis importi im SemTxvevaSi, Tu mxriv, Zalian mniSvnelovani garemoebaa,
miiCnia, rom ar aris sakmarisi samecni- Tundac imitom, rom msoflio savaWro
ero mtkicebuleba am produqtis usaf- organizacia udides mniSvnelobas ani-
rTxoebis saCveneblad. is aseve aregu- Webs importisa da eqsportis SezRudve-
lirebs transportirebasa da markire- bisa da vaWrobisaTvis teqnikuri barie-
bas moTxovniT, rom yvela genetikurad rebis Seqmnis akrZalvebs. radganac mis-
modificirebul produqts, rogoricaa, Tvis komisiis standartebze dayrdnoba
magaliTad, marcvleuli da bamba, hqon- aranair problemas ar qmnis, gamodis,
des warwera: „SeiZleba Seicavdes cocx- rom aseTi standartebi mometebulad
al modificirebul organizmebs“.34 uaryofiT zegavlenas ar axdens komer-
garemos damcvelebi da mecnierebi am- ciul interesebze.
tkiceben, rom genetikurad modificire- komisiis sakvebis markirebis komi-
bul organizmebs SeuZliaT, mospon buneb- tetma 2002 wlis maisSi wamoayena wina-
rivi jiSebi, daarRvion bunebrivi cikli dadeba genetikurad modificirebuli
da gamoiwvion sxva ekologiuri ziani. kar- sakvebis markirebasTan dakavSirebiT.
taxenis oqmi, rogorc molaparakebebSi komitetis winadadebis Sesabamisad, sa-
monawile mxareebi aRniSnaven, „aris SeTan- Wiro iyo markirebis erTiani sistemis
xmeba, romelic icavs garemos sakvebiT, SemuSaveba. komitetis rekomendaciis
msoflio vaWrobisaTvis xelis SeSlis ga- Tanaxmad, markireba unda gavrcelebu-
reSe“.35 es, Tavis mxriv, Zalian mniSvnelo- liyo ara marto mTlian produqtze, ara-
vania, radgan, rodesac saxelmwifo rwmun- med konkretul ingredientzec.37 2002
deba, rom mis ekonomikur interesebs ziani wlis maisis molaparakebebis dros aSS-
ar adgeba, ufro Tavisuflad axdens saer- is delegati aprotestebda genetikurad
TaSoriso xelSekrulebebTan mierTebas modificirebuli produqtebis markire-
da maTi normebis implementacias sakuTar bas da miuTiTebda, rom iseTi produq-
kanonmdeblobaSi. es ki, Tavis mxriv, xels tis markireba, romelic, arsebiTad, ar
uwyobs saerTaSoriso samarTlis norme- gansxvavdeba misi bunebrivi metoqisagan,
bis efeqtian ganxorcielebas. gamoiwvevs momxmareblis dabnevas da
mas genetikurad modificirebuli pro-
3.3. komisia Codex Alimentarius duqtis mavneblobaze cru STabeWdile-
saerTaSoriso xelSekrulebebis kva- ba Seeqmneba. aSS-is am mosazrebas mxari
ldakval aranakleb mniSvnelovania saer- dauWira argentinam da braziliam. sapi-
TaSoriso organizaciebis roli momxma- rispiro azri gamoTqves norvegiisa da
rebelTa uflebebisa da garemos dacvis indoeTis delegatebma da moiTxoves ne-
sakiTxebSi. erT-erTi aseTi saerTaSori- bismieri biologiurad saxecvlili pro-
so organizaciaa komisia Codex Alimenta- duqtis markireba, raTa momxmarebels
rius (SemdgomSi – `komisia~), romelic ad- SeZleboda arCevanis gakeTeba.38
gens sakvebis standartebs. is dafuZnda komisiis sxdomaze gamokveTili az-
1962 wels gaeros soflis meurneobis rTa sxvadasxvaobis Sedegia swored is,
organizaciisa da janmrTelobis dacvis rom saxelmwifoTa Sida kanonmdeblo-
msoflio organizaciis mier. misi fun- bebi gansxvavdebian genmodificirebuli
qciebia: saerTaSoriso standartebis Se- produqtebis markirebis momwesrigebe-
muSaveba, momxmareblis dacva riskisgan, li normebiT. saxelmwifoebi, marTalia,
momxmareblis ndobis amaRleba da kvebis aRiareben biomravalferovnebis mniS-
produqtebiT saerTaSoriso vaWrobi- vnelobas, magram Sida kanonmdeblobiT
saTvis xelis Sewyoba. miuxedavad imisa, savaldebulo markireba mainc ar aqvT
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saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
1
The Independent UK, The history of GM foods, 12 October 1999, ix. internet-
gverdze: <http://www.global-reality.com>, [SemdgomSi – “The Independent UK”].
2
iqve.
3
petunia mcenarea tropikul amerikaSi, aqvs vardisferi, lurji da
iisferi yvavilebi.
4
The Independent UK, ix. 1-li sqolio.
5
iqve.
6
Why there has been concern about GM foods among some politicians, public
interest groups and consumers especially in Europe, 20 Questions on Genetically
Modified foods, ix. internetgverdze: <http://www.who.int>.
7
iqve.
8
iqve.
9
iqve.
10
The Independent UK, ix. 1-li sqolio.
11
Genetically modified food, Glossary, ix. internetgverdze: <http://www.
greeniacs.com>.
12
Genetically modified food altering blueprint of life, ix. internetgverdze: <http://
www.healingdaily.com>.
13
iqve.
14
iqve.
15
Genetically modified food in your supermarket?, ix. internetgverdze: <http://
www.healingdaily.com>.
16
qimikati, romelic anadgurebs mcenares.
17
iqve.
18
iqve.
19
Scarcity of safety tests, ix. internetgverdze: <http://www.actionbioscience.
org>, [SemdgomSi – Scarcity of safety tests].
20
J.L. Domingo, Health risks of genetically modified foods: Many opinions but few
data. Science 288, 2000, 1748-1749, cit.: Scarcity of safety tests, ix. me-19
sqolio..
21
E. Millstone, E. Brunner and S. Mayer, Beyond substantial equivalence. Nature
401, 1999, 525-526., cit.: Scarcity of safety tests, ix. internetgverdze:
<http://www.actionbioscience.org >.
22
Scarcity of safety tests, ix. me-19 sqolio.
23
plasmidi – baqteriuli dezoqsiribonukleinmJavas mcire rkali, ro-
melic mTavari baqteriuli qromosomisagan damoukidebelia. is xSirad
Seicavs wamlebisadmi gamZle genebs. gamoiyeneba genur inJineriaSi.
24
Scarcity of safety tests, ix. me-19 sqolio.
25
K. Redenbaugh, W. Hatt, B. Martineau, M. Kramer, R. Sheehy, R. Sanders, C.
Houck, and D. Emlay, A case study of the FLAVR SAVRTM tomato. In: Safety
Assessment of Genetically Engineered Fruits and vegetables. CRC press,
Boca Raton, 1992, cit.: Scarcity of safety tests, xelmisawvdomia: <http://www.
actionbioscience.org >.
134
n. farsadaniSvili, momxmarebelTa dacva genuri inJineriisagan saerTaSoriso samarTliTa da msoflios...
26
Scarcity of safety tests, ix. me-19 sqolio.
27
mecniereba, romelic Seiswavlis organoTa qsovilebs.
28
Scarcity of safety tests, ix. me-19 sqolio.
29
Compositional studies, ix. internetgverdze: <http://www.actionbioscience.
org>.
30
iqve.
31
S.R. Padgette, N.B. Taylor, D.L. Nida, M.R. Bailey, J. MacDonald, L.R. Holden, and
R.L. Fuchs, The composition of glyphosate-tolerant soybean seeds is equivalent
to that of conventional soybeans. Journal of Nutrition 126, 1996, 702-716. cit.:
Compositional studies, ix. internetgverdze: <http://www.actionbioscience.
org>.
32
Convention of biological diversity, three main goals, ix. internetgverdze:
<http://www.cbd.int>.
33
M. Crenson, U.S. Joins GM foods treaty, Montreal, 29 January. ix. internet-
gverdze: <http://abcnews.go.com>.
34
iqve.
35
iqve.
36
D. Wong, Genetically modified food labeling, Codex Alimentarius commission, 7,
ix. internetgverdze: <http:// www.legco.gov.hk>, [SemdgomSi – D. Wong]
37
FAO, Report of the Thirtieth Session of the Codex Committee on food labeling,
Halifax, Canada, 6-10 May 2002, ALINORM 03/22, ix. internetgverdze:
<http:// www.legco.gov.hk>.
38
iqve.
39
D. Wong, ix. 37-e sqolio.
40
iqve.
41
G. P. Gruère, Program for Biosafety systems, Labeling Polices for Genetically
Modified food, A multiplicity of national approaches, ix. internetgverdze:
<http:// www.cbd.int>.
42
iqve.
43
Public concern affected marketing of GM foods in the European Union, ix.
internetgverdze: <http://www.who.int>.
44
iqve.
45
iqve.
46
iqve.
47
Regulation (EC) No 1829/2003, me-13 muxli, 1-li nawili.
48
Regulation (EC) No 1829/2003, 25-e muxli, 1-li nawili.
49
D. Wong, Genetically modified food labeling, Australia, ix. internetgverdze:
<http://www.legco.gov.hk>.
50
What are the labelling requirements for genetically modified food?,
ix. internetgverdze: <http://www.mfe.govt.nz>.
51
What will be labeled?, ix. internetgverdze: <http://www.mfe.govt.nz>.
52
iqve.
53
iqve.
54
How does the GM labeling requirement work?, ix. internetgverdze:
<http://www.mfe.govt.nz>.
55
What will a label look like?, ix. internetgverdze: <http://www.mfe.govt.nz>.
56
Food prepared in restaurants, cafés and takeaways, ix. internetgverdze:
<http://www.mfe.govt.nz>.
57
Compulsory GM labeling requirement, ix. internetgverdze: <http://www.mfe.
govt.nz>.
58
WHO, Application of the Principles of Substantial Equivalence to the Safety
Evaluation of Foods or Food Components from Plants Derived by Modern
Biotechnology, Report of a WHO workshop, 1995, (WHO/FNU/FSO/95.1); and
OECD, Safety Evaluation of Foods Derived by Modern Biotechnology: Concepts
and Principles, Paris, 1993.9HHS, FDA, Federal Register, Vol. 57 No. 104,
Statement of Policy: Foods Derived from New Plant Varieties, 29 May 1992, 22984,
135
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
136
NINO PARSADANISHVILI
137
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
ture of the deoxyribonucleic acid at Cambrid- ronmental risks, allergenicity and antimicrobial
ge in 1953, the human engineering of genes resistance. Consumer concerns have trigge-
has become a possibility. In 1962 they were red a discussion on the desirability of label-
awarded with the Nobel Prize and as a result, ling GM foods, allowing an informed choice8
after a certain period the genetically modified (labelling related legislation will be discussed
products appeared in the shops.2 in the fourth chapter).
The GM products have their opponents, From 1996 to 1998, according to the World
who point out that nature prohibits to to cros- watch Institute, the area planted with GM pro-
s-bread a fish with a vegetable. In the evolu- ducts jumped from two to 28 million hecta-
tion process animals and plants have been res worldwide, and around 60 different crops,
saparated. But laboratory researches made it most notably soya, have been developed.9
possible to produce a ~frost-resistant~ tomato But today there are signs that the biotec-
by transferring into its genetic code. The first hnology bubble is decreasing. In the U.S. and
transgenic plant is said to have been created the UK commercial planting has been postpo-
in the early eighties when a gene from a bac- ned, although the Government is going ahead
terium was spliced into a petunia.3 Subsequ- with trials of GM crops.10
ently oilseed rape has had a bay tree gene
spliced into it, to improve its oil, as well as a 1.2. Genetically Modified Product –
disease-resistant chicken gene has been tran- Genetic Revolution
sferred to the tomato.4
A GM product is the result of the revoluti-
In the 90s, biotechnology moved out of the
onary technologies; however the acceptability
laboratory into farms and shops resulting to an
of all the pressed innovations will be discus-
industry boom. In 1990 the first GM food, a ye-
sed in the next sub-chapter. Initially it will be
ast, appeared in the UK; in 1992 cheese con-
reasonable to define, whether what a GM pro-
taining GM ingredient – a vegetarian cheese -
duct means itself:
went on sale in the UK; and three years later su-
“Genetically Modified Product – Food ma-
permarkets started selling GM tomato paste.5
de from crops in which the genetic material
Since the first appearance of major GM
(DNA) of the plant has been altered in a way
food on the market in the mid-1990s, there
that does not occur naturally. This process al-
has been increasing concern about such food
lows selected individual genes to be transfer-
amongst consumers, politicians and activists,
red from one organism into another. Traits that
especially in Europe. The molecular research
can be introduced into food crops include pes-
reached the public domain. The consumers
t-resistance, colour, freeze-resistance, and si-
were generally not much aware of the safety
ze, among others. So far, foods currently ava-
of GM products; they simply perceived that
ilable on the international market have passed
modern biotechnology was leading to the cre-
risk assessments and are not likely to present
ation of new species.6 The first GM foods in-
risks for human health. Environmental risks
troduced onto the European market were of
involved include introduction of engineered
no apparent direct benefit to consumers – not
genes into wild populations and decreases in
cheaper, no increased shelf-life, no better tas-
biodiversity”.11
te. The potential for GM seeds to result in big-
The widespread biotech food production
ger yields per cultivated area led to lowering
threatens to eliminate farming as it has been
prices. However, public attention has focused
practiced for the past 12,000 years. The main
on the risk side of the risk-benefit equation.7
task of genetic engineering is altering the ge-
Consumer confidence in the safety of food
netic blueprints of living organisms – plants,
supplies in Europe has decreased significantly
animals, micro-organisms – patenting them,
in the second half of the 1990s. This has also
and then selling the resulting gene-foods, se-
had an impact on the discussions about the
eds, or other products for profit.12
acceptability of the GM foods. Consumers ha-
“Life science corporations” proclaim that
ve questioned the validity of risk assessments,
their new products will make agriculture sus-
both with regard to consumer health and envi-
tainable, eliminate world hunger, vastly impro-
138
N. PARSADANISHVILI, PROTECTION OF CONSUMERS AGAINST GENE ENGINEERING IN INTERNATIONAL LAW AND DOMESTIC LAW
ve public health and cure diseases. In reality, pesticides’, because the plant itself is a pes-
through their political lobbying and business ticide. As it grows, the plant produces an in-
practices, the gene engineers have made it secticide, killing insects when they feed on the
obvious that they intend to use genetic engi- crop. Industry claims that these genetically en-
neering to dominate and monopolise the glo- gineered crops will mean that fewer chemical
bal market for seeds, foods, fibre and medical insecticides are sprayed. But scientists have
products.13 warned that insects will develop resistance in
Genetic engineering is a revolutionary new just a few years.18
technology still in its early experimental stages Upsetting of the natural cycle and splicing
of development. This technology has the po- of various genes into each other will neces-
wer to break down fundamental genetic bar- sarily result in irreversible processes, what, in
riers – not only between species – but betwe- their turn will have a direct-proportional impact
en humans, plants and animals. By randomly both on the environment and the consumer
inserting together the genes of non-related health. Due to this reason neither the environ-
species – utilising viruses, antibiotic-resistant ment, nor the consumer health should be sac-
genes, and bacteria as vectors, markers, and rificed to profit and in general, everyone, who
promoters – and permanently altering their ge- tries to increase own commercial profit should
netic codes, gene-altered organisms are cre- understand one simple truth: the healthy envi-
ated which then pass these genetic changes ronment, as well as a consumer are the main
onto their offspring through heredity. Gene en- values and respectively there will be no consu-
gineers all over the world are now snipping, re- mer without the protection of the environment.
arranging, recombining, inserting, editing, and The data concerning adverse impact of GM
programming genetic material. Animal genes products are given in the Second Chapter.
and even human genes are randomly inserted
into the chromosomes of plants, animals and 2. IMPERFECTION OF SAFETY TESTS
fish, creating up-to-now unimaginable tran-
sgenic life forms. For the first time in history, How can the society make a well-thoug-
transnational biotechnology corporations are h-out decision with respect to GM products
becoming the architects and owners of life.14 when the available information is so scarce?
Most supermarket processed food items There are several reasons for blocking data,
now test positive for the presence of GM in- which will be discussed in this Chapter.
gredients. In addition, several dozen more
genetically engineered crops are in the final 2.1. Toxicity of the GM Products
stages of development and will soon be re- We do not dispose of the exhaustive infor-
leased into the environment and sold in the mation about the impact of the GM Products on
marketplace. According to the biotechnology human health or, in general, about the toxicity
industry, the majority of U.S. food and fibre will of such products. It is often said, that it’s more
be genetically engineered within the next 5 to difficult to evaluate the safety of crop-derived
10 years.15 foods than individual chemical, drug, or food
There are two main categories of gene- additives. Crop foods are more complex and
tically engineered crops now on the market: their composition varies according to differen-
“Insect Resistant” and “Herbicide Tolerant”. ces in growth and agronomic conditions.19
The latter, which include corn, cotton, soybe- Publications on GM food toxicity are scar-
ans, sugar beet and canola, are genetically ce. An article in Science magazine said it all:
engineered to withstand direct application of “Health Risks of Genetically Modified Foods:
herbicides.16 Respectively, the farmers are Many Opinions but Few Data”. In fact, no pe-
now able to avoid the destruction of plants. er-reviewed publications of clinical studies on
This could mean more chemicals in our food the human health effects of GM food exist.
and in our environment.17 Even animal studies are few and far betwe-
Insect Resistant crops include corn, cot- en.20 It is a fact, that there is no publication,
ton and potatoes. They are also called ‘plant which will be based on clinical observations on
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the change of human health status due to the The unacceptably wide range of rat star-
consumption of GM products. ting weights invalidated these findings. No his-
The preferred approach of the industry tology27 on the intestines was done even tho-
has been to use compositional comparisons ugh stomach sections showed mild/moderate
between GM and non-GM crops. When they erosive/necrotic lesions in up to seven out of
are not significantly different the two are re- twenty female rats but none in the controls.
garded as “substantially equivalent”, and the- However, these were considered to be of no
refore the GM food crop is regarded as safe importance, although in humans they could le-
as its conventional counterpart. However, it ad to life-endangering haemorrhage, particu-
is questionable whether which is competing larly in the elderly who use aspirin to prevent
with which. This ensures that GM crops can thrombosis.28 Seven out of forty rats on GM
be patented without animal testing. However, tomatoes died within two weeks for unstated
substantial equivalence is an unscientific con- reasons. (See the list of GM Products in the
cept that has never been properly defined and Annex)
there are no legally binding rules on how to Genetically modified corn: The gene modi-
establish it.21 fied corn had significant differences in fat and
GM products create such bacteria, which carbohydrate contents compared with non-
are resistance to antibiotics. They also cause GM maize and were therefore substantially
allergy. When food-crops are genetically modi- different.29 Even though with this the unpredic-
fied, one or more genes are incorporated into table effects of the gene transfer or the vector
the crop’s genome using a vector containing or gene insertion could not be demonstrated
several other genes, including as a minimum, or excluded based only on toxicity tests. The
viral promoters, antibiotic resistance genes foregoing was more or less elucidated by the
and so on.22 rat experiment. After eating the gene modi-
DNA does not always fully break down in fied crops the digestion capacity of rats was
the alimentary tract. Gut bacteria can take up lowered and they started to loose weight. Fe-
genes and GM plasmids23 and this opens up ed conversion efficiency on Pat-Protein was
the possibility of the spread of antibiotic resis-
significantly reduced. Urine output increased
tance. Insertion of genes into the crop gene
and several clinical parameters were also dif-
can also result in unintended effects. This may
ferent.30 Respectively, it should be stated, that
lead to the development of unknown toxic/al-
negative impact of gene modified corn on an
lergenic problems.24
organism is manifestly evident and it is neces-
2.2. The Test of GM Products sary to inform the society about the results of
each performed test, for the latter to make a
Genetically modified potato: a gene was choice according to its own discretion.
spliced into this potato according to gene mo-
dification rules. The results claim there were 2.3. Compositional Studies
no significant alterations in total protein, vita-
mins and mineral contents and in toxic glyco- Apart from the above discussed methods
alkaloids. Therefore, the GM and parent toma- the compositional studies are also used for
toes were deemed to be “substantially equi- testing the GM products. As a result of gene
valent”.25 modification the composition of allergens in
Toxicity studies with male/female rats, soy increased.
which were tube-fed homogenised GM tomato- To make soybeans herbicide resistant, the
es, toxic effects were claimed to be absent. In gene of 5-enolpyruvylshikimate-3-phosphate
addition, it was concluded that mean body and synthase from Agrobacterium was used. The
organ weights, weight gains, food consumpti- Safety tests claim the GM variety to be “sub-
on and clinical chemistry or blood parameters stantially equivalent” to conventional soybe-
were not significantly different between GM-fed ans.31 However, several significant differences
and control groups, but a number of rats on GM between the GM and control lines were recor-
tomatoes died within several weeks.26 ded, in particular: the differences in the con-
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N. PARSADANISHVILI, PROTECTION OF CONSUMERS AGAINST GENE ENGINEERING IN INTERNATIONAL LAW AND DOMESTIC LAW
tents of natural isoflavones (genistein, etc.) with The UN Convention of Biological Diversity
potential importance for health, additionally, the was opened for signature in 1992 in Rio-de-
trypsin inhibitor (a major allergen) content was Janeiro. The Convention has three main pur-
significantly increased. Because of this, and the poses:
large variability, the lines could not be regarded a) The conservation of the biological diver-
as “substantially equivalent.” Even if they are sity;
“substantially equivalent” this does not mean b) The sustainable use of its components;
the product safety. Even that minor difference and
will have a certain negative impact on the en- c) The fair and equitable sharing of the be-
vironment and consumer’s health just for one nefits arising out of the utilization of gene-
simple reason: the consumption of a single pro- tic resources.32
duct may not have a major impact on human In other words, the main task of the Con-
organism, but as a rule a human being consu- vention is the development of national policies
mes several products together and the little dif- with a view of ensuring the conservation and
ferences of these various products from their fair use of the biological diversity.
natural analogues ultimately become one ma- The key role of the Convention of Biologi-
jor damage like a seed of a GM plant, which is cal Diversity in the fight for the protection and
different from the natural specie and obstructs conservation of the environment in general is
it development and when established in the en- that it, first of all, is the demonstration of com-
vironment it destroys the biodiversity. mon will and approach of the states to these
issues and, secondly, the adoption of this tre-
3. THE INTERNATIONAL INSTRUMENTS FOR aty was followed by the adoption of the most
THE PROTECTION OF CONSUMER RIGHTS important Cartagena Protocol on Biosafety.
AND ENVIRONMENT
3.2. The Cartagena Protocol on
The international instruments for the pro- Biosafety to the Convention on
tection of consumer rights and environment Biological Diversity
play the major role in the preservation and
Unlike the Convention of Biological Di-
protection of the biodiversity in general as the-
versity the Cartagena Protocol on Biosafety
se instruments greatly help the states to de-
contains special rules on the labelling of the
velop common practice for the settlement of
GM products, what, itself, is very important as
common problems and in this particular case,
the states’ understanding of the fact that the
for the reduction of potential negative impact
conservation of the biological diversity is the
of GM products and organisms on the environ-
major goal of the humankind is one thing and
ment and consumer health.
the information of the consumers about the
presence of a gene modified ingredient in a
3.1. The UN Convention of Biological product is the other, just for the latter to make
Diversity an informed choice according to his/her own
The UN Convention of Biological Diversity discretion.
was the first document of the international law “The adoption of this Protocol is the vic-
to affirm that conservation of biological diver- tory of the environment, but one should not
sity is the main concern of humankind and in- forget that this is only the beginning. We are
dispensable part of development. The treaty still facing the major challenge”,33 said the Co-
covers all the ecosystems, species and gene- lombia’s Minister of Environment Juan Mayer.
tic resources. It combines the measures for The Cartagena Protocol on Biosafety to the
the protection of the traditional environment Convention of Biological Diversity contains
with the economic purposes of the utilisation provisions which aim at the protection of the
of biological resources and respectively gu- environment from potential damage from ge-
arantees such conservation of the biological netically modified plants, animals and bacte-
diversity as not to impair the process of eco- ria. The Protocol authorises states to block the
nomic development of the states. import of GM products when they believe, that
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N. PARSADANISHVILI, PROTECTION OF CONSUMERS AGAINST GENE ENGINEERING IN INTERNATIONAL LAW AND DOMESTIC LAW
c) To promote fair competition and product tary labelling (US, Canada) and countries of
marketability.39 mandatory labelling (Australia, New Zealand,
Some other goals are: the European Union, Japan). The respective
a) More informed choices on food and health provisions of the countries of voluntary label-
will be available leading to an increase in ling define whether which products should be
consumer confidence in product quality; attributed to GM products. As the same time
b) Average quality of food will increase be- the food producing companies are allowed
cause labelling makes food producers to decide whether or not they want to attach
responsible for their products and produ- such labels to the products at their own dis-
cers do not want an adverse label put on cretion.41
their food.40 In opposition to the foregoing in the coun-
The existence of the above listed goals is tries of mandatory labelling it is necessary for
really good, but it is impossible to provide the the traders in food, producers and restaurants
adequate and precise information about the to demonstrate whether or not the product is
health and safety only through labelling, be- genetically modified or to what extent the pro-
cause as already mentioned, nobody wants to duct contains such an ingredient.
explicitly admit that the increase of allergens The other difference is manifested in the
in the organism and rat mortality was conditi- diversity of the laws of the countries of man-
oned by the consumption of GM products and datory labelling, in particular they differ accor-
what is more, nobody wants and will write so- ding to the following characteristics:
mething on a label what is not yet clearly es- a) Cover: the states may require labelling
tablished, in particular when this concerns the according to specific food or the list of all
commercial interests. Here a question arises: the ingredients, which contain transgenic
Where should a consumer get the informati- substances. According to the legislation
on from about the adverse impact of GM fo- of some countries subject to labelling are
od on his health if not read on the label? The well processed products, which contain
answer is very simple: from nowhere. Due to genetically modified ingredients, even if
this reason it is necessary for the reports and such composition of transgenic substan-
conclusions concerning all the researches ces, when their amount cannot be cal-
and laboratory tests to be fully published and culated, also animal feed, food additives
a consumer should have the possibility to get and flavourings, meat and meat products
familiarised with all this. produced as a result of feeding animals
with genetically modified feed, food sold
3.5. The Policy of Labelling of GM by large suppliers, also food prepared at
Products the restaurants and pre-packed.
For the past seven years about forty sta- b) Threshold labelling for GM ingredients:
tes developed the legal framework for label- The maximum content may be provided
ling the GM food, but the specifications of the for each of the ingredients. The practice of
rules and the level of implementation signi- various countries evidences, that such a
ficantly differ from a country to country. The threshold for basic ingredients varies from
common feature for the states with labelling 3 to 5%, whilst in relation with flavourings
related legislation is that they require the la- and similar components – from 0.1 to 5%.
belling of those agricultural products which are (More detailed analysis of these data will
not substantially equivalent to their conventio- be offered in Chapter 4).
nal counterparts grown in the natural environ- c) Contents of a label: the note “Genetically
ment. In contrary to the foregoing the labelling Modified” should be inscribed either on
approaches for those products, which are sub- the list of ingredients or on the packaging
stantially equivalent to non-genetically modifi- face. One of the main differences in the
ed products, are quite specific in all states. regulations of the countries of mandatory
The first major difference is that the co- labelling is the extent they concern the
untries are divided into countries of volun- GM product as a final product or the pro-
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cess of gene modification as the producti- an Commission. Between 1991 and 1998, the
on process. In the first case only traceable marketing of 18 GMOs was authorized in the
genetically modified ingredients should be EU by a Commission decision.43
subjected to labelling, whilst it is vice ver- As of October 1998, no further authorizati-
sa in the other case: subject to labelling ons have been granted and there are currently
should be any product manufactured from 12 applications pending. Some Member Sta-
a genetically modified agricultural product tes have invoked a safeguard clause to tem-
irrespective of whether or not the gene- porarily ban the placing on the market in their
tically modified raw material is traceable country of GM maize.44
therein. During the 1990s, the regulatory frame-
Finally, the national regulations also dif- work was further extended and refined in res-
fer from each other according to the level of ponse to the legitimate concerns of citizens,
implementation. In the majority of advanced consumer organisations and economic opera-
countries the legal provisions are not imple- tors. Directive also foresees mandatory moni-
mented through the legislation of mandatory toring of long-term effects associated with the
labelling or if they are – only partially.42 interaction between GMOs and the environ-
ment.45
4. DOMESTIC LEGISLATION OF THE STATES Labelling in the EU is mandatory for pro-
IN RELATION WITH LABELLING OF GM ducts derived from modern biotechnology or
PRODUCTS products containing GM organisms. Legisla-
tion also addresses the problem of acciden-
This Chapter offers the overview of the tal contamination of conventional food by GM
situation with respect to labelling of the GM material. It introduces a 1% minimum thres-
products within the European Union, depic- hold for DNA or protein resulting from genetic
ting the approach of the European States and modification, below which labelling is not re-
in five other states (Australia-New Zealand, quired.46
US, Japan, Georgia). More specifically, the Within the European Union the labelling
attention will be paid to their legal framework of the GM products is regulated by the Regu-
in the field of alignment of the rules of place- lation 1829/2003 of the European Parliament
ment of the aforementioned products on the and of the Council, specifically Paragraph 1 of
market and the packaging of goods, which are Article 13 and Paragraph 1 of Article 25 there-
already placed on the market, with the exis- of. Commensurate with Paragraph 1 of Article
ting standards. The states were selected ac- 13 of the Regulation food is subject to label-
cording to their geographical location to give a ling:
better idea about the global legal framework in a) Where food consists of more then one in-
the field of labelling of GM Products. gredient the words “genetically modified”
or produces from “genetically modified
4.1. The European Union (name of ingredient)” shall appear in the
The public concerns about GM food and list of ingredients.
GMOs in general have had a significant im- b) When the ingredient is designated by the
pact on the marketing of GM products in the name of a category, the words contains
European Union (EU). In fact, they have re- “genetically modified (name of organism)”
sulted in the so-called moratorium on approval or “contains (name of ingredient) produ-
of GM products to be placed on the market. ced from genetically modified (name of
Marketing of GM food and GMOs in general organism) shall appear in the list of ingre-
are the subject of extensive legislation. Com- dients.
munity legislation has been in place since the c) Where there is no list of ingredients the
early 1990s. The procedure for approval of the words “genetically modified” or produced
release of GMOs into the environment is rat- from genetically modified (name of orga-
her complex and basically requires agreement nism) shall appear clearly on the label-
between the Member States and the Europe- ling.
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d) The indications referred to in (a) and (b) protein must be identified on the label as being
may appear in the footnote to the list of ‘genetically modified’. If food is processed in
ingredients. In this case they shall be prin- such a way as to remove all DNA or protein,
ted in the font of at least the same size as then it does not need to be labelled.51
the list of ingredients. Food that has altered characteristics must
e) Where the food is offered for sale to the fi- be labelled. This means that if food is signi-
nal consumer as non-pre-packaged food, ficantly different from its non-GM counterpart
or as pre-packaged food in small contai- with respect to allergenicity, toxicity, nutritional
ners of which the largest surface has an impact or end use, it must be identified on the
area of less than 10 cm, the information label as being ‘genetically modified’, even if no
required in this paragraph must be perma- GM material was present in the finished pro-
nently and visibly displayed either on the duct.52
food display or immediately next to it, or There are two exemptions from these la-
on the packaging material.47 belling requirements. One is for flavourings
As regards Paragraph 1 of Article 25 of making up less than 0.1% of a final food. The
the EU Regulation, it should be stressed that it other is for an ingredient that unintentionally
mainly regulates the issues related to the pla- contains GM material, but which is less than
cement of products on the market by individu- 1% of that ingredient.53
al entrepreneurs.48 The analysis of this Article For packaged foods the words ‘geneti-
evidences, that any person, who wants to pla- cally modified’ must be used in conjunction
ce some goods on the EU market is bound to with the name of the food, or in association
comply with the existing legislation and do the with the specific ingredient within the ingredi-
labelling of goods. ent list. For unpackaged foods for retail sale,
such as unpackaged fruit and vegetables, the
4.2. The Legislation of Australia and words ‘genetically modified’ must be displayed
New Zealand in association with the food.54
The labelling of GM products in Austra- When a food is labelled as GM, the infor-
lia and New Zealand is regulated according mation will usually be in the ingredients list on
to food standards, which is subject to agree- the label. For example, an ingredients list for a
ment between the governments of Australia white bread containing a GM ingredient might
and New Zealand. The members of the Food look like this: wheat flour, water added, yeast,
Standards Australia New Zealand Board are salt, soya flour (genetically modified), preser-
the experts in the field of consumer protection, vatives (282).55
commodity researchers, healthcare and public As concerns food prepared at restau-
administration.49 rants, cafés and takeaways, the legislation of
Commensurate with the laws of Australia Australia and New Zealand leaves it up to a
and New Zealand the GM food is subject to la- consumer to ask whether a food contains any
belling. This is necessary for evidencing, that a GM ingredients before one chooses to buy it
consumer is well informed and makes an infor- at such an establishment.56 The legislation of
med choice upon purchasing some product. Australia and New Zealand does not provide
All GM food packaged or manufactu- for labelling of non-GM products.
red from 7 December 2001 must be labelled Commensurate with the laws of Australia
according to the requirements of Standard and New Zealand food businesses such as
A18/1.5.2 of the Food Standards Code.50 manufacturers, packers, importers and retai-
The labelling requirements for packaged lers should be taking all reasonable steps to:
and bulk foods are based on the content of the a) find out whether a food or ingredient (in-
food. The law says: Food that contains gene- cluding additives and processing aids) is
tically modified DNA or protein must be label- genetically modified, then,
led. This means that any food, food ingredient, b) find out whether the food or ingredient is
food additive, food-processing aid or flavou- permitted under the Food Standards Co-
ring that contains genetically modified DNA or de, and
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N. PARSADANISHVILI, PROTECTION OF CONSUMERS AGAINST GENE ENGINEERING IN INTERNATIONAL LAW AND DOMESTIC LAW
on on mandatory labelling would not have en- Consumer groups, including the Con-
countered any problems and the protection of sumers Union of Japan, support the existing
consumer rights would have been promoted. mandatory labelling policy on GM food but they
call for a more restrictive framework. Their pri-
4.4. Japan mary concern is regarding the effectiveness of
The regulation of GM food labelling is sha- the GM labelling system where food products
red between two Ministries in Japan: a) The with GM ingredients less than 5% are not re-
Ministry of Health, Labour and Welfare, which quired to be labelled.70
is responsible for conducting scientific reviews In all the above discussed cases a GM
to assess the safety of new biotechnology va- product bears the marking on the packaging
rieties and carrying out safety assessment of if it is fully genetically modified and if the end
GM food labelling under the food sanitation product contains a GM ingredient the note on
law;62 b) The Ministry of Agriculture, Forestry being GM is made in the list of ingredients ac-
and Fisheries, which is responsible for regu- ross the GM one. However, it would have be-
lating the law concerning standardisation and en more expedient for the aforementioned in-
proper quality labelling of Agricultural and Fo- gredient to be moved to the packaging face or
restry products to enable consumers to make if it still stays on the list of ingredients it should
informed choices on food selection.63 be printed in larger font size than the one used
According to the new policy of 1 April 2001 for the others for a consumer, who reads the
on GM food labelling, for a food product that composition of the product for the detection of
contains any of the designated GM ingredi- a GM ingredient, to save his time and not to
ents, labelling is required if the GM ingredient read the whole text.
accounts for 5% or more of its total weight.64
4.5. Georgia
For food products containing GM ingredi-
ents which are not approved by Ministry of He- As demonstrated above, unlike the states
alth, it is illegal to either sell or import them into discussed in the article, there are no provisi-
Japan regardless of the content percentage.65 ons in Georgia regulating the labelling of GM
Labelling of Genetically modified products products. Due to this reason this Chapter re-
in Japan can be classified as: a) genetically fers to the necessity of elaboration of the GM
modified; b) containing genetically modified in- product labelling legislation in Georgia owing
gredient; g) not genetically modified. to a number of reasons, just because Georgia
The first category, or genetically modified is a party to the Rio-de-Janeiro Convention on
food includes such pre-packaged food pro- Biodiversity and Cartagena Protocol of Biosa-
ducts, which are required to be labelled un- fety, what itself means that these international
der the provisions of both the Food Sanitation acts are already in force for it and Georgia is
Law and the Agricultural and forestry Standard bound to fulfil the obligations assumed under
Law.66 the international treaties. Apart from this the
The second category food products are country has one more major reason for label-
the products which have not been handled ling or restriction of importation of GM pro-
according to the identity preserved basis and ducts or live organisms, specifically because,
may contain GM ingredients. Labelling is man- according to the assertions of the experts Ge-
datory for this category.67 And the food of the orgia has unique, internationally recognised
third category is non-GM food and labelling is gene fund, which “was first placed on the list
optional for this category and depends solely of top twenty-five, then of top fifteen and ulti-
on the choice of a company.68 mately of top seven global gene funds, me-
There are exemptions to the labelling re- aning that the world is concerned about and
quirements for some GM food. Labelling is vo- takes care of this gene fund and Georgia’s
luntary for: a) food in which recombinant DNA gene fund is the world heritage”.71 Owing to
have been eliminated or broken down; or b) joint efforts of the experts and the Members of
food that has GM content accounting for less the Parliament the elaboration of the draft law
than 5% of the total weight.69 on the importation and labelling of GM orga-
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nisms and products was launched. According gredient. The notice of increased allergenicity
to the statement of a Member of the Georgian of a GM product or ingredient should as well
Parliament Giorgi Goguadze the draft law will be attached to the product packaging. A con-
be reviewed at the 2010 spring session of the sumer should be informed about the result of
Parliament of Georgia. The draft Law provides all the tests, the GM products and ingredients
for the prohibition of the importation of GM live will be subject to and also the strict control is
organisms, that is seed and spawn and also to be introduced for checking data given on
for labelling of end products. Pursuant to his the packaging of goods, placed on the market
statement it is necessary to declare Georgia in order to prevent cases of potential fraud and
as a GM product free zone.72 There is no con- protect the interests of the consumers to maxi-
trol over GM products in Georgia. This situa- mum practicable extent.
tion is also promoted by the absence of res- Below are given two types of labelling of
pective laboratories in the country, where the a product, containing a GM ingredient, gene-
products and organisms placed on the market rated according to the product labelling legis-
will be tested. lation. It should be mentioned that the first
Insofar as there is no legislation in Geor- one is commonly used in countries, whether
gia to regulate the labelling of GM products it the legislation in the field of GM products is
is free to set standards which will be most ac- in place and the other one is the type, which
ceptable for the protection of consumer rights. will be desirable to be introduced in Georgia,
To this end, it would have been desirable for as such a label is more informative and provi-
the Georgian legislation to specify, that the des for the better protection of the interests of
words “genetically modified” should be inscri- the consumers. The label of bread containing
bed on the packaging of the GM products, and a generically modified ingredient is given as
should be printed in a larger font size in the an example:
list of product ingredients across the GM in-
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N. PARSADANISHVILI, PROTECTION OF CONSUMERS AGAINST GENE ENGINEERING IN INTERNATIONAL LAW AND DOMESTIC LAW
mation concerning the results of all the tests, promote the existence of the guarantees for
the GM products will be subjected to even if the protection of consumer rights in a country.
it is not established that the aforementioned
Annex: The List of Genetically Modified
consequences were not caused by a GM pro-
Products
duct, because a consumer has a right to make
1. Canola oil
an informed choice. The legislation should as
2. Red leafed chicory (Radicchio)
well make more stringent the control in relati-
3. Corn
on with the composition of products, placed on
4. Wheat
the market; also the inscription on the product
5. Papaya
packaging concerning the genetic modificati-
6. Potato
on should be more visible than non-genetically
7. Soybean
modified ingredients as in this case a consu-
8. Great pumpkin (Cucurbita maxima)
mer will be able to get the desirable for him
9. Potato
information concerning the existence of a GM
10. Long grain rice
ingredient in the product. Also it is desirable
11. Grapes
for the product packaging to bear the inscrip-
12. Wheat
tion concerning possible allergic or toxic con-
The List is not exhaustive. It includes pro-
sequence the consumption of MG product or
ducts, which quite frequently are the indispen-
ingredient may cause. This should in its turn
sable part of our everyday nutrition.
1
The Independent UK, The history of GM foods, 12 October 1999, available at:
<http://www.global-reality.com>, [hereinafter “The Independent UK”].
2
Ibid.
3
Petunia is a tropical plant in America, having pink, blue and lilac flowers.
4
The Independent UK, supra note 1.
5
Ibid.
6
Why there has been concern about GM foods among some politicians,
public interest groups and consumers especially in Europe, 20 Questions on
Genetically Modified foods, available at: <http://www.who.int>.
7
Ibid.
8
Ibid.
9
The Independent UK, supra note 1.
10
Ibid.
11
Genetically modified food, Glossary, available at: <http://www.greeniacs.com>.
12
Genetically modified food altering blueprint of life, available at: <http://www.
healingdaily.comz >.
13
Ibid.
14
Ibid.
15
Genetically modified food in your supermarket?, available at: <http://www.
healingdaily.com>.
16
Chemical, which destroys plants.
17
Ibid.
18
Ibid.
19
Scarcity of safety tests, available at: <http://www.actionbioscience.org >, [Herei-
nafter – “Scarcity of safety tests”].
20
J.L. Domingo, Health risks of genetically modified foods: Many opinions but few
data. Science 288, 2000, 1748-1749, Cited from: Scarcity of safety tests, See:
supra note 19.
21
E. Millstone, E. Brunner and S. Mayer, Beyond substantial equivalence. Nature
401, 1999, 525-526., Cited from: Scarcity of safety tests, available at: <http://www.
actionbioscience.org >.
22
Scarcity of safety tests, See: supra note 19.
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23
Plasmid – A plasmid is an extra-chromosomal DNA molecule separate from
the chromosomal DNA which is capable of replicating independently of the
chromosomal DNA. It often contains medicine resistance genes. Is used in gene
engineering.
24
Scarcity of safety tests, See: supra note 19.
25
K. Redenbaugh, W. Hatt, B. Martineau, M. Kramer, R. Sheehy, R. Sanders, C.
Houck, and D. Emlay, A case study of the FLAVR SAVRTM tomato. In: Safety
Assessment of Genetically Engineered Fruits and vegetables. CRC press, Boca
Raton, 1992, Cited from: Scarcity of safety tests, available at: <http://www.
actionbioscience.org >.
26
Scarcity of safety tests, See: supra note 19.
27
Science studying organ tissues.
28
Scarcity of safety tests, See: supra note 19.
29
Compositional studies, available at: <http://www.actionbioscience.org>.
30
Ibid.
31
S.R. Padgette, N.B. Taylor, D.L. Nida, M.R. Bailey, J. MacDonald, L.R.
Holden, and R.L. Fuchs, The composition of glyphosate-tolerant soybean
seeds is equivalent to that of conventional soybeans. Journal of Nutrition 126,
1996, 702-716. Cited from: Compositional studies, available at: <http://www.
actionbioscience.org>.
32
Convention of biological diversity, three main goals, available at:
<http://www.cbd.int>.
33
M. Crenson, U.S. Joins GM foods treaty, Montreal, 29 January, available at:
<http:abcnews.go.com>.
34
Ibid.
35
Ibid.
36
D. Wong, Genetically modified food labeling, Codex Alimentarius commission, 7,
available at: <http://www.legco.gov.hk>, [hereinafter “D. Wong”].
37
FAO, “Report of the Thirtieth Session of the Codex Committee on food labeling”,
Halifax, Canada, 6-10 May 2002, ALINORM 03/22, available at: <http:// www.
legco.gov.hk>.
38
Ibid.
39
D. Wong, See: supra note 37.
40
Ibid.
41
G.P. Gruère, Program for Biosafety systems, Labeling Polices for Genetically
Modified food, A multiplicity of national approaches, available at: <http://www.
cbd.int>.
42
Ibid.
43
Public concern affected marketing of GM foods in the European Union, available
at: <http://www.who.int>.
44
Ibid.
45
Ibid.
46
Ibid.
47
Regulation (EC) No 1829/2003, Paragraph 1 of Article 13.
48
Regulation (EC) No 1829/2003, Paragraph 1 of Article 25.
49
D. Wong, Genetically modified food labeling, Australia, available at:
<http://www.legco.gov.hk>.
50
What are the labelling requirements for genetically modified food?, available at:
<http://www.mfe.govt.nz>.
51
What will be labeled?, available at: <http://www.mfe.govt.nz>.
52
Ibid.
53
Ibid.
54
How does the GM labeling requirement work?, available at:
<http://www.mfe.govt.nz>.
55
What will a label look like?, available at: <http://www.mfe.govt.nz>.
56
Food prepared in restaurants, cafés and takeaways, available at:
<http://www.mfe.govt.nz>.
150
N. PARSADANISHVILI, PROTECTION OF CONSUMERS AGAINST GENE ENGINEERING IN INTERNATIONAL LAW AND DOMESTIC LAW
57
Compulsory GM labeling requirement, available at: <http://www.mfe.govt.nz>.
58
WHO, Application of the Principles of Substantial Equivalence to the Safety
Evaluation of Foods or Food Components from Plants Derived by Modern
Biotechnology, Report of a WHO workshop, 1995, (WHO/FNU/FSO/95.1); and
OECD, Safety Evaluation of Foods Derived by Modern Biotechnology: Concepts
and Principles, Paris, 1993.9HHS, FDA, Federal Register, Vol. 57 No. 104,
Statement of Policy: Foods Derived from New Plant Varieties, 29 May 1992,
22984, Cited from: D. Wong, Genetically modified food labeling, U.S., available at:
[http://www.legco.gov.hk].
59
Centre for Food Safety and Applied Nutrition, FDA, Draft Guidance for Industry:
Voluntary Labelling Indicating Whether Foods Have or Have Not Been Developed
Using Bioengineering, January 2001, Cited from: D. Wong, Genetically modified
food labeling, U.S., available at: [http:// www.legco.gov.hk].
60
Ibid.
61
Program on International Policy Attitudes, Biotechnology, available at: [http://www.
americans-world.org].
62
Hereinafter the Ministry of Health.
63
D. Wong, Genetically modified food labeling, Japan, available at: [http://www.
legco.gov.hk].
64
Ibid.
65
Ibid.
66
Ibid.
67
Policy Planning Division, Department of Food Safety, Pharmaceutical and Food
Safety Bureau, MHLW, Mandatory Labelling of Genetically Modified Foods and
Foods Containing Allergens, available at: [http://www.mhlw.go.jp].
68
D. Wong, See: supra note 65.
69
Ibid.
70
Ibid.
71
Z. Gegechkori, Interview for Business Courier, video archive, 26.06.09, available
at: [http://www.rustavi2.com].
72
D. Kirvalidze, Time for genetically modified products will be found in fall, available
at: [http://www.polity.ge].
151
nino kilasonia
152
n. kilasonia, bavSvTa saerTaSoriso gatacebis samoqalaqo aspeqtebi
153
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
154
n. kilasonia, bavSvTa saerTaSoriso gatacebis samoqalaqo aspeqtebi
155
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
156
n. kilasonia, bavSvTa saerTaSoriso gatacebis samoqalaqo aspeqtebi
157
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
158
n. kilasonia, bavSvTa saerTaSoriso gatacebis samoqalaqo aspeqtebi
rom konvenciis 21-e muxli exeba mxolod igi daukavSirdeba respondent mSobels
ukve dadgenil urTierTobis uflebas imis dasadgenad, SesaZlebelia Tu ara
da ar vrceldeba im SemTxvevaze, roca mSoblebs Soris SeTanxmebis miRweva da
sasamarTlos pirvelad mimarTaven, ra- gamoiyenebs yvela saSualebas mxareTa
Ta gansazRvros bavSvTan urTierTobis Soris konfliqtis aRmosafxvrelad.
ufleba, Tumca isic unda iqnes gaTva- garda amisa, zusti meTodebi, romle-
liswinebuli, rom pirveli gancxadeba bic unda gamoiyenos centralurma or-
sasamarTlos mimarT, rogorc wesi, unda ganom konvenciis 21-e muxlis implemen-
efuZnebodes arguments, rom bavSvTan taciisas, aris centraluri organoebis
urTierTobis ukve arsebuli ufleba diskrecia da ukavSirdeba maT Soris ur-
(miniWebuli mSoblisaTvis) marTlac im- TierTdaxmarebis efeqtur realizacias,
saxurebs dacvas.51 am dros zomebi, romlebic centralurma
amasTan, ufleba imisa, rom efeqtu- organom unda miiRos, damokidebuli iq-
rad ganaxorcielo konvenciis 21-e mux- neba TiToeuli konkretuli SemTxvevis
lis Sesabamisad gansazRvruli `urTi- specifikasa da centraluri organos ga-
erTobis ufleba~, ar izRudeba mxolod dawyvetilebaze.54
ganmcxadeblis sasargeblod gamota-
nili sasamarTlo gadawyvetilebis ar-
daskvna
sebobis SemTxvevaSi, romelic cnobs an
awesebs `urTierTobis uflebas~. saqmis `bavSvTa saerTaSoriso gatacebis sa-
gadawyveta garTulebulia maSin, roca moqalaqo aspeqtebis Sesaxeb~ haagis 1980
ganmcxadebeli acxadebs, rom mas kanonis wlis 25 oqtombris konvencia aris mniS-
safuZvelze aqvs miniWebuli bavSvTan vnelovani saerTaSoriso instrumenti,
`urTierTobis ufleba~, an, roca kano- romelic uzrunvelyofs bavSvebis sa-
niT miniWebuli aqvs iseTi statusi, ro- erTaSoriso dacvas maTi aramarTlzo-
melic momavalSi unda gaxdes bavSvTan mieri gadaadgilebis an dakavebis mavne
`urTierTobis uflebis~ mopovebis sa- Sedegebisagan da am mizniT xelSemkvrel
fuZveli.52 saxelmwifoebs akisrebs garkveul pasu-
amave dros, konvenciis 21-e muxlSi, xismgeblobas, rac imiT gamoixateba, rom
romelic bavSvTan urTierTobis ufle- TiToeuli maTgani valdebulia ganaxor-
bas exeba, saubaria imaze, rom konvenci- cielos konvenciis normebisa da debu-
is xelSemkvreli mxaris centraluri lebebis Sida kanonmdeblobaSi implemen-
organoebi valdebulni arian, xeli Se- tacia.
uwyon urTierTobis uflebaTa mSvido- zemoaRniSnuli valdebulebis uz-
bian gamoyenebas da nebismieri im piro- runvelyofis mizniT zogierT saxelmwi-
bis Sesrulebas, romelsac am uflebiT foSi, marTlac, moqmedebs specialuri
sargebloba SeiZleba eqvemdebarebodes. samarTlebrivi aqti, romelSic dawvri-
amasTan, isini valdebulni arian, aRmof- lebiT aris asaxuli `bavSvTa saerTaSo-
xvran yvela dabrkoleba, romelic xels riso gatacebis samoqalaqo aspeqtebis
uSlis am uflebaTa realizacias. Tumca Sesaxeb~ konvenciidan gamomdinare mniS-
magaliTs imisas, Tu riTi unda iqnes uz- vnelovani debulebebi, zogierT saxel-
runvelyofili zemoaRniSnuli uflebe- mwifoSi ki msgavsi debulebebi Tavmoy-
bis realuri ganxorcieleba, konvencia rilia samoqalaqo da sisxlis samarTlis
ar iZleva.53 kodeqsebSi.
meTodebi, romlebic konvenciis Se- aRsaniSnavia, rom saqarTvelos Sida
sabamisad SeiZleba gamoyenebul iqnes kanonmdeblobaSi ar arsebobs bavSvTa
bavSvTan urTierTobis sakiTxis mSvi- saerTaSoriso gatacebis samoqalaqo
dobianad gadasawyvetad, mniSvnelovnad aspeqtebTan dakavSirebuli sakiTxebis
gansxvavdeba erTmaneTisagan. minimumi, maregulirebeli samarTlebrivi baza,55
rac Suamdgomlobis mimReb centralur miuxedavad imisa, rom saqarTvelo 1995
organos SeuZlia gaakeTos, aris is, rom wlis 14 Tebervals miuerTda `bavSvTa
159
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
1
ix. gaeros `bavSvis uflebaTa dacvis konvencia~, 1989 wlis 29 noemberi,
preambula.
2
ix. The importance of contact, Transfrontier Contact Concerning Children, General
Principles and Guide to Good Practice, Hague Conference on Private International
law, Jordan Publishing, 2008, 4; aseve SegiZliaT ixiloT <www. hcch.net.> =>
Child Abduction Section => Non Hague Convention Child Abductions.
3
ix. E. Perez-Vera, Explanatory Report on the Convention on the Civil Aspects of
International Child Abduction, 426, <www. hcch.net.> => Child Abduction Section
=> Explanatory Documents.
4
haagis konvencia `bavSvTa saerTaSoriso gatacebis samoqalaqo aspeqte-
bis Sesaxeb~, 1980 wlis 25 oqtomberi, pirveli muxli.
5
ix. The Child Abduction Convention 25 years on, The Judges’ Newsletter, tome
XI/2006, Special focus the Hague Convention of 25 October on the Civil Aspects
of International Child Abduction-25 years on, 8.
6
SemdgomSi – `konvencia~.
7
Guide to Good Practice under the Hague Convention of 25 October 1980 on
the Civil Aspects of International Child Abduction, Part III-preventive measures,
Jordan Publishing, 2005, 5; aseve SegiZliaT ixiloT <www. hcch.net.> =>
Child Abduction Section => Guide to Good Practice.
8
ix. Report of the third Special Commission meeting to review the operation of
the Hague Convention on the Civil Aspects of International Child Abduction,
Proceedings of the nineteenth Session, Tome I, Miscellaneous matters, Edited by
the Permanent Bureau of the Conference, published by Koninklijke Brill NV, 2008,
453-455.
9
ix. Overall conclusions of the special commission of October 1989 on the Civil
Aspects of International Child Abduction, drawn up by the Permanent Bureau,
conclusion 6, <www. hcch.net.> => Child Abduction Homepage=> Practical Op-
eration Documents.
10
ix. Report of the third Special Commission meeting to review the operation of
the Hague Convention on the Civil Aspects of International Child Abduction,
Proceedings of the nineteenth Session, Tome I, Miscellaneous matters, Edited by
the Permanent Bureau of the Conference, published by Koninklijke Brill NV, 2008,
453-455.
11
iqve, 455.
12
ix. Family Law and children’s rights, The legal protection of children and the family,
http://www.coe.int/t/e/legal_affairs/legal_cooperation/family_law_and_children%27s_
rights/.
160
n. kilasonia, bavSvTa saerTaSoriso gatacebis samoqalaqo aspeqtebi
13
amasTan, konvencia iTvaliswinebs specialur wess, romlis Sesabamisadac
unda ganxorcieldes konvencias mierTebuli ama Tu im saxelmwifos aRi-
areba sxva saxelmwifoTa mier. magaliTad: saqarTvelosTvis konvencia
ZalaSia 1997 wlis 1 oqtombridan da Cveni saxelmwifos konvenciasTan
mierTeba aRiara mravalma saxelmwifom, Tumca amerikis SeerTebuli
Statebis mier saqarTvelos konvenciasTan mierTeba jer ar aris aRiare-
buli. aqve isic unda aRiniSnos, rom saqarTvelom, Tavis mxriv, aRiara
ukve SemdgomSi sxva saxelmwifoebis – ukrainis, bulgareTis, beloru-
sis, latviis, litvis – mierTeba konvenciasTan, magram, imavdroulad, ar
ucvnia somxeTis respublikis, uzbekeTisa da sxvaTa mierTeba.
14
haagis konvencia `bavSvTa saerTaSoriso gatacebis samoqalaqo aspeqte-
bis Sesaxeb~, 1980 wlis 25 oqtomberi, me-7 muxli.
15
ix. Transfrontier Access/contact General Principles and Good Practice (The
Hague, 30 October – 9 November 2006), drawn up by William Duncan, Deputy
Secretary General, Preliminary Document No. 4 of October 2006 for the atten-
tion of the fifth meeting of the Special Commission to review the operation of the
Hague Convention of 25 October 1980 on the Civil Aspects of International Child
Abduction, 14, <www. hcch.net.> => Child Abduction Homepage => Practical Op-
eration Documents.
16
ix. 25 years further on-the civil law perspective, The Judges’ Newsletter, tome
XI/2006, Special focus the Hague Convention of 25 October on the Civil Aspects
of International Child Abduction – 25 years on, 12.
17
ix. E. Perez-Vera, “Explanatory Report on the Convention on the Civil Aspects of
International Child Abduction”, 442, <www. hcch.net.> => Child Abduction Section
=> Explanatory Documents.
18
ix. The Child Abduction Convention 25 years on, The Judges’ Newsletter, tome
XI/2006, Special focus the Hague Convention of 25 October on the Civil Aspects
of International Child Abduction – 25 years on, 9.
19
ix. “Report of the second special commission meeting to review the operation of
the Hague Convention on the Civil Aspects of International Child Abduction (18-
21 January 1993)”, drawn up by the Permanent Bureau, question No.5-response
No.5 (b), <www. hcch.net.> => Child Abduction Homepage => Practical Operation
Documents. magaliTad: ohaios Statis samxreTis olqis federalurma
saolqo sasamarTlom saqmeze – fridrixi fridrixis winaaRmdeg – gam-
oitana gadawyvetileba, romliTac bavSvis Cveulebriv sacxovrebel
adgilad miiCnia germania. am saqmis mixedviT, gatacebuli bavSvis ded-
mama erTad imyofebodnen germaniaSi da bavSvic mSoblebTan cxovrob-
da maT ganqorwinebamde. ganqorwinebis Semdeg dedam, romelic amer-
ikeli samxedro mosamsaxure iyo, bavSvis amerikaSi gadaadgilebamde
ramdenime dRiT adre igi germaniis samxedro bazaSi waiyvana sacxo-
vreblad. bavSvis gatacebis aRniSnul saqmezeamerikis SeerTebuli
Statebispirveli instanciis sasamarTlom gamoitana gadawyvetileba,
romelSic miuTiTebda, rom bavSvis Cveulebrivi sacxovrebeli adgili
iyo amerikis SeerTebuli Statebi da mama gadaadgilebamde realurad
ar axorcielebda bavSvze meurveobas. saapelacio sasamarTlom gaauqma
qveda instanciis sasamarTlo gadawyvetileba da daadgina, rom bavSvis
sacxovrebeli adgili mis gadaadgilebamde germania iyo. garda amisa,
pirveli instanciis sasamarTlos daubruna saqme da daavala, germanuli
samarTlis mixedviT ganesazRvra, mama realurad axorcielebda Tu ara
bavSvze meurveobas.
20
ix. iqve, Question No.5 – Response No.5 (b).
21
ix. Report on the fifth meeting of the special commission to review the operation
of the Hague Convention of 25 October on the Civil Aspects of International Child
Abduction and the practical implementation of the Hague Convention of 19 October
1996 on Jurisdiction, Applicable law, recognition, enforcement and co-operation in
respect of parental responsibility and measures for the protection of children (30
October -9 November 2006), drawn up by the Permanent Bureau, March 2007, at
161
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
44-45. <www. hcch.net.> => Child Abduction Homepage => Practical Operation
Documents.
22
ix. E. Perez-Vera, Explanatory Report on the Convention on the Civil Aspects of
International Child Abduction, 428, <www. hcch.net.> => Child Abduction Section
=> Explanatory Documents.
23
iqve, 442.
24
iqve, 444.
25
dawvrilebiT ix. haagis konvencia `bavSvTa saerTaSoriso gatacebis
samoqalaqo aspeqtebis Sesaxeb~, 1980 wlis 25 oqtomberi, me-3 muxlis ,,g~
qvepunqti.
26
Report of the second special commission meeting to review the operation of the
Hague Convention on the Civil Aspects of International Child Abduction (held
18-21 January 1993)” conclusion No.2, <www. hcch.net.> => Child Abduction
Homepage => Practical Operation Documents.
27
Overall conclusions of the special commission of October 1989 on the operation
of the Hague Convention of 25 October 1980 on the Civil Aspects of International
Child Abduction, drawn up by the Permanent Bureau, conclusion 9, <www. hcch.
net.> => Child Abduction Homepage => Practical Operation Documents.
28
ix. iqve, Conclusion 9. magaliTad: avstraliaSi dadgenilia, rom `meurveo-
ba~ eniWeba erT mSobels, Tumca aseT SemTxvevaSic avstraliis kanonmde-
bloba gansazvravs, rom orive mSobelma erToblivad isargeblos bavS-
vze mzrunvelobis uflebiT da mSobels, romelmac, kanonis Sesabamisad,
ver moipova meurveoba, aucileblad unda gamosTxovon Tanxmoba bavSvis
avstraliidan gadaadgilebis SemTxvevaSi.
29
ix. iqve, Conclusion 10.
30
ix. E. Perez-Vera, “Explanatory Report on the Convention on the Civil Aspects
of International Child Abduction”, 447-448 <www. hcch.net.> => Child Abduction
Section => Explanatory Documents.
31
ix. Council Regulation (EC) No.2201/2003 of November 2003 concerning juris-
diction and the recognition and enforcement of judgments in matrimonial matters
and the matters of parental responsibility, romlis me-2 muxlis me-7 punqtis
Sesabamisad, mSoblis ufleba gulisxmobs bavSvsa Tu mis qonebaze yve-
lanair uflebas an valdebulebas, romlebic miniWebuli aqvs fizikur
Tu iuridiul pirs kanoniT an sasamarTlo gadawyvetilebiT, an kidev
SeTanxmebiT, romelsac kanonieri Zala aqvs. aRniSnuli cneba aseve
SeiZleba moicavdes meurveobisa da urTierTobis uflebas.
32
dawvrilebiT ix. haagis konvencia `bavSvTa saerTaSoriso gatacebis
samoqalaqo aspeqtebis Sesaxeb~, 1980 wlis 25 oqtomberi, me-5 muxlis `a~
qvepunqti.
33
ix. E. Perez-Vera, Explanatory Report on the Convention on the Civil Aspects of
International Child Abduction, 447 <www. hcch.net.> => Child Abduction Section
=> Explanatory Documents.
34
ix. iqve, 448.
35
ix. Report of the third Special Commission meeting to review the operation of
the Hague Convention on the Civil Aspects of International Child Abduction,
Proceedings of the nineteenth Session, Tome I, Miscellaneous matters, Edited
by the Permanent Bureau of the Conference, published by Koninklijke Brill NV,
2008, 457. aRsaniSnavia, rom, saqmis garemoebebis mixedviT, col-qmari
1990 wels gaSorda erTmaneTs da bavSvze droebiTi meurveobis ufleba
mieniWa mamas, sanam deda moipovebda bavSvze permanentuli meurveobis
uflebas. 1991 wels dedam ganaaxla bavSvze meurveoba da 1993 wels bavS-
vi waiyvana israelSi. Sesabamisad, zemoaRniSnuli garemoeba gaiTval-
iswina sasamarTlom da miiCnia, rom mamas ar hqonda bavSvis dabrunebis
moTxovnis ufleba, radganac igi bavSvis gadaadgilebamde realurad
ar axorcielebda masze meurveobas. bavSvis gatacebis gansxvavebuli
SemTxveva dafiqsirda avstraliaSi. saqmis mixedviT, bavSvi gadaeca
papa-bebias, romlebic axorcielebdnen masze mzrunvelobas. maT bavS-
162
n. kilasonia, bavSvTa saerTaSoriso gatacebis samoqalaqo aspeqtebi
163
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
law, Jordan Publishing, 2008, 44; aseve SegiZliaT ixiloT <www. hcch.net.>
=> Child Abduction Section => Non Hague Convention Child Abductions.
49
The importance of contact, Transfrontier Contact Concerning Children, General
Principles and Guide to Good Practice, Hague Conference on Private International
law, Jordan Publishing, 2008, 44; aseve SegiZliaT ixiloT <www. hcch.net.>
=> Child Abduction Section => Non-Hague Convention Child Abductions.
50
ix. E. Perez-Vera, Explanatory Report on the Convention on the Civil Aspects of
International Child Abduction, 465. <www. hcch.net.> => Child Abduction Section
=> Explanatory Documents.
51
ix. Transfrontier Access/contact General Principles and Good Practice (The
Hague, 30 October – 9 November 2006), drawn up by William Duncan, Deputy
Secretary General Preliminary Document No. 4 of October 2006 for the atten-
tion of the fifth meeting of the Special Commission to review the operation of the
Hague Convention of 25 October 1980 on the Civil Aspects of International Child
Abduction, 17-18, <www. hcch.net.> => Child Abduction Homepage=> Practical
Operation Documents.
52
The importance of contact, Transfrontier Contact Concerning Children, General
Principles and Guide to Good Practice, Hague Conference on Private International
law, Jordan Publishing, 2008, 45; aseve SegiZliaT ixiloT <www. hcch.net.>
=> Child Abduction Section => Non Hague Convention Child Abductions.
53
ix. E. Perez-Vera, “xplanatory Report on the Convention on the Civil Aspects of
International Child Abduction”, 465. <www. hcch.net.> => Child Abduction Section
=> Explanatory Documents.
54
ix. iqve, 16.
55
amasTan, konvenciis mixedviT ganisazRvra centraluri organo saqarT-
velos iusticiis saministros saerTaSoriso sajaro samarTlis depar-
tamentis saxiT, romelic uflebamosilia, koordinacia gauwios `bavS-
vebis gatacebasTan dakavSirebuli samoqalaqo aspeqtebis Sesaxeb~ 1980
wlis konvenciis efeqtur implementacias da konvenciiT gaTvaliswi-
nebuli miznebis Sesabamisad calkeuli saxis RonisZiebebis gatarebas.
amdenad, am departamentSi mimdinareobs aqtiuri muSaoba, Tu rogori
saxiT unda Camoyalibdes konvenciidan gamomdinare debulebebi saqarT-
velos Sida kanonmdeblobaSi.
164
NINO KILASONIA
165
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
nal proceedings may cause an unfavourable rity concerned is a constituent part of,15 mea-
environment between the family members and ning that the Convention should be regarded
ultimately the right to custody may be transfer- as an instrument, connecting various legal
red to the abducting parent, if such transfer of systems.16
the custodial right will be in the best interests When speaking about the international
of the child.10 nature of the Convention it should as well be
Consequently, it is apparent, that the Con- mentioned, that it does not contain any pro-
vention on the Civil Aspects of International vision which would provide for the internati-
Child Abduction regulates the civil and not cri- onal implication of the cases envisaged by
minal law aspects of the child abduction. Res- the Convention. Such a conclusion derives
pectively, when assessing the legal nature of from its title and various articles. For exam-
a case regulated by the Convention the terms ple, the fact, that interested persons are the
“child abduction” should not be misleading.11 nationals of various countries does not mec-
hanically grant the international implication to
a specific case of child abduction, envisaged
THE CONVENTION AS THE INTERNATIONAL
by the Convention. To this end it is necessary
INSTRUMENT FOR FIGHTING INTERNATIONAL
for the case concerned to fall within the scope
CHILD ABDUCTION
of the relations regulated by the Convention.
Discussing the international nature of child The Convention covers the cases, when one
abduction one should mention why, why the of the family members wrongfully removes a
abduction cases under the Convention exce- child abroad or has a desire to have relation-
ed the boundaries of a specific state and ac- ship with a child not at the habitual place of
quires international implication. residence thereof but rather on the territory of
In practice it is often a case that issues, the state he/she has a residence. These very
falling within the realm of family law, cannot cases make up the meaning of the concept of
be settled on the national level, active involve- an “international case” regulated by the Con-
ment of other states is required for rendering vention.17
final decision thereof.12 Under these circum- Based on the foregoing it is apparent that
stances the necessity of negotiation of treaty, the Convention is the most important achieve-
such as the Hague Convention on the Civil ment of the current international law on chil-
Aspects of the International Child Abduction, dren,18 which aims at securing the prompt re-
arises; the latter is one of the most important turn of children wrongfully removed to or retai-
means of international legal co-operation bet- ned in any Contracting State and ensuring that
ween the states in the field of the family law.13 rights of custody and access guaranteed by
The Convention provides for the obligati- the law of one Contracting State are effectively
on for Contracting parties to designate a Cen- respected in the other Contracting States.
tral Authority in order to co-operate with each
other and promote the co-operation amongst
WRONGFUL REMOVAL OR RETAINING
the competent domestic authorities in their
OF A CHILD
respective State to secure prompt return of a
child and achieve the other objectives of this The Hague Convention is applicable in
Convention.14 Furthermore, the Central Autho- child abduction cases if child was wrongfully
rities, which according to the Convention are removed or retained; the latter situation serves
the main subjects of interstate relationships, as the only basis for applying the Convention
should be created on the basis of law and ha- and at the same time, guaranteeing observan-
ve the respective mandate, powers and reso- ce of its main purpose – prompt return of the
urces to secure the efficient discharge of their child to the habitual place of residence. Howe-
duties. The practical operation of the Hague ver, the meaning of wrongful removal or re-
Convention evidences that the Central Autho- tention might be explained only after the term
rity is a kind of window for a foreign applicant child’s “habitual place of residence” interpre-
to gain access to the legal system, the Autho- ted. According to the Convention the habitual
166
N. KILASONIA, THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
residence of a child is the place, where it sta- The Convention defines custody specif-
yed before wrongful removal or retention. Ho- ying that “rights of custody” cover the right to
wever, it should be mentioned that in practice take care of a child and to define the habitual
the identification of the habitual residence of a residence thereof.25
child is rather complicated.19 However, the definition of the “rights of
Some scholars believe, that international custody”, given in the Convention does not
law and not the domestic legislation of a spe- coincide with the definitions, contained in the
cific state should be applied for the definition laws of the various contracting Parties.26
of the concept of “habitual residence”, as well The concept of the “rights of custody”, as
as of the concept of “custody right”.20 referred to in the Convention, constitutes an
Many scholars are of the opinion that the independent concept (idea, intention, under-
concept of habitual residence should not be standing) and it is not binding for the Mem-
defined at all and that a judge is to determine ber States to maintain definitions of “custody
whether which place is the habitual residence rights” in their domestic legislation correspon-
of a child on a case-by-case.21 ding to the conventional wording. Since each
Together with the discussion of the opi- domestic legal system has its own terminology
nions concerning the habitual residence of a for the denomination of the rights which touch
child it is also important to establish whether upon the care and control of children, it is ne-
what is meant under the wrongful removal or cessary to look to the content of the rights and
retention of a child for the better understan- not merely to their name.27
ding of the purposes of the Convention. In general, granting the custody right to
According to Article 3 of the Hague Con- one of the parents under the national legisla-
vention: “The removal or the retention of a tion of a Contracting Party shall not lead to
child is to be considered wrongful where it is automatic transfer of all elements of the rights
in breach of rights of custody attributed to a of custody to that parent within the meaning
person, an institution or any other body, either of the Hague Convention .28
jointly or alone, under the law of the State in The aforementioned position is supported
which the child was habitually resident imme- by the case that occurred in France. This case
diately before the removal or retention and at clearly conveys the essence of the definition
the time of removal or retention those rights of the “custody right” enshrined in the Conven-
were actually exercised, either jointly or alone, tion: The father had been granted temporary
or would have been so exercised but for the custody rights by the English court pending
removal or retention”. a final decision however ordering the father
Consequently, every case, when a child not to take the children outside the territory
is taken away from that social environment of England and Wales without consent of the
where he is growing and where the custody mother. The father took the children to France
is lawfully exercised over it by a natural or le- without obtaining the consent either of the mot-
gal person, should be deemed as wrongful her or of the court and opposed the request for
removal.22 A child is wrongfully retained when return, in part, on the grounds that the mother
it, with the consent of the person who normally allegedly had had no “rights of custody” under
has the custody, is moved abroad but is not English law immediately before the removal of
returned by the person with whom it was sta- the children, and that even if her right to give
ying.23 or refuse consent to their removal had consti-
The aforementioned evidences, that thro- tuted “rights of custody” within the meaning of
ugh the suppression of wrongful removal or re- Article 5 a of the Hague Convention, she had
tention of a child the authors of the Convention not in any case been actually exercising any
try to protect the custody right, envisaged by such right. Based on the foregoing the father
the law of the state of child’s habitual residen- opposed to the return of the children. The Co-
ce and also the possibility of actual exercise urt of Appeal held that the right of the mother
of this right, which is violated through wrongful to give or refuse consent to removal of the
removal or retention of a child.24 children, coupled with the father’s award of
167
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
“custody”, had created a form of joint custody where the child was wrongfully removed or re-
within the meaning of the Convention, since tained. As regards the existence of an agree-
“rights of custody” as contemplated therein ment on custody, having legal effect, this may
referred specifically to the right to determine be a simple arrangement between the parties
the child’s place of residence. The court fo- concerning custody related issues, which has
und that the mother had been exercising such its legal consequences and which may provi-
rights, since she objected promptly when the de for the basis for presenting a legal claim to
father removed the children without consulting competent authorities.33
her and pursued in a timely manner a requ- It is also noteworthy that according to the
est for return of the children under the Hague Convention, removal of a child is wrongful,
Convention.29 when the person, who is deprived of the right
The Convention also provides for joint to access to the child is actually exercising the
custody. The custody over a child may be held right to custody, which is violated by the ab-
by either of the parents or by both jointly. Com- ductor through wrongful removal or retention
mensurate with the Convention, the legal enti- of the child.34
ties may as well enjoy the right to custody over The opinions differ about the meaning of
a child. The special attention should be drawn actual exercise of the rights of custody. It sho-
to cases of child abduction, when parents jo- uld be mentioned that there are many cases
intly exercise the right to custody and he/she in practice, when a parent, who had enjoyed
is abducted by the either of them without the the rights of custody to a child, is refused to
consent of the other. Of course, such an action have the child back just because the latter did
shall be deemed to be illegal as deprives the not actually exercise the custody or did not live
other parent to exercise the right of custody with the child for a certain period of time. The
granted by the law.30 Barbee v. Barbee case was decided by the
Consequently joint custody shall be appli- Israeli Supreme Court in 1994. The court re-
ed to cases when one parent is enjoined the fused to order the return of the child to the fat-
right by the law or by the court judgment to her because he was not actually exercising his
define the residence of a child without the con- rights of custody but only visitation rights.35
sent of the other parent, who as well holds the Generally, it is presumed that the questi-
parental responsibility .31 on of whether or not a parent was ~actually
Thus the Convention specifically refers exercising~ custody rights should be determi-
to the rights of custody and its legal basis as ned with reference to particular acts which a
one of the main objects of protection by it. The parent was able to carry out in the exercise of
rights of custody, under the Convention, may such rights.36
arise by operation of law or by reason of a Apart from this it is interesting to define,
judicial or administrative decision, or by rea- whether the law of which state should apply in
son of an agreement having legal effect under the case of establishment of wrongful removal
the law of the State of habitual residence of a or retention of a child.
child.32 Insofar as through securing the prompt
Therefore, the rights of custody, guarante- return of wrongfully removed or retained chil-
ed by the Convention may originate not only by dren to the habitual residence the Convention
operation of law, but also on the basis of a ju- guarantees the right of custody, which was
dicial or administrative decision, which means actually exercised according to the law of the
a decision of the court or administrative body state where the child was habitually resident
of the state, where the child resided immedia- immediately before wrongful removal or re-
tely before its wrongful removal or retention. A tention, the laws of the aforementioned sta-
judicial decision also implies a judicial decisi- te should apply when resolving the question,
on of a third state, for the recognition of which whether the child was wrongfully removed or
the Convention does not provide for any spe- retained. Furthermore, the application of the
cial rule. The main point is for the aforementio- law of the state of habitual residence of a child
ned decision to be legally binding in the state, is logical as the Convention does not deal with
168
N. KILASONIA, THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
the issues related to the custody of the child, equal and regular relationship of a child with
but is rather limited to its return and ensuring both of the parents.39 The same is proved by
the right to access to it.37 the decision of the European Court of Human
Consequently, it is apparent, that the co- Rights in Scozzari and Giunta v. Italy (13 July
urts of the state of child’s habitual residence 2000) case, where it is recognised that ties
have the prevailing jurisdiction over cases on between more relatives, such as grandparents
custody and related claims.38 and grandchildren, may also be protected un-
The aforementioned explanations and der the UN Convention.40
examples lead us to the following conclusi- Under the Hague Convention the “rights of
on: the specific case of child removal shall access~ means the right to take a child for a
be deemed as illegal and accordingly the Con- limited period of time to a place other than the
vention shall by applied only if legal and fac- child’s habitual residence.41
tual requirements of the Convention are met. Furthermore, the Convention mentions the
In particular, a person, an organisation or an terms: “custodial parent” and “contact parent”.
institution that held the custody of the abduc- The first one means the parent with whom the
ted child, is supposed to actually exercise (the child has his or her usual or habitual residen-
factual element) custody, granted thereupon ce, whilst the other – the parent holding or cla-
by operation of law or by judgment or adminis- iming rights of contact in respect of a child.42
trative decision or by agreement having legal It should be mentioned that the term “con-
effect (legal element), what is violated by the tact” is used in a broad sense in practice to
abduction of the child. include the various ways in which a non-cus-
When the aforementioned factual and todial parent (and sometimes a person other
legal elements coexist – the abduction of a than a parent) maintains personal relations
child, a person, who was obstructed in exerci- with a child. At the same time contact includes
sing the right of custody of a child, is entitled access and visitation as well as distance com-
to apply to the competent authority of his/her munications.43
country for the application of the necessary Although according to the definition of the
measures for the return of the child. “right of access”, given in the Convention im-
plies the removal of a child to the place other
than the child’s habitual residence, the fore-
THE RIGHT OF ACCESS
going does not exclude the possibility of the
Along with one of the main goals of the person to access the child not only at the pla-
Convention – which was discussed above – ce which is not the habitual place of residence
return of wrongfully removed or retained child of a child, but the place of habitual residence
– one should keep in mind another important as well.44
task of the Convention – securing the right of It should be mentioned that such incom-
access to a child. plete definition of the term “right of access” gi-
It is commonly acknowledged that for nor- ves rise to many questions in practice. In parti-
mal development of a child it is necessary that cular it is difficult to define, whether the right of
the latter maintains personal relationship and custody includes the right of access and what
has regular contact with both of the parents, is the grounds for this right to originate – the
unless this may jeopardise or be otherwise law or judicial decision.45
contrary to the interests of a children. This is In the first case, when we speak about the
particularly important in cases when parents delimitation between the right of custody and
live in different states and the right to custody the right of access, it should be mentioned that
is enjoyed by only one of them. It should be it is very difficult to make a distinction between
mentioned that Paragraph 3 of Article 9 of the the parent, with whom the child has the relati-
UN Convention on the Rights of a Child also onship and the parent with custody rights. For
concerns the exercise of the right of both of example, in the case of joint custody it is un-
the parents to have relationships with the chil- derstood that both parents exercise the rights
dren, which Article stresses the necessity of of custody in respect to a child.46
169
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
Furthermore, quite often, when delimiting Convention is not limited to cases where there
between the “rights of custody” and “rights to is an existing court order recognising or estab-
access” a further complication arises from the lishing rights of access. The solution of a case
fact that the courts in the two countries concer- is complicated where the applicant relies on
ned may arrive at differing views on whether access rights which arise by operation of law
access rights or rights of custody are in ques- or has the status to seek the establishment of
tion. This may happen when the court which such rights in future.52
is deciding upon a return application uses the At the same time, under Article 21 of the
Article 15 mechanism to request a decision or Convention, which concerns the right of ac-
determination from the authorities of the State cess to the child, the Central Authorities of a
of the child’s habitual residence that the remo- Contracting party are bound to promote the
val or retention was wrongful within the mea- peaceful enjoyment of access rights and the
ning of Article 3 of the Convention,47 (i.e., that fulfilment of any conditions, to which the exer-
it was in breach of rights of custody attributed cise of those rights may be subject. Further-
under the law of the State of the child’s habitu- more, they are required to take steps to remo-
al residence). Furthermore, it was presumed, ve, as far as possible, all the obstacles to the
that the court, making a decision on the return exercise of such rights. However, the Conven-
of the child is not limited to the aforementio- tion does not provide for the example of the
ned decision or determination, however it is means of securing the actual exercise of the
still supposed to determine for itself whether aforementioned rights.53
which right was actually violated – the right of The methods, which according to the Con-
custody or the right of access.48 vention can be used for peaceful settlement of
At the same time, the “rights of custody” the problem of access to the child substanti-
may include the “right of access” according to ally differ from each other. The minimum what
Article 21 of the Convention. There are cases an authority, receiving an application can do,
when a parent holding custodial rights wishes is to contact the respondent parent for the es-
to exercise rights of access under Article 21 tablishment whether it is possible to reach an
of the Convention. For example, a parent with
amicable agreement between the parents and
custody rights whose application for the re-
apply all the possible means for the removal of
turn of a child is refused under Article 13 of
the conflict between the parties.
the Convention may wish to apply for access
Furthermore, the specific methods, which
to the child. Or a parent with joint custody, with
are to be applied by the Central Authority in
whom the child does not normally reside, may
the course of implementation of Article 21 of
need a detailed contact order.49
the Convention, are the sole discretion of the
It is important to clarify, whether on what
Central Authorities and are related to effective
basis does the right of access originate?
exercise of mutual assistance between them,
It should be mentioned that under the
whilst the measure, to be implemented by the
Convention, an application filed by a person
Central Authority will depend on the characte-
with a view to secure the right of access to the
ristics of each specific case and the decision
child may provide for the acquisition (establis-
of the Central Authority.54
hment) of the right of access or the restitution
of the status existing before the violation.50 For
example, some courts have taken the view CONCLUSION
that Article 21 of the Convention applies only
to established contact rights and it does not The Convention of 25 October 1980 on
apply when the application requires to deter- the Civil Aspects of the International Child
mine contact rights; this latter should be nor- Abduction is the important international to-
mally based on the argument that an existing ol for securing the international protection of
right of contact (enjoyed by the parent) needs children against detrimental consequences of
protection indeed.51 their wrongful removal or retention and impo-
The right to secure the effective exercise ses certain obligations on Contracting Parties
of the “rights of access” under Article 21 of the to this end meaning that each of them is bo-
170
N. KILASONIA, THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
und to transpose the rules and provisions of Based on the foregoing, in the exercise
the Convention into their domestic legislation. of the provisions of the Convention Georgian
With a view to securing of the aforementi- competent authorities and officials encounter
oned obligations there are special legal acts in material difficulties as they are guided only by
certain state, where all the crucial provisions the rules of the Convention when making a de-
of the Convention on the Civil Aspect of the cision in relation with a specific case of child
International Child Abduction are reflected in abduction.
details and in some states similar provisions Accounting for the above said the issue,
are accumulated in the Civil and Criminal Co- discussed in this article, will be one of the most
des. important measure for the implementation of
It should be mentioned that there is no do- the provisions of the Convention and securing
mestic legal framework in Georgia for the re- the fulfilment of the obligations assumed by
gulation of the issues related to civil aspects Georgia, also for the simplification and impro-
of international child abduction55 irrespective vement of the activities of the judges, moreo-
of the fact that Georgia acceded to the Con- ver, if we take account of the fact that for the
vention of 25 October 1980 on the Civil Aspect past two years the Georgian courts are revie-
of the International Child Abduction on 14 Feb- wing already the third case of child abduction
ruary 1995, which came into force for Georgia and at the same time the number of similar
on 1 October 1997. cases tends to be increasing.
1
The UN Convention on the Rights of the Child, 29 November 1989, Preamble.
2
See: The importance of contact, Transfrontier Contact Concerning Children,
General Principles and Guide to Good Practice, Hague Conference on Private
International law, Jordan Publishing, 2008, 4; also available at: <www. hcch.net.>
=> Child Abduction Section => non-Hague Convention Child Abductions.
3
See: E. Perez-Vera, Explanatory Report on the Convention on the Civil Aspects of
International Child Abduction, 426, <www. hcch.net.> => Child Abduction Section
=> Explanatory Documents.
4
The Hague Convention on the International Aspects of the International Child
Abduction, 25 October 1980, Article 1.
5
See: The Child Abduction Convention 25 years on, The Judges’ Newsletter,
Volume XI/2006, Special focus the Hague Convention of 25 October on the Civil
Aspects of International Child Abduction – 25 years on, 8.
6
Hereinafter the “Convention”.
7
Guide to Good Practice under the Hague Convention of 25 October 1980 on
the Civil Aspects of International Child Abduction, Part III-preventive measures,
Jordan Publishing, 2005, 5; also available at: <www. hcch.net.> => Child Abduction
Section => Guide to Good Practice.
8
See: Report of the third Special Commission meeting to review the operation
of the Hague Convention on the Civil Aspects of International Child Abduction,
Proceedings of the nineteenth Session, Tome I, Miscellaneous matters, Edited by
the Permanent Bureau of the Conference, published by Koninklijke Brill NV, 2008,
453-455.
9
See: Overall conclusions of the special commission of October 1989 on the Civil
Aspects of International Child Abduction”, drawn up by the Permanent Bureau,
conclusion 6, <www. hcch.net.> => Child Abduction Homepage => Practical
Operation Documents.
10
See: Report of the third Special Commission meeting to review the operation
of the Hague Convention on the Civil Aspects of International Child Abduction”,
Proceedings of the nineteenth Session, Tome I, Miscellaneous matters, Edited by
the Permanent Bureau of the Conference, published by Koninklijke Brill NV, 2008,
453-455.
171
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
11
Ibid, 455.
12
See: Family Law and children’s rights, The legal protection of children and the
family,http://www.coe.int/t/e/legal_affairs/legal_cooperation/family_law_and_
children%27s_rights/.
13
However, the Convention provides for a special rule, according to which a state,
acceding to the Convention should be recognised by the other states: For exam-
ple, the convention came into force for Georgia from 1 October 1997 and many
states have recognised the accession of our country to the Convention, however,
the United State has not recognised Georgia’s accession to the Convention as yet.
It should as well be mentioned, that Georgia, in its turn, has recognised the acces-
sion of the other states to the convention – of Ukraine, Bulgaria, Belarus, Latvia,
Lithuania, but has not recognised Armenia’s, Uzbekistan’s and others’ accession.
14
The Hague Convention on the Civil Aspects of the International Child Abduction,
25 October 1980, Article 7.
15
See: Transfrontier Access/contact General Principles and Good Practice (The
Hague, 30 October – 9 November 2006)”, drawn up by William Duncan, Deputy
Secretary General, Preliminary Document No. 4 of October 2006 for the atten-
tion of the fifth meeting of the Special Commission to review the operation of the
Hague Convention of 25 October 1980 on the Civil Aspects of International Child
Abduction, 14, <www. hcch.net.> => Child Abduction Homepage => Practical
Operation Documents.
16
See: 25 years further on-the civil law perspective, The Judges’ Newsletter, tome
XI/2006, Special focus the Hague Convention of 25 October on the Civil Aspects
of International Child Abduction – 25 years on, 12.
17
See: E. Perez-Vera, Explanatory Report on the Convention on the Civil Aspects of
International Child Abduction, 442, <www. hcch.net.> => Child Abduction Section
=> Explanatory Documents.
18
See: The Child Abduction Convention 25 years on, The Judges’ Newsletter, tome
XI/2006, Special focus the Hague Convention of 25 October on the Civil Aspects
of International Child Abduction – 25 years on, 9.
19
See: Report of the second special commission meeting to review the operation of
the Hague Convention on the Civil Aspects of International Child Abduction (18-
21 January 1993), drawn up by the Permanent Bureau, question No.5-response
No.5 (b). <www. hcch.net.> > Child Abduction Homepage => Practical Operation
Documents. For example, the Federal Circuit Court of the Southern District of Ohio
made a decision on Friedrich v. Friedrich case under which the habitual place of
residence was ruled to be Germany. According to the facts of the case, the parents
of the abducted child stayed in Germany together with the child before their divorce.
After the divorce, the mother, who was an American servicewoman, took the child
to live on the German military base for a few days before removal of the child to the
United States. With respect to this case of child abduction the first instance court of
the United States made a decision in which it indicated, that the habitual residence
of the child was the United states and the father was not actually exercising custody
rights in relation to the child before the removal. The court of appeals overruled
the decision of the lower court and ruled that habitual residence of the child was
Germany before his removal. Apart from this the court of appeals returned the case
to the district court and assigned it to established whether or not the father was re-
ally exercising custodial right to the child according to German law.
20
See: Ibid, Question No.5 – Response No.5 (b).
21
See: Report on the fifth meeting of the special commission to review the operation
of the Hague Convention of 25 October on the Civil Aspects of International Child
Abduction and the practical implementation of the Hague Convention of 19 October
1996 on Jurisdiction, Applicable law, recognition, enforcement and co-operation in
respect of parental responsibility and measures for the protection of children (30
October -9 November 2006), drawn up by the Permanent Bureau, March 2007, at
44-45. <www. hcch.net.> => Child Abduction Homepage => Practical Operation
Documents.
172
N. KILASONIA, THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
22
See: Explanatory Report on the Convention on the Civil Aspects of International
Child Abduction, 428, <www. hcch.net.> => Child Abduction Section => Explanatory
Documents.
23
Ibid, 442.
24
Ibid, 444.
25
For details see: The Hague Convention of 25 October on the Civil Aspects of
International Child Abduction, Article 3 (c).
26
Report of the second special commission meeting to review the operation of the
Hague Convention on the Civil Aspects of International Child Abduction (held 18-21
January 1993), conclusion No.2, <www. hcch.net.> => Child Abduction Homepage
=> Practical Operation Documents.
27
Overall conclusions of the special commission of October 1989 on the operation
of the Hague Convention of 25 October 1980 on the Civil Aspects of International
Child Abduction, drawn up by the Permanent Bureau, Conclusion 9, <www. hcch.
net.> => Child Abduction Homepage => Practical Operation Documents.
28
Ibid, Conclusion 9. For example: In Australia it is customary for “custody” to be
granted on one parent, but even in such case Australian law leaves the “guardian-
ship” of the child in the hands of both parents jointly and the parent, who has not
been awarded “custody” under this legal system nonetheless has the right to be
consulted and to give or refuse consent before the child is permanently removed
from Australia.
29
Ibid, Conclusion 10.
30
See: E. Perez-Vera, Explanatory Report on the Convention on the Civil Aspects
of International Child Abduction, 447-448 <www. hcch.net.> => Child Abduction
Section => Explanatory Documents.
31
See: Council Regulation (EC) 2201/2003 of November 2003 concerning jurisdic-
tion and the recognition and enforcement of judgements in matrimonial matters
and the matters of parental responsibility, under Paragraph 7 of Article 2 of which
“parental responsibility” means all rights and duties relating to the person or the
property of a child which are given to a natural or legal person by judgment, by
operation of law or by an agreement having legal effect. The term may also include
rights of custody and rights of access.
32
For details see: The Hague Convention of 25 October on the Civil Aspects of
International Child Abduction, Article 5 (a).
33
See: E. Perez-Vera, Explanatory Report on the Convention on the Civil Aspects of
International Child Abduction”, 447 <www. hcch.net.> => Child Abduction Section
=> Explanatory Documents.
34
Ibid, 448.
35
See: Report of the third Special Commission meeting to review the operation
of the Hague Convention on the Civil Aspects of International Child Abduction,
Proceedings of the nineteenth Session, Tome I, Miscellaneous matters, Edited
by the Permanent Bureau of the Conference, published by Koninklijke Brill NV,
2008, 457. It should be mentioned that according to the facts of the case the
parents divorced in 1990 and the father was attributed temporary custody rights,
until the mother would be able to take care of their child, when she would be given
the permanent custody. In 1991 the mother resumed taking care of the child and,
in 1993, she took the child to Israel. Respectively, the court took account of this
fact and considered that the father was not entitled to demand the return of the
child to the father because he was not actually exercising his rights of custody. In
an Australian case the child had been given to the care of the grandparents. The
grandparents took the child to New Zealand. When the mother applied for the
child’s return, it was argued by the grandparents that the mother had not been
exercising her custody rights. The court disagreed and held that the mother had
been exercising her custody rights by discharging them.
36
“Report of the second special commission meeting to review the operation of the
Hague Convention on the Civil Aspects of International Child Abduction (18-21
January 1993)”, drawn up by the Permanent Bureau, Question No.5 – Response
173
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
No.5 (c). <www. hcch.net.> => Child Abduction Homepage => Practical Operation
Documents.
37
See: E. Perez-Vera, Explanatory Report on the Convention on the Civil Aspects of
International Child Abduction, 445. <www. hcch.net.> => Child Abduction Section
=> Explanatory Documents.
38
See: Report of the third special commission meeting to review the operation of
the Hague Convention on the Civil Aspects of International Child Abduction (17-21
March 1997) drawn up by the Permanent Bureau, August 1997, Para. 60 <www.
hcch.net.> => Child Abduction Homepage => Practical Operation Documents.
39
See: Transfrontier Access/contact General Principles and Good Practice (The
Hague, 30 October – 9 November 2006), drawn up by William Duncan, Deputy
Secretary General, Preliminary Document No. 4 of October 2006 for the atten-
tion of the fifth meeting of the Special Commission to review the operation of the
Hague Convention of 25 October 1980 on the Civil Aspects of International Child
Abduction, 10, <www. hcch.net.> => Child Abduction Homepage => Practical
Operation Documents.
40
See Ibid, 10.
41
See: The Hague Convention of 25 October on the Civil Aspects of International
Child Abduction, Article 5 (b).
42
See: Transfrontier Access/contact General Principles and Good Practice (The
Hague, 30 October – 9 November 2006), drawn up by William Duncan, Deputy
Secretary General, Preliminary Document No. 4 of October 2006 for the atten-
tion of the fifth meeting of the Special Commission to review the operation of
the Hague Convention of 25 October 1980 on the Civil Aspects of International
Child Abduction, 9, <www. hcch.net.> => Child Abduction Homepage => Practical
Operation Documents.
43
See: Ibid, 9.
44
See: E. Perez-Vera, “Explanatory Report on the Convention on the Civil Aspects of
International Child Abduction”, 452. <www. hcch.net.> => Child Abduction Section
=> Explanatory Documents.
45
See: The importance of contact, Transfrontier Contact Concerning Children,
General Principles and Guide to Good Practice”, Hague Conference on Private
International law, Jordan Publishing, 2008, 42; also available at: <www. hcch.net.>
=> Child Abduction Section => Non Hague Convention Child Abductions.
46
See: Ibid, 42.
47
Article 15 of the Convention says, that: “The judicial or administrative authorities of
a Contracting State may, prior to the making of an order for the return of the child,
request that the applicant obtain from the authorities of the State of the habitual
residence of the child a decision or other determination that the removal or reten-
tion was wrongful within the meaning of Article 3 of the Convention, where such a
decision or determination may be obtained in that State. The Central Authorities of
the Contracting States shall so far as practicable assist applicants to obtain such
a decision or determination”.
48
See: The importance of contact, Transfrontier Contact Concerning Children,
General Principles and Guide to Good Practice, Hague Conference on Private
International law, Jordan Publishing, 2008, 44; also available at: <www. hcch.net.>
=> Child Abduction Section => Non-Hague Convention Child Abductions.
49
The importance of contact, Transfrontier Contact Concerning Children, General
Principles and Guide to Good Practice, Hague Conference on Private International
law, Jordan Publishing, 2008, 44; also available at: <www. hcch.net.> => Child
Abduction Section => Non Hague Convention Child Abductions.
50
See: E. Perez-Vera, “Explanatory Report on the Convention on the Civil Aspects of
International Child Abduction”, 465. <www. hcch.net.> => Child Abduction Section
=> Explanatory Documents.
51
See: Transfrontier Access/contact General Principles and Good Practice (The
Hague, 30 October – 9 November 2006), drawn up by William Duncan, Deputy
Secretary General Preliminary Document No. 4 of October 2006 for the atten-
174
N. KILASONIA, THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
tion of the fifth meeting of the Special Commission to review the operation of the
Hague Convention of 25 October 1980 on the Civil Aspects of International Child
Abduction, 17-18, <www. hcch.net.> => Child Abduction Homepage => Practical
Operation Documents.
52
The importance of contact, Transfrontier Contact Concerning Children, General
Principles and Guide to Good Practice, Hague Conference on Private International
law, Jordan Publishing, 2008, 45; also available at: <www. hcch.net.> => Child
Abduction Section => Non-Hague Convention Child Abductions.
53
See: E. Perez-Vera, Explanatory Report on the Convention on the Civil Aspects of
International Child Abduction, 465. <www. hcch.net.> => Child Abduction Section
=> Explanatory Documents.
54
See: Ibid, 16.
55
Furthermore, the Central Authority was nominated commensurate with the
Convention – the International Public Law Department of the Ministry of Internal
Affairs of Georgia, which is authorised to coordinate the effective implementation
of the 1980 Convention on the Civil Aspect of the International Child Abduction and
carrying out specific measures commensurate with the goals of the Convention.
The Department is intensively working on the most efficient transposition of the
Convention provisions into the domestic legislation of Georgia.
175
zviad sxvitariZe
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z. sxvitariZe, saqarTvelos saxalxo damcveli da saerTaSoriso perspeqtivebi
troli. amis magaliTad SeiZleba CaiTva- zogadad daxmarebas gauwevdnen sam om-
los 1739 wels iusticiis kancleris war- budsmens.32
momadgenlis mier parlamentSi wakiTxu- 1972 wels parlamentma gamoyo komi-
li moxseneba.29 es iyo umniSvnelovanesi teti, romelsac unda Seeswavla arsebu-
da arsebiTi nabiji ombudsmenis institu- li problema. 1975 wels ki aRniSnulma
tis Camoyalibebisa. Tumca cvlilebebi komitetma rekomendacia gauwia im faqts,
didxans ar gagrZelebula. rodesac 1772 rom statusSi, romelic ombudsmenis
wels mefe gustav III-m miaRwia saparlamen- saqmianobas agvarebda, SeetanaT cvli-
to mmarTvelobis gauqmebas, iusticiis lebebi. 1975 wels parlamentma daamtki-
kancleris kvlav aRmasrulebeli xeli- ca aRniSnuli, ris Sedegadac 1976 wlis
suflebis mier iqna arCeuli.30 gazafxulze ombudsmenis axali siste-
1809 wels mefe gustav IV adolfi, ma ZalaSi Sevida. axali sistemiT saxeze
despoturi mmarTvelobis gamo, taxti- iyo oTxi ombudsmeni da ombudsmenis ar-
dan Camoagdes. parlamentma gadawyvi- cerTi moadgile. am oTxidan erTi iniS-
ta mieRo mefisa da parlamentis ZalTa neboda parlamentis mier ombudsmenis
dabalansebis principze damyarebuli ofisis administraciul direqtorad da
axali konstitucia, aRmasrulebel xe- xelmZRvanel ombudsmenad. is koordina-
lisuflebasa da parlaments Soris xan- cias uwevda danarCen sam ombudsmens da
grZlivi periodis ganmavlobaSi arse- maTTan konsultaciebis Semdeg wyvetda
bul brZolas 1809 wels axali konstitu- mTavrobis winaaRmdeg Setanili sarCe-
ciis miRebiT moeRo bolo. amis Sedegad lebis sakiTxs, aseve gamodioda gamoZie-
ombudsmeni parlamentis mier dainiSna. bis iniciativiT.33
igi damoukidebeli iqneboda Tavis saqmi- im droisTvis arsebul organizaci-
anobaSi rogorc parlamentisgan, ise aR- ul struqturaSi ombudsmenis ofisma
masrulebeli xelisuflebisgan. Tumca moicva yvela municipaluri saagento da
es ar niSnavda, rom iusticiis kanclerma organo, iseve, rogorc maT personali.
Sewyvita arseboba, piriqiT, orive ofi- rac Seexeba SeiaraRebul Zalebs, zedam-
si, dResdReobiTac ki, agrZelebs Tavisi xedveloba xdeboda mxolod maRali do-
funqciebis Sesrulebas, Tumca orive sa- nis oficrebze. ombudsmeni aseve zedam-
kuTari iurisdiqciis farglebSi.31 xedvelobda yvela sxva pirs, romelTac
1915 wels saparlamento ombudsme- sajaro mosamsaxuris funqcia ekisraT,
nis (an iusticiis ombudsmeni) ofisi iqna maT Soris kompaniebs, romlebic ar iT-
modificirebuli da mas daemata meore vlebodnen saxelmwifo organoebad, ma-
ombudsmeni, cnobili, rogorc samxedro galiTad, transportis usafrTxoebaze
ombudsmeni, romelic pirveli ombud- pasuxismgebeli kompania.34
smenisgan aiRebda gamoZiebis funqciebs rogorc es instruqciebSia mocemu-
im saCivrebTan dakavSirebiT, romlebic li, ombudsmenma ar unda imoqmedos im
samxedro SenaerTebis winaaRmdeg iyo daqvemdebarebuli personalis winaaR-
Setanili. meore msoflio omis Semdgom mdeg, visac ar aqvs miniWebuli damouki-
sruliad naTeli gaxda, rom iusticiis debloba, Tu, ra Tqma unda, amis saWiroe-
ombudsmeni gadatvirTuli iyo saqmeebiT ba ar aris gansakuTrebuli garemoebebiT
maSin, rodesac samxedro ombudsmenTan ganpirobebuli. ombudsmenis mTavari ia-
sarCelebis mcire raodenoba Sedioda da raRi kritika da sakuTari iniciativiT
isinic ki uaryofili xdeboda. Sedegad, gamoZiebis dawyebaa. amaTgan umravleso-
parlamentma gadawyvita, iusticiis om- ba efuZneba inspeqtirebis dros gakeTe-
budsmenis ofisSi daeniSna sami ombud- bul aRmoCenebs, xSirad ki Jurnal-gaze-
smeni, romlebsac saCivrebis sakiTxTa Tebi da teleprogramebi gamxdara gamo-
mosagvareblad eqnebodaT TavianTi iu- Ziebis dawyebis sababi.35
risdiqcia, aseve 1968 wels parlamentma Tavdapirvelad ombudsmenis saqmia-
gadawyvita SemoeRo ombudsmenis ori noba iyo specialuri prokuroris fun-
moadgilis Tanamdebobac, romlebic, qciebis SeTavseba. rodesac oficialur
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z. sxvitariZe, saqarTvelos saxalxo damcveli da saerTaSoriso perspeqtivebi
sawinaaRmdegod, maRalCinosanTa mier sa- unda hqondes ufleba, yvelgan iyos aRi-
samarTlo gadawyvetilebebze gavlenis arebuli, rogorc kanonis winaSe mdgari
moxdena, raTa maT gamoitanon dausabu- piri“94, gagebul unda iqnes ise, rogorc
Tebeli da subieqturi gadawyvetilebe- amas samoqalaqo da politikuri ufle-
bi – es yvelaferi naTeli dadasturebaa bebis saerTaSoriso paqtis 21-e muxli
mmarTveli sistemis arsisa, romelTa qme- iTvaliswinebs, romlis mixedviT, yvela
debebic arRveven adamianis ZiriTad uf- gaTvaliswinebuli ufleba am paqtSi un-
lebebsa da fundamentur Tavisuflebebs. da gadanawildes yvelaze, yovelgvari
2001 wlidan moyolebuli, erT-er- gansxvavebisa da diskriminaciis gare-
Ti umTavresi danaSauli gaxda mdida- Se, „rasis, feris, sqesis, enis, religi-
ri da cnobili xalxis, an maTi Svilebis is, politikuri an sxva Sexedulebebis,
Tu axlo naTesavebis gataceba. kalaZis erovnuli an socialuri warmoSobis, sa-
Zma, piter Sou, maRali rangis policiis kuTrebis, dabadebis an sxva statusis“
oficris Svili, saamqros direqtori da miuxedavad. dabolos, miukerZoebeli
mravali sxva iqna gatacebuli fulis ga- da da damoukidebeli sasamarTlos mier
moZalvis mizniT. im faqtis miuxedavad, dauSvebelia iseTi kanonis gamoyeneba,
rom saqarTvelos umTavresi Zalebis mi- romelic Tavisi bunebiT ewinaaRmdegeba
er moxda piter Sous daxsna, uamravi sxva adamianis uflebaTa moTxovnebs da kon-
piri dRemde imyofeba ukanonod Tavi- fliqtSi Sedis masTan.
suflebaaRkveTili. mniSvnelovania qveynis mier yvela
yovelive zemoxsenebuli mxolod saerTaSoriso standartis implementa-
mokle eqskursia adamianis uflebebis cia. amisTvis uzrunvelyofili unda iq-
darRvevasTan mimarTebiT saqarTvelo- nes Sesabamisi saSualebebi da meTodebi,
Si, risi ganxilvac mniSvnelovania. sa- radgan, saerTaSoriso samarTlis zoga-
qarTvelom ganaxorciela garkveuli di principebis Sesabamisad, saxelmwifo-
qmedebebi, rom miaxloeboda demokra- ebi arian Tavisufalni – TviTon airCion
tias, daarsda uamravi instituti, ro- implementaciis meTodebi. arcerT sa-
melTa funqciebic adamianis uflebebis xelmwifos ar SeuZlia aRkveTos poli-
dacva iyo, uamravi samarTlebrivi aqti ciis mier ganxorcielebuli Seviwroe-
aamoqmedes saerTaSoriso samarTlis ba, Zaladoba, sasamarTlos korufcia an
sayovelTaod aRiarebuli normebis Se- arademokratiuloba, magram yvelas Se-
sabamisad..., magram, samwuxarod, praq- uZlia imoqmedos aRniSnuli meTodebis
tika sawinaaRmdegos aCvenebs da dRemde aRsakveTad.
adamianis uamravi ufleba rCeba mxolod saxalxo damcveli unda iyos gamor-
qaRaldze daweril uflebad. mTavroba, Ceuli pirovneba, rom mihyves imple-
TavianTi sistemis Sesabamisad, sadac sa- mentaciis process, monaxos sxva ufro
Wiroa diskriminacia an konstituciuri qmediTi gzebi da rekomendacia gauwios
samarTlianobisa da kanonis uzenaeso- yovel konkretul SemTxvevaSi ukeTes
bis ugulebelyofa, ar mimarTavs adamia- meTodebs, uzrunvelyos adamianis uf-
nis uflebebis dacvis normebs. saboloo lebebis sayovelTaod aRiarebuli stan-
mizani ki aRniSnuli principebis mkac- dartebis gamoyeneba; saxalxo damcveli
ri dacva da maTi Sesrulebaa, rogorc kompetentur organoebs uwevs rekomen-
erovnul, ise adgilobriv doneze.93 daciebs, gansakuTrebiT ki kanonSi, re-
adamianis uflebebi, rogorc Sesas- gulaciebsa da administraciul praqti-
ruleblad savaldebulo samarTleb- kaSi damatebebis Setanis saxiT. es xdeba
rivi uflebebi, moiTxovs kanonis uze- gansakuTrebiT maSin, rodesac zemoxse-
naesobis principze damyarebul samar- nebulma samarTlebrivma aqtebma Seqmnes
Tlebriv sistemas, romelic SesaZleb- garkveuli siZneleebi im pirebTan mimar-
lobas miscemda individebs, esargeblaT TebiT, romlebmac saxalxo damcvelTan
kanonis meSvebiT garantirebuli Tavi- TavianTi uflebebis dasacavad gagzav-
anTi uflebebiT. moTxovna, rom „yvelas nes peticiebi an Seitanes sarCelebi;95
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192
z. sxvitariZe, saqarTvelos saxalxo damcveli da saerTaSoriso perspeqtivebi
deba informacia saqmis garSemo, nebis- saagentosa da organos, maT Soris am or-
mieri oficialuri piri valdebulia da- ganoebis TanamSromlebis an sxva msgavsi
exmaros mas, raTa moipovos igi. oficia- pirebis, aseve administraciuli orga-
luri sabuTebisa da dokumentebis xel- noebisa da sasamarTloebis saqmianobas,
misawvdomoba ar aris ombudsmenisTvis adamianis uflebaTa damcvelis avtori-
SezRuduli. marTlac, is faqti, rom teti saqarTveloSi ver sargeblobs di-
oficialur dokumentaciaze ombuds- di gaqanebiT. erTaderTi, rac saxalxo
mens miuwvdeba xeli, oficialur pirebs damcvels SeuZlia gaakeTos, es aris mox-
aiZulebs, iyvnen ufro yuradRebianebi, senebis dawera qveyanaSi arsebuli adami-
rac cudi praqtikis Tavidan acilebis anis uflebebis mdgomareobisa da aseve
mizezi xdeba. maRalCinosanTa ukanono qmedebebis Se-
ombudsmenis ofisi unda iyos yve- saxeb. ombudsmeni valdebulia, zemox-
lasTvis cnobili da advilad misaRwevi. senebuli moxseneba waradginos parla-
ombudsmeni yvelanairi saSualebiT unda mentis winaSe, magram amis iqiT saqme ar
cdilobdes, misi saqmianoba da am saqmia- midis. es niSnavs, rom mas ar aqvs ufle-
nobis Sedegebi gamoqveynebuli iyos me- ba, gamoiZios da ar aqvs ufleba, wardges
diis an presis meSveobiT. aseve ombudsme- sasamarTlos winaSe rogorc saxelmwi-
nis momsaxureba advilad xelmisawvdomi fo prokurori. amitomac mis moxsenebas,
unda iyos qveynis mTeli masStabiT re- romelic mxolod faqtebis konstata-
gionuli ofisebis meSveobiT, man xSirad ciaa, aqvs sarekomendacio xasiaTi. yo-
unda moinaxulos qveynis Soreuli adgi- velive zemoxsenebulidan gamomdinare,
lebi da miiRos saCivrebi.98 Cemi azriT, gamoZiebisa da sasamarTlo-
organos, romelic gamoyofilia ro- Si wardgenis ufleba radikalurad gaz-
gorc aRmasrulebeli, ise sasamarTlo rdida saqarTveloSi saxalxo damcvelis
xelisuflebisgan, adamianis uflebebis efeqturobas.
dargSi umniSvnelovanesi roli akisria. Semdegi mniSvnelovani sakiTxi aris
mTavrobisgan mniSvnelovani distanciis organizaciuli mxare. moqalaqeebis
dacviT msgavs organos SeuZlia unika- mxridan Setanili uamravi saCivari dare-
luri wvlili Seitanos qveynis mcdelo- gistrirdeba saxalxo damcvelis ofis-
baSi, daicvas Tavisi moqalaqeebi da gana- Si. saqme, romelic ombudsmenma unda ga-
viTaros kultura adamianis uflebebisa naxorcielos, Zalian bevris momcvelia.
da fundamenturi Tavisuflebebis pati- msgavsi situacia moqmedebs samuSaos
viscemis gziT.99 xarisxze. amis gamo saCivarTa umeteso-
da bolo aspeqtis Sesaxeb, qveyanaSi, ba saerTod ver xvdeba ombudsmenis yu-
romelSic avtoritaruli reJimia gaba- radRebis centrSi da rCeba ganuxilavi.
tonebuli, an gavrcelebulia farTomas- am yvelafridan gamomdinare, saxalxo
Stabiani korufcia, ombudsmenis sqemas damcvelis ofisis ganviTareba mudmivad
SeuZlia imoqmedos nayofierad Sedare- unda xdebodes, saWiroa meore saxal-
biT mcire problemebis mogvarebis sa- xo damcvelis Tanamdebobis SemoReba
kiTxSi, magram is ver moaxdens gavlenas – iqneba es regionaluri Tu erovnuli,
ufro maRali donis problemebze, rac orive ombudsmeni pasuxs agebs mxolod
gamoixateba mTavrobis muSaobaSi, ro- Tavisi kompetenciis farglebSi. es yve-
melic ombudsmenis rekomendaciebsa da laferi ki xels Seuwyobs mozRvavebuli
direqtivebs naklebad iTvaliswinebs. saqmeebis Semcirebas.
zemoTqmuls SeiZleba davamatoT,
rom saxalxo damcveli saqarTveloSi
daskvna
msaxurobs rogorc saparlamento om-
miuxedavad imisa, rom saxalxo dam- budsmeni, rac TavisTavad mas umatebs
cvelis iurisdiqcia saqarTveloSi mo- saqmeebs da xdis Zalian dakavebuls. sa-
icavs zedamxedvelobis farTo sferos, parlamento ombudsmenis Seqmna, romlis
swvdeba yvela saxelmwifo, municipalur movaleobac parlamentTan urTierTo-
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saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
baa, ufro efeqturi iqneba, radgan om- stituciuri funqciebi unda gamyardes
budsmens eqneba mudmivi kontaqti par- konkretuli sasjelis sistemiT im ma-
lamentis wevrebTan, romelTac drou- Rali Tanamdebobis pirebis winaaRmdeg,
lad acnobebs adamianis uflebebis sxva- romlebic arRveven kanons.
dasxva darRvevis Sesaxeb. daskvnis saxiT SeiZleba iTqvas, rom
mniSvnelovani sakiTxia adamianis saxalxo damcvelis sistemisTvis auci-
uflebebis damcvelis mier konstituci- lebelia fundamenturi reformebis ga-
uri funqciebis Sesruleba. samwuxarod, tareba. sakonstitucio cvlilebebisa
umetes SemTxvevaSi saxalxo damcvels da ombudsmenis funqciebis gafarToe-
eqmneba garkveuli problemebi Tavisi bis, aseve saxalxo damcvelis sxva insti-
uflebamosilebis ganxorcielebisas. ma- tutebis daarsebis garda, aucilebelia
galiTad, saxalxo damcvels aqvs kons- sisxlis samarTlis Secvla ise, rom uz-
tituciuri ufleba, Sevides nebismier runvelyofil iqnes am institutis mxar-
cixeSi da monitoringi ganaxorcielos daWera da gaZliereba.
nebismier dros. saxalxo damcvelis kon-
1
Al-Wahab, Ibrahim, The Swedish Institution of Ombudsman, Stockholm, 1979.
2
UNHCHR, Fact Sheet No.19, National Institution for the Promotion and Protection of
Human Rights, 1997.
3
UNDP, National Human Rights Institutions, Some Lessons from Global Experience, 2003.
4
iqve.
5
Caiden, Gerald E, International Handbook of the Ombudsman, Country Survey, 1983.
6
iqve.
7
Blackburn, Robert and Taylor, John, Human Rights for the 1990s, Mansell, 1991.
8
UN human rights fact sheets Nol-25 4th Ed, Raoul Wallenberg Institute, 1996.
9
Ige, Tokumbo and Lawis, Olumide, Human Rights made easy, Lagos, 1994.
10
Conference on Non-Judicial Mechanisms for Protection of Fundamental Rights of Persons.
CSCE, Madrid, May 1992.
11
Al-Wahab, Ibrahim, The Swedish institution of Ombudsman, Stockholm, 1979, pg. 14.
12
Al-Wahab, Ibrahim, The Swedish institution of Ombudsman, Stockholm, 1979, pg. 16.
13
UNHCHR, Facts Sheet No. 19, National Institution for the Promotion and Protection of
Human Rights, 1997.
14
Principals Related to the Status of National Institutions, Para. 3 (a-i).
15
The Third International Ombudsman Conference, The Ombudsman and Human Rights
Stockholm June, 25-28, 1984.
16
Principals related to the Status of National institutions, Para. 3 (a-i).
17
The Third International Ombudsman Conference, The ombudsman and Human Rights
Stockholm June, 25-28, 1984.
18
Rowat, Donald C, The Ombudsman plan-the world wide spread of an idea, London, II Ed.,
1985 pg. 61.
19
Rowat, Donald C, The Ombudsman plan-the world wide spread of an idea, London, II Ed.,
1985 pg. 61.
20
Rowat, Donald C, The Ombudsman plan-the world wide spread of an idea, London, II Ed.,
1985 pg. 225.
21
Gellhorn, Walter, Ombudsman and others, Harvard University Press 1966, pg. 200.
22
Gellhorn, Walter, Ombudsman and others, Harvard University Press 1966, pg. 200.
23
Gellhorn, Walter, Ombudsman and others, Harvard University Press 1966, pg. 200.
24
loki amtkicebda, rom yvela individs bunebiT miniWebuli hqonda sic-
ocxlis, Tavisuflebisa da sakuTrebis ganuyofeli ufleba, am ufle-
bebs adamianebi flobdnen da saxelmwifos ar SeeZlo maTi an warTmeva
an SezRudva. Tumca loki aseve acxadebda, rom kacobriobam dado so-
cialuri kontraqti, romlis ZaliTac maTi ganusxvisebeli uflebebi
saxelmwifos kanonebiTa da wesebiT gamoixata.
25
monteskie Tavis naSromSi werda aRmasrulebel, sasamarTlo da sakanon-
mdeblo xelisuflebas Soris Zalauflebis gadanawilebis aucileblo-
194
z. sxvitariZe, saqarTvelos saxalxo damcveli da saerTaSoriso perspeqtivebi
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196
ZVIAD SKHVITARIDZE
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saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
has taken the initiatives. That system educa- self victim of bureaucracy and maltreatment.5
tes public and officials with ways of good go- Ombudsman or Public Defender minimize the
vernance. administrative mistakes and rectify them as
The reason for embarking on such work soon as possible after occurrence.6
is due to my interest in the subject that was The inspiration for me to write this work
developed during my professional experien- stems from the paramount respect of human
ce in human rights protection field and stren- rights and fundamental freedoms as an inse-
gthened while taking the International Human parable part of human existence, which always
Rights Class at UCONN Law School. Since has been assumed as a secural concept.7 The
this concept and traditional institutional sys- recognition of the inherent dignity, the equal
tem of the ombudsman in general is very new and inalienable rights of all members of the
and subject of study, I decided to take the task human family is the foundation of freedom,
to carry on descriptive excursus. justice and peace in the world.8 Every human
It is admitted that greater efforts and sac- being has certain fundamental rights which
rifices are needed if nation wish to have better every individual and government must uphold
world to live in. The road to achieve progress, and respect.9
respect to human rights, dignity is very long And in addition with one word, if the citi-
and complicated. To make it shorter and ac- zen feels that he has been treated unfairly by
cessible we do have to learn from the expe- a public authority, he can usually appeal to a
rience from other countries, which have been higher court or a higher administrative autho-
making greater progress to live under the rule rity. But the Constitution of many democratic
of law created trust and harmony between go- countries also affords another remedy – any
vernment and the people. citizen may apply direct to the Ombudsman for
The prescription of experience of those redress his/her violated rights.
countries which have traditional and perfectly
build up system of administration, democratic
governance and the practice of overcoming WHY IS OMBUDSMAN SO IMPORTANT FOR
problems with maladministration and bure- GEORGIA?
aucracy, facilitated me to better understood
While the primary objective (of the
the current problems existing in the Office of
ombudsman) should be to investigate
Public Defender of Georgia. Finally, I tried to
and provide redress for the justified com-
illustrate how vital role plays ombudsman sys-
plaints of individual citizens, a secondary
tem for democracy building states and how it
aim should be to amend or improve sys-
is necessary for the common state of human
tem of administration which have made
rights.
injustice possible, so that mistakes or in-
The bureaucratic mode of operations often
justice will not be repeated.10
demeans and humiliates people, striping them
of their basic dignity and harassing them into Many countries have adopted various
compliance. Under such conditions, virtually methods and means to deal with grievances
any public agency can fail to detect a wrong and other complaints of their citizens against
or refuse to do so. Particularly, vulnerable are government practices and other public aut-
people who find themselves in special institu- horities. These countries may rely on having
tions where they are pledged to secrecy, must the complaints brought up directly to the of-
remain incommunicado or are forgotten by the ficial establishments or ministers concerned,
rest of the public. Military organizations, po- or through administrative courts, attorneys,
lice, prison, orphanages, hospitals, asylum, public prosecutors, appellate boards, parlia-
and other institutions against individuals and mentary representatives or committees, as
go unnoticed. But this is only part of place well as press. However, non of these methods
where infringement of individual rights can be and means provide to be capable of carrying
revealed. Almost anyone who deals with the out the functions and responsibilities of the
modern administrative state can be find him- Ombudsman in the best interest of the people
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Z.SKHVITARIDZE, PUBLIC DEFENDER OF GEORGIA AND INTERNATIONAL PERSPECTIVES
for various reasons, especially because, com- ter. He has to feel equally free to make recom-
plaints lodged directly to the official or ministry mendations aimed at bringing provisions of the
may not go far enough to bring results, on the ordinary legislation more firmly in the line with
whole there is no guarantee of impartiality and the international commitments undertaken. In
may involve fees. That their formalities and other words, the function of the Ombudsman,
procedure are so complicated that it may take in my view, should be that of assisting the do-
long time to obtain positive results.11 mestic legal order in preventing unintentional
Nowadays, the needs for machinery so- infringements of duly ratified international un-
lely responsible to deal with complaint and gri- dertakings in the field of human rights.15 In that
evances of the citizens against malpractice’s connection the office of the ombudsman shall
of public authorities and their officials has be- examine the legislation and administrative
come essential, especially for those countries provisions in force, as well as bills and propo-
which are newly independent in its transition sals and make recommendations as it deems
from totalitarian past to democratically gover- appropriate in order to ensure that these pro-
ned society.12 visions conform to the fundamental principals
It has therefore become increasingly ap- of human rights.16
parent that the effective enjoyment of human The rapid speed of the Ombudsman plan
rights calls for the establishment of national all around the world indicated that it is an im-
infrastructures for their protection and promo- portant new edition to the devices for democ-
tion. Many countries have set up official hu- ratic control of bureaucracy with inseparable
man rights institutions in recent years. While tools: independence, criticism, inspection and
the tasks of such institutions may vary consi- investigation that’s make him arm of the legis-
derably from country to country, they share a lature.
common purpose and for this reason are col- The Ombudsman institution, in general,
lectively referred to as democratic national in- has enjoyed a remarkable spread throughout
stitutions for the protection and promotion of the world in recent years. The reason in that
human rights.13 the rise of the welfare state in the modern
Many have been influenced by the institu- world has resulted in a rapid and bewildering
tions and have already adopted it with certain growth of bureaucracy.17
changes and modifications that suit their offici-
al structure and political system. It is ever sug-
IS IT REALLY NEEDED IN GEORGIA?
gested that Ombudsman might have a special
function in this respect, not confined to their The significance of this question is in its
ordinary jurisdiction in administrative matters, answer, that common reaction of persons from
but encompassing the whole range of areas many Western European countries is to say
covered by the international conventions. This that an Ombudsman is not needed because
is understandable that the functions of the om- administrative courts or appellate courts fun-
budsman as primarily being that of ascertai- ctioning perfectly, do the same job instead and
ning whenever appropriate whether the inter- it could not be fitted into administrative court
national provisions of human rights have been system. A response, however is that the job
taken into consideration in the decision-making of the administrative courts is not comparable
process of the administrative authorities con- and same as that of the Ombudsman. Ombud-
cerned. Also, intended to preserve and extend sman relies upon the criticism, inspection and
the protection of human rights, recommend the publicity, rather than the quashing of decisions,
adoption of new legislation, the amendment of its agent is representative of the parliament
legislation in force and the adoption or amen- rather than of the executive.18 Administrative
dment of administrative measures.14 courts suffer from the same shortcomings as
The significance of the institution of om- ordinary courts in that they can be slow, costly,
budsman in Georgia is that it is find the pro- cumbersome, complex, frightening to the ave-
cess deficient, he should certainly not hesitate rage citizens and limited their power to review
to recommend the reconsideration of the mat- the merits of decisions and having influence of
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the executive. Like the legislative auditor, he The courts are independent. The Supre-
enhances the control and prestige of the legis- me Court is the highest court of general juris-
lature in a country in which executive power diction and Supreme Administration court is
is growing. The Ombudsman as an educator the highest administration court. No public aut-
of officialdom and society carry on significant hority, not even the Rikstag and government,
role in formation democratic atmosphere. His may determine how a court is to adjudicate in
official writings are nevertheless widely and any particular case.
respectfully read. Supreme Court judges al- Sweden has an administrative system
most always read each report carefully, a pro- radically different from most others. The cen-
vincial governors read all the headlines in the tral agencies are not departments within a
report and in depth all the cases that bear on Ministry, but independent bodies. Swedish
their own work, a copy goes to every unite in departments resemble public corporations in
the Ministry of Justice, where it is circulated their independence and are not subject to de-
among staff. Ombudsman must aim to increa- tailed day-by-day control by the ministers res-
se the official’s thinking about values, in parti- ponsible to the Parliament. Neither the Gover-
cular, justice values.19 nment nor any of its Ministers can dictate to
a central, regional, or municipal administrative
authority how to decide in any particular case,
SWEDISH MODEL
when the exercise of its authority affects a pri-
In the last century few subjects have been vate citizen or a municipality or when applying
as lively discussed among those interested in the law.22
the problems of administration at the question Ministers are small bodies, rarely with as
of how to protect the citizens against the misuse many as hundred employees, including the
of administrative power. It is important to point lowest clerical and custodial personnel. The-
out that country may have the best imaginable ir function is not so much to administer as to
organization and the most competent possibi- plan. They prepare Government bills and bud-
lities of appeal from administrative decisions getary proposals; they promulgate regulations
and in practice the administration may suffer when specifically empowered by parliament;
from inherent serious deficiencies, such as a they issued directives that may guide but not
lack of care in the handling of business, defecti- necessarily command administrators, they al-
ve training of civil servants or even a sensitivity locate funds and make appointments and they
amongst them to corrupting pressures.20 entertain appeals which may be addressed to
It may be of interest to make an overview the King.23
of Swedish constitutional and political struc- The parliamentary Ombudsman constitu-
ture, before discussing of the ombudsman as tes an important and well-known institute utili-
an international model. It would be also worth zed by the Rikstag in its scrutiny of the admi-
while to mention that its success in Sweden, nistration. The Rikstag elects them; It is their
the only country where the institution has been duty to supervise in accordance with instructi-
tested for a long time, has been depended of ons laid down by the Rikstag their application
certain extent on historical conditions. in the public service of laws and other statutes.
In accordance with the principle of Parlia- A great deal has been written about the origin
mentarism, the parliament (The Rikstag) is the of the Parliamentary Ombudsman, as it is a
foremost representative of the people. The go- subject which has been covered extensively
vernment rules the country, but is accountable both by historians and political scientists.
to the Rikstag. If the Rikstag declares that a By the birth of the constitution of 1809 that
Minister no longer enjoy its confidence, the mi- based on well-known system of Locke24 and
nister shall be discharged. The Rikstag enacts Montesquieu25 with powers which counteract
the laws, determines taxes and decides how and balance each other came the birth of the
public funds are to be used. The Rikstag scru- institution of the Ombudsman. The person who
tinizes the workings of the government and was to be put in charge of the institution had
the administration of the country. 21 to be elected by the parliament and should be
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Z.SKHVITARIDZE, PUBLIC DEFENDER OF GEORGIA AND INTERNATIONAL PERSPECTIVES
a man of “known legal ability and outstanding The Rikstag was convened for the first time in
integrity”.26 many years and decided to adopt a new Con-
The idea of the Ombudsman goes back to stitution based on the principle of a balance
the time of King Charles XII of Sweden. As a of power between King and Kistag. Continued
result of his defeat at the Paltava by the Rus- struggle between the legislature and execu-
sians in 1709, King Charles XII fled to Turkey tive was finally ended by the adoption of the
where he stayed in self-exile for several ye- Constitution of 1809. Such development led
ars, locked up, de facto, by the Sultan. During the Parliament to appoint its own Ombudsman
that period, unrest and disorder was prevai- as an entity independent from the executive
ling in Sweden. Swedish administration fell in- as well as from Parliament itself with regard
to disarray. In order to set things better, the to his functions and decisions. This however
King who was then staying at Timurtaschi (in does not means that office of the chancellor of
Turkey) issued an order in 1713 decided that Justice ceased to exist. On the contrary, both
an office should be established with a supre- office until the present time have been exerci-
me Ombudsman, whose main function was to sing control over civil service, but each within
ensure that laws and statutes were followed his own jurisdiction.31
and civil servants fulfilled their obligations. In In 1915 the office of the Parliamentary
other words Ombudsman was empowered to Ombudsman, or Justitieombudsman, was
supervise the activities of judges and other ad- modified by Parliament’s decision to set up
ministrative officials. However, he was part of a second ombudsman, known as the Militi-
the executive power rather than legislative. By eombudsman, who took over from the Justi-
1719 the office created by King Charles XII as teombudsman the task of investigation com-
part of the executive was later developed to plaints against the armed services. After the
the “Office of the King’s Chancellor of Justice”- Second World War, however, it become incre-
”(Justitiekansler) which still exists. Since the asingly clear that the Justitieombudsman was
chancellor was the appointed of the executive overburdened with work while the number of
as he is today, he would likely to be liable to be complaints reaching the Militeombudsman
influenced be the government decisions that was declining. Consequently, in 1968 Parlia-
affect him impartiality.27 This due to the fact ment decided to do away with separate mili-
that his particular concern was to safeguard tary Ombudsman and instead establish three
the interest of the executive rather than to pro- Ombudsman in the office of the Justitieom-
tect of the individual rights.28 budsman, who have their own jurisdiction de-
Such statues of being part of the executive aling with complaints, also, in 1968 Parliament
created some kind mistrust in the eyes of the decided to set up two deputy Ombudsman
people. It was contended that the authority pro- who were not formally allocated sectors of go-
tecting individual rights and fundamental free- vernment, but gave general assistance to the
doms should be vested in an organ independent three Ombudsmen.32
from executive, like Ombudsman. To this effect In 1972 Parliament appointed a Commit-
several attempts were made by the parliamen- tee to look into the problem and in 1975 it re-
tary to exercise control over the Chancellor of commended a new form of organization and
Justice and in 1739 he was forced to submit a a number of amendments to the statues re-
report on his activities to the Parliament.29 This gulating the Ombudsmen’s work. These we-
was an important and vital step toward the cre- re approved by parliament in November 1975
ation of the Ombudsman Institution. However, and the new system came into the effect in
the changes did not last long. When king Gus- the spring of 1976, under which there we-
taf III succeeded by the virtue of his coup d’etat re four Ombudsmen and no deputy Ombud-
in 1772 to put an end to the Parliamentary rule, smen. One of the Ombudsmen was elected
the Chancellor of Justice became again an ap- by parliament to hold the office of the Chief
pointed of the executive.30 Ombudsman and Administrative Director of
In 1809, King Gustav IV Adolf, who had re- the Ombudsman’s office. He co-ordinates the
igned as an absolute despot, was dethroned. work of the other ombudsman’s up to present
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and, in consultation with them decides on the obvious that when state is in crises and disor-
areas of the government for which they have der is spreading rapidly, political stability de-
responsibility in investigation complaints and mands more than present, invention of lawful
initiating investigation.33 instrument to facilitate struggle against inse-
In the present organizational structure curity and violence. In Swedish reality, in the
Ombudsman covers all states and municipal past, the Ombudsman took this difficult task
agencies and bodies as well as their person- to alter life to better, maintain struggle of the
nel. As to the armed forces, however, supervi- Swedish people towards better system of go-
sion applies only to the higher-ranking officers. vernment, institutions and laws, that guaran-
The ombudsman also supervise all other per- tee their security and protection of their viola-
sons who exercise public authority, including ted rights and freedoms.38
states-owned companies that are not consi-
dered state bodies, such as a company res- INTERNATIONAL STANDARDS
ponsible for road vehicle safety controls when
forbidding an owner to use a faulty car. Some The participating States will… facili-
exceptions are made. The ombudsman do not tate the establishment and strengthening
supervise cabinet ministers, or members of of independent national institutions in the
the Rikstag or municipal councils, neither to area of human rights and the rule of law.
the Chancellor of Justice, nor the board of go- Conference of the Human Dimension
vernors of the Bank of Sweden. 34 CSCE Copenhagen, June 1990
An express provision in the instruction di- The concept of national human rights in-
rect that an ombudsman shouldn’t take acti- stitutions is, however, far more specific refer-
on against subordinate officials who are not ring as a body whose functions are especially
vested with independent powers, unless this defined in terms of the promotion and protec-
is called for on special grounds. The ombud- tion of human rights. The national institutions
sman’s main weapon is the power to admo- are considered as administrative organs, in
nish or criticize and commence the investiga- the sense that there are neither judicial nor
tion initiated by the own initiative. The majority law making. As traditionally is recognized, the-
of these are based on observations made du- se institutions have on-going, advisory autho-
ring inspections, but in number of case new- rity in respect to human rights at the national
spapers reports and TV programs have given level whose purposes are pursued through
the cause to open an investigation.35 opinions and recommendations or through the
Originally, the ombudsman’s function was consideration of complaints submitted by indi-
essentially that of a special prosecutor. When viduals or groups.39
ever an official was found at fault, the ombud- The rights can be protected better through
sman could institute legal proceedings against adequate legislation, an independent judiciary
him or in minor cases requested disciplinary with enactment and enforcement of individual
measures. Often the ombudsman do not pro- safeguards, remedies40 and the establishment
secute or institute disciplinary proceedings but of democratic institutions. The functioning of
only gave the official at fault an admonition. As national institutions must be achieved through
such admonitions are reported by the press compliance with international standards and
and printed in the ombudsman’s annual report through incorporation of its provisions in do-
to the Rikstag, which has a fairly strong im- mestic legislation.
pact. 36 The past several years have seen a pro-
The early experience of the Swedish pe- liferation for national human rights institutions
ople, which manifested in the political instabi- as more and more countries recognize the
lity and struggle for power, was a major factor significance of practical mechanisms to make
for its creation. Sweden was not a democratic international human rights commitments and
country in the true sense of its meaning and it standards effective at the domestic level. At the
followed then that institution was not created same time every state which is developed or is
under democratic system of government.37 It’s on the stage of development and should seek
202
Z.SKHVITARIDZE, PUBLIC DEFENDER OF GEORGIA AND INTERNATIONAL PERSPECTIVES
ways for extension of international co-operati- human rights machinery. In summary the key
on. Find possibilities and forms for bringing the criteria of the Paris Principles are:
legal principles and norms adopted by interna- • independence guaranteed by statute or
tional organizations into closer accord with do- constitution
mestic legislation for effective implementation • autonomy from government
of commitments undertaken in order to make • pluralism
national legislature more effective and credible • a broad mandate based on universal hu-
for basic beneficiaries-people.41 man rights standards
• adequate powers of investigation
a) Principles Related to the Status of Na- • sufficient resources44
tional Institutions for the Promotion
These principles first of all provide that
and Protection of Human Rights.
national institution should be vested with com-
(Resolution 48/134, UN General As- petence to promote and protect human rights,
sembly of 20 December 1993) have as broad mandate as possible, be inde-
The United Nations has been actively in- pendent, pluralistic, accessible, characterized
volved for several years in promotion and by regular and effective functioning and rep-
strengthening independent, effective national resentative composition and have adequate
human rights institutions. In 1990, the Commis- funding.45
sion on Human Rights called for a workshop to The Paris Principles authorized the UN
be convened with the participation of national member states to promote and ensure the
and regional institutions involved in the protec- harmonization of national legislation regula-
tion and promotion of human rights. The wor- tions and practices with the international hu-
kshop was to review patterns of co-operation man rights instruments to which the state is
of national institutions with international institu- party and carry out their full implementation in
tions, such as United Nations and its agencies domestic level. It also, illustrates the methods
to explore ways of increasing their effective- of operation where should be freely consider
ness. The outcome of this important workshop any question regarding the human rights vio-
found acceptance in detailed set of principles lations and suggest the amendments of natio-
on the status of national institutions which later nal legislation in order to improve the situation
was developed as Paris Principle.42 with human rights. 46
The Principles Relating to the Status of A national institution may be authorized
National Institutions or “Paris Principle” as it is to hear and consider complaints and petitions
widely known, is important because it sets out concerning individual situations. Cases may
to clarify the concept of a “national institution” be brought before it by individuals, their rep-
by providing minimum standards on the sta- resentatives, third parties, non-governmental
tus and advisory role of national human rights organizations, associations of trade unions or
bodies. Under the Paris Principles a national any other representative organizations.47
institution shall comment on human rights Therefore, it should be stressed, that com-
matters to government, Parliament and other pliance with above mentioned principles only
competent bodies, promote conformity of laws facilitate process of formation of national insti-
and practices with international standards and tutions in Georgia that undertook the task of
encourage implementation of international promotion and protection of human rights.
commitments, contribute international human Two years later on the World Conferen-
rights reports and increase public awareness ce on Human Rights held in Vienna 1993 was
in the field of human rights. In accordance to recognized the importance of Paris Principles
principles, national institutions may seek ami- where was admitted, that:
cable settlements inform complainants of their The World Conference on Human Rights
rights and how to achieve the redress. 43 encourages the establishment and strengthe-
The Paris Principles are not intended to ning of national institutions, having regard to
be exhaustive but they indicate basic criteria the “Principles relating to the status of national
and guidance for the establishment of national institutions” and recognizing that it is the right
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of each State to choose the framework which legal foundation of human rights. It also illus-
is best suited to its particular needs at the na- trate the main functional features of national
tional level.48 institutions to conformity with only facilitate in-
Throughout the 1990s, The United Nati- stitutions being active in its operational stage
ons continued to take an active part in promo- and stand on the front line of the human rights
tion the national institutions for full realization defense.
of human rights. A number of reports and re-
b) UN Declaration on Human Rights De-
solution have been adopted by Secretary-Ge-
fenders
neral and presented to the General Assembly.
“The Declaration rests on a basic premi-
Later was emphasized by the Commission on
se: that when the rights of human rights
Human Rights resolution the need to disse-
defenders are violated, all our rights are
minate the Principles Relating to the Status
put in jeopardy and all of us are made less
of National Institutions for the Promotion and
safe”.
Protection of Human Rights.49
Kofi Annan, UN Secretary General
The inclusion of national human rights
September 14, 1998
institutions at the Vienna Conference two ye-
NGO/DPI Conference
ars later established the principle that these
institutions were an integral part of the inter- Human rights defender is the person on
national human rights machinery50 where was the front lines of the struggle to realize the ide-
recognized the important role of national insti- al proclaimed in the Universal Declaration of
tutions in the field of human rights: Reaffirms Human Rights. But those who stand up for hu-
the important and constructive role played by man rights often pay high price for their coura-
national institutions for the promotion and pro- ge. Human rights defenders are assassinated
tection of human rights, in particular in their for protesting against state violence. They are
advisory capacity to the competent authoriti- jailed for demanding prisoners rights. They
es, their role in remedying human rights vio- “disappear” because they investigate abduc-
lations, in the dissemination of human rights tions and political killings. 54
information, and education in human rights.51 The struggle to support and assist victims
On the Copenhagen Meeting of the Con- and oppose violations, gives human rights de-
ference of Human Dimension of the CSCE fenders their most compelling reason to orga-
in 1990 the participating state admitted and nize and act. It is the essence of their work. If
recognized that the vigorous democracy de- the right to defend other people and oppose
pends on the existence as an integral part of the abuses they suffer is denied, the work of
national life of democracy values and practi- human rights defenders and the contributions
ces as well as an extensive range of democra- they make to the community will be sabota-
tic institutions, relatively states should under- ged.55
take the obligations to comply with internatio- The adoption by the United Nations of the
nal standards for promotion of human rights, Declaration on Human Rights Defenders on
facilitate the establishment and strengthening December 9, 1998 marks a historic achieve-
of independent national institutions in the area ment in the struggle toward better protection
of Human Rights and the Rule of Law. 52 of those at risk for carrying out legitimate hu-
In the Conference on the Human Dimen- man rights activities. The need for more effec-
sion of the CSCE in Moscow, in October 1991 tive protection of human rights defenders has
has been recognized the common interest in been amply proven.56
promotion contracts and exchange of informa- From the beginning, the drafting process
tion amongst Ombudsman and other instituti- of Declaration has been slow and complica-
ons entrusted with similar functions of investi- ted. The 13 years57 of debate have been cha-
gating individual complaints of citizens against racterized by the constant tension between
public authorities.53 those who are trying to reinforce the rights ne-
The instruments discussed above still re- cessary for human rights work and those who
main the basis for states endeavor to build up would like to impose on the rights of defenders
204
Z.SKHVITARIDZE, PUBLIC DEFENDER OF GEORGIA AND INTERNATIONAL PERSPECTIVES
a set of new limitations that could make the- reover, it should be encouraged and protected
ir work practically meaningless. But, anyway, by law. Defenders should be granted the wi-
the Declaration has been adopted on 9 De- dest possible facilities for exercising this right,
cember 1998.58 including tax exemption or charitable status.
The declaration on Human Rights Defen- The right to obtain funding and resources sho-
ders-adopted under the formal name “Decla- uld not be restricted in a discriminatory man-
ration on the rights and responsibility of indivi- ner, that is, human rights defenders should not
duals, groups and organs of society to promo- be subjected to any funding restrictions that
te and protect universally recognized human do not apply to other individuals, or to public,
rights and fundamental freedoms”-is the first private or international concerns operating in
UN instrument that recognizes the importan- their country.62
ce and legitimacy of the work of human rights And finally, there should be made only
defenders, as well as their need for better pro- one conclusion that human rights cannot be
tection. Adopted in the commemorative year defended if defenders themselves cannot
of the 50th anniversary of the Universal Dec- exercise the rights necessary to do so. Human
laration of Human Rights, the Declaration on rights defenders are no threat to the state. Go-
Human Rights Defenders is an important ad- vernments that systematically violate human
dition to the current body of international hu- rights may well find that it damages their repu-
man rights standards. The declaration, which tations, but they must realize that this damage
was adopted by the UN General Assembly by is caused by the violations themselves, and
consensus, constitutes a clear commitment on not those who work to expose them.
the part of all UN member states to respect the
rights of human rights defenders at the natio-
INSTITUTION OF THE PUBLIC
nal and international levels.59
DEFENDER OF GEORGIA
The international community has repe-
atedly acknowledged the vital role of human By the birth of the Constitution of Geor-
rights defenders in the implementation of hu- gia63 came the birth of the institution of the
man rights on the domestic level. International Ombudsman. The Office of Public Defender of
monitoring mechanisms, such as the Speci- Georgia was established in January of 1998 in
al Procedures of the Commission on Human conjunction with adoption of the new constitu-
Rights and the UN Treaty Bodies, often rely tion of Georgia, of which it forms part. Based
heavily on the findings of local and national on the Article 43 of the Basic Law (Constitu-
human rights activists in their assessment of tion), the Parliament of Georgia adopted the
domestic human rights conditions. Both the Law on the Public Defender,64 which illustrates
UN Secretary General and the high Commis- and defines the competence, power, general
sioner for Human Rights have repeatedly ex- principals and spheres of activities of the Pub-
pressed their strong support and admiration of lic Defender.
the work of human rights defenders.60 The candidate on Public Defender’s post
In order to defend human rights and op- should be a citizen of Georgia65 has knowled-
pose abused, defenders must have the right ge of the law (however is not a prerequisite),
to appeal to the law and the institutions of the have good reputation and outstanding integ-
state, and claim protection from them. States rity. The position of the Ombudsman is incom-
have the corresponding obligation, often tho- patible with any other public office or function.
ugh their international commitments, to adapt The ombudsman is appointed for five years
their laws and institutions to permit the exer- and may be reappointed only once. He enjoys
cise of this right and to offer the required pro- legal immunities and acts independently of ot-
tection. her state institutions. He can remove only for
The right to solicit and obtain resources causes enumerated in the Law on Public De-
including informational61 one to support the fender.66
defense of human rights ought to be recogni- The composition of the national instituti-
zed as fully as it is for any other activity. Mo- ons and the appointment of its members, like
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the ombudsman or public defender, whether ding appointments and assignments entailing
by means of an election or otherwise, has to the exercise of public authority, administrative
be established in accordance with a procedu- body and court of law.72
re which affords all necessary guarantees to In accordance to the Law on the Public
ensure the pluralist representation of the soci- Defender of Georgia the exemptions in the ju-
al forces involved in the promotion and protec- risdiction of the ombudsman had not been ma-
tion of human rights, such as non-governmen- de, he was endowed with full power of juris-
tal organizations responsible for human rights, diction for fulfillment the comprehensive and
trade unions, associations of lawyers, doctors, stable activities in every fields of administrati-
journalists and eminent scientists.67 ve authority to supervise them without separa-
The public Defender of Georgia is appoin- tion. Unlike the Swedish and Danish systems
ted by the Parliament and his task is to super- of the Ombudsman, there are several exem-
vise on behalf of the Parliament the application ptions made on the ground of relevant Instruc-
of the laws and other status within public ad- tions, where the jurisdictions, for instance in
ministration. This supervision comprises both Sweden does not exercise over members of
the courts of law, public authorities, national or the Rikstag (parliament), Cabinet Ministers,
local, public officials and legal persons in their Attorney General members of Election Revi-
employ, where he is able to evaluate all acts ew Committee, the Secretary-General of the
passed by them.68 Parliament, the governing board of the Bank
The ombudsman of Georgia is not a go- of Sweden including its governor and deputy
vernment or an executive appointee, but elec- governor, in Denmark it does not extend to the
ted official by the Parliament in the capacity as functions of the judges, chief administrative of-
its representative for the purpose of supervi- ficers of the courts of justice, the head of the
sing the application in public service the aim of Division of the Copenhagen City Court, clerks
which is to ensure that the authorities concer- of the Supreme Court and assistant judges.73
ned and their personnel properly fulfill their ob- As in many countries’ traditional system
ligations in all respects. For it is the particular of the ombudsman has shown the endowment
duty of an Ombudsman to hear and consider of the ombudsman with power of supervision
complaints and petitions concerning individu- plays crucial and decisive role in protection of
al situations. Cases may be brought before it human rights. In order to do so, the ombud-
by individuals, their representatives, third par- sman of Georgia exercises the supervision
ties, nongovernmental organizations, associa- through examining, investigating complaints
tions of trade unions or any other representa- received from general public.74 In doing so he
tive organizations69. Ensure that the courts of is empowered to take all necessary measures
law and administration observe the provisions and initiate the legal proceedings (but he has
of the Constitution concerning objectivity and never use that power yet). For instance, in few
impartiality, that the fundamental freedoms of cases of some countries systems the prosecu-
citizens are not encroached upon in the pro- tion for the injustice suffered by the individuals
cess of the public administration. He/she has against officials who are found at fault from the
to drawing the attention of the Government, as one part of the activity of the ombudsman (for
it is stated in the Principles Related to the Sta- instance in Sweden and Finland).75
tus of National Institutions, to situations in any Public Defender has to be independent
part of the country where human rights are vi- entity acquiring a neutral status between both
olated and making proposals to it for initiatives the government and the Parliament itself.
to put an end to such situations and, where Even the Parliament has the power to appo-
necessary, expressing an opinion on the posi- int and remove the ombudsman it cannot in-
tions and reactions of the Government.70 terfere or exert an influence on his work.76 In
The jurisdiction of Public Defender of Ge- generally, the ombudsman is and should be
orgia involves a wider sphere of supervision independent of the Parliament and of course,
covers all state, municipal agencies and bodi- of the executive. This independence is impor-
es71 including their officials, other persons hol- tant in order to maintain the confidence of the
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Z.SKHVITARIDZE, PUBLIC DEFENDER OF GEORGIA AND INTERNATIONAL PERSPECTIVES
general public in the neutrality and impartiality The law on Public Defender of Georgia
of the opinions of the ombudsman. The inde- prescribes the Public Defender may start in-
pendence is also essential in order to avoid vestigation on his own initiative. He uses that
the ombudsman being turned into a plaything power to conduct investigation in accordance
of political controversy. to own initiative, but it should become more
The Inspection should from an important frequent practice. 79
part of activity of the Public Defender of Geor- In generally, when investigating the com-
gia. It is the strong tool by which the Ombud- plaints the ombudsman sometimes discovers
sman exercises his supervision. While he/she unsatisfactory conditions or errors committed
carries out his supervision or examination that are not covered by the complaints, what
where he founds necessary the ombudsman is caused the Ombudsman to start the inves-
should have access to any public authorities, tigations on his own initiatives. Sometimes
national or local, enterprises, organizations an anonymous letter, which is not admissible
and institutions, including military units and as complaints, will cause the Ombudsman to
pre-trial detention facilities, also to criminal, ci- intervene formally on his own initiatives. For
vil and administrative cases. Hear any person example, in Sweden and Denmark the majo-
and obtain any information, any documents rity of the investigations are carried out on the
necessary for assessing situations falling wit- ground of newspapers, TV programme repor-
hin its competence.77 ting on the activities of the courts and adminis-
The inspection has its positive effect on trative organs, where Ombudsman is enable
the better performance of the ombudsman’s to conduct the investigation.
activities. In particular, in many instances in- With regard to Paris Principle the ombud-
spections reveal errors, abuses and other un- sman can address public opinion directly or
satisfactory practices which gives the ombud- through any press organ, particularly in order
sman reasons to take measures against the to publicize its opinion and recommendati-
officials concerned, as well as for the improve- ons.80 Relation between Public Defender and
ment of conditions and practices. For instan- Press releases agencies is welcome step in
ce, when prison, hospital or similar institutions the field of effective implementation of ombud-
or establishment is inspected on the ground sman’s duty. For instance, in Sweden every
of complaints or ombudsman’s own initiatives, day a representatives of the main newspaper
the inmates and patients are given the oppor- agency calls at the ombudsman’s office to exa-
tunity of talking with the Ombudsman to ex- mine the inward and outward correspondence
press their grievances or complaints if they of the day. Beside the fact that under Swedish
have any, subordinate officials in any inspec- Law every citizen has free access to call offici-
ted establishments or offices are also given al documents, except those which have been
such an possibility. Observations made during expressly declared secret by state, the docu-
an inspection have caused the ombudsman ments in Ombudsman office are laid out on
to take action to remedy deficiencies in legis- the table in advance to facilitate his work. The
lation. The impact of the inspections is thus reporter selects cases of general interests and
considerable and of great benefit to the gene- circulates the information in the newspapers.
ral public.78 Furthermore, the knowledge that Sometimes, complainants send copies of the
every authority may at any time be inspected letter to a newspaper, asking have published
helps to keep their employees on their toes. and such demand often complied with. From
Therefore, the inspection should be con- his part, the ombudsman in some cases relies
ducted frequently by the Public Defender of upon the articles of newspapers and commen-
Georgia and particularly, in accordance to the ces the investigation on his own initiatives.
law. It is not only makes officials maintain in In accordance to the law, the Public De-
good conduct, but inquiries into deficiencies in fender of Georgia every year shall submit the
administrative procedures leads the authoriti- annual report81 to the parliament to which he
es and their officials to change defective, un- is accountable. In annual report he should list
desirable or unjustified policies. those public authorities, national or local, pub-
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lic officials and legal persons that systemati- if the means of response at the disposal is not
cally violate human rights and freedoms and sufficient. 85
who do not adopt the recommendations of the It would be worthy to mention that in Ge-
Public Defender. orgia local human rights groups claim that
The annual report could be considered the ombudsman’s agenda is dictated to him
as another form of procedure through which in many instances by the executive branch
the Public Defender reports about his activiti- what mainly comes in contradiction with tra-
es while exercising the supervision. The most ditional independent of the Office. This sho-
significant aspect of the annual report is that uld not be forgettable that the ombudsman is
his decisions, statements, announcements an independent investigator and is politically
and recommendations are brought to the at- independent, even of the legislature. He/she
tentions of the various interested groups of pursues only Constitution of country and once
people, which should be studded and circu- he has begun the investigation of a case no-
lated in almost every sphere of public admi- body intervene.
nistration as a wise solution maker’s proposal. When the office was instituted in Sweden
Since as traditional system of the ombudsman and in other countries following the widespre-
is suffered from the lack of enactment of the ad idea of Ombudsman scheme, it was inten-
binding decisions the annual report is magnifi- ded that the Ombudsman should act as a gu-
cent possibility to carry out redress of violated ardian of the people’s common and individu-
rights through supreme legislative organ. In al rights. In other words, he/she should try to
the Principles Related to the Status of the Nati- prevent the abuse of powers by the authorities
onal Institutions is stated that the ombudsman and in this way, to be a protector of the ci-
can submit to the Government, Parliament tizen’s security under the laws. Since that ti-
and any other competent body, on an advisory me, this purposes remains the same today as
basis either at the request of the authorities many years ago.
concerned or through the exercise of its power
to hear a matter without higher referral, opini-
HUMAN RIGHTS VIOLATIONS AND THE
ons, recommendations, proposals and reports
URGENCY OF STRENGTHENING
on any matters concerning the promotion and
OMBUDSMAN INSTITUTION IN GEORGIA
protection of human rights.82
Aside from defending the individuals and The protection of human rights is conside-
their rights, the Public Defender’s one of the red as one of the most pressing and popular
basic functions has to be enlightenment ac- issues for Georgian society so address. This
tivities for the public and state officials. For fact has also been acknowledged by the Pre-
example, in many countries the ombudsman sident and the government of Georgia and the
offers instruction to the public on the rule of necessary steps are being taken to respond to
law and runs a workshop on the principles the need of legislative reform and increased
of civil society, also tries to educate the go- and improved monitoring.86
vernment administrators: To assist in the for- Since Georgia’s early years of indepen-
mulation of programs for the teaching of, and dence, marked by armed hostilities in various
research into, human rights and to take part parts of the country as well as severe econo-
in their execution in schools, universities and mic dislocation, the country has achieved a
professional circles.83 The Public Defender is greater stability and taken various concrete
assisted in the functioning and management steps towards building democratic institutions
of the office by the Deputy Public Defender84 and reforming its judicial and legal systems.87
who is same time the head of the office. And in However, Georgia’s rapidly improving image
addition, it is worthy to mention that the Public as reforming post-Soviet country far outpaced
Defender is endowed with power to appeal in its actual performance in human rights. As the
writing to the President of Georgia or make a international Organizations’ scrutiny of the re-
statementat the Parliamentary session on the cords of Georgia has shown-notable by UN
gross and mass violation of the human rights and CE-the government of Georgia took steps
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Z.SKHVITARIDZE, PUBLIC DEFENDER OF GEORGIA AND INTERNATIONAL PERSPECTIVES
in recent years to indicate that its makes the strations and meetings contrary to Article 11
human rights as a priority.88 of ECHR and Article 21 of ICCPR where the
Despite the fact that Constitution of Geor- Government limits freedom of assembly, and
gia provides the rights and freedoms of the
89
security forces continued to disperse some
individuals, including equality before the law, peaceful rallies violently.
freedom of conscience, religion and belief, fre- The Constitution provides for an indepen-
edom of expression and information, freedom dent judiciary, but in practice the judiciary of-
of assembly and association, freedom of mo- ten doesn’t exercise independence. Prior to
vement, rights to liberty and security of indivi- adoption of the constitution, the courts often
duals, privacy and property and conforms to were influenced by pressure from the executi-
the universally recognized norms and princip- ve branch. Sometimes investigators routinely
les of international law, these norms and fre- plant or fabricate evidence and extort confes-
edoms, unfortunately, are not usually obser- sions in direct violation of the Constitution.
ved. Most chronic problems persist, principally Judges generally are reluctant to exclude evi-
violations of civil rights of individuals mainly, dence obtained illegally over the torture and
torture and police abuse, arbitrary interference duress that leads to denial of justice and con-
in privacy, arbitrary detention and illegal dis- tradicts the Right to Fire Trail envisaged in IC-
placement of demonstrations and meetings. CPR and ECHR.
For instance, the Human Rights Committee in Refusal to prosecute war crimes com-
its scrutiny of Georgian initial report has con- mitted during the civil wars in South Ossetia
demned cases of torture inflicted on individu- (1991) and Abkhasia (1992-1994) is another
als deprived of their liberty, including for the contentious issue. The rights of the victims of
purpose of extortion of confession. It deplores these conflicts should be secured no matter
that this acts and other acts of torture usually whether the accused from both sides refused
go unpunished and that in many cases a lack to attend the trial, or not, or whether the sta-
of confidence in the authority keeps the victim te authority is reluctant to bring the accused
from lodging complaints90. According to ob- before the competent tribunal in order to do
servers, including the OSCE and the Associ- justice to the victims. This might signify that
ation of Former Political Prisoners for Human the rights of all persons concerned would be
Rights, police continue frequently to treat indi- respected.
viduals in their custody with brutality. However, One of the major issues pointed out in
one should notice that correct legal procedu- Reports of the Public Defender is the Corrup-
res are being observed more frequently lately. tion and Human rights. Bribe, extortion, threa-
Authorities often continued to hold prisoners tening, illicit financial and credit transactions,
who were tortures and abused in pre-trail de- often directed against the economic, financi-
tentions for lengthy periods in order to give al and political interests of one’s own country,
their injuries time to heal91. The law enforce- coercion of the community into having to put
ment agencies and other government bodies up with unreasonable and illegal decisions
illegally interfered with citizens’ right to privacy and regulations of high-ranking public offici-
and continue to do same direct contradiction als – these are clear and irrefutable identifying
to the international law obligations and in vio- marks of an incumbent-driven system and flo-
lation of ICCPR and EHRC.92 uts and tramples underfoot basic human rights
The abuse of report to pre-trial detention and fundamental freedoms.
and police custody is another problem, dura- From the year 2001 one of the popular
tion of which is limited by the Constitution of crimes became kidnapping of the rich famous
Georgia, but the limits are not being observed people’s children or relatives or famous peop-
in practice in many offence in disregard of the le themselves. Kaladze’s brother, Peter Shaw,
provisions of Article 9 of the Covenant on Civil High racked police officer’s daughter, the di-
and Political Rights and Article 5 of ECHR. rector of the factory and many others were kid-
Very problematic and sensitive issue is napped to get the money from them or to for-
connected with illegal dispersion of demon- ce them to do something. Despite the fact that
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saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
Peter Show was rescued by the main forces legitimately be expected to take essential
of Georgia but many others remain in unlawful steps to prevent such practices.
custody. Public Defender should be an outstanding
This is only short survey of human rights person to follow the process of implementati-
violations, which persist in Georgia and which on, find more appropriate ways to recommend
I think is worthy to be discussed. Georgia has or advise on particular issues and ensure the
made many endeavors to embark on the way observation of international human rights stan-
to democracy, many institutions dealing with dards. Making recommendations to the com-
human rights surveillance were established petent authorities, especially by proposing
and many laws had been enacted in confor- amendments or reforms of the laws, regula-
mity with internationally recognized norms. tions and administrative practices especially if
Unfortunately, the observance of them in many they have created the difficulties encountered
instances are not fulfilled and the rights of in- by the persons filing the petitions in order to
dividuals continues to be paper rights and not- assert their rights.95 Ombudsman should seek
hing more. The governments are not entitled the eradication of torture and ill-treatment, in-
to apply human rights principles as they think terference with privacy, arbitrary detention and
fit, according to the needs and requirements prosecution of officials alleged in all those cri-
of their own system, where this involves discri- mes, be firm to bring to justice those respon-
mination or disregard for constitutional legality sible for torture or ill-treatment of detainees,
and the rule of law. The ultimate objective, ho- implement prompt and impartial investigations
wever is the implementation and rigid obser- of all complaints even without being reported
vance of these standards at the nationa and and carry out instructions in the field of hu-
local levels where they can be enjoyed and man rights to avoid the reappearance of it. He/
exercised by the people.93 she should carry out the observation of legal
Human rights as enforceable domestic norms and protection of human rights without
legal rights requires a domestic legal system interference of executive power, if necessary
based on the rule of law, affording protection recommend the adoption of new legislation in
to individuals in the enjoyment of rights un- force or amendment of administrative measu-
res,96 otherwise, his actual and traditional cha-
der the law. The requirement that “everyone
racter as independent and impartial guardian
shall have the right to recognition everywhere
of people will be compromised.
as person before the law”94 has to be under-
stood in terms of another Article 21 of ICCPR
which demands that all the rights under the IMPORTANT FEATURES OF SWEDISH
Covenant be recognized without distinction OMBUDSMAN TO BE IMPLEMENTED
or discrimination with regard to “race, color, IN GEORGIA
sex, language, religion, political or other opini- The ombudsman institution as developed
on, national or social origin, property, birth or in Sweden has a number of unusual features,
other status”. And, finally, the enforcement of which, in combination, makes it unique among
publicly promulgated law by properly constitu- grievance-handling, appeal and investigating
ted and impartial courts is unacceptable, if the bodies. With very well known features of the
laws being given effect to, are themselves in ombudsman scheme an important nature is
conflict with human rights requirements. that because of the simple and cheap way in
The vital importance of implement all in- which complaints are handled, many minor
ternational standards in current legislation is complaints can be satisfied. Though important
analyzed nowadays by the government of Ge- to the claimant, they would not be worth the
orgia what has to be ensured by appropriate cost of an elaborate court procedure. Many
means, because under the general principles cases involve no more than explaining to the
of international law states are free to choose bewilder citizen the reasons for the decision of
themselves the method of implementation. No which he has complained.
government can eliminate police harassment, The special attention in the work of the
brutality, judicial bias or corruption, but all can Swedish Ombudsman is paid to the individu-
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Z.SKHVITARIDZE, PUBLIC DEFENDER OF GEORGIA AND INTERNATIONAL PERSPECTIVES
als civil and political rights. The most valuable The office must be widely known and ea-
work has been done on serious cases of il- sily accessible. Ombudsman must therefore
legality involving the liberty of the individual, take every opportunity to publicize their ser-
such as the unjustifiable use of handicrafts, or vices through the media and make their ser-
the recording of telephone conversations by vices easily accessible throughout the country
the police or an assault by nurse on a mental by means of regional offices, frequent visits
patient. As a result of investigations, he may to outlying areas and free long distance calls
direct a department to discipline one or more from complainants.98
of its officers or in more serious cases even to A body that is in some way separated from
prosecute in the court. the responsibilities of executive governance
Another unusual feature of Swedish Om- and judicial administration is in a position to
budsman is that he has the power to oversee take a leading role in the field of human rights.
the courts. There are cases, for instance, as By maintaining its real and perceived distance
result of investigation complaints, the civilian from the government of the day, such a body
ombudsman prosecuted a judge for insulting can make a unique contribution to a country’s
a witness. The judge was than fined. efforts to protect its citizens and develop a cul-
Proof that even in well-administered coun- ture respectful of human rights and fundamen-
tries like Sweden supposedly responsible offi- tal freedoms.99
cials do indeed abuse their power is that over And final trait, in country that has autho-
the year some very senior officials, including ritarian regime or widespread corruption, the
heads of royal boards have had to be prosecu- ombudsman scheme may work with moderate
ted by the Swedish ombudsman. Many cases success to solve minor problems, but it cannot
are also known of the prosecution of a police cure a major disease in the working of gover-
chief and the public prosecutor of country for nment where his directives and recommenda-
illegalities committed by them. tions will not be observed.
As a matter of fact, direct measure of im-
plementation such as prosecution is needed,
CONCLUSION
if one wish to have such institution maintain
its traditional power and prestige for promoti- Despite the fact that the jurisdiction of
on and protection of human rights for the aim Public Defender of Georgia involves a wider
of which it was created. It has been observed sphere of supervision covers all state, munici-
that even the use of threat for prosecution has pal agencies and bodies including their offici-
its positive impact on the conduct of the of- als, other persons holding appointments and
ficials. The ombudsman should be given the assignments entailing the exercise of public
“sharp teeth to bite.” authority, administrative body and court of law
In Sweden no matter how secret (unlike in and there are no exemptions in the jurisdicti-
Georgia) the official papers, records and do- on of the ombudsman endowed with full power
cuments are, even those of the king or cabi- of jurisdiction for fulfillment the comprehensive
net ministers, the ombudsman has the power and stable activities in every fields of adminis-
to have access97 to them. When ombudsman trative authority to supervise them without se-
needs information relating to a case he is un- paration – there is still the lack of real authority
dertaking the officials under obligation to pro- for Human Rights Defender’s decisions in Ge-
vide him with the necessary assistance and orgia. The only thing that Public Defender can
facilities to obtain such information. The rights do is to write reports on the human rights si-
to access to official papers and documents is tuation in the country in his reports publicizing
not limited to the ombudsman. Certainly, ha- the wrongdoings of main forces or some high
ving official paper and documents available rank officials. He is obliged to present this re-
before the ombudsman make the authority port to the Parliament but no more of it. Public
and officials more careful in their application Defender has no right to go beyond this which
of the law and avoid abuses and malpractice means that he has no right to investigation
in the administration. and no right of appearing before the court as
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state prosecutor. That is why the report he is her really busy. By creating the Parliamentary
drafting is more of statement of facts and has Ombudsmen that would be in charge of the
the advisory function. According to the all abo- relations with the Parliament would be much
ve mentioned I think that the right for investi- more effective as he/she having the perma-
gation and bringing the case before the court nent contact with MPs and would inform about
would radically increase the effectiveness of different human rights violations on time.
public defender in Georgia. The important issue is the performance of
The other important issue is the organiza- the constitutional functions by Human Rights
tional/managerial one. There are a lot of com- Defenders. Unfortunately in many cases the
plaints brought by ordinary citizens to the Pub- Human Rights Defender had problems with
lic Defender’s Office and the workload is so the realization of his/her authorities. For in-
huge that the Public Defender is overwhelmed stance the Public Defender possesses the
with a lot of work that should be done. Such constitutional authority to enter in any prison
kind of situation effects the quality of work as for monitoring at any time. But the administra-
well and because of that many complains re- tion of prisons did not let Public Defender to
main unread and unaffected. That is why the enter inside the penal system having unlaw-
development of the office of the Public Defen- ful reasons for that. That is why the constitu-
der of Georgia should be continued. Such de- tional functions of the Public Defender should
velopment, particularly in relation to the incre- be supported by concrete punishment system
asing load of cases brought before the Pub- against the high officials violating the law.
lic Defender of Georgia, I think, necessitate To conclude, I think that the real funda-
to adoption the post of another Ombudsman mental reform is urgent for the system of Pub-
whether regional or national, where latter om- lic Defender to work out. Along with the con-
budsman would be responsible for his own fi- stitutional changes expanding the functions
eld of jurisdiction. of the Ombudsman and establishing the new
In addition to above mentioned the Public Public Defender institutions there is the gra-
Defender serves as the Parliamentary Ombud- te need for amending the penal legislation for
smen which increases the job and makes him/ supporting and strengthening this institution.
1
Al-Wahab, Ibrahim, The Swedish Institution of Ombudsman, Stockholm, 1979.
2
UNHCHR, Fact Sheet No.19, National Institution for the Promotion and Protection
of Human Rights, 1997.
3
UNDP, National Human Rights Institutions, Some Lessons from Global Experience,
2003.
4
Ibid.
5
Caiden, Gerald E, International Handbook of the Ombudsman, Country Survey,
1983.
6
Ibid.
7
Blackburn, Robert and Taylor, John, Human Rights for the 1990s, Mansell, 1991.
8
UN human rights fact sheets Nol-25 4th Ed, Raoul Wallenberg Institute, 1996.
9
Ige, Tokumbo and Lawis, Olumide, Human Rights made easy, Lagos, 1994.
10
Conference on Non-Judicial Mechanisms for Protection of Fundamental Rights of
Persons. CSCE, Madrid, May 1992.
11
Al-Wahab, Ibrahim, The Swedish Institution of Ombudsman, Stockholm, 1979, pg. 14.
12
Ibid pg. 16.
13
UNHCHR, Fact Sheet No.19, National Institution for the Promotion and Protection
of Human Rights, 1997.
14
Principals Related to the Status of National Institutions, Para. 3 (a-i).
15
The Third International Ombudsman Conference, The Ombudsman and Human
Rights Stockholm June, 25-28, 1984.
16
Principals Related to the Status of National Institutions, Para. 3 (a-i).
212
Z.SKHVITARIDZE, PUBLIC DEFENDER OF GEORGIA AND INTERNATIONAL PERSPECTIVES
17
The Third International Ombudsman Conference, The Ombudsman and Human
Rights Stockholm June, 25-28, 1984.
18
Rowat, Donald C, The Ombudsman plan-the world wide spread of an idea, London,
II Ed., 1985 pg. 61.
19
Ibid.
20
Rowat, Donald C, The Ombudsman plan-the world wide spread of an idea, London,
II Ed., 1985 pg. 225.
21
Gellhorn, Walter, Ombudsman and others, Harvard University Press 1966, pg.
200.
22
Ibid.
23
Ibid.
24
Lock argued that all individuals were endowed by nature with inherent rights to life,
liberty and property, which their own and could not removed or abrogated by the
state. However, Lock also postulated in order to avoid the uncertainties of life in a
state nature, mankind had entered into a social contact or voluntary association
by which the exercise of their inalienable rights was transferred to the ruler of the
state.
25
Montesquie warned in his writing on the principal of separation of powers (execu-
tive, judiciary, legislative) against danger of placing all powers or even two of them
in the hand of one person or group of persons.
26
Swedish Constitution, 1809, Article 96.
27
Constitution of Sweden, The instrument of Government, Chapter 11 (6).
28
Al-Wahab, Ibrahim, The Swedish Institution of Ombudsman, Stockholm, 1979, pg.
25.
29
Ibid.
30
Baron Mannerheim, Lars August was the first Swedish Ombudsman elected in
1810. The time he was chairman of the parliamentary committee drafted the
Constitution of 1809. Leader of the Constitutional Party. His election was on purely
political ground.
31
Ibid.
32
Jennifer Gannett, Providing Guardianship of Fundamental Rights and Essential
Governmental Oversight: An Examination and Comparative Analysis of the Role
of Ombudsman in Sweden and Poland
33
Ibid.
34
Section 8 of the Act of instruction to the Parliamentary Ombudsmen, 1975.
35
Lundvik, UIF, International Handbook of the Ombudsman, Edited by Gerald E.
Caiden, 1983, pg. 17.
36
Al-Wahab, Ibrahim, The Swedish Institution of Ombudsman, Stockholm, 1979, pg.
26.
37
Ibid.
38
Respect for human rights never comes from a document nor from institutions, it
comes from struggle against
repression and for freedom. Albie Sachs. ANC human rights promoter.
39
UN human rights fact sheets Nol-19 5th Ed, Raoul Wallenberg Institute, 1996.
40
Paragraph 1 of the Vienna Declaration and Plan of Action 1993.
41
Juviler, Peter & Gross, Bertman with Kartashkin, Vladimir & Lukasheva, Elena.
Human Rights for 21st
Century, foundation of responsible hope, Assay by Vladimir Kartashkin, 1993.
42
(Paris) Principals Related to the Status of the National Institutions for the Promotion
and Protection of Human Rights, adopted by UN General Assembly resolution
48/134 of 20 December 1993, see Annex.
43
Ibid, Para. IV (a).
44
Ibid.
45
Ibid, Para. I, 2.
46
Ibid, Para. IV.
47
Ibid, Para. IV.
48
The Vienna Declaration and Plan of Action, Paragraph 36.
213
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
49
Resolution 1996/50 Commission on Human Rights.
50
Yeldin, Maxwell. The time is now: supporting national infrastructure for human
rights, 1994.
51
The Vienna Declaration and Plan of Action, Paragraph 36.
52
Para. III (26). Document of Copenhagen Meeting of the Human Dimension of
CSCE. 29 June 1990.
53
Article 26, Conference on the Human Dimension of the CSCE in Moscow, in
October 1991.
54
Mas, Nunca, Brody, Reed, Gonsalez Felipe. An analysis of international instru-
ments on disappearance. Human Rights Quarterly, 1993.
55
Human Rights Defenders: Breaching the Walls of Silence Amnesty International,
1995.
56
Protecting Human Rights Defenders, Analysis of the newly adopted Declaration
on Human Rights Defenders.
57
UN Commission on Human Rights established a working group in 1985 with the
mandate to draft a UN declaration on “the rights and responsibilities of individu-
als, groups and organs of society to promote and protect universally recognized
human rights and fundamental freedoms” Composed of governments, but open to
participation by non-governmental organizations, the working group held annual
session for 13 years before adopting the final text of the draft declaration.
58
Protecting Human Rights Defenders, Analysis of the newly adopted Declaration
on Human Rights Defenders.
59
Ibid.
60
See. the opening statement of the High Commissioner for Human Rights at the
last session of the Working Group on Human Rights Defenders, February 23,
1998.
61
Declaration on Human Rights Defenders, Article6, December 9, 1998.
62
Human Rights Defenders: Breaching the Walls of Silence Amnesty International,
1995.
63
Constitution of Georgia, Excerpt, 1995, see annex.
64
Law on the Public Defender of Georgia, 16 May, 1996, See annex.
65
Ibid, article 6.
66
Ibid, article 10.
67
Principals related to the status of the National Institutions. Para. IV.
68
Ibid, Chapter I, Article 3(3). See annex.
69
Principals related to the status of the National Institutions. Para. IV.
70
Principals related to the status of the National Institutions. Para I. 3 (a-iv).
71
Law on the Public Defender of Georgia, 16 May, 1996, Article 3 (2). See annex.
72
Ibid. article 14 (1).
73
The Danish Ombudsman Act. Article 1 (1). Act No 642 of 17 September 1986.
74
Law on the Public Defender of Georgia, article 22.
75
Wieslander, Bengt, The Parliamentary Ombudsman in Sweden, The bank of
Sweden Tercentenary
Foundation, 1994.
76
Law on the Public Defender of Georgia, article 4.
77
Principals Related to the Status of the National Institution. para. 111 (b). UNGA.
78
See for details survey of the inspection practices carried out by Ombudsman in
many other countries:
Wieslande. Bengt, The Parliamentary Ombudsman in Sweden, 1994 or Al-Wahab,
Ibrahim, The Swedish Institution of Ombudsman, Stockholm, 1979, pg. 119.
79
Law on the Public Defender of Georgia, article 12.
80
Principals Related to the Status of the National Institution. Para III (C). 1993.
81
Ibid, article 22
82
Principals Related to the Status of the National Institution. Para I (a). 1993.
83
Principals Related to the Status of the National Institution. Para I (f), 1993.
84
The law on the Public Defender of Georgia, article 26.
85
Ibid. article 21 (H).
214
Z.SKHVITARIDZE, PUBLIC DEFENDER OF GEORGIA AND INTERNATIONAL PERSPECTIVES
86
UNDP – Project for Strengthening the Office of the Public Defender of Georgia.
87
Amnesty International – Report – EUR 56/02/02.
88
Human Rights Watch. World Report, 2005, Georgia pg.25.
89
Constitution of Georgia 1995. See annex.
90
Ibid. pg. 226.
91
U.S. Department of State, Georgia: Country Report on Human Rights Practices for
06, Released by the
bureau of Democracy, Human Rights, and Labor, February 26, 2006.
92
ICCPR article 17 and EHRC article 8.
93
Carey, John, International Protection of Human Rights, Oceana Publications,
1968.
94
Article 16, ICCPR.
95
Principals Related to the Status of the National Institution, Para IV (d), 1993.
96
Principals Related to the Status of the National Institution, Para I, 3(i), 1993.
97
According to the Swedish Freedom of the Press Act every individual has the right
of access to public documents, i.e. documents in an agency’s files. These right
may be restricted in certain specifically defined instances and only through legisla-
tion and in accordance to the Secrecy Act. But this restriction does not extend on
the ombudsman.
98
NDI Paper, Strengthen and Expand Democracy Worldwide, 2003
99
UN Fact Sheet No.19, National Institutions for the Promotion and Protection of
Human Rights, 1993.
215
baCana jiSkariani
dRes arsebuli situaciidan gamom- sul sxva mizani edo safuZvlad – mTava-
dinare, rodesac evrokavSirSi Sidaeko- ri iyo SemdgomSi gansasjelis samuSao
nomikuri urTierTobebi maRal donezea Zalad gamoyeneba.3
da, Sesabamisad, moxsnilia uamravi bari- evropis samarTlebriv sivrceSi pir-
eri Tavisufal mimosvlasTan dakavSire- velad 1883 wels gaisma mowodeba misi
biT, avtomaturad Cndeba ormagi dasjis aRiarebis Sesaxeb miunxenSi (Institut de
akrZalvis principis srulad ganxor- Droit International), Semdgom 1900 wels –
cielebis saWiroeba, Tumca es arc ise briuselSi, erT-erT kongresze.
advilia. am SemTxvevaSi saxelmwifoebi 1970 wlis 28 maiss daido SeTanxmeba
sakuTari marTlmsajulebis ganxorcie- ganaCenis saerTaSoriso moqmedebis Se-
lebisas teritoriulobis princips ey- saxeb.4 evrosabWos egidiT dadebuli am
rdnobian, magram ukve arsebobs tenden- SeTanxmebis ratificireba yvela saxel-
cia, ormagi dasjis akrZalvis principi mwifos ar mouxdenia. evrokavSiris wevri
ara Sida saxelmwifos, aramed mTlianad saxelmwifoebisaTvis mTavaria Sengenis
evrokavSirs moicavdes (`evropuli te- SeTanxmeba. msgavsi formulireba Sevida
ritoriuloba~).1 evrokonstituciis proeqtSic.5
winamdebare statiis mizania dRes ar-
sebuli mdgomareobis Cveneba, aseve gar-
a) evroparlamentis 1984 wlis
kveuli istoriuli aspeqtebis warmoCena.
16 martis rezolucia
1984 wlis 16 marts evroparlamen-
tma miiRo rezolucia ormagi dasjis
1. `NE BIS IN IDEM~-is principis
akrZalvis evrogaerTianebis fargleb-
aRiarebis istoriuli safuZvlebi
Si moqmedebis Sesaxeb. aRiniSna, rom mi-
evrokavSiris farglebSi
uxedavad manamde arsebuli sxvadasxva
evrokavSiris wevr saxelmwifoebSi aqtisa, es principi mainc ar iyo srulad
yovelTvis ar arsebobda myari mosazre- daculi da, rezoluciis Tanaxmad, yvela
ba `ne bis in idem~-is principis aRiarebis saxelmwifos SeZlebisdagvarad swrafad
aucileblobis Sesaxeb. sxva qveynebis, unda moegvarebina arsebuli xarvezebi.
gansakuTrebiT evropuli, ganaCenebis aman saTanado Sedegi ver gamoiRo, rad-
aRiareba iwyeba me-19 saukuneSi. nawi- ganac rezoluciebs pirdapiri savalde-
lobriv es principi ramdenime saxelmwi- bulo Zala ar gaaCniaT.6
fos konstituciaSi pirdapir Caiwera,
Tumc sxva qveynebTan misi mimarTeba ma-
b) evrogaerTianebis wevr saxelmwi-
inc rTuli iyo.2
foTa Soris 1987 wlis SeTanxmeba
adre es Tema ufro mouwesrigebeli evrogaerTianebis wevr saxelmwifo-
iyo. daido saxelmwifoTaSorisi ramde- Ta Soris 1987 wlis 25 maisis urTierTSe-
nime xelSekruleba imaze, rom erT qve- Tanxmebis – ormagi sisxlissamarTleb-
yanaSi gamotanili ganaCeni meoreSi Se- rivi devnis akrZalvis Sesaxeb – pirvel-
iZleboda aRsrulebuliyo, Tumca amas save muxlSi miTiTebulia Semdegi: `vinc
216
b. jiSkariani, ormagi dasjis akrZalva (“NE BIS IN IDEM”) evrokavSiris farglebSi
217
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
218
b. jiSkariani, ormagi dasjis akrZalva (“NE BIS IN IDEM”) evrokavSiris farglebSi
219
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
220
b. jiSkariani, ormagi dasjis akrZalva (“NE BIS IN IDEM”) evrokavSiris farglebSi
1
H. Satzger, Internationales und Europäisches Strafrecht-Nomos, 2008, 163.
2
S.F. Jagla, Auf dem Weg zu einem zwischenstaatlichen ne bis in idem im Rahmen
der Eurpäischen Union-Frankfurt am Main, 2007, 45.
3
H. Grützner, Die zwischestaatliche Anerkenung europäeischer Straftaten-NJW,
1969, 345.
4
www. conventions.coe.int.
5
T. Oppermann, Europarecht-München, 1999, 586.
6
iqve.
7
S.F. Jagla, Auf dem Weg zu einem zwischenstaatlichen ne bis in idem im Rahmen
der Europäischen Union-Frankfurt am Main, 2007, 47.
8
www.conventions.coe.int.
9
saxelwodebas Tu davazustebT, mas realizaciis, ganxorcielebis Sesa-
xeb xelSekrulebac SeiZleba ewodos, radgan is Sengenis 1985 wlis SeTa-
nxmebis realizaciisaTvis daido.
10
H. Satzger, Die Europaeisierung des Strafrechts; Karl Heymans Verlag KG, 2001, 163.
11
S.F. Jagla, Auf dem Weg zu einem zwischenstaatlichen ne bis in idem im Rahmen
der Eurpäischen Union-Frankfurt am Main, 2007, 50.
12
ix. B.Hecker – Europäisches Strafrecht; Springer, 2007, 513.
13
sruli saxelwodebaa: urTierTSeTanxmeba mosyidvis winaaRmdeg, romel-
Sic CarTulni arian evrogaerTianebis an evrokavSiris wevri saxelmwi-
foebis moxeleebi (26.05.97).
14
S.F. Jagla, Auf dem Weg zu einem zwischenstaatlichen ne bis in idem im Rahmen
der Eurpäischen Union-Frankfurt am Main, 2007, 50.
15
Tumca ratifikaciisas saxelmwifos SeuZlia garkveul gamonaklisebze
miuTiTos, anu, saboloo jamSi, mainc ar xdeba ormagi dasjis akrZalvis
sruli ganxorcieleba.
16
EuGHE (1.04.2004) 3425.
17
S.F. Jagla, Auf dem Weg zu einem zwischenstaatlichen ne bis in idem im Rahmen
der Eurpäischen Union-Frankfurt am Main, 2007, 57-58.
18
portugaliis konstitucia, 29-e IV muxli; germaniis konstitucia, §103 III.
19
frangulad JReradi es saxelwodeba inglisSi normandielebis SemoWris
`damsaxurebaa~ (1066w.). am droidan inglisur enaSi bevri frangul-ger-
manuli JReradobis sityva Sevida, aseve laTinuric, radgan normanebis-
Tvis is oficialuri ena iyo.
20
magaliTad, fineTSi is pirdapir arsad weria.
21
S.F. Jagla, Auf dem Weg zu einem zwischenstaatlichen ne bis in idem im Rahmen
der Eurpäischen Union-Frankfurt am Main, 2007, 61.
22
niderlandebis sisxlis samarTlis kodeqsi, 68-e III muxli.
23
Codice Penale, me-11 muxli.
24
ÖStGB (avstriis ssk), §65 IV.
25
BVerfGE 75,1.
26
EuGHE 1966, 153, 178.
27
es principi `evropis atomuri gaerTianebis~ debulebaSicaa Cadebuli.
28
EuGHE 2003, 2597.
29
S.F. Jagla, Auf dem Weg zu einem zwischenstaatlichen ne bis in idem im Rahmen
der Eurpäischen Union-Frankfurt am Main, 2007, 67.
30
H. Satzger, Internationales und Europäisches Strafrecht-Nomos, 2008, 165.
31
EuGHE-Rs.C-385/01.
32
EuGHE-Rs.C-467704.
33
magaliTi moyvanilia: H. Satzger, Internationales und Europäisches Strafrecht-
Nomos, 2008, 166.
34
EuGHE-Rs.C-436/04.
35
dawvr. ix. Der Spiegel, 18, 2009, gv. 66.
221
BACHANA JISHKARIANI
Taking into acouint the current situati- of having an accused as a workman force in
on, when internal economic relationships are the future.3
highly developed within the European Union It was in Munich in 1883 (Institut de Droit
and respectively quite a large number of barri- International) when the first call was made for
ers to free movement have been removed, the its recognition within the European space and
necessity of full-scale implementation of the the next call followed in 1900, in Brussels, du-
ne bis in idem principle automatically arises – ring one of the congresses.
however it is not an easy task to accomplish. On the 28th of May, 1970 the European
In this case the states, administering justice, Convention on the International Validity of Cri-
are guided by the territoriality principle, but minal Judgments was made.4 However, not all
there already is a trend for the ne bis in idem the Member-States have ratified this Conven-
principle to cover not only a state but the who- tion, negotiated under the aegis of the Council
le European Union (European territoriality).1 of Europe. The EU Member States give pre-
This article aims at the demonstration of ference to the Schengen Agreement. Similar
the current situation, also the portrayal of cer- wording was incorporated in the draft Consti-
tain historical aspects. tution for Europe as well.5
222
B. JISHKARIANI, PROHIBITION OF DOUBLE JEOPARDY (NE BIS IN IDEM) WITHIN THE EUROPEAN UNION
nally been disposed of in a Member State may re given the possibility to make a statement
not be prosecuted in another Member State on the accession any time. So it went and the
in respect of the same facts, provided that if a statement was approved by the Council of
sanction was imposed, it has been enforced, Europe in 2000. By virtue of the next Additio-
is actually in the process of being enforced or nal Protocol this Agreement finally came into
can no longer be enforced under the Law of force.10
the sentencing State.” As regards the new Member States of the
However, the Convention still provides for European Union, this issue was also regulated
a certain exemption. When the security and by a separate agreement. It was made betwe-
other essential interests of the other State are en the new Member States and the European
impaired, the latter may also bring the prose- Union and it contains a stipulation, that Article
cution, however the already served sentence 54 of the Schengen Agreement becomes le-
will be credited to the accused.7 gally binding for the new Member States as
This act was based on the other treaty well from the date of their accession to the
adopted under the aegis of the Council of Eu- European Union. The same goes true with
rope (neither that one was ratified by all the EU Rumania and Bulgaria (they became the EU
Member States). This Convention is almost in Member States in 2007).11
the same situation. It became legally binding Today this very agreement is main instru-
only for Germany, Denmark, Italy, France, Bel- ment regulating double jeopardy. It is true that
gium, Italy, the Netherlands and Austria. The then based on the ECHR the member-states
others refer to its Article 2, which allows the of eh Council of Europe recognised then ne bis
Member States to make kind of “own” interpre- in idem principle in the national legal systems,
tations before the ratification. This stipulation however the international application of this
made the convention inefficient.8 principle was established only by the Schen-
gen Agreement and the latter is often deemed
c) Shengen Implementing Convention as the instrument having the potential to ser-
(19 June 1990) ve as a procedural instrument of criminal law
integration in the European Union.12 The im-
The Schengen Agreement was made
portance of this instrument is strengthened by
owing to several European countries. They
the fact that it is not confined with one specific
decided to create such a free market without
field or delict. This different will be more visible
borders, where the free movement of capital,
in the chapter below.
goods and persons would have been ensured.
In its turn, the process of internationalisation
d) Other International Legal Instruments
generated the necessity of the ne bis in idem
principle.9 There are also other acts on the prohibiti-
Article 54 of the Schengen Agreement on of double punishment within the European
provides for the preconditions, which are em- Union:
bodied in the Convention made between the _ The Convention on the Protection of
Member States of the European Communities the Financial Interests of the Europe-
in 1987 on Double Jeopardy. The difference an Communities (1985) – this document
is that the Agreement mentions a Contracting transposed only the aforementioned pro-
Party and not a Member State. The Agreement visions, as this is a very specific act and
was signed by Belgium, Denmark, Germany, it does not apply to all types of torts. Its
Finland, France, Greece, Italy, Luxembourg, scope covers only finances and the main
Austria, Portugal, Sweden and Spain. Iceland type of crime is fraud.
and Norway acceded to the Agreement as as- _ Convention agaist corruption invol-
sociated members. the problem has arisen in ving officials13. Of course the bribery of
relation with the United Kingdom and Ireland an official was a punishable crime before
– they have not joined the Agreement from the that, but the sanction often did not apply
very beginning. The solution was found in the to those working for the international or-
adoption of an Additional Protocol. They we- ganisations. The Council of Europe was
223
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
particularly interested in this problem. The 2. TYPES OF THE NE BIS IN IDEM PRINCIPLE
ne bis in idem principle was also incorpo- a) Domestic ne bis in idem principle
rated here.14 The act applies only to cri-
This principle is recognised by all EU
mes, that are listed therein,
Member States. Mainly, it is embodied in the
_ The Charter of Fundamental Rights
constitutions of these countries.18 Even in
of the European Union was developed
England, which has the different (common
by the special commission on Decem-
law) legal system, there is a prohibition (Aut-
ber 7, 2007. The Commission consisted
refois de Acquint Iconvict).19 There is a diffe-
of the Heads of the Member States, the
rent approach in Austria: the Constitution do-
Chairperson of the European Commissi-
es not directly mention this principle, however
on, the representatives of the European
the Convention for the Protection of Human
Parliament and national parliaments. The
Rights is of the same rank as the Constitution
Charter was created on the basis of the
of the country and respectively the principles
European Convention for the Protection
of the Constitution apply automatically. In Bel-
of Human Rights. The difference is that
gium and France the ne bis in idem principle
the new act expanded the scope of the
is guaranteed by criminal procedure law. The
principle and it became the interstate one.
same goes true with Italy…
The Convention and Additional Protocols
This principle is recognised by every sta-
are concentrated on the domestic applica-
te, but it is embodied in different normative
tion of this principle.15
acts or recognised in a general manner.20 This
The Charter of the European Union is not
principle is mainly oriented on criminal proce-
a binding document. Despite this it was still
dure and owing to this, it is mainly applied wit-
mentioned in one of the judgments of the Eu-
hin the domestic jurisdiction.21
ropean Court of Justice, but in relation with
Human Rights Convention.16 The Charter has
b) Interstate ne bis in idem principle
been incorporated into the EU Constitution
and would have been binding after the entry Prohibition of double punishment at intras-
into force of the Constitution; however this tate level does not automatically mean its recog-
possibility seems vague due to the failure of nition in the interstate relations as well. Every
the Constitution. On the other hand, consent country has its own approach and preconditions
given by Ireland via referendum to the Lisbon envisaged by the domestic legislation.
Agreement (the latter is considered to substi- According to the Criminal Code of the Net-
tute the Constitution and is often referred to as herlands22 no double punishment (prosecuti-
future Quasi-Constitution of the EU) made it on) shall be allowed if a person was released,
real that soon the Charter will have its place in the criminal prosecution against him/her was
the hierarchy of the EU legal system. suspended, was prosecuted and served his/
Based on the foregoing it can be said that her sentence, or the statute of limitation has
despite various acts, agreements and conven- expired, even if the crime had been committed
tions the double punishment is not fully pro- on the territory of the Netherlands. This pro-
hibited within the European union. If we look vision guarantees for a person who was tried
though the Schengen Agreement, this princip- abroad and entered this country no to escape
le becomes applicable somewhat by itself (“… punishment.
when the enforcement of a sanction has al- The Italian law23 allows for the initiation of
ready been launched or deems impossiblep”); new criminal prosecution against a person, ir-
and it is not binding for all the Member Sta- respective of whether or not he/she is foreigner,
tes. The main problem with the other treaties even if the person concerned was already tried
is that they concern only the specific types of in some other country. Of key importance is the
torts and are not universally applicable. Con- crime to be committed on the territory of Italy.
sequently, it would have been desirable to fur- The United Kingdom directly recognises
ther improve the Schengen Agreement and the prohibition of double punishment. A per-
make it binding for every Member State.17 son who was prosecuted or released by the
224
B. JISHKARIANI, PROHIBITION OF DOUBLE JEOPARDY (NE BIS IN IDEM) WITHIN THE EUROPEAN UNION
court of the other country, will not be prosecu- simultaneously and parallel proceeding are
ted by the English court for the same tort. ongoing.29
Although Austria does not allow for repe-
ated prosecution of a person tried abroad,24 4. PRECONDITIONS OF THE NE BIS IN IDEM
an exemption can be allowed if the crime was PRINCIPLE ACCORDING TO THE SCHENGEN
committed in Austria – that is, the international AGREEMENT
application of the principle is not mandatory.
Germany, like Italy, does not recognise As already mentioned, currently the basic
the interstate ne bis in idem principle at all. The document in this field is the Schengen Agre-
German Constitutional Court recorded this po- ement. Article 54 specifies the following pre-
sition in 1987 in one of its decisions: “… As of conditions for the prohibition of double punis-
to date there is not general international law hment:
principle that a person tried in one country Sentence – a sentence should be delive-
cannot be punished in the other state as well red against a person in one of the states. No
for the same cause of actionp”25 new sentence can be then delivered against
him in any other state. This allows an Europe-
an citizen to exercise his right to free move-
3. NE BIS IN IDEM PRINCIPLE WITHIN THE
ment more efficiently.30
EUROPEAN COURT OF JUSTICE
It is also important that the European Co-
a) Max Gutmann v. Commission of the urt of Justice equalises the actions of a prose-
EAEC26 cutor’s office to a sentence, by virtue of which
This case dates back to 1966. Max Gut- actions it discontinues the prosecution against
mann was a member of the Commission of a person due to the lack of evidences.31 The
the EAEC. He was first warned and then the same approach is employed with respect to
disciplinary proceedings were initiated against the expiration of the statute of limitation.32
him because he repaired his photo-camera at The same offence – this criterion is the
the expense of the organisation and also was most problematic one, what is conditioned by
making private telephone calls again at the ex- different “understanding” of torts by the states.
pense of the organisation. He applied to the The qualification of one and the same action
European Court of Justice and referred to the may different to a considerable extent. For
violation of the ne bis in idem principle.27 The example: one state may prosecute a person
Court upheld his appeal and the administrative for the importation of drugs, whilst the other
proceedings were terminated. Insofar as this – for unauthorised exportation thereof.33 the
decision concerned only the disciplinary proce- European Court developed the following ap-
edings, it did not cover the whole acquis. proach for the prevention of similar situations:
the main thing is for the crime to be seen as a
b) Archer Daniels Midland Company single action – it should be “…a set of actions,
v. Commission28 which are closely interrelated in the context of
time and spacep”.34
This dispute concerned the prohibition Enforcement element – the third criterion
of the international double punishment. The of Article 54 is the enforcement. The sentence
European Commission charged the company has been served or is currently being served
with a fine, although the fine was already imp- or can no longer be carried out under the sen-
osed thereupon by a third (non-member) state. tencing laws of the state, which delivered it.
The Court explained that although the ne bis
in idem principle was very important for the
CONCLUSION
European Communities, it applied only to san-
ctions imposed by the Commission, due to this Thus, despite various controversies the
reason the account could not have been taken European Union still managed to succeed to
of the fine imposed by a third country. Exem- a certain extent in the field of prohibition of
pted are the cases, when the interests of the double punishment. It has overcome the po-
Community and a Member State are violated litical and legal problems and created a com-
225
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
mon picture in general, however this does not revealed that the case was related to mafia
mean that the problem is fully solved and the and three states – Germany, the Netherlands
principle is fully observed. There still are the and Italy were involved in the investigation as
problems which are conditioned by different the relevant evidences were found in al the-
interpretations of domestic courts. se states. The German investigators could not
The EU faces other problems in relation of have access to the evidences gathered by the
criminal law and therefore it does not come to Dutch and Italian colleagues, as the latter em-
surprise that the ne bis in idem principle rose ployed these evidences themselves, that re-
so much discussions and controversies. The sulted in investigation delays.35
reason for that is the feeling of states that cri- Despite the existing problems the ten-
minal law is a function of a state’s sovereignty dency has emerged that the EU will take res-
and accordingly it should be subjected only to ponsibility and authority in the criminal law fi-
the national jurisdiction via decisions made by eld thus limiting the influence of states on the
the domestic authorities. Such an approach complicated crimes. It is true that criminal law
makes it difficult achieve a uniform decision is a result of the history and culture of a sta-
despite the efforts made. te and foreign influence is not always justified,
A very good illustration of the foregoing is the complicated cases still erquire internatio-
Duisburg case dated back 2007. In Duisburg nal siport and cooperation.
a killer killed three Italians. The investigation
1
H. Satzger, Internationales und Europäisches Strafrecht-Nomos, 2008, 163.
2
S.F. Jagla, Auf dem Weg zu einem zwischenstaatlichen ne bis in idem im Rahmen
der Eurpäischen Union-Frankfurt am Main, 2007, 45.
3
H.Grützner, Die zwischestaatliche Anerkenung europäeischer Straftaten-NJW,
1969, 345.
4
www. conventions.coe.int.
5
T.Oppermann, Europarecht-München, 1999, Rn.586
6
Ibid.
7
S.F. Jagla, Auf dem Weg zu einem zwischenstaatlichen ne bis in idem im Rahmen
der Eurpäischen Union-Frankfurt am Main, 2007, 47.
8
www.conventions.coe.int.
9
To be more precise in relation with the title, it can be said that this is the Convention
on the implementation of the Schengen Agreement, which was made in 1985.
10
H. Satzger, Die Europaeisierung des Strafrechts; Karl Heymans Verlag KG, 2001, 163.
11
S.F. Jagla, Auf dem Weg zu einem zwischenstaatlichen ne bis in idem im Rahmen
der Eurpäischen Union-Frankfurt am Main, 2007, 50.
12
ix. B.Hecker – Europäisches Strafrecht; Springer, 2007. 513
13
Full name: Convention on Combating Bribery concerns crime, committed by the
officials from the Member States of the European Communities or the European
Union
14
Ibid.
15
However a state may make reservation or exceptions and accordingly prohibition
of double jeopardy is not implemented fully.
16
EuGHE (1.04.2004) 3425
17
S.F. Jagla, Auf dem Weg zu einem zwischenstaatlichen ne bis in idem im Rahmen
der Eurpäischen Union-Frankfurt am Main, 2007, 57-58.
18
Constitution of Portugal, Article 29 IV, Constitution of Germany, §103 III
19
This French name is the “merit” of the invasion of Normans into England (1066).
Since then many French and German words were introduced into the English
language, as well as the Latin ones, as it was the second unofficial language of
the Normans.
226
B. JISHKARIANI, PROHIBITION OF DOUBLE JEOPARDY (NE BIS IN IDEM) WITHIN THE EUROPEAN UNION
20
For example, there is no direct reference to this principle in Finland.
21
S.F. Jagla, Auf dem Weg zu einem zwischenstaatlichen ne bis in idem im Rahmen
der Eurpäischen Union-Frankfurt am Main, 2007, 61
22
Article 68 III.
23
Codice Penale, Article 11.
24
ÖStGB, §65 IV.
25
BVerfGE 75,1.
26
EuGHE 1966,153,178.
27
This principle is also envisaged by the Regulations of the European Atomic Energy
Community.
28
EuGHE 2003,2597.
29
S.F. Jagla, Auf dem Weg zu einem zwischenstaatlichen ne bis in idem im Rahmen
der Eurpäischen Union-Frankfurt am Main, 2007, 67.
30
H. Satzger, Internationales und Europäisches Strafrecht-Nomos, 2008, 165.
31
EuGHE-Rs.C-385/01
32
EuGHE-Rs.C-467704.
33
The example quoted from: Satzger, Helmut-Internationales und Europäisches
Strafrecht-Nomos, 2008, 166.
34
EuGHE-Rs.C-436/04.
35
See Der Spiegel, 18, 2009, p.66.
227
lita surmava
228
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l. surmava, pozitiuri qmedebebi Tanasworobis cnebis farglebSi
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l. surmava, pozitiuri qmedebebi Tanasworobis cnebis farglebSi
237
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
garda amisa, SvedeTis meore regu- Si, Tuki kandidatebs Tanabari, an faq-
laciis Tanaxmad (profesorTa da kvle- tobrivad Tanabari, kvalifikacia aqvT,
vaTa asistentebis Tanamdebobebis Sesa- xolo kandidatebi obieqturad fasdeba
xeb)49, msgavsi pozitiuri diskriminaciis maTi konkretuli piradi mdgomareobis
forma nebadarTuli iyo im SemTxvevebSi, gaTvaliswinebiT. amasTan, sasamarTlom
rodesac misi gamoyeneba Tanamdebobaze daadgina, rom pozitiuri qmedebebi ga-
naklebad warmodgenili sqesis kandi- moiyeneba im SemTxvevebSi, rodesac qali
datis daniSvnis erTaderTi saSualeba da mamakaci kandidatebi Tanabar, an TiT-
iyo,50 orive regulacia adgenda Semdeg qmis Tanabar, kvalifikacias flobdnen.
zRvars: `Tanamdebobaze daniSvnisas po- avtomaturi da absoluturi upirate-
zitiuri diskriminaciis RonisZiebis sobis miniWeba naklebad warmodgenili
gamoyeneba obieqturobis moTxovnas ar sqesis kandidatisaTvis, romelsac sak-
ewinaaRmdegeba mxolod im SemTxvevaSi, marisi, Tumca konkurentTan SedarebiT
rodesac kandidatebis kvalifikaciebs naklebi, kvalifikacia aqvs, piriqiT, ewi-
Soris gansxvaveba arcTu didia~. maSasa- naaRmdegeba Tanaswori mopyrobis prin-
dame, cxadia, rom saqme gvaqvs mkacr, iu- cips.
ridiulad savaldebulo kvotasTan ma- sasamarTlom TiTqos aqcenti gada-
Sinac ki, Tu igi SezRudulia `obieqturi itana `naklebad warmodgenili sqesi-
daniSvnis~ moTxovniT. saTvis avtomaturi upiratesobis mini-
aSkaraa, rom Tu es ukanaskneli de- Webidan~ yvela kandidatis specifikuri
buleba adgens upirobo samarTlebriv piradi mdgomareobis gaTvaliswinebiT
valdebulebas, upiratesoba mieniWos qa- `obieqtur Sefasebaze~, romelic, sa-
lebs maSin, rodesac isini naklebad ari- samarTlos azriT, unda Sefasdes pro-
an warmodgenilni konkretul sferoSi, porciulobis kriteriumis gaTvaliswi-
winamorbedi debuleba mxolod SesaZ- nebiT. sasamarTlom ganmarta 141-e mux-
leblobas da, maSasadame, diskrecias aZ- lis me-4 punqtis farglebi da miiCnia:
levs universitets, mamakacebis nacvlad miuxedavad imisa, rom 141-e muxlis me-4
qalebi daniSnos. punqti SromiT cxovrebaSi qalTa da ma-
Tavis gadawyvetilebaSi sasamar- makacTa sruli Tanasworobis principis
Tlom gaimeora formulireba Badeck-is praqtikaSi gansaxorcieleblad nebas
saqmidan da ganacxada, rom mxolod ise- rTavs saxelmwifoebs, SeinarCunon an mi-
Ti qmedebebi Seesabameba gaerTianebis iRon iseTi zomebi, romlebic konkretu-
kanonmdeblobas, romlebic avtomatur li upiratesobis miniWebas gulisxmobs,
upiratesobas ar aniWebs qalebs maSin, raTa naklebad warmodgenil sqess gau-
rodesac qalebi da mamakacebi Tanabar- advildes samsaxurebrivi gadamzadeba,
kvalificiurni arian, xolo kandidatu- moxdes prevencia an kompensacia pro-
rebi obieqturad unda Sefasdes maTi fesiul karieraSi arsebuli wamgebiani
konkretuli piradi mdgomareobis gaT- mdgomareobis gamo. es ar unda iyos gage-
valiswinebiT. Sesabamisad, evropuli ga- buli, TiTqos dasaSvebia iseTi meTodis
erTianebis sasamarTlom ganmarta, rom gamoyeneba, romelic araproporciuli
gaerTianebis kanonmdebloba gmobs iseT iqneba mizanTan mimarTebiT. maSasadame,
erovnul kanonmdeblobas, romlis mi- am saqmeSi sasamarTlom pirvelad Semo-
xedviTac kandidats upiratesoba eniWe- iRo proporciulobis testi pozitiur
ba sapirispiro sqesis kandidatTan Seda- qmedebebTan mimarTebiT.
rebiT, romelsac sxva SemTxvevaSi daniS- zemoT ganxiluli saqmeebis safuZ-
navdnen. Tumca gaerTianebis samarTali velze SegviZlia davaskvnaT, rom pozi-
ar gmobs iseTi normis arsebobas, rom- tiuri qmedebis erovnulma normam, sul
lis Tanaxmadac kandidats, romelic nak- mcire, ori moTxovna unda daakmayofi-
lebad warmodgenil sqess ekuTvnis, upi- los: erTi mxriv, avtomaturi upirate-
ratesoba mieniWeba sawinaaRmdego sqesis soba ar unda mieniWos romelime erT
kandidatTan SedarebiT, im SemTxveva- sqess; meore mxriv, ar unda gamoiricxos
238
l. surmava, pozitiuri qmedebebi Tanasworobis cnebis farglebSi
239
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
qveynebSi am mxriv gansxvavebuli praqti- ebebis gageba ara mxolod rogorc gamo-
kis Camoyalibebas. pozitiuri qmedebe- naklisisa, aramed rogorc socialuri
bis gamoyenebisas mniSvnelovania, wevrma samarTlianobisa da Tanasworobis miR-
saxelmwifoebma daicvan zRvari da ar ga- wevis erT-erTi saSualebisa.
moiyenon iseTi RonisZiebebi, romlebic garda imisa, rom sasamarTlos aqvs
ukudiskriminaciis Sedegs mogvcems. arajerovani midgoma zogadad pozitiu-
am mxriv, pozitiuri qmedebis sakiTx- ri RonisZiebebisadmi, aseve aRsaniSnavia
ebTan dakavSirebuli mTavari problemaa is faqti, rom pozitiuri qmedebis TviT
sasamarTlos arazedmiwevniTi pozicia cneba ar yofila mkacri samarTlebri-
qalTa da mamakacTa Tanasworobis yve- vi Sefasebis obieqti. ufro metic, sasa-
laze mniSvnelovan Teoriul sakiTxebze. marTlos midgoma aRniSnulTan dakavSi-
evropuli gaerTianebis sasamarTlos ga- rebiT damokidebulia mis mier gamoye-
dawyvetilebis safuZvelze Zalian Zne- nebul iseT ganusazRvrel terminebze,
lia SevafasoT sasamarTlos pozicia Ta- rogorebicaa, magaliTad: moqnili kvo-
nasworobis sxvadasxva aspeqtTan dakav- ta, mkacri kvota, `obieqturi Sefase-
SirebiT. maSin, rodesac Kalanke-s saqme ba~, `individualuri piradi mdgomareo-
TiTqos formalur, da ara Sinaarsobriv, bis Sefaseba~, romlebic samarTlebriv
Tanasworobas uWers mxars, momdevno ga- uzustobas warmoSoben. Tumca lomersis
dawyvetilebebi xazs usvams, rom `mamaka- saqmeSi sasamarTlom SemogvTavaza po-
ci da qali kandidatebis Tanabarkvali- zitiuri qmedebis Sefasebis ufro gan-
ficiurobis faqti ar gulisxmobs imas, sazRvruli formula, sadac yuradReba
rom maT Tanabari Sansi aqvT~ da rom `po- gaamaxvila proporciulobis principze.
zitiuri zomebis Sesaxeb arsebuli iuri- bolos, sasamarTlos praqtikisa da
diuli normis amocanaa, erTmniSvnelov- gaerTianebis samarTlebrivi debule-
nad xeli Seuwyos dasaqmebis sferoSi Ta- bebis gaTvaliswinebiT SeiZleba davas-
naswori SesaZleblobebis, da ara Tanas- kvnaT Semdegi: vinaidan sasamarTlom po-
wori Sedegis, arsebobas~. zemoaRniSnu- zitiuri qmedeba zogadi Tanasworobis
lidan SesaZlebelia mivideT daskvnamde, principidan gamonaklisad miiCnia, aseTi
rom evropis gaerTianebis samarTalSi zoma SezRudulad unda ganimartos, rac
`Tanaswori SesaZleblobebis~ moTxovna gulisxmobs, rom sasamarTlom yovel
utoldeba `Sinaarsobriv Tanasworobas~. konkretul SemTxvevaSi unda Seufardos
Tumca paradoqsia is, rom, marTalia, ro- wamgebian mdgomareobaSi myofi jgufis
gorc sasamarTloc da samarTlebrivi ufleba Tanaswor mopyrobaze individis
debulebebic aRiarebs, pozitiuri Ro- uflebas, ar iyos diskriminebuli. aRniS-
nisZiebebis gatarebisas yuradReba unda nuli Sepirispireba, rogorc Cans, indi-
mivaqcioT Sinaarsobriv Tanasworobas, vidualuri uflebis sasikeTod wydeba.
da ara mxolod formalurs, pozitiu- realuri Sedegi is aris, rom Tanasworo-
ri qmedebebi miiCneva gamonaklisad Ta- bis mimarT msgavsi midgoma zRudavs wevr
nasworobis principisa, maSin rodesac saxelmwifoTa SesaZleblobas, win waswi-
`Tanasworoba~ ver miiRweva, Tu ar iqna on pozitiuri qmedebis RonisZiebebi; es
miRweuli Sinaarsobrivi Tanasworoba. ki, Tavis mxriv, xels uwyobs aRniSnuli
Sesabamisad, avtori miiCnevs, rom SesaZ- sferos zomieri tempiT ganviTarebas ev-
lebelia pozitiuri qmedebebis RonisZi- rokavSirSi.
1
Nuria Elena Ramos Martín, “Positive Action Measures in European Union Equality
Law”. Paper presented on the conference ‘Equal is not enough. Dealing with op-
portunities in a diverse society’, University of Antwerp (2006): p.1.
2
Catherine Barnard, “The principle of equality in the Community context, P, Grant,
Kalanke and Marshall: four uneasy bedfellows?”, Cambridge Law Journal, 57(2)
(July 1998) pp, 352-373, p. 353.
240
l. surmava, pozitiuri qmedebebi Tanasworobis cnebis farglebSi
3
evropis gaerTianebis xelSekruleba, muxli. 141. `mocemuli cnebis amg-
vari viwro ganmarteba warmoadgenda garkveul politikur kompromiss,
da ganpirobebuli iyo am sakiTxze Sromis saerTaSoriso organizaciis
mier miRebuli ganmartebiT, romelSic Tanabari anazRaureba iyo gan-
sazRvruli rogorc `identuri samuSao~. June Neilson, “Equal Opportunities
for Women in the European Union: Success or Failure?” 64 (U. of Aberdeen, U.K.
1998) (citing Convention No. 100 on Equal Remuneration, 1951).
4
evropis gaerTianebis xelSekruleba, muxli. 141.
5
Case 43/75, Defrenne v. Societe Anonyme Belge de Navigation Aerienne Sabena,
1976 E.C.R. 455 [hereinafter Defrenne II].
6
Defrenne I., para 8-14.
7
Case 149/77, Defrenne v. Societe Anonyme Belge de Navigation Aerienne Sabena,
1978 E.C.R. 1365, 1374 [hereinafter Defrenne III]., para 17.
8
1975-idan 1992 wlamde sabWom miiRo eqvsi direqtiva: (1) the EPD of 1975;
(2) the ETD of 1976; (3) the 1978 Social Security Directive; (4) the 1986 Directive
on equal treatment in occupational social security schemes; (5) the 1986 Directive
on equal treatment between men and women engaged in an activity including agri-
culture in a self-employed capacity and on the protection of self-employed women
during pregnancy and motherhood; and (6) the 1992 Directive on the protection of
pregnant women from exposure to hazardous substances in the workplace and on
rights to maternity leave. naxeT: Sonia Mazey, “The European Union and women’s
rights: from the Europeanization of the national agendas to the nationalization of a
European agenda”, J. Eur. Pub. Pol’y 131, 140 (1998).
9
Neilson, 64.
10
Neilson, 65.
11
George A., Bermann Et Al., Cases and Materials on European Community Law
(1993), 1158.
12
Neilson, komisiam aRniSna, rom, `miuxedavad mcdelobebisa, momxdariyo di-
reqtivis sruli implementacia, rig sferoebSi direqtivis implementacia
arasaTanadod ganxorcielda an saerTod ar ganxorcielebula~. p. 67.
13
Council Directive 75/117 On the approximation of the laws of the Member States
relating to the application of the principle of equal pay for men and women, [1975]
O.J.(L 45).
14
Directive, 75/117; Neilson, 66.
15
Directive, 75/117.
16
Directive, 75/117.
17
Defrenne II.
18
Case C-127/92, Enderby v. Frenchay Health Authority, [1994] 1 C.M.L.R. 8
(1993).
19
Defrenne III, para 19.
20
Council Directive 76/207 On the implementation of the principle of equal treatment
for men and women as regards access to employment, vocational training and
promotion, and working conditions [1976] O.J. (L 39) 40.
21
Directive 2006/54 of the European Parliament and of the Council on the imple-
mentation of the principle of equal opportunities and equal treatment of men and
woman in matters of employment and occupation (recast) [2006], O.J. (L204/23)
22
Directive 76/207. Art. 1(1).
23
Paul Craig & Gráinne De BúrcA, EC LAW; Cases Text, Materials. 3rd Ed.[2003]
p. 886.
24
Case 165/82, Commission v. UK, [1983] E.C.R 3431.
25
Directive 76/207, art. 2(4).
26
alternatiulad pozitiur qmedebebs aseve moixsenieben Semdegi saxel-
wodebiT: ukudiskriminacia (reverse discrimination), dadebiTi qmedeba (affi-
rmative action), gamosworebis qmedeba (corrective action), konstruqciuli
qmedeba (constructive action), struqturuli iniciativa (structural initiati-
ves), diversifikaciis strategia (diversification strategies),balansirebis
RonisZieba (balancing measures). naxeT: K.Adam, ‘The politics of redress: South
241
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
African style afrmative action’, The Journal of Modern African Studies, (1997)35(2),
pp. 231–249; C. McCrudden, ‘Positive action: definition, types, aims and justifica-
tions’, keynote presentation. “Equal opportunities for all: what role for positive ac-
tion?”, yovelwliuri konferencia `pozitiuri qmedebis programa disk-
riminaciasTan brZolis winaaRmdeg~, (2007), romi, 23 da 24 aprili.
27
Council Recommendation 84/635.
28
aRniSnulis Sedegad damtkicda 28-e deklaracia, romelic amsterdamis
xelSekrulebis saboloo aqts daerTo da miznad isaxavs aRniSnuli saki-
Txis damatebiT ganmartebas.
29
Council Directive 2000/78/EC On establishing a general framework for equal treat-
ment in employment and occupation, [2000] O.J. L 303/16.
30
Case C-450/93. Eckhard Kalanke v Freie Hansestadt Bremen [1995] E.C.R.
I-3051.
31
Nancy L., Perkins, “Judgement of the Court in Ekhradt Kalanke v . Freie Hansestadt
Bremen” (1995) 265-266.
32
Kalanke, 22.
33
for example D. Schiek, “Positive Action in Community Law” Industrial Law Journal
(1996) 25 p. 239.
34
Ursula A O’Hare, “Positive Action Before the European Court of Justice: CASE
C-450/93 Kalanke v Freie HansestadtBremen”, (Web Journal of Current Legal
Issues in association with Blackstone Press Ltd.f).
35
Paul Craig & Gráinne De Búrca, p 890; COM (96) 88.
36
Case -409/95. Hellmut Marschall v Land Nordrhein-Westfalen. [1997] E.C.R.
I–6363.
37
ix: Opinion of Mr. Advocate General Jacobs on case, Hellmut Marschall v Land
Nordrhein-Westfalen, para. 31.
38
Marschall, 29.
39
Marschall, 30.
40
Marschall, 31.
41
Marschall,. 33.
42
The Hessisches Gesetz ьber die Gleichberechtigung von Frauen und Mдnnern
und zum Abbau von Diskriminierungenvon Frauen in der цffentlichen Verwaltung
(Law of the Land of Hesse on equal rights for women and men and the removal of
discrimination against women in the public administration, (HGlG) adopted on 21
December 1993 (GBVBl. I, p. 729).
43
Case C-158/97, Georg Badeck and Others, [2000] ECR I-1875 para. 30.
44
Law of the Land of Hesse on equal rights for women and men and the removal of
discrimination against women in the public administration.
45
Badeck, 52.
46
Case C-407/98, Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist
[2000] E.C.R. I-5539.
47
Ann Numhauser-Henning, “Swedish Sex equality Law before the European Court
of Justice”, Industrial Law Journal Vol. 30. (2001) pp. 121-126, p. 122.
48
Swedish Regulation 1993: 100 on Universities.
49
Swedish Regulation 1995: 936 concerning certain professors’ and research as-
sistants’ posts created with a view to promoting equality.
50
Regulation 1995: 936.
51
Case C-476/99, H. Lommers v Minister van Landbouw, Natuurbeheer en Visserij.
[2002] E.C.R. I-2891.
52
Lommers, para. 42.
53
Case C-366/99. Joseph Griesmar v Ministre de l’Economie, des Finances et de
l’Industrie et Ministre de la Fonction publique, de la Réforme de l’Etat et de la
Décentralisation. [2001] E.C.R. I-9383.
242
LITA SURMAVA
243
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
And finally the paper will show that the law... There can be no doubt that the elimina-
principal concept of non-discrimination allows tion of discrimination based on sex forms part
sometimes a derogation from the substantial of those fundamental rights”.8 Thus, the equal
notion of individual equality, that being a posi- pay principle was expanded by the ECJ into
tive action. a general equality right between women and
men.9
In parallel to the development of this prin-
EQUAL TREATMENT OF MAN AND WOMAN AS
ciple by the ECJ, a number of Council directi-
A FUNDAMENTAL PRINCIPLE OF EU
ves and recommendations of the Commission
Equal treatment between men and women have been supplemented to the article 141,
is a fundamental principle in the EU. Equality through requiring equal pay for work “to which
between sexes has been narrowly interpreted equal value is attributed” and establishing the
by Community legislation for a long time. principle of equal treatment regarding the ac-
When the European Union was establis- cess to the employment and permitting positi-
hed in 1957, its focus was on economic integ- ve action programs.
ration, rather than protection of human rights. Directives, coupled with subsequent tre-
Nevertheless, from very inception of EU the aty amendments (article 141 was eventually
principle of gender equality, in relation to equal amended) and decisions of the European Co-
pay was reflected in Article 141. Notably, the urt of Justice (ECJ) sensitive to human rights
protection conferred upon individuals by Artic- concerns, have established a jurisprudence of
le 141 (ex Article 119) of the EC Treaty was not human rights within the EU.
expressed in terms of general equality provisi-
ons, but narrowly in the terms of non-discrimi-
A WAY TOWARDS THE EQUAL TREATMENT
nation.3 This sole original provision of the EC
PRINCIPLE IN THE EU
Treaty obliged member states to “ensure and
subsequently maintain the application of the The basis of all other EU legislation re-
principle that men and women should recei- garding equality between men and women in
ve equal pay for equal work”.4 It also provided employment is Article 141, however, as noted
for equal pay without discrimination, requiring above it was economic rather than social con-
that pay for identical work should be calcula- cerns that led to the inclusion of Article 141 in
ted on the same unit of measurement and at the EC Treaty.10
the same time rates.5 However, subject to vo- At the time, France was the only country
luminous EU legislation discussed bellow, step in the EU in which workers by law were en-
by step precise scope of the equality principle titled to equal pay.11 Because France feared
changed. In this, the ECJ has been extremely its businesses would be competitively under-
influential. In 1976 the ECJ held that Article priced by businesses in other Member States
141 forms part of the social objectives of the that had no equal pay for men and women re-
Community, which is not merely an economic quirement, it insisted on the implementation of
union, but is at the same time intended to en- “equal pay for equal work” principle reflected
sure social progress and seek the constant im- in the 141 article for both men and women in
provement of the living and working conditions all Member States.12
of their peoples, as is emphasized by the Pre- Member States were required to enact
amble to the Treaty.6 In this respect, according their own legislation of “equal pay for equal
to the ECJ ”article 141 of the EC Treaty is the work” by January 1, 1962.13 However, compli-
most powerful provision of its social chapter ance was extended to the end of 1964, beca-
and the only article that imposes this positive use only some Member States had adopted
duty on Member States with a double aim of such legislation.14 Even with the extension, not
economic and social equality.7 all Member States complied, and therefore, as
Interestingly, in 1978, the ECJ declared a result of the uneven application of Article 141
that “respect for fundamental human rights is among Member States, the Council issued the
one of the general principles of Community Equal Pay Directive.15
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L. SURMAVA, POSITIVE ACTIONS WITHIN CONCEPT OF EQUALITY IN EU
The EPD of 1975 implemented the equ- in employment market. Consequently, it beca-
ality principle of Article 141 and made Mem- me apparent that something more than wage
ber States’ obligations under Article 141 more equity was required to achieve gender equ-
specific. It incorporated a comparable worth ality in employment. For example, two years
standard by defining equal pay as “the same after challenging Sabena’s discriminatory pay
work or for work to which equal value is at- policy, Defrenne brought another suit claiming
tributed”16 The EPD also required that a “job that Sabena’s forced retirement of female, but
classification system” be nondiscriminatory in not male, stewards at age forty violated Article
character, called for the abolition of all gender 141. The ECJ ruled that Article 141 pertained
discrimination resulting from existing laws or only to equal pay and could not support a cla-
provisions, and required protection for emplo- im for equal treatment. The Court defined the
yees who had lodged a complaint based on limits of Article 141 as relating to “pay discrimi-
the EPD. nation between men and women workers”.20
Under the EPD, Member States must al- As a result, the EPD was followed one year la-
so generally “ensure that the principle of equal ter by the Equal Treatment Directive .21 Directi-
pay is applied”, establish judicial procedures to ve was amended in 2002 by Directive 2002/73
enable enforcement, and inform employees of EC. Not long after its amendment Directive
these rights “at their place of employment”.17 76/207 was reapealled and replaced by Re-
Soon after the EPD entered into force, cast Directive 2006/5422. Therefore Directive
an action was brought in the Belgian courts 2006/54 now governs equal treatment in ac-
by Defrenne, an employee of Sabena, who cess to employment and promotion vocational
claimed that Sabena’s practice of paying the training, working conditions including pay, and
male cabin stewards more than the female ca- occupational social security.
bin stewards violated Article 141. 18 The Labor
Court of Brussels referred the case to the ECJ
LEGAL BASIS FOR THE POSITIVE ACTIONS IN
through a preliminary ruling procedure.
THE MEMBER STATES
In Defrenne II, the ECJ ruled that Article
141 had a “direct effect” in Member States and Before going further into the concept
that an individual had a right to sue not only of positive action and details of the 2006/54
Member States or one of their instrumentalities Directive, it should be noted that apart from
but also private actors in state courts, whether systematizing and tidying up the existing legis-
or not domestic legislation implementing Artic- lation and incorporating relevant rulings of the
le 141 existed. The ECJ distinguished betwe- ECJ, the directive didn’t introduce any sub-
en the direct discrimination resulting from vio- stantially new amendments in the field of po-
lating the principle of equal pay for equal work sitive actions .For the purpose of clarifying the
and indirect discrimination, and limited direct place of the positive actions within the equality
effect to cases of direct discrimination. principle author considers it useful, and even
It is hardly possible to overstate the im- necessary to provide an overview of the direc-
portance of this case in this respect. It turned tive 76/207 before and after the amendments.
out that Article 141 has both a direct effect and The Equal Treatment Directive sought to
a vertical effect and thus reaches private ob- achieve the goal of equal treatment of men
ligations. Therefore Sabenas arguments were and women in mainly in three areas: 1. access
dismissed. and promotion to employment, 2. vocational
In its practice, the ECJ, neither accepted training, and 3. working conditions.23 The pre-
an argument that market forces justify wage amble to the Equal Treatment Directive under-
disparities.19 Despite the fact that both, ECJ lined the important role of equality in the Eu-
and commission have been active in regula- ropean Community. It stated that “equal treat-
ting and implementing comparable worth stan- ment for male and female workers constitutes
dard, wage disparities still continued to exist one of the objectives of the Community”.
in the EU. Experience showed that equal pay Article 2 of the Directive defined the “prin-
provisions were insufficient to create equality ciple of equal treatment” as “no discrimination
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whatsoever on grounds of sex either directly vocational training, and working conditions.26
or indirectly by reference in particular to ma- This principle, became known as “affirmative
rital or family status”. Many of the provisions action” in the United States, is often referred to
were similar to those of directive 75//117 on as “positive discrimination” or “positive acti-
equal pay, in that the member states were re- on” in Europe27.
quired to abolish all legislative and adminis- However, according to the new Recast Di-
trative provisions in those three areas which rective only the occupational qualification pro-
discriminate on the grounds of sex, and to vision could still be said to be phrased as an
ensure that any provisions of measures such exception, while the other two provisions are
as collective agreements and individual em- more affirmatively expressed. Positive action
ployment contracts are similarly abolished.24 provision now appears in Article 3, which will
The 1976 directive was distinctive however, be discussed below, and covers all matters
in that, unlike the equal pay provisions, it per- which fall within the scope of the directive.
mitted three exceptions to the equal treatment Despite the fact that in the EU law one co-
principle. uld find a few new provisions on the positive
The first exception, laid out in Article 2(2) actions, for more than two decades article 2(4)
of the directive provided that occupational ac- of the directive have been the only provision
tivities “for which, by reason of their nature or in the field. Measured listed in this article we-
the context in which they are carried out, the re “designed to redress existing inequalities
sex of the worker constitutes a determining between men and women”, while promoting
factor” may result in the exclusion of a parti- equal opportunities at the same time.28 Later,
cular gender and hence a departure from the in December 1984 this provision was accom-
principle of equal treatment”. panied with the soft law, precisely, the Council
For example, this exception has been ap- Recommendation on the Promotion of Positi-
plied to acting roles where hiring an actress or ve Action for Women.29
actor is a gender-based decision. This recommendation encouraged Mem-
The scope of article 2 (2) was considered ber States to “adopt a positive action policy
in the Male Midwives case in the UK25. The designed to eliminate existing inequalities af-
Court found that legislation which limited ac- fecting women in working life and to promote
cess for men to the profession of midwife was a better balance between the sexes in em-
in conformity with the exception in Article 2(2) ployment, comprising appropriate general and
, in the view of the fact that personal sensitiviti- specific measures”. It is worth noting, that for a
es could play an important role in the relation- very long period, this non-binding recommen-
ship between midwife and patient. Court didn’t dation, reflecting different practices of Mem-
address the argument that the issue could be ber States, has been the only Community do-
decided by providing the patient with an op- cument providing guidance to the application
portunity to choose a male or female midwife. of positive action measures.
A second area which was excluded from As it has been already noted above, the
the equal treatment principle, was set out in first version of Council Directive 76/207/ECC
article 2 (3) and related to provisions concer- referred to positive action measures in Artic-
ning the “protection of women in regards to le 2(4) and provided that the directive was to
pregnancy and maternity”. The text of the ar- be “without prejudice to measures to promo-
ticle of Directive after the amendment did not te equal opportunity for men and women, in
change. particular by removing existing inequalities”.
The third exception to the principle of for- “Acknowledgement of the legitimacy of pur-
mal equality was in Article 2(4), which stated suing factual equality by secondary legislation
that the Directive shall not apply to “measures has lately reflected also in primary EC law”30.
designed to promote equal opportunity for men Thus, after the Amsterdam treaty, two new pro-
and women, in particular by removing existing visions have been added to Article 141 ECT.
inequalities which affect women’s opportuniti- The first new provision requires the Co-
es” for access to fair employment, promotion, uncil, under qualified majority voting, to adopt
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L. SURMAVA, POSITIVE ACTIONS WITHIN CONCEPT OF EQUALITY IN EU
measures to ensure equal opportunity and municate to the Commission the texts of laws,
equal treatment of men and women in em- regulations and administrative provisions of
ployment and the second provision allows any measures adopted pursuant to Article
Member States to adopt and maintain positive 141(4) of the Treaty, as well as reports on the-
action provisions. New paragraph 4 reads the se measures and their implementation.
following: Additionally, Article 20 (Article 8 (a) of Di-
“With a view to ensuring full equality rective 76/207/ECC) reinforces positive acti-
in practice between men and women in on policies by imposing an obligation on the
working life, the principle of equal treat- Member States to designate and make the ne-
ment shall not prevent any Member Sta- cessary arrangements for a body or bodies for
te from maintaining or adopting mea- the promotion, analysis, monitoring and sup-
sures providing for specific advantages port of equal treatment of all persons without
in order to make it easier for the under- discrimination on the grounds of sex.
represented sex to pursue a vocational And finally, in addition of the article 141
activity or to prevent or compensate for of the ECT, which is a legal bases for the new
disadvantages in professional careers”. Recast Directive, as well as directice 26/207,
a second perspective of the positive actions
Among the scholars this provision is in the member states could come from the le-
criticized in several ways. On the first place, it gislation based on Article 13 ECT. A Directive
is argued, that Amsterdam Treaty, by the use
has been adopted in relation to the labor life:
of the expression “under-represented sex”
“establishing a general framework for equal
and not “women” as the historically disadvan-
treatment in employment and occupation”.32
taged group” expanded the scope of the equ-
It also contains positive action clause. Artic-
ality principle and allowed the Council to take
le 7(1) of the Directive provides: “With a view
actions against discrimination based on sex,
to ensuring full equality in practice, the prin-
race or ethnic origin, religion or belief, disabi-
ciple of equal treatment shall not prevent any
lity, age, or sexual orientation within the limits
Member State from maintaining or adopting
of its powers.31
specific measures to prevent or compensate
On the second place, the term “specific
for disadvantages linked to any of the grounds
advantages” allows the inclusion in the scope
referred to in Article 1”.
of Article 141(4) ECT of a wide variety of mea-
The next part of the paper analysis the
sures, not only preferential treatments.
most significant and important judgments of
Therefore, a provision in the secondary
the European Court of Justice and gives an
legislation related to the positive actions, has
outline of the application and interpretation to
been transferred from the initial article 2(4) to
the legal norms discussed above.
Article 2(8) of Directive 76/207/ECC as amen-
ded by Directive 2002/73/EC, and then, witho-
ut changes in the wording, to Article 3 of Di- COURT JUDGMENTS
rective 2006/54 , as noted above, which reads
While talking about the positive actions in
the following:
the member states it is important to acknow-
“Member states may maintain or ledge and define the limits for the maintenan-
adopt measures within the meaning of ce or adoption of affirmative action measures
article 141 (4) of the treaty with a view to in favor of woman.
ensuring full equality in practice betwe- This analysis shall start from the note that
en man and woman in working life”. Germany played a leading role among the
Obviously, both, former and later version member States to solve the problem of under
of the article has a reference to the positive ac- representation of women in certain sectors by
tion measures to the Article 141(4) ECT itself. using positive discriminatory measures in the
Article 38 of the new directive (Article 2 of form of quotas. The schemes covered positi-
the amended version of the 76/207 Directive) ve action measures by public authorities con-
establishes a duty on Member States to com- cerning appointment, promotion, reduction in
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working time and flexibility to meet childcare as it seeks to achieve equal representation of
needs. Hence, the first court judgments in men and women in all grades and levels within
connection to positive actions are based on a department, such a system substitutes for
German legislation. equality of opportunity as envisaged in Article
In the Kalanke-case33 the Parks Depar- 2(4) the result which is only to be arrived at by
tment of the City of Bremen advertised two providing such equality of opportunity”.37
managerial posts. Eckhard Kalanke and Heike Notably, the ECJ did not elaborate further
Glissmann, a man and a woman in the same as to the rationale behind either objection, al-
pay bracket, were candidates shortlisted for though decision appeared traceable to langu-
a promotion. Although Kalanke had received age used in the Advocate General Tesauro’s
the initial recommendation for the position, re- detailed opinion on the case. In that, both, the
sistance from the Personnel Committee led European Court of Justice as well as Advocate
to the referral of the matter to a Conciliation General’s opinion stressed the distinction bet-
Board. The Board ruled that, both candidates ween a requirement for equal representation
had equivalent qualifications and therefore, in an employment sector and a requirement
Mrs Glissmann should be offered a position. for equal access for employment.38 According
The board relied on a law then in force,34 in to their reasoning, the goal of the legal pro-
the Land of Bremen requiring that female can- vision of the positive measures is clearly to
didates receive preference, all other criteria promote equal opportunity rather than equal
being equal, in sectors in which women we- result in employment. European Court of Jus-
re under-represented. The law defined under- tice held that a positive action cannot be used
representation as occurring when women con- to secure equal results, or used as a remedy
stitute less than half of the employees. of a situation of impaired inequality in the past
Kalanke challenged this outcome under through discriminatory means, but to eliminate
German law. He was unsuccessful in lower obstacles preventing women from having equ-
courts and then appealed the case to the Bun- al opportunities.
desarbeitsgericht (the Supreme Labor Court The Court finally concluded, that genera-
of Germany). That court again rejected Kalan- lized preservation of special rights for women
ke’s German law arguments. However, faced was not compatible with the Directive. Conse-
with Kalanke’s further claim that the gender quently the Bremen Law infringed the Equal
preference mandated by Bremen’s statute vi- Treatment Directive.
olated Community law, the Court referred the The judgment was seriously criticized for
case to the ECJ for a preliminary ruling regar- its reliance on the formal non-discrimination
ding the compatibility of the Bremen Law and model of equality and because of the lack of
the Directive. any sensitivity towards the different position of
ECJ began with the proposition that the women on job market.39 As Ursula O’Hare re-
Bremen gender preference would violate Artic- marks “the Court has missed an opportunity to
le 2(1)’s antidiscrimination precept unless it fell further de facto equality and has handed down
within the exception carved out by Article 2(4).. a judgment which must, at least in the short
The ECJ then identified Article 2(4) as “a dero- term, surely frustrate the progress of proactive
gation from an individual right laid down in the equality measures across the Union”.40
Directive which must be interpreted strictly”.35 However, the judgment has stirred up
In its response to the question posed though considerable progress regarding the future of
preliminary ruling procedure, ECJ gave two positive action plans.
reasons, why national laws of Bremen didn’t The European Commission issued a Co-
satisfy this “strict” standard. First, the ECJ mmunication on March 27, 1996, on the inter-
concluded that “national rules which guaran- pretation of the judgment.41 The commission
tee women absolute and unconditional priority identified that not all quotas would be unlawful
go beyond promoting equal opportunities and and listed a range of positive action measures
overstep the limits of the exception in Article which would, in its view be acceptable despite
2(4)”.36 Second, the ECJ held that “in so far the ruling. It clarified the terms of the article
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L. SURMAVA, POSITIVE ACTIONS WITHIN CONCEPT OF EQUALITY IN EU
2 (4) to provide that soft quota such as that Marschall then brought his case before
in issue in Kalanke would not be contrary to the Administrative Court. Considering experi-
the directive, so long as it did not automatically ence in Kalanke, the Court doubted whether
give preference to underrepresented sex, but the Land’s provision could be upheld and re-
permitted the assessment of an individuals ferred the issue though preliminary ruling pro-
specific circumstances in the given case. 42 cedure to the ECJ, asking on compatibility of
The Commission believed that Member Sta- the Land’s law with the Equal Treatment Di-
tes could enact laws regarding other forms of rective.
positive action in favor of women, including The land was claiming that “where qualifi-
“flexible quotas”. cations are equal, employers tend to promote
Thus, the ECJ accepted the legitimacy of men rather than women because they apply
positive action when, in November 1997, it up- traditional promotion criteria which in practice
held a German state law which instructed em- put women at a disadvantage, such as age,
ployers to choose an equally qualified female seniority. The present scheme of positive acti-
candidate over a male, unless factors caused on gives an employer a possibility to consider
the balance to tilt in favor of the male candidate. and “additional criterion” that of being female”.
Therefore, the next significant case in this Furthermore, the Land felt that the language
field, which attempted to address the criticism of the “savings clause” would ensure flexibi-
and clarify uncertainty caused by Kanlake, lity in hiring, as well as allow the employer to
was Marschall.43 In this decision, the ECJ not consider individualized criteria when selecting
only exhibited its acceptance of such positive a candidate.
action plans, but also acknowledged that “the Advocate General Jacobs in his opinion
mere fact that a male candidate and a female on this case noted that the savings clause did
candidate are equally qualified does not mean not alter the discriminatory nature of the rule.
that they have the same chances”. He argued that the measures permitted by ar-
Mr. Marschall a tenured teacher for the ticle 2(4) were those designed to remove the
Land of North Rhine-Westphalia, applied for obstacles preventing women from pursuing
promotion in 1994. The Law on Civil Servants the same results on equal terms, but not mea-
of the Land of North Rhine-Westphalia (Beam- sures to “confer the results on women directly,
tengesetz für das Land Nordrhein-Westfalen) or to grant them priority in attaining those re-
included a positive action plan which provided: sults simply because they are women”.44
Where, in the sector of the autho- The Court of Justice did not follow Ja-
rity responsible for promotion, there are cobs opinion and held that giving women the
fewer women than men in the particular priority in promotions in the public sector can
higher grade post in the career bracket, be compatible with the European principle of
women are to be given priority for pro- equal treatment, because “where male and
motion in the event of equal suitability, female candidates are equally qualified, male
competence and professional perfor- candidates tend to be promoted in preference
mance, unless reasons specific to an in- to female candidates particularly because of
dividual [male] candidate tilt the balance prejudices and stereotypes concerning the ro-
in his favor. le and capacities of women in working life and
When Marschall was informed that a pre- the fear, for example, that women will interrupt
ference was granted to the woman, he applied their careers more frequently, that owing to
to District Authority, and received a rejection. household and family duties they will be less
According to the District Authority, the Land’s flexible in their working hours, or that they will
provision required that the female candidate be absent from work more frequently because
be promoted to the position because both can- of pregnancy, childbirth and breastfeeding”.45
didates were equally qualified for the position, ECJ also held that “for these reasons, the me-
and because at the time competition there we- re fact that a male candidate and a female
re less women than men in this particular ca- candidate are equally qualified does not mean
reer bracket. that they have the same chances”.46
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As a result, a state law containing a sa- requirements of the post to be filled or the offi-
ving clause falls within the scope of article 2(4) ce to be conferred.50 Only if a female candidate
“if such a rule may counteract the prejudicial and a male candidate are of equal qualificati-
effects on female candidates of the attitudes on and it is necessary for complying with the
and behavior described above and thus redu- objectives of the advancement plan must the
ces actual instances of inequality which may female candidate be chosen provided that no
exist in real world”.47 reasons of greater legal weight are opposed.
The Court also added that the state ru- Therefore, in Badeck, the Court upheld its
le did not breach article 2(4) provided that “in Marschall decision and ruled that preferential
each individual case the rule provides for ma- treatment under the Hessen Equality Statu-
le candidates a guarantee that the candidatu- te is not in conflict with Community Law. The
res will be subject of an objective assessment Court could not find that the Hessen Equality
which will take account of all criteria specific to Statute involves an absolute or unconditional
the individual candidates and will override the priority rule.51
priority accorded to female candidates where In the Abrahamsson case52 the Europe-
one or more of those criteria tilts the balance an Court of Justice drew attention to the idea
in favor of the male candidate”.48 that the male and female candidates must be
Therefore, additional condition i.e, “saving of equal or almost equal merit; the automatic
clause”, became decisive for the preferential preference of a woman candidate with suffici-
rule to be admissible under Community law. ent but less qualification will be in contradicti-
The preferential rule may not be applied when on with European law.
this would cause the male competitor undue In the given case the Swedish law estab-
individual hardship. lished a special form of positive discrimination
From Kalanke and Marschall judgments it for cases where a higher educational institution
follows that the national measures obliged the decides that discrimination is permissible to fill
public employer to prefer an equally qualified the posts of certain job categories with a view
woman over a man with longer service in order to promote equality in workplace.53 In such ca-
to correct female under-representation. The sta- ses a “candidate belonging to an under repre-
tutes, at issue in Kalanke and Marschall, gives sented sex and possessing sufficient qualifica-
preferential treatment for women: 1) if women tion for the post may be chosen in preference
and man concerned have equal qualification, to a candidate belonging to the opposite sex
and 2),if women as a whole is under-represen- who would otherwise have been chosen”.54
ted in the employment the given category. According to the second Swedish regula-
In Badeck, the Court had to judge on many tion the abovementioned form of action shall
55
kind of positive action measures. The German be used where it “proves necessary to do so in
national rules49 prescribed the adoption of wo- order for a candidate of the under-represented
men's advancement plan which “shall contain sex to be appointed”.56 In both of the regulati-
binding targets with reference to the proporti- ons the following limitations applied: “provided
on of women in appointments and promotions that the difference in their respective qualifica-
in a sector where women are under represen- tions is not so great that application of the rule
ted, at least if that is necessary for fulfilling the would be contrary to the requirement of objec-
targets and no reasons of greater legal weight tivity in the making of appointments”.
are opposed”. As a result of the binding nature Therefore the later regulation prescribed
of the abovementioned advancement plan we an unconditional obligation to priorities woman
can treat the rule as a strict quota. Thus the if they are underrepresented in particular area
Court in this case had the first opportunity to while the former only provided a possibility
confirm or correct its position about quotas set and thus discretion to the university to appoint
in Marschall. a woman instead of a man. As regards the la-
The Court stated that the selection proce- ter positive action measure it is clear that we
dure for candidates in question starts by asses- are dealing with a strict legally binding quota
sing the candidates’ suitability, capability and even if it is limited by the requirement of “the
professional performance with respect to the objectivity of appointment”.
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L. SURMAVA, POSITIVE ACTIONS WITHIN CONCEPT OF EQUALITY IN EU
In its judgment of the case ECJ repeated rence to one sex; secondly, it may not exclude
its ruling in Badeck that “only those actions are the assessment of specific qualities peculiar to
compatible with EC law which do not give auto- a competitor belongs to the opposite sex.
matic preference to women, when women and In difference with the strict quotas, ECJ is
men are equally qualified and the candidatures less critical in regard to those national provisi-
are subject to an objective assessment which ons which principal aim is to improve women’s
takes account of the specific personal situation situation on the labor market by providing tra-
of all candidates.57 Consequently the ECJ ruled ining programs, childcare facilities and thus
that EC law precludes national legislation un- make it easier for women to reconcile their dif-
der which a candidate must be chosen in pre- ferent duties stemming from their different ro-
ference to a candidate of the opposite sex who les playing in society, however, at the same ti-
would otherwise have been appointed. On the me it is apparent even in these cases the ECJ
other hand, ECJ stated, that EC law does not does not accept unconditional discrimination
preclude a rule which a candidate belonging to against men. In all cases when the situation of
the underrepresented sex may be granted pre- a man and a woman is similar concerning the
ference over a competitor of the opposite sex, factual requirement upon which the positive
provided that the candidates possess equiva- discrimination is based the legislation may not
lent or substantially equivalent merits, where exclude men from benefiting the rules origi-
the candidatures are subjected to an objective nally designed to the advantage of women. In
assessment which takes account of the speci- this respect, case of Lommers is of interest.
fic personal situations of all the candidates. It In the Lommers58 the employer of Mr. Lom-
clarified the conditions in which positive action mers adopted regulations established subsidi-
zed nursery scheme in which a set number
can be applied and stated that the male and the
of nursery places for children of the employe-
female candidates must be of equal or almost
es were available only for women. Children
equal merit. The automatic and absolute prefe-
of male officials could be given places in the
rence of a candidate of the underrepresented
nursery facilities in question only in cases of
sex who has a sufficient but lower qualification
emergency. The nursery scheme was one of
is by contrast incompatible with the principle of
the measures through which the employer
equal treatment. The Court here seems shifted
wanted to tackle the serious underrepresenta-
an emphasis from the “automatic preference of
tion of women in the staff of the Ministry.
the underrepresented sex” to the “objective as-
The Court stated that the principle of equ-
sessment” of the specific situations of all can-
al treatment does not preclude the establis-
didates, which according to the ECJ is to be
hment of such national law “if the aim of pro-
assessed with the test of proportionality. In this
moting equality of opportunity between men
case ECJ defined the limits of the article 141
and women pursued by the introduction of a
(4) and stated that “even though Article 141(4) measure benefiting working mothers can still
ECT allows the Member States to maintain or be achieved if its scope is extended to include
adopt measures providing for special advanta- working fathers, the exclusion of men from its
ges intended to prevent or compensate for di- scope would not be in conformity with the prin-
sadvantages in professional careers in order to ciple of proportionality”.59
ensure full equality between men and women Since the measure at issue did not totally
in professional life, it cannot be inferred from exclude male officials from its scope but allo-
this that it allows a selection method which ap- wed the employer to grant access to nursery
pears to be disproportionate to the aim pursu- places for male officials in cases of emergency
ed. “Therefore, in the given case ECJ for the it was held to be compatible with EC require-
first time introduced proportionality test in rela- ments. According to the Court “The measure
tion to the positive actions. of positive discrimination may not go beyond
Based on the analysis of the case law dis- what is necessary to achieve the goal, in this
cussed above it could be concluded that natio- case to eliminate or mitigate the disadvantage-
nal rule of positive action must fulfill at least two ous state of women in the labour market and
criteria. Firstly, it may not give automatic prefe- may not constitute reverse discrimination”.
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The Court’s insistence on the narrow in- are equally qualified does not mean that they
terpretation of positive actions and the con- have the same chances” and that “the goal of
sideration that the individual right of non-dis- the legal provision of the positive measures
crimination may be limited only in exceptional is clearly to promote equal opportunity rather
cases are reinforced by the following case as than equal result in employment”. From the
well. France adopted a regulation under which above mentioned it could be concluded that in
women brought up children were entitled to a the Community law the requirement of “equal
service credit for the calculation of their reti- opportunities” is identical to “substantial equa-
rement pension whilst it excluded from entit- lity”, however, how paradoxical it may sound,
lement to that credit male civil servants who even though ECJ and legal provisions state,
were able to prove that they assumed the task that while performing positive action measures
of bringing up children.60 attention shall be paid to substantial equality
This credit was not granted in connection and not only formal, positive action measures
with maternity leave or to any disadvantage are considered to be an exception, to the equ-
which the female employee incurred in her ca- ality principle, where “equality” can not be re-
reer as a result of being absent from work du- ached without substantial equality. Therefore
ring the period of following the birth of a child, author believes that positive action measures
but in connection to the period that she spent could be considered not only as an exception,
with bringing up a child. The fact that male ser- but also as one of the means of achieving so-
vants were completely excluded from being cial fairness and justice.
granted such a credit even those who assu- Besides the vagueness of the ECJ’s stan-
med the task of bringing up children made this dpoint on positive action measures it must be
provision incompatible with EC law because it noted that the very notion of positive action
infringed the principle of equal treatment. have not been the object of the legal asses-
sment. Courts approach to this concept relies
CONCLUSION on such undefined terminology used by it as
are: flexible result quota, individual’s speci-
Positive action programs are measures fic circumstances, objective assessment etc.
of temporary character, necessary for equa- which rise legal uncertainty in assessment
lity in the workplace. Once equality and fair- of the positive action measures. However, in
ness is established, the need for affirmative
Lommers case Court proposes the clearer for-
action decreases. The predominant feature of
mula of assessment of positive action measu-
positive action within EC legislation is its per-
res, where it uses proportionality principle.
missive nature. There do not appear to be any
And finally, from the practice of the ECJ
obligations to take positive action and conse-
and provisions of the European Community
quently national practice varies greatly in this
the following conclusion can be made: taking
area. When using positive action measures it
into consideration the fact the ECJ considered
is important that states respect the limits of the
positive actions as a exception to the principle
provisions and not use such measures which
of general equality principle those measures
will result in the reverse discrimination.
shall be interpreted restrictively, which means
In this respect, the main problem in the
that that the court in specific case has to we-
positive action issues remains to be exact vi-
ight the right of a disadvantaged social group
ews of the court about the most disputed theo-
to equal treatment against the right of an in-
retical questions concerning man and woman
dividual not to be discriminated. Considerati-
equality. On the basis of the decision of the
on seems to be in favor of individual rights.
European Court of Justice it is very difficult to
Practically, the consequence is that, this type
assess the Court’s standpoint about the diffe-
of approach to equality limits the possibility of
rent aspects of equality. While the Kalanke-
case seems to suggest the support of formal member states to advance with the schemes
equality rather than substantive equality the of the positive action measures, which in its
following decisions state, that “the mere fact turn provides a required development of this
that a male candidate and a female candidate field in the EU.
252
L. SURMAVA, POSITIVE ACTIONS WITHIN CONCEPT OF EQUALITY IN EU
1
Nuria Elena Ramos Martín, “Positive Action Measures in European Union Equality
Law”. Paper presented on the conference ‘Equal is not enough. Dealing with
opportunities in a diverse society’, University of Antwerp (2006): p.1.
2
Ramos Martin, p.1
3
Catherine Barnard, “The principle of equality in the Community context, P, Grant,
Kalanke and Marshall: four uneasy bedfellows?”, Cambridge Law Journal, 57(2)
(July 1998) pp, 352-373, p. 353.
4
EC Treaty, art. 141. “The narrowness of this definition constituted a political com-
promise and contrasted with that adapted by the International Labour Organization
... in which equal pay was defined as ‘work of equal value”. June Neilson, Equal
Opportunities for Women in the European Union: Success or Failure? 64 (U. of
Aberdeen, U.K. 1998) (citing Convention No. 100 on Equal Remuneration, 1951).
5
EC Treaty, art. 141.
6
Case 43/75, Defrenne v. Societe Anonyme Belge de Navigation Aerienne Sabena,
1976 E.C.R. 455 [hereinafter Defrenne II].
7
Defrenne II. paras 8-14.
8
Case 149/77, Defrenne v. Societe Anonyme Belge de Navigation Aerienne Sabena,
1978 E.C.R. 1365, 1374 [hereinafter Defrenne III]. para 17.
9
The Council adopted six directives between 1975 and 1992: (1) the EPD of
1975; (2) the ETD of 1976; (3) the 1978 Social Security Directive; (4) the 1986
Directive on equal treatment in occupational social security schemes; (5) the 1986
Directive on equal treatment between men and women engaged in an activity
including agriculture in a self-employed capacity and on the protection of self-
employed women during pregnancy and motherhood; and (6) the 1992 Directive
on the protection of pregnant women from exposure to hazardous substances in
the workplace and on rights to maternity leave. See Sonia Mazey, The European
Union and women’s rights: from the Europeanization of the national agendas to
the nationalization of a European agenda, J. Eur. Pub. Pol’y 131, 140 (1998).
10
Neilson, 64.
11
George A. Bermann Et Al., Cases and Materials on European Community Law
1158 (1993).
12
Bermann.
13
Neilson, 65.
14
Bermann.
15
Council Directive 75/117 On the approximation of the laws of the Member States
relating to the application of the principle of equal pay for men and women, [1975]
O.J.(L 45).
16
Directive 75/117; Neilson 66.
17
Directive 75/117.
18
Defrenne II.
19
Case C-127/92, Enderby v. Frenchay Health Authority, [1994] 1 C.M.L.R. 8
(1993).
20
Defrenne III, para 19.
21
Council Directive 76/207 On the implementation of the principle of equal treatment
for men and women as regards access to employment, vocational training and
promotion, and working conditions [1976] O.J. (L 39) 40.
22
Directive 2006/54 of the European Parliament and of the Council on the
implementation of the principle of equal opportunities and equal treatment of
men and woman in matters of employment and occupation (recast) [2006], O.J.
(L204/23).
23
Directive 76/207. Art. 1(1).
24
Paul Craig & Gráinne De BúrcA, EC LAW; Cases Text, Materials. 3rd Ed.[2003] p.
886.
25
Case 165/82, Commission v. UK, [1983] E.C.R 3431.
26
Directive 76/207 art. 2(4).
27
Alternative labels for positie laction include: reverse discrimination, affirmative
action, corrective action, constructive action, structural initiatives, diversification
strategies, balancing measures. See: K.Adam, “The politics of redress:
253
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
South African style afrmative action”, The Journal of Modern African Studies,
(1997)35(2), pp.231–249; C. McCrudden, “Positive action: definition, types, aims
and justifications”, keynote presentation. “Equal opportunities for all: what role for
positive action?”, 2007 annual conference of the action programme to combat
discrimination, (2007) Rome, 23 and 24 April.
28
Paul Craig & Gráinne De BúrcA, 886.
29
Council Recommendation 84/635.
30
Ramos Martin, p. 9.
31
In order to clarify that point Declaration , annexed to the Final Act of the Treaty of
Amsterdam, was approved.
32
Council Directive 2000/78/EC On establishing a general framework for equal
treatment in employment and occupation, [2000] O.J. L 303/16.
33
Case C-450/93. Eckhard Kalanke v Freie Hansestadt Bremen [1995] E.C.R.
I–3051.
34
Landesgleichstellungsgesetz of 20 November 1990 (Bremen Law on Equal
Treatment for Men and Women).
35
Case 222/84, Johnston v Chief Constable of the Royal Ulster Constabulary [1986]
E.C.R. 1651, para. 36.
36
Kalanke I, para. 22.
37
Kalanke I, para. 23.
38
Nancy L. Perkins: Judgement of the Court in Ekhradt Kalanke v . Freie Hansestadt
Bremen (October 17, 1995) 265-266.
39
for example D. Schiek: Positive Action in Community Law (1996) 25 Industrial Law
Journal p. 239.
40
Ursula A O’Hare: Positive Action Before the European Court of Justice:
CASE C-450/93 Kalanke v Freie HansestadtBremen, First Published in Web
Journal of Current Legal Issues in association with Blackstone Press Ltd.f.
41
Paul Craig & Gráinne De BúrcA , p 890; COM (96) 88.
42
OJ C 1799/8.
43
Case -409/95. Hellmut Marschall v Land Nordrhein-Westfalen. [1997] E.C.R.
I–6363.
44
Opinion of Mr. Advocate General Jacobs delivered on 15 May 1997, Hellmut
Marschall v Land Nordrhein-Westfalen, para. 31.
45
Marschall para.29.
46
Marschall para.30.
47
Marschall para.31.
48
Marschall.para.33.
49
The Hessisches Gesetz ьber die Gleichberechtigung von Frauen und Mдnnern
und zum Abbau von Diskriminierungenvon Frauen in der цffentlichen Verwaltung
(Law of the Land of Hesse on equal rights for women and men and the removal
of discrimination against women in the public administration, adopted on 21
December 1993 (GBVBl. I, p. 729).
50
Case C-158/97, Georg Badeck and Others, [2000] ECR I–1875 para. 30.
51
Badeck, para. 52.
52
Case C-407/98, Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist
[2000] E.C.R. I-5539.
53
Ann Numhauser-Henning: Swedish Sex equality Law before the European Court
of Justice, Industrial Law Journal Vol. 30. March 2001, pp. 121-126, p. 122.
54
Swedish Regulation 1993: 100 on Universities.
55
Swedish Regulation 1995:936 concerning certain professors’ and research
assistants’ posts created with a view to promoting equality.
56
Regulation 1995: 936.
57
Badeck, para. 23.
58
Case C-476/99, H. Lommers v Minister van Landbouw, Natuurbeheer en Visserij.
[2002] E.C.R. I–2891.
59
Lomers, para. 42.
60
Case C-366/99. Joseph Griesmar v Ministre de l’Economie, des Finances et de
l’Industrie et Ministre de la Fonction publique, de la Réforme de l’Etat et de la
Décentralisation. [2001] E.C.R. I-9383.
254
salome SaqariSvili
255
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
256
s. SaqariSvili, terorizmis sapasuxo RonisZiebani – Tavdacvis uflebis ganxorcieleba Tu represaliebi?
neba miayena; 1987 weli ki `teroristuli biT profesor kaseses doqtrinas, Tav-
sanaxaobis~ wlad moinaTla axlo aRmo- dacvis RonisZiebani absoluturad jde-
savleTSi.9 ba teroristuli aqtebis kriteriumebSi.
ra pirobebs unda akmayofilebdes albaT, swored esaa umTavresi safuZve-
qmedeba, teroristul aqtad rom dakva- li imisa, rom saerTaSoriso sazogadoe-
lificirdes? – mecnierebi gansxvavebu- ba dRemde ver SeTanxmda terorizmis de-
lad udgebian am sakiTxs. maT Soris yve- finiciaze. arcerTi Zlieri saxelmwifo
laze gavrcelebuli profesor antonio darwmunebuli araa, rom Tavad ar gaxde-
kaseses xedva gulisxmobs Semdegs: imi- ba amgvari aqtebis ganmaxorcielebeli
saTvis, rom qmedeba teroristul aqtad momavalSi. amdenad, maTTvis bevrad mo-
Sefasdes, saWiroa: saxerxebelia Tavdacvis uflebaze ape-
_ amgvari qmedeba dasjadi unda iyos lireba.
erovnuli kanonmdeblobiT (mag.:
mkvleloba, gataceba da sxv.);
2. terorizmis sapasuxo RonisZiebani
_ misi mTavari mizani SiSis daTesva un-
da iyos sazogadoebaSi, raTa amiT Za- rogorc zemoT aRiniSna, wlebis gan-
ladobrivi gziT moaxdinos gavlena mavlobaSi saerTaSoriso sazogadoebam
saxelmwifos mTavrobaze; araerTi konferencia Tu msjeloba da-
_ da bolos, igi aucileblad politi- uTmo terorizmis definiciis miRebas,
kurad an ideologiurad unda iyos Tumca, kidev ufro problemuria sa-
motivirebuli.10 kiTxi, Tu rogor unda upasuxos gaerTi-
miuxedavad definiciaze saerTo az- anebam amgvar aqtebs, ra zomebs unda mi-
ris arqonisa, saerTaSoriso sazogadoe- marTos, raTa ar moxdes Zalis gadamete-
ba erTxmad aRiarebs, rom teroristuli ba da, amasTanave, mizanic miiRwes. mizani
Tavdasxmebi dasagmobia da saxelmwifo- ki erTaderTi da Seuryevelia – dacul
ebma am sferoSi unda iTanamSromlon, iqnes sazogadoeba da sruliad samyaro
raTa moaxdinon erovnuli sasamarTlo- teroristuli aqtebisgan. praqtikis mi-
ebis meSveobiT teroristTa dasja. Tum- xedviT, terorizmis sapasuxo zomebi Se-
ca jer kidev araa SeTanxmeba miRweuli, iZleba or jgufad daiyos: mSvidobiani
unda CaiTvalos Tu ara terorizmi sa- da Zaladobrivi. Tumca cxadia, rom maT
erTaSoriso danaSaulad da daisajos Soris mkafio zRvari ar arsebobs rea-
saerTaSoriso sasamarTloebis mier. al- lobaSi, misi xilva mxolod qaRaldzea
Jiris, Sri-lankis, TurqeTisa da indoe- SesaZlebeli. saWiroa aRiniSnos, arse-
Tis mxridan iyo mcdeloba, terorizmi bobs Tu ara ierarqia pasuxis am saSuale-
moeqciaT sisxlis samarTlis saerTaSo- bebs Soris. saerTaSoriso gaerTianebis
riso sasamarTlos iurisdiqciis qveS, ZiriTadi principebidan gamomdinare,
rogorc kacobriobis winaaRmdeg mimar- rac asaxulia gaeros wesdebasa Tu sxva
Tuli danaSauli. Tumca maSin am winada- damfuZnebel xelSekrulebebSi, aseTi
debas mravali mowinaaRmdege gamouCnda, ierarqia namdvilad arsebobs da sazoga-
maT Soris SeerTebuli Statebi.11 doeba mSvidobian pasuxs ayenebs pirvel
dResdReobiT, ratomRac, tero- adgilze. gaeros wesdeba ambobs, rom
rizmi mesame samyaros qveynebTanaa gai- yvela wevrma qveyanam davebi unda moag-
givebuli da safrTxesac yovelTvis am varos mSvidobianad, ise, rom safrTxe
mxridan elian. albaT, pozitiurad CaiT- ar Seeqmnas saerTaSoriso mSvidobasa da
vleba, Tuki meore mxridanac SevxedavT usafrTxoebas.12 es xedva universalu-
am problemas: xom ar aris sinamdvileSi ria, Tumca saxelmwifoebi saWiroebis
terorizmTan brZolis RonisZiebani Ta- SemTxvevaSi dauyovnebliv mimarTaven
vad terorizmis aRmocenebis sawindari? Zalas.
TviT Tavdacvis uflebiT mebrZoli sa- mSvidobian saSualebebSi igulisxme-
xelmwifo an saxelmwifoTa jgufebi xom ba is debulebani, romelnic am sferoSi
ar xdebian `teroristebi~? Tuki mivyve- miRebul yvela konvenciaSia Cadebuli.
257
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
258
s. SaqariSvili, terorizmis sapasuxo RonisZiebani – Tavdacvis uflebis ganxorcieleba Tu represaliebi?
ba aqvs Tavdasxmisa; roca Tavdas- belia, raTa meore mxarem Tavdacvis uf-
xma momdinareobs saxelmwifos mier lebiT isargeblos. man unda daamtkicos,
kontrolirebadi teritoriis far- rom igi mosalodneli msxverplia far-
glebs garedan. TomasStabiani SeiaraRebuli Tavdasxmi-
• safrTxis arsebobis SemTxvevaSi igi sa. amasTan, SesaZloa, es `Tavdasxma gan-
aucileblad aSkara da gardauvali xorcielebul iqnes ara uSualod saxel-
unda iyos.19 mwifos regularuli armiis, aramed mis
amgvari SeiaraRebuli Tavdasxma, mier gagzavnili an misi saxeliT moqmedi
faqtobrivad, saerTaSoriso interven- dajgufebebis, araregularuli jarebis
ciaa meore saxelmwifos Tanxmobis an an daqiravebuli jariskacebis mier~.23
piradi Txovnis gareSe. cxadia, inter- cneba `SeiaraRebuli Tavdasxma~ gu-
vencia akrZalulia da samarTlebrivi lisxmobs, Tavdamsxmelebs hqondeT Tav-
safuZveli ar gaaCnia. (gamonaklisia hu- dasxmis ganzraxva. navTobis platforme-
manitaruli intervencia, romelic gaci- bis saqmeSi marTlmsajulebis saerTaSo-
lebiT axali doqtrinaa da, Sesabamisad, riso sasamarTlom miuTiTa am sakiTxze,
jer kidev bolomde ar aris misi kanoni- rodesac ganixila, ramdenad hqonda Se-
ereba dadgenili.) imisaTvis, rom saxel- saZlebloba SeerTebul Statebs, iranis
mwifom Tavdacvis ufleba moiSvelios qmedebebi specifikurad maTze mimar-
sxva saxelmwifos winaaRmdeg SeiaraRe- Tul safrTxed mieCnia, an iranis `gan-
buli RonisZiebebis ganxorcielebis ga- zraxva~ aSS-is xomaldebis dazianebisa
sasamarTleblad, saWiroa mxedvelobaSi realur safrTxed dakvalificirebuli-
iqnes miRebuli e.w. vebsteris formula, yo, raTa Tavdacvis ufleba gamoeyenebi-
romelic man gaaJRera karolinis saqmes- na.24 amasTanave, aucilebelia, Tavdasxma
Tan dakavSirebiT. sakiTxi exeboda 1837 momdinareobdes saxelmwifos mier kon-
wels britaneTis mier aSS-is gemi `ka- trolirebadi teritoriis farglebs
rolinis~ ganadgurebas ara manamde, aS- garedan, raTa man isargeblos gaeros
S-is mxridan ganxorcielebuli Tavdas- wesdebis 51-e muxliT gaTvaliswinebuli
xmis Sedegad, aramed imis safuZvelze, Tavdacvis uflebiT. palestinis okupi-
rom amerikelebi exmarebodnen kanadel rebul teritoriaze kedlis aRmarTvis
ajanyebulebs britaneTis samefos wina- saqmesTan dakavSirebiT sakonsultacio
aRmdeg. amdenad, Seiqmna imis safuZveli, daskvnaSi sasamarTlom swored es aspeq-
rom winaswari Tavdacvis ufleba gamoe- ti gamoyo.25
yenebina britaneTs. vebsteris azriT, sa- SesaZlebelia Tu ara, teroristuli
xelmwifom winaswari Tavdacvis ufleba qmedeba dakvalificirdes SeiaraRebul
rom gamoiyenos, saWiroa `aSkara safrTxe Tavdasxmad da mis winaaRmdeg gamoyene-
arsebobdes, saxeze iyos gadaWarbebuli bul iqnes 51-e muxli? – am kiTxvas pasuxi
saWiroeba amgvarad moqmedebisa, saWiro rom gavceT, saWiroa ganvixiloT axali
da proporciuli iyos sapasuxo Ronis- koncefcia – `omi terorizmis winaaR-
Ziebani, ar arsebobdes Tavdacvis sxva mdeg~.
saSualeba da mosalodnel Tavdasxmas
hqondes Sesabamisi siRrme~.20 amdenad, 2.1.2. `omi terorizmis winaaRmdeg~ –
gaeros wesdebis 51-e muxliT aRiarebu- Tanamedroveobis terminologiuri
li Tavdacvis ufleba, rodesac saxezea SemoTavazeba Tu myari samarTlebrivi
`SeiaraRebuli Tavdasxma~, gamonakli- safuZvlis mqone koncefcia?!
sia wesdebis me-2(4) muxlidan,21 romelic 2001 wlis 11 seqtembris teraqti
krZalavs Zalis gamoyenebas da dResdRe- gardamtex movlenad iqca saerTaSoriso
obiT saerTaSoriso samarTalSi ius co- gaerTianebisaTvis terorizmTan damo-
gens-ad iqca.22 kidebulebis sakiTxSi. am aqtis msxver-
nikaraguis saqmeSi marTlmsajule- plTa odenoba, TavdasxmaTa siZliere
bis saerTaSoriso sasamarTlom xazi ga- da mniSvneloba Tavad am faqtisa gaxda
usva Tavdasxmis simZimes, rac aucile- safuZveli terorizmTan axleburi mid-
259
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
260
s. SaqariSvili, terorizmis sapasuxo RonisZiebani – Tavdacvis uflebis ganxorcieleba Tu represaliebi?
261
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
262
s. SaqariSvili, terorizmis sapasuxo RonisZiebani – Tavdacvis uflebis ganxorcieleba Tu represaliebi?
263
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
1
Report of the Secretary-General’s High Level Panel on Threats, Challenges and
Change A More Secure World: Our Shared Responsibility, 2004.
2
Е.Г. Ляхов, Проблемы Сотрудничества Государств в Борьбе с Международным
Терроризмом, Москва, Международные Отношения, 1979, 12-13.
3
I. Mgbeoji, The Bearded Bandit, The Outlaw Cop, and the Naked Emperor: Towards
a North-South (De)Constructions of the Texts and Contexts of International Law’s
(Dis Engagement with Terrorism, Osgoode Hall L.J., Vol.43, N1&2, 2005, 109.
264
s. SaqariSvili, terorizmis sapasuxo RonisZiebani – Tavdacvis uflebis ganxorcieleba Tu represaliebi?
4
Ch. Greenwood, War, Terrorism, And International Law, Freeman/Current Legal
problems, Vol. 56, 2003, 506-507.
5
A. Cassesse, International Law, Second Edition, Oxford University Press, 2005,
449.
6
1949 wlis Jenevis konvenciebis 1977 wlis I damatebiTi oqmi, 44-e muxlis
me-3 punqti.
7
Supra note 5, 449.
8
R. Clutterbuck, Terrorism in an Unstable World, Routledge, Tailor & Francis Group,
London and New York, 1994, 3.
9
A.C. Arend and R.J. Beck, International Law and the Use of Force, Beyond the
UN Charter paradigm, Routledge, Tailor & Francis Group, London and New York,
2000, 139-140.
10
Supra note 5, 450.
11
A. Cassese, Terrorism is Also Disrupting Some Crucial Legal Categories of
International Law, European Journal Of International Law, Vol. 12, N5, 2001, 994.
12
Charter of the United Nations, Article 1.1; Online: http://www.un.org/aboutun/
charter/chapter1.shtml.
13
A. Cassesse, The International Community’s “Legal” Response to Terrorism,
International & Comparative Law Quarterly, Vol. 38, 1989, 592-596.
14
Ibid, 596-600.
15
S.A. Alexandrov, Self-Defence Against the Use of Force in International Law,
Kluwer Law International, 1996, 77.
16
Ibid, 81.
17
Supra Note 12, Article 51.
18
Supra Note 15, 95.
19
E. Wilmshurst, The Chatham House Principles of International Law on the Use of
Force in Self-Defence, International & Comparative Law Quarterly, Vol. 55, 2006,
965.
20
W.H. Taft IV, The Legal Basis For Preemption, Memorandum, November 18,
2002.
21
Supra Note 12, Article 2(4).
22
Supra Note 11, 1000.
23
Case Concerning Military and Paramilitary Activities for and against Nicaragua,
(Nicaragua vs. United States of America), I.C.J. Reports, (Merits), 1986, para 191;
Online: http://www.icj-cij.org/docket/files/70/6503.pdf.
24
Case Concerning Oil Platforms (Islamic Republic of Iran vs. United States of
America), I.C.J. Reports, 2003, para 64; Online: http://www.icj-cij.org/docket/
files/90/9715.pdf.
25
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, (Advisory Opinion), I.C.J. Reports, 2004, para 139; Online: http://www.
icj-cij.org/docket/files/131/1671.pdf.
26
The National Security Strategy of the United States of America, September 2002,
The White House, Washington, 1.
27
Ch. Greenwood, International Law and the Pre-emptive Use of Force: Afghanistan,
Al-Qaeda, and Iraq, San-Diego International Law Journal, Vol. 4, N7, 2003, 8.
28
D. Gartensteirn-Ross, Resolving Outstanding Judgment Under the Terrorism
Exception to the Foreign Sovereign Immunities Act, New York University Law
Review, Vol. 77, N2, 2002, 496-497.
29
D.J. Harris, Cases And Materials on International Law, Sixth edition, Thomson
Sweet & Maxwell, 2004, 940-943;
30
T. Gazzini, The Changing Rules on the Use of Force in International Law, Melland
Schill Studies in International Law, 2004,180-181.
31
S/RES/1368 (2001); Online: http://daccessdds.un.org/doc/UNDOC/GEN/N01/533/
82/PDF/N0153382.pdf?OpenElement
32
S/RES/1373 (2001); Online: http://daccessdds.un.org/doc/UNDOC/GEN/N01/557/
43/PDF/N0155743.pdf?OpenElement
33
Supra note 29, 943-945.
265
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
34
S/RES/1378 (2001); Online: http://daccessdds.un.org/doc/UNDOC/GEN/N01/638/
57/PDF/N0163857.pdf?OpenElement.
35
Supra Note 29, 946.
36
S.D. Murphy, Self-Defense and the Israeli Wall Advisory Opinion: An Ipse Dixit
from the ICJ, The American Journal of International Law, Vol.99, N62, 2005, 67.
37
M. Byers, Preemptive Self-defense: Hegemony, Equality and Strategies of Legal
Change, The Journal of Political Philosophy, Vol. 11, N2, 2003, 172.
38
Ibid, 177-178.
39
I. Brownlie, Principles of Public International Law, Sixth edition, Oxford University
Press, 2003, 713-714.
40
Chr. Gray, International Law and the Use of Force, Oxford University Press, 2004,
166 -167.
41
H. Duffy, Responding to September 11: The Framework of International Law,
Lancaster House, London, 2001, 15. Online: www.interights.org.
42
Supra Note 9, 163.
43
Supra Note 41, 15.
44
Y. Dinstein, War, Aggression an Self-Defense, Cambridge University Press, Fourth
Edition, 2005, 222.
45
M.N. Shaw, International Law, Cambridge University Press, Fifth edition, 2003,
1023.
46
Supra Note 27, 23.
47
United Nations General Assembly Resolution 3314, Definition of Aggression;
Online: http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/739/16/IMG/
NR073916.pdf?OpenElement.
48
Supra Note 27, 25.
49
Case Concerning Armed Activities on the Territory of the Congo, (Democratic
Republic of the Congo vs. Uganda), I.C.J. Reports, 2005, para 147; Online:
http://www.icj-cij.org/docket/files/116/10455.pdf.
50
Supra Note 11, 996.
51
Supra Note 40, 190.
52
Ibid, 190.
53
K.N. Trapp, Back to Basics: Necessity, Proportionality, And the Right of Self-
Defence Against Non-State Terrorist Actors, International & Comparative Law
Quarterly, Vol. 56, 2007, 153.
54
Ibid, 153.
55
Supra Note 13, 592.
266
SALOME SHAKARISHVILI
demned; however, on the other hand, the at- The terrorism is often called the “plague”
tention should be paid to the necessity and of the twentieth century; however its roots go
proportionality of counter measures, the rights deeper in the past. This is not the product of
of innocent civil population should not be vi- modern creative work, but no doubt its scales
olated by a single state under the pretext of and the methods of achievement of terrorist
the principle of self-defence. A terrorist attack goals have been expanded and threats ha-
does not a priori allow a state to undertake ve also increased. Before discussing counter
exactly the same type of actions. terrorism measures it is necessary to speak
The first part of the article discusses the about the history of its development and the
terrorism itself, the problem of non-adoption of problem of the definition of the term itself.
its definition and the criteria, an action must Etymologically the word “terrorism” stems
meet in order to be qualified as an act of ter- from the word “fear”, the same “terror”. The
rorism; the second part is actually the body term “a terrorist act” is also related thereto. As
of the article as it offers the overview of the regards the well-established international law
counter terrorism measures, the concept “ar- term “terrorism” – there is no universal and do-
med attack”, the new concept of “war against minating definition thereof as yet. In 1973 the
terrorism” which originated just for combating Professors M. Bassiouni and V. Nanda stated
terrorism and its peculiar features; the third in the United States that the objective difficulty
part is fully dedicated to the comparison of the of non-adoption of the legal definition of the
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saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
term was that “This word may mean fear, bar- for political purposes are in any circumstance
baric actions, intimidation and the whole seri- unjustifiable, whatever the considerations of a
es of different acts, including the acts of vio- political, philosophical, ideological, racial, et-
lence”.2 hnic, religious or any other nature that may be
The search for a definition of the term “ter- invoked to justify them”. This stipulation was
rorism” within the international law is as hard supposed to become the grounds for adoption
task as seeking out the Saint Grail. Before the of the definition of terrorism.7 The well-known
World War II, in 1937 the League of Nations Chinese tactician and philosopher Sun Tsu of-
adopted the Convention on the Prevention fered the following explanation of the purpose
and Combating Terrorism, however, the only of terrorism: “Kills one and threatens tens of
one country – India ratified it and due to this thousands”.8
reason it has never come into force.3 Later, in Almost probably it is very important to de-
1960s and early 70s the upsurge of the hijack fine the actual reasons of non-adoption of the
wave and escalation of various types of vio- definition of terrorism:
lent actions, like the massacre at 1972 Munich _ Political aspect of the definition, in parti-
Olympic Games induced the United Nations to cular in the context of national-liberation
take immediate measures against the acts of movements;
terrorism. However, in this case the focus was _ Activity of the states (opposition between
shifted to the prohibition of certain manifesta- the West and Arabic world);
tions thereof.4 _ Fear of the Western states for their acti-
For more than 30 years the states have ons not to be qualified as the acts of terro-
been debating within the UN on gthe relevant rism in future.
counter measures for combating terrorism. Of Meanwhile the history is becoming parti-
course, the main reason of such protracted de- cularly violent: more than 5 000 terrorist acts
bates was the non-adoption of the definition. had been committed in the world from 1975
The third world countries firmly held on their till 1985. These attacks took away the lives of
position and demanded for the acts of violence 4 000 people, 8 000 suffered physical injuries.
committed by the so-called groups fighting for 1987 was nominated as the year of “terrorist
freedom not to qualify under this definition as performances” in the Near East.9
these individuals and groups were fighting for What are the criteria to be met for an ac-
the exercise of the right of self-determination.5 tion to qualify as an act of terrorism? The le-
However, these states were forgetting that the gal scholars have different approaches to this
1977 Additional Protocol to the Geneva Con- issue. The most popular amongst them is the
ventions of 1949 (Protocol 1) provides a clear vision of Professor Antonio Cassesse, accor-
solution of the problem in order to prevent the ding to which for an act to be qualified as an
identification of “fighters for freedom” with the act of terrorism it is necessary:
terrorists. Paragraph 3 of Article 44 of this Pro- _ for such an act to be punishable under the
tocol grants the legal status of a combatant to domestic legislation (e.g. homicide, ab-
those warriors, who are not the members of the duction, etc.)
armed forced of the state and generally do not _ for it to aim mainly at spreading fear
bear the arms openly.6 Consequently this ar- amongst the society in order to violently
gument was not good enough and a precondi- influence the government of the state;
tion situation was created for coming to a more _ and ultimately, for it to have either political
general agreement on the common definition or ideological motivation.10
of terrorism. This agreement was embodied in Despite the absence of common under-
the Resolution 49/60 of the General Assembly standing on the definition, the international
adopted on 9 December 1994. The annexed community unilaterally admits that terrorist
thereto Declaration contains the following sti- attacks should be condemned and the states
pulation: “Criminal acts intended or calculated are supposed to cooperate in this field in or-
to provoke a state of terror in the general pub- der to ensure the punishment of terrorism via
lic, a group of persons or particular persons the national courts. However, it has not been
268
S. SHAKARISHVILI, COUNTER – TERRORIST ACTIONS – EXERCISE OF RIGHT OF SELF-DEFENCE OR REPRISALS?
still agreed whether or not the terrorism is to on. The US Charter says that all the Member
be regarded as an international crime and be States are required to peacefully settle dispute
punished by the international courts. Algeria, in such a manner as not to endanger the in-
Shi-Lanka, Turkey and India made efforts to ternational peace and security.12 This is a uni-
subordinate terrorism to the jurisdiction of the versal vision; however the states immediately
International Criminal Court as a crime against resort to force in the case of need.
humanity. But this proposal had many oppo- Peaceful means imply the provisions
nents then, including the United States.11 which are embodied in every convention adop-
As of to date terrorism is for some rea- ted in this field. However somewhat awkward
son associated with the countries of the third situation can be detected with respect to trea-
world and the threat is always expected from ties as well, because:
there. Most likely it will be good if we look at 1) The number of contracting parties of a
the problem from the other side as well: Do specific treaty is not always enough;
the measures for combating terrorism them- 2) The majority of the treaties do not provide
selves give rise to terrorism? Can it happen for any coercive lever for the fulfilment of
so that the states or a group of states fighting its provisions;
on the basis of the right of self-defence, beco- 3) The obligation of the parties to search for
me “terrorists” themselves? If we follow Pro- and arrest the persons suspected in terro-
fessor Cassesse’s Doctrine, the self-defence rism, is not strictly provided for. Due to this
measures fully comply with the criteria of the reason the principle “punish or extradite”
acts of terrorism. Almost probably, this is the may become a dead-borne one.13
main reason of non-agreement of the interna- Exhaustion of peaceful means should
tional community on the definition of terrorism. again be controlled by the UN. However, here
None of the powerful states can be sure that the other problem arises – is the organisation
it will not undertake similar actions in the futu- itself capable of undertaking efficient measu-
re. Consequently it is far more convenient for res and opposing the violation of the prohibi-
them to appeal to the right of self-defence. tion of use of force in the case of opposition
of the permanent members of the Security
Council. What lever does the UN have for the
2. COUNTER TERRORISM MEASURES
prevention of the abuse of power by powerful
As already mentioned the international states?!
community dedicated more than one confe- For a state to resort to violent means, it is
rence and debates to the adoption of the defi- supposed to have exhausted all the peaceful
nition of terrorism; however the potential reac- means. In general the international law pro-
tion of the community to such acts is ever mo- hibits the use of force except for the cases,
re problematic in order to prevent the abuse of which imply individual or collective defence in
power and at the same to attain the goals. The the event of armed attack. It is necessary for
goal is unique and unchanging: to protect the the use of force to be clearly legal in both ca-
society and the whole world against the acts of ses of defence. There are no common rules
terrorism. The practice evidences that coun- to regulate cases, when a state is entitled to
ter terrorism measures can be divided into two bomb the terrorists’ bases on the territory of
groups: peaceful and violent. Of course, there the other state, or attack an aircraft conveying
is not strict boundary between these measures terrorists in the international space.14
in reality; they can be seen as such only on a And finally, the international law requires
paper. It is necessary to define whether or not for the violent counter measures to be neces-
there is a hierarchy between these measures. sary and proportional to the armed attack. In
Based on the basic principles of the internatio- order to answer the question, whether what in
nal community, which are embodied in the UN fact is the right of self-defence in the course
Charter and other founding agreements, there of undertaking counter terrorism measures, it
definitely is such a hierarchy and the society is necessary to thoroughly investigate each of
explicitly gives preference to peaceful reacti- the above components.
269
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
2.1. Legal Grounds of Self-Defence the intervention is prohibited and it has no le-
gal grounds (exempted is the humanitarian
The travaux preparatoires of the UN Char-
interventions which is a relatively new doctri-
ter enable us to understand, whether what the
ne and respectively, its legality is not yet fully
lawmakers meant when they provided for the
established). For a state to make recourse to
exemptions with respect to the prohibition of
the right of self-defence for the justification of
the use of force, like the right of self-defence
armed actions against the other state, it is ne-
and delegation of the respective powers by the
cessary to take account of the so-called “Web-
Security Council. It should be mentioned that
ster formula”, which was first made public in
initially the right of self-defence was not even
relation with Caroline case. The case concer-
mentioned amongst the proposals at Dumbar-
ned the destruction of the ship Caroline by
ton Conference.15 Later, during San-Francisco
Great Britain in 1837 not before, as a result of
Conference it was decided to move the right
attack of the United States, but rather becau-
of self-defence from Chapter VIII to Chapter
se the Americans helped the Canadian rebels
VII,16 insofar as its importance for the mainte-
against British Kingdom. Thus the prerequisite
nance of the international peace and security
was created for Great Britain to apply the right
was substantially higher and it was not the fi-
of anticipatory self-defence. According to Web-
eld to be regulated on the regional level. Artic-
ster’s formulation for a state to exercise the
le 51 reinforces the right of self-defence if an
right of pre-emptive self-defence there should
armed attack occurs until the Security Council
be “imminent threat, most urgent and extreme
has taken necessary measures. At the same
necessity for such an action, justifying action
time, the Charter recognises the right of sel-
in self-defence, the counter actions should be
f-defence as an inherent right of a state and
necessary and proportional, there should be
maintains that is can be exercised both indi-
the other means of defence and the potential
vidually and collectively.17 Consequently for a
attack should be grave enough”.20 Thus, the
state to legally exercise the right of self-defen-
right of self-defence, recognised by Article 51
ce, it is necessary for the armed attack to be
of the UN Charter, when “armed attack” is evi-
apparent. What are the criteria for an action to
dent, is an exemption from Article 2 (4) of the
be qualified as an armed attack?
Charter,21 which prohibits the use of force and
as of today is the ius cogens in the internatio-
2.1.1. “Armed Attack”
nal law.22
The term “armed attack” is not mentioned In Nicaragua case the International Court
either in the Charter of the League of Nations of Justice stressed the gravity of attack which
or the Paris Pact.18 was necessary for the other party to exercise
• The armed attack means not only the at- the right of self-defence. The latter is suppo-
tack which occurs directly on the territory sed to prove that it is the potential victim of lar-
of the state, but also the actions against ge-scale armed attack. Furthermore, it is pos-
armed forces and embassies of the state sible for this “attack to be made not directly by
concerned; regular army of the state, but by armed bands,
• According to the right of self-defence the groups, irregulars or mercenaries, sent by the
force can be used only when the attack state or acting on their behalf”.23
implies the use or threatened use of force; The concept of “armed attack” implies the
when the assaulter has the desire and at existence of the intention of the assailants to
the same the possibility to attack; when attack. In Oil Platform case the International
the attack occurs from outside the territory Court of Justice referred to these issues, when
controlled by the state concerned; it discussed whether or not the United States
• If there is a threat it should be manifestly was in the position to regard the actions of Iran
real and imminent.19 as a threat aimed specifically at it or qualify
Actually such an armed attack is an inter- Iran’s “intention” to damage US vessels as re-
national intervention without consent or direct al threat in order to apply the right of self-de-
request of the other state. It is apparent that fence.24 It is also necessary for the attack to
270
S. SHAKARISHVILI, COUNTER – TERRORIST ACTIONS – EXERCISE OF RIGHT OF SELF-DEFENCE OR REPRISALS?
be made from outside the territory controlled terrorism or the manifestation of terrorism can
by the state for the latter to exercise the right allow a party to resort to a counter measure
of self-defence, envisaged by Article 51 of the and secondly, at what extent this force may
UN Charter. The Court of Justice stressed this be used if war laws and rules ever become
very aspect in its advisory opinion concerning proportionate and acceptable, when a state
the case: Legal Consequences of the Con- uses force against terrorism. The terrorist act
struction of a Wall in the Occupied Palestinian of 11 September added two more aspects to
Territory.25 this issue: How should terrorism be treated in
Is it possible for a terrorist act to be qua- this case: as an international crime or as the
lified as an armed attack and Article 51 to be basis for launching counter hostilities? If we
applied against it? – To answer this question it discuss these two issues consequentially, the
is necessary to give the overview of the new discussion will lead us to the following con-
concept – “war against terrorism”. clusion: the term “war against terrorism” does
not exclude the impossibility of qualification of
2.1.2. War against Terrorism – Modern Ter- terrorism as an international crime. Condem-
minological Proposal or the Concept with nation of an armed response to a terrorist act
Sound Legal Grounds?! does not depend on regarding this situation as
a manifestation of “war against terrorism”, but
The terrorist act of 11 September 2001
rather on the self-defence criteria or the coer-
became a turning point for the international
cive measures implemented under the man-
community in its relationship with terrorism.
date of the Security Council.
The number of the victims of this act, the gra-
Thus the further discussions should be
vity of the attack and importance of the fact
concentrated not on the assessment of cor-
itself became the grounds for the development
rectness of the term itself – “war against ter-
of the new approach to terrorism. The idea of
rorism”, but rather on the following issues: Is a
“war against terrorism” originated, which ne-
terrorist act an armed attack itself? Does this
ver existed in earlier researches or scientific
fact give rise to the right to use the counter for-
approaches. The same is proved by the state-
ce? Against whom this force can be used and
ment made by the President George Bush on
to what extent? The problematic nature of the
17 September.
legality of the use of force is further complica-
“Today, the world’s great powers find our-
ted by the fact, that force is used against ter-
selves on the same side – united by common
rorist acts after their occurrence, that is, such
dangers of terrorist violence and chaos. The
use is not immediate. The terrorists attack a
events of September 11, 2001, taught us that
state and it is apparent that the latter is unable
weak states, like Afghanistan, can pose as gre-
to immediately react. For example, the United
at a danger to our national interests as strong
State’s reacted to the terrorist act of 11 Sep-
states. We will defend the peace against the
tember only 1 month later.
threats from terrorists and tyrants…”26
The attack on the World Trade Centre and
The very first thing, which should be ta-
Pentagon on 11 September 2001 brought with
ken into account, when assessing the military
them the revolutionary changes in the self-de-
actions undertaken after the terrorist act of 11
fence doctrine of the international law. Before
September is the legal framework the United
this date there was quite a different attitude
States and its allies were guided by. They jus-
towards the use of force in counteraction to
tified their military actions in Afghanistan and
terrorist acts – only Israel, United States and
mainly against Al-Qaeda by the right of self-
South Africa spoke boldly about the necessity
defence and not by the mandate granted by
of exercising this right. In certain cases the
the Security Council in relation with collective
states would directly assume the responsibi-
security.27
lity for the terrorist acts committed by its citi-
Can we speak about the term “war against
zens.28 The United States carried out actions
terrorism” or is it the same as a war to combat
against Libya for terrorist attacks, funded by
drugs or war to overcome poverty? – The ma-
Libya, against the American nationals abroad
in point here is to discuss whether or not the
271
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
in 1986. In 1985 Israel attacked the Head offi- attack” in the aforementioned Resolution, but
ce of Palestine Liberation Organisation (PLO) rather appeals to the jeopardy to international
in Tunisia. This fact was unilaterally condem- peace and security and terrorist attack. Not-
ned by the Security Council and this case was hing in these Resolutions allows asserting that
not recognised as legal self-defence. However terrorist acts are necessarily linked with a spe-
the action of the United States turned out ac- cific country, what gives rise to the right of sel-
ceptable for the international community. Only f-defence of the basis of article 51.36 Of course
Russia questioned its reasonability. The ma- in practice “terrorist attack” is equalised to an
jority of the advanced countries demonstrated armed attack, however such cautionary attitu-
their sympathy towards such expansion of the de of the Security Council means that it has
self-defence doctrine.29 not directly granted the right of unconditional
Following 11 September, the United Sta- and unalienable right to use force to the Uni-
tes launched an intensive campaign against ted States and its allies.
terrorism starting from 7 October. It declared For the exercise of the right of self-defen-
Afghanistan and Iran as the bases of terro- ce it is necessary the attack to be active and
rism. It referred to the principle of self-defence real – that is there should be the necessity of
as the grounds for using force in Afghanistan. self-defence. At the same time the counter ac-
Even in its report submitted to the Security tion should be proportional to the attack. Ne-
Council the United State reiterated the same cessity and proportionality are the starting po-
stipulation. Many states upheld the US in its ints for the use of right of self-defence.
actions and participated in the military acti-
ons.30 By its Resolution No.1368 of 12 Sep- 2.2. The Necessity and Proportionality of
tember 2001 the Security Council recognised Using Force against Terrorists and
the principle of individual or collective sel- Individuals or States Supporting Them
f-defence as a result of such attacks,31 what The issue of necessity and proportiona-
was followed by the Resolution No.1373 of 28 lity of the use of force in response to already
September 2001 which concerned the mea- committed terrorist act is rather problema-
sures against the international terrorism, and tic; moreover when in most cases the states
which also contained reference to individual undertake such counter military actions for
or collective self-defence.32 This was the first self-defence in the future. Then the questi-
time when the Security Council recognised on arises – Who is supposed to assess and
the right to use force for self-defence purpo- determine the necessity and proportionality
ses against terrorist actions.33 In its Resoluti- of the use of force as a counter action? In
on No,1378 (14 November 2001) the Security this case the leading role is vested with the
Council condemned Taliban regime, as it allo- Security Council, which is authorised to su-
wed Al-Qaeda and other terrorist associations pervise the aforementioned actions. Traditi-
to use Afghanistan as the base and provided onally, the principle of self-defence, guaran-
safe asylum to Osama Bin-Laden, Al-Qaeda teed by Article 51 does not allow a state to
and related thereto persons.34 use force against terrorists on the territory
All this have broadened the concept of of the other state.37 Despite this the United
armed attack. Many states were against the States and its allies referred to the right of sel-
pre-emptive use of right of self-defence in the f-defence as legal grounds for counter actions
past; however after 11 September they chan- after the terrorist act of 11 September. One of
ged their approaches and expanded meaning the arguments, that this was the legal grounds
of the right of self-defence became acceptab- and already existed in practice, was the words
le. This does not mean that the pre-emptive of the Secretary of State of the United States,
use of force is largely allowed in general in the George Schultz, said in 1986:
case of any antipathy, it concerns only terro- “It is absurd to argue that international law
rism.35 However, it should be mentioned that prohibits us from capturing terrorists in inter-
the Security Council is rather cautious in this national waters and airspace; from attacking
respect, it does not mention the term “armed them on the soil or other nations, even for the
272
S. SHAKARISHVILI, COUNTER – TERRORIST ACTIONS – EXERCISE OF RIGHT OF SELF-DEFENCE OR REPRISALS?
purpose of rescuing hostages; or from using in the position to rely on Article 51 of the UN
force against states that support, train and Charter. Only the self-defence reprisals are
harbour terrorists or guerrillas”.38 allowed.44 However, the reprisals are unlawful
Despite the provisions of the UN Char- from the very outset, as they are undertaken
ter, the use of force has always been actively by one state against the other as revenge, in
debated. As already mentioned, the Security response of some illegal action committed by
Council recognised the right of individual and the latter in the past.45
collective self-defence commensurate with The right of self-defence, the use of which
the Charter in the very first of its Resolutions, is legitimate according to the international law,
adopted after 11 September 2001. should be separated from reprisals very cauti-
The action of the United States against de ously, as the latter implies the derogation from
facto Government of Afghanistan was partially a ban. In the case of exercise of the right of
a response to the armed attack and partially self-defence, it is not sufficient for the force to
the way of protection against terrorism in the be used after the armed attack, this should be
future.39 absolutely necessary for the repulse of an at-
When the actions are undertaken against tack.46 The use of force, when certain time has
individuals or states, which are responsible for elapsed after the attack and it is not the case
terrorist acts the necessity of the use of force of imminent threat, becomes more like repri-
in such a manner, of course, cannot be dispu- sals, than the rights guaranteed by the Char-
ted; however, it is difficult to establish the pro- ter. Consequently, according to this approach
portional of the measures undertaken in res- it is possible for the counter measures under-
ponse to terrorism and also whether the force taken by the United States after the terrorist
was used within the framework envisaged by act of 11 September to look more like reprisals
the international law.40 Due to this reason it is than self-defence. The account should as well
necessary to assess the necessity and pro- be taken of the fact, that Afghanistan was not
portionality of the use of force in response to directly responsible for the acts of terrorism,
terrorist acts on a case-by-case basis. In order committed by Al-Qaeda. This organisation is
to make recourse to the necessity of the acti- neither the official government of Afghanistan
on, there should be a link between the target nor the official persons acting on its behalf.
of defence and the threat.41 The time factor is Neither Taliban Regime was recognised as the
also closely related to the necessity, meaning legitimate government of Afghanistan either
that the counter action should be undertaken by the United States or the other counties of
within a short period after the attack.42 As re- the civilised world. Despite all these factors the
gards proportionality, this element is easier to common vision was developed after horrifying
assess and when discussing it the account act of terrorism that it was Afghanistan, who
should be taken of what has already happe- was responsible for the actions of Al-Qaeda.
ned and the danger of potential attack; at the This was conditioned by the assumption, that
same time, there should be the credible evi- according to the international law any state is
dence of imminent threat.43 required not to allow a terrorist organisation or
group to use its territory as its action area.47
Consequently, carrying out of pre-emptive me-
3. REPRISALS AND THE SCOPE OF THE
asures by the United States and its allies aga-
RIGHT OF SELF-DEFENCE
inst Al-Qaeda and Afghanistan was fully legal
It seems that the border line between from the point of view of exercise of the right
reprisals and the right of self-defence has al- of self-defence. However, it should as well be
most disappeared owing to recent practice. mentioned that all the actions, undertaken by
According to international law, armed repri- these troops do not fall within the context of
sals – when it is a response to an already self-defence. The use of force in Afghanistan
occurred unlawful act of international law, seemed necessary for that period as the threat
when the use of force is not authorised by was real for the United States.48. No one spe-
the Security Council or when the state is not aks about the imminence of threat for the other
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saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
state in the other circumstances. The main po- facts and it could not have been the legitimate
int is for a specific state to have a feeling for a target for the use of force on the basis of Artic-
specific moment that something is threatening le 51.54 Consequently had Russia managed to
it and this enables it to exercise the right of sel- gain the support at the international level like
f-defence when the Security Council does not the United States and rely on the right of self-
grant the respective mandate to it. defence, Georgia could have become the “ob-
In the case Democratic Republic of the ject of legitimate attack” like Afghanistan. Of
Congo vs. Uganda the International Court of course, in this case the burden of proof would
Justices stated, that although the attacks were have to be borne by Russia, it would have be-
committed by Anti-Uganda rebels from the ter- en bound to prove how real the links were bet-
ritory of the Republic of the Congo, these acti- ween Chechen bands and the Georgian Go-
ons cannot be attributed to the Republic of the vernment. However, it still is a fact and some
Congo itself and consequently, this fact does seven years later we faced this threat – which
not allow Uganda either to use force against was quite real this time.
persons who are not acting on behalf of the
state on the basis of the right of self-defence.49 4. CONCLUSION
As regards the comparison of these actions In the opinion of the judge Sofaer, the
with reprisals, it is possible for certain actions international law response to terrorism is
of the US to look like them, but the operation as follows: any effort of the states, to pre-
itself cannot be regarded as illegal as military vent and suppress terrorism results only in
reprisals are believed illegal, when they are the following painful situation: the law, which
used in response to a minor attack.50 Of co- describes terrorism, is not the result of long
urse, nobody disputes the violent and devas- disputes, but rather full of controversies.
tating nature of the act of terrorism of 11 Sep- The rules that are adopted for the regulation
tember, respectively the actions of the allies, of terrorism evidence the absence of an in-
overall are far from the reprisals and are the ternational agreement on adequate reaction
manifestation of self-defence. However, when to terrorist actions.55
the United States declared that they wanted Consequently, it is necessary for the inter-
to change the Taliban regime in Afghanistan national community to sum up its deliberations
and create the new Government,51 they alre- and come to the common conclusion: What is
ady did not have legal grounds to justify their the terrorism and what counter measures can
actions by self-defence – this already was the be undertaken against it? Where should the
intervention into domestic affairs of the other border line be drawn for the right of self-defen-
state. As always, the United Kingdom was mo- ce not to grow into reprisals?
re academic in its behaviour and stated that As already discussed, the practice of
her sole goal was the prosecution of Osama states evidences, that in contemporary Iraq,
Ben-Laden and the other members of the ter- which is full of terrorism threats, the interna-
rorist organisation.52 tional law allows the states to use force not
It will be interesting to discuss the same only on the basis of self-defence. However,
question in relation with our country. The case the necessary prerequisite for the use of for-
concerns the attempt of the Russian Federati- ce in this manner is the force to be necessary
on to use force against Chechens on the terri- and proportionate in order to create the legiti-
tory of Georgia in 2002 on the basis of the right mate grounds for self-defence. For the states,
of self-defence. Russia accused our country victimised by the acts of terrorism to be able
of harbouring Chechen terrorists and non-ap- to exercise this right against the other state,
plication of counter measures against them.53 when the state concerned is not responsible
Consequently, Georgia would have borne the for the terrorist actions, it is necessary for the
whole responsibility and if not certain support, attack to be serious and to be proved that the
we could have become the object of Russia’s state was not undertaking necessary measu-
attack. Then Georgia stated before the UN res for the prevention of the use of its territory
that Russian Federation was misrepresenting as the action area of the terrorists.
274
S. SHAKARISHVILI, COUNTER – TERRORIST ACTIONS – EXERCISE OF RIGHT OF SELF-DEFENCE OR REPRISALS?
In the opinion of one of the renowned spe- not to result in global crisis. The use of for-
cialists of the international law Hersch Lauter- ce against terrorism is not always the absolu-
pacht “The states will not be obliged to regard te necessity – the economic and some other
these dangerous actions as a crime until the sanctions should also be applied.
international community is unable to efficiently Ultimately, the international community
ensure the protection of human rights against should come to the conclusion: terrorism sho-
wilfulness and pressure of the governments.” uld be combated not through the use of force
Consequently, the states are required first of after the commitment of each of such acts or
all to observe the principle of supremacy of through military actions for the protection aga-
law and only then we can have real and fa- inst the acts of terrorism in future, but rather
ir consequences. Overexpansion of the right through researching and eradication of their
of self-defence should be condemned for this grounds.
1
Report of the Secretary-General’s High Level Panel on Threats, Challenges and
Change, A More Secure World: Our Shared Responsibility, 2004.
2
Е.Г. Ляхов, Проблемы Сотрудничества Государств в Борьбе с Международным
Терроризмом, Москва, Международные отношения, 1979, 12-13.
3
I. Mgbeoji, The Bearded Bandit, The Outlaw Cop, and the Naked Emperor: Towards
a North-South (De)Constructions of the Texts and Contexts of International Law’s
(Dis)Engagement with Terrorism, Osgoode Hall L.J., Vol.43, No.1&2, 2005, 109
4
Ch. Greenwood, War, Terrorism, And International Law, Freeman/Current Legal
problems, Vol. 56, 2003, 506-507.
5
A. Cassesse, International Law, Second Edition, Oxford University Press, 2005, 449.
6
Protocol Additional to the Geneva Conventions of 1949, Article 44, Paragraph 3.
7
Supra note 5, 449.
8
R. Clutterbuck, Terrorism in an Unstable World, Routledge, Tailor & Francis Group,
London and New York, 1994, 3.
9
A.C. Arend and R. J. Beck, International Law and the Use of Force, Beyond the
UN Charter Paradigm, Routledge, Tailor & Francis Group, London and New York,
2000, 139-140.
10
Supra note 5, 450
11
Antonio Cassese, Terrorism is Also Disrupting Some Crucial Legal Categories of
International Law, European Journal of International Law, Vol. 12, No.5, 2001, 994.
12
Charter of the United Nations, Article 1.1; Online: http://www.un.org/aboutun/
charter/chapter.html
13
A. Cassesse, The International Community’s “Legal” Response to Terrorism,
International & Comparative Law Quarterly, Vol. 38, 1989, 592-596.
14
Ibid, 596-600.
15
S.A. Alexandrov, Self-Defence against the Use of Force in International Law,
Kluwer Law International, 1996, 77.
16
Ibid, 81.
17
Supra Note 12, Article 51.
18
Supra Note 15, 95.
19
E. Wilmshurst, The Chatham House Principles of International Law on the Use of Force
in Self-Defence, International & Comparative Law Quarterly, Vol. 55, 2006, 965.
20
W.H. Taft IV, The Legal Basis For Pre-emption, Memorandum, November 18,
2002
21
Supra Note 12, Article 2(4).
22
Supra Note 11, 1000.
23
Case Concerning Military and Paramilitary Activities for and against Nicaragua,
(Nicaragua vs. United States of America), I.C.J. Reports, (Merits), 1986, para 191;
Online: http://www.icj-cij.org/docket/files/70/6503.pdf.
24
Case Concerning Oil Platforms (Islamic Republic of Iran vs. United States of
America), I.C.J. Reports, 2003, para 64; Online: http://www.icj-cij.org/docket/files/
90/9715.pdf.
275
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
25
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, (Advisory Opinion), I.C.J. Reports, 2004, para 139; Online: http://www.
icj-cij.org/docket/files/131/1671.pdf.
26
The National Security Strategy of the United States of America, September 2002,
The White House, Washington, a1.
27
Ch. Greenwood, International Law and the Pre-emptive Use of Force: Afghanistan,
Al-Qaeda, and Iraq, San-Diego International Law Journal, Vol. 4, No 7, 2003, 8.
28
D. Gartensteirn-Ross, Resolving Outstanding Judgment under the Terrorism
Exception to the Foreign Sovereign Immunities Act, New York Universuty Law
Review, Vol. 77, No 2, 2002, 496-497.
29
D.J. Harris, Cases And Materials on International Law, Sixth edition, Thomson
Sweet & Maxwell, 2004, 940-943.
30
T. Gazzini, The Changing Rules on the Use of Force in International Law, Melland
Schill Studies in International Law, 2004, 180-181.
31
S/RES/1368 (2001); Online: http://daccessdds.un.org/doc/UNDOC/GEN/N01/533/
82/PDF/N0153382.pdf?OpenElement.
32
S/RES/1368 (2001); Online: http://daccessdds.un.org/doc/UNDOC/GEN/N01/533/
82/PDF/N0153382.pdf?OpenElement.
33
Supra note 29, 943-945.
34
S/RES/1378 (2001); Online: http://daccessdds.un.org/doc/UNDOC/GEN/N01/638/
57/PDF/N0163857.pdf?OpenElement.
35
Supra Note 29, 946.
36
S.D. Murphy, Self-Defence and the Israeli Wall Advisory Opinion: An Ipse Dixit from
the ICJ, The American Journal of International Law, Vol. 99, No. 62, 2005, 67.
37
M. Byers, Preemptive Self-defense: Hegemony, Equality and Strategies of Legal
Change, The Journal of Political Philosophy, Vol. 11, No 2, 2003, 172.
38
Ibid, 177-178.
39
I. Brownlie, Principles of Public International Law, Sixth edition, Oxford University
Press, 2003, 713-714.
40
Christine Gray, International Law and the Use of Force, Oxford University Press,
2004, 166 -167.
41
H. Duffy, Responding to September 11: The Framework of International Law,
Lancaster House, London, 2001, 15. Online: www.interights.org.
42
Supra Note 9, 163.
43
Supra Note 41, 15
44
Y. Dinstein, War, Aggression and Self-Defense, Cambridge University Press,
Fourth Edition, 2005, 222.
45
M.N. Shaw, International Law, Cambridge University Press, Fifth edition, 2003,
1023.
46
Supra Note 27, 23.
47
United Nations General Assembly Resolution 3314, Definition of Aggression;
Online: http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/739/16/IMG/
NR073916.pdf?OpenElement.
48
Supra Note 27, 25.
49
Case Concerning Armed Activities on the Territory of the Congo, (Democratic
Republic of the Congo vs. Uganda), I.C.J. Reports, 2005, para 147; Online: http://
www.icj-cij.org/docket/files/116/10455.pdf.
50
Supra Note 11, 996.
51
Supra Note 40, 190.
52
Ibid, 190.
53
K.N. Trapp, Back to Basics: Necessity, Proportionality, And the Right of Self-
Defence against Non-State Terrorism actors, International & Comparative Law
Quarterly, Vol. 56, 2007, 153.
54
Ibid, 153.
55
Supra Note 13, 592.
276
Tamar daviTaia, Salva kvinixiZe, nugzar dundua
277
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
278
T. daviTaia, S. kvinixiZe, n. dundua, saerTaSoriso xelSekrulebebis droebiTi gamoyenebis praqtika...
279
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
280
T. daviTaia, S. kvinixiZe, n. dundua, saerTaSoriso xelSekrulebebis droebiTi gamoyenebis praqtika...
iqnes miRebuli, rom is mizani, rasac Si- vad savaldebulo xasiaTis xelSekrule-
dasaxelmwifoebrivi kanonmdeblobiT ga- ba, Tumca man didi gavlena moaxdina ev-
werili procedurebi emsaxureba, droe- ropaSi politikuri cxovrebis Semdgom
biTi gamoyenebis institutis amoqmede- ganviTarebaze.14
bisas garkveulwilad ugulebelyofili rogorc amerikis SeerTebuli State-
rCeba. amitomac aucilebelia, zustad bis saxelmwifo departamentma Tavis ga-
ganisazRvros droebiTi gamoyenebis ga- mocemaSi, romelic exeba arasavaldebu-
dawyvetilebis mimRebi organo da am ga- lo xasiaTis saerTaSoriso xelSekrule-
dawyvetilebis miRebis wesi, roca saWi- bebs, aRniSna, `saerTaSoriso praqtikaSi
roa, sakanonmdeblo organos CarTvis didi xania aRiarebulia, rom mTavrobebs
gaTvaliswinebiTac. SeuZliaT SeTanxmdnen erToblivi gan-
cxadebebis gakeTebaze an erToblivi po-
ziciebis dafiqsirebaze ama Tu im poli-
b) calmxrivi/mravalmxrivi
tikur movlenis mimarT da es poziciebi
deklaraciebis samarTlebrivi
da gancxadebebi daafiqsiron werilo-
statusi saerTaSoriso samarTalSi
biTi formiT. aseTi saxis dokumente-
saerTaSoriso samarTalSi saerTa- bi xSir SemTxvevaSi ganixileba rogorc
Soriso xelSekrulebebisa Tu saerTaSo- arasavaldebulo xasiaTis SeTanxmebebi,
riso CveulebiTi normebis gverdiT ara- jentlmenuri gancxadebebi, erToblivi
nakleb mniSvnelovani adgili uWiravs gancxadebebi an deklaraciebi~.15
saerTaSoriso samarTlis subieqtebis, dokumentis statusisaTvis gadamw-
saxelmwifoebisa Tu saerTaSoriso or- yveti mniSvneloba aqvs ara mis saxelwo-
ganizaciebis mier gakeTebul calmxriv debas, aramed mxareTa ganzraxvas, do-
Tu mravalmxriv deklaraciebs. aseTi kumentis gaformebisas arsebuli gare-
saxis saerTaSoriso samarTlebrivi in- moebebidan gamomdinare SeeqmnaT samar-
strumentebis ganxilvisas mniSvnelo- Tlebrivad savaldebulo urTierTobe-
vania aRiniSnos zemoaRniSnuli dekla- bi maT Soris.16
raciebis (gancxadebebisa Tu memoran- im SemTxvevaSi, roca SeTanxmebis
dumebis)13 samarTlebrivi statusi, maTi mxareebs ar aqvT ganzraxva, Seqmnan sa-
Sesasruleblad savaldebulo xasiaTi, marTlebrivi urTierTobebi, maT Soris,
anu warmoSobs Tu ara raime saerTaSori- aiRon konkretuli uflebebi da val-
so samarTlebriv valdebulebebs aRniS- debulebebi, aseTi SeTanxmeba ar iqneba
nuli dokumentebi masSi monawile mxare- xelSekruleba, Tumca misi politikuri
TaTvis. TavianTi formis mixedviT, isini mniSvneloba mainc gasaTvaliswinebelia.
ar warmoadgenen saerTaSoriso xelSek- gasaTvaliswinebelia, rom konkre-
rulebas da, Sesabamisad, maT mimarT ar tuli moTxovnebi saerTaSoriso xel-
gamoiyeneba saxelSekrulebo samarTlis Sekrulebis formasTan dakavSirebiT
Sesaxeb venis 1969 wlis konvencia. ar arsebobs.17 venis 1969 wlis konvencia
saxelmwifoebs Soris gaformebuli `saxelSekrulebo samarTlis Sesaxeb~
werilobiTi dokumenti SeiZleba yovel- ar iTvaliswinebs, Tu ra formiT unda
Tvis ar iyos samarTlebrivad mavalde- Camoyalibdes saerTaSoriso xelSekru-
bulebeli xelSekruleba. es SeiZleba leba, Tumca konvencia Seicavs debule-
iyos garkveuli politikuri xasiaTis bebs, xelSekrulebis dadebis, Sewyvetis,
matarebeli, deklaraciuli xasiaTis cvlilebebisa da damatebebis, misi Zala-
dokumenti da Seicavdes mxareTa poli- Si Sesvlis Sesaxeb. Tu gaviTvaliswinebT
tikuri xasiaTs gancxadebebs. Tumca, saxelmwifoebs Soris saerTaSoriso xel-
amave dros, aseTi saxis dokumentebma Sekrulebebis dadebis praqtikas, umetes
SesaZloa garkveuli gavlena moaxdinos SemTxvevaSi samarTlebrivad savalde-
saerTaSoriso politikaze. amis naTeli bulo xasiaTis saerTaSoriso xelSekru-
magaliTia helsinkis 1975 wlis daskvni- lebebi Seicavs debulebebs misi ZalaSi
Ti aqti, romelic ar iyo samarTlebri- Sesvlis Sesaxeb. deklaraciuli xasiaTis
281
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
282
T. daviTaia, S. kvinixiZe, n. dundua, saerTaSoriso xelSekrulebebis droebiTi gamoyenebis praqtika...
283
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
1
am statiaSi gamoTqmuli avtorTa mosazrebebi ar warmoadgens saqarT-
velos iusticiis saministros pozicias.
2
А. Н. Талалаев, Венская конвенция о праве международных договоров:
Комментарий, М., 1997, 62; Курс международного права, том 4, Отрасли
международного права, ред. И. И. Лукашук, M.,1990, 49.
3 Press release - 366 (2009), www.coe.int.
4
Draft Articles on the Law of Treaties with commentaries, 1966, United Nations
2005, Article 23(3), 211; http://untreaty.un.org/ilc/texts/instruments/english/
commentaries/1_1_1966.pdf.
5
А. Н. Талалаев, Венская конвенция о праве международных договоров:
Комментарий, М., 1997, 62.
6
dsT-is 1993 wlis 24 dekembris SeTanxmeba `sainvesticio saqmianobis
sferoSi TanamSromlobis Sesaxeb~; dsT-is 1994 wlis 9 dekembris Se-
Tanxmeba `samoqalaqo aviaciis sahaero xomaldebis frenis saZiebo-
samaSvelo uzrunvelyofis organizaciisa da ganxorcielebis sferoSi
TanamSromlobis Sesaxeb~; dsT-is 1995 wlis 10 Tebervlis SeTanxmeba
`kinematografiis sferoSi TanamSromlobis Sesaxeb~; dsT-is 1996
wlis 12 aprilis SeTanxmeba `saSiSi da sxva narCenebis transsasazRvro
gadazidvis kontrolis Sesaxeb~; dsT-is 1997 wlis 17 ianvris SeTanxmeba
`dsT-is wevr saxelmwifoebSi mcire mewarmeobis xelSewyobisa da gan-
viTarebis Sesaxeb~ da sxv. (informacia miRebulia damoukidebel saxe-
lmwifoTa Tanamegobrobis aRmasrulebeli komitetidan).
7
K. Korkelia, Treaty Law and Practice in Georgia: A Note, 25 Review of Central and
East European Law, N3, 1999, 449.
8
`normatiuli aqtebis Sesaxeb~ 1996 wlis 29 oqtombris saqarTvelos
kanoni, me-19 muxli, 1-li punqti.
9
`normatiuli aqtebis Sesaxeb~ 1996 wlis 29 oqtombris saqarTvelos
kanoni, 25-e muxli, 1-li punqti.
284
T. daviTaia, S. kvinixiZe, n. dundua, saerTaSoriso xelSekrulebebis droebiTi gamoyenebis praqtika...
10
1993 wlis 3 Tebervlis `saqarTvelos respublikis mTavrobasa da
azerbaijanis mTavrobas Soris sahaero mimosvlis Sesaxeb~ SeTanxmeba;
`saqarTvelos respublikis mTavrobasa da ukrainis mTavrobas Soris
saerTaSoriso sahaero mimosvlis Sesaxeb~ 1993 wlis 13 aprilis SeTanxmeba;
1993 wlis 25 ivnisis SeTanxmeba `saqarTvelos respublikis mTavrobasa
da germaniis federaciuli respublikis mTavrobas Soris kulturuli
TanamSromlobis Sesaxeb~; `saqarTvelos mTavrobasa da yazaxeTis mTa-
vrobas Soris samxedro sferoSi TanamSromlobis Sesaxeb~ da sxv.
11
dsT-is aRmasrulebeli komitetidan mopovebuli masalebi.
12
ix. Nuclear Tests Case (Australia v. France) 1974 ICJ, para. 46 http://www.icj-
cij.org/docket/files/58/6093.pdf; aseve dawvrilebiTi deklaraciebis Sesa-
xeb ixileT b)qveTavi: „calmxrivi/mravalmxrivi deklaraciebis samar-
Tlebrivi statusi saerTaSoriso samarTalSi“.
13
maT xSir SemTxvevaSi aseve terminiT „soft law“ moixsenieben. dawvrilebiT
amis Sesaxeb ix.: http://en.wikipedia.org/wiki/Soft_law.
14
M. N. Shaw, International law, 2003 Fifths edition, 111.
15
Memorandum of the Assistant Legal Adviser for Treaty Affairs, US State Depar-
tment, quoted in 88 American Journal of International Law, 1994, 515.
16
M. N. Shaw, International law, 2003 Fifths edition, 112.
17
Ibid, 812.
18
teqsti ix. http://www.un.org/en/documents/udhr/index.shtml.
19
teqsti ix.: www.unep.org/Documents.Multilingual/Default.asp?DocumentID=78
&ArticleID=1163.
20
ICJ case on Maritime delimitation and teritorial questions between Qatar and
Bahrain, 1991.
21
ICJ Reports, 1994, P 115, 121.
22
teqsti ix.: Treaty Reference Guide in http://untreaty.un.org/ola-internet/
Assistance/Guide.htm#declarations.
23
Ibid.
24
teqsti ix. www.unep.org/Documents.Multilingual/Default.asp?DocumentID=78
&ArticleID=1163.
25
saqarTvelosTan aRniSnuli saxis deklaraciis gaformeba molaparakebis
stadiaSia. deklaracia miznad isaxavs evropis kavSirsa da sxva qveynebs
Soris TanamSromlobas iseT mniSvnelovan sakiTxebSi, rogorebicaa:
legaluri migracia, aralegalur migraciasTan brZola, sazRvris
dacva, da sxva. dawvrilebiTi informaciisaTvis ix. http://europa.eu/rapid/
pressReleasesAction.do?reference=MEMO/07/197
26
ix. http://www.america.gov/st/texttrans-english/2009/January/20090109145313e
aifas0.2139093.html
27
ganmartebisaTvis ix. Guiding Principles applicable to unilateral declarations of
States capable of creating legal obligations - Text adopted by the International
Law Commission at its Fifty-eighth session, in 2006, and submitted to the General
Assembly as a part of the Commission’s report covering the work of that session
(A/61/10). The report, which also contains commentaries on the draft articles, will
appear in Yearbook of the International Law Commission, 2006, vol. II, Part Two.
dokumentSi mocemuli principebi mutatis mutandis SeiZleba gamoyenebul
iqnes mravalmxrivi deklaraciebis mimarTac.
28
magaliTad, 1948 wlis adamianis uflebaTa sayovelTao deklaracia,
romlis principebsac, didi xania, saerTaSoriso samarTlis imperatiuli
normebis statusi aqvs. ix. http://untreaty.un.org/ola-internet/Assistance/Guide.
htm#declarations.
29
ix. R.R. Churchill, A.V. Lowe, “The Law of the Sea”, third edition, Manchester
University Press, Manchester, UK, (1999), 7.
30
teqsti ix.: gazeTi `saqarTvelos respublika~, 63, 1994 wlis 19 aprili.
31
teqsti ix.: www.rrc.ge.
32
gadawyvetilebis qarTuli teqsti ix.: gazeTi `saqarTvelos respubli-
ka~, 11, 1996 wlis 20 ianvari.
33
teqsti ix.: gazeTi „saqarTvelos respublika“, 251, 20 oqtomberi, 2003.
34
ruseTis federaciis mier ganxorcielebuli qmedebebis Sesaxeb ix.
informacia: www.mfa.gov.ge , arqivi.
285
TAMAR DAVITAIA, SHALVA KVINIKHIDZE, NUGZAR DUNDUA
286
T. DAVITAIA, SH. KVINIKHIDZE, N. DUNDUA, THE PRACTICE OF PROVISIONAL APPLICATION OF INTERNATIONAL TREATIES ...
Although the text of Article 26 refers only The wording of this provision is rather am-
to the treaties in force, at the Vienna Confe- biguous. If literally followed – Georgia is not
rence while drafting article 26, representatives entitled to provisionally apply a multilateral
of many states declared that this principle, of international treaty before its entry into force
course, was relevant to the treaties applied even if all the necessary domestic procedures
provisionally.4 It is commonly acknowledged are completed and, at the same time, accor-
that the legal consequences of provisional ap- ding to the same provision – it is quite possible
plication of a treaty and its entry into force do for Georgia to provisionally apply an internati-
not differ from each other.5 onal treaty, which is already in force (say, as a
The Vienna convention came into force result of the deposition of the necessary amo-
for Georgia on 8 July 1995. The relevant do- unt of ratification letters), but Georgia is not
mestic legal provisions dealing with internatio- yet through all the necessary domestic proce-
nal treaty status on national level, in particular dure related thereto.
the Law of Georgia on International Treaties of This article of the Law does not clearly
Georgia, are not in line with the aforementio- demonstrate whether it fully excludes the pro-
ned clause of the Vienna Convention. visional application of a bilateral international
The Law of the Republic of Georgia of 11 treaty or simply, the rule, provided by it, ap-
February 1993 on the Negotiation, Ratificati- plies only to multilateral international treaties.
on, Fulfilment and Denunciation of Internati- According to the opinion, expressed in the
onal Treaties of the Republic of Georgia did scientific literature, the Law of Georgia on the
not regulate provisional application of an in- International Treaties of Georgia explicitly pro-
ternational treaty at all. In those times Georgia hibits the provisional application of treaties and
provisionally applied a number of multilateral even with respect to bilateral treaties Georgia
international treaties, which still have the sa- is bound to exclude any provision on the provi-
me status.6 sional application thereof from any treaty.7
The bilateral treaties of Georgia also provi- As already mentioned, the Vienna Con-
ded for provisional application thereof from the vention, which has been in force for Georgia
since 1995, provides for provisional applica-
date of signature pending their entry into force.
tion of international treaties. An international
Some of these treaties were provisionally ap-
treaty of Georgia prevails over a law of Geor-
plied until the completion of domestic procedu-
gia within the hierarchy of the normative acts
res by the Georgia. Such treaties are: the Tre-
of Georgia8 and when there is a conflict bet-
aty between the Government of the Republic
ween the norms, the normative act with higher
of Georgia and the Government of Azerbaijan
hierarchy shall be applicable.9 According to
on Air Communication (Article 15) dated 3 Feb-
Paragraph 2 of Article 6 of the Constitution of
ruary 1993; also the Treaty between the Go-
Georgia an international treaty or agreement
vernment of the Republic of Georgia and the
of Georgia shall prevail over domestic norma-
Government of Ukraine on Air Communication
tive acts, provided that it is not in conflict with
(Article 22) dated of 13 April 1993, etc.
the Constitution of Georgia, a constitutional
On 16 October 1997 the Law of Georgia
law or a constitutional agreement. Here the
on International Treaties of Georgia came into
question arises whether it is constitutional to
force; the authors included provision on provi-
apply provisionally international treaties that
sional application of international treaties, ho-
are subject to ratification in accordance with
wever, the drafting of the article is ambiguous,
Article 65 of the Constitution. If adherence to
namely:
international treaty requires discussion by the
“When an international treaty provi- Parliament due to its importance, launching of
des for the provisional application of the practical application of its provisions should be
whole treaty or a part thereof, or there is no less important. Subject to discussion is al-
an agreement between the parties, Ge- so which body of the state authority is entitled
orgia shall apply this treaty from the mo- to make a decision on provisional application
ment of its entry into force” (Article 20). of an international treaty. These issues require
287
saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
adequate consideration and should be regula- follows: The phrase “shall apply provisionally
ted by the legislation. from the date of signature” shall be deleted
As regards the practice of provisional ap- from the first paragraph of Article 5”. Similar
plication of international treaties in Georgia, it declarations are made by Ukraine and the Re-
is not so scarce and is not in line with the Artic- public of Armenia. Despite foregoing, this tre-
le 20 of the Law of Georgia on the Internatio- aty is provisionally applied in Georgia from the
nal Treaties of Georgia. date of its signature due to some ambiguous
Georgia has been and is still applying in- reasons.11
ternational treaties provisionally: both multi- As regards the consent on the provisional
lateral (the agreements negotiated within the application of a treaty in a manner other than
framework of the Commonwealth of Indepen- by the text of the treaty itself the best exam-
dent States) and bilateral.10 ple would be the Agreement of 25 June 1993
According to Article 25 of the Vienna Con- between the Government of the Republic of
vention the text of a treaty may itself provide Georgia and the Government of the Federal
for its provisional application or the parties Republic of Germany on Cultural Cooperation
may otherwise agree on its provisional ap- that is still provisionally applied. Georgia has
plication. The majority of the treaties provisi- completed all the necessary domestic proce-
onally applied by Georgia provides for their dures in relation with this document. The text
provisional application already in the texts of of the agreement did not provide for its provi-
the treaties. For example, in treaties adopted sional application, however the Georgian and
under the auspices of the CIS, the following the Germany parties later agreed on the pro-
wording is used: visional application thereof pending the com-
pletion of the domestic procedures (the Ger-
“This treaty shall be subject to pro-
man side has not yet completed the domestic
visional application from the date of its
procedures, necessary for the entry of the ag-
signature and shall come into force from
reement into force) through the exchange of
the date of deposition of the third notifi-
notes. Respectively, the agreement has been
cation by the parties to the depository on
provisionally applied since 22 December 1994
the completion of the domestic procedu-
pending its ratification by Germany.
res necessary for its entry into force”.
“Some other manner”, envisaged by the
The Agreement between the Government Vienna Convention may include, as already
of Georgia and the Government of Kazakhstan mentioned, the agreement through the ex-
on Cooperation in Military Field was signed change of notes, also exchange of letters, etc.
on 11 November 1997 and was applied pro- Here some questions may arise: what are the
visionally under Article 9 thereof (“This Agree- practical forms for the parties to agree on the
ment shall apply provisionally from the date of provisional application, should this form ne-
its signature and shall come in force from the cessarily be an international treaty and if this
date of the last notice by the parties on com- is not an international treaty but a political dec-
pletion of the necessary internal procedures”). laration or a memorandum of understanding
This Treaty was ratified by the Parliament of whether it will be legally binding. The opinion,
Georgia on 20 September 1998 by its Reso- expressed in the academic literature, is ac-
lution N1616. ceptable that based on the principle of good
The Agreement of 17 January of 1997 faith and with due consideration of the inten-
on the Promotion and Development of Small tions of the parties and other circumstances,
Entrepreneurship in the CIS Member States the instruments or agreements, which are not
is worth to be mentioned separately. Article 5 denominated as international treaties can still
of this Agreement provides for its provisional be legally binding. Not only bilateral, but even
application from the date of its signature. On a unilateral declaration is binding for the party,
behalf of Georgia this document was signed making such a declaration.12
by the State Minister of Georgia with a noti- As already mentioned the states resort to
ce. Subparagraph “b” of this Notice reads as provisional application when they are interes-
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T. DAVITAIA, SH. KVINIKHIDZE, N. DUNDUA, THE PRACTICE OF PROVISIONAL APPLICATION OF INTERNATIONAL TREATIES ...
ted in application of international treaties pro- or not the aforementioned documents create
visions as soon as possible, without waiting international legal obligations for the parties
for time-consuming procedures. The motiva- participating therein. According to their form
tion can be political as well. The aforementio- they are not the international treaties and res-
ned goes true with the Agreement of 31 March pectively the Vienna Convention of 1969 on
2006 Between Georgia and the Russian Fe- the Law of Treaties does not apply to them.
deration on the Timelines and Rules of Tem- A written document executed between the
porary Operation of the Russian Caucasus- states should not necessarily by a legally bin-
Based Military Bases and Other Military Units, ding treaty. This might be a kind of political,
located in Georgia. Article 22 of this agree- declarative document and contain the political
ment reads as follows: “This agreement shall declarations of the parties. However, at the sa-
provisionally apply from the date of its signatu- me, such documents may have a certain im-
re and shall come in force after the exchange pact on international policy. An apparent exam-
of notices on the completion of the necessary ple of the foregoing is the Final Helsinki Act of
domestic procedures”. 1975, which was not a legally binding treaty
As evidenced by practice, Georgia is pro- however it has greatly influenced the further
visionally applying the whole range of inter- development of the political life in Europe.14
national treaties, what is also conditioned by As stated by the US Department of Sta-
state interests as well. Provisional application te in its publication concerning international
allows for quick reaction to the urgency of in- agreements of a non-legally binding nature,
ternational regulation of certain issues. Based “it has long been recognised in international
on the foregoing it is necessary for Georgia to practice that governments may agree on jo-
provide for and respectively regulate provisi- int statements of policy or intention and record
onal application of treaties within its domestic their intended course of action on matters of
legislation – that will be in line with relevant mutual concern. These documents are some-
practice of the application of the international times referred to as non-binding agreements,
treaties in Georgia. . However, during the draf- gentlemen’s agreements, joint statements or
ting the provision with this effect consideration declarations”.15
should be given to the fact that the purpose The title of the document is not determi-
of the procedures, prescribed by the domes- native as to whether it establishes legal obli-
tic legislation, would be neglected to a certain gations, but rather the intent of the parties and
extent upon provisional application. Conse- the circumstances of its conclusion are impor-
quently, it is necessary to designate the state tant.16
authority that will make decision on provisional When the parties have no intention to es-
application and to develop decision-making tablish legal relations and to assume specific
procedures involving even the legislative body rights and obligations, such an agreement will
if necessary. not be a treaty, although the political importan-
ce of such agreement should be still accoun-
B) LEGAL STATUS OF UNILATERAL/
ted for.
MULTILATERAL DECLARATIONS
It should be borne in mind, that there are
IN INTERNATIONAL LAW
no specific requirements concerning the form
Unilateral and multilateral declarations of an international treaty.17 The Vienna Con-
made by the subjects on international law, vention does not provide for the specific form
states and international organisations play no of an international treaty, although the Con-
less important role in international law along vention contains provisions on the negotiati-
with international treaties and international on, termination, amendment, modification and
customary norms. When discussing this type coming into force of such a treaty. If we look
of international legal instruments, it is impor- through the practice of conclusion of internati-
tant to touch upon the legal status of the afore- onal treaties between states, in most case the
mentioned declarations (statements or memo- international treaties of legally binding nature
randa),13 their binding nature – that is, whether contain provisions on their entry into force. Ho-
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saerTaSoriso samarTlis Jurnali, #1, 2009 JOURNAL OF INTERNATIONAL LAW, N1, 2009
wever, there is no such a provision in the agre- also represent a basis between the parties, for
ements of a declarative nature (e.g. UN 1948 the strengthening of cooperation in the fields
Universal Declaration on Human Rights,18 provided for in the Charter, by conclusion of
1992 Rio Declaration on Environment and De- international treaties in future.
velopment19). It is also important to mention that not only
According to Article 102 of the UN Char- the multilateral declarations create legal obli-
ter every treaty and every international agree- gations but also the unilateral ones as well.27
ment concluded between the member States And again the main principle is the clearly ex-
of the United Nations shall be registered with pressed will of the parties to fulfil certain obli-
the Secretariat. However it should as well be gations. All these equally refers to the afore-
mentioned that the UN International Court of mentioned declarations and memoranda.
Justice mentioned in the case Qatar v. Bah- Despite the foregoing it is difficult to de-
rain,20 that non-registration of an international velop a uniform standard for defining the legal
agreement does not have any consequence status of declarations (in the context of their
for the actual validity of the agreement, which legally binding nature, creation of binging ob-
remains no less binding for the parties.21 ligations), however, the detailed analysis of
Declarations might be declarative, expres- each specific declaration is of particular impor-
sing the desire, aspiration and political messa- tance for the establishment that it creates an
ges of the parties, which do not generate any
international legal obligations for the parties.
legal obligation or of the nature, which estab-
As already mentioned in certain cases the
lish legal obligations and are legally binding
principles or intention of the parties enshrined
upon the parties. The legal definition of decla-
in a declaration do not intend to create any
rations is given in the definition of terms elabo-
binding obligation for the parties, however, the
rated by the UN.22 As already mentioned, one
principles may become legally binding through
of the most important elements defining the
transfer to the whelm of customary internatio-
legal nature of a declaration is the declaration
nal law.28 To this end they must meet two ma-
of an intention by the parties. Quite often the
in criteria: 1) General and consistent practice,
form of a declaration is deliberately chosen to
when the signatory countries apply and strictly
indicate that the parties do not intend to create
follow the principles of the declaration. In this
binding obligations but merely want to declare
case it is not necessary for this practice to be
certain aspirations.23 An apparent example of
the foregoing is the so-called 1992 Rio Dec- universally recognised by other non-signatory
laration.24 Noteworthy to mention is the Joint states to the declaration; 2) the second crite-
declaration on Mobility Partnership signed rion is so-called opinio juris, meaning that this
between the EU and third States (for example is the very practice, during which the countri-
Moldova and Cape Verde).25 The Mentioned es signatory to a declaration apply and strictly
Declaration is not considered as an Internatio- follow the principles of the declaration and the
nal Treaty by the Parties, though it represents fulfilment of which is conditioned by the neces-
a significant ground for the fulfilment of obliga- sity, is subject to regulation of the international
tions taken by the Parties. law and is in line with it.29
In spite of its declarative character, note- Taking into account the aforementioned
worthy to mention is the fact that the declara- criteria and significance of the issue, it will
tions often can also represent very important be important to analyse how the legal status
basis for the conclusion of international trea- of important declarations and similar state-
ties in future. The vivid example of the men- ments, made within the framework of the CIS,
tioned is the Charter on Strategic Partnership is defined. Special focus should be made on
signed between US and Georgia on 9 January the Moscow Declaration of 15 April 1994 on
2009.26 Regardless of the name of the docu- protection of Sovereignty, Territorial Integrity
ment, it has declarative character and is not and Inviolability of Borders of the CIS Mem-
an international treaty, though it creates im- ber-States with the Russian Federation being
portant obligations for the parties. The Charter amongst the signatories to it.
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T. DAVITAIA, SH. KVINIKHIDZE, N. DUNDUA, THE PRACTICE OF PROVISIONAL APPLICATION OF INTERNATIONAL TREATIES ...
1 The positions of the Authors of this article do not represent the official position of
the Ministry of Justice of Georgia.
2 А.Н. Талалаев, Венская конвенция о праве международных договоров: Ком-
ментарий, М., 1997, 62; Курс международного права, том 4, Отрасли между-
народного права, ред. И. И. Лукашук, M.,1990, 49.
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3
Press release - 366 (2009), www.coe.int.
4
Draft Articles on the Law of Treaties with commentaries, 1966, United Nations
2005, Article 23(3), 211; http://untreaty.un.org/ilc/texts/instruments/english/
commentaries/1_1_1966.pdf.
5
А.Н. Талалаев, Венская конвенция о праве международных договоров:
Комментарий, М., 1997, 62.
6
The CIS Agreement of 24 December of 1993 on the Cooperation in the Field of
Investment Activities; the CIS Agreement of 9 December of 1994 on the Cooperation
in the Field of Organisation and Implementation of Search and Rescue Provisions
for the Flights of the Civil Aviation Aircrafts; the CIS Agreement of 10 February
of 1995 on the Cooperation in the Field of Cinematography; the CIS Agreement
of 12 April of 1996 on the Control of Cross-border Conveyances of Dangerous
and Other Wastes; the CIS Agreement of 17 January of 1997 on the Promotion
and Development of Small Entrepreneurship in the CIS Member States, etc. (The
information was provided by the Executive Committee of the Commonwealth of
Independent States).
7
K. Korkelia, Treaty Law and Practice in Georgia: A Note, 25 Review of Central and
East European Law, N3, 1999, 449.
8
The Law of Georgia of 29 October 1995 on Normative Acts, Article 19, Para. 1.
9
The Law of Georgia of 29 October 1995 on Normative Acts, Article 21, Para. 1.
10
The Treaty of 3 February 1993 ,ade between the Government of the Republic of
Georgia and the Government of Azerbaijan on Air Communication; also the Treaty
of 13 April 1993 made between the Government of the Republic of Georgia and the
Government of Ukraine on Air Communication; The Agreement of 25 June 1993
made between the Government of the Republic of Georgia and the Government of
the Federal Republic of Germany on Cultural Cooperation; the Agreement Made
between the Government of Georgia and the Government of Kazakhstan on the
Cooperation in the Military Field, etc.
11
Data were received from the CIS Executive Committee.
12
See: Nuclear Tests Case (Australia v. France) 1974 ICJ, Para. 46 http://www.icj-
cij.org/docket/files/58/6093.pdf; also, for further details about the declarations,
see Subparagraph “b”: Legal Status of Unilateral/Multilateral Declarations in the
International Law.
13
hey are often called the “soft law” as well. For details see: http://en.wikipedia.org/
wiki/Soft_law.
14
M. N. Shaw, International law, 2003, Fifths edition, 111.
15
Memorandum of the Assistant Legal Adviser for Treaty Affairs, US State Depart-
ment, quoted in 88 American Journal of International Law, 1994, 515.
16
M. N. Shaw, International law, 2003 Fifths edition, 112.
17
Ibid, 812.
18
The text is available at: http://www.un.org/en/documents/udhr/index.shtml.
19
The text is available at: www.unep.org/Documents.Multilingual/Default.asp?Docu
mentID=78&ArticleID=1163.
20
ICJ case on maritime delimitation and territorial questions between Qatar and
Bahrain, 1991.
21
ICJ Reports, 1994, P 115, 121.
22
The text is available in Treaty Reference Guide at: http://untreaty.un.org/ola-
internet/Assistance/Guide.htm#declarations.
23
Ibid.
24
The text is available at: www.unep.org/Documents.Multilingual/Default.asp?Docu
mentID=78&ArticleID=1163.
25
The similar Declaration to be signed with Georgia is currently being negotiated.
The aim of the Declaration is the co-operation between the EU and other Countries
in the important field as is: legal migration, fight against illegal migration, border
management and etc. For the detailed information see http://europa.eu/rapid/
pressReleasesAction.do?reference=MEMO/07/197.
26
See http://www.america.gov/st/texttrans-english/2009/January/20090109145313
eaifas0.2139093.html.
292
T. DAVITAIA, SH. KVINIKHIDZE, N. DUNDUA, THE PRACTICE OF PROVISIONAL APPLICATION OF INTERNATIONAL TREATIES ...
27
For clarification see: Guiding Principles applicable to unilateral declarations of
States capable of creating legal obligations- Text adopted by the International Law
Commission at its Fifty-eighth session, in 2006, and submitted to the General
Assembly as a part of the Commission’s report covering the work of that session
(A/61/10). The report, which also contains commentaries on the draft articles, will
appear in Yearbook of the International Law Commission, 2006, vol. II, Part Two.
The principles given in the document may mutatis mutandis apply to multilateral
declarations as well.
28
For example, 1948 Universal Declaration of Human Rights, the principles of
which have already acquired the status of imperative norms of the international
law for a long time now, See: http://untreaty.un.org/ola-internet/Assistance/Guide.
htm#declarations.
29
R.R. Churchill, A.V. Lowe, “The Law of the Sea”, third edition, Manchester Uni-
versity Press, Manchester, UK, (1999), 7.
30
See the text of the Declaration in Official Gazette “Sakartvelos Respublika”
(Republic of Georgia), N63, 19 April 1994.
31
See the text at: www.rrc.ge.
32
For the Georgian text of the Resolution see: Official Gazette “Sakartvelos
Respublika” ( Republic of Georgia), N11, 20 January 1996.
33
For the text see: Official Gazette “Sakartvelos Respublika” (Republic of Georgia),
N251, 20 October 2004.
34
Information on actions undertaken by the Russia Federation is available at:
www.mfa.gov.ge, archive.
293
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Civilians are still suffering in Georgia and it is imperative for the world community to
promote a lasting solution
• Antonio Cassese
• guardian.co.uk,
• Monday September 01
• Article history
In Phaedrus’s well-known fable of the wolf and the lamb, the wolf could easily have eaten the lamb with-
out a word, but prefers to set out his “reasons”. First, he scolds the lamb for muddying his drinking water
(even though the wolf was upstream). Then he argues that last year the lamb had called him bad names
(but the lamb was only six months old). The wolf then snarls that if it was not the lamb, it was his father;
after that, he immediately moves into action.
The wolf’s “justifications” for his evil action were a luxury that he allowed himself. At present, the United
Nations Charter legally binds wolf-states – that is, the Great Powers – to offer justifications for their use
of armed violence. This is all the more necessary for the Security Council’s five permanent members
because, aside from condemnation by public opinion, no sanctions are available against them for any
serious breach of the charter.
Russia has set forth various reasons to justify its armed intervention in Georgia where the breakaway
regions of Abkhazia and South Ossetia are nonetheless under Georgian sovereignty. Russia argues that
its invasion was aimed at (1) stopping Georgia’s aggression against South Ossetians; (2) ending ethnic
cleansing, genocide, and war crimes committed by Georgia there; (3) protecting Russian nationals; and
(4) defending South Ossetians on the basis of the peace-keeping agreement signed by Boris Yeltsin and
Eduard Shevardnadze in 1992.
None of these legal grounds holds water. By sending its troops to South Ossetia, Georgia no doubt was
politically reckless, but it did not breach any international rule, however nominal its sovereignty may be.
Nor do genocide or ethnic cleansing seem to have occurred; if war crimes were perpetrated, they do not
justify a military invasion. Moreover, South Ossetians have Russian nationality only because Russia re-
cently bestowed it on them unilaterally. Finally, the 1992 agreement authorises only monitoring of internal
tensions, not massive use of military force.
Hence, as in Phaedrus’s fable, the Kremlin’s “justifications” are empty. Russia has breached Article 2 of
the UN Charter, which enjoins member states to “refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any state”.
There are several morals to the tale. First, when a lamb like Georgia gets smart and requests the protec-
tion of another wolf – in this case Nato – he must be careful, for every wolf guards his territory and is bent
on “protecting” all those lambs that fall under his “jurisdiction”.
Second, although Great Powers are de facto unbound by international rules on the use of force, they
abide by a sort of unwritten “agreement between scoundrels” to behave similarly. The west violated that
agreement in 1999 in Kosovo: Nato powers first attacked Kosovo and Belgrade, in breach of the UN
Charter (although they were morally justified to do so, because there was a need to stop the serious
atrocities underway); the west then promoted and blessed Kosovo’s secession. As a result of that perilous
precedent, Russia no longer feels bound by the unwritten agreement.
Finally, because it is mostly civilians that have suffered and are still suffering in Georgia, it is imperative for
the world community to promote a lasting solution, as is stipulated in the agreement promoted by French
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danarTi I , ANNEX I, ÏÐÈËÎÆÅÍÈÅ I
President Nicolas Sarkozy. But a lasting solution is nowhere in sight, because Russian forces, in blatant
breach of that agreement – and of international customary law – remain in many parts of Georgia beyond
Abkhazia and South Ossetia. These two regions have now proclaimed their independence, and Moscow
has given its blessing to a secession that is likely to be the stepping stone to incorporation by Russia.
Georgia has taken the path that lambs (small countries) normally choose when facing wolves (major
powers), brandishing law as a weapon. It has instituted legal proceedings against Russia before both the
International Court of Justice for alleged violations of the UN Convention on Racial Discrimination and
the European Court of Human Rights for alleged breaches of Articles 2 (right to life) and 3 (prohibiting
inhuman and degrading treatment) of the European Convention on Human Rights. Because Georgia is a
party to the Rome Statute of the International Criminal Court, it could have requested the ICC Prosecutor
to investigate Russia’s allegations of war crimes and genocide as well as its own allegations of Russian
crimes. Strangely, it has not done so, though, fortunately, the ICC Prosecutor has announced that he is
keeping the situation in Georgia “under analysis”.
Plainly, by itself the law may not be able to offer the right solution in such a complex and dangerous situ-
ation. Only politics and diplomacy can offer a lasting solution. Nevertheless, with both sides claiming the
mantle of international law, authoritative legal decisions about these issues might perhaps push the par-
ties to reach a lasting agreement.
Antonio Cassese, the first President of the International Criminal Tribunal for the Former Yugoslavia
(ICTY) and later the chairperson of the United Nations’ International Commission of Inquiry on Darfur,
teaches law at the University of Florence.
Source: http://www.guardian.co.uk/commentisfree/2008/sep/01/georgia.russia1?gusrc=rss&feed=worldnews
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(New York , August 29, 2008) – Recent satellite images released by the UN program UNOSAT confirm the
widespread torching of ethnic Georgian villages inside South Ossetia , Human Rights Watch said today.
Detailed analysis of the damage depicted in five ethnic Georgian villages shows the destruction of these
villages around the South Ossetian capital, Tskhinvali, was caused by intentional burning and not armed
combat.
“Human Rights Watch researchers personally witnessed Ossetian militias looting and burning down eth-
nic Georgian villages during their research in the area”, said Rachel Denber, deputy director of the Europe
and Central Asia division of Human Rights Watch. “These satellite images indicate just how widespread
the torching of these villages has been in the last two weeks”.
The new satellite images, taken by a commercial satellite on August 19, were analyzed by experts of the
Geneva-based UNOSAT program, which is part of the UN Institute for Training and Research and pro-
duces satellite-derived mapping in support of UN agencies and the international humanitarian community.
UNOSAT experts identified visible structures on the images that were likely to have been either destroyed
or severely damaged. The expert analysis indicates clear patterns of destruction that are consistent with
the evidence gathered by Human Rights Watch researchers working in the region.
Among the images publicly available from the UNOSAT website (http://unosat.web.cern.ch/unosat/) is
a map marking satellite-detected active fire locations in the ethnic Georgian villages around Tskhinvali.
The map shows active fires in the ethnic Georgian villages on August 10, 12, 13, 17, 19 and 22, well af-
ter active hostilities ended in the area on August 10. On these dates the lack of cloud cover allowed the
satellites to view those locations.
UNOSAT has also released a set of six high-resolution satellite images of the enclave of ethnic Georgian
villages stretching nine kilometers north from Tskhinvali, showing that the majority of them have been
destroyed.
The images strongly indicate that the majority of the destruction in five of the villages – Tamarasheni,
Kekhvi, Kvemo Achabeti (Nizhnie Achaveti in Russian), Zemo Achabeti (Verkhnie Achaveti in Russian),
and Kurta – was caused by intentional burning. The high-resolution images of these villages show no
impact craters from incoming shelling or rocket fire, or aerial bombardment. The exterior and interior ma-
sonry walls of most of the destroyed homes are still standing, but the wood-framed roofs are collapsed,
indicating that the buildings were burned. Only along the main road through Tamarasheni are a number
of homes visible with collapsed exterior walls, which may have been caused by tank fire. Ethnic Georgian
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danarTi II , ANNEX II, ÏÐÈËÎÆÅÍÈÅ II
witnesses from Tamarasheni told Human Rights Watch that they had witnessed Russian tanks systemati-
cally firing into the homes on August 10.
On August 12, Human Rights Watch researchers witnessed massive looting by Ossetian militias in
Tamarasheni, as well as in the neighboring ethnic Georgian villages. Human Rights Watch researchers
saw and photographed the still-smoldering and the recently torched houses in Tamarasheni. Witnesses
from local villagers in Tamarasheni, Kvemo Achabeti, and Kekhvi told Human Rights Watch that Ossetian
militias were systematically looting and burning ethnic Georgian homes. In the village of Kekhvi , many
homes had been set alight by Ossetian militias just before the arrival of Human Rights Watch research-
ers, who photographed the burning homes.
• Human Rights Watch photo essay, “Burning and Looting of Ethnic Georgian Villages in South
Ossetia”
Human Rights Watch researchers spoke with several members of the Ossetian militias who openly admit-
ted that the houses were being burned by their associates, explaining that the objective was to ensure
that ethnic Georgians would not have the houses to return to.
“All of this adds up to compelling evidence of war crimes and grave human rights abuses”. said Denber.
“This should persuade the Russian government it needs to prosecute those responsible for these
crimes”.
The damage shown in the ethnic Georgian villages is massive and concentrated. In Tamarasheni,
UNOSAT’s experts counted a total of 177 buildings destroyed or severely damaged, accounting for al-
most all of the buildings in the town. In Kvemo Achabeti, there are 87 destroyed and 28 severely damaged
buildings (115 total); in Zemo Achabeti, 56 destroyed and 21 severely damaged buildings (77 total); in
Kurta, 123 destroyed and 21 severely damaged buildings (144 total); in Kekhvi, 109 destroyed and 44
severely damaged buildings (153 total); in Kemerti, 58 destroyed and 20 severely damaged buildings (78
total); and in Dzartsemi, 29 destroyed and 10 severely damaged buildings (39 total).
“[The Ossetians] had cars outside and first looted everything they liked. Then they brought hay, put it in
the house and ignited it. The house was burned in front of my eyes
– Zhuzhuna Chulukhidze, 76, resident of Zemo Achabeti
“I was beaten and my house was looted by Ossetian militias three times during a single day. After they
took everything and there was nothing more to loot, they brought petrol, poured it everywhere in the rooms
and outside the house, and then put it on fire. They made me watch as my house was fully burned”.
– Ila Chulukhadze, 84, resident of Kvemo Achabeti
“They [Ossetians] came several times to my house and took everything they liked. Once there was noth-
ing else to take, they poured petrol and put it on fire. I watched how they burned my house as well as my
neighbors’ houses”.
– Rezo Babutsidze, 80, resident of Kvemo Achabeti
“Ossetians first took out everything they could from my house. Then they brought hay, put it in the house
and put it on fire. They did not allow us to take even our documents. I saw how my house was completely
burnt”.
– Tamar Khutsinashvili, 69, resident of Tamarasheni
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HTTP://EJ.RU/?A=NOTE&ID=8579
JULIA LATININA
On the website of the TV channel “Vesti” there is footage recorded through the mobile phone. This
footage is recorded by a Georgian soldier at the time when Georgians entered Tskhinvali. “Georgians
recorded their crimes on video” – says the title.
Based on the title, it is not difficult to assume that eventually they [Russians] are planning to show us
evidences on how Georgians were throwing children under tanks, executing old people and raping
women.
However, the footage shows Tskhinvali intact, where [Georgian] armored vehicles move without
major resistance. For the simplicity, let’s assume that off-screen continuous machine gun shots and
constant background conversation in Georgian jargon, is authentic, and not a product of creative
fabrication. This is not important. Important is something else.
In this footage the tanks move inside the undamaged town. Undamaged trees are standing along
undamaged fences. Beyond the fences undamaged little houses are visible. There are also undam-
aged multistory buildings – some of them with broken windows; from one of the windows smoke
comes out and one more smoke tail is visible far away; tanks are moving as a convoy; the vehicle,
on which the footage recorder is sitting, fires two or three times with single shots from the heavy
machine gun.
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“We drove trough the route of Georgian convoy, which destroyed everyone and everything on their
way. On these streets remained no intact houses and apartments. Even trees are burned” – informs
us the website of the TV channel “Vesti.”
This is exactly true. As we see on the footage, on the day when evil Georgian military moves inside
the town, it is intact and there is no resistance. After two days, when Georgian fascists are driven out
of the town, in which they [Georgians] did not meet any serious resistance, the town is lying in ruins
from aviation and artillery.
In the morning of 8th of August, Russian households heard the news that fascists Georgia traitor-
ously attacked tiny South Ossetia and that the town Tskhinvali is entirely razed to the ground with
the GRAD missiles...
...On 3 o’clock we heard that Russia decided to help South Ossetia and convoys of tanks are mov-
ing towards the Roki tunnel. After two hours, it was announced that Tskhinvali was liberated from
Georgian invaders. During next 2 days, the South Ossetian committee for information and printing
was notifying us that despite liberation of Tskhinvali, Georgians keep destroying the town with GRAD
missiles from the heights, and Georgian snipers are shooting people in the streets of the liberated
town...
...Later on, things became even worse. Articles by journalists that were in Tskhinvali on the night of
August 7 and the morning of August 8, started appearing in Russian printed publications. It turned
out that no Russian force broke into the town on August 8. Irina Kuksenkova from “MK” spent the
entire day on the base of peacekeepers...
TV Chanel “Vesti” announces about liberation of Tskhinvali while Chief of Staff of the 58th army is
sitting among corpses on the burned land.
“The battalion does not exist anymore, – he shouted, while sitting on the ground and hitting it with
his fist. -Why? Why?! Didn’t I say?”
Because, as we see, Georgians controlled the town on August 8 and 9. But who was firing upon
the town, in which Georgian tanks were located? What happened to a convoy, which according to
General Barankevich, broke through the town on August 8?
“I will hang Saakashvili by the balls” – Russia’s Prime-Minister Putin supposedly told to French
President Sarkozy on August 11, when Russian tanks were already in Gori. “The Americans hanged
Saddam Hussein”. – “But do you want to end like Bush?” – Sarkozy dismissed the matter with a joke.
But, sorry, for what reason should one hang Saakashvili by the balls? Because his army attacked
the column of Russian armored military equipment, appeared on the territory of South Ossetia from
somewhere, still before Georgians occupied Tskhinvali? Because our troops were unable to break
into Tskhinvali during two days, though they appeared on the territory of South Ossetia earlier than
Georgians? Because during these two days Tskhinvali was being wiped out and then telling on TV,
that only Georgians were doing this? Because 58th army’s chief of staff, thrown into the battle by
Kremlin’s order for Kokoyti’s regime without reconnaissance party and without cover, is sitting on the
burnt ground and knocking it by his fist after losing battalion?
Yes, however. In such situation one just wants to hang the enemy by the balls...
...And here is another lie, key issue in all this history. From the first days we heard from all central
broadcasters, that Georgians were carrying out genocide in Tskhinvali. That they were crushing chil-
dren by the tanks, killing pregnant women and purposely flooded the basements where were hiding
people.
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“Georgians and foreign mercenaries received order to burn everything on their way and to annihi-
late all the people of reproductive age … In one of the villages the Georgians drove together seven
young girls into the house, locked them inside and fired the house by tank volley” – writes Inal Pliev,
the head of the Information Department of the Ministry of Special Affairs.
“Our colleagues have seen decapitated family, burnt alive one-and-a-half-month-old babies… The
wounded persons – our peace-makers among them – were dealt the final blow. Some people were
burnt, even not killed beforehand” – writes the journalist of the military TV channel “Zvezda” Algis
Mikylskis in his blog at the height of the war...
...However, afterwards, not only Human Rights Watch, but also official South Ossetian “Group in
charge of documenting of evidences of the witnesses of hostilities” didn’t presented a single justifi-
cation of the above-listed horrors. Seven annihilated girls, decapitated family and alive burnt peace-
keepers had disappeared somewhere without a trace...
...What is stranger is that no single surname of the genocide victims was named in his interviews by
the cautious Head of Investigating Committee at the Public Prosecutor’s Office Alexandr Bastrykin.
In return he resurrected 1866 people at one stroke while announcing that the number of victims
among the civilian population totals 134 people (against 2000, announced by Kokoyti).
In contrast to the history about genocide carried out by Georgians, the ethnic cleansing, committed
by the militia – is indubitable thing. For its approval it is not even necessary to apply to multiple evi-
dences, gathered from Georgian refugees. It’s enough to cite Kokoyti’s words: “We have flattened
everything there”...
...And it is the most important moment. If Nazis tell you that Jews are drinking the blood of Christian
babies, while Jews tell you about Buchenwald, the truth is not somewhere in the middle. The truth is
that the history about the blood of Christian babies was used to commit Buchenwald.
One of the most surprising consequences of the Russian-Georgian war is Kremlin’s painful reaction
on any kind of critics. It is strange. In terms of outcomes in this war Mikheil Saakashvili sustained
total defeat. While Vladimir Putin gained absolute victory. Putin, undoubtedly, satisfied his personal
hate toward Saakashvili and improved his personal power. But instead, Kremlin’s reaction is like we
lost: but why? To understand this, let us see, what kind of war it was, how it was waged and for what
it was started?
The first thing that strikes the eye – is the number of troops engaged in the conflict, and geogra-
phy of the battlefronts. According to the most conservative estimates at least 25 thousand soldiers
(Georgians say 80 thousand) and 1200 units of armored military equipment were engaged in the
war; for their delivery it was needed repair of railways by special railroad troops in Abkhazia in May;
the attacks took place from two battlefronts – South Ossetia and Abkhazia. The Russian aircrafts
were taking off from military base located in Armenia; “Iskander”, which destroyed Baku-Supsa oil
pipeline, covered several hundred kilometers from Dagestan.
The second thing that strikes the eye – this was war of aviation and artillery. The essence of the
war was that Georgian shells and bombs were sweeping out our troops from Transkam (Trans-
Caucasian road line), while Russian shells and bombs were sweeping out Georgians on entire
space from Tskhinvali to Gori. Russia finally won because it has more shells and bombs. Georgians
claim that Russian aviation made over 200 operation flights. In the 4th unit of Air Army are unofficially
informing other numbers: 413 operation flights.
The third thing that strikes the eye is impressive military preparations. During several years Russia
was building powerful military bases around Georgia. We modernized and improved base in
Ochamichire, Abkhazia; Russian paratroopers showed up there as early as April. Another base – in
Java, South Ossetia – was very incautiously showed by TV channel “Zvezda” in morning news on
September 11. Anchorperson said that this was “stronghold” against Georgian aggression. As I will
show below, Russian armored military equipment and advanced units of 135th and 693rd regiments
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were already in Java at night of August 8 and considerable part of these troops was staffed by South
Ossetian natives.
The third base, which accounts about 10 thousand people, was built in Botlikh, Dagestan. If bases in
Java and Ochamchire could be considered as bases in case of Georgian aggression against South
Ossetia and Abkhazia, then Georgian aggression against Dagestan is hardly probable. During his
visit in Botlikh the President Putin personally gave order to repair and improve the highway which
leads to Georgia...
...Still, alas, I can qualify neither military bases, nor military equipment as the most essential and
alarming element of preparations for this war, but systematic propaganda, which aimed at portraying
Georgia as a US puppet, and Saakashvili as a reckless dictator.
It’s hard to estimate the depth of transformations in Georgia without seeing it with one’s own eyes. In
Russia Georgia was always considered as a symbol of corruption, laziness, glee, “coon” enterprise
directors and “thieves in law”. Now it has transformed into a fast growing economy with minimal tax
rates, minimal bureaucracy, police that don’t take bribes, and property, sold at fair auctions.
At the same time, Georgia had been portrayed in Russian public opinion in the same way like the
US in 70-ies. In the Soviet Union they claimed that people in the USA were lynching blacks and that
rotten regime was about to fall. The Russian intelligence services were focused on work against
Georgia, as they were working against USA in 70-ies...
...The preparations for this war – at the bases, in minds, in broadcasts – were conducted not only
during months, but during years. It’s ridiculous to say, that this war is for South Ossetia. The Germans
can call the World War II as war for rights of Germans in Sudeten as well...
...Before August of this year Tskhinvali was all surrounded by Georgian villages and 9 large villages
were situated on the Republic’s main highway – Trans-Caucasian road line – in the Didi Liakhvi
gorge. In order to understand the nature of this war and the character of the military objectives one
should clearly envisage the following: nine Georgian villages cut Tskhinvali from the rest of South
Ossetia, while, in turn, they were cut from the rest of Georgia themselves. At the same time all three
of them – Ossetian Java, Georgian Tamarasheni and Ossetian Tskhinvali are threaded, as beads on
a string, on the only road, through which tanks can reach Georgian plains – Transkam.
The mess in South Ossetia was no worse than in Chechnya in 1997. The field commanders were
doing everything they wanted and the number of victims during shoot-outs among them is compa-
rable to the number of victims of Russian-Georgian war. For example, in 1992 in village Prisi, while
revenging for their commander Gazzaev, the members of Russian special police squad shoot down
36 fighters of the field commander nicknamed “Parpat”...
...Moscow was transferring billions of rubles to the republic, however in Tskhinvali they were unable
even to repair a water supply system and they were telling to the population that Georgians had
drunk all the water. Fighting against “Georgian Fascism” became the basis of the new regime’s ideol-
ogy. Militia membership became the only job for adult unemployed population...
...The most vigorous people were leaving the region. Those who stayed were fully convinced by the
daily propaganda that their poverty and misery were a result of crafty designs of Saakashvili and
the West, exactly as supporters of Hamas and “Hezbollah” have no doubt about the fact that their
poverty and misery is a result of Israel’s aggression; similarly to the case of Israel, the Ministry of
Interior of Georgia was responding with fire to the shootings from Ossetia...
The most paradoxical thing was the following: while setting the goal to regain control over breakaway
enclaves, while building the most powerful army in the region, and pushing with this army the both
breakaway territories into Moscow’s arms, which, from its part, was strategically and deliberately
preparing for the war, Tbilisi was absolutely not preparing for war against Russia proper. “We were
not going to fight with Russia – told me the then Minister of Defense David Kezerashvili, – it is impos-
sible. Your aviation, in case of a need, can pelt us not only with bombs, but also with bowls”...
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Before the war, Georgian government had built restaurants, a hotel, and a movie theater in the Georgian
enclave between Java and Tskhinvali. “I am astonished by Georgian villages – writes before the con-
flict Dmitry Steshin from pro-government “Komsomolka”. The building of steel and tinted glass, a movie
theater with a dance hall, nicely-fashioned red-white gas station of a famous Russian company “Luk
Oil”, Drugstore-castle, a hotel, sports ground with a plastic cover. A swimming pool ...”
I would like to emphasize that a regime, which constructs “steal and tinted glass” facilities is obvi-
ously building its politics not on aggression, but instead on discrediting the neighboring tiny, quasi-
totalitarian territory. On the other hand, the regime, which does not build bomb shelters, water pipe-
lines, supermarkets, but talks about brutalities of “Georgian Fascists” all the time, is not only prepar-
ing for war, but it just has no other alternative. Sooner or later the regime had to answer the Ossetian
people, why Tskhinvali, for which Russia allocates millions, has no water, no jobs, no supermarkets,
but a kilometer away from the closed border buildings with “glass and steel” are being built...
...President Eduard Kokoiti announces that his peaceful people are about to be subjected to aggres-
sion. In these circumstances it would be logical to call in the UN, OSCE; it would be logical to dig
bomb shelters, install mine fields, build up water, food and medical supplies, bring in tanks, distribute
grenade launchers and anti-tank missiles to militias; in fact, Kokoiti’s all adult males are sitting in
fighting holes. If we believe Kokoiti’s claim that there are 70 000 people living in South Ossetia, then
this means that these militias outnumber the entire Georgian army! They are brave people, they are
inborn warriors and they are able to create “Grozni” for Georgians. But there are no minefields, no
bomb shelters and no water supplies in town.
Small, peaceful Ossetia is about to be attacked; however, Eduard Kokoiti refuses to hold talks and
does not prepare for defense. He announces that he is going to retaliate...
...Who was going to play a role “in the Ossetian army” which “will conduct a retaliatory strike on
Georgian cities?”
Maybe volunteers?
And really, in the same August, volunteers from all sides of Russia flow in to help Ossetians.
Apparently these volunteers are coming from Dagestan and Stavropol; Kazaks from Rostov and
Yrkutsk are also coming; President Kokoiti tells “Interfaks” about the arrival of 50 representatives of
“the federation of Afghan war veterans”.
It is strange, but it is fact: Russia, which has a panic fear of arming its own people, allows through
its border checkpoints armed and uncontrolled people, big part of which is poorly educated, undisci-
plined and more suited for robbery than fighting against a regular army.
As the experience shows, no plan is complete enough to resist a clash with reality. The behavior of
Georgians brings substantial corrections into it.
Up until this point Georgians when exposed to fire from South Ossetian side would respond back
by fire.
“Everybody knows each other in Ossetia, – Vano Merabishvili, the Minister of Internal Affairs an-
swered me firmly. As soon as we answered with fire, people would press on Kokoiti and he would
calm down”.
But when it becomes clear that retaliatory fire is escalating the conflict instead of pacifying it,
Georgians change the tactics. Georgian minister for reintegration, Temur Iakobashvili arrives in
Tskhilvali. Kokoiti refuses to meet with him and Iakobashvili meets the commander of the Russian
peacekeeping force, Marat Kulakhmetov. On August 7 Iakobashvili arrives again. He was supposed
to arrive there together with Russian Ambassador Popov, but Popov called Iakobashvili and said that
he had a flat tire. “I told him to use a spare one – says Iakobashvili, but he answered that the spare
was also flat”.
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Iakobashvili meets Kulakhmetov, which tells him that Kokoiti is getting out of control and that
Kulaxmetov himself cannot arrange the meeting with Kokoiti. It turns out that the only thing
Kulakhmetov can recommend is one-sided ceasefire. Meanwhile, Kulakhmetov asks: not to open
fire whatever happens.
Who goes to Tskhinvali with the intention to reconcile? – Georgians. Who begs OSCE to intervene?
Georgians. Who is the aggressor? Of course the Georgians – the entire 58th army knows this. They
were even given handouts about this during trainings.
For the entire duration of crossfire Kokoiti continually blames Saakashvili in it. Meanwhile, 3 ques-
tions arise: First, this is exactly Georgia that is conducting a big construction program for the villages
of Biger Liakhvi. They are building a modern movie theatre and a café. They are also opening a
hotel and a swimming pool. South Ossetian defectors and traitors are occupying the new five-story
residential buildings and get positions with 500 dollar remuneration; while, the money that Russia is
pouring into South Ossetia is vaporizing.
Regime, which builds facilities out of “steel and tinted glass” is not interested in war. Regime that
lost money on construction should be interested in war, which will write off the stolen things and will
transform the habit of the population to ask questions.
Second, why do Georgians really need crossfire? The main factor in victory is suddenness. Armies
and intelligence waste millions in order to trick the enemy and conceal their military plans. From the
point of view of the International Law, South Ossetia is a part of Georgia. Georgia does not need
preliminary escalation of conflict in order to bring troops into South Ossetia. On the contrary, Georgia
needed absolute confidentiality.
Another issue – is South Ossetia. It needs crossfire for the same reason as “Hezbollah” and
“Hamas”.
And third, the Roki tunnel became the main factor for Georgia’s defeat. From the very beginning it was
clear that the only way for Georgia to win was to close the Roki tunnel and Trans Caucasus Highway.
Georgia defeated South Ossetia easily. But, Georgia automatically lost to Russia. However, Georgia
has a very simple way to close the Roki tunnel. This way is absolutely irresistible. In case of using
this method, no tank and no armored vehicle will cross the tunnel. There is no weapon that could win
over this method. At the same time, this method does not cost a penny. It is called “winter”, which
closes everything: Trans Caucasus Highway, Upper Lars [Georgia-Russia check point outside south
Ossetia] and Dagestan mountain pass. It cuts off South Ossetia from Russia. At the same time, the
conditions for war in the valley below mountains are completely acceptable. In order to take South
Ossetia it was enough for Georgia to start the war in winter.
So, Georgia starts the crossfire, which put a cross on the entire construction project in Kurta [Georgian
enclave], which kills the suddenness, which leads to a war in the most undesired time for Georgia
and most desired time for Russia. This crazy man Saakashvili!
There are a lot of astonishing evidences. They are collected not by credible organizations like Human
Rights Watch; but they are collected by websites osgenocide.ru and osradio.ru under the rubric
“genocide” and the government of South Ossetia specially created these websites in order to docu-
ment genocide against Ossetian people. In fact, the government of South Ossetia was so sagacious
that it created these websites several years before the war. They did not dig bomb shelters, they did
not install mine fields and they did not supply their fighters with grenade launchers, but they created
websites for documenting genocide.
These evidences are a very interesting thing. Put together, they say more than scrappy tellings.
Some statistical regularities emerge in them, which help to understand what a few people, left in
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Tskhilvali were thinking and doing. What is in those evidences is very important, but what’s not there
has a greater importance.
First, all of the respondents hate Georgians. Their attitude towards Georgians is the same as the
attitude of Palestinians towards the Jews. They do not count them as humans, instead as bastards
and Fascists. 2 years before the war, Inal Pliev explained to people on osgenocide.ru why the fight
of Ossetian people is anti-fascist.
Emotions are derived from the fact that respondents hate Georgians and the facts are derived from
the fact that Georgian Tanks are going through a peace-keeping town and Georgian soldiers are
taking Zaira Tedeeva to her relatives.
“we are fighting not against you, but against Russian soldiers” – Georgians are shouting. “Georgians
were telling us: don’t worry about the houses – the government will rebuild everything” “I went closer
to the exit and I started listening. I experienced a nightmare while they were shouting in Georgian
“sakartvelos gaumarjos” [which in Georgian means “Viva Georgia” ] and in Russian “ we don’t touch
the peaceful population!”
Osgenocide.ru. describes them as“not humans,” “blood-thirsty killers”, and “Georgian gang forma-
tions”...
But here is one important circumstance: any timeline of Russian forces in Chechnya, first of all pro-
vides evidence of people being taken from their homes or taken out of cars and disappeared without
a sign. But in a mass of South Ossetian evidences I have not found one that talks about Georgians
taking a person and that person turning up dead.
The way of functioning for terrorist regimes was given a long time ago: armed people are firing upon
a neighboring territory, while using their own family as a hostage. If they don’t get an answer they
fire more intensely, if they still don’t get an answer they blame the enemy in genocide of peaceful
population. That’s what PLO, Hamas, and Hesbollah did. That’s what the regime in South Ossetia
is doing right now...
...The Kremlin and Kokoiti found each other. Kokoiti ready to protect Tskhinvali until the last drop of
blood of soldiers in the 58th army and the Kremlin, ready to protect Tskhinvali until the last drop of
blood of every Ossetian child. Is it worth showing a restraint if every killed person is be put on your
enemy’s scoreboard?
Twice, in the morning of August 8th and during the day of August 9th Russian army tries to break-
through the town. But the attempts are unsuccessful. First of all, because Kokoiti avoids arming his
population with serious weaponry. Ossetians withdrew from Khetagurovo and gave control of Zar
road. But they are still pushing Georgians out of town by aviation and artillery.
Georgians are being pushed out of various neighborhoods, they are regrouping, receiving backup
and entering again. They also clearly know that if they do not keep control of the town, every Russian
missile that fell on the ground will be counted as a Georgian one. They also know that if they keep
the town, every fallen Georgian Shell will be put on Putin’s and Kokoiti’s account...
At the time when Tskhinvali residents are sitting in basements, the first victory of the Russian army
in the last 60 years is being born. This is the victory, which puts to shame the military experts, who
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claim that Russian army needs reform; that Russian army needs modernization; that it is not ready
for the local (small-scale) conflicts.
All these experts look like idiots, who look at the steam train and discuss that it does not have hydro
accelerator of steering wheel and cruise control. Steam train is not a “Mercedes.” But why we need
“Mercedes”?
In the smoke and fire of Tskhinvali the brilliant military revelation has been born. If the army is not
able to fight in the local (small-scale) conflicts – then it should fight as it can, meaning globally. So,
the enemy should be bombed and shelled and let armored vehicles and tanks play the role of police
forces. If the army is not capable of local wars – it is not necessary to transform the army. The war
should be transformed. And what about the residents whom we are liberating? TV will take care of
them. TV will explain to them that all shells and bombs that fell on them exclusively belonged to the
enemy...
...We are told that the war happened because Russia could not leave its citizens alone. This is non-
sense. If Russia took the interests of its citizens into account, its 135th and 693rd regiments would
not ambush [Georgians] in Dzhava, but they would be deployed in [villages] Khetagurovo and Tbeti
at the border with Georgia. In that case Georgia would never attack; and if [Georgians] still attacked
they would confront the iron armament of the Russian defense...
...And eventually what is the problem? South Ossetia’s authorities blame Georgians in genocide;
in order to provide documentary evidence of Georgian brutality, they record the testimonies of wit-
nesses about how Georgians were shelling them during three days. But testimonies of witnesses
do not solve anything here: there is no witness who could observe the type of falling bombs, in par-
ticular if this witness is sitting in the basement. To prove this genocide it is enough to give access
to international experts so that they take photos of every shell and bomb that fell over the town and
labels on debris of these shells. And it will become clear where Georgian shells lie and where are
ones that were fired by anxious GRAD device operator from [Russian] 292nd artillery regiment of the
19th division.
On 10th of August Georgians step back. “Georgians run away leaving equipment!” “Georgians
shamefully run away from Russian army”, “Georgians were running leaving Hammers”, “Georgian
army runs to Tbilisi” – report headlines of newspapers and videos on you tube.
Don’t you get stressed with these headlines? I do. We are told “how they are running away!” But
where is “how we followed them”?
“Krasnaya Zvezda” [newspaper] published 3 sketches about the fights on 8th of August; it is better
not to talk about them at all, because the fact of this fight in the morning contradicts official Russian
version on Russian army’s stepping in the fighting on 3 o’clock in the afternoon. There are several
evidences on the crushing defeat of the [Russian General] Khrulyov’s convoy. There are some sto-
ries about fight in the village of Zemo-Nikozi, but this happened on 11th of August, when Russian
tanks had already passed Tskhinvali and were heading towards Gori.
But there is no story about how Russian convoy stepped in the fights in Tskhinvali and how it chased
and crushed Georgian troops; because Georgians were driven out from Tskhinvali not by tanks and
troops, but by aviation and artillery.
They [Georgians] stepped back because they could not get into Djava [town north to Tskhinvali].
They stepped back because Georgia had been attacked from the two fronts: artillery and aviation of
“Abkhaz guerillas” were bombing Kodori, and Russian warplanes were bombing Georgian villages
around Tskhinvali no matter troops were stationed in these villages or not.
Russia no longer fights with “South Ossetian fighters”. But Russia fights with the forces of its 58th
army. This is an ingenious war: in this war all the weaknesses of the Russian army are converted to
its advantage.
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Russian army can not strike precisely? No problem, it will bomb everything, and Saakashvili will have
to take into consideration that if he does not step back from Tskhinvali, Russians will bomb Tbilisi.
Russian army is hungry and soldiers do not have normal shoes? No problem, Saakashvili will have
to think about the fact that in some circumstances army without shoes is more dangerous than the
army with shoes.
Russian troops break into Gori. But more terrifying is that they are followed by “volunteers” “militia-
men” and “Kozaks;” by all of those who were sitting in the basements in Tskhinvali with rifles in their
hands; by all of those who were waiting in Djava during the entire period of war; by idealists who live
in Russia and dream to defend homeland; by scoundrels who were criminals in Ossetia for many
years; and by regular people who were indoctrinated for four years that Saakashvili is fishiest and
inhuman, and who were exposed to propaganda that Georgians were mashing women with tanks,
ripping up their abdomens and burning children with gas.
These people arrive in Georgian villages. And then it becomes clear that assault rifle is not only use-
less against tanks, but it is also the best weapon for marauder.
The worst is avoided. Georgian enclave in the Greater Liakhvi [gorge], which was exposed to fire in
the first place, in practical, is cut off Georgia proper, where you can only get through bypass road.
During entire period of military activities residents could not get out of these territories.
Our tanks break into the city through Trans Caucasus Highway, and one of the main roles in “cleans-
ing” this highway is played by the Battalion “Vostok,” [composed by ethnic Chechens] which was
headed by Sulim Yamadayev. At the same time Yamadayev’s people leave the post “Pouk,” where
they previously used to perform peacekeeping mission, deploy along the bypass road and let
Georgians out. Chechens tell Georgians that they will not forget how Georgians sheltered them
during the Chechnya war. They confiscate weapons from policemen, but to some poor people they
even give money for travel.
In general, Russian soldiers are not marauding. Their spoils are fully legitimate: they clean military
bases, break ATM in Gori and load military boats on tanks in Poti and take them away. In one of the
bases they break out toilet sit, and this action affects imagination of Georgians so much that they
bring several toilet sits to the Russian embassy. “If you came for this, please take it and leave us”.
Toilet sit relieves Georgians in their misfortune.
Another issue is Georgian villages and militias. They loot and burn empty villages. They raze entire
enclave of Greater Liakhvi to the ground...
...Here is a paradox. From the one side this war has been a result of systematic, large-scale and
preliminarily planned aggression of Russia. It is impossible to “randomly” surround Georgia with
military bases and “randomly” conduct military exercises in South Ossetia, after which military units
composed with ethnic Ossetians “randomly” appear in Dzhava at the time of attack...
...No defeated war is a result of the adversary’s advantage. All defeated wars are the result of mis-
takes of the defeated side.
He was not able to improve relations with unrecognized republics; to a large extant with his actions
he made Abkhazians, without their own will, become hostages of Kremlin; and South Ossetians –
hostages of the regime of Kokoiti [de-facto president]. Saakashvili was not planning the war with
Russia and he did not purchase reliable air defense systems – the main factor of Georgia’s defeat
in this war. And finally, he did not have an idea about the scale of deployment of Russian troops and
the nature of Russia’s plans.
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danarTi III, ANNEX III, ÏÐÈËÎÆÅÍÈÅ III
It is true that Saakashvili was fighting against evil will, and it is difficult to resist this evil will. However,
nobody said that tasks of state reformer should be easy.
Based on the goal, on which Putin was talking to Sarkozi – no. Saakashvili kept his balls in tact, be-
cause the war did not unfold according to the planned scenario. The root shortcoming of this war was
the fact that it was planned as special operation and not as military operation. Any military operation
is planned in strict confidentiality. But in this case, special operation allowed for the preparation of
the public opinion to the response action of “Ossetian Guerillas”.
There is no doubt that unexpected strike by Russian 58th army would let occupation of Tbilisi in one
day. But long-term artillery preparation shown through TV scared Saakashvili. When Saakashvili
was performing his strike, he already did not have strategic choice: begin or not begin the war. He
only had tactical choice: where this will begin? in the night on 7-8th of August in Tskhinvali, or in the
morning of 8th of August in Gori.
With shelling Tskhinvali, Saakashvili destroyed everything he was striving during the last several
years: possibility to integrate South Ossetia, peace between Georgians and Ossetians. He made a
mistake, which the regime similar to South Ossetian will not miss. However, with the peace between
Georgians and Ossetians, Saakashvili also destroyed the myth about the claim that this war was
fought by “South Ossetian Guerillas”.
“87 South Ossetian tanks” and “23 South Ossetian Grad devices” have disappeared. “We will strike
in response to Georgian towns” have also disappeared. Decorations were torn and through them
tanks of 58th army showed up. It was no longer possible to say that “Kokoiti is out of control”.
President Bush flared, President Sarkozi flue to Moscow and Russian tanks stopped in Gori.
History is repeated twice: first as a tragedy and then as a comedy. USSR was a big admirer of
defense wars and liberation movements. It was ready to protect peace and security up to the point
until the last Paraguayan socialist republic would enter the bosom of the Soviet States. USSR never
attacked – it only defended itself.
To win the war, which uses the methods of Stalin’s propaganda and the methods of Stalin’s way
of conducting the warfare, it is necessary to be an outlawed state: but so far Russia, unlike South
Ossetia, is not an outlawed state, and it will not be it until at least a cent remains on the accounts of
the company “Gunvor”.
In the end, the only one realistic winner of this war is South Ossetian regime. President Eduard
Kokoiti has solved all of his problems. Georgian enclaves, attracting attention with their prosper-
ity, are burned. Everything is destroyed, including Georgian hospital to which unconscious citizens
were flocking and 5 story buildings, in which South Ossetian defectors were living. We have leveled
everything there. All Tskhinvali residents know that Georgians were running in the streets and killing
children, while Georgian air planes were dropping bombs over the city. All Tskhinvali residents know
that they have been saved by the great leader Eduard Kokoiti. If anyone will doubt about this will
have problems.
It has never been in dispute whether our forces entered South Ossetia. I have always openly
acknowledged that I ordered military action in South Ossetia – as any responsible democratic
leader would have done, and as the Georgian Constitution required me to do in defense of
the country.
So the question is not whether Georgia ordered military action – including targeting of the artillery
sites that were shelling villages controlled by our government. We did.
The question is, rather: What democratic polity would have acted any differently while its
citizens were being slaughtered as its sovereign territory was being invaded? South Ossetia
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and Abkhazia are internationally recognized as part of Georgia, and even some areas within these
conflict zones were under Georgian government control before the Russian invasion.
We fought to repel a foreign invasion. Georgians never stepped beyond Georgian territory.
Russia sees Georgia as a test. If the international response is not firm, Moscow will make other
moves to redraw the region’s map by intimidation or force. Responding firmly to the Putin-
Medvedev government implies neither the isolation nor the abandonment of Russia.... But it
does require holding Russia to account.
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danarTi IV, ANNEX IV, ÏÐÈËÎÆÅÍÈÅ IV
December 2, 2008
Wall Street Journal
BY MIKHEIL SAAKASHVILI
Since Russia invaded Georgia last August, the international community seems stuck on one question
about how the war started: Did the Georgian military act irresponsibly to take control of Tskhinvali in
the South Ossetia region of Georgia?
This question has been pushed to the center in large degree by a fierce, multimillion-dollar Russian
PR campaign that hinges on leaked, very partial, and misleading reports from a military observer from
the Organization for Security and Cooperation in Europe (OSCE) that claimed Georgia responded
militarily in South Ossetia without sufficient provocation by Russia. Judging from recent media
coverage, this campaign has been successful.
Focusing on this question distracts from Russia’s intense, blatant policy of regime change that has
long aimed to destabilize Georgia through ethnic manipulation, and thus thwart our democracy while
stopping NATO’s expansion. Furthermore, it has never been in dispute whether our forces entered
South Ossetia. I have always openly acknowledged that I ordered military action in South Ossetia –
as any responsible democratic leader would have done, and as the Georgian Constitution required
me to do in defense of the country.
I made this decision after being confronted by two facts. First, Russia had massed hundreds of tanks
and thousands of soldiers on the border between Russian and Georgia in the area of South Ossetia.
We had firm intelligence that they were crossing into Georgia, a fact later confirmed by telephone
intercepts verified by the New York Times and others – and a fact never substantially denied by
Russia. (We had alerted the international community both about the military deployment and an
inflow of mercenaries early on Aug. 7.)
Second, for a week Russian forces and their proxies engaged in a series of deadly provocations,
shelling Georgian villages that were under my government’s control – with much of the artillery
located in Tskhinvali, often within sites controlled by Russian peacekeepers. Then, on Aug. 7, Russia
and its proxies killed several Georgian peacekeepers. Russian peacekeepers and OSCE observers
admitted that they were incapable of preventing the lethal attacks. In fact, the OSCE had proven
impotent in preventing the Russians from building two illegal military bases inside South Ossetia
during the preceding year.
So the question is not whether Georgia ordered military action – including targeting of the artillery
sites that were shelling villages controlled by our government. We did.
The question is, rather: What democratic polity would have acted any differently while its citizens
were being slaughtered as its sovereign territory was being invaded? South Ossetia and Abkhazia
are internationally recognized as part of Georgia, and even some areas within these conflict zones
were under Georgian government control before the Russian invasion. We fought to repel a foreign
invasion. Georgians never stepped beyond Georgian territory.
My government has urged the international community to open an independent, unbiased investigation
into the origins of the war. I first proposed this on Aug. 17, standing with German Chancellor Angela
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Merkel in Tbilisi. I offered to make every shred of evidence and every witness available. Russia has
yet to accede to such terms of inquiry.
Also, last Friday I stood for several hours before a commission established by the Georgian
Parliament, chaired by a leader of an opposition party, to investigate the conduct of the war. This is
the first time that any leader from this part of the world has been scrutinized live on national television
for his or her wartime decisions by a legislative investigation. I have also required every member of
my administration and military to make themselves available to the committee.
The real test of the legitimacy of Russia’s actions should be based not on whether Georgia’s
democratically elected leadership came to the defense of its own people on its own land, but on an
assessment of the following questions. Was it Georgia or Russia (and its proxies) that:
– Pursued the de facto annexation of the sovereign territory of a neighboring state?
– Illegally issued passports to residents of a neighboring democracy in order to create a pretext for
invasion (to “protect its citizens”)?
– Sent hundreds of tanks and thousands of soldiers across the internationally recognized borders
of a neighboring democracy?
– Instigated a series of deadly provocations and open attacks over the course of many months,
resulting in civilian casualties?
– Refused to engage in meaningful, bilateral dialogue on peace proposals?
– Constantly blocked all international peacekeeping efforts?
– Refused to attend urgent peace talks on South Ossetia organized by the European Union and
the OSCE in late July?
– When the crisis began to escalate, refused to have any meaningful contact (I tried to reach
President Dmitry Medvedev on both Aug. 6 and 7, but he refused my calls)?
– Tried to cover up a long-planned invasion by claiming, on Aug. 8, that Georgia had killed 1,400
civilians and engaged in ethnic cleansing – “facts” quickly disproved by international and Russian
human-rights groups?
– Refused to permit EU monitors unrestricted access to these conflict areas after the fighting
ended, while engaging in the brutal ethnic cleansing of Georgians?
These are the questions that need to be answered. The fact that none can be answered in Russia’s
favor underscores the grave risks of returning to business as usual. Russia sees Georgia as a test.
If the international response is not firm, Moscow will make other moves to redraw the region’s map
by intimidation or force.
Responding firmly to the Putin-Medvedev government implies neither the isolation nor the
abandonment of Russia; it can be achieved in tandem with continuing engagement of, and trade
with, Russia. But it does require holding Russia to account. Moscow must honor its sovereign
commitments and fully withdraw its troops to pre-August positions. It must allow unrestricted EU
monitoring, and accede to the international consensus that these territories are Georgia. Such steps
are not bellicose; they are simply the necessary course to contain an imperial regime.
We all hope that Russia soon decides to join the international community as a full, cooperative
partner. This would be the greatest contribution to Georgia’s stability. In the interim, we should make
sure that we do not sacrifice democracies like Georgia that are trying to make this critical part of the
world more stable, secure and free.
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natalia burduli