Professional Documents
Culture Documents
#1, 2008
saerTaSoriso
samarTlis
Jurnali
JOURNAL OF
INTERNATIONAL
LAW
Tbilisi, Tbilisi,
2008
`saerTaSoriso samarTalis Jurnali~ samecniero xasiaTis samenovani gamocemaa. masSi
warmodgenilia rogorc saerTaSoriso samarTlisa da saerTaSoriso urTierTobebis prob-
lemebi, aseve saqarTvelos kanonmdeblobis sakiTxebi.
Jurnali gamiznulia saerTaSoriso samarTlis specialistebisa da mkiTxvelTa farTo
wrisaTvis.
The Journal is Published with Financial Support of the OSCE Mission to Georgia.
The views expressed in the articles are those of the authors and do not necessarily reflect
the official position of the OSCE.
© Tsu
ISSN 1512-0368
dabeWdilia ..
saredaqcio kolegia
mTavari redaqtori
aleqsiZe levan
iv. javaxiSvilis sax. Tbilisis sax. universiteti
(Tsu)
aRmasrulebeli redaqtori
tuSuri rusudan
(Tsu)
saredaqcio kolegiis wevrebi:
butkeviCi volodimer mamedovi rusTam
adamianis uflebaTa evropuli baqos saxelmwifo universiteti
sasamarTlo (strasburgi, safrangeTi) (azerbaijani)
gabriCiZe gaga pataraia daviT
(Tsu) (Tsu)
demetraSvili avTandil qurdaZe irine
(Tsu) (Tsu)
kereseliZe daviT ugrexeliZe mindia
(Tsu) (strasburgi, safrangeTi)
korkelia konstantine hanikaineni laur
(Tsu) turkus universiteti (fineTi)
koCariani vigen
erevnis saxelmwifo universiteti
(somxeTi)
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
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
redkolegiisagan
***
4
FROM THE EDITORIAL BOARD
The Journal of International Law has been published by the Iv. Javakhishvili Tbilisi State University
Department of International Law and International Relations since 1996 with the support provided by the
UNCHR office in Georgia, the UNDP office in Georgia, Open Society Justice Initiative (OSJI) and the US
Embassy to Georgia.
The Editorial Board is honored to convey the appreciation for provision of such an indispensable sup-
port, once again, to the above mentioned organizations.
The Publication of the Journal was suspended in 2005. Aiming at promoting the development of the
science of International Law and strengthening the democratic principles in Georgia, the Chair of Interna-
tional Law of the Tbilisi State University Law Department renewed publication of the Journal.
The publication of the current volume has become possible with the support of OSCE Mission to
Georgia. The Editorial Board expresses the gratitude to the OSCE Mission for this generous contribution.
***
The Journal of International Law is the scientific periodical, published twice a year. The articles present-
ed cover issues of public and private international law, international relations, important aspects of the
Georgian legislation and Georgia’s international legal practice. The Journal is intended for experts of inter-
national law, as well as for broad circles of readers interested in above mentioned issues.
The fact that each article, as a rule, is published in Georgian and English and occasionally in Russian
language as well, provides the possibility for the foreigner readers interested in these topics to become
acquainted with the scientific concepts of authors, as well as certain Georgian legislative acts and interna-
tional treaties to which Georgia is a party.
The articles may be submitted in all the languages listed above. The Editorial Board provides corre-
sponding translation.
The Journal welcomes the contributions from scholars and practicing lawyers, as well as students
engaged in research of international law issues, and whose articles [Priority will be given to articles which
refer to the pressing problems of enhancement of the norms of the contemporary International Law and their
further development, particularly dealing with international protection mechanisms of Human Rights and
building civil society.
The views expressed by the authors in the Journal may not correspond to that of the Editorial Board.
5
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
Sinaarsi CONTENTS
6
irine qurdaZe
7
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
8
i. qurdaZe, saerTaSoriso da Sidasaxelmwifoebrivi samarTlis Tanafardobis Sesaxeb...
9
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
10
i. qurdaZe, saerTaSoriso da Sidasaxelmwifoebrivi samarTlis Tanafardobis Sesaxeb...
11
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
12
i. qurdaZe, saerTaSoriso da Sidasaxelmwifoebrivi samarTlis Tanafardobis Sesaxeb...
13
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
14
i. qurdaZe, saerTaSoriso da Sidasaxelmwifoebrivi samarTlis Tanafardobis Sesaxeb...
naSromis mesame gamocemaSi 33 ki av- Sromlobis saerTo neba ufro maRla dgas,
tori mniSvnelovnad `aaxlebs~ Tavis kon- vidre calkeuli saxelmwifos neba.
cefcias. mas aqcenti gadaaqvs ori siste- qarTul samecniero literaturaSi
mis `urTierTqmedebaze~. amjerad avto- saerTaSoriso samarTlisa da naciona-
ri mWidrod akavSirebs am fenomens glo- luri samarTlis Tanafardobis sakiTxi
balizaciis procesTan – `samarTlebrivi arasdros yofila kompleqsuri gamokv-
regulirebis globalizaciisadmi mi- levis, analizis sagani, magram zogierTi
drekileba sul ufro da ufro SesamCnevi aspeqtis ganxilvas miuZRvnes TavianTi
xdeba... saerTaSoriso da Sidasaxelmwi- naSromebi i. futkaraZem36, k. korkeliam37,
foebrivi samarTlis urTierTqmedebis p. cnobilaZem38; ufro farTo da detalu-
gaRrmavebas mivyavarT globaluri sama- ri analizi mocemulia l. aleqsiZis mono-
rTlebrivi sistemis anu supersistemis grafiaSi, romelic jer kidev 1982 wels
Seqmnamde,~34 magram, xazs usvams avtori, gamoica39, Tumca naSromSi ganxilulia
es ar niSnavs `msoflio saxelmwifos~, mxolod saerTaSoriso samarTlis prima-
`msoflio samarTlis~ Seqmnas. `erovnu- tis problema saerTaSorisosamarTleb-
li samarTlebrivi sistema metwilad mo- rivi urTierTobebis mimarT.
qmedebs rogorc globaluri samarTleb- rac Seexeba saerTaSoriso xelSekru-
rivi sistemis nawili da unda Seesabame- lebebis prioritets saqarTvelos Sida-
bodes mis principebs, Tumca es ar niSnavs saxelmwifoebriv samarTalTan mimarTe-
saerTaSoriso samarTlis srul domini- biT, aq yvela avtori aRiarebs xelSekru-
rebas Sidasaxelmwifoebriv samarTalze. lebaTa am upiratesobas, Tumca saqarT-
erovnuli samarTlebrivi sistemis daqve- velos konstituciis gamonaklisiT. anu
mdebareba xdeba mxolod iq, sadac es saWi- avtorebi sityvasityviT ganmartaven ko-
roa saerTaSoriso samarTlis normalu- nstituciis me-6 muxlis formulas da ga-
ri funqcionirebisaTvis~.35 moyofen saerTaSoriso xelSekrulebebs
amgvarad, i. lukaSuki, erTi mxriv, saerTaSoriso samarTlis sayovelTaod
uaryofs saerTaSoriso samarTlis sayo- aRiarebuli principebisa da normebisagan.
velTaod aRiarebuli principebisa da CvenTvis gansaxilveli Temis konte-
normebis (aRsaniSnavia, rom avtori Ziri- qstSi sainteresoa avtorTa Sexedule-
Tadad saerTaSoriso xelSekrulebebis bani, saxeldobr saerTaSoriso samarT-
prioritetze saubrobs) Sidasaxelmwi- lis, anu sayovelTaod aRiarebuli princ-
foebriv samarTlebriv normebze uSua- ipebisa da normebis, primatis Sesaxeb.
lo, saxelmwifos nebis gamomJRavnebis ga- rogorc ukve aRvniSneT, saerTaSori-
reSe, uzenaesobas (primats), magram, amave so samarTlis primatze, rogorc saerTa-
dros, iZulebulia, Zalze bundovnad, Soriso urTierTobebSi, aseve Sidasaxel-
aRiaros erovnuli samarTlis saerTa- mwifoebriv samarTalSi, SeiZleba msje-
Soriso samarTlisadmi daqvemdebarebis loba mxolod im SemTxvevaSi, Tu `prima-
aucilebloba, rasac globalizaciis tis~ cnebis sawyis elementad saxelmwi-
procesebis ganviTarebiT xsnis. aq isev da fos calkeuli nebelobis Tavisuflebis
isev Cven ver vxedavT mTavars – ra aiZu- SezRudva warmogvidgeba, miuxedavad im-
lebs saxelmwifos, imoqmedos, sayovel- isa, surs mas Tu ara, daemorCilos nor-
Taod aRiarebuli principebisa da norme- mas, romlis SeqmnaSi ar monawileobda, an
bis Sesabamisad, ara marto saerTaSoriso aqtiurad ewinaaRmdegeboda mis Camoyal-
asparezze, sadac saerTaSoriso samarT- ibebas, an saerTod ar monawileobda am
lis primati sayovelTaod aris aRiare- procesSi, radganac igi mis saerTaSori-
buli, aramed qveynis SigniTac, maSinac, so asparezze gaCenamde Seiqmna. amgvarad,
rodesac misi kanonebi, konstituciis Cveni azriT, primati yvela saxelmwifos
CaTvliT, upirispirdeba aRniSnul prin- mimarT obieqturad arsebuli saerTa-
cipebsa da normebs. primatis arsi xom Soriso marTlwesrigis yvelaze funda-
isaa, rom saerTaSoriso samarTlis nor- menturi da sasicocxlo normebisadmi
mebi ufro maRla dgas, miuxedavad imisa, upirobo damorCilebas gulisxmobs, rad-
aRiarebs saxelmwifo mas Tu ara, radga- gan es principebi da normebi saxelmwi-
nac saxelmwifoTa saerTaSoriso Tanam- foebis saerTo nebis gamomxatvelia.
15
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
16
i. qurdaZe, saerTaSoriso da Sidasaxelmwifoebrivi samarTlis Tanafardobis Sesaxeb...
17
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
rad, konstituciis 84-e muxli, romelic gram am debulebis ganmtkiceba moxda 1995
adgens, rom `mosamarTle Tavis saqmiano- wlis konstituciis me-6 da me-7 muxlebiT.
baSi... emorCileba... konstitucias da kan- amgvarad, Tanamedrove saerTaSori-
ons~, gagebul unda iqnes farTod. mosa- so samarTali aris zogaddemokratiuli
marTlem unda ixelmZRvanelos sayovel- Sinaarsis normaTa erToblioba, rac ka-
Taod aRiarebuli principebiTa da norme- cobriobis ganviTarebis obieqtur kanon-
biT da saerTo principebiT imdenad, ram- zomierebas asaxavs. Tu sawyis etapze sae-
denadac am ukanasknelebs upiratesi Zala rTaSoriso samarTali efemeruli siste-
aqvT saqarTvelos konstituciasa da ka- ma iyo, dRes igi Camoyalibda pozitiur
nonebTan mimarTebiT, xolo saerTaSo- samarTlebriv sistemad, romelic msof-
riso xelSekrulebebiT, Tu isini ar ewi- lio marTlwesrigis mSvidobiani gziT
naaRmdegebian saqarTvelos konstitu- ganviTarebis garantia. Tu warsulSi sa-
cias. anu saqarTvelos konstituciiT xelmwifos neba dominirebda saerTaSo-
gamocxadebuli saerTaSoriso samarT- riso urTierTobebis warmarTvaSi, dRes
lis sayovelTaod aRiarebuli principe- saxelmwifo iZulebulia, daemorCilos im
bis primati nacionalur samarTalTan marTlwesrigs, romelic saerTaSoriso
mimarTebiT saSualebas aZlevs samarTal- sazogadoebis mier saerTaSoriso samar-
gamoyenebiTi organoebis warmomadgen- TalSi aisaxa. SemTxveviTi ar aris, rom
lebs, ar iyvnen SezRuduli im sakanonm- axal politikur azrovnebaSi iseT cne-
deblo baziT, romelsac calmxrivad qm- bebTan erTad, rogorebicaa: zogadsaka-
nis saxelmwifo. Tavis mxriv, saxelmwifo cobrio faseulobebisa da interesebis
valdebulia, Seqmnas sakanonmdeblo baza prioriteti, msoflios erTianoba da
sayovelTaod aRiarebuli principebisa qveynebis urTierTdamokidebuleba, gan-
da normebis Sesabamisad. TavisTavad say- viTarebis gzebis arCevanis Tavisufle-
ovelTao principebisa da normebis upi- ba, saerTaSoriso urTierTobebSi sul
ratesoba nacionalur samarTalTan mima- ufro myarad mkvidrdeba saerTaSoriso
rTebiT ar qmnis rTul koliziur viTare- samarTlis primatis koncefcia.
bas (gansxvavebiT saxelSekrulebo sa- Tanamedrove saerTaSoriso samarTa-
marTlisagan), vinaidan sayovelTao prin- li sul ufro da ufro iWreba suverenu-
cipebi gamodis rogorc saxelmwifoSi li saxelmwifoebis saSinao saqmeebis ode-
arsebuli sazogadoebrivi urTierTobe- sRac gansakuTrebuli sferos kompeten-
bis regulatori, rogorc bazisi, romel- ciaSi. dRes saerTaSoriso samarTlis
zec unda iqnes agebuli samarTlebrivi primati, anu misi sayovelTaod aRiarebu-
sakanonmdeblo zednaSeni. sayovelTao li principebi da normebi ara marto saer-
principebisa da normebis samarTlebrivi TaSoriso samarTlis subieqtTa da, Zir-
sazRvrebi ar aris mkafiod SemosazRvru- iTadad, saxelmwifoTa Soris urTierTo-
li, rac unda iyos gaTvaliswinebuli ka- bis uzenaesi samarTlebrivi postulate-
nonmdeblis mier. praqtikaSi es niSnavs, bia, aramed saxelmwifoebis Sidasaxelm-
rom marTlmsajulebis organoebs Seu- wifoebriv samarTlebriv sistemaze maR-
ZliaT, gamoitanon gadawyvetileba naci- la dgeba. saerTaSoriso asparezze monaw-
onaluri kanonebis safuZvelze, magram es ile saxelmwifoebis saerTaSoriso da ko-
xels ar uSlis maT, ixelmZRvanelon Sesa- nstituciuri praqtika Zalze saintere-
bamisi saerTaSoriso normebiT, miT ume- so Teoriulad normatiul da sasamarT-
tes, rodesac es ukanasknelni afarToeben an lo praqtikas Seicavs.
akonkreteben im debulebas, romelic miuxedavad imisa, rom saxelmwifoebi
konstituciaSi an kanonSia mocemuli. Tavad irCeven, romeli koncefciis mimde-
saqarTvelo erT-erTi pirveli saxe- vari arian, Tanamedrove etapze monizm-
lmwifoa, romelmac aRmosavleT evro- dualizmis problema atarebs ufro Teo-
pasa da dsT-is sivrceSi jer kidev sabWo- riul xasiaTs, vinaidan saxelmwifo or-
Ta kavSiris arsebobis pirobebSi saxelm- ganoebma, rogorc administraciulma,
wifoebrivi damoukideblobis aRdgenis- aseve sasamarTlom, rogorc erT, aseve
Tanave damoukideblobis aqtiT (09.04.1991 w.) meore SemTxvevaSi, unda gadawyviton
aRiara saerTaSoriso samarTlis primati erTi da igive problemebi. Tanamedrove
saqarTvelos kanonmdeblobis mimarT, ma- etapze saerTaSoriso samarTali ara mx-
18
i. qurdaZe, saerTaSoriso da Sidasaxelmwifoebrivi samarTlis Tanafardobis Sesaxeb...
1
H. Triepel. VSlkerrecht und Landesrecht. Leipzig, 1899, s. 89; misive: "Droit
international et droit interne. Fondation Carnegie 1920, pp. 78-81; Les rapports
entre le droit inetrnational et le droit inetrnational – Recueil des Cours", the
Hague Academy of "International Law", 1923. t. 1, p. 83-103.
2
H. Triepel. Les rapports… p.89.
3
Àíöèëîòòè Ä., Êóðñ ìåæäóíàðîäíîãî ïðàâà., Ì., 1961, ñ. 35; Giorgio Gaja, Positivism
and Dualism in Dionisio Anzilotti – "European Journal of International Law", vol.3,
N1., 1992.
4
ix. U. Scheuner. L’ Influence du droit interne sur la formulation du droit international.
"Recueil des Cours de l’Academie de droit international". T 68 (1939-II) p. 116-
117; ix. G Dahm. Völkerrecht. Bd I Stutgart 1958, seite 56.
5
G. Fitzmaurice, The General Principles of International Law Considered from the
Standpoint of the Rule of Law – "Recueil des Cours", the Hague Academy of
International Law, T 92 1957, II, p. 68-94.
6
ix.Rouseau Ch. Principles de droit intenational public, Paris, 1958, I, p. 369-550.
7
Lasson A. Prinzip und Zukunft des Völkerrecht. Berlin, 1871, gv. 402; Zorn A.
Gründzuge des Völkerrechts. Leipzig 1903 I Bid. seite 8-9.
8
ix. R. Phillimore. Commentaries upon International Law, VI, London, 1878, $
XXII; T. Twiss. The Law of Nations, Oxford, 1861; $2; P. Fauchill. Traité de droit
international public t. 1 partie 1, Paris, 1992, p. 6-9; Oppenheim. L, International
Law, London, 1920; Ôðàíö Ëèñò, Ìåæäóíàðîäíîå ïðàâî â ñèñòåìàòè÷åñêîì
èçëîæåíèè, Ïåðåâîä Â.Ý. Ãðàáàðÿ,1912. Þðüåâ, Ðèâüå À., Ó÷åáíèê ìåæäóíàðîäíîãî
ïðàâà, Ì., 1893, $47; Ãåôòåð À., Åâðîïåéñêîå ìåæäóíàðîäíîå ïðàâî, ÑÏÁ, 1880.
9
H. Kelsen. General Theory of Law and State. English trans. Wedberg Cambridge
Mass. 1949, p. 81.
10
See: H. Kelsen. Principles of International Law, N.Y. 1966, p. 41.
11
G Scelle. Cours de droit international public. Paris, 1948, p. 17.
12
P. Guggenheim. Traité de droit international public. Genéve, 1953, v I, p. 27.
13
Ôåðäðîññ À., Ìåæäóíàðîäíîå ïðàâî. Ì., 1959, p. 50.
14
Shaw N.M. International Law.(Fifth ed). Cambridge Univ. Press. 2004, p. 120-173;
15
M. Shaw. op. cit. p. 123.
16
See: Brownlie Ian. Principles of Public International Law. Oxford University press, 2003
Chap.II The Relation of Municipal and International Law, pp. .31-52.
17
Ibid. p. 52
18
Yean Combacau, Serge Sur. Droit International Public, 5 th.ed, Montchrestien, 2001, p.
181: P. Daillier et A Pellet. Droit international public. L.G.D.J. 2002, p. 95-97; Dominique
Carreau. Droit International.7 th ed. Paris, Pedone, 2001, p. 43-70; Pierre-Moris Dupuy.
Droit international public. Dalloz, 2000, p. 387-389; Michel Virally. Sur un point aux
Anes;les rapports entre droit internetional et droit interne – Me'lange Rolin. Paris. Pedone
1964, p. 497.
19
D. Carreau, op cit., p. 45.
20
D. Carraou, op cit., p. 47; See also: A. B.eramdone. La hierarchie des droits. Paris, 2002, p.
31-32.
21
P-M. Dupuy, op cit., p. 389.
22
P. Daillier et A. Pellet, op cit., p. 97.
23
Áðàâî Ë.Ô., Ïðèìåíåíèå ìåæäóíàðîäíîãî ïðàâà â ïðàâîïîðÿäêå åâðîïåéñêèõ
ñòðàí. "Ðîññèéñêèé" Åæåãîäíèê ìåæäóíàðîäíîãî ïðàâà, Ñàíêò Ïåòåðáóðã,
1995, ñ. 131.
24
Luzius Wildhaber. Wechselspiel zwiscvhen Innen und Aussen: Schweizer Landesrecht,
Rechtsvergleichung, Volkerrecht/ – basel;Frankfurt am Main:Helbing und Lichtenhahn, 1996,
pp. 52 (Reception of International Law into Domestic Law: Comparative European Ap-
proaches).
19
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
25
A. Cassese, International Law, Oxford University Pres, 2005, p.236-237.
26
An interesting analysis see: Tarja Längström. Transpformation in Russia and International
Law, Martinus Nijhoff Publishers, Leiden / Boston, 2003.
27
Ìþëåðñîí Ð.À. Ñîîòíîøåíèå ìåæäóíàðîäíîãî è íàöèîíàëüíîãî ïðàâà. "Ìåæä.
îòíîø". Ì., 1982, ñòð. 10.
28
Ãàâåðäîâñêèé À.Ñ. Èìïëåìåíòàöèÿ íîðì ìåæäóíàðîäíîãî ïðàâà, Êèåâ.1980,
ñòð. 63.
29
Ëåâèí Ä.Á. Îñíîâíûå ïðîáëåìû ìåæäóíàðîäíîãî ïðàâà. Ì.1982, ñòð. 121,
209.
30
Áóòêåâè÷ Â.Ã. Ñîîòíîøåíèå âíóòðèãîñóäàðñòâåííîãî è ìåæäóíàðîäíîãî
ïðàâà. Êèåâ. 1981, ñòð. 53.
31
Ëåâèí Ä.Á. Îñíîâíûå ïðîáëåìû ìåæäóíàðîäíîãî ïðàâà. Ì., 1982 èìî. ñòð. 124.
32
×åðíè÷åíêî Ñ.Â. Òåîðèÿ ìåæäóíàðîäíîãî ïðàâà. Ì., ò. 1, 1999, gv 147.
33
Ëóêàøóê È.È Ìåæäóíàðîäíîå ïðàâî (îáùàÿ ÷àñòü). Ì., 1996, ñòð. 221-222, 224.
34
Ëóêàøóê È. Ìåæäóíàðîäíîå Ïðàâî, îáùàÿ ÷àñòü, Ì. 2005, ñò 255-295.
35
Ibid., pp. 293-294.
36
i. futkaraZe, saerTaSoriso samarTlis sayovelTaod aRiarebuli
normebi da moqalaqeTa politikur-ekonomikuri da socialur-
kulturuli uflebebisa da Tavisuflebebis dacva saqarTvelos
sakonstitucio sasamarTloSi, `adamiani da konstitucia~, 3, 1998.
37
k. korkelia, saerTaSoriso CveulebiTi samarTali saqarTvelos
samarTlebriv sistemaSi, `saqarTvelo da saerTaSoriso samarTali~, Tb.,
2001, gv. 62-80.
38
p. cnobilaZe, erovnuli kanonmdeblobisa da saerTaSoriso samarTlis
urTierTqmedeba, iqve, gv. 48-61.
39
Àëåêñèäçå Ë., Íåêîòîðûå âîïðîñû òåîðèè ìåæäóíàðîäíîãî ïðàâà-
èìïåðàòèâíûå íîðìû (jus cogens), Òá., 1982.
40
iakob futkaraZe, cit. naSromi, gv. 27.
41
iqve, gv. 28.
42
k. korkelia, saerTaSoriso CveulebiTi samarTali... gv. 79.
43
iqve, gv. 66-67.
44
iqve, gv. 69.
45
iqve, gv. 70.
20
IRINE KURDADZE
The issue of the correlation of between national courts. The case law, on its turn, in
International and domestic law is one of the the theory of international law causes the prob-
most complex problems of current importance lem of correlation of international and nation-
in the doctrin of international law. al law.
The growing integration processes in the In the past the international law research-
contemporary world brought about the rap- ers didnot conside the problem of correlation
prochement of international and national law separately, as the latter did not have a signif-
in the last decade. This is indicated also by icant practical importance.
the fact that international law does not only Starting from the 19th century the two di-
represent the tool for international relations rections have been formed in international law
of states (as this used to be in the past), but in relation with the issue of correlation: the
has also turned into the domestic regulation dualistic and monistic. The concept of the du-
mechanism. The universalisation of econom- alistic theory was based on the following the-
ic, transport and information links, the inten- sis – international and domestic law are two
sification of the global ecological problems, separate legal systems and therefore, prima-
mass character of migration, and what is most cy of any of those over the other is excluded.
important, the necessity of keeping under the The dualistic theory as a result of influ-
control the matters related to the protection ence of the positivism emergea, which domi-
of peace and security, the production of the nated in XIX-XX centuries. As it is well known,
mass destruction weapons, the fight against the positivism school rejected the significance
international terrorism, etc. created a strong of the natural law and considered the law as
objective basis for strengthening this trend. the rule of behavior established and provided
The new world order requires on the one hand for by state power. Only those rules of behav-
bringing national decisions closer and on the ior formulated by the mutual explicit (treaty)
other hand making common decisions by the or implicit (custom) agreements of states were
international community. recognized to be rules of international law. The
A number of challenging questions positivism was trying to strengthen the prac-
emerge, which call for political and legal solu- tice of the bourgeois states, protect their sov-
tion: how shall the state sovereign rights be ereignty and independence. At that stage the
correlated with the authority of international international law encompassed relatively lim-
organizations? Is it acceptable to limit the first? ited number of domestic issues of states. The
How shall the interests of parties be protect- international and national law contradicted
ed on an equal footing? To what extent can each other mainly in diplomatic and sale is-
international norms and mechanisms serving sues, the rights of foreigners, the regime of
this purpose be used? sailing. The trends of free trade were percep-
At the current stage, when the internation- tible in international politics. Later on the
al law is attributed such a great importance, boosting of international bonds resulted in the
in the case of clash of the norms of interna- widening of the circle of matters to be regulat-
tional and domestic law the question, as to ed by international and national law.
which shall be given a priority, is increasingly The German lawyer Triepel in his work
becoming an issue of deliberation of the iner- “International Law and National Law”, pub-
21
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
lished in 1899, as well as in the subsequent the controversies should have been solved
publications,1 was discussing international and only through the diplomatic negotiations or
national law, as the two different legal orders, other mechanisms of settlement of internation-
which possess different object, subject and al disputes or putting in operation international
sources of regulation.2 accountability mechanisms. This position is
At the same time Triepel recognized that shared by the German lawyers U. Scheuner
there are some questions, regulation of which and G. Dahm, who promulgate the so called
belongs to the international and national law. “balanced dualism“ theory.4
Sometimes reflection of the international le- Subsequently the coordination theory pro-
gal norms in the national law and vice versa liferated, which became known as the “
becomes indispensable. According to him, this Fitzmaurice compromise“ in 1950ies. Accord-
refers not to reception, but to the reproduc- ing to this theory, both systems are indepen-
tion of given norms in the altered form, as this dent, they operate in different fields and there-
refers to the introduction of a new law along fore, both are supreme in their own fields. How-
with the other sources, although content is ever, a conflict between the obligations may
similar, i.e. according to Triepel, international emerge if a state is not able to act at any level in
and national law norms have similar or close line with the requirements of international law.
to each other content, the transfer of the norm The result will be as follows: the legal force of
from one legal system to another occurs only the national norm is absolute, „however inter-
through transforming of the corresponding national legal responsibility of a state emerges“5
norm to the new norm, i.e. this is the conver- The same position is shared by Ch. Rouseau.6
sion, which in legal literature is as a rule called At the end of the 19 th century and the
“transformation”.3 begining of the 20th century one of the direc-
Following Triepel, this issue was consid- tions of the monist theory also proliferated: the
ered by the well-known Italian positivist D. primacy of domestic law over the internation-
Anzilotti. Author argued that international le- al law. The initial elements of this theory are
gal norm functions only within the frames of already found in the philosophical works of
international relations, as per the national le- Hegel. The theory was further developed ba-
gal norm, it operates within the confine of the sically in the German international legal liter-
domestic relations. International legal norms ature. Its supporters, who often are called the
do not influence the binding character of the “international legal nihilists”, rejected the ex-
national norms and vice versa. Consequently istence of international law and argued that
there is no conflict emerging between the in- the state will is not limited by any external
ternational and national law, however one can force. This theory justified the German em-
refer to another. Alike Triepel, Anzilotti argues pire’s aim which did not wish to be limited by
that “international and national law … repre- international legal norms. Two theories were
sent separate legal orders”. shaped in this period: “the theory of force” and
However the author is compelled to rec- “the theory of external state law”. These the-
ognize that a state can not refuse to meet in- ories stand close to each other with their ulti-
ternational obligation, justifying this with the mate conclusions. Both theories lead to re-
national norm. He also considers that the prin- jection of the international law in favor of the
ciple, according to which the domestic norm unlimited power of a state.7
fully depends on the compatibility with the in- Both theories were in principle based on
ternational obligations, does not exclude that the provisions that the regulation of interna-
upon the interpretation of norm a state takes tional relations takes place only based on the
into account international obligations. will of a state, without which there is no legal
The supporters of the dualistic theory be- norm binding a state.
came increasingly active during the 50ies of In reality these theories did not correspond
20th century and soon won the dominant posi- to the reality of that time either, as at the edge
tion. But, they did not agree with Triepel’s and of 19th and 20th centuries cooperation of states
Anzilotti’s extreme positions. They recognized did more and more intensely require the ex-
the possibility of regulating the same fields istence of the generally recognized obligato-
through the norms of international and national ry international norms, notwithstanding wheth-
law but according to them, in case of collission er their actions corresponded to the interests
22
I. KURDADZE, STAGES OF DEVELOPMENT OF SCIENTIFIC CONCEPTS ON CORRELATION BETWEEN ...
or will of a state. This absolutely does not In “The Principles of International Law”
mean that international law is unalterable. The Kelsen argues that international law is the
universally recognized norms of international supreme legal order, limitation of which is not
law used to be created and still are created allowed, it limits national legal order itself. Lim-
based on the agreement of the will of states, iting the functioning of national legal order is
their alteration or annulment is possible also important function of the international legal
based on the agreement and not on the basis order. As per important characteristic of do-
of the will of one state. However, the newly mestic legal order the author considers the
emerged states cannot change the already circumstance that domestic legal order obeys
existing system, which means that a state com- only international legal order.
plies with the already settled order that indi- The object of all he legal norms of the uni-
cates at the primacy of international law. This versal legal system created by H. Kelsen is the
does not mean that separate states do not action of an individual. If the domestic legal norm
violate international legal norms however this directly regulates actis of an individual, interna-
does not certainly justify the nihilist theories tional norm regulates them through the domes-
in the field of international law. tic legal order. It is the domestic legal order which
Due to this the majority of the authors was identifies which officials or the state bodies can
actively promoting the obligatory character of make these norms work. Therefore, in Kelsen’s
international law and was proving this through view, international law defines the “material
the examples of the practice. It should be re- element” of the operation of the international
membered that there were numerous authors legal norm, whereas the domestic law defines
at that time recognizing the objective existence the “personal element”. From this viewpoint
of international law and standing of certain the norms of international law do not require
norms above the will of separate states.8 “transformation”, if this is not specifically en-
After the First World War the second di- visaged by the international legal norm itself.
rection of the monist theory starts emerging – The norm is transmitted directly and is based
the primacy of international law over the do- on the “delegation” of international law with
mestic law. regard to domestic law. This is not transfor-
H. Kelsen categorically denied any relation mation, but a phase of the procedure of cre-
of the natural law with the positive law. It consid- ation of law, the form of which is uniform.10
ered law as the closed hierarchy of norms. All Therefore, Kelsen rejects the dualistic
the legal norms within this normative system rep- theory, which, according to his position, de-
resent one unity. All these norms, among them rives from the dogma of sovereignty, accord-
international legal norms, regulate the relations ing to which “international law creates rights
between the individuals. If international law binds and obligations for states only and not for its
and authorizes state, this does not mean that it organs and citizens». With this Kelsen going
does not bind and authorize individuals; this against the dualistic approach, states that in-
means that international law binds and grants ternational law together with the domestic law
authority to individuals who represent state bod- creates uniform system and represents the
ies. This rule of conduct is established by inter- universal system of law.
national law not directly, but through the nation- The Kelsen Theory on the pyramid hier-
al legal order. The latter defines the circle of archy of legal norms, the unity of internation-
persons which implement international law in al and domestic legal systems was recognized
domestic bodies. In this respect the interna- as the classical model of the monistic theory
tional legal order delegates the implementa- of primacy of international law, however it had
tion of its norms to domestic law. According to not many supporters.
H. Kelsen in this uniform system of law inter- The monistic theory is shared not only by
national law stands higher than domestic law. positivists, but by solidarists as well, if H. Kelsen
Certainly international law defines the materi- does not go at the end of the hierarchy beyond
al content of domestic law. It is the basis of the legality of the supreme norm and places the
domestic law (among them are the constitu- search for the basis of the “main norm”
tional norms). The international legal order (Grundnorm) outside the scope of the construc-
shows its importance only as a part of univer- tion of normativism, solidarists “enlist the objec-
sal legal order.9 tive events” outside the positive law to the basis
23
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
of the basis of hierarchy. A well-known repre- Malcolm Show considers that strict recogni-
sentative of this concept is the French lawyer tion of the positions of monism or dualism do
G. Scelle, who considers the international legal not provide for possibility to understand the real
relations as unity of endless “relations”. They situation. The studying of states’ constitutional
are linked with each other through “social soli- and court practice and practice of international
darity”. At the same time, alike Kelsen, G Scelle courts is necessary.14
also considers that international law is the “su- According to his observation, majority of
preme” legal order, as for the state – this is a states recognizes employing customary norms
legal order, which directly to obeys to interna- within the field of their own jurisdictions, if they
tional legal order. Scelle also rejects the notion do not contradict the domestic norms, and
of state sovereignty on the basis of the primacy some states even grant the priority to the in-
of international law and argues about the exist- ternational law over the domestic legal norms.15
ence of the legal capacity of individual. He argues According to the author, as a rule we deal
that the notion of the state sovereignty “oppos- with the conflict of obligations, i.e. a state does
es fact and law”, rejects the notion of main rights not act within its domestic law in accordance with
of a state, as a devoid of legal certainty. The author the international legal obligations. In such case
argues that “international relations are relations the domestic position of a state remains intact
between an individual and groups, which emerg- (and is not annulled by the counter norm of inter-
es beyond the state boundaries”. “The progress national law), but if a state’s action at the inter-
of international law shall depend on the extent to national plane violates international legal norm,
which it will become supranational in the future”.11 its responsibility moves into international field and
The same theory, though in a more limited causes diplomatic protest or a court action.
form, was shared by the Austrian A. Verdross I. Brownlie16 considers that the theoretical
and the Swiss P. Guggenheim. constructions recognize the problem and re-
P. Guggenheim was writing: “according to ject the reality. If there is anyone to agree with
the principle of primacy of international law, the opinion of Fitzmorriss and Rousso, this
person will appear closer to the reality. And
its competence is potentially unlimited…, all
still, completely general theoretical construc-
subjects, which are regulated by domestic law,
tions will not reflect this relation.17 The author
may be regulated by international law. The
underlines the fact that the issue of the corre-
independence of a state is nothing more than
lation points at the differences which exists in
its subjecting to “the supreme legal order”.12
the organization i.e. in the nature of jurisdic-
One of the figures of the “Vienna School”
tion (would that be national or international)
created by H. Kelsen – A. Ferdross calls his con-
between the character of the norms of the
cept the theory of “balanced i.e. complicated
bosth systems, as of the flexible instruments
parted monism”. He allows for the possibility of
of the dispute settlement and not of the regu-
conflict between the international and national
lation of the disputed issues. For instance,
laws. These conflicts may be solved only within
international court may employ domestic norm;
the unity of the legal system, based on the pri-
at the same time the body, such as, for, exam-
macy of public international law, as “the domes-
ple, the US Foreign Claims Settlement Com-
tic law may freely develop only within the frames mission, which is the domestic organ, may
of international law». Verdross does not indicate employ international legal norm.
categorically to subordination of domestic law When domestic court employs internation-
to international law.13 al law, it is sensless to put the question wheth-
It is apt to mention that some of the con- er the norm was “transformed“ into domestic
clusions of “balanced monism” and “balanced law, if the transformation does not require a
dualism” coincide with each other. For exam- special procedure, established by the nation-
ple, the both concepts recognize that there al legal system, whithout which none of the
may be collision created between internation- organs may use the international legal norm.
al and domestic laws, which can be regulated The French scientists (Y. Combacau, A.
only with the assistance of international law, Pellet, P. Dailliet, D. Carreau. P-M. Dupuy), who
in particular, with the support of the institute support the balanced dualism, recognize the
of peaceful settlement of international disputes autonomy of international and domestic law,
and the institute of international accountability. but at the same time underline the fact that
24
I. KURDADZE, STAGES OF DEVELOPMENT OF SCIENTIFIC CONCEPTS ON CORRELATION BETWEEN ...
none of them can act in isolation from anoth- Dailler and Pellet categorically declare: “in-
er and these systems are interrelated and ternational justice and legislative practice, as well
concurrent.18 as domestic justice more and more often recog-
At the same time, almost all of them, in nize that internaitonal law would not have exist-
one way or the other, recognize the primacy ed without strengtehning its primacy with regard
of international law and not only of interna- to domestic law“.22
tional treaties, with regard to domestic law. The factual material cited by these authors
D. Carreau points out the court practice is interesting:
and the customary and conventional norms At the San-Fransisco Conference in June,
of the contemporary internaitonal law begining 1956 the suggestion of the Belgian delegation
from the end of XIX century. In particular, it to include into the UN Charter the principle of
considers the Article 27 of the Vienna Con- primacy of international law was rejected. How-
vention on the Law of Treaties and concludes: ever, three years later the United Nations In-
“such a principle of primacy of international ternational Law Commission “the Declaration
law makes it clear that international law (i.e. of the State Rights and Obligations” draft in-
the entire positive law and not only treaties) cluded a special article, according to which “ev-
in sum stand higher than unity of domestic ery state is obliged to conduct relations with
norms: the constitutional, legislative, executive other states in accordance with the norms of
and court decisions. This primacy was recog- international law and the principle according to
nized by international arbitration and courts“.19 which all state sovereignty is subjected to the
Carreau, as well as other scientists, refer primacy of international law” (Art. 14).
to the court practice in order to prove that The Italian Professor L. Bravo considers
universal international law, including treaties, that “at the contemporary stage the problem
stands higher than domestic law. As a rule, of monism-dualism has absolutely theoretical
they refer to the same historic facts. Consid- importance”.23 However, during the consider-
ering the Montigo case in 1875 the arbitration ation he himself reaches the conclusion that
found that “treaty is higher than constitution“. international law influences state systems at
Later, considering the George Pinson the current stage. Even more, the author con-
case in 1928 arbitration pointed out that a siders the cases, when state is compelled to
treaty concluded between France and Mexico take into consideration norms of international
is higher than the Mexian Concsistion: “there law. For example, Bravo refers to jus cogens
is no doubt that international law stands high- norms and points out that national law cannot
er thatn domestic law“. outweight such a norm, even if it contains a
The Permanent Chamber of International different norm of conduct.
Justice pointed out in its decision of 4 Febru- The former Chairman of the European
ary 1932: “Deriving from the universally rec- Court of Human Rights Lucius Wildhabberr
ognized principles, one state, in the dispute possesses extremely interesting position. Ac-
with another state, cannot, based on the own cording to his position, the support to dualis-
Constitution free itself from the obligations, tic or monistic concepts is a subject of more
which are placed on it by international law or ideological considerations, political preferenc-
a specific treaty“. es or it is at all a utopian view. Especially as
The same opinion was expressed by the this issue is not a subject of comparative study
International Court of Justice in the 1998 Ad- vis-à-vis the domestic legal order, as both
visory Opinion with regard to the Represen- concepts, at the end, as a rule, focus on do-
tation of the Palestine Liberation Organization mestic law. It would be more precise to say
(in the Headquarter in New York).20 that practically all state domestic legal systems
P-M. Dupuy is more coscious in making con- include the elements of both – monistic and
clusions: “relation of international and domestic dualistic systems. He cites the so called sup-
law is inrrelated and concurrent. The way this porter states of the dualistic system as an ex-
relation is implemented significantly depends on ample: “in some states (United Kingdom, Ire-
the constitutional choice of a state. This gives us land, Canada, Australia and Scandinavian
a possibility to conclude more or less clearly whe- countries) international treaties require imple-
ther international law is granted higher hierarcical mentation into domestic law through specific
stand in relation with the domestic law“.21 normative acts. Despite this, courts use the
25
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
international treaties not from the transforma- the true reasons of these interrelations. A.
tion point, but from the moment of ratification. Gaverdovsky, who devoted not one work to
Such cases, definitely, does not constitute the problem, among them the monograph “The
dualism”.24 implementation of international norms”, wrote
A. Cassesse on the one hand declares that when analyzing the correlation of the in-
that “most States do not accord primacy to in- ternational land national laws, the socialist le-
ternational riles in their national legal systems. gal doctrine derives from the principle of the
Thus, it may be concluded that most members state sovereignty, and considers internation-
of the world community tend to play down the al and domestic laws as two independent and
possible role of international legal standarts separate from each other systems, which are
in their domestic legal setting. It does not fol- closely interrelated.28
low, however, that they normally and system- Soviet scientists were based on the Marx-
atically disregard international norms. The ist concept of the state sovereignty and agreed
contrary is rather the rule. The failure of States with dualists that international law and domestic
to accord to international law pride of place at law are two independent legal systems. At the
home only means that they fo not intednd ti same time they shared the view that despite
the their hands formally, at the constitutional the fact that the two systems are isolated from
or legislative level. In other words, subject to each other, there still is a close link in between
the few exceptions already referred to, States the systems.29
ultimately prefer not to enshrine in their con- V. Butkevich has mentioned that “the du-
stitutions or in their laws a firm and irrevoca- alists are so much entertained with studying
ble commitment to unqualified observance of the characteristics of the relation of interna-
all international rules”. tional and domestic laws … that they did not
On the other hand he recognizes that “we consider the existence of the correlation of
are faced with a phenomenon of increasing these legal systems and their elements would
importqnce: there are more and more inter- be possible”.30
national rules that address themselves directly However, if there is the correlation in be-
to individuals, either by imposing obligations tween the legal systems, it must be regulated
or by granting rights. These rules intend to, in accordance with the hierarchy of norms.
and to, reach individuals directly, that is, not This issue remained open in the soviet scien-
through the medium of the municipal law of tific theory. In other words, the soviet school
States. They ar thus operative as soon as they did not share the orthodox dualism (Anzilotti), as it
emerge, regadless of what is provided for in did not reject the interrelation of the interna-
any particular national legal systems, and even tional and domestic laws and therefore recog-
contraty to possible national rules”.25 nized the collision in relation of these systems.
The transformation, which the Soviet doc- The soviet scientists were drawing the
trine of international law experienced26, is in- conclusions as follows: “Any state must fulfill
teresting, as it rejected both directions of the the international legal norms, international
monist theory and only partially shared the treaties and obligations in good faith. Howev-
dualist approach. The Soviet scientists con- er, at the same time only such international
sidered international and domestic law, as norm has a real force and moral authority
“separate systems of law”27, however at the which does not impose the will of other state
same time they distanced themselves from the over a sovereign state and does not conflict
dualism traditional doctrine as well due to the with the state order and legal system”.31
ideological differences. According to them, “the After the dissolution of the Soviet Union
difference of “realistic dualism” (as they were and creation of the independent Russian
referring to their concept) from the traditional state, even though the Russian scientists still
is that the Socialist science studies as inter- “share” the dualist theory, new elements ap-
national, as well as domestic laws in the sys- pear in their concepts. They more and more
tem of socialist connections and thus goes frequently appeal to the elements of the con-
beyond the concrete, pure legal aspects of cept of the primacy of international law. When
their interrelation». discussing the problem of interrelation
According to the soviet scientists, this cir- Chernichenko pays attention at the terminol-
cumstance was giving a possibility to explain ogy. According to him, this refers not to the
26
I. KURDADZE, STAGES OF DEVELOPMENT OF SCIENTIFIC CONCEPTS ON CORRELATION BETWEEN ...
correlation of domestic and international law, tional legal force for the state. However within
but at separating the international and domes- the state it – the treaty – is almost not appli-
tic legal orders, as the legal order is the broad- cable.
er concept. In the third edition of the work the author
In our opinion, the usage of the terminol- considerably “renews” his concept. He shifts
ogy related to this issue is relative, as notwith- an attention towards the “correlation” of the
standing whether we talk about legal system two systems. This time the author closely re-
or the legal order, the objective boundaries lates this phenomenon with the globalization
between the domestic and international law process – “the tending of the legal regulation
are defined by the nature of the regulation of toward globalization seems more and more no-
relations and the circle of participants of the ticeable … the deepening of interrelation of
respective relations. S. Chernichenko argues international and domestic laws leads us to
about the livelihood of the dualist theory in his the creation of the global legal system, or the
monograph as well. It is interesting to observe, super system”.34 But the author underlines that
how carefully he introduces in his reasoning this does not mean the creation of “the world
the concept of the “priority of international law” state”, “the world law”. The national legal sys-
and develops the idea. He mentions that in- tem in a large part operates as the part of the
ternational law and domestic law function in global legal system and must correspond to
different spaces and therefore identifying the its principles.
issue that international law cannot regulate However this does not mean the complete
domestic relations is not grounded, the au- dominance of international law with regard to
thor declares that domestic law must corre- the domestic law. The subjection of the do-
spond the international law in order to ensure mestic legal system occurs only when this is
its implementation. In this sense he considers needed for the normal functioning of interna-
primacy of international law as acceptable.32 tional law.35
The author almost confesses in the con- Therefore, I. Lukashuk on the one hand
sideration that there is a legal system (inter- rejects the supremacy (primacy) of the uni-
national law) to which domestic law must cor- versally recognized principles and norms of
respond. Naturally, the question emerges, if international law (it is apt to mention that the
there is no legal requirement of establishing author in principle talks about the priority of
such a correspondence, why should a state international treaties) over the norms of do-
voluntarily implement such a legal action? The mestic law without the indication of state will,
author sees the answer in the constitutional however at the same time he is compelled to
norm, though the constitutional norm is a high- very vaguely recognize the necessity of sub-
er standing norm in domestic law that causes jecting the domestic law to international, that
the question: why is such a norm included in he explains with the advancement of the glo-
the constitution? balization processes. Here we again confront
The prominent Russian scholar I. the main issue – what compels the state to
Lukashuk considers that the direct function- act in accordance with the universally recog-
ing of international norms has a relative char- nized principles and norms, not only at the
acter, as the norms commence direct action international plane, where the primacy of in-
only when they are attributed the correspond- ternational law is universally recognized, but
ing legal force in line with the national law.33 also within a state as well, in cases when its
A state decides itself, which system to laws, including constitution, contradict the
choose, but a state shall create such a legal mentioned principles and norms. The essence
system which provides for the implementation of the primacy after all is that the norms of
of international obligations. According to him, international law take precedence notwith-
when establishing the correlation of interna- standing whether a state recognizes them or
tional and domestic law, the main role is at- not, as the general will of states to cooperate
tributed to the constitutional law. Lukashuk stands higher than the will of one particular
points out the Article 27 of the Vienna Con- state.
vention on the Law of Treaties and declares, The issue of correlation of international
that even in cases when international treaty law and domestic law has never been the subject
contradicts constitution, it retains the interna- of complex study and analysis in the Georgian
27
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
science. Although separate aspects have been a stand of customary international law in the
studied by I. Putkaradze36, K. Korkelia37, P. Tsno- hierarchy of the Georgian legislation and
biladze38, broader and more detailed analysis reaches the opposite conclusion: as the Arti-
is provided in the monograph by L. Alexidze, cle 7 of the Constitution does not establish
published as early as in 198239, however the the hierarchical correlation of the norms of
work studies only the issue of primacy of in- international customary human rights law with
ternational law vis-à-vis international relations. regard to other acts, the general approach
In relation to the primacy of international established in Georgia shall be applied in re-
treaties over the Georgian domestic legisla- lation to this category of norms (as established
tion all the named authors recognize the pri- by the Article 6(2) of the Constitution, and
ority of treaties over the national norms, how- considered by other normative acts), accord-
ever with the exception of the Constitution of ing to which the norms of international cus-
Georgia. In other words, the authors literarily tomary law have primacy over the Georgian
interpret the formula of Article 6 of the Consti- legislation (for example, over the laws, but not
tution and separate international treaties from the Constitution).42
the universally recognized principles and The author absolutely correctly provides that
norms of international law. in line with the Article 6(2) of the Constitution the
In the context of the topic of our consider- entire Georgian legislation is “dependant” on the
ation the views of the authors on the primacy universally recognized principles and norms of
of the international law per se, i.e. universally international law, and when it does not corre-
recognized principles and norms, are interesting. spond to the latter, the former shall be changed.
As mentioned already the discussion over The same is true with regard to the upcoming
the issue of the primacy of international law domestic norms. If this is not so, than in case of
both in international relations as well as do- establishing that the domestic acts do not cor-
mestic law can only be held in case if the orig- respond with the universally recognized princi-
inal element of the concept of “primacy” is the ples and norms of international law, the latter
limitation of the freedom of separate willpower will take precedence”.43
of a state, despite whether it wishes to abide The author’s view that a provision of the
the norm in creation of which it did not partic- Act of the Restoration of Georgian State Inde-
ipate, actively opposed its establishment or did pendence (09/04/1991), according to which
not take part in the process at all, as it was the primacy of international law in relation with
created before its emergence at the interna- the Georgian laws and the direct operation of
tional areana. Therefore, in our view, the pri- its norms in Georgia is recognized by one of
macy contemplates the unconditional abiding the main constitutional principles of the Re-
by all states to the vitally important norms of public, does inevitably include the primacy of
the international legal order, as these princi- the international customary law as well, and
ples and norms reflect will of states. this has become the part of the Georgian leg-
In this regard I. Putkaradze’s position, ac- islation with the 1995 Constitution, is correct.
cording to which the human rights and free- The norms of international customary law are
doms envisaged by the Article 7 of the Consti- granted the domestic legal force in Georgia,
tution of Georgia have direct and immediate and this is the immediate pre-condition for di-
effect in Georgia, is interesting. This means rect employment of the international custom-
that notwithstanding whether the universally ary norms in Georgia.44
recognized human rights and freedoms are re- Herewith we can not share of the author s
flected in the Georgian domestic legislation, view in that the primacy of international law, in
their observance must be guaranteed in the particular in the form of the universally recog-
state40. The author reaches the conclusion that nized principles and norms, among those pro-
“when exercising authority, i.e. even at the tecting and regulating human rights, stand low-
point of identifying the constitutional principles er than the Constitution of Georgia – in the
and norms the people and the state are bound case of collision the primacy shall be given to
by the universally recognized rights and free- the Constitution of the country.
doms, as directly acting law”.41 The term “corresponds” defines the al-
K. Korkelia refers to one of the main com- ready existing situation and not the require-
ponents of the primacy of international law – ment for the future, however, in our view, the
28
I. KURDADZE, STAGES OF DEVELOPMENT OF SCIENTIFIC CONCEPTS ON CORRELATION BETWEEN ...
legislator contemplated that the Constitution gia, being a member of the contemporary civ-
of Georgia in any case and not only by the ilized world community, does share the ideas
time of the adoption of the Constitution must recognized by international law and the crite-
comply with this requirements. At the same ria of legality recognized by it, as well as the
time the question emerges: is the Georgian main directions of international law through
legislation objectively in line with the univer- which the regulation of Georgia’s internation-
sally recognized principles and norms of in- al legal relations and domestic relations will
ternational law? Such a question would not take place. The legal system of a state is not
have emerged, provided that Georgia, even confined to the unity of legal norms. The legal
when undergoing the procedure of ratifying system includes as legal norms (in relation with
or accessing the international treaties, would the international law the treaties which were
first require harmonization of the Georgian leg- duly recognized by a state), legal conscious
islation with the latter and undertake the pro- (which must derive from the content of univer-
cedures only afterwards. However the prac- sally recognized principles and norms of in-
tice of the Georgian Parliament has confirmed ternational law), the legal relations based on
that it is also possible that the country first the norms (among those international ones),
ratifies the international treaty and only after- as well as the process of the norm application
wards harmonizes the domestic legislation with (through which the “introduction” of the inter-
the instrument (as an example of this the rat- national legal norms into the domestic legis-
ification of the Statute of the International lation takes place). Regulation of all these pro-
Criminal Court can be cited). cesses without the universally recognized
The issue can be solved in an easier man- norms and principles is inadmissible. The Geo-
ner, when we discuss the international trea- rgian legislator is obliged to be guided by these
ties, even multilateral regional (for example, principles and norms in the legal drafting pro-
in relation with the European Union), as in this cess, as they constitute the ideological source
case the will of a state, to limit its sovereignty, of law. Apart from this, in cases when any giv-
is evident. A state agrees to alter the Consti- en relation is not regulated by state legal
tutional provision in line with requirements as norms (the vacuum of law), they are used as
envisaged by the international treaty (this is an immediate normative basis when deciding
what did France, and not once, in the process on application of law in a concrete legal case.
of transformation of the European Communi- Therefore the operation of the universal-
ties into the European Union). But this, must ly recognized principles and norms extends
be reiterated, refers to international treaty, the over not only the domestic law, but at the le-
issue of participation into or staying outside gal system as a whole.
of which is decided by a state. The majority of the universally recognized
In case if the domestic law employing body principles and norms (the law of human rights,
comes across the inconsistencies in the Con- international law of the sea) have a concrete
stitution and the universally recognized norms content, meaning that their direct application
of international law, it will have a dilemma - in the field of domestic law is possible. For
which norm to use. Herewith we support the example, a judge is obliged to ensure the ob-
view of I. Putkaradze that the norm shall be servance of norms included into the Interna-
used deriving from the primacy of internation- tional Covenants of 1966 , even if they are
al law, as the norm directly applicable in Geor- not reflected in the domestic legislation of the
gia. Any international court, such as for exam- country, not only due to the fact that a given
ple, in the field of human rights, will grant instrument has become legally binding for
against a state whose constitution does not Georgia following its ratification, but also due
correspond with the universally recognized to the fact that the majority of the norms of
norms, especially if it recognizes that its legis- the instruments carry universal character. The
lation “is in line with” the universally recog- very principle of respect of human rights, the
nized principles and norms of international law. principle of equality of a man and a woman,
In our view when including the terminolo- the principle of freely using the natural resourc-
gy of universally recognized principles and es and wealth by people, the principle of out-
norms of international law in the Constitution lawing the slavery and slave trade, are among
of Georgia, the legislator implied that Geor- those. However, a number of norms of the In-
29
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
ternational Covenant on Civil and Political vision was possible only in the 1995 Constitu-
Rights have explicit content of the universal tion through the Article 6 and Article 7.
principels – the principle of fair trial, the pre- Therefore, the contemporary internation-
sumption of innocence, a right to legal per- al law is the unity of norms with the general
sonality, etc. Therefore, Article 84 of the Con- democratic content, reflecting the objective
stitution, establishing that “a judge … in his/ pattern of the development of mankind. If in-
her activities … is bound by the Constitution ternational law at the initial stage of the for-
and a law”, must be widely interpreted. A judge mation represented ephemeral system, today
must be guided by the universally recognized it is established as a positive legal system,
principles and norms and general principles which is the guarantee of peaceful develop-
as the latter possess the primacy over the ment of the world legal order. If in the past the
Constitution and laws of Georgia, and by in- will of a state dominated in directing interna-
ternational treaties, provided that they do not tional relations, today a state is obliged to
contradict with the Constitution of Georgia. comply with the legal order, which is reflected
Therefore, the primacy of the universally rec- in international law by the world community. It
ognized principles of international law over the is not by conicidence that in the new political
domestic law, recognized by the Constitution reasoning along with the concepts such as the
of Georgia, grants a possibility to law apply- priority of the general values and interests of
ing bodies not to be bound by the legislative mankind, the unity of the world and interrela-
basis created unilaterally by a state. On its tion of states, the freedom of the choice of
turn, a state is obliged to establish the legis- ways of development, the concept of the pri-
lative basis in line with the universally recog- macy of international law becomes increasing-
nized principles and norms. As a matter of fact ly establsihed in international relations.
the primacy of universally recognized princi- The contemporary international law increas-
ples and norms vis-à-vis the domestic legisla- ingly intrudes into the fields which in the past
tion does not create a hard collision situation strictly belonged to the internal regulation of
(unlike the treaty law), as the universal princi- sovereign states. Today the primacy of interna-
ples operate as regulator, the basis of the tional law, i.e. the universally recognized princi-
public relations within a state, upon which the ples and norms of international law, are not only
legislation should be built. The legal bound- the supreme legal postulates of the relations of
aries of the universal principles and norms are subjects of international law, and mainly states,
not clearly identified, and this has to be taken but it stands higher than domestic legal systems
into consideration by the legislator. In prac- of states. The international and constitutional
tice this means that judicial bodies may make practice of states includes very interesting the-
decisions based on the domestic legislation, oretical normative practice and case law.
but this does not hamper them to be guided Even though states choose themselves
by the respective international norms, espe- which of the concepts to follow, at the current
cially when the latter broaden or specify the stage the problem of monism-dualism carries
provision of the Constitution or a law. more theoretical character, as the state bodies
Georgia is one of the first states in the East- both – adminsitrative and judicial shall decide
ern European and CIS area which still before the same problems in both cases. At the current
the dissolution of the Soviet Union, right upon stage international law not only influences state
the restoration of independence, with the Act of systems, even more, in some cases a state is
Independence (09/04/1991) recognized the pri- compelled to consider and take into account the
macy of international law over the Georgian leg- norms of generally recognized norms of inter-
islation. However the reinforcement of this pro- national law.
1
H. Triepel. Völkerrecht und Landesrecht. Leipzig , 1899, s. 89; The same author: "Droit
international et droit interne. Fondation Carnegie 1920, pp. 78-81; Les rapports entre le
droit inetrnational et le droit inetrnational – "Recueil des Cours", the Hague Academy of
"International La w", 1923. t. 1, p. 83-103.
30
I. KURDADZE, STAGES OF DEVELOPMENT OF SCIENTIFIC CONCEPTS ON CORRELATION BETWEEN ...
2
H. Triepel. Les rapports… p. 89.
3
Àíöèëîòòè Ä. Êóðñ ìåæäóíàðîäíîãî ïðàâà. Ì., 1961. ñòð. 35; Giorgio Gaja. Positivism
and Dualism in Dionisio Anzilotti – “European Journal of International Law”, vol.3, N1.,
1992.
4
See: U. Scheuner. L’ Influence du droit interne sur la formulation du droit international.
"Recueil des Cours de l’Academie de droit international". T 68 (1939-II) p. 116-117; See
also: G. Dahm. Völkerrecht. Bd I Stutgart 1958, seite 56
5
G. Fitzmaurice, The General Principles of International Law Considered from the Stand-
point of the Rule of Law- "Recueil des Cours", the Hague Academy of International Law, T
92 1957, II, p. 68-94.
6
See: Rouseau Ch. Principles de droit intenational public, Paris, 1958, I, p. 369-550.
7
Lasson A. Prinzip und Zukunft des Völkerrecht. Berlin, 1871, p. 402; Zorn A. Gründzuge
des Völkerrechts. Leipzig 1903 I Bid. seite 8-9.
8
See: R. Phillimore. Commentaries upon International Law, VI, London, 1878, $ XXII; T.
Twiss. The Law of Nations, Oxford, 1861; $2; P. Fauchill. Traité de Droit International
Public t. 1 partie 1, Paris, 1992, p. 6-9; Oppenheim. L, International Law, London, 1920; A.
Rivier Le Droit Iinternational (Russion Translation), 1893, Moscow, E. Nys. Le Droit
International. Les principes, les theories le of Aits. Bruxselles 1912.
9
H. Kelsen. General Theory of Law and State. English trans. Wedberg Cambridge Mass.
1949, p. 81.
10
See: H. Kelsen. Principles of International Law, N.Y. 1966, p. 41.
11
G Scelle. Cours de droit international public. Paris, 1948, p. 17.
12
P. Guggenheim. Traité de droit international public. Genéve, 1953, v I, p. 27.
13
Ôåðäðîññ À., Ìåæäóíàðîäíîå ïðàâî. Ì., 1959, p. 50.
14
Shaw N.M. International Law.(Fifth ed). Cambridge Univ. Press. 2004, p. 120-173;
15
M. Shaw. op. cit. p. 123.
16
See: Brownlie Ian. Principles of Public International Law. Oxford University press, 2003
Chap.II The Relation of Municipal and International Law, pp. .31-52.
17
Ibid. p. 52
18
Yean Combacau, Serge Sur. Droit International Public, 5 th.ed, Montchrestien, 2001, p.
181: P. Daillier et A Pellet. Droit international public. L.G.D.J. 2002, p. 95-97; Dominique
Carreau. Droit International.7 th ed. Paris, Pedone, 2001, p. 43-70; Pierre-Moris Dupuy.
Droit international public. Dalloz, 2000, p. 387-389; Michel Virally. Sur un point aux
Anes;les rapports entre droit internetional et droit interne – Me'lange Rolin. Paris. Pedone
1964, p. 497.
19
D. Carreau, op cit., p. 45.
20
D. Carraou, op cit., p. 47; See also: A. B.eramdone. La hierarchie des droits. Paris, 2002, p.
31-32.
21
P-M. Dupuy, op cit., p. 389.
22
P. Daillier et A. Pellet, op cit., p. 97.
23
Áðàâî Ë.Ô., Ïðèìåíåíèå ìåæäóíàðîäíîãî ïðàâà â ïðàâîïîðÿäêå åâðîïåéñêèõ
ñòðàí. "Ðîññèéñêèé" Åæåãîäíèê ìåæäóíàðîäíîãî ïðàâà, Ñàíêò Ïåòåðáóðã,
1995, ñ. 131.
24
Luzius Wildhaber. Wechselspiel zwiscvhen Innen und Aussen: Schweizer Landesrecht,
Rechtsvergleichung, Volkerrecht/ – basel;Frankfurt am Main:Helbing und Lichtenhahn, 1996,
pp. 52 (Reception of International Law into Domestic Law: Comparative European Ap-
proaches).
25
A. Cassese, International Law, Oxford University Pres, 2005, p.236-237.
26
An interesting analysis see: Tarja Längström. Transpformation in Russia and International
Law, Martinus Nijhoff Publishers, Leiden / Boston, 2003.
27
Ìþëåðñîí Ð.À. Ñîîòíîøåíèå ìåæäóíàðîäíîãî è íàöèîíàëüíîãî ïðàâà. "Ìåæä.
îòíîø". Ì., 1982, ñòð. 10.
28
Ãàâåðäîâñêèé À.Ñ. Èìïëåìåíòàöèÿ íîðì ìåæäóíàðîäíîãî ïðàâà, Êèåâ.1980,
ñòð. 63.
29
Ëåâèí Ä.Á. Îñíîâíûå ïðîáëåìû ìåæäóíàðîäíîãî ïðàâà. Ì.1982, ñòð. 121,
209.
31
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
30
Áóòêåâè÷ Â.Ã. Ñîîòíîøåíèå âíóòðèãîñóäàðñòâåííîãî è ìåæäóíàðîäíîãî ïðàâà.
Êèåâ. 1981, ñòð. 53.
31
Ëåâèí Ä.Á. Îñíîâíûå ïðîáëåìû ìåæäóíàðîäíîãî ïðàâà. Ì., 1982 èìî. ñòð. 124.
32
×åðíè÷åíêî Ñ.Â. Òåîðèÿ ìåæäóíàðîäíîãî ïðàâà. Ì., ò. 1, 1999, gv 147.
33
Ëóêàøóê È.È Ìåæäóíàðîäíîå ïðàâî (îáùàÿ ÷àñòü). Ì., 1996, ñòð. 221-222, 224.
34
Ëóêàøóê È. Ìåæäóíàðîäíîå Ïðàâî, îáùàÿ ÷àñòü, Ì. 2005, ñò 255-295.
35
Ibid., pp. 293-294.
36
Putkaradze I., The Universally Recognized Norms of International Law and the Protection
of the Citizens’ Political-Economic and Social-Cultural Rights and Freedoms at the Consti-
tutional Court of Georgia. “A Person and a Constitution”, No.3, 1998.
37
K. Korkelia, Customary International Law in the Legal System of Georgia. “Georgia and
International Law” Tbilisi, 2001, pp. 62-80.
38
P. Tsnobiladze. Correlation of National Legislation and International Law, Ibid., pp.48-61.
39
Àëåêñèäçå Ë., Íåêîòîðûå âîïðîñû òåîðèè ìåæäóíàðîäíîãî ïðàâà-èìïåðà-
òèâíûå íîðìû (jus cogens), Òá., 1982.
40
Iakob Putkaradze, cited work, p. 27.
41
Ibid. p. 28
42
K. Korkelia, Customary International Law… p. 79.
43
Ibid., pp.66-67.
44
Ibid., p.69.
45
Ibid., 70.
32
levan aleqsiZe
33
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
(aseTad miCneuli iyo bosnia da hercegov- turi ideologia da misi cxovrebaSi ga-
inaSi mcxovrebi muslimuri mosaxleoba). tareba; 3. faqtebi, romlebic amxelen
yofil iugoslaviaSi momxdar dana- afxazeTSi qarTveli mosaxleobis mimarT
SaulTa Taobaze Seqmnili saerTaSoriso genocidis/eTnikuri wmendis politikas.7
tribunali araerTxel afiqsirebda, rom aseTsave saxes atarebda Semdegi mox-
`eTnikuri wmenda~ aris moqmedebebi, mimar- senebac.8
Tuli samoqalaqo mosaxleobis garkveu- am moxsenebebSi afxazeTSi momxdari
li jgufis winaaRmdeg, romlebic aRiqmeba tragedia Sedarebuli iyo eTnikuri wmen-
rogorc erTi an ramdenime erovnuli Tu dis msoflios sxva regionebSi arsebul
politikuri jgufi. am aqtebis ganxorci- praqtikasTan. cnobilia, rom am barbaro-
eleba unda mivakuTvnoT erTsa da imave suli politikis Sedegad daiRupa 6 000
models: saxelmwifo doneze dagegmili da mSvidobiani mosaxle, xolo 200 000-ze
organizebuli moqmedebebi... maT aqvT meti gaaZeves teroriTa da araadamianuri
saerTo mizani – `eTnikuri wmendis~ orga- mopyrobiT, mxolod imitom, rom isini
nizeba garkveul teritoriaze da axali qarTvelebi iyvnen, rac savsebiT Tavsdebo-
saxelmwifos Seqmna. es moqmedebebi aris da `eTnikuri wmendis~ im gansazRvrebaSi,
saSualeba `eTnikuri wmendis~ politikis romelic saerTaSoriso eqspertebisa da
gatarebisaTvis. amitom sasamarTlo pala- tribunalebis daskvnebSi aisaxa.
tas miaCnia, rom zemoaRniSnuli moqmede- gansakuTrebiT vrceli da yovlis-
bebi `danaSaulia adamianurobis winaaRm- momcveli iyo (38 gverdi, plus danarTi
deg~.5 rukebis saxiT) bolo, Semajamebeli mox-
1994 wels saqarTveloSi Seiqmna saxelm- seneba – saqarTvelos saxelmwifo komisiis
wifo komisia, romlis Tavmjdomareoba me daskvnebi afxazeTSi, saqarTvelo, qarT-
mxvda wilad, afxazeTSi qarTvelo mosax- veli mosaxleobis winaaRmdeg gatarebu-
leobis winaaRmdeg `eTnikuri wmendis/ge- li genocidis/eTnikuri wmendis politi-
nocidis~ faqtebis dadgenisa da masalebis kis Taobaze da masalebis saerTaSoriso
saerTaSoriso tribunalebisaTvis gadace- tribunalisaTvis gadacemis Sesaxeb, sa-
Tanado procesis saerTaSoriso princi-
mis mizniT. am komisiam, saqarTvelos pro-
pebis Sesabamisad.9
kuraturis daxmarebiT, afxazeTidan gamo-
samwuxarod, rogorc aRvniSne, uSiS-
ZevebulebTan Sexvedrebze, JurnalistTa
roebis sabWo da adamianis uflebaTa ko-
mier mopovebul foto- da videomasalebze
misia `moeridnen~ am sakiTxis dRis wesrig-
dayrdnobiT, daiwyo afxazeTSi datriale-
Si Setanas, Tumca igive specialuri momx-
buli saSineli tragediis Seswavla.
senebeli eide pirdapir aRniSnavda Tavis
yovelwliurad gaeros uSiSroebis sab-
moxsenebaSi, rom saqarTvelos teritori-
Wosa da adamianis uflebaTa komisiaSi vr-
uli mTlianobisa da xelSeuxeblobis
celdeboda zemoxsenebuli komisiis mox-
darRvevas mosdevda eTnikuri wmenda
senebebi, romlebSic aRnusxuli da Se- afxazeTSi.10
jamebuli iyo im droisaTvis mopovebuli pirveli saerTaSoriso organizacia,
faqtebi. pirveli dokumenti gancxadebis romelic imTaviTve gamoexmaura afxazeT-
saxes atarebda.6 Si mimdinare tragikul ambebs, iyo evro-
dawyebuli 1995 wlidan vrceldeboda paSi uSiSroebisa da TanamSromlobis or-
dokumentebi, romlebic, ufro vrceli da ganizacia (euTo). 1994 wels budapeStis sa-
konkretuli faqtebis moyvanis garda, mitze monawile saxelmwifoebma gamoT-
Seicavda praqtikis mecnierul Sefasebas. qves Rrma SeSfoTeba afxazeTSi `eTni-
magaliTad, gaeros adamianis uflebaTa kuri wmendis, mosaxleobis, gansakuTre-
komisiaSi gavrcelebuli dokumenti da- biT qarTvelTa, TavianTi sacxovrebeli
saxelebuli iyo: `eTnikuri wmendis/geno- adgilebidan masobrivi gandevnisa da
cidis politika afxazeTSi agresiuli udanaSaulo moqalaqeTa didi raodeno-
separatizmis ZiriTadi iaraRia~. masSi biT daRupvis gamo~.11
ganxiluli iyo iseTi sakiTxebi, rogorebi- magram yvelaze amomwurav, Tumca la-
caa: `1. genocidi/eTnikuri wmenda – adami- koniur gansazRvrebas im politikisas,
anurobis winaaRmdeg mimarTuli saerTa- romelsac atareben separatistebi afx-
Soriso danaSauli; 2. separatistTa faSis- azeTSi, Seicavs lisabonis samitis dek-
34
l. aleqsiZe, afxazeTSi qarTveli mosaxleobis eTnikuri wmendis saerTaSoriso ...
laracia (1996 wlis 3 dekemberi): `Cven (eu- romelSic ewera, rom `parlamenti SeS-
Tos monawile saxelmwifoebi – l.a.) vg- foTebulia... eTnikuri wmendis SeuCerebe-
mobT `eTnikur wmendas~, romelic gamoix- li procesiT afxazeTis regionSi~.
ateba afxazeTSi ZiriTadad qarTveli da kidev erTi: deklaraciis rusul
mosaxleobis masobrivi ganadgurebiTa da TargmanSi termini `masobrivi ganadgu-
iZulebiTi gaZevebiT~.12 reba~ (mass destruction ) iyo Secvlili
1999 wlis noemberSi stambolSi mow- terminiT – `masobrivi dangreva~, im moti-
veul euTos samitze miRebul deklara- viT, rom `destruction~ dangrevasac niSnavs.
ciaSi saxelmwifoebma `kvlav ganacxa- momixda aqac samarTlianobis aRdgena da
des~, rom `gadaWriT gmoben `eTnikur wme- sabolood Targmnilma teqstma saTanado
ndas~, rogorc es formulirebulia bu- saxe miiRo: “îñóøåñòâëÿþò “ýòíè÷åñêóþ
dapeStisa da lisabonis umaRlesi donis ÷èñòêó”, êîòîðàÿ âûðàæàåòñÿ â ìàññîâîì
Sexvedrebze, ramac gamoiwvia afxazeTSi, óíè÷òîæåíèè è íàñèëüñòâåííîì èçãíàíèè â
saqarTvelo, ZiriTadad qarTuli mosax- îñíîâíîì ãðóçèíñêîãî íàñåëåíèÿ Àáõàçèè”. (xaz-
leobis ganadgureba da iZulebiTi gaZeve- gasma Cemia – l.a.).
ba, da Zaladobis aqtebs, romlebic aRiniS- aRsaniSnavia, rom ufro adre dsT-is
na galis raionSi 1998 wlis maisSi iq dab- samitebzec ruseTi iZulebuli iyo, gahy-
runebul pirebTan dakavSirebiT, rac oloda monawile saxelmwifoTa saerTo
miznad isaxavda dabrunebis survilis ganwyobilebas da dasTanxmeboda afx-
mqone adamianebSi SiSis danergvas. viZle- azeTSi `eTnikuri wmendis~ dagmobas. ma-
viT rekomendacias, raTa momdevno wlis galiTad: minskSi 1995 wlis 26 maiss Cata-
dasawyisSi galis raionSi gaigzavnos faq- rebul samitze pirdapir aRiares afxa-
tebis damdgeni misia, euTosa da gaeros zeTSi `eTnikuri wmendis~ faqti; euTos
monawileobiT, maT Soris mimdinare `eT- budapeStis Sexvedram umaRles doneze
nikuri wmendis~ SemTxvevebis Sesaxeb cno- gamoxata Rrma SeSfoTeba `eTnikur wmen-
bebis Sesafaseblad ~.13 dasTan~, ZiriTadad qarTveli mosaxleo-
samwuxarod, aRniSnuli komisia ar Seq- bis sacxovrebeli adgilebidan masobriv
mnila, magram euTos deklaraciaSi afx- gandevnasTan da didi raodenobiT udan-
azeTSi arsebuli konfliqtisaTvis aseTi aSaulo samoqalaqo pirTa daRupvasTan
didi yuradRebis daTmoba da `eTnikuri dakavSirebiT.14
wmendis~, separatistebis saSinel danaSa- sagulisxmoa gaeros uSiSroebis sab-
ulTa kidev erTxel dagmobas uaRresad Wos pozicia. Tu gaviTvaliswinebT, rom
didi mniSvneloba hqonda saerTaSoriso am organoSi gadawyvetilebaTa miReba
Tanamegobrobis yuradRebis mobilizaci- xdeba xmaTa umravlesobiT (15-dan 9 xma
isaTvis. unda iyos dadebiTi), yvela mudmivi wev-
sagulisxmoa, rom lisabonSi dekla- ris dadebiTi xmis CaTvliT, xolo ruse-
raciis aRniSnuli formulis ganxilvisas Tis mier vetos uflebis gamoyenebis sa-
ruseTis delegaciam kategoriuli uari SiSroeba yovelTvis sufevda da sufevs,
ganacxada mis miRebaze, radganac masSi sabWos mier davebis mSvidobiani daregu-
naxsenebi termini `gamoixateba~ (resulting, lirebis Sesaxeb Tavisa (gaeros wesdebis
âûðàæàåòñÿ) awmyo droSi gvqonda gamoy- me-6 Tavi) da, aRarafers vambob, agresiis
enebuli. ruseTis mtkicebiT, 1994 wlidan aRkveTisa da mSvidobis dacvis mizniT
engurze maTi samSvidobo Zalebi idga da iZulebiTi RonisZiebis gatarebis saSu-
aranairi eTnikuri wmenda iq aRar yofi- alebebis (gaeros wesdebis me-7 Tavi) Car-
la. amitom, maTi azriT, termini `gamoix- CoebSi moqmedebisas, vera da ver xerxde-
ateba~ unda Secvliliyo terminiT `gam- ba uSiSroebis sabWos mier afxazeTSi
oixata~. `erovnuli wmendis~ pirdapiri dafiq-
maTi pozicia Seicvala, rodesac ga- sireba. magram euTos mier miRebuli Se-
vacani euTos misiis zemoaRniSnuli mox- fasebebi imdenad Zlieri iyo da aris, rom
seneba da 1000-ze meti piris saxeli, rom- sabWo 1995 wlidan dawyebuli 2006 wlis
lebic daxoces samSvidoboebis galSi yof- CaTvliT yvela miRebul rezoluciaSi
nis dros. `imowmebs~ euTos jer budapeStis gadaw-
aseve gavacani evrokavSiris parla- yvetilebebs, xolo Semdgom lisabonisa
mentis 1996 wlis 14 noembris rezolucia, da stambolis samitebis daskvnebs, da mi-
35
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
1
gaeros generaluri asambleis rezolucia: A/RES/62/249, May 29, 2008.
2
ix. gaeros genaraluri asambleis rezolucia: A/47/121 December17, 1992.
3
UN Doc. S/1994/674, para.129, May 24,1994.
4
UN Doc. S/25/277, para.56.
5
International Tribunal for Former Yugoslavia. In the Trial Chamber, Prosecutor V.
Radovan Karadzic and Ratko Mladic. Review of the Indictments Pursuant to Rule 61
of the Rules of Procedure and Evidence, 90-91, 11 July, 1996.
6
Statement dated 15 February 1994 of the Republic of Georgia State Committee
for Investigation and Revaluation of Materials Concerning the Policy of Genocide
and Ethnic Cleansing Against the Georgian Population in Abkhazia, and
36
l. aleqsiZe, afxazeTSi qarTveli mosaxleobis eTnikuri wmendis saerTaSoriso ...
37
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
38
l. aleqsiZe, afxazeTSi qarTveli mosaxleobis eTnikuri wmendis saerTaSoriso ...
39
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
LEVAN ALEXIDZE
At its sixty-second session, on 29 May 2008, terror and other inhuman means against a
the General Assembly of the United Nations group of people of other ethnic origin.2
adopted extraordinary Resolution concerning On 24 May 1994 the Final Report of the
the “Status of internally displaced persons and Commission of Experts established by the
refugees from Abkhazia, Georgia”, which for the United Nations Security Council was published,
first time in the UN practice acknowledged the which provided for a concept of “ethnic clea-
fact of ethnic cleansing of Georgians in Abk- nsing”, defined as follows: “ethnic cleansing”
hazia. The Resolution reads as follows: “Re- is a purposeful policy designed by one ethnic
calling all relevant Security Council resolu- or religious group to remove by violent and
tions, and noting the conclusions of the Budap- terror-inspiring means the civilian population
est (1994), Lisbon (1996) and Istanbul (1999) of another ethnic or religious group from cer-
summits of the Organization for Security and tain geographic areas. To a large extent, it is
Cooperation in Europe, in particular the re- carried out in the name of mis-guided nation-
ports of “ethnic cleansing” and other serious alism, historic grievances and a powerful driv-
violations of international humanitarian law in ing sense of revenge. This purpose appears
Abkhazia, Georgia… to be the occupation of territory to the exclu-
Emphasizes the importance of preserving sion of the purged group or groups”.3
the property rights of refugees and internally Another report mentioned that “this poli-
displaced persons from Abkhazia, Georgia, cyis implemented through the following means:
including victims of reported “ethnic cleans- killing, torture, illegal detention and imprison-
ing”, and calls upon all Member States to de- ment, illegal executions, rape and sexual vio-
ter persons under their jurisdiction from ob- lence, placing civil population in ghettos,
taining property within the territory of Abkha- forced displacement, deportation, purposeful
zia, Georgia, in violation of the rights of re- armed attacks on civilians and civilian objects,
turnees…”1 or threatening such an attack”.4
It is noteworthy that from the very outset Such a definition fully fits the frame of def-
of the conflict the United Nations Security Co- inition of genocide, but an emphasis was still
uncil, as well as General Assembly avoided shifted to “ethnic cleansing”, as Muslims rep-
acknowledging “ethnic cleansing” in reso- resented a small part of the multi-million pop-
lutions adopted by them; however, by 1992- ulation in Bosnian Serbia of Bosnia and Herze-
1993 definition of a crime against humanity govina. Formally, as defined by lawyers, in
such as “ethnic cleansing” was increasingly order to be recognized as a victim of geno-
introduced. And what is more, the growing cide, person shall belong to a specific minor-
occurrence of crimes in the territory of the ity group, which is not a part of majority popu-
former Yugoslavia persuaded the United Na- lation living throughout entire territory of a
tions General Assembly to acknowledge “eth- country (the Muslim population living in Bos-
nic cleansing” as a form of genocide, which nia and Herzegovina was considered to be
was exercised through mass killing, torture, such a group).
40
L. ALEXIDZE, VITAL ROLE OF OSCE IN CONDEMNING ETHNIC CLEANSING OF GEORGIAN ...
International tribunal for the Former Yu- occurred in Abkhazia. It is known, that 6,000
goslavia, has not once stated that “ethnic peaceful civilians died as a result of the bar-
cleansing” is a set of actions directed against barian policy, and over 200,000 georgians
a certain group of civilians, perceived to be were expelled from Abkhazia through terror
one or several national or political groups; and inhuman treatment due to the only rea-
these acts shall be attributed to one and the son of being Georgians. The latter complete-
same model: these are the state planned and ly fitted the definition of “ethnic cleansing” as
organized actions… they have a common goal: provided by international experts and tribunals
to organize “ethnic cleansing” at a particular in their conclusions.
territory and create a new state. These ac- It is to be memtioned, that more then
tions serve as means to exercise policy of “eth- 150000 of peoples belonging to other etnic
nic cleansing”. Based on this the Trial Cham- goorps also had to leave the region
ber consider that the above-mentioned acts The last, summing-up report was of a par-
constitute “crimes against humanity”.5 ticular extent and all-inclusive (38 pages, plus
In 1994 a State Commission was estab- the maps. See the annex) – Report of the
lished in Georgia in order to reveal facts of Policy of Ethnic/Genocide Conducted in the
“ethnic cleansing/genocide” committed against Territory of Abkhazia, Georgia, and the Ne-
the Georgian population in Abkhazia and to cessity of Brining to Justice the Persons Who
ultimately submit the respective material to an Committed These Crimes in Accordance with
international tribunal. Chairmanship of the International Principles of Due Process.9
Commission was conferred on me. The Com- Unfortunately, as I mentioned already, both
mission, with the support of the Georgian Pros- – the Security Council as well as the Human
ecution Service, based on meetings with the Rights Commission “circumvented” to include
population displaced from Abkhazia, and photo this topic into the agenda, however the Spe-
and video material obtained by journalists, cial Rapporteur Eide did straightforwardly
commenced studying the outrageous tragedy mentioned in the Report that violating the terri-
that had taken place in Abkhazia. torial integrity of Georgia was followed by eth-
Reports, listing and summing up the facts nic cleansing in Abkhazia.10
established by the respective time, were dis- The first international organization which
seminated within the UN Security Council and from the very beginning echoed the tragic
Human Rights Commission on a yearly basis. developments taking place in Abkhazia was
The first document was drafted as a State- nonetheless the Organization for Security and
ment.6 Cooperation in Europe (OSCE). Already in
Starting from 1995, the documents distrib- 1994 the Budapest Summit participating states
uted, along with providing for lengthy informa- expressed their deep concern over “‘ethnic
tion on the concrete facts, contained scientific cleansing’, the massive expulsion of people,
assessment of the practice. For instance, the predominantly Georgian, from their living ar-
title of the document submitted to the United eas and the deaths in large number of inno-
Nations Human Rights Commission was “Eth- cent civilians”.11
nic cleansing/genocide is the main tool for However, the most comprehensive, though
aggressive separatism in Abkhazia”. The doc- concise definition of the policies carried out
ument considered such issues as: 1. Geno- by the separatists in Abkhazia is included into
cide/Ethnic cleansing as an international crime the Lisbon Summit Declaration (dated 3 De-
against humanity; 2. Fascist ideology of sep- cember 1996): “We (the OSCE member states
aratists and its implementation in practice; 3. – L.A.) condemn the ‘ethnic cleansing’ result-
Facts revealing the policy of ethnic cleansing/ ing in mass destruction and forcible expulsion
genocide exercised against the Georgian pop- of predominantly Georgian population in Abk-
ulation in Abkhazia.7 hazia”.12
The subsequent report was of the same In November 1999 in the Declaration
format.8 adopted at the OSCE Summit convened in
The reports provided for comparison of Istanbul the states “reiterated” their “strong
the practice of ethnic cleansing in other re- condemnation as formulated in the Budapest
gions of the world and of the tragedy that had and Lisbon Summit Documents, of the “ethnic
41
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
42
L. ALEXIDZE, VITAL ROLE OF OSCE IN CONDEMNING ETHNIC CLEANSING OF GEORGIAN ...
flict in Abkhazia lately, it leaves without any in utmost severe material conditions. It is apt
reaction sabotage exercised by the separat- to recall here that according to all the existing
ists and an uncompromising refusal to con- documents, any kind ofeconomic reconstruc-
sider proposals submitted by any internation- tion in the region shall be closely linked with
al organization (the Boden Plan) or the Gov- the irreversible process of return of the refugees
ernment of Georgia (one of which was dissem- and internally displaced persons to Abkhazia.
inated by Georgia as the Security Council The separatist regime has absolutely no
document in 1999), as they confirm Abkhazia right to hold any election in a factually depop-
being a part of Georgia and they recognize ulated Abkhazia (out of population of 550,000
inviolability of territorial integrity and sovereign- there are less than 150,000 remaining in Abk-
ty of Georgia.18 hazia, the majority of the ethnic Abkhaz live
The current policy of Russia with regard outside the region without an intention of re-
to the conflict in Abkhazia backs up the sepa- turning to the devastated homeland).
ratist regime both de facto and de jure. De- In this state of affairs the United Nations
spite the fact that Russia has never formally General Assembly Resolution, adopted de-
recognized “independence” of Abkhazia, the spite the harsh opposition of Russia, is yet
former has actually established close relations another reminder to the international commu-
with the separatist, that is expressed in drop- nity that when hundreds of thousand innocent
ping economic blockade, mass granting of the people fall victims of the intentions of sepa-
Russian nationality, establishing official legal ratists in any region (notwithstanding how
relations with the separatist bodies, strength- small and under inhabited it may be) the in-
ening peacekeeping forces without the con- ternational organizations may not hold a pas-
sent of Georgia, introduction of the so called sive stance; the vigorous fight for protection
railway army forces for the sake of reconstruc- of such precious rights of contemporary civili-
tion of strategically important roads, and in gen- zation is indispensable.
eral commencement of a process of “economic The endowment of the Organization for
revival” of the Abkhazia region, while hundreds Security and Cooperation in Europe in under-
of thousands of displaced population remain taking this noble duty is enormous.
1
United Nations General Assembly Resolution A/RES/62/249, 29 May, 2008.
2
See: United Nations General Assembly Resolution A/47/121 December 18, 1992
3
UN Doc. S/1994/674, para.129, 24 May 1994.
4
UN Doc. S/25/277, para.56.
5
International Tribunal for Former Yugoslavia; In the Trial Chamber, Prosecutor v.
Radovan Karadzic and Ratko Mladic Review of the Indictments Pursuant to Rule
61 of the Rules of Procedure and Evidence, 90-91, 11 July, 1996.
6
Statement dated 15 February 1994 of the Republic of Georgia State Committee
for Investigation and Revaluation of Materials Concerning the Policy of Genocide
and Ethnic Cleansing Against the Georgian Population in Abkhazia, and
Submission of Such Materials to an International Tribunal – UN Security Council
doc. S/1994/225 26 February 1994.
7
UN Security Council, doc. S/1995/200, 14 March 1995; UN ECOSOC, Commission
on Human Rights, Fifty-First Session, doc. E/CN.4/1995/139, 8 February 1995.
8
E/CN.4/1996/146, 10 April 1996.
9
Report on the Policy of Ethnic Cleansing/Genocide Conducted in the Territory of
Abkhazia, Georgia, and a Necessity of Bringing to Justice the Persons Who
committed these Crimes in accordance with International Principles of Due
Process – UN Doc. A/52/16; S/1997/317, 16 April 1997.
10
E/CN.4/Sub.2/1994/36, 6 July 1994, para. 31.
11
Meeting of the Heads of State and Government of the OSCE Participating States,
4 and 5 December 1994, in “Towards a Genuine Partnership in a New Era”, UN
Doc. A/49/800-S/1994/1435, annex. Budapest Decisions, Regional Issues,
Georgia, para. 2.
43
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
13
Lisbon Summit Declaration, 3 December 1996, UN Doc. A/51/76, appendix I,
para. 20. I have to mention extremely important work accomplished by Mr. Tamaz
Diasamidze, who has collected and published the acts related with the conflicts
in Abkhazia and Tskhinvali region in Georgian, Russian and English languages
– Regional Conflicts in Georgia – The Autonomous Oblast of South Ossetia, The
Autonomous SS Republic of Abkhazia (1989-2002), The Collection of Political-
legal Acts”, Tbilisi, 2003.
13
OSCE Istanbul Summit Declaration, 19 November, 1999 par. 17, www.osce.org.
14
Collected Materials Concerning Regulating the Conflict in Abkhazia, Georgia,
adopted in 1992-1999, UNDP, Tbilisi 1999 pp.59-60.
15
See: United Nations Security Council 1036/1996/12 January 1996; 1065-1996, 12
July 1996.
16
See: Resolutions 1427/29 July 2002; 1582/28 June 2005; 1615 (2005); 1656
(2006).
17
See: Resolutions 1656 (2006); 1716 (2006)… 1808 (2008)
18
Basic Principles for Determining the Status of Abkhazia within a New State
Structure of Georgia – Doc. S/1999/813, Annex.
44
L. ALEXIDZE, VITAL ROLE OF OSCE IN CONDEMNING ETHNIC CLEANSING OF GEORGIAN ...
45
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
46
qeTevan xuciSvili
47
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
48
q. xuciSvili, suverenuli imunitetebis dacvam unda gadawonos Tu ara adamianebis dacva ...
49
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
50
q. xuciSvili, suverenuli imunitetebis dacvam unda gadawonos Tu ara adamianebis dacva ...
51
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
52
q. xuciSvili, suverenuli imunitetebis dacvam unda gadawonos Tu ara adamianebis dacva ...
53
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
54
q. xuciSvili, suverenuli imunitetebis dacvam unda gadawonos Tu ara adamianebis dacva ...
55
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
56
q. xuciSvili, suverenuli imunitetebis dacvam unda gadawonos Tu ara adamianebis dacva ...
57
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
les imiT, rom konvenciaze xelis mower- sazrebebic arsebobs. `pinoCetis saqmeze
iT Cilem uari Tqva masze~.67 literatur- lordTa palatis mier miRebuli gadaw-
aSi aseve SevxvdebiT mosazrebas, romlis yvetilebis kritikuli ganxilvisas hen-
Tanaxmad, `pinoCetis gadawyvetileba ri kisinjeri saubrobs mosamarTleTa
uCvenebs politikisa da saxelmwifo suv- tiraniaze, ramac mTavrobis tirania
erenitetis mdgrad Zalauflebas Tana- Secvala, aseve prokurorul diskreci-
medrove saerTaSorisosamarTlebriv aze, angariSvaldebulebis gareSe, da
wesrigSi~.68 afrTxilebs, rom `istoriulad brZenTa
nebismier SemTxvevaSi, saqme sainte- diqtatura xSirad inkviziciebiTa da
resoa imdenad, ramdenadac pinoCetis jadoqrebze nadirobiT sruldeboda~.73
saqmis pirvelad ganxilvisas mosamarT- am statiis miznebisTvis saintereso
leTa umravlesobam daadgina: `saerTa- kidev erTi – erodias74 – saqmis ganxilvi-
Soriso samarTalma naTeli gaxada is, rom sas iangi SeniSnavs, rom `sagareo saqmeTa
garkveuli saxis qmedebebi, maT Soris moqmedi ministrebis sisxlissamarT-
wameba da mZevlad xelSi Cagdeba yovel- lebrivi iurisdiqciisgan absoluturi
mxriv da yvelasTan mimarTebiT miuRebe- imunitetebiT dacvisa da xelSeuxeblo-
li qmedebebia. es exeba saxelmwifos me- bis ganmtkicebisas sasamarTlom Tavi
Taurebs zustad iseve, an kidev ufro aarida belgiis mier universaluri
metad, vidre nebismier sxvas; sawinaaRm- iurisdiqciis savaraudo ganxorcieleb-
dego daskvna saerTaSoriso samarTals is kanonierebis Sesaxeb poziciis gamox-
moCvenebiTs gaxdida~.69 pinoCetis saqmis atvas. Tumca sasamarTlo imunitetis sa-
mesamed ganxilvisas lordTa palatis mo- kiTxis ganxilvas miudga imis aRiarebiT,
samarTleTa umravlesobam – eqvsi erTis rom belgias hqonda saerTaSoriso sa-
winaaRmdeg – daadgina, rom pinoCets ar marTliT gansazRvruli universaluri
SeeZlo imunitetis moSvelieba wamebis iurisdiqcia, rogorc saqmem cxadyo, sa-
konvenciis70 sawinaaRmdegod Cadenili erTaSoriso samarTalSi universaluri
qmedebebisTvis sisxlissamarTlebrivi iurisdiqcia ganpirobebulia garkveuli
pasuxismgeblobis asarideblad. wesebiT, romelTa Soris aRsaniSnavi imu-
piter karteri svams kiTxvas: `SeiZle- nitetis wesia~.75
ba Tu ara iTqvas, rom pinoCetis saqmeze isic aRiniSna: `problema isaa,... rom
miRebuli gadawyvetilebis Sedegad aR- Tanamedrove saerTaSoriso samarTalSi
mocenda zogadi saerTaSoriso samarT- seriozuli gaurkvevlobaa saxelmwifosa
lis uryevi norma, romelic ar Seesabame- da mTavrobis meTaurTa imunitetebTan
ba nebismier aqamde dadebul xelSekrule- dakavSirebiT~.76 es gaurkvevloba adami-
baSi arsebul diplomatiur imunitetebs, anis uflebaTa dacvis sasargeblod unda
imdenad, ramdenadac isini vrceldeba gadawydes, saxelmwifoTa iZulebiT, uari
adamianis uflebaTa saerTaSoriso samar- Tqvan sakuTar egoistur ganwyobebze, da-
Talze?~ da misi pasuxi zedmiwevniT lako- culni iyvnen sisxlissamarTlebrivi dev-
niuria: `SesaZloa~.71 rogorc qristian nisgan. adamianis uflebaTa dacvas unda
Cinkini marTebulad aRniSnavs, `imunite- mieniWos prioriteti da es gansakuTre-
tis uaryofa..., romelzec apelireba keT- biT mniSvnelovania im danaSaulebTan mi-
deba saxelmwifos yofili meTauris mier marTebiT, romlebsac `saerTaSoriso~
oficialurad Cadenil wamebis faqtebT- ewodeba. Sesabamisad, saerTaSoriso dan-
an dakavSirebiT, saerTaSoriso samarT- aSaulTa sisxlissamarTlebrivi devnis
lis or xedvas Soris arCevans warmoad- principi unda iqnes aRiarebuli univer-
gens: horizontalur sistemasa, romelic saluri iurisdiqciis principis parale-
saxelmwifoTa suverenul Tanasworoba- lurad da yvela saxelmwifo unda iyos
zea dafuZnebuli da vertikalur siste- uflebamosili, ganaxorcielos sakuTa-
mas Soris, romelic jus cogens normebs, ri iurisdiqcia amgvari danaSaulebis Ca-
rogoricaa adamianis ZiriTadi uflebe- mdenTa mimarT, miuxedavad imisa, ra sta-
bi, icavs. arCevani martivi ar iyo~.72 tusiT sargeblobs damnaSave, an aris Tu
radgan suverenuli imunitetebis sa- ara raime kavSiri Cadenil danaSaulsa da
kiTxi sakmaod winaaRmdegobrivia, am Te- sisxlissamarTlebrivi devnis ganmaxor-
masTan dakavSirebiT gansxvavebuli mo- cielebel saxelmwifos Soris. samwuxar-
58
q. xuciSvili, suverenuli imunitetebis dacvam unda gadawonos Tu ara adamianebis dacva ...
59
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
60
q. xuciSvili, suverenuli imunitetebis dacvam unda gadawonos Tu ara adamianebis dacva ...
da sxva maRali rangis politikis ganm- ma, rom moiSvelion imuniteti, rogorc
sazRvrel Tanamdebobis pirTa imunite- argumenti, sisxlissamarTlebrivi pasux-
ti da ar niSnavs imas, rom isini unda iwy- ismgeblobis Tavidan acilebisa, amavdro-
narebdnen da nebas rTavdnen adamianis ulad, imunitetebiT dacul adamianTa
uflebaTa aSkara da sastiki farTomas- jgufi SeiZleba, gafarTovdes, Tu gaviT-
Stabiani darRvevis Cadenas. roca adami- valiswinebT saxelmwifoTaSorisi urT-
anuri tragedia warmoudgenel masSta- ierTobebis ganviTarebis Tanamedrove
bebs aRwevs, humanitaruli intervenciis tendenciebs, rasac Sedegad SesaZloa mo-
Teoriis Camoyalibebisa da misi suvere- hyves damnaSaveTa gazrdili raodenoba,
nuli saxelmwifos saSinao saqmeebSi Care- romlebic Seecdebian, Tavi Seafaron su-
vis damkvidrebis niSnebi SeimCneva; yve- verenitetis cnebas im dros, rodesac yve-
laze sastik danaSaulebTan mimarTebiT laze sastik danaSaulTa sapasuxod hu-
universaluri iurisdiqciis principis manitaruli intervencia Tanamedrove
arsebobis pirobebSi nebismieri saxelmwi- saerTaSoriso samarTlis nawilad Camoy-
fos ufleba, gaasamarTlos umaRlesi alibebuli SeiZleba gaxdes.
rangis moxeleebi, aRiarebul unda iqnes msoflioSi dRes, roca adamianis uf-
samarTlis safuZvlianad ganmtkicebul lebaTa dacva aRar aris miCneuli suver-
principad da misi dacva saWiroa yovel- enuli saxelmwifos Sida saqmed, roca
Tvis, raTa moxdes samarTlianobis princ- arCevnebs akvirdebian saerTaSoriso sad-
ipebis ganxorcieleba da uflebaTa daum- amkvirveblo misiebi da saerTaSoriso
saxurebeli darRvevisagan aTasobiT ad- organizaciebs nebismieri saxelmwifos
amianis dacva. adamianis uflebaTa dacvis sasjelaRsrulebis dawesebulebebis sak-
idea ukve gadascda erTi konkretuli sa- nebamdec SeuZliaT miRweva, saxelmwifo
xelmwifos sazRvrebs da farTo saerTa- imunitetisa da adamianis uflebaTa sas-
Soriso sazogadoebis gansjisa da wuxi- tiki darRvevebis Camdeni saxelmwifo
lis sagnad iqca. adamianis uflebaTa sas- moxeleebis xelSeuxebloba ar unda rCe-
tiki farTomasStabiani darRvevebis Ta- bodes nebismieri saxelmwifos kontrols
vidan acileba da msxverplTa dacva gan- gareT da mxolod erTi konkretuli suv-
sakuTrebiT mimzidvelia, did adgils erenuli saxelmwifos kompetenciis far-
ikavebs politikuri liderebis gamosv- glebSi, romelic, savaraudoa, arafers
lebSi da yovlis SemZleTa politikuri gaakeTebs, raTa sakadrisad mixedos am
programebis deklarirebuli nawili mainc SemTxvevas. adamianis uflebaTa sastiki
gaxda. teqnikur problemebTan erTad, masobrivi darRvevebi unda isjebodes.
rac damnaSave liderTa dakavebasa da maT amisTvis sakmarisi ar iqneba mxolod ad
mier sasjelis moxdas ukavSirdeba, dauS- hoc saerTaSoriso tribunalebi. sisxlis
vebelia damatebiTi barierebisa da lim- samarTlis saerTaSoriso sasamarTlos
itirebis SemoReba, rac adamianis ufleb- `komplementarobis~ princips Tavisi uar-
Ta sastiki masobrivi darRvevebis Camde- yofiTi mxareebi aqvs. amdenad, yvelaze
ni umaRlesi Tanamdebobis pirebis sisx- ufro Semzaravi – anu saerTaSoriso da-
lissamarTlebriv devnas xels SeuSlis. naSaulebis mimarT universaluri iuris-
da saerTod, romelime imuniteti Rirs ki diqciis aRiareba – unda miviCnioT gamo-
adamianis uflebaTa masobrivi darRveve- savlad, raTa gardaulvad iqnes miRweu-
bis msxverplTa godebad? adamianis uf- li maTi dasja, vinc amas imsaxurebs. dasa-
lebaTa sferoSi dauSvebelia mxolod sjelni unda daisajon da saxelmwifo
dabali rangis damnaSaveTa dasja da maTi, imuniteti ar SeiZleba urcxvad iyos ga-
vinc gegmavs da marTavs adamianis ufle- moyenebuli damsaxurebuli sasjelis Ta-
baTa masobriv sastik darRvevebs, Tavisu- vidan asarideblad.
flad datoveba da imis saSualebis mice-
1
mosamarTle jeqsoni, Sesavali sityva, warmoTqmuli saerTaSoriso tri-
bunalis winaSe. ix.: Jackson, R. (1947) The Nuremberg Case as Presented by
Robert H. Jackson, Chief of Counsel for the United States, gv. 82-83.
61
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
2
`saerTaSoriso danaSaulis~ cnebasTan dakavSirebiT ix.: De Than, C.&
Shorts, E. (2003) International Criminal Law and Human Rights, gv.13-14; Kit-
tichaisaree, K. (2001) International Criminal Law, gv.3-4; Steiner, H.J.& Alston, P.
(ed.) (2000) International Human Rights in Context: Law, Politics, Moral, gv.1132-
38; Cassese, A. (2003) International Criminal Law, gv.23-25.
3
saxelSekrulebo samarTlis venis konvenciis me-2 muxlis me-7 punqtSi
mocemuli definiciis Sesabamisad,.
4
ix.: United Kingdom House of Lords, Regina v. Bartle and the Commissioner of
Police for the Metropolis and Other (Appellants), Ex Parte Pinochet (Respon-
dent) (Second Appeal hearing from a Divisional Court of the Queen's Bench
Division holding that former heads of state are entitled to immunity), House of
Lords, 24 March 1999 [1999] 2 All ER 97, [1999] 2 WLR 827.
5
ix.: Tams, C.J. “Well-Protected Enemies of Mankind”, in The Cambridge Law
Journal (July, 2002) vol.61, part 2, at 246, gv. 246-249.120
6
ix.: O’Neill, K.C. “A New Customary Law of Head of State Immunity?: Hirohito and
Pinochet”, in Stanford Journal of International Law (2002), vol. 38, at 289, gv. 314-317.
7
ix.: Bianchi, A. “Immunity Versus Human Rights: The Pinochet Case”, in EJIL
(1999), vol.10, No.2, at 237, gv. 254-62.
8
ix., zogadad: Greenwood, C. “Is There a Right of Humanitarian Intervention?”,
in The World Today (February 1993) vol. 49, gv. 34-40, (cited from the LSE Course
Pack for LL461); Simma, B. “NATO, the UN and the Use of Force: Legal Aspects”,
in EJIL, (1999), vol.10, No.1, gv. 1-22; Kritsiotis, D. “The Kosovo Crisis and NATO’s
Application of Armed Force Against the Federal Republic of Yugoslavia”, in ICQL
(2000), vol.49(2), at 330; “Kosovo: House of Commons Foreign Affairs Commit-
tee 4th Report, June 2000”, in ICLQ (2000), vol.49(4), gv. 876-943.
9
natos Zalebis mier kosovoSi ganxorcielebuli humanitaruli inter-
venciis msgavsad.
10
gaerTianebuli erebis organizaciis uSiSroebis sabWos saxiT.
11
ix.: saerTaSoriso samxedro tribunalis wesdeba, me-7 muxli; Soreuli
aRmosavleTis saerTaSoriso samxedro tribunalis wesdeba, me-6 muxli;
yofili iugoslaviisaTvis Seqmnili saerTaSoriso sisxlis samarTlis
tribunalis wesdeba, me-7 muxlis me-2 punqti; ruandisaTvis Seqmnili saer-
TaSoriso sisxlis samarTlis tribunalis wesdeba, me-6 muxlis me-2 punq-
ti; saerTaSoriso sisxlis samarTlis sasamarTlos damfuZnebeli ro-
mis statuti, 27-e muxli.
12
mag., is, rom sasamarTloebi ukve arseboben da damatebiTi saxsrebis
gamoyofa saWiro ar aris, da a.S.
13
ix.: Smis, S & Van der Borght, K “Belgian Law concerning The Punishment of Grave
Breaches of International Humanitarian Law: A Contested Law with Uncontested
Objectives “in ASIL Insiqhts, (Juli 2003)”.
14
ix., zogadad: Mallory, J.L. “Resolving the Confusion Over Head of State Immu-
nity: The Defined Rights of Kings”, in Columbia Law Review (1986), vol. 86, at
169, gv.169-71.
15
amasTan dakavSirebiT ix., zogadad: Brohmer, J. (1997) State Immunity and
the Violation of Human Rights, gv. 2-4 & 24-33; Higgins, R. (1994) Problems and
Processes gv. 78-94.
16
ix. me-5 sqolio, zemoT.
17
saerTaSoriso danaSaulis ganmartebasTan dakavSirebiT ix.: Schabas, W.A.
(2001) An Introduction to the International Criminal Court, gv. 21-53.
18
principi par in parem non habet imperium.
19
ix. Falk, R. (1998) Sovereignty and Human Dignity: The Search for Reconcilia-
tion, in Steiner, H.J.& Alston, P. (ed.) (2000) International Human Rights in Con-
text: Law, Politics, Moral, gv. 581.
20
ix., zogadad: Bröhmer, J. (1997) State Immunity and the Violation of Human
Rights, gv. 14-33; European Convention on State Immunity; Fox, H. (2002) The
Law of State Immunity, gv. 11-64; Lewis, C.J. (1990) State and Diplomatic Immu-
nity, gv. 7-21; McClanahan, G.V. (1989) Diplomatic Immunity, pp. 27-83; Malanc-
zuk, P. (1997) Akehurst’s Modern Introduction to International Law, gv. 118-123;
O’Neill, K.C. A New Customary Law of Head of State Immunity?: Hirohito and
62
q. xuciSvili, suverenuli imunitetebis dacvam unda gadawonos Tu ara adamianebis dacva ...
Pinochet, Stanford Journal of International Law, 38, 2002 at 289, gv. 291-295;
Brownlie, I. (1998) Principles of Public International Law, gv. 327-328.
21
ix. Malanczuk, P. (1997) Akehurst’s Modern Introduction to International Law, gv. 118.
22
ix. Bassiouni, M. C. (1992) Crimes Against Humanity in International Criminal
Law, gv. 465.
23
ix. Lewis, C.J. (1990) State and Diplomatic Immunity, gv. 15.
24
,,saxelmwifo – es me var". ix. Watts, A. (1994) The Legal Position in Interna-
tional Law of Heads of States, Heads of Governments and Foreign ministers in
Collected Courses of The Hague Academy of International Law gv. 35.
25
gaerTianebuli erebis organizaciis wesdeba, me-2 muxlis 1-li punqti.
26
Ibid., me-2 muxlis me-2 punqti.
27
Ibid., 1-li muxlis me-3 punqti.
28
Ibid., 55-e muxlis g qvepunqti.
29
ix.: 24-e sqolio, supra, gv. 36.
30
ix.: Fox, H. (2002) The Law of State Immunity, gv. 26.
31
Tumca saerTaSoriso sisxlis samarTlis tribunalis srulad `saerTa-
Sorisod~ miCneva, misi bunebidan gamomdinare, rTulia.
32
ix.: 29-e sqolio, supra.
33
ix., mag.: Shaw, M.N. (2003) International Law, gv. 574.
34
ix.: me-8 sqolio, supra.
35
ix., zogadad: Simpson, G. (2004) Great Powers and Outlaw States: Unequal
Sovereigns in the International Legal Order.
36
ix., me-5 sqolio, supra.
37
ix., mag.: me-6 sqolio, supra, gv. 292.
38
versalis xelSekruleba, 28 ivnisi, 1919.
39
ix: Commission on the Responsibilities of the Authors of the War on the En-
forcement of Penalties, American Journal of International Law (1920) vol.14(1),
gv. 95-154.
40
versalis xelSekruleba, 227-e muxli.
41
ix. 39- e sqolio, supra, gv.116.
42
ix. 39- e sqolio, supra, gv.116..
43
Ibid.
44
ix.: Fox, H. (2002) The Law of State Immunity, gv.429.
45
ix.: Bassiouni, M. C. (1992) Crimes Against Humanity in International Criminal
Law, gv.343.
46
gaeros generaluri asambleis rezolucia 95/1 III principi ganamtki-
cebs individualuri sisxlissamarTlebrivi pasuxismgeblobis princips,
romelic dafiqsirebulia saerTaSoriso samxedro tribunalis wesdeb-
is me-7 muxlSi.
47
ix.: Cassese, A. (2003) International Criminal Law, gv. 267.
48
gaerTianebuli erebis organizaciis uSiSroebis sabWos rezoluciebi:
808-e da 827-e (1993).
49
gaerTianebuli erebis organizaciis uSiSroebis sabWos rezolucia –
955 (1994).
50
ix.: Milosevic, ICTY decision on preliminary motions, Trial Chamber III, Decision of
8 November 2001, paras. 226-33, citirebulia: Fox, H. (2002) The Law of
State Immunity, gv. xx.
51
saerTaSoriso sisxlis samarTlis sasamarTlos damfuZnebeli romis stat-
uti, 27-e muxli.
52
radgan gaerTianebuli erebis organizaciis uSiSroebis sabWo ufleba-
mosilia, sakuTari diskreciiT imoqmedos saerTaSoriso mSvidobisa da
usafrTxoebisaTvis Seqmnil nebismier safrTxesTan an maTs darRvevas-
Tan dakavSirebiT, da radgan orive politikuri cneba ufroa, vidre sa-
marTlebrivi, moqmedebis Tavisufleba da politikuri SexedulebebiT
gadawyvetilebis miReba sul ar unda iyos gamoricxuli mis mier gadaw-
yvetilebebis miRebis procesSi. amasTan dakavSirebiT ix. zogadad: Con-
forti, B. (2005) The Law and Practice of the United Nations.
53
ix.: O’Neill, K.C. “A New Customary Law of Head of State Immunity?: Hirohito
and Pinochet”, in Stanford Journal of International Law (2002), vol. 38, at 289, gv. 294.
54
Ibid.
63
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
55
sxvadasxva saxis iurisdiqciaTa detaluri ganxilva am naSromis far-
glebs scildeba. ix., zogadad: Brownlie, I. (1998) Principles of Public Inter-
national Law, pp.289-299; Bantekas, I. & Nash,S. (2003) international Criminal
Law gv. 143-148, gv. 151-165.
56
ix.: Shaw, M.N. (2003) International Law, gv. 572. ( teqstSi xazgasma avtoris).
57
Ibid., gv. 573.
58
ix.: Shaw, M.N. (2003) International Law, gv. 572. ( teqstSi xazgasma avtoris).
59
ix., magaliTad: Convention on the Prevention and Punishment of the Crime of
Genocide, International Convention against the Taking of Hostages, Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or punish-
ment.
60
ix.: Broomhall, B. (2003) International Justice and The International criminal
Court, gv. 105.
61
Ibid.
62
Tumca es cneba jer kidev ar aris a priory saerTaSoriso samarTlis nor-
mad farTod aRiarebuli: ix., mag.: “Kosovo: House of Commons Foreign
Affairs Committee 4th Report, June 2000”, in ICLQ (2000), vol.49(4), gv. 876-943.
63
komplementarobis principTan dakavSirebiT zogadad ix.: Simpson, G.
(2004) “Politics, Sovereignty, Remembrance” in: McGoldrick, D & et al (ed.), The
Permanent International Criminal Court: Legal and Policy Issues, gv. 55.
64
ix.:: Rome Statute of the International Criminal Court, Art. 17; es principic
gulisxmobs suverenuli imunitetebis mxardaWeras. amdenad, argumenti,
romlis Tanaxmad, saerTaSoriso sisxlis samarTlis sasamarTlos upre-
cedento universaluri iurisdiqcia gaaCnia, unda uariyos.
65
ix.: Pinochet House of Lords, Regina v. Bartle and the Commissioner of Police
for the Metropolis and Other (Appellants), Ex Parte Pinochet (Respondent) (Second
Appeal hearing from a Divisional Court of the Queen's Bench Division holding
that former heads of state are entitled to immunity), House of Lords, 24 March 1999.
66
ix., zogadad:: Horowitz, J. Regina v. Bartle and the Commissioner of Police for
the Metropolis and Others Ex Parte Pinochet: Universal Jurisdiction and Sover-
eign Immunity for Jus Cogens Violations in Fordham International Law Journal
vol.23, pp.489-527; O’Neill, K.C. “A New Customary Law of Head of State Immu-
nity?: Hirohito and Pinochet”, in Stanford Journal of International Law (2002), vol.
38, at 289, gv. 317.
67
Ibid., gv. 316.
68
Ibid., gv. 291.
69
ix.:Ex parte Pinochet (No.1), [1999] 1 A.C. at 109.
70
ix.:Convention Against Torture and Other Cruel, Inhuman or Degrading Treat-
ment or punishment
71
ix.:Carter, P. (2002) “International Criminal Law and Human Rights” in: Butler,
F.(ed.), Human Rights Protection: Methods and Effectiveness, gv. 145.
72
ix.:Chinkin, C. M. “United Kingdom House of Lords, (Spanish Request for extra-
dition). Regina v.Bow Street Stipendiary Magistrate, Ex parte Pinochet Ugarte
(No.3).[1999] 2 WLR 827”, in American Journal of International Law (1999) vol.93,
at 703, see: gv. 711.
73
ix.:Fox, H. The Resolution of the Institute of International Law on the Immunities
of Heads of State and Government, International and Comparative Law Quarter-
ly, (January 2002) vol. 51, gv. 119.
74
ix.: Case Concerning The Arrest Warrant of 11 April 2000 (Democratic Republic
of The Congo v. Belgium), International Court of Justice, 14 February, 2002.
75
ix.: Yang, X. “Immunity for International Crimes: A Reaffirmation of Traditional
Doctrine”, in Cambridge Law Journal, (July 2002), vol.61, part 2, at 239; gv. 245.
76
ix.: sqolio 73, supra, gv. 124.
77
ix.: sqolio 73, supra, gv. 125.
78
ix.: sqolio 75, supra, gv. 244.
79
ix.: sqolio 74, supra, §. 61.
80
ix.: Yang, X. “Immunity for International Crimes: A Reaffirmation of Traditional
Doctrine”, in Cambridge Law Journal, (July 2002), vol.61, part 2, at 239; gv. 245..
81
ix.: Cassese, A. (2003) International Criminal Law, gv. 3.
64
KETEVAN KHUTSISHVILI
65
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
over these offenders for commission of inter- breaking case in relation to protection of im-
national crimes? munities and prosecution of criminal leaders
In order to answer the main question this of states.
essay poses and to understand in depth the It is important to underline at this stage
legitimacy of a quest to rescind an absolute that despite realizing importance attached to
immunity from criminal prosecution of the high- different types of immunities14, for the purpos-
est level state officials, it is important to briefly es of this essay immunities afforded to high
analyze a concept of state immunity and de- level state officials will be regarded as a one,
velopment of a notion of individual criminal unified concept, which helps the high ranking
responsibility (of high ranking state officials). perpetrators of international crimes to escape
Analyzing the universal jurisdiction in interna- criminal responsibility. Thus, appreciating dif-
tional law and contrasting a possibility of abol- ferences between immunity ratione materiae
ishing immunities to exercise universal juris- and immunity ratione personae the essay will
diction over perpetrators of international not concentrate on these differences and the
crimes with the recently introduced concep- importance attached to them15. This is due to
tion of humanitarian intervention for protec- the limited format of the essay and also due
tion of human rights – conclusion will be drawn to the fact that if the matter is discussed from
in relation to feasibility of establishment of the victims’ perspective, there is too little a dif-
state practice and respective norms of inter- ference for victims of human rights atrocities,
national human rights law to subject the high- whether a person responsible for grave inter-
est representatives of sovereign states to uni- national crimes was covered by immunity “a”
versal jurisdiction, and thus grant domestic or immunity “b”. What is important for victims
courts of any nation possibility to prosecute is that a “well-protected”16 high level official is
high ranking state officials protected by im- responsible for the crime, and he/she can es-
munities when perpetrating international cape this responsibility due to the well-config-
crimes. Interrelation of immunities, a principle ured immunities afforded to him/her. The es-
of sovereign equality of states and a problem say will also not consider responsibility of crim-
of protection of human beings from interna- inal leaders for relatively minor crimes – or
tional crimes will also be discussed. The main those which fall outside the scope of definition
argument the essay tries to develop is that of international crimes17. Thus, the interest of
the initiatives similar to the Belgian law con- the essay is to consider the relationship of any
cerning The Punishment of Grave Breaches type of immunity that can possibly be argued
of International Humanitarian Law13 must be by criminal leaders of states, with their criminal
supported in this sense. responsibility for international crimes.
The following Chapter will discuss devel-
opment of a concept of sovereign immunity, II. PROTECTION OF IMMUNITIES AND
and will show that at the current stage of de- SOVEREIGN EQUALITY OF STATES18:
velopment of human rights law protection of WHY SHALL THIS MATTER MORE
immunities and sovereign equality of states is THAN PROTECTION OF HUMAN
not valued more than prosecution of grave BEINGSFROM ATROCITIES?
human rights violations, constituting interna-
tional crimes. Chapter III will discuss develop- “If the doctrine of sovereignty could be
ment of attributing individual criminal respon- erased from the minds of political leaders,
sibility to criminal leaders for grave interna- would it reduce those forms of human suffer-
tional crimes and Chapter IV will introduce an ing associated with extreme governmental fail-
idea of humanitarian intervention when gross ure? Would such an erasure strengthen sen-
human rights violations take place in a coun- timents of human solidarity on which an ethos
try. This topic is interesting for the purposes of collective responsibility and individual ac-
of the Essay as the lack of case law in relation countability depends?”19 This is a fundamen-
to the theme of this work calls for drawing anal- tal question Richard Falk put in his essay. The
ogies with other attempts to protect human questions, this Chapter poses in relation to
beings from mass atrocities and for that com- the same issues, are the following: Can pro-
promising even state sovereignty. Chapter V tection of human beings from atrocities be
introduces the case of Pinochet as a ground- considered as having more value than protec-
66
K. KHUTSISHVILI, SHALL PROTECTION OF SOVEREIGN IMMUNITIES SUPERSEDE PROTECTION...
tion of sovereign (state) immunity and there- Nations, it “is based on the principle of the
fore, can inviolability of those representing a sovereign equality of all its Members”25, i.e.
state at international plane be put under risk sovereign states. However, this “sovereign
for the sake of prosecution and, possibly, equality” can not be conceived to be uncondi-
avoiding future massacres? tional, as along with recognizing the aforemen-
To find answers to these questions a cur- tioned principle, the UN Charter qualifies the
sory overview of a concept of sovereign (state) rights of its members by introducing the follo-
immunity20 is apt in order to appreciate signif- wing provision: “All Members, in order to en-
icance attached to it historically. Protection of sure to all of them the rights and benefits re-
sovereign (state) immunity and equality of sulting from membership, shall fulfil in good
states in international relations do have con- faith the obligations assumed by them in ac-
siderable importance. These are concepts of cordance with the present Charter.”26 One of
international law, detailed study of which falls the “obligations assumed” is obligation to pro-
outside the scope of this essay and therefore, tect human rights, as according to the same
the background discussion will only center on Charter, the purposes of the United Nations
them from the viewpoint of their correlation with include “promoting and encouraging respect
the development of human rights idea. The for human rights and for fundamental freedoms
Essay does not argue that a concept of sov- for all”27 and “universal respect for, and obser-
ereign immunity has to vanish altogether. vance of, human rights and fundamental free-
Scope of an enquiry of this work only extends doms for all”.28 Accordingly, it may be conclud-
to notion of sovereign (state) immunity as ed that if member states do not comply with
much as it may become a bar to prosecution the obligations imposed upon them by the
of perpetrators of international crimes. Charter, they may not appeal to the concept
Sovereign (or state) immunity is defined of sovereign equality of states and may not
in international law textbooks as “the legal rules require full protection of immunities and sov-
and principles determining the conditions un- ereign equality to which a state is generally
entitled.
der which a foreign state may claim freedom
Consequently, rationale behind the concepts
from the jurisdiction (the legislative, judicial and
of state immunity and state sovereignty may
administrative powers) of another state (often
be formulated as follows: these notions do not
called the “forum state”).”21 This conception
mean granting impunity to those perpetrating
was considered to be a cornerstone of inter-
international crimes rather they stand for pro-
national relations for centuries. Deriving from
tecting equality of states, provided that they
this rule, “[h]istorically, heads of state were not
meet the obligations imposed on them. As Sir
subject to criminal responsibility for their ac-
Watts argues, “over the past half century in
tions, because of the merger of the sovereign
particular, significant changes have occurred
and the sovereignty of the state.”22 Thus, “[t]he
in the law relating to State immunity. Practical
theoretical basis of the rule of sovereign im-
needs have led to a re-evaluation of the role
munity can be traced to a time when most
of the State in today’s international communi-
States were ruled by personal sovereigns who, ty. Older notions of their absolute entitlement
in a very real sense, personified the State”.23 to immunity are giving way to a more qualified
“The interrelationship between the State and view”29. According to Fox, “[a]nother factor at
its Head was thus very close: in Loius XIV’s work in the dismantling of the Westphalian
words, ‘L’Etat, c’est moi’”.24 State is the increased significance given to the
With the development of international law individual and the fundamental interests of
and conception of state, the attitudes in this each human being. Whilst those interests may
respect changed. In contemporary interna- not necessarily be protected by a process or
tional relations rationale for protection of sov- institution other than the State, a perception
ereign equality of states may be found in need has emerged that such interest cannot nec-
of supporting international relations between essarily be subordinated to the State inter-
the “equally sovereigns”, in order to maintain est...”30 A conclusion follows that development
proper legal order internationally. Primary sub- of international law and law of human rights
jects of international law are sovereign states does not permit shielding behind state sover-
and to mention as an example only one – uni- eignty in order to excuse perpetrations of hor-
versal international organization, the United rific human rights atrocities.
67
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
As the Essay will demonstrate, idea of in- garding the different immunities they may have
violability of state sovereignty is no longer that the benefit of.
integral, when protection of human beings from The subsequent chapters of the Essay will
mass violations of human rights is at stake. focus on correlation of notion of immunities
Development of human rights law, introduc- and individual criminal responsibility for inter-
tion of an idea of humanitarian intervention national crimes on the one hand and relative-
and no plea of immunities whatsoever before ly newly emerged concepts of humanitarian
international tribunals signals this. Concern intervention on the other. However, it is impor-
must be expressed in relation to domestic tri- tant to mention them at this stage as well, to
bunals that are not entitled to fully exercise demonstrate that the old notion of state sov-
universal jurisdiction and the concept of judg- ereignty has lost its original importance not
ing criminal leaders is basically confined to only in relation to separate individuals (despite
judicial institutions created under internation- their rank), but in relation to entire countries,
al authority31. Writing in 1994 Sir Watts noted, in a sense of entire territories within a given
that “it is […] to be cautious about the extent state boundaries. Comparison of these no-
to which a restrictive rule of State immunity is tions will once again demonstrate that concept
sufficiently generally supported throughout of immunities may not be appealed to so cou-
the international community to be yet estab- rageously any more, as these newly material-
lished as a rule of customary international law: ized notions incur and imply responsibility of
the trend towards adoption of the restrictive not only individual criminal leaders of any giv-
view is strong, but it cannot yet be said to en- en sovereign state, but “punishment” of en-
joy consensus.32 tire state. Consequently, it may be concluded
Advancement of human rights law in 20th without restraint that even if immunities and
century determined support of human rights protection of sovereign equality of states did
more than inviolability of certain highest level matter more than protection of human beings
state officials, representing a state and thus from massive atrocities, this does not hold true
covered by different immunities. This trans- any more.
formation was accompanied with the march of
development of human rights notion since the III. HOW DOES THE NOTION OF INDIVIDUAL
World War II: human rights are no longer “do- CRIMINAL RESPONSIBILITY FOR GRAVE
mestic matter of a state.”33 INTERNATIONAL CRIMES CORRELATE
Therefore, it follows that despite huge im- WITH IMMUNITIES?
portance attaching to the protection of sover-
eign equality of states, protection of human be- A problem related to prosecuting criminal
ings from atrocities must be valued more and leaders protected by immunities and involved
political consideration shall be determined and in perpetration of international crimes emerg-
to certain extent substituted by considerations es as a rule when exercise of universal crimi-
of necessity of protection of humans from the nal jurisdiction by domestic courts of states is
evil emanating in many cases from own government. considered. Surfacing question in this regard
Meanwhile, concept of humanitarian inter- is as follows: Can it be claimed that interna-
vention seems to have emerged and even tional law has always straightforwardly sup-
secured support of a number of respected in- ported absolute immunity and inviolability of
ternational law scholars34, not to mention the the highest ranking “well-protected”36? To an-
support of states which recognize this concept alyze this, an overview of recognition of indi-
as lawful. Now developments also move to- vidual criminal responsibility for international
wards recognizing “outlaw” states35. Observ- crimes is apt: examining advancement of the
ing these novelties, it can be argued that pro- concept of individual criminal responsibility of
tection of immunities can not stay uncondition- high ranking state officials gives a possibility
ally intact. If the international community can to glance over the progress in developing the
decide to “outlaw” the states leaders of which notion of charging and judging the criminal
perpetrate international crimes, an argument leaders for international crimes, irrespective
follows that domestic courts of the same states of their immunities and privileges. These trans-
may be permitted to exercise universal juris- formations served as considerable challenge
diction to prosecute the perpetrators, disre- to the idea of state immunity in respect of in-
68
K. KHUTSISHVILI, SHALL PROTECTION OF SOVEREIGN IMMUNITIES SUPERSEDE PROTECTION...
ternational crimes perpetrated by those rep- manity, if proved against him, could in no cir-
resenting state and claiming respective immu- cumstances be punished […] such a conclu-
nity from prosecution37.With the gradual de- sion would shock the conscience of civilized
velopment of human rights doctrine plodding mankind.”43
erosion of doctrine of sovereign immunity took Thus, even though in an extremely rudi-
place. mentary form and even though, never real-
It is broadly accepted that the Nuremberg ized in practice, the conclusions after the
Charter and its Judgment stand as corner- World War I recognized possibility of neglect-
stones in recognizing the concept of individu- ing the absolute protection of sovereign im-
al criminal responsibility for international munity and subjecting even Sovereign to pros-
crimes, including of those protected by immu- ecution for exceptional outrages.44 Therefore
nities. However, before the Nuremberg trials the Versailles Treaty stands out for its initial
there was the Versailles Treaty38 and for our and at that time unprecedented recognition
analysis it is important to mention that the first of criminal responsibility of a head of state.
wave of change was noticed already after the The next positive development in relation
World War I39, when the Kaiser Wilhelm II was to disregarding the claim of immunities was
announced to be falling under the jurisdiction marked at Nuremberg, where prosecution of
of a “special tribunalp constituted to try the the highest level state representatives for in-
accused.”40 The Report of the Commission on ternational crimes took place. “The [IMT] Char-
the Responsibilities of the Authors of the War ter did… establish unequivocally, the princi-
on the Enforcement of Penalties further stat- ple of individual criminal responsibility under
ed: “… the Commission desire to state ex- international criminal law… irrespective of any
pressly that in the hierarchy of persons in mandates under national law, and irrespec-
authority, there is no reason why rank, how- tive of the doctrine of Act of State and other
ever exalted, should in any circumstances pro- immunities...”45
tect the holder of it from responsibility when The pronouncement by the Nuremberg
that responsibility has been established be- Tribunal of individual criminal responsibility for
fore a properly constituted tribunal. This ex- international crimes was not an end to devel-
tends even to the case of heads of states”.41 opment of this concept. Developments in in-
Though this was a considerable challenge to ternational law prompted a need for further
the notion of state sovereignty at the early elaboration of the principles, and the Nurem-
stage of change of perception in this regard, berg Principles46 followed, reaffirming impor-
the Report of the Commission further “pro- tance and overall recognition of a principle of
posed the establishment of a high tribunal criminal responsibility of leaders perpetrating
composed of judges drawn from many nations, international crimes.
and included the possibility of the trial before As Cassese argues, “[t]he traditional rule
that tribunal of a former head of a state with whereby senior State officials may not be held
the consent of that state itself secured by ar- accountable for acts performed in the dis-
ticles in the Treaty of Peace.”42 The reserva- charge of their official duties was significantly
tion referring to the “consent of [the] state” undermined after the Second World War, when
can be understood if we take into consider- international treaties and judicial decisions
ation level of development of the concept of upheld the principle that this ‘shield’ no long-
individual criminal responsibility for grave in- er protects those senior State officials accused
ternational crimes of persons covered by im- of war crimes, crimes against peace, or crimes
munities at the time when the Versailles Trea- against humanity. More recently, this princi-
ty was concluded. Despite this reservation, the ple has been extended to torture and other
stated principle remains to be an important international crimes.” 47 The re-established
breakthrough in the perception of interrela- world order needed some more time to once
tion of state sovereignty and protection of again return to the principle recognized by the
humans from outrageous carnage. The same Article 7 of the International Military Tribunal
Report further noted: “If the immunity of a sov- Charter and try highest ranking state officials,
ereign […] would involve laying down the prin- when they ignored plea for justice of thou-
ciple that the greatest outrages against the sands of their own or other states’ nationals
laws and customs of war and the laws of hu- and perpetrated international crimes. This
69
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
only happened in the late 20th century, when maximum 15 countries occupying their seats
the Security Council of the United Nations de- in the Security Council of the United Nations
cided to create ad hoc international tribunals are entitled to decide respective principles of
and try perpetrators of international crimes in prosecution. Even more can the political pow-
the former Yugoslavia48 and Rwanda49. “The er be abused by the Permanent Five mem-
customary international law character of the bers of the Security Council, which are always
rule that a head of State cannot plead his of- in a position to partake in decision making
ficial position as a bar to criminal liability for processes related to the most important as-
genocide, war crimes, and crimes against hu- pects of the world development52. Concerns
manity before an international tribunal has related to the political abuse of power may
been confirmed by a Chamber of the Interna- stem from any activity, as this was clearly dem-
tional Criminal Tribunal for the Former Yugo- onstrated by the antagonism of the United
slavia (ICTY) in ruling that in accordance with States in relation to the permanent Interna-
Article 7.1 of its statute the ICTY has jurisdic- tional Criminal Court. Granting to the domes-
tion over President Milosevic, even though the tic courts universal jurisdiction over interna-
genocide and other international crimes al- tional crimes and recognizing their capacity to
leged were committed at a time when he was prosecute any leader of any state exclusively
serving as head of State of the Federal Re- for perpetration of this type of crimes must be
public of Yugoslavia.”50 Following the lines of considered as a possibility which would ensure
development of the two ad hoc tribunals, the better possibilities of bringing all perpetrators
permanent International Criminal Court, estab- to justice.
lished by the Rome Statute, also recognized It must also be noted that the Report of
impossibility of a plea of immunities by the offe- the Versailles Commission mentions a “prop-
nders falling under the scope of the Statute51. erly constituted tribunal”, not “an internation-
Thus, as this cursory overview witnesses, al tribunal” when referring to judging Kaiser.
recognition of the individual criminal respon- Even though the following statement might be
sibility of the high ranking state officials may challenged by supporters of inviolability of
be argued to be a settled practice. Problem those enjoying immunities, referring to the men-
emerges in correlation of universal jurisdiction tioned report it may still be argued, that it is
with immunities in respect with tribunals that not necessarily needed to have an interna-
are to prosecute high ranking officials, includ- tionally constructed tribunal to judge those
ing heads of states for international crimes. protected by immunities, but individual crimi-
Tribunals, that have prosecuted leaders of nal responsibility of this type of defendants may
sovereign states where international, or at be falling under universal jurisdiction, i.e. do-
least “internationalized”. This development mestic courts of any state, despite link with a
must start shifting and should move towards committed crime, perpetrator or a victim, must
national, domestic courts. It is noticeable also be entitled to bring them to justice.
that prosecutions of those covered by immu- O’Neil goes further and argues that “an
nities were permitted to either victorious argument can also be made through the anal-
states, or were commissioned by the United ogy to diplomatic immunity that both current
Nations Security Council. It is essential to point and former heads of state do not have immu-
this out, as antagonists to the idea of univer- nity for acts that violate international law.”53 She
sal jurisdiction for international crimes and goes on in comparing and concludes: “just as
thus, of subjecting those covered by different sending state can waive the immunity of a dip-
immunities to jurisdiction of national courts of lomat who acts outside the scope of his offi-
any state frequently argue that granting do- cial duties, a head of state who violates his
mestic courts this jurisdiction might involve official duties by committing international
political abuse of power and serve as a polit- crimes may be regarded as waiving his own
ical tool against leaders of other sovereign immunity. This form of “waiver”, which could
states. This argument may be easily eliminat- be considered automatic for acts in violation
ed by contrasting the state of affairs when any of international law, would be stricter than that
nation is entitled to exercise universal juris- of diplomatic immunity because the sending
diction with the one, when only “privileged” state can choose not to waive immunity for its
nations, would that be victorious nations or diplomats.”54
70
K. KHUTSISHVILI, SHALL PROTECTION OF SOVEREIGN IMMUNITIES SUPERSEDE PROTECTION...
71
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
though that exercising universal jurisdiction may of the United Nations may be entrusted to make
not be considered to be widely supported. a decision over criminal leaders and situations
Development of relatively recent notion of they create and recognize them subjected to
humanitarian intervention62 is interesting for “universal jurisdiction”, as their activities inflict
the purposes of this essay, as it serves as a gross human rights atrocities, causing “threat
tool of further erosion of a concept of sover- to international peace and security”.
eign immunity for the sake of dealing with the Whatever motivation behind and justifica-
mass human rights atrocities in any given state tion for humanitarian intervention, it may not
after all other legal and political means have be considered to be fitting any of the recog-
proven to be inefficient. This new concept is nized concepts of jurisdiction. It can not be
considered to be emerging due to the very argued that by possibly developing this con-
fact that international crimes so severely vio- cept further and making it a rule of interna-
late essential human rights that it is not per- tional law, even if used in very exceptional sit-
missible for the international community not uations, it would cause less harm to state sove-
to intervene, even by using force and thus reignty than recognition of exercise of univer-
punish the perpetrators. Consequently a sal jurisdiction over international crimes, dis-
question emerges: if humanitarian interven- regarding the status of the perpetrator. The
tion may be justified to protect human rights, development of international and human rights
what is so unacceptable in recognizing uni- laws evidence the need for progressive deve-
versal jurisdiction over international crimes and lopment of universally recognized principles.
instead of letting causing even more devas- Thus, a signal stemming from the emerg-
tating results for the general population of any ing concept of humanitarian intervention, that
given country, leaders of which might be im- mass human rights violations may serve as a
plicated in committing international crimes, to good cause to disregard sovereign equality
subject these leaders to universal jurisdiction of states and intervene in seemingly “domes-
and bring them to justice in any state physi- tic” matters, may lead to a conclusion that at
cally capable to do so? The benefits of such the current stage of development of the con-
change in practice seem to be the following: a cept of human rights protection it may perfectly
criminal leader receives deserved punishment, be possible to subject even the highest rank-
prosecution is targeted and instead of involv- ing perpetrators of international crimes to uni-
ing risk to lives of groups, already victimized versal jurisdiction along with already existing
by policies or conducts of criminal leaders only possibilities of prosecution, including the pros-
those “deserving” are hold to account. In this ecution according to the “complementarity”
case prosecution is targeted and victims can principle63 of the International Criminal Court64.
see that justice is served, whereas by exercis- Therefore, the conclusion follows: if there
ing humanitarian intervention even more in- is a real political will and devotion to the pro-
nocent people become victims along with those tection of human beings from atrocities, con-
groups that might already have been victims of stituting international crimes, there will be a
perpetrators. possibility to find way out from a maze of pro-
Therefore, the question remains: if huma- tection of sovereign immunity and sovereign
nitarian intervention can be tolerated in particu- equality notions and bring perpetrators of in-
larly exceptional situations, when the scale and ternational crimes to justice as deserved, to
character of perpetration is extremely abhor- serve the interests of justice, to work as deter-
rent, why can not the prosecution of those rent for future atrocities and to give survived
protected by immunities for perpetration of victims at least a bit of hope of the future.
international crimes by courts of other states
be considered as not infringing sovereign equ- V. AFTER ALL THE ABOVE DISCUSSED, WHAT DID
ality of states and thus, make it possible to strip COURT RULE IN THE PINOCHET CASE?
off immunities from those deserving so due to
their activities, notwithstanding their rank? Due to the limited format of the essay, the
If there is a risk of political misuse and if content of the case65 will not be considered in
states need more assurance of impartiality details: a limited discussion of the case will
than this can be guaranteed by a national suffice for the purposes of the essay. The
court of any given state, the Security Council case has been selected due to the following
72
K. KHUTSISHVILI, SHALL PROTECTION OF SOVEREIGN IMMUNITIES SUPERSEDE PROTECTION...
73
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
opposable before the courts of a foreign State, ternational law, it would be much more appro-
even where those courts exercise an extend- priate and practical to recognize universal ju-
ed criminal jurisdiction on the basis of various risdiction over international crimes, perpetrat-
international conventions on the prevention ed by high level state officials, when serving
and punishment of certain serious crimes.”79 their term of office and give them as less pos-
The Court “conclude[d] that immunity does not sibilities to shield behind armours of protec-
mean impunity.” Unfortunately, however, this is tion of immunities as possible.
exactly what it means. The four grounds enu-
merated by the International Court of Justice80 VI. CONCLUSION: SHALL IMMUNITIES
almost never work. As Yang argues, “in seek- CONTINUE TO STAND ON THE WAY TO
ing to exercise universal jurisdiction over a THE PROTECTION OF HUMAN RI\GHTS?
foreign State or a foreign national who may
benefit from State immunity, a domestic court The essay has demonstrated that protec-
has to satisfy two conditions: first, that the tion of sovereign equality of states and invio-
court has universal jurisdiction, as conferred lability of sovereign immunities has been sub-
by international law; and second, that the for- jected to considerable restrictions throughout
eign State or the individual does not enjoy the 20th century. Development of human rights
immunity under the circumstances.”81 This is law has prompted and necessitated consider-
exactly the problem. The law and state prac- able changes in the field. As the law progress-
tice must develop in a manner to overcome es, the development of protection mechanisms
the principle according to which the high rank- from atrocities must evolve further, and states
ing officials of other states use immunities as must recognize the importance of prosecution
a shield to avoid prosecution for international of the criminal leaders for the atrocities they
crimes, when the four circumstances enumer- perpetrate misusing their official capacity and
ated by the ICJ do not work in practice and influence, as well as a state apparatus for that.
they stay at large, not bearing responsibility If the right of humanitarian intervention
for most terrible atrocities. may be recognized as an appropriate mecha-
As it was underlined already, the Versailles nism to employ, when the human rights atroc-
Treaty recognized a possibility of trying a state ities reach unimaginable scales, international
leader implicated in perpetration of egregious law must allow breach of sovereign immunity
crimes. Pinochet case, even though, very lim- and individual criminal responsibility under the
ited in its conclusions, must be considered as universal jurisdiction of acting heads of states,
a guideline and a precedent creating case in as well as other high level state officials, pro-
the efforts against impunity of the highest lev- tected by immunity. Law must develop in a way
el state officials. However, the concept of hold- to allow individual criminal responsibility for at
ing the criminal leaders accountable for inter- least international crimes to fall under univer-
national crimes anywhere, so that they are not sal jurisdiction and not to let criminal leaders
able to enjoy impunity in any part of the world, to escape justice and seek safe heaven when
disrespecting nexus of a crime perpetrated by the relatively minor perpetrators receive pun-
them to the state prosecuting them, must turn ishment.
to be a rule of customary international law and It may be enquired, if may there be any
states may not be able to claim their sover- international organization able to pronounce
eign immunity when putting to justice their crim- on lifting the immunity ratione personae from
inal leaders. The Versailles Treaty and Nurem- alleged perpetrators? The Security Council of
berg prosecutions laid a good ground for mak- the United Nations could be such an organ.
ing this reality. Now, as the sufficient time has “The United Nations Security Council is man-
passed and the human rights law has devel- dated, under Chapter VII of the United Nations
oped well enough to protect human beings Charter, to deal with threats to, or breaches
from the massive atrocities perpetrated by of, international peace and security. Often
their or other states’ criminal leaders, quest such threats or breaches may and indeed do
for justice may not be shadowed by already result from, among other things, serious
archaic conception of absolute protection of crimes.”82 The Nuremberg Tribunal recognized
sovereign immunities. Before making human- the individual criminal responsibility for the
itarian intervention a finally settled rule of in- atrocities of all sorts of political leaders. The
74
K. KHUTSISHVILI, SHALL PROTECTION OF SOVEREIGN IMMUNITIES SUPERSEDE PROTECTION...
subsequent practice of the UN SC has shown from undeserved violation of their rights. The
that the situation with regard to the human Idea of human rights protection has already
rights protection has been recognized as a transgressed state boundaries and has be-
threat to international peace and security and come a concern of wider international com-
international criminal tribunals have been set munity. Promotion and protection of victims of
up by the UN to judge leaders of individual atrocities is particularly attracting speeches of
states notwithstanding their sovereign equal- political leaders and has become a part of at
ity with other states. If the Security Council least the declared political agendas of the
decide that a threat to or a breach of peace mighty. Apart from technical problems, relat-
and security are caused by the actions of high ed to apprehension and serving sentences
level officials which at the same time cause there shall not be any additional prescriptions
human rights atrocities, the Security Council barring prosecution of highest ranking officials,
shall be authorized along with other measures responsible for mass human rights atrocities.
to pronounce that these criminal leaders fall After all, do any of the immunities cost a thing
under universal jurisdiction and may be pros- vis-À-vis the outcry of victims of mass atroci-
ecuted for commission of international crimes ties? In the era of human rights protection judg-
by courts of any nation. The Security Council ing only lower-ranking criminals and allowing
can rule this even in respect of the criminal those who mastermind and direct mass hu-
leaders or high ranking officials even when they man rights atrocities to claim immunities must
are still in office. not be tolerated. At the same time, a group of
The Statute of the International Criminal people entitled to the immunities may be ex-
Court recognizes possibility of lifting the im- panded, taking into account the contemporary
munity of those leaders in order to punish developments of interstate relations and there
them for international crimes. Therefore, the may be more perpetrators emerging shield-
conclusion that the universal jurisdiction over ing behind the immunity in the age when hu-
crimes belonging to the group of “internation- manitarian intervention for the most outra-
al crimes” must be recognized, giving world geous crimes seem to be becoming a part of
community a possibility to prosecute and judge contemporary international law.
criminal leaders for human rights atrocities and In the world, where human rights protec-
the Security Council (as a political body) as tion is no longer considered to be exclusively
well as the International Court of Justice (as a internal matter of a sovereign state, where
judicial body) can be well used as balancing elections monitoring is undertaken by inter-
international bodies able to oversee and con- national observers and international organi-
trol the maintenance of sovereign equality zations can reach as far as prison cells in any
among states, but at the same time, ensuring given state, the notion of state immunity and
that the most heinous atrocities do not go un- inviolability of state officials responsible for
punished due to legal limitations and gaps. gravest human rights atrocities shall not be
Conclusion: sovereign equality of states, staying outside the reach of any state and with-
immunity of heads of states and other high in the compound of sovereign state, which
ranking policy makers does not mean that most probably will do nothing to deal with the
egregious human rights atrocities shall be tol- matter. Atrocities must be punished. Only ad
erated and allowed by them. If the theory of hoc international criminal tribunals will not suf-
humanitarian intervention seems to be emerg- fice to achieve this goal. The “complementar-
ing and becoming an established form of in- ity” principle of the International Criminal Court
tervention into domestic matters of sovereign has its negative sides. Therefore, recognition
states, when the human tragedy reaches un- of universal criminal jurisdiction over most
imaginable scale, when there is a principle of egregious – or international crimes – must be
universal jurisdiction existing for the most atro- the way forward and towards recognition of
cious crimes, the right of any state to try the unavoidable punishment. Those deserving
highest ranking officials must be recognized must be punished and state immunity can not
as a solid rule of law and must be observed at be shamelessly be used to escape the de-
all times to serve justice and protect thousands served punishment.
75
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
Bibliography:
BANTEKAS, Ilias and NASH, Susan 2003 International Criminal Law, 2nd edn. London: Cavendish Publishing;
BASSIOUNI, Cherif M 1992 Crimes Against Humanity in International Criminal Law, Dordrecht: Martinus Nijhoff
Publishers;
BROWNLIE, Ian 1998 Principles of Public International Law, 5th edn, Oxford: Caledonian Press;
BRÕHMER, Jurgen 1997 State Immunity and The Violation of Human Rights: This book is a part of the
Series: International Studies in Human Rights, vol. 47, The Hague: Martinus Hijnoff Publishers;
BROOMHALL, Bruce 2003 International Justice and The International Criminal Court: Between Sovereignty
and the Rule of Law, Oxford: Oxford University Press;
CASSESE, Antonio 2003 International Criminal Law, New York: Oxford University Press;
CARTER, Peter 2002 “International Criminal Law and Human Rights” in: BUTLER, Frances (ed.), Human
Rights Protection: Methods and Effectiveness, London: Kluwer Law International;
CONFORTI, Benedetto 2005 The Law and Practice of the United Nations, 3rd revised edn, The book is a part
of the Series: Legal Aspects of International Organizations, vol. 42, Leiden: Martinus Nijhoff
Publishers;
DE THAN, Claire and SHORTS, Edwin 2003 International Criminal Law and Human Rights, 1st edn, London:
Sweet & Maxwell;
FALK, Richard 1998 Sovereignty and Human Dignity: The Search for Reconciliation, in Steiner, H.J. &
Alston, P. (ed.) (2000) International Human Rights in Context: Law, Politics, Moral 2nd edn,
New York: Oxford University Press;
FOX, Hazel 2002 The Law of State Immunity, New York: Oxford University Press;
HIGGINS, Rosalyn 1994 Problems and Processes: International Law and How We Use It, 1st edn, Oxford:
Clarendon Press;
JACKSON, Robert 1947 The Nuremberg Case as Presented by Robert H. Jackson, Chief of Counsel for
the United States, New York: Alfred A. Knoff;
KITTICHAISAREE, Kriangsak 2001 International Criminal Law, Oxford: Oxford University Press;
LEWIS, Charles J 1990 State and Diplomatic Immunity, 3rd edn, London: Lloyd’s of London Press;
MALANCZUK, Peter 1997 Akehurst’s Modern Introduction to International Law, 7th revised edn, London:
Routledge;
McCLANAHAN, Grant V 1989 Diplomatic Immunity, London: C. Hurst & Co. Publishers;
McGOLDRIC, Dominic, et al (ed.) 2004 The Permanent International Criminal Court: Legal and Policy
Issues, Oregon: Hart Publishing
SCHABAS, William A. (2001) An Introduction to the International Criminal Court, Cambridge: Cambridge
University Press;
SHAW, Malcolm N 2003 International Law 5th edn. Cambridge: Cambridge University Press;
SIMPSON, Gerry 2004 Great Powers and Outlaw States: Unequal Sovereigns in the International Legal
Order, New York: Cambridge University Press;
STEINER, Henry J. and ALSTON Philip, 2000 International Human Rights in Context: Law, Politics, Morals,
2nd edn, New York: Oxford University Press;
WATTS, Arthur 1994 (III) The Legal Position in International Law of Heads of States, Heads of Governments
and Foreign Ministers in Collected Courses of The Hague Academy of International Law,
Dordrecht: Martinus Nijhoff Publishers;
Electronic Articles:
BIANCHI, A. “Immunity Versus Human Rights: The Pinochet Case”, in European Journal of International
Law (1999), vol.10, No.2;
CHINKIN, Christine M “United Kingdom House of Lords, (Spanish Request for extradition). Regina v. Bow
Street Stipendiary Magistrate, Ex Parte Pinochet Ugarte (No.3).[1999] 2 WLR 827”, in
American Journal of International Law (1999) vol.93, at 703;
Commission on the Responsibilities of the Authors of the War on the Enforcement of Penalties,
American Journal of International Law (1920) vol.14(1), pp.95-154;
76
K. KHUTSISHVILI, SHALL PROTECTION OF SOVEREIGN IMMUNITIES SUPERSEDE PROTECTION...
FOX, Hazel The Resolution of the Institute of International Law on the Immunities of Heads of State and
Government, International and Comparative Law Quarterly, (January 2002) vol. 51;
GREENWOOD, Christopher “Is There a Right of Humanitarian Intervention?”, in The World Today
(February 1993) vol. 49 (cited from the LSE Course Pack for LL461);
HOROWITZ, Jodi Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex
Parte Pinochet: Universal Jurisdiction and Sovereign Immunity for Jus Cogens Violations in
Fordham International Law Journal (1999-2000) vol.23;
“Kosovo: House of Commons Foreign Affairs Committee 4th Report, June 2000”, in International and
Comparative Law Quarterly (2000), vol.49(4);
KRITSIOTIS, D. “The Kosovo Crisis and NATO’s Application of Armed Force Against the Federal
Republic of Yugoslavia”, in International and Comparative Law Quarterly (2000), vol.49(2);
MALLORY, J.L. “Resolving the Confusion Over Head of State Immunity: The Defined Rights of Kings”, in
Columbia Law Review (1986), vol.86, at 169;
O’NEIL, Kerry C. “A New Customary Law of Head of State Immunity?: Hirohito and Pinochet”, in
Stanford Journal of International Law (2002), vol. 38;
SIMMA, Bruno “NATO, the UN and the Use of Force: Legal Aspects”, in European Journal of
International Law, (1999), vol.10, No.1;
SMIS, Stefaan and VAN DER BORGHT, Kim “Belgian Law Concerning The Punishment of Grave
Breaches of International Humanitarian Law: A Contested Law with Uncontested
Objectives” in ASIL Insights (July 2003) American Society of International Law;
TAMS, Christian J. “Well-Protected Enemies of Mankind”, in The Cambridge Law Journal (July, 2002)
vol.61, part 2;
YANG, “Immunity for International Crimes: A Reaffirmation of Traditional Doctrine”, in Cambridge Law
Journal, (July 2002), vol.61, part 2.
Case Concerning The Arrest Warrant of 11 April 2000 (Democratic Republic of The Congo v. Belgium),
International Court of Justice, 14 February, 2002
http://www.icj-cij.org/icjwww/idocket/iCOBE/iCOBEframe.htm
Charter of the International Military Tribunal
http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm;
Charter of the International Military Tribunal for the Far East http://www.yale.edu/lawweb/avalon/
imtfech.htm
Charter of the United Nations
http://www.un.org/aboutun/charter/
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or punishment
http://www.unhchr.ch/html/menu3/b/h–cat39.htm
Convention on the Prevention and Punishment of the Crime of Genocide
http://www.hrweb.org/legal/genocide.html
European Convention on State Immunity, Basle, 16.V.1972 http://conventions.coe.int/Treaty/en/Treaties/
Html/074.htm;
International Convention against the Taking of Hostages
http://www.unodc.org/unodc/terrorism–convention–hostages.html
Pinochet House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and Other
(Appellants), Ex Parte Pinochet (Respondent) (Second Appeal hearing from a Divisional Court of the
Queen's Bench Division holding that former heads of state are entitled to immunity), House of Lords, 24
March 1999
http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldjudgmt/jd990324/pino1.htm
Rome Statute of the International Criminal Court: http://www.un.org/law/icc/statute/romefra.htm
Statute of the International Criminal Tribunal for The Former Yugoslavia
http://www.un.org/icty/legaldoc-e/index.htm
Statute of the International Criminal Tribunal for Rwanda
77
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
http://69.94.11.53/ENGLISH/basicdocs/statute/2004.pdf
The Versailles Treaty June 28, 1919
http://www.yale.edu/lawweb/avalon/imt/partxiv.htm
UN Resolution 95/1 Principle III: Principles of the Nuremberg Tribunal, 1950 http://deoxy.org/wc/wc-
nurem.htm
Vienna Convention on the Law of Treaties, 1969:
http://untreaty.un.org/ilc/texts/instruments/english/conventions/1–1–
1969.pdf#search='Vienna%20Convention%20on%20the%20Law%20of%20Treaties'
1
Justice Jackson, in the Opening Statement before the International Military
Tribunal: Jackson, R. (1947) The Nuremberg Case as Presented by Robert H.
Jackson, Chief of Counsel for the United States, pp.82-83.
2
On the notion of “international crimes” in general see: e.g., De Than, C.& Shorts,
E. (2003) Interna-tional Criminal Law and Human Rights, pp.13-14; Kittichaisaree,
K. (2001) International Criminal Law, pp.3-4; Steiner, H.J.& Alston, P. (ed.) (2000)
Inter-na-tional Human Rights in Context: Law, Politics, Moral, pp.1132-38;
Cassese, A. (2003) Interna-tional Criminal Law, pp. 23-25.
3
As defined by the Vienna Convention on the Law of Treaties, Art. 2(7).
4
United Kingdom House of Lords, Regina v. Bartle and the Commissioner of
Police for the Metropolis and Other (Appellants), Ex Parte Pinochet (Res-pon-dent)
(Second Appeal hearing from a Divisional Court of the Queen's Bench Division
holding that former heads of state are entitled to immunity), House of Lords, 24
March 1999 [1999] 2 All ER 97, [1999] 2 WLR 827.
5
See: Tams, C.J. “Well-Protected Enemies of Mankind”, in The Cambridge Law
Journal (July, 2002) vol.61, part 2, at 246, pp. 246-249.
6
See: O’Neill, K.C. “A New Customary Law of Head of State Immunity?: Hirohito and
Pinochet”, in Stanford Journal of International Law (2002), vol. 38, at 289, pp. 314-317.
7
See: Bianchi, A. “Immunity Versus Human Rights: The Pinochet Case”, in EJIL
(1999), vol.10, No.2, at 237, pp. 254-62.
8
See, in general: Greenwood, C. “Is There a Right of Humanitarian Intervention?”,
in The World Today (February 1993) vol. 49, pp.34-40, (cited from the LSE Course
Pack for LL461); Simma, B. “NATO, the UN and the Use of Force: Legal Aspects”,
in EJIL, (1999), vol.10, No.1, pp.1-22; Kritsiotis, D. “The Kosovo Crisis and NATO’s
Application of Armed Force Against the Federal Republic of Yugoslavia”, in ICQL
(2000), vol.49(2), at 330; “Kosovo: House of Commons Foreign Affairs Committee
4th Report, June 2000”, in ICLQ (2000), vol.49(4), pp. 876-943.
9
As in the case of humanitarian intervention of NATO states in Kosovo.
10
In the face of the United Nations’ Security Council.
11
See: Charter of the International Military Tribunal, Art.7; Charter of the International
military Tribunal for the Far East, Art.6; Statute of the International Criminal Tribunal
for The Former Yugoslavia, Art. 7(2); Statute of the International Criminal Tribunal
for Rwanda, Art.6(2); Rome Statute of the International Criminal Court, Art. 27.
12
e.g. courts already exist, no additional expenses are needed, etc.
78
K. KHUTSISHVILI, SHALL PROTECTION OF SOVEREIGN IMMUNITIES SUPERSEDE PROTECTION...
13
See: Smis, S & Van der Borght, K “Belgian Law concerning The Punishment of
Grave Breaches of International Humanitarian Law: A Contested Law with
Uncontested Objectives” in ASIL Insights, (July 2003).
14
See, in general: Mallory, J.L. “Resolving the Con-fusion Over Head of State
Immunity: The Defined Rights of Kings”, in Columbia Law Review (1986), vol. 86,
at 169, pp.169-71
15
On this see in general: Brohmer, J. (1997) State Immunity and the Violation of
Human Rights, pp. 2-4 & 24-33; Higgins, R. (1994) Problems and Proce-sses pp.
78-94
16
See footnote 5 supra
17
On definition of international crimes see: Schabas, W.A. (2001) An Introduction
to the International Criminal Court, pp. 21-53
18
The principle par in parem non habet imperium.
19
Falk, R. (1998) Sovereignty and Human Dignity: The Search for Reconciliation,
in Steiner, H.J.& Alston, P. (ed.) (2000) International Human Rights in Context:
Law, Politics, Moral, p. 581
20
See, in general: Bröhmer, J. (1997) State Immunity and the Violation of Human
Rights, pp. 14-33; European Convention on State Immunity; Fox, H. (2002) The
Law of State Immunity, pp. 11-64; Lewis, C.J. (1990) State and Diplomatic
Immunity, pp. 7-21; McClanahan, G.V. (1989) Diplomatic Immunity, pp. 27-83;
Malanczuk, P. (1997) Ake-hurst’s Modern Introduction to International Law, pp.
118-123; O’Neill, K.C. A New Customary Law of Head of State Immunity?: Hirohito
and Pinochet, Stanford Journal of International Law, 38, 2002 at 289, pp. 291-
295; Brownlie, I. (1998) Principles of Public International Law, pp. 327-328.
21
Malanczuk, P. (1997) Akehurst’s Modern Introdu-ction to International Law, p. 118
22
Bassiouni, M. C. (1992) Crimes Against Humanity in International Criminal Law,
p. 465
23
Lewis, C.J. (1990) State and Diplomatic Immunity, p. 15
24
Watts, A. (1994) The Legal Position in Interna-tio-nal Law of Heads of States,
Heads of Governments and Foreign ministers in Collected Courses of The Hague
Academy of International Law p. 35
25
Art.2(1), Charter of the United Nations
26
Ibid., Art.2(2)
27
Ibid., Art.1(3)
28
Ibid., Art.55(c)
29
See: footnote 24 supra, at p. 36
30
See: Fox, H. (2002) The Law of State Immunity, p. 26
31
Though, International Military Tribunal can not be considered entirely
“international” by its nature
32
See: footnote 29, supra
33
See, e.g.: Shaw, M.N. (2003) International Law, p. 574
34
See: footnote 8, supra
35
See, in general: Simpson, G. (2004) Great Powers and Outlaw States: Unequal
Sovereigns n the International Legal Order
36
See: footnote 5, supra
37
See, e.g. footnote 6 supra, p. 292
38
The Versailles Treaty June 28, 1919
39
See: Commission on the Responsibilities of the Authors of the War on the
Enforcement of Pena-lties, American Journal of International Law (1920) vol.14(1),
pp. 95-154
40
The Versailles Treaty, Art. 227
41
See: footnote 39 supra, p. 116
42
Ibid.
43
Ibid.
44
See: Fox, H. (2002) The Law of State Immunity, p. 429
45
Bassiouni, M. C. (1992) Crimes Against Humanity in International Criminal Law,
p. 343
46
UN Resolution 95/1 Principles III affirms the con-cept of individual criminal
responsibility pronounced by the Art. 7 of the International Military Tribunal Charter
79
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
47
See: Cassese, A. (2003) International Criminal Law, p. 267.
48
United Nations Security Council Resolutions 808 and 827(1993).
49
United Nations Security Council Resolution 955 (1994).
50
Milosevic, ICTY decision on preliminary motions, Trial Chamber III, Decision of
8 November 2001, paras. 226-33, seen in: Fox, H. (2002) The Law of State
Immunity, p. xx.
51
Rome Statute of the International Criminal Court, Art. 27.
52
As the Security Council of the United Nations can deal on its own discretion with
any threat or breach of international peace and security, which are not legal but
rather, political concepts, the arbitrariness and employment of political
considerations is not necessarily excluded in Security Council’s decision making
process. On this see, in general: Conforti, B. (2005) The Law and Practice of the
United Nations.
53
O’Neill, K.C. “A New Customary Law of Head of State Immunity?: Hirohito and
Pinochet”, in Stan-ford Journal of International Law (2002), vol. 38, at 289, p. 294.
54
O’Neill, K.C. “A New Customary Law of Head of State Immunity?: Hirohito and
Pinochet”, in Stan-ford Journal of International Law (2002), vol. 38, at 289, p. 294.
55
Detailed consideration of different types of jurisdiction falls outside the scope of
this essay. See, in general: Brownlie, I. (1998) Principles of Public International
Law, pp.289-299; Bantekas, I. & Nash,S. (2003) international Criminal Law pp.
143-148, pp. 151-165.
56
Shaw, M.N. (2003) International Law, p. 572. (emphasis added).
57
Shaw, M.N. (2003) International Law, (emphasis added). p. 573.
58
Ibid.
59
See, e.g.: Convention on the Prevention and Punishment of the Crime of
Genocide, International Convention against the Taking of Hostages, Conve-ntion
Against Torture and Other Cruel, Inhuman or Degrading Treatment or punishment
60
Broomhall, B. (2003) International Justice and The International criminal Court,
p. 105.
61
Ibid.
62
Albeit this concept is not yet widely accepted as a priory notion of international law:
See, e.g.: “Ko-so-vo: House of Commons Foreign Affairs Commi-ttee 4th Report,
June 2000”, in ICLQ (2000), vol. 49(4), pp. 876-943.
63
On the complementarity principle, in general see: Simpson, G. (2004) “Politics,
Sovereignty, Reme-brance” in: McGoldrick, D & et al (ed.), The Perma-nent
International Criminal Court: Legal and Policy Issues, p. 55.
64
See: Rome Statute of the International Criminal Court, Art. 17; Even this principle
suggests the support to the sovereign immunity. Thus, the argu-ment according
to which the International Criminal Court has unprecedented universal jurisdiction
must be dismissed.
65
See: Pinochet House of Lords, Regina v. Bartle and the Commissioner of Police
for the Metropolis and Other (Appellants), Ex Parte Pinochet (Res-pon-dent)
(Second Appeal hearing from a Divisional Court of the Queen's Bench Division
holding that former heads of state are entitled to immunity), House of Lords, 24
March 1999.
66
See, in general: Horowitz, J. Regina v. Bartle and the Commissioner of Police for
the Metropolis and Others Ex Parte Pinochet: Universal Jurisdiction and Sovereign
Immunity for Jus Cogens Violations in Fordham International Law Journal vol.23,
pp.489-527; O’Neill, K.C. “A New Customary Law of Head of State Immunity?:
Hirohito and Pinochet”, in Stanford Journal of International Law (2002), vol. 38, at
289, p. 317.
67
See: footnote 66 supra, p. 316.
68
Ibid., p. 291.
69
Ex parte Pinochet (No.1), [1999] 1 A.C. at 109.
70
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or punishment.
71
Carter, P. (2002) “International Criminal Law and Human Rights” in: Butler, F.(ed.),
Human Rights Protection: Methods and Effectiveness, p. 145.
80
K. KHUTSISHVILI, SHALL PROTECTION OF SOVEREIGN IMMUNITIES SUPERSEDE PROTECTION...
72
Chinkin, C. M. “United Kingdom House of Lords, (Spanish Request for extradition).
Regina v.Bow Street Stipendiary Magistrate, Ex parte Pinochet Ugarte
(No.3).[1999] 2 WLR 827”, in American Journal of International Law (1999) vol.93,
at 703, see: p. 711.
73
Fox, H. The Resolution of the Institute of Inter-national Law on the Immunities of
Heads of State and Government, International and Compa-rative Law Quarterly,
(January 2002) vol. 51, p. 119.
74
Case Concerning The Arrest Warrant of 11 April 2000 (Democratic Republic of
The Congo v. Bel-gi-um), International Court of Justice, 14 February, 2002.
75
Yang, X. “Immunity for International Crimes: A Rea-ffir--mation of Traditional
Doctrine”, in Cambridge Law Journal, (July 2002), vol.61, part 2, at 239; See: p. 245.
76
Fox, H. The Resolution of the Institute of Interna-tional Law on the Immunities of
Heads of State and Government, International and Comparative Law Quarterly,
(January 2002) vol. 51, p. 124.
77
See: footnote 76 supra, p. 244.
78
See: footnote 77 supra, p. 125.
79
See: footnote 76 supra, p. 244.
80
See: footnote 75 supra, p. 61.
81
See: footnote 76 supra, p. 246.
82
Cassese, A. (2003) International Criminal Law, p. 3.
81
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
eka siraZe
82
e. siraZe, sanapiro saxelmwifos iurisdiqcia Sida wylebisa da teritoriul zRvaSi ...
83
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
84
e. siraZe, sanapiro saxelmwifos iurisdiqcia Sida wylebisa da teritoriul zRvaSi ...
85
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
86
e. siraZe, sanapiro saxelmwifos iurisdiqcia Sida wylebisa da teritoriul zRvaSi ...
87
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
88
e. siraZe, sanapiro saxelmwifos iurisdiqcia Sida wylebisa da teritoriul zRvaSi ...
1
igulisxmeba gaeros sazRvao samarTlis Sesaxeb konvenciis xelmoweris dRe.
2
ix. ”A Constitution for the Oceans” Remark by Tommy T.B. Koh, of Singapore,
President of the Third United Nations Conference on the Law of the Sea.
3
SemdgomSi – `konvencia~.
89
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
4
ix. Bernaert’s Guide to the 1982 United Nations Convention of the Law of the
Sea, Arnd Bernaerts, Trafford Publishing, 2006. gv. 9.
5
ix. Bernaert’s Guide to the 1982 United Nations Convention of the Law of the
Sea, Arnd Bernaerts, Trafford Publishing, 2006. gv. 2.
6
sainteresoa, rom kanadam 1996 wlis 18 dekembris saokeano aqtSi daafiq-
sira: `sami okeane – CrdiloeTyinulovani, wynari da atlantikis – aris
yvela kanadelis saerTo memkvidreoba~. Premable of Oceans Act, 18.12.1996.
http://www.parl.go.ca/House.
7
konvencia, 32-e muxli.
8
The Cases in the law of the Sea, Simmonds. Vol. 2, p. 56.
9
konvenciis 31-e muxli.
10
aq gamonaklisia Sida wylebi, delimitirebuli swori sawyisi xazebiT, rode-
sac mis sazRvrebSi moxvdeba wylis masa, romelic adre teritoriul zRvas
miekuTvneboda. am dros Sida wylebSi moqmedebs mSvidobiani gavlis ufle-
ba, romlis Taviseburebebze qvemoT ufro detalurad iqneba saubari.
11
Tumca saxelmwifoTa praqtikis Tanaxmad, es norma ar sruldeba, anu
ucxo saxelmwifoTa gemebs aqvT ufleba, daubrkoleblad Sevidnen sxva
saxelmwifoTa portebSi.
12
R.R. Churchill&A.V.Lowe ‘The law of the sea’3rd edition p. 61.
13
Nicaragua vs. United States; ICJ Reports 1981.
14
Coastal Satte Jurisdiction and Vessel Source Pollution, Øystein Jensen, FNI
report 3/2006, Fridtjof Nansens Institutt, p. 16.
15
magaliTad, gemis Sidaganawesi da a.S.
16
ix. The law of the sea, R.R. Churchill A.V. Lowe, Third edition, Juris Publishing,
Manchester University Press, 1999. p. 66-67.
17
ix. The law of the sea, R.R. Churchill A.V. Lowe, Third edition, Juris Publishing,
Manchester University Press, 1999. p. 68.
18
Cunard S.S. Co. v. Mellon, 262 U.S. 100 (1923).
19
Benz v. Compania Naviera Hidalho, S.A., 353 U.S. 138 (1957).
20
ix. United States’ Sur-Reply as Amicus Curiare to Defendant’s Reply in Support
of Its Motion to Dismiss in the United States District Court for the Southern Dis-
trict of texas Houston Division, C.A. No. H-00-2649, gv. 3.
21
ix. The law of the sea, R.R. Churchill A.V. Lowe, Third edition, Juris Publishing,
Manchester University Press, 1999. p. 67.
22
saqarTvelos sisxlis samarTlis kodeqsi, me-4 muxli. saqarTvelos sa-
kanonmdeblo macne, 41 (48), 1999.
23
Tumca aris gansxvavebuli midgomac. magaliTad, ruseTis federaciasa
da bulgareTis respublikas Soris dadebul 1995 wlis 15 maisis xelSek-
rulebaSi savaWro naosnobis Sesaxeb aRniSnulia, rom TiToeul xe-
lSemkvrel saxelmwifos ufleba aqvs, mis portSi Semosul meore xe-
lSemkvreli mxaris gemze ganaxorcielos sruli iurisdiqcia, nebismieri
danaSaulis Cadenis SemTxvevaSi. ix. Ìåæäóíàðîäíîå ìîðñêîå ïðàâî –
ó÷åáíîå ïîñoáèå, Ì., 2003, gv. 55.
24
ufro metic, dReisaTvis dedamiwis mosaxleobis naxevarze meti cx-
ovrobs 100 km-ian sazRvao sanapiro zolSi, 2,5 milionze meti mosaxleo-
bis qalaqebis or mesamedze metiT. amasTan, 2025 wlisTvis mosalodne-
lia, rom dedamiwis mosaxleobis 75% icxovrebs sanapiro zolSi. ix. Unit-
ed nations Convendtion on the Law of the Sea – 20nt Anniversary (1982-2002).
The Martine Envirenment. Are we Destrying the Oceans?
25
sul konvencia 6 saxis dabinZurebis wyaros ganasxvavebs erTmaneTisagan.
26
am sakiTxs detalurad awesrigebs gemebidan zRvis dabinZurebis aRkve-
Tis Sesaxeb 1973/78 wlebis konvencia (marpoli, 73/78).
27
211-e muxlis me-3 punqti..
28
Coastal Satte Jurisdiction and Vessel Source Pollution, Øystein Jensen, FNI
report 3/2006, Fridtjof Nansens Institutt, p. 16. ; Transmittal Letter. Text of a letter
from the President to the U.S. Senate, October 7, 1994. U.S. Government Printing
Office, Washington, 1994.
29
konvencia, 218-e muxlis 1-li punqti.
30
konvencia, 220-e muxlis 1-li punqti.
31
konvencia, me-2 muxli.
90
e. siraZe, sanapiro saxelmwifos iurisdiqcia Sida wylebisa da teritoriul zRvaSi ...
32
konvencia, me-4 muxlis 1-li punqti. sazRvao mili udris daaxloebiT
1852 metrs.
33
konvencia, me-18 muxlis 1-li punqti.
34
ibid., me-18 muxlis me-2 punqti.
35
ibid., 24-e muxli.
36
ibid., 25-e muxlis me-3 punqti.
37
ix. konvencia, me-19 muxlis me-2 punqti.
38
ix. konvencia, 21-e muxli.
39
ibid., 24-e muxlis me-2 punqti.
40
ibid., 25-e muxlis me-3 punqti.
41
konvencia, 218-e, 220-e muxlebi.
42
konvencia, 24-e muxli.
43
magaliTad, kambojis saxelmwifo sabWos dekretis Tanaxmad, ucxour samxedro
gemebs winaswari nebarTvis miReba sWirdebaT teritoriul zRvaSi Sesvlamde.
Tumca aqve und aRiniSnos, rom aSS ar aRiarebs am moTxovnas. ix. DoD 2005 1-M.
Summary of Claims. Cambodia. gv. 90. analogiuri moTxovna aris dafiqsirebuli
samxedro gemebisaTvis siera leones sazRvao zonebis (daarsebis) Sesaxeb 1996
wlis dekretSi. Sierra Leone: The Maritime Zones (Establishment) Decree, 1996,
Article 5.2. arabeTis gaerTianebuli saemiroebis kanonmdeblobiT, samxedro ge-
mebs mSvidobiani gavlis gansaxorcieleblad sWirdebaT winaswar nebarTvis
mopoveba, maSin, roca atomuri gemebi mxolod gafrTxilebiT unda Semoifar-
glon. arabeTis gaerTianebuli saemiroebis sazRvao zonebis delimitaciis
Sesaxeb 1993 wlis 17 oqtombris 19 federaluri kanonis me-5 muxli. ix. National
Legislation – DOALOS/OLA- United Nations.
44
konvencia, 92-e muxlis 1-li punqti.
45
ix.: Coastal State Jurisdiction and Vessel Source Pollution, Øystein Jensen, FNI
report 3/2006, Fridtjof Nansens Institutt, p. 25.
46
ix.: John E. Crowley, Jr. U.S. Maritime Law Enforcement Practices, gv. 253. aqve aris
ganmartebuli, rom `aSS-is iurisdiqciis qveS myof gemad~ iTvleba: erovnebis
gareSe mcuravi gemi; aseTTan gaTanabrebuli gemi; ucxo qveyanaSi registr-
irebuli gemi, Tu droSis saxelmwifo Tanaxmaa aSS-is mier aRmasrulebeli
iurisdiqciis ganxorcielebaze; aSS-is sabaJo wylebSi myofi gemi; ucxo sax-
elmwifos teritoriul zRvaSi myofi gemi, Tu es saxelmwifo Tanaxmaa, rom
aSS-ma ganaxorcielos aRmasrulebeli iurisdiqcia; aSS-is mimdebare zonaSi
myofi gemi, romelic Sedis aSS-is teritoriaze, an gamodis iqidan.
47
ibid.
48
ibid.
49
UN Rep. Vol. III, p. 1609.
50
Proceedings, Vol. XIII, p. 300 the Behring Sea Fur Seal Arbitration, 1893.
51
(GB, Russia) Moore, IA, 1888, p. 824.
52
magaliTad, kanadis mimdebare zonaSi ucxo saxelmwifos gemis dapatim-
reba SeiZleba mxolod generaluri prokuroris sanqciiT, me-12 muxli,
kanadis saokeano aqti, 1996 wlis 18 dekemberi.. http://www.parl.go.ca/House.
53
konvecia, 111-e muxlis me-8 punqti.
54
ix.: D. P. O’Connell, The International Law of the Sea. Vol. II, p. 1077.
55
Tumca zogierTi avtori Tvlis, rom cxel kvalze devnis ufleba re-
aluri uflebaa da ara privilegia. ix.: Gidel (1932) Vol.3, p.348.
56
saqme The Itata-s (1892) mixedviT, Ciles gems daedevna aSS-is ori kreiseri
san-diegos portidan. devnili gemi Sevida Ciles erT-erT portSi, sa-
dac mas Sehyvnen mdevneli kreiserebi. igi daapatimres da daabrunes ukan,
san-diegos portSi. aSS-Ciles sarCelTa komisiam aRiara, rom Ciles ter-
itoriul zRvaSi devnis gagrZeleba saerTaSoriso samarTlis normebis
darRveva iyo. (Chile, US) Moore Dig. Vol. II, p. 985.
57
Jenevis 1956-58 ww konferenciaze daniis winadadeba iyo daewesebinaT 6
saaTiani intervali mocdisaTvis. magram am winadadebam, rogorc warmateba
ver hpova. UN Doc. A/CONF. 13/C.2/L. gv. 99.
58
Commentary – The 1982 United Nations Convention on the Law of the Sea and
the Agreement on Implementation of Part XI. U.S. Department of State Dispatch
Supplement. Febryary 1995. Vol. 6. No.1. p. 5.
59
Transmittal Letter. Text of a letter from the President to the U.S. Senate, October 7,
1994. U.S. Government Printing Office, Washington, 1994.
91
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
EKA SIRADZE
As it was stated by Mr. Tommy B. Koh, Activity of any State on domestic or inter-
President of the Third United Nations Confer- national level is based on the principle of sov-
ence on the Law of the Sea, in December 10 ereignty. The problem arises when interests
1982,1 new record in the history of jurispru- of one or more sovereign subjects of interna-
dence has been created.2 tional law intersect each other.
The UN Convention on the Law of the Sea3 As the territorial sovereignty entitles a
adopted by the conference, together with oth- State to exercise its jurisdiction in the most
er values has rather important characteristics: comprehensive manner, the central role is giv-
The Convention does not give an opportunity en to determine to what level the influence of
to any State irrespective of its geographic sit- the coastal State extends.
uation, political strength and level of marine Baselines perform this function, i.e. provide
development to enjoy only the rights and not for an opportunity of measurement in order to
to be bound with relevant obligations before determine where the coastal State has an ab-
the less developed and weak States. And one solute jurisdiction and where it exercises its
more important aspect is that it has played the rights simultaneously with other States.
greatest role in creation of new norms and Due to the most of coastlines of the States
many of these norms have become the norms are indented, fringed by the islands, gulfs or
mouths of river, ports and etc. there are two
of customary law. The Convention is consid-
types of baselines normal and straight.
ered as comprehensive political and legal pa-
In accordance with Article 5 of the Con-
per, which includes directives for internation-
vention, baselines used for measuring the
al relations, policy and law. It establishes new
breadth of the territorial sea is the low-water
international control over the world ocean.4
line along the coast as marked on large-scale
The aim of this paper is to discuss the Ar-
charts officially recognized by the coastal State.
ticles of the Convention on the jurisdiction of
Following to Article 8 of the Convention,
the coastal State over the ship of foreign State
waters on the land ward side of the baseline
in its internal waters and the territorial seas,
of the territorial sea form part of the internal
in the present format, where the coastal States
i.e. national waters of the State, from which
have recognized sovereignty, though the
the breadth of the territorial sea and all other
scopes of this sovereignty and execution of zones are measured. Therefore, internal wa-
own laws by the States becomes a subject of ters include gulfs, mouths of river, ports, is-
dispute. lands etc.6
The most serious conflicts in the field of The coastal State while considering the
the law of the sea has taken place as a result issue of jurisdiction, first of all should deter-
of intersection of these two fundamental prin- mine whether all ships enjoy the same status
ciples – territorial sovereignty and indepen- or not. Following to the Convention warships
dence of the seas.5 and other government ships operated for non-
92
E. SIRADZE, JURISDICTION OF THE COASTAL STATE OVER THE SHIP OF FOREIGN STATE...
commercial purposes enjoy full immunity from tion of its status may unlikely be the subject of
the jurisdiction of the coastal State.7 This prac- any international Convention.
tice is not an innovation and reflects well es- It is general norm that foreign ships do not
tablished norm of the customary law. have a right of navigation in internal waters.
Codification of this issue first was initiated The issue of entry into the port is more dis-
by the Brussels Convention “for the Unifica- putable. In accordance with the customary law
tion of Certain Rules Concerning the Immuni- there is no norm which bounds the States to
ty of State-owned Ships” of April 10, 1926. allow necessary entry to the ships of foreign
However, long before in 1873, In Charkiech States into their ports.11 On the other hand in
case the court established that, irrespective Arbitrary decision of Aramco of 1958 is noted
the fact whether the ship was owned by sov- that following to international law ports of each
ereign of semi sovereign State of Egypt and country must be open for the ships of other
was sailing under the flag of Ottoman Navy, States and they may be closed only when it is
its detention was not in conflict with the norms required by vital interests of the State of port.12
of international law, because in that particular But in Nicaragua case the same court estab-
case the ship was used for commercial ship- lished that the State of a port taking into con-
ment. Namely, in resolution was noted that, if sideration its sovereignty may regulate acces-
a sovereign assumes the character of a trade, sibility to the ports.13 Although, the international
and sends a vessel belonging to him to this ports of the States is considered to be open
country to trade here, he must be considered for international navigation of the ships (cer-
to have waived any privilege which might oth- tainly this does not refer to military ships), this
erwise attach to the vessel as the property of rule has not obtained the status of customary
the sovereign...8 law norm. Each State determines the rule of
Although, the fact that warships and gov- entry of the ships into the ports itself inde-
ernment ships operated for non-commercial pendently or on the basis of bilateral interna-
purposes enjoy immunity from the jurisdiction tional agreements.14
of the coastal State, it does not release them First of all States are entitled to determine
from the obligation to respect and observe the which ship may be granted with the right to
laws of the coastal State. Otherwise the coastal enter into the port and secondly, the State may
State is entitled to require violating ship to leave close a port for international navigation for
internal waters and the territorial sea. There- security purposes. In this case it is difficult to
fore, the flag State shall bear responsibility for prove whether this is crucial interest of the State
any caused damage.9 or not.
As regards to merchant marine, in inter- As stated above, the internal waters are
nal waters the coastal State in relation to them the part of the territory of a State and conse-
may control the following: navigation, over- quently jurisdiction of a coastal State extends
flight, fishing, scientific research, laying of sub- over the ships and their crew entered into the
marine cables, processing of seabed, protec- ports. However, the jurisdiction of a flag State15
tion of environment. always extends over the ship, which causes
The majority of these issues are regulat- certain collision of norms (or conflict of juris-
ed by the Convention, though only with respect dictions). There are two different approaches
to the territorial sea and the regime of the in- with respect to this issue: French and Anglo-
ternal waters remained open. Perhaps this is American.
reasoned also by the fact that, the jurisdiction French approach was established in re-
of the coastal State is completely extended, lation to two American ships “Sally” and
except few exceptions, when the coastal State “Newton”, where the fight between the crew
limits its sovereignty in favor of the other State members took place. French court estab-
under bilateral agreement. Consequently, the lished that, in case of commitment of crime
coastal State in its internal waters may control in a port on the board of a ship, if it only
the ship of foreign State likewise it would oc- violates internal regulations of a ship and
cur at its land territory.10 refers to the ship and a crew, local authori-
As it is recognized that the internal waters ties shall not interfere, unless it has direct
with their status are equalized to the land ter- affect on the good order and security of the
ritory of a State, it is obvious that determina- port and if request on assistance is received
93
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
from the ship. In relation to American Ship ant is the Citizen of the USA, the legislation of
“Tempset” particular amendment has been the USA shall definitely extend over the ship.20
made into this rule, when in Havre Port the In case of agrave crime, only the fact that
assistant to the captain has killed one of the a ship is standing in the port is a sufficient
crew members and wounded another one. ground for exercising the jurisdiction. This
In this case the Court exercised the jurisdic- approach has been noted in “Wildenhus”
tion, since the incident has disturbed the case, when a crew member of the Belgium ship
peace.16 killed another member while the ship was
Anglo-American approach implies that in standing in one of the ports of the USA.21
case of nonexistence of relevant agreement, In accordance to the legislation of Geor-
each State shall exercise its jurisdiction over gia if the crime is committed on the territory of
its internal waters. English courts, in the inter- Georgia (including the internal waters) the
nal waters of Great Britain declare complete criminal jurisdiction of Georgia shall be ap-
jurisdiction over the crew of ships of foreign plied.22 However in the bilateral agreements it
States. In “Regina v. Cunningham” case three is noted that of the criminal law jurisdiction of
American sailors were punished for assault on Georgia extends over the ships of foreign
other sailor on a board of a ship, which was States in the ports of Georgia if: the results of
anchoring nearby the coasts of England – be- the crime extends on the territory of Georgia,
cause the crime was committed on the territo- the security of the country in under the risk,
ry of England.17 the crime is committed by the citizen of Geor-
The assertion of the fact that the merchant gia or against him/her, or it is connected to
ship shall be considered as a “sailing” territo- the illegal traffic of narcotics drugs. Georgia
ry of flag State was resulting in conflict be- has concluded such bilateral agreements with
tween jurisdictions. However, this postulate is Greece, Ukraine, Azerbaijan, Russia, Cyprus,
unreasonable especially, in so called “open Turkey, etc.23
registers” era. Even in 1923 (this idea) was As it is obvious from the aforementioned
refused by the Supreme Court of the USA in examples, the States do not interfere in inter-
Cunard S.S. Co. v. Mellon case. Statement nal regulation of the ship, in labour and civil
sometimes made that a merchant ship is a part disputes between the crew members.
of the territory of the country whose flag she In a viewpoint of exercising jurisdiction, in
flies. But this, as has been aptly observed, is a passed decades the issues of environment
figure of speech, a metaphor, is mainly appli- protection acquired paramount importance. If
cable to ships on the high seas, where there we take into consideration that the coastal
is no territorial sovereign, and as respects area – the most productive area of the sea –
ships in foreign territorial waters, it has little is mostly infringed by the harmful influence on
application beyond what is affirmatively or tac- the marine environment,24 it does not aston-
itly permitted by the local sovereign.18 ish that upon the exercise of the jurisdiction
However, the abovementioned does not by the States, the most importance is given to
mean that jurisdiction of a flag State is comp- the issues of protection of environment.
letely terminated, when the ship is in the in- Problem regarding the protection of ma-
ternal waters of a foreign State. In this case rine environment especially gained its impor-
so called “parallel jurisdictions” may be oper- tance from 60th-70th of XX century. In this re-
ating. For example, the Court of the United spect in parallel with the increase of obliga-
States in Benz v. Compania Naviera Hidalgo, tion of a flag State the right of a coastal State
S.A. case established that, on dispute between to control the marine environment under its
a foreign employer and a foreign crew the law jurisdiction, and exercise not only legislative,
of the USA shall not be extended in the inter- but executive jurisdiction, which is very impor-
nal waters of the latter in case when the only tant, is also increasing.
American connection was that the ship was in Although, there are numbers of sources,25
transit passage in the United States port.19 in the sphere of the present research only
Though, when the ship is staying in the USA marine pollution from the ships is envisaged.
waters for a certain period, it is loading and/ Part XII of the Convention is devoted to the
or unloading in the ports of the USA, the claim- protection of environment.26
94
E. SIRADZE, JURISDICTION OF THE COASTAL STATE OVER THE SHIP OF FOREIGN STATE...
95
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
2. Military manures or study by exercising and legislation of the coastal State, since the
weapons of any kind; later is entitled to adopt laws for the ships in
3. Activity aimed at collecting information to the regime of innocent passage, regarding the
the prejudice of the defence or security of environmental protection. Although, in accor-
Georgia; dance with the same Convention, the coastal
4. Act of propaganda aimed at affecting the State whilst exercising its legislative jurisdiction
defence or security interests of Georgia; is not entitled to adopt laws, which in fact re-
5. The launching or taking on board of any stricts the right to an innocent passage.42 For
aircraft; the purposes of ensuring environmental pro-
6. The launching or taking on board of any tection, following to Article 22 of the Conven-
military device; tion, the coastal State is entitled to establish
7. The loading or unloading of any commodity sea lines and corridors for vessels ships, which
and currency or person contrary to the shall be applied by the latter during the inno-
customs, fiscal, immigration or sanitary laws cent passage.
and regulations; As regards to executive jurisdiction of
8. Wilful and serious pollution of marine envi- coastal State, in accordance with paragraph
ronment; 2 of Article 220 of the Convention, a State is
9. Fishing; entitled to inspect or detain the ship, where
10. The carrying out of scientific-research, the evidence warrants that while it was stay-
survey or hydrographic activities; ing in its territorial sea has violated the laws
11. Act aimed at interfering with any systems of the State, regarding prevention, reduction
of communication and electronic systems and control of marine environment pollution
or other facilities or installations; from the vessels adopted on the basis of in-
12. Any other activity not having a direct bear- ternational law. However, the abovementioned
ing on innocent passage.37 regulation shall be applied to vessels in of in-
However, the right of innocent passage nocent passage, without prejudice to Articles 24
does not restrict the jurisdiction of coastal and 27.
States over such ships. In particular, the coast- As it was stated above, in accordance with
al State is entitled to adopt laws and establish Article 24, in the process of exercising legis-
regulations on navigation and navigational lative jurisdiction, the coastal State shall not
aids, as well as cables, living resources of the hamper the right of innocent passage. Article
sea, fishing and other issues.38 Throughout 27 provides for the terms of exercising crimi-
the innocent passage, all ships are obliged to nal jurisdiction on the territorial sea that will
perform and observe laws and regulations of be discussed below in more details.
a coastal State. But, the costal State shall not During the innocent passage, regulations
establish discriminative rules with respect to adopted by the coastal State on introduction
the flag or type of a ship.39 of permit system for innocent passage of ves-
Following to the Convention, in exception- sel may be considered as an expression of
al cases the coastal State may suspend the State sovereignty. Especially it refers to war-
rights of innocent passage in specified areas ships and nuclear-powered ships.43
of its territorial sea for the purposes of securi- Regarding to the criminal jurisdiction over
ty protection of its country, or during the mili- the territorial sea, Article 26 of the Conven-
tary exercises. But, such suspension shall be tion grants the State with the right to exercise
done on non-discriminative basis and take it only in three cases.
effect only after having been duly published.40 Firss case concerns the commitment of a
Provisions of part XII of the Convention en- crime on a board of a ship in innocent pas-
title the costal State to exercise executive juris- sage, if:
diction over the ship violating the regulations 1. The consequences of the crime extend to
on the protection of maritime environment.41 the coastal State;
The costal state is not entitled to prevent pas- 2. The crime is of a kind to disturb the peace
sage unless a ship is polluting its territorial sea of the coastal State and/or the good order
“wilfully and seriously”. Though, there is no any in its territorial sea;
common criterion on the “serious” pollution and 3. The assistance of the local authorities has
it depends on particular features of a coasts been requested by the captain of the ship
96
E. SIRADZE, JURISDICTION OF THE COASTAL STATE OVER THE SHIP OF FOREIGN STATE...
or by a diplomatic agent or consular offic- band outside from the coast, it is necessary
er of the flag State; and for the coast guard of the USA to have juris-
4. Such measures are necessary for the sup- diction over the vessels as well as over the
pression of illicit traffic in narcotic drugs actions there in.47 If the officials of the coast
or psychotropic substances. guard of the USA discover the violations on
The second case refers to the situation USA vessel or on a vessel under the jurisdic-
when the ship enters into the territorial sea tion of the USA, they are entitled to take the
from internal waters where it has committed a vessel into the port, arrest and/or fine respon-
crime. In this case the coastal State is entitled sible persons and confiscate the vessel itself
to take any measure against such vessel, i.e. and/or impose a fine on it.48
its jurisdiction is not limited. It comes from the
unlimited criminal jurisdiction of the coastal HOT PURSUIT
State in its internal waters.
The third case refers to ships, which have One of the guarantees to exercise the
committed a crime before entering the territo- executive jurisdiction by the coastal State, over
rial water from the high seas. In this case the the internal waters and the territorial sea, is
criminal jurisdiction of the coastal State does the right of hot pursuit, which is granted under
not extend except as provided in part XII of the Convention. In accordance with Article 111
the Convention. the abovementioned regula- of the Convention, hot pursuit may be under-
tion is based on the fundamental principle of taken when a foreign ship or her boats are
the Law of the Sea stating that only flag State within the internal waters, the territorial sea,
jurisdiction is extended over the ship in the the contiguous zone, the archipelagic waters
high sea.44 of the pursuing State. The right of a hot pur-
Under paragraph 2 of Article 220 of the suit is one of the oldest norms of the custom-
Convention, the coastal State is entitled to in- ary law of the sea. In cases such as ‘The I’m
spect or/and detain the vessel not only in case Alone’ case (1935)49 the customary law recog-
of violation of its legislation on environmental nised the right of the coastal State to entitle
protection, but in cases of violation of inter- its warships to exercise pursuit of a foreign
national regulations and standards as well. Fi- ship, if she has violated the law of the coastal
nally in accordance with paragraph 2 of Arti- State in its internal waters or the territorial sea,
cle 25, the coastal State has the right to take and to detain such a ship on the high sea. In
necessary steps to prevent breach of regula- Behring Sea Fur Seal arbitration it was estab-
tions on the entry into ports. Certainly, such lished that, hot pursuit shall be immediate …
steps may be undertaken in the territorial sea. and shall be in the frames of control.50
The example of Norway as one of the tra- Article 111 of the Convention reflecting the
ditional developed maritime State is interest- customary law rule, stipulates that hot pursuit
ing whilst discussing the issue of executive may be undertaken when the competent au-
jurisdiction of the coastal State in the territori- thorities of the coastal State have a good rea-
al sea. According to its legislation vessel may son to believe that the ship has violated the
be detained for violation of local laws and reg- laws and regulations of that State. However,
ulations in the territorial sea, among them, the Convention does not provide for any dif-
concerning manning and construction.45 How- ference in relation to the quality of a violated
ever, Article 22 of the Convention forbids the law.
coastal State to adopt law on manning and However, it is strictly determined from which
construction of vessels in innocent passage zone and for what violation the pursuit may
in a territorial sea. be commenced. For example, it is prohibited
In accordance with section 89 of the Code to commence the pursuit outside the contigu-
of the USA on the Protection of Coast, the ous zone, against a ship which did not observe
coast guard personnel are entitled to exercise the sanitary regulations in the territorial sea.
examination, inspection, investigation, deten- Together with the hot pursuit, the doctrine
tion and arrest of vessels under the jurisdic- of constructive presence operates. In other
tion of the United State in order to execute the words, it is not necessary the regulations to
laws of the United States.46 Furthermore, for be violated directly by the ship in internal wa-
exercising activities aimed at avoiding contra- ters and/or territorial sea, but involvement of
97
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
its boat or crew members in illegal activities in less important, as it is not necessary for it to
this zones is a good reason for the coastal be in the territorial sea or the contiguous zone
State to exercise the hot pursuit. for the moment of commencement of pursuit.
In ‘the Araunah’ case the British Govern-
ment noted that, although, the Canadian fish- CONCLUSION
ing vessel was not in the territorial sea and
was not participating in illegal fishing, its de- The Convention managed to establish
tention was justified because its sailors en- more or less acceptable, universal regime for
tered in the territorial sea of Russia by the everyone, when the territorial sovereignty of
boats and were fishing.51 coastal State on the one hand, and freedom
A Persuing ship may take any necessary of navigation on the other hand are balanced.
and reasonable measure to detain the guilty As it is noted in the commentary of the USA, it
ship. However, each country establishes its establishes the balance between the coastal
own regulations regarding the procedure of and maritime interests with respect to all mar-
detention of a guilty ship and person within itime zones.58
the scopes of its jurisdiction.52 On the other First of all this balance has ensured pop-
hand the compensation for any damage ularity of the Convention both in developed
caused as a result of illegal pursuit or illegal and developing States. This once again is
use of force is established.53 proved in the address of the US President to
Some authors deem that, the right of hot the Senate, where it is noted that, The United
pursuit is a privilege54 which is granted to the State has a basic and long term national in-
coastal State in case of violation of double terest in the oceans and gradually came to
obligations by the offender ship. First, when the opinion that complete protection of this
ship violates the local laws, and the second interests can be best achieved by universally
when it refuses to surrender to local compe- recognized international frame agreement,
tent authorities.55 which manages the application of the seas.59
While it is hot pursuit and it continues on The convention has introduced new Arti-
the high sea the issue of its conclusion does cles that have significantly extended the juris-
not depend on time and place. But if there is diction of the coastal State not only in the in-
no special entitling agreement, the pursuit ternal waters and the territorial seas, but also
shall end when the pursued ship crosses the in other maritime zones. In particular, the norms
outer boarder of the territorial sea of any State relating to the protection of maritime environ-
other then the persuing State.56 ment is implied. Traditional scope of jurisdic-
Article 111.3 of the Convention strictly tion of the coastal State, mainly limited with
determines that the hot pursuit ceases and criminal law jurisdiction, has been significant-
not temporarily terminates when the ship pur- ly extended with the jurisdiction of environmen-
sued enters the territorial sea of any other tal protection. Moreover, it may be easily said
State. In other words perusing ship shall not that exactly this area is the most unified and
have a right to wait when the pursued ship effective among all jurisdictions exercised by
leaves the territorial sea.57 the coastal States.
Pursuit may be exercised only by a war- And finally the Convention not only grants
ship or an aircraft or a specially authorized the coastal States the jurisdiction over the
ship for these purposes (ships of coast maritime zones, but gives an opportunity to
guards). Location of the pursued vessel for actually execute this jurisdiction, in particular
the moment of commencement of pursuit is by granting the right of hot pursuit.
1
Implied the date of signature of the UN Convention on the Law of the Sea.
2
Please see ”A Constitution for the Oceans” Remark by Tommy T.B. Koh, of Singapore,
President of the Third United Nations Conference on the Law of the Sea.
3
Hereafter “Convention”.
4
Please see. Bernaert’s Guide to the 1982 United Nations Convention of the Law
of the Sea, Arnd Bernaerts, Trafford Publishing, 2006. p. 9.
98
E. SIRADZE, JURISDICTION OF THE COASTAL STATE OVER THE SHIP OF FOREIGN STATE...
5
Please see. Bernaert’s Guide to the 1982 United Nations Convention of the Law
of the Sea, Arnd Bernaerts, Trafford Publishing, 2006. p. 2.
6
It is interesting that Canada, in the Oceans Act of December 18, 1998, has
stated that whereas Canada recognizes that “the three oceans, the Arctic, the
Pacific and the Atlantic, are the common heritage of all Canadians”. Preamble
of Oceans Act, 18.12.1996. http://www.parl.go.ca/House.
7
The Convention, Article 32.
8
The Cases in the law of the Sea, Simmonds. Vol. 2, p. 56.
9
The Convention, Article 31.
10
Here the exception is the internal water with delimited straight baselines, when
the mass of the water falls within its borders, which previously was belonged to
the territorial sea. In this case the right of innocent passage is operating in the
internal waters. Its features will be discussed below in detail.
11
However, the State practice reviles that this norm is not performed, i.e. ships of
foreign States are entitled to enter into the ports of other States without difficulties.
12
R.R. Churchill&A.V.Lowe ‘The law of the sea’3rd edition p. 61.
13
Nicaragua vs. United States; ICJ Reports 1981.
14
Coastal Satte Jurisdiction and Vessel Source Pollution, ystein Jensen, FNI
report 3/2006, Fridtjof Nansens Institutt, p. 16.
15
For example, internal regulation of a ship, etc.
16
Please see the law of the sea, R.R. Churchill A.V. Lowe, Third edition, Juris
Publishing, Manchester University Press, 1999. p. 66-67.
17
Please see the law of the sea, R.R. Churchill A.V. Lowe, Third edition, Juris
Publishing, Manchester University Press, 1999. p. 68.
18
Cunard S.S. Co. v. Mellon, 262 U.S. 100 (1923).
19
Benz v. Compania Naviera Hidalho, S.A., 353 U.S. 138 (1957).
20
Please see the United States’ Sur-Reply as Amicus Curiare to Defendant’s
Reply in Support of Its Motion to Dismiss in the United States District Court for
the Southern District of Texas Houston Division, C.A. No. H-00-2649, p. 3.
21
Please see. The law of the sea, R.R. Churchill A.V. Lowe, Third edition, Juris
Publishing, Manchester University Press, 1999. p. 67.
22
The Criminal Code of Georgia, Article 4. Georgian Legal Almanac N41 (48),
1999.
23
However, there is also a different approach. For example in the agreement
between Russian Federation and Republic of Bulgaria on the merchant Shipping
of May 15, 1995, it is noted that each contracting State shall be entitled to exercise
complete jurisdiction over the ship of another contracting party entered into the
port in case of commitment of any crime. Please see. Ìåæäóíà-ðîäíîå ìîðñêîå
ïðàâî – ó÷åáíîå ïîñoáèå, Ìîñêâà, Èçäàòåëüñòâî “Þðèäè÷åñêàÿ Ëèòåðà-òóðà”,
2003. p. 55.
24
Moreover, nowadays more then a half of the world population is leaving in 100
km sea coastline, in more then two thirds of the cities of more then 2.5 million
populations. Herewith for the year 2025 it was expected that 75% of the world
population will live in the sea coastline. Please see United Nations Convention
on the Law of the Sea – 20th Anniversary (1982-2002). The Marine Environment.
Are we destroying the Oceans?
25
Totally 6 kind of the source of pollution is differed from each other by the
Convention.
26
The issue of prevention of marine pollution from the ships is in detailed regulated
by the Convention for the Prevention of the Pollution from Ships of 1973/78
(MARPOL 73/78).
27
Article 211(3).
28
Coastal State Jurisdiction and Vessel Source Pollution, Øystein Jensen, FNI
report 3/2006, Fridtjof Nansens Institute, p. 16. ; Transmittal Letter. Text of a
letter from the President to the U.S. Senate, October 7, 1994. U.S. Government
Printing Office, Washington, 1994.
29
The Convention, Article 218(1).
30
The Convention, Article 220(1).
31
The Convention, Article 2.
32
The Convention, Article 4. 1 nautical mile equals approximately to 1852 meter.
33
The Convention, Article 18.1.
34
The Convention,. Article 18.2.
35
Ibid. Article 24.
36
Ibid. Article 25.3.
37
The Convention, Article 4. 1 nautical mile equals approximately to 1852 meter.
99
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
38
Please see. The Convention, Article 21.
39
Ibid. Article 24.2.
40
Ibid. Article 25.3.
41
The Convention, Articles 218, 220.
42
The Convention, Articles 24.
43
For example, in accordance with the decree of the State Council of Cambodia
foreign military vessels shall obtain preliminary permit before the entry into the
territorial sea. However, shall be mentioned that the USA does not recognize this
requirement. Please see. DoD 2005 1-M. Summary of Claims. Cambodia. p. 90.
For the military vessels similar requirement is stated in the Maritime Zones
(Establishment) Decree of Sierra Leone of 1996. Please see Sierra Leone: The
Maritime Zones (Establishment) Decree, 1996, Article 5.2. Under the legislation
of United Arab Emirates, military vessels to exercise innocent passage need to
obtain preliminary permit, while nuclear-powered ships shall be limited only
with the notification. Article 5 of the Federal Law of United Arab Emirates on the
Delimitation of Border Zones of Emirates of October 17, 1993, N19. Please see.
National Legislation – DOALOS/OLA – United Nations.
44
The Convention, Article 92.1.
45
Please see. Coastal State Jurisdiction and Vessel Source Pollution, Øystein
Jensen, FNI report 3/2006, Fridtjof Nansens Institutt, p. 25.
46
Please see. John E. Crowley, Jr. U.S. Maritime Law Enforcement Practices, p.
253.Herewith it is defined that the following ships are considered “to be under
the jurisdiction of the USA”: ships without nationality, ships equalized to such
ships, ships registered in foreign country, if the flag State agrees executive
jurisdiction to be exercised by the USA; the ship in the customs waters of the
USA; the ship being in the territorial sea of the foreign State, if this State agrees
executive jurisdiction to be exercise by the USA; ship being in the contiguous
zone of the USA, which enters or exists the territory of the USA.
47
Ibid.
48
Ibid.
49
UN Rep. Vol. III, p. 1609.
50
Proceedings, Vol. XIII, p. 300 the Behring Sea Fur Seal Arbitration, 1893.
51
(GB, Russia) Moore, IA, 1888, p. 824.
52
For example, a ship of a foreign State in the con-tinuous zone of Canada may be
detained only with the consent of the Attorney General of Canada. Article 12,
Oceans Act of Canada, December 18, 1996… http://www.parl.go.ca/House.
53
The Convention, Article 111.
54
Please see. D. P. O’Connell, The International Law of the Sea. Vol. II, p. 1077.
55
However, some authors deem that the right of hot pursuit is a real rights and not
a privilege. Please see. Gidel (1932) Vol.3, p. 348.
56
In the The Itata’ (1892) case the ship of Chile was pursued by two cruisers of the
USA from the port of San Diego. Pursued ship entered in one of the ports of Chile
where it was followed by the pursuing cruisers. It was detained and taken back to
San Diego port. Commission of the USA-Chile claims recognized that continue
of pursuit in the territorial sea of Chile was a violation of the norms of international
law. (Chile, US) Moore Dig. Vol. II, p. 985 .
57
On Geneva Conference of 1956-58 the proposal of Denmark was to establish
six hour period of waiting. But this proposal did not succeed. UN Doc. A/CONF.
13/C.2/L. p. 99.
58
Com-men-tary – The 1982 Uni-ted Na-ti-ons Con-ven-ti-on on the Law of the
Sea and the Agre-e-ment on Imple-men-ta-ti-on of Part XI. U.S. De-par-tment of
Sta-te Dis-patch Sup-ple-ment. Feb-ru-ary 1995. Vol. 6. No.1. p. 5.
59
Transmittal Letter. Text of a letter from the President to the U.S. Senate, October
7, 1994. U.S. Government Printing Office, Washington, 1994.
100
elene siWinava
101
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
102
e. siWinava, `gonivruli vadis~ moTxovna
103
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
104
e. siWinava, `gonivruli vadis~ moTxovna
105
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
106
e. siWinava, `gonivruli vadis~ moTxovna
107
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
108
e. siWinava, `gonivruli vadis~ moTxovna
109
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
110
e. siWinava, `gonivruli vadis~ moTxovna
111
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
1
www.supremecourt.ge
2
b. boxaSvili, adamianis uflebaTa evropuli sasamarTlos precedentu-
li samarTali, Tb., 2004, gv. 241.
3
DJ Harris, M O’ Boyle, C Warbrick, “Law of the European Convention on Human
Rights”, 1995, p.223.
4
ix. stefan cvaigis ,,SiSiT~, dostoevskis ,,danaSauli da sasjeli~.
5
DJ Harris, M O’ Boyle, C Warbrick “Law of the European Convention on Human
Rights”, 1995, p. 223.
6
DJ Harris, M O’ Boyle, C Warbrick “Law of the European Convention on Human
Rights”, 1995, p. 223.
7
kanoni saqarTvelos saerTaSoriso xelSekrulebebis Sesaxeb, 1997 wlis
16 oqtomberi, me-6 muxlis 1-li nawili.
8
saqarTvelos konstitucia, me-6 muxlis meore nawili.
9
xelSekrulebaTa samarTlis Sesaxeb venis konvencia, 1969 wlis 22 maisi,
28-e muxli.
10
ix. saqme silva pontesi portugaliis winaaRmdeg (Silva Pontes v. Portu-
gal), 1994 wlis 23 marti, 14940/89, 38-e punqti (ix. saqme bageta italiis
winaaRmdeg (Baggetta v. Italy ), 1987 wlis 25 ivnisi, 13/1986/111/159, me-20 punqti).
11
DJ Harris, M O’ Boyle, C Warbrick “Law of the European Convention on Human
Rights” 1995, p.223.
12
The published case-law on the European Convention on Human Rights, 2003,
p. 210.
13
foti da sxvebi italiis winaaRmdeg (Foti and others v. Italy), 1982 wlis 10
dekemberi, .7604/76; 7719/76; 7781/77; 7913/77; 52-e punqti.
14
P. Leach ,,Taking a case to the European Court of Human Rights~, 2005, p. 260.
15
vemhofi germaniis winaaRmdeg ( Wemhoff v. FRG), 1968 wlis 27 ivnisi (ix.
noimaisteri avstriis winaaRmdeg (Neumeister v. Austria), 1968 wlis 27
ivnisi, #1936/63 )).
16
ix.guinCo portugaliis winaaRmdeg (Guincho v. Portugal), 1984 wlis 10 iv-
lisi, 8990/80, 29-e punqti.
17
ix. vernilo safrangeTis winaaRmdeg (Vernillo v. France), 1991 wlis 20 Teber-
vali, 11889/85, 29-e punqti.
18
ix. boimartini safrangeTis winaaRmdeg (Beau-mar-tin v. France), 1994 wlis 24
noemberi, 15287/89, 30-e punqti.
19
see The published case-law on the European Convention on Human Rights,
2003, p. 211.
112
e. siWinava, `gonivruli vadis~ moTxovna
20
DJ Harris, M O’ Boyle, C Warbrick “Law of the European Convention on Human
Rights”, 1995, p. 195.
21
ix.valee safrangeTis winaaRmdeg (Valee v. France),1994 wlis 26 aprili,
22121/93, 33-e punqti.
22
C. Ovey and R. White, “The European convention on Human rights”, 2002, p.
167.
23
A.H Robertson, J.G Merrills “Human Rights in Europe”, 1993, p.101.
24
ix. ,,H~ safrangeTis winaaRmdeg (H v. France), 1989 wlis 24 oqtomberi,
10073/82, 48-e punqti.
25
ix. milazi italiis winaaRmdeg (Milasi v. Italy), 1987 wlis 25 ivnisi, 14/1986/
112/160, me-14 punqti.
26
DJ Harris, M O’ Boyle, C Warbrick “Law of the European Convention on Human
Rights”, 1995, p.225(ix. feraro italiis winaaRmdeg (Ferraro v. Italy),
1991wlis 19 Tebervali, 16/1990/207/267, me-15 punqti).
27
DJ Harris, M O’ Boyle, C Warbrick “Law of the Eur-o-pean Convention on Human
Rights”, 1995, p. 223.
28
boki germaniis winaaRmdeg (Bock v. FRG), 1989 wlis 29 marti, 1/1988/145/
199, 37-e punqti.
29
ix. girolami italiis winaaRmdeg (Girolami v. Italy), 1991 wlis 19 Teberva-
li, 15/1990/206/266 (see DJ Harris, M O’ Boyle, C Warbrick “Law of the Europe-
an Convention on Human Rights”, 1995, p.223.)
30
boki germaniis winaRmdeg (Bock v. FRG), 1989 wlis 29 marti, 1/1988/145/
199, 38-e punqti; hentrixi safrangeTis winaaRmdeg (Hentrich v. France),
1994 wlis 22 seqtemberi, 13616/88, 59-e punqti.
31
A.H Robertson, J.G Merrills “Human Rights in Europe”, 1993, p.102.
32
The published case-law on the European Convention on Human Rights, De-
cember, 2003, p. 210.
33
see DJ Harris, M O’ Boyle, C Warbrick “Law of the European Convention on
Human Rights”, 1995, p. 224.
34
ix. `union alimentaria sanders~ espaneTis winaaRmdeg (Union Almentaria
Sanders S.A. v. Spain), 1989 wlis 7 ivlisi, 11681/85 32-e-33-e punqtebi.
35
ix. angeluCi italiis winaaRmdeg (Angelucci v. Italy), 1991 wlis 20 oq-
tomberi, .13/1990/204/26, me-15 punqti.
36
ix.foti da sxvebi italiis winaaRmdeg (Foti and others v. Italy), 1982 wlis 10
dekemberi, 7604/76; 7719/76; 7781/77; 7913/77, 57, 58-e punqtebi.
37
ix. gunteri TurqeTis winaaRmdeg (Gunter v. Turkey ), 2005 wlis 22 Teberva-
li, 22/05/2005, 34-e da 37-e punqtebi.
38
bodaerti belgiis winaaRmdeg (Boddaert v. Belgium), 1992 wlis 12 oqtomberi,
65/1991/317/389.
39
ix. vernilo safrangeTis winaaRmdeg (Vernillo v. France), 1991 wlis 20 Teber-
vali, 11889/85, 31-e punqti.
40
ix.noviki avstriis winaaRmdeg (Nowicky v. Austria), 2005 wlis 24 Teberva-
li, 34983/02, 49-e da 53-e punqtebi.
41
valee safrangeTis winaaRmdeg (Vallee v. France), 1994 wlis 26 prili, 22121/
93-e, 37-e, 38-e punqtebi.
42
konigi germaniis winaaRmdeg ( Konig v. Germany), 1987 wlis 28 ivnisi, 6232/
73, 102-e pun-q-ti.
43
ix. guinCo portugaliis winaaRmdeg (Guincho v. Portugal), 1984 wlis 10
ivlisi, 8990/80, 33-e punqti.
44
ix. feranteli da santangelo italiis winaaRmdeg (Ferrantelli and Santan-
gelo v. Italy), 1996 wlis 23 Tebervali, 48/1995/554/640, 40-e, 42-e punqtebi.
45
ix.zmalinski poloneTis winaaRmdeg (Zmalinski v. Poland ), 2005 wlis 22 mar-
ti, 52039/99, 39-e, 42-e da 46-e punqtebi.
46
C. Ovey and R. White, “The European convention on Human rights”, 2002, p.
167.
47
ix. proszaki poloneTis winaaRmdeg (Proszak v. Poland), 1997 wlis 16 de-
kemberi, 2/1997/786/987 me-40 punqti.
48
ix. kemaCe safrangeTis winaaRmdeg (Kemmache v. France), 1994 wlis 24
noemberi, 17621/91.
113
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
49
ix. boimartini safrangeTis winaaRmdeg (Bea-umartin v. France), 1994 wlis
24 noemberi, 15287/89, 33-e punqti.
50
sirikosta da viola italiis winaaRmdeg (Ciricosta and Viola v. Italy), 1995
wlis 4 dekemberi, 5/1995/511/594, 26 da 30-e punqtebi.
51
ix. vernilo safrangeTis winaaRmdeg (Vernillo v. France), 1991 wlis 20 Teber-
vali, 11889/85, 34-e punqti.
52
boki germaniis winaaRmdeg ( Bock v. FRG), 1989 wlis 29 marti, 1/1988/145/199.
53
guinCo portugaliis winaaRmdeg (Guincho v. Portugal), 1984 wlis 10 ivli-
si, 8990/80, 34-e punqti.
54
ix. zmalinski poloneTis winaaRmdeg (Zmalinski v. Poland ), 2005 wlis 22
marti, 52039/99, me-40, 43-e, 47-e punqtebi.
55
korigliano italiis winaaRmdeg (Corigliano v. Italy), 1982 wlis 10 dekemberi,
8304/78, 42-e punqti.
56
b. boxaSvili, adamianis uflebaTa evropuli sasamarTlos precedentu-
li samarTali, Tb., 2004, gv. 243.
57
iqve.
58
DJ Harris, M O’ Boyle, C Warbrick “Law of the European Convention on Human
Right”, 1995, p.225.
59
martins moreira portugaliis winaaRmdeg (Martins Moreira v. Portugal),
1988 wlis 26 oqtomberi, 21/1987/144/198, me-60 punqti.
60
martins moreira portugaliis winaaRmdeg (Martins Moreira v. Portugal),
1988 wlis 26 oqtomberi, 21/1987/144/198, me-60 punqti.
61
k. korkelia, i. qurdaZe, adamianis uflebaTa saerTaSoriso samarTali
adamianis uflebaTa evropuli konvenciis mixedviT, 2004, gv. 162.
62
proszaki poloneTis winaaRmdeg (Proszak v. Poland), 1997 wlis 16 dekemberi,
2/1997/786/987, 33-e punqti.
63
ix. kemaCe safrangeTis winaaRmdeg (Kemmache v. France), 1994 wlis 24 noem-
beri, 17621/91, 68-e punqti.
64
ix. bodaerti belgiis winaaRmdeg ( Boddaert v. Belgium), 1992 wlis 12 oq-
tomberi, 65/1991/ 317/389, 37-e-38-e punqtebi.
65
ix. cimermani da Staineri Sveicariis winaaRmdeg ( Zimmerman and Steiner
v. Switzerland), 1983 wlis 13 ivlisi, 8737/79.
66
ix. buxholci germaniis winaaRmdeg (Buchholz v. Germany), 1981 wlis 6
maisi, 7759/77.
67
ix. sirikosta da viola italiis winaaRmdeg, (Ciricosta and Viola v. Italy),
1995 wlis 4 dekemberi, 5/1995/511/594, 31-e punqti.
68
ix. milazi italiis winaaRmdeg (Milasi v. Italy), 1987wlis 25 ivnisi, 14/1986/
112/160, me-17 da me-18 punqtebi.
69
ix. noimaisteri avstriis winaaRmdeg (Neumeister v. Austria), 1968 wlis 27
ivnisi, 1936/63, me-20 da 21-e punqtebi.
70
DJ Harris, M O’ Boyle, C Warbrick “Law of the European Convention on Human
Rights”, 1995, p.225.
71
b. boxaSvili, adamianis uflebaTa evropuli sasamarTlos precedentu-
li samarTali, 2004, gv. 244.
72
iqve.
73
DJ Harris, M O’ Boyle, C Warbrick “Law of the European Convention on Human
Rights”,1995, p. 227.
114
ELENE SICHINAVA
115
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
THE BEGINNING AND THE END OF THE In the case Wemhoff v. FRG the Court
TIME TO BE TAKEN INTO CONSIDERATION found, that the beginning of the period to be
taken into consideration must run from 9 No-
vember 1961, the date on which the first
According to the Article 28 of the Vienna charges were levelled against Wemhoff and
Convention on the Law of Treaties, “unless a his arrest was ordered. It was on that date that
different intention appears from the treaty or his right to a hearing within a reasonable time
is otherwise established, its provisions do not came into being so that the criminal charges
bound a party in relation to any act or fact could be determined. The indictment was how-
which took place or any situation which ceased ever filed only over two years after the pre-
to exist before the date of the entry into force trial investigation was completed.15
of the treaty with respect to that party”.9 Deriving from this, in a criminal case the
The foregone principle also extends to the starting date for determining the time to be
European Convention for the Protection of taken into consideration shall be the date,
Human Rights and Fundamental Freedoms. when a person for the first time was officially
The Strasbourg Court has mentioned in a num- notified via official sources about the com-
ber of cases dealing with the length of the pro- mencement by the duly authorized state bod-
ceedings that the Convention does not have ies of certain procedures in his respect. As a
a retroactive effect. rule, this is the time when a person is charged.
In the case Silva Pontes v. Portugal the There are also instances when the commence-
Court concluded, that the period to be taken ment of the criminal prosecution, recognition
into consideration for the purpose of the Arti- of a person as suspect, detention or other
cle 6(1) did not begin to run when the appli- procedural action precedes charging. In such
cant first brought the civil action before the a case any date, which preceded the others,
relevant court requesting compensation for the and when the applicant learned for the first
damage of the health on 20 December 1977, time that a doubt had emerged in his respect
but only on 9 November 1978, when the Con- shall be considered as the commencement of
vention entered into force with regard to Por- the term.
tugal.10 In civil cases this issue is solved in the fol-
At the same time, “the judgment of the lowing manner: if the applicant was a plaintiff,
Court, on whether or not the proceedings have the calculation of the term shall start from fil-
taken place with the respective speed, after ing a suit. In cases where the applicant was a
the Convention entered into force, will be in- respondent, the time of handing over the court
fluenced by the very fact that the case is be- notification on appearance in court shall be
ing considered for a long time already”.11 This considered as a starting point for this term.
connotates that to a certain degree the time In the case Guincho v. Portugal the Court
lapsed before the ratification of the Conven- found that the starting point of the relevant
tion is also taken into consideration. period, reasonableness of which should have
After the establishing the date of the en- been assessed, was the date proceedings
try into force of the Convention with regard to were instituted before the Court requesting
a particular State, the Court considers the compensation for health damages.16
beginning and the end of the time to be taken In the case Vernillo v. France the Court
into consideration. found that the period to be considered began
“in criminal matters, the “reasonable time” when the applicants were summoned before
referred to in Article 6(1) begins to run as soon the tribunal.17
as a person is charged”.12 The case Beaumartin v. France is espe-
“... Charge”, for the purposes of Article cially interesting, as the application was filed
6(1), may in general be defined as "the offi- in the Paris Administrative Court. It appeared
cial notification given to an individual by the that the dispute fell outside that court’s juris-
competent authority of an allegation that he diction and forwarded the application and the
has committed a criminal offence”.13 file to the Conseil d’Etat. The European Court
“A person may be charged at the time of regarded that the calculation of a reasonable
arrest or when preliminary proceedings are time should have been commenced from the
opened”.14 moment when the applicant first filed the case,
116
E. SICHINAVA, “A REASONABLE TIME” REQUIREMENT
even if to the court which did not have juris- decision, a reasonable time guarantee con-
diction over it.18 tinues being in force until the time established
The court management shall be organized for appeal lapses and up to this moment the
in such a way to avoid the protraction of pro- State is responsible for the length of the pro-
ceedings even in cases of such errors. The ceedings”.26
fact that the person is not duly notified on us- Respectively, when the particular legal
ing the procedural rights shall not turn to be proceedings do not involve all the procedural
the ground for violating his/her right to swift stages envisaged by the legislation, the end
proceedings. of the period to be taken into consideration
In civil and administrative cases the “ rea- shall be the time, when the decision, which was
sonable time” referred to in Article 6(1) nor- final on the given case, entered into force.
mally begins to run from the moment the ac- “If the proceedings still endure in the do-
tion was instituted before the “tribunal”; how- mestic instances by the time when the Stras-
ever in certain circumstances the time may bourg Court considers an application, the pe-
begin to run earlier .19 “Such instances often riod of a reasonable time continues before
take place when the applicant is obliged to delivering a decision by the latter”.27
exhaust the preliminary remedies in the form One of the important issues, which has not
of applying to the administrative bodies be- once become a subject of deliberation for the
fore applying to court”. 20 European Court, is the period of proceedings
In the case Vallee v. France the Court before a constitutional court:
found that the period to be taken into consid- In the case Bock v. FRG the Court found
eration began when the applicant lodged his that “as a review of its case-law demonstrates,
preliminary claim for compensation with the there are circumstances in which proceedings
Minister for Solidarity, Health and Social Pro- before the Constitutional Court of a State must
tection.21 be taken into the reckoning in determining the
“In criminal, as well as civil cases the pe- relevant period. It has to be considered wheth-
riod to be taken into consideration lasts until er the Constitutional Court's decision was ca-
the final determination of the case; and there- pable of affecting the outcome of the case
fore includes appeal and cassation proceed- which has been litigated before the ordinary
ings”.22 courts. The question whether Article 6(1) is
“Time period to be taken into consideration applicable to constitutional complaint proceed-
includes the entire proceeding. In the criminal ings must accordingly be treated on the mer-
case it finishes when the charges brought its of each case, in the light of all the circum-
against a person are decided and he/she is stances”.28
proved guilty or not guilty by the final decision When considering the terms of the pro-
of the court; or it will finish at the moment the ceedings one more time period is arguable:
criminal prosecution is dismissed”.23 In the case Girolami v. Italy the Court con-
In the case H v. France the Court found, cluded, that in the cases in which the appli-
that the time for the purposes of Article 6(1) cant escapes the jurisdiction of the court or is
ended when the applicant was notified of the in hiding, the period for which the applicant
judgment given by the supreme administra- was on the run, should be excluded from the
tive court.24 calculation. However, there is an exception
It is apt to mention here that the final de- from the rule in cases when the charged per-
cision made on any given case is not always son had “a reasonable doubt” to believe that
the decision of the court of cassation. Often he would not get a fair trial and had a reason
times the proceedings are finalized at an ear- to think so”. 29
lier stage: The Court also concluded that “the rea-
In the case Milasi v. Italy the Court found sonableness of the length of proceedings must
that the period to be taken into account for be assessed in the light of the particular cir-
the purposes of Article 6(1) ended on 7 March cumstances of the case and having regard to
1983, when the Reggio Calabria District Court the criteria laid down in the court’s case-law,
gave judgment.25 in particular the complexity of the case and
“When the charged person is found not the conduct of the applicant and of the au-
guilty and the prosecutor does not appeal the thorities concerned”.30
117
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
Each of the factors shall be considered Court pays due attention to the procedural
separately and their cumulative effect shall be matters. The number and the duration of the
assessed therein afterwards. employed procedural actions and measures
undertaken do indeed determine the complex-
1. THE COMPLEXITY OF A CASE
ity of the case.
In this respect the case of Foti and others
“In criminal, as well as civil cases, in order v. Italy is of a particular interest. In its submis-
not to establish a violation, a State shall prove sion the Government asserted that the pre-
that the length of proceedings was precondi- liminary investigation involved a large number
tioned by the complexity of the case”.31 of measures. The Court noted that the offenc-
Even more, “the Court considers the com- es of which the applicants were accused can
plexity of the case before assessing the con- in themselves scarcely be described as com-
duct of the State bodies or of an applicant”.32 plex. As offences committed in public and es-
When assessing the complexity of the tablished on the spot, they should not have
case the factors such as the aspects of the given rise to a difficult process of preliminary
law, as well as volume of evidence, a number investigation. Furthermore, except in the sec-
of the charges or the accused, the necessity ond Foti case, they were dealt with at one ju-
of acquiring the expert opinions, receiving the risdictional level alone. The applicants’ cases
witness statements from abroad, unification of were thus not especially complex”.36
the cases in one proceeding, are taken into One of the interesting cases of the com-
consideration”.33 plex cases is parallel proceedings in both –
As mentioned already, one of the most civil and criminal cases:
important factors taken into consideration by In the case Gunter v. Turkey the Respon-
the Court when assessing the complexity of dent Government submitted that the appli-
the case is a number of the participants of the cant's case was a complicated inheritance dis-
proceedings. pute. There were two proceedings pending at
For example, in the case Union Almentar- the same time. The case could not have been
ia Sanders S.A. v. Spain the Government sub- essentially considered until the case concern-
mitted that the case was fairly complex, as ing the certificate of inheritance was not fina-
there were several defendants, against whom lised. The Court observed that the proceed-
different claims were being made. The Euro- ings were not complex.37
pean Court underlined that only one of the In the case Boddaert v. Belgium the Stras-
defendants appeared before the Court of First bourg Court did not consider the term of six
Instance and none of them before the Court years and three month unreasonable, as the
of Appeal which simplified the task of those complex circumstances related with the mur-
courts”.34 der and a parallel investigation of two cases
In the case Angelucci v. Italy the court con- were involved.38
cluded that the case was undoubtedly of some Conducting the parallel proceedings is the
complexity owing to the number of accused”.35 factor, which can be justly referred to by a state
A State can cite the complexity of a case when claiming the complexity of the case.
as a justification only in extremely exceptional The instances of maintaining by a Gov-
situations, when such circumstances are re- ernment of complexity of the proceedings due
vealed that are unusual for the court practice to the fact that there was a need of the expert
and its prediction in advance is impossible. evidence are frequent.
A number of plaintiffs and accused may In the case Vernillo v. France the Respon-
be high in many instances and the court shall dent Government was alleging that the case
be therefore accordingly prepared for that. was complex. One of the reasons for that was
One of the easiest ways out of the situation is the need to seek an expert opinion. The Court
separation of proceedings or consideration of did not agree with the position.39
a case by several judges. Citing the problem In the case Nowicky v. Austria the appli-
which is subjected to regulation can not be cant was requesting the issuing of a licence
considered as a justification. to produce the medicament. The Government
Along with studying legal issues and fac- argued that the proceedings were complex
tual circumstances of the case, the European namely in that their very nature necessitated
118
E. SICHINAVA, “A REASONABLE TIME” REQUIREMENT
the taking of several expert opinions and sci- nesses do not appear in a court is not suffi-
entific research. Furthermore, in the course cient for considering the case as a whole to
of the proceedings at issue the applicant al- be complex. Some other components shall
tered his request for authorisation of the me- also be present therein.
dicament at issue several times, which made It is also interesting to consider how the
it necessary to conduct further research. The acts of the charged person may resemble on
Court considered that, due to the above men- the complexity of the case:
tioned reasons, the case was of considerable In the case Ferrantelli and Santangelo v.
complexity. Despite this, the Court held that Italy the Government conceded that the total
there has been a violation of Article 6(1).40 duration of the proceedings might at first sight
In the vast majority of cases there is an is- appear excessive, but justified it among oth-
sue emerging which requires the expert opin- ers on the basis of the undeniably complex
ion. Therefore, if all the cases of this kind are nature of the investigation because of the
considered complex and this is referred to by a statements and confessions made and then
State, as a justifying circumstance, this will con- retracted by the accused. According to the
tribute to establishing erroneous practice. applicant’s position, the change of the testi-
The requirements towards the state insti- mony of the accused could not have been
tutions shall be especially strict when the prob- considered as the circumstance complicating
lem was known to a State beforehand and it the case, due to the fact that the accused is
had time for preparation. not obliged to cooperate with the investiga-
In the case Vallee v. France in which the tion. The Court in fact agreed with the Gov-
applicant claimed compensation from the Min- ernment’s submission that the case was un-
istry for Solidarity, Health and Social Protec- doubtedly complex, but not due to these cir-
tion did not agree with the submission of the cumstances. The Court has not taken this ar-
Government that the case was complex, de- gument into consideration.44
spite the fact that paying the compensation In the case Zmalinski v. Poland the Gov-
was related with certain intricacy. According ernment were of the view that the case had
to the Court’s position, “such problems had been complex. According to the applicant mod-
been foreseeable and therefore a solution ifications of his claims had not complicated it.
could probably have been found earlier”.41 The Court considers that, even though the
In order to justify their position in some case was of some complexity, it cannot be said
cases the states refer to the circumstances that this in itself justified the entire length of
such as the non-appearance of the partici- the proceedings.45
pants of the proceedings in court, which ac- We consider that a charged person is not
cording to their explanations, is the reason for obliged to cooperate with the investigation. As
making the case complex. regards the plaintiff, the latter employs the pro-
In the case Konig v. Germany the Court cedural rights when broadening or specifying the
noted that “the Government could not prove claim. This is not out of the ordinary for court
that the case contained the factual or the le- practice. Correspondingly, referring to these fac-
gal complexity. However, it is true that the 4th tors, as justifying circumstances, shall be em-
Chamber of the Administrative Court encoun- ployed by a State only in extremely exceptional
tered great difficulties in tracing witnesses circumstances, when this involves unpredictable
several of whom had in the meantime changed and substantial complications.
name or address”.42
In the case Guincho v. Portugal the Gov- 2. CONDUCT OF AN APPLICANT
ernment was claiming that the case was com-
plex due to the failure of witnesses and law- “State is only responsible for the violations
yers to appear in the court. The Court did not which can be attributable to it. If the parties
agree with the latter view: the circumstances during the proceedings or the accused in a
adverted to by the Government did not com- criminal case caused or contributed to pro-
plicate the conduct of the proceedings in a traction of the proceedings, this time-period
manner unusual for such litigation.43 shall not be taken into consideration”.46
We regard the arguments such as the For instance, in the case Proszac v. Po-
courts may be unsuccessful in cases the wit- land the Court noted that the applicant con-
119
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
tributed decisively to slowing down the pro- The analysis of the case law of the Euro-
ceedings via groundlessly challenging the re- pean Court of Human Rights proves that dif-
porting judge on three occasions, as well as ferent standards are established for assess-
her failures to attend the hearings, and her ing the acts of an applicant in civil and crimi-
refusal to attend for the ... psychiatric exami- nal cases.
nation. Therefore, no violation of Article 6(1) The requirements with regard to state are
was found.47 to a large extent stricter in respect with the
It is apt to mention that a State is not re- criminal cases than with respect of consider-
sponsible for the protracted proceedings which ing civil cases. This can be explained with the
were caused due to the applicant even in fact that expeditious and efficient proceedings
those cases, when the latter acts within the in civil cases depends on the initiative and
framework of the law. determination of the parties to a case. Respec-
For instance, in the case Kemmache v. tively, the responsibility is to a large extent
France the Government argued that the ap- shared by the parties to a case.
plicant contributed to prolonged proceedings In the case Ciricosta and Viola v. Italy the
due to the seeking the adjournment of the pro- Government submitted that the length of the
ceedings. The applicant clarified, that he was proceedings was entirely attributable to the
incapable to attend the hearing due to the applicants. In Italy it was “essentially for the
psychiatric conditions. The European Court parties to take the initiative with regard to the
found, that a State can not be held responsi- progress of civil proceedings” (principio dis-
ble for the protracted proceedings, if that was positivo). The European Court shared the view
caused by the applicant.48 of the Government and added that the “prin-
The Strasbourg Court considers and as- cipio dispositivo” does not dispense the courts
sesses each stage of the legal proceedings from ensuring compliance with the require-
separately. Respectively, a Government is re- ments of “a reasonable time“.50
quired to submit detailed clarifications in res- In civil, as well as in criminal cases, the
courts shall ensure meeting procedural obli-
pect with each of the stages of the proceedings.
gations by the parties through general coor-
In particular, in the case Beaumartin v.
dination. The appropriate legislation shall be
France the Court concluded that the appli-
giving to the courts the possibility of exercis-
cants prolonged the proceedings by errone-
ing the reasonable control over the parties to
ously bringing proceedings in the Court which
a case. Swift legal proceedings do not fall only
had no jurisdiction over the case. They also
within the interest of the parties to a case. A
contributed to the length of the proceedings
state shall itself be interested in considering
by not filing their pleadings until four months
each case in a short term, in order to, on the
after lodging their appeal. The applicants were
one hand, avoid the backlogging the courts
responsible for a certain period of time (9 and on the other side to save the state re-
months), however for the rest of the time no sources. Therefore, a state shall not wait for
explanations have been forthcoming from the the initiatives of parties, but shall establish
Government (the respondent ministry waited such a flexible system which would ensure that
twenty months after the commencement of the case is not being continued for long.
proceedings before filing pleadings and the One of the problematic issues, which sur-
court dealing with the case took over five faces in civil cases when assessing the acts
years to hold its first hearing). Respectively, of the applicant, is the actions of the other
the Court did not regard as “reasonable” in party. May state be responsible for that? In
this instance a lapse of time of eight years and this respect the following cases are interest-
four months and therefore found that there ing to consider:
has been a violation of Article 6 para 1. 49 In the case Vernillo v. France the European
A state can refer to the actions of the ap- Court established that both parties contributed
plicant in order to justify its own position; how- to protracting the case proceedings, which was
ever this way the state will avoid responsibility expressed in the following: the Torzuolis, the
only on the time period which was protracted plaintiffs, took four and a half months to reply in
due to the acts of the applicant and not with the tribunal de grande instance; they filed their
regard to the entire proceedings. second set of appeal pleadings three and a half
120
E. SICHINAVA, “A REASONABLE TIME” REQUIREMENT
months after the first set; and during the appeal For example, in the case Zmalinski v. Po-
on points of law they took four and a half months land the Respondent Government submitted
to reply to the Vernillos’ supplementary plead- that the applicant had partly contributed to the
ings. Furthermore, a year and four months delay by frequent extensions and modifications
elapsed before Mrs Torzuoli resumed the pro- of his claims. However, the Court considered
ceedings after her husband’s death. In this case that the applicant’s conduct, in particular the
the Court pointed out that only delays attribut- manner in which he exercised his procedural
able to the State may justify a finding of a failure rights, had not substantially contributed to the
to comply with the “reasonable time” requirement length of the proceedings. Therefore, no vio-
– the Article 6(1). If the prolongation of the pro- lation of Article 6(1) was found.54
ceedings is caused due to the other party to the Yet another fundamental principle, em-
case, which ultimately led to the protracted con- ployed when evaluating the acts of an applicant,
sideration of the applicant’s case, the State shall is expressed in the case Corigliano v. Italy: “the
not be responsible for that. Even more, the Gov- person concerned is not required to actively
ernment can use this as a justification.51 co-operate with the judicial authorities”.55
In the case Bock v. FRG the Court noted, “An applicant is not obliged to actively
that “State is not responsible for the actions cooperate in speeding-up the proceedings
of the respondent, against whom the applicant after which he/she will be exposed to convic-
has filed a complaint”.52 tion in the charges brought against him/her”.56
Contrary to this, in the case Guincho v. “If the applicant, through the actions un-
Portugal the Court established that “the … cir- dertaken, tries to speed-up the administration
cumstances set out by the Government, and of proceedings, this shall be credited towards
in particular the failure to appear of witnesses him/her, however if he/she does not actively
and of lawyers for the defendants, cannot, in try this, it can not be negatively influencing
the Court’s view, be held against the applicant. the claim of the applicant on protracted pro-
… [t]he dilatory nature of the proceedings ceedings”.57
cannot be attributed to the applicant”.53 “A State is responsible for its omissions,
We share the opinion expressed in this which resulted into the protracted proceed-
very case and believe, that a court shall not ings. It may not claim that the applicant should
only avoid violation of the procedural time-lim- have shown the initiative of noticing this”.58
its, but shall also ensure that the parties to
the case observe them as well. A court must
also call upon the parties to a case, issue or- 3. CONDUCT OF AUTHORITIES
ders, establish time-limits, etc.
When a State undertakes an obligation to Each State implements the obligations
observe all the provisions of the Convention, undertaken by ratifying an international trea-
it does not make a reservation that it will se- ty through the state institutions. Respectively,
cure the rights to persons within its jurisdic- the European Court assess the actions of
tion only from violating them from the side of these very organs in order to establish, wheth-
the state bodies. Despite who is a violator of er a “reasonable time” requirement was ob-
a right of an applicant to have the case con- served.
sidered in a speedy manner – being that a In the case Martins Moreira v. Portugal it
state body or a private individual, the result is was established that the medical institutions
the same. In any case a State shall not allow failed to timely conduct medical examination.
for such a violation and if this still happens, In the Government's view, only the conduct of
shall react adequately. the judicial authorities in question could incur
Respectively, if the applicant, and not the the international liability of Portugal in this
other party to a case, has contributed to the matter and not any errors on the part of the
protracted proceedings, these delays shall not legislature, the executive, or organs or per-
be attributable to the applicant and a state sons outside the State structure, in this in-
shall be responsible for this. stance the Institute, which had no hierarchi-
The European Court has found in a num- cal relationship with the courts. This argument
ber of cases, that an applicant can not be held was not shared by the European Court, which
responsible for using all the possibilities that stated that “in ratifying the Convention, the
are available, notwithstanding their efficiency. Portuguese State undertook the obligation to
121
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
respect it and it must, in particular, ensure that son from violating the rights and afterwards it
the Convention is complied with by its differ- did not provide for recovering the rights vio-
ent authorities. The fact that the medical in- lated.
stitutions were not judicial in character is im- Third, judicial authorities are rightly
material in this respect. In any event, the ex- charged with a special role in the expeditious
amination in question was to be effected in administration of justice. A court is not only
the context of judicial proceedings supervised obliged to observe the terms established for
by the court, which remained responsible for certain procedural obligations itself, but also
ensuring the speedy conduct of the trial”.59 to provide for efficient and expeditious hold-
Deriving from this, it is clear that: ing of the proceedings. It must undertake the
First, upon the ratification of a convention measures in respect of each of the partici-
a state undertakes responsibility to implement pants of the proceedings in order not to give
it and is responsible for all the violations with- anyone a possibility to interfere with the swift
in its jurisdiction, notwithstanding whether this administration of justice.
is caused by a court or other state institutions. In the case Vernillo v. France the Europe-
A party to the European Convention on Hu- an Court concluded, that “the national courts
man Rights is a State and not its separate in- are obliged to create such conditions to states,
stitutions, for example, a court. The state in- which would provide to avoid the unjustifiable
stitutions and officials undertake the public prolongation of the consideration of a case“.61
authority and respectively, a State is respon- “The courts are responsible for ensuring
sible for their actions. that cases proceeded satisfactorily in coop-
Second, the deliberation can go even fur- eration with the parties”.62
ther. A state shall fulfill both – negative and One of the most interesting issues within
positive obligations. It must not only not vio- the measures undertaken by a court is the
late the conventional provisions itself, but must unification of cases, which frequently has be-
secure to any person within its jurisdiction the come an issue of contention.
rights protected by the Convention. For instance, in the case Kemmache v.
In the case Martins Moreira v. Portugal in France the Court held that the case of the
which the Court found the State liable for vio- applicant was unified with the case of Mr.
lations exercised by the medical institution, Klaushofer. His return to France was belated-
considered that the medical institution came ly provided by the Swiss state bodies. This
under the administrative authority of the Min- caused the delaying the proceedings for two
istry of Justice. Accordingly, the Portuguese years and eight months. The applicant alleged
State was under a duty to provide them with that if the return of Mr. Klaushofer was impos-
appropriate means in relation to the objectives sible, the State bodies could have separated
pursued so as to enable them to comply with proceedings in respect with Mr. Kemmache
the requirements of Article 6 para. 1.60 and Mr. Ceccio, what did not happen as the
We consider that notwithstanding wheth- accused were risking very harsh sentence and
er this medical institute would be a state or a Mr. Klaushofer’s statement was one of the
private establishment, a state responsibility important elements. The European Court did
should have been involved in any case. not accept the argument of the Government,
A state shall protect its own national not as to the impossibility of the separation of such
only from violating the rights by the state bod- cases. Therefore, the Court found violation of
ies, but also in those cases, when the legal Article 6(1).63
interests of the former are violated by other Different decision was made in the case
private or legal persons. Boddaert v. Belgium. The Court noted that the
Respectively, if a right of a person to an applicant and Mr. Piron were charged with the
expedite proceeding is violated, it is surplus murder of Jehin. Mr. Piron was also accused
to deliberate on who contributed to this – a in committing other crimes. One of the crimes
civil servant or a private individual. A state shall was closely linked with the murder of Jehin.
not allow violation of human rights and in case The investigating judge chose to shelve the
if this takes place any way, it shall react over investigation in case and to await the outcome
it. In the contrary situation it shall be held re- of the investigation of the “second case” in
sponsible, as first it could not protect a per- order to complete the file of the first and to
122
E. SICHINAVA, “A REASONABLE TIME” REQUIREMENT
hold a joint trial on all the charges brought at the court during years and the adequate
against Mr. Piron. It was also taken into con- measures, which would have increased the
sideration that Mr. Boddaert and Mr. Piron number of staff or otherwise boost the organi-
accused each other of having committed the zation of the court system, were not undertaken.65
crime of which they were both suspected. The It is clearly shown from the case that when
European Court found that in proceeding in a State, in order to ground its position, stipu-
this manner they undoubtedly took the risk of lates, that the court is overloaded, it has to
postponing even further Mr. Boddaert's com- prove the presence of the two conditions: first,
mittal for trial. However, the gravity of the of- that the overloading of courts is a temporary
fences in question and the interdependence incident and not a permanent problem and the
of the charges, could reasonably appear to increase in number of cases was unexpected;
make it necessary for such a “parallel progres- and, second, the state undertook the ade-
sion” of the two cases. Consequently, no vio- quate measures in order to improve the situa-
lation of Article 6 (1) was found.64 tion with the respective speed.
At a glance, the interest of the Court, to Observation of these two conditions is
unite the cases of the similar types, is nimble, essential, but not sufficient:
and in itself is a positive measure, as it sets It is also required that the states under-
as a goal overall and objective investigation take measures with respect to the given ap-
of the case, however in case if such a mea- plicant. In this respect the following cases are
sure does not advance the situation of an of interest:
applicant, but on the contrary, causes delays In the case Buchholz v. Germany the Court
in considering his/her case, a state can not held that a State may not be held responsi-
refer to this action as a justification and the ble, if the violations are caused due to the
measure may become a reason for imposing overloading of the courts, which could not
the liability on it. have been predicted in advance and if a state
A state must always be oriented at the pro- undertakes swift and adequate measures
tection of the right of a person to swift consid- thereto. The Court did not found the respon-
eration of his/her case so that he/she is not dent state liable for violating Article 6(1) in this
left in ambiguity for long. Therefore, when the case, as the overloading of courts was a re-
state institutions consider their actions, the sult of unexpected economic crisis in 1970s
latter shall first of all take into consideration and respectively, the adequate measures were
the interests of a person and grant them a undertaken to increase a number of judges,
priority. Otherwise the actions of the state body as soon as the problem became visible. De-
shall be considered contrary to the Article 6(1) spite the fact that these measures could not
of the European Convention. contribute to advancing the applicant’s situa-
One of the key issues, always surfacing tion, these were the measures which could
when assessing the actions of a state body, is have been undertaken by the respondent state
overloading of courts. This is the argument, in the given circumstances.66
which is used by the both sides (applicant, as A different decision was made in the case
well as a respondent State) in order to ground Ciricosta and Viola v. Italy, in which the State
their position and both sides interpret this in indicated that the state had undertaken the
their own way. The European Court has on respective measures to improve the situation.
the other hand established a number of its own In particular, the Italian Parliament has tried
standards for considering this issue. to remedy the slow workings of justice by re-
In the case Zimmerman and Steiner v. vising the Code of Civil Procedure. The Court
Switzerland the respondent state was found noted that it was not appropriate at that stage
liable, as almost three and a half years were to speculate about measures which had been
required for the appeals procedures, in the undertaken belatedly.67
course of majority of which the case was put Also, in the case Milasi v. Italy the Court
on hold. The announced reason was that the found violation of Article 6. Despite the fact
court was overloaded, and the cases which that the authorities had endeavored to meet
were considered more important, were grant- the crisis of backlogging the courts by acting
ed priority. The case of the applicant did not methodically, by giving priority to the trials of
appear in this list. The cases were collected those defendants who were in custody and by
123
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
appointing more judges and court staff, the We consider, that a feeling that a human
applicant had to wait nearly ten years before being has, while awaiting a verdict, can not
the “criminal charge” against him was the sub- be assessed and delaying his being in such
ject of a judicial determination at first in- an uncertain condition for even very short
stance.68 time period is a violation and respectively shall
It is evident from the aforementioned that involve the responsibility of state bodies.
the European Court set a very high standard. As it is evidenced from the Court case law
Each of the measures undertaken by a State review, the issue of duration of the proceed-
shall be assessed based on its effectiveness ings is problematic in a number of states. The
with regard to the applicant. The subject of reasons causing it often diverse:
any given application is not the review of the “The States are held accountable for the
general policy of a state, but the concrete fact actions of the civil and administrative bodies,
of violation committed by the State. Even in that is expressed in the following: the estab-
the case if a reform was in principle success- lished registration procedures, postponing the
ful, but it could not improve the applicant’s sit- court hearing and protractions, which are
uation, referring to it will not be grounded. caused due to the lack of staff in the adminis-
There are precedents, in which the Court trative bodies”.70
held no violation of Article 6, as the protrac- “Protraction of the civil proceedings in-
tions in the proceedings caused by the State cludes the following: postponing the delivery
bodies were not considered to be lengthy. of the decision until the judgment is delivered
For instance, in the case Neumeister v. on another case, postponing the court hear-
Austria the Court held that Mr. Neumeister had ing or the submission of the evidence by a
not been interrogated during the fifteen state, the delays caused due to the fault of
months, there were no confrontation of wit- the registry of other administrative bodies”.71
nesses and other investigative actions under- “In the criminal proceedings they include:
taken. The consideration of case commenced movement of the case between the courts,
in a year after the finalizing the investigation.
hearing a case of two or more defendants at
Despite all this, the European Court has not
once, handing the verdict to the sentenced”.72
considered these facts to be sufficient for find-
For the purpose of implementing all the
ing that the terms were violated. The Govern-
obligations undertaken by states upon the rat-
ment noted that the delays were in large part
ification of the Convention it is necessary to
caused by the need to give the legal repre-
arrange the judicial system in line with the re-
sentatives of the parties and also the judges
quirements of Article 6(1).
sitting on the case time to get acquainted with
“The Convention obliges the states par-
the case record, which comprised twenty-one
ties to organize the legal systems in a manner
volumes of about five hundred pages each.
to allow the courts to fulfill the requirement of
Over seven years had elapsed between the
Article 6(1). The state is not only responsible
time Neumeister was originally charged and
for the specific violations due to the fact that it
the time when the Strasbourg Court was con-
sidering his application, and he did not yet had could not swiftly administer justice, but also
a judgment of conviction or acquittal.69 due to not increasing the resources despite
We consider that in this case the dissent- the fact that the courts are overloaded and
ing opinion of the Judge Zekia shall be taken there is no structure created, that as a result
into consideration: “Notwithstanding the diffi- causes protraction”.73
culties encountered in the preparation and
presentation of the case I am unable to per- CONCLUSION
suade myself - even after making certain al-
lowances for the delays caused by the neces- In order to make the legislation and the
sity for these long investigations and the diffi- practice of our country in line with the require-
culties of procuring evidence - that such a long ment of the “reasonable time”, a number of
interval and delay between the date Neumeis- measures shall be undertaken by the state
ter was originally charged and the date of the bodies.
conclusion of his trial, could be considered as In particular, the following legislative gaps
compatible with the letter and spirit of Article 6 shall be filled up: Chapter II of the Criminal
(1) of the Convention…” Procedure Code of Georgia – “The Principles
124
E. SICHINAVA, “A REASONABLE TIME” REQUIREMENT
of the Criminal Procedure” does not contain a ism). The courts shall have objective condi-
provision about administering justice “in a rea- tions for the protection of the requirements of
sonable time”. The same Law does not con- the European Convention, and at the same
tain any provision which would have defined time the readiness of the judges to be orient-
the time-frame for the first instance court to ed at the observation of the requirement of “a
deal with the case. It would be also desirable reasonable time” is also required.
to include into the Criminal Procedure Code The fight against this problem is essen-
of Georgia the categories of priority cases tial, in order not to violate a right of our citi-
which should be given priority by courts. zens to have their cases processed quickly
Violations of a requirement of a “reason- and do not stay in the unclear situation for
able time” in Georgia are in general condi- the extended period of time. This is also im-
tioned with the fact that the courts are over- portant for avoiding backlogging the courts
loaded. In order to decrease the number of and what is important, avoiding threatening the
such vivid violations of human rights, along efficiency and credibility of justice.
with the revision of the legislation the broad- And finally, the requirement of “a reason-
ening of the judicial branch of power and in- able time” shall be observed, in order not to
crease of the number of judges and court staff have the fundamental principle of international
is needed (there is no doubt that this shall not law – pacta sund servanda – violated by Georgia.
be exercised on the expense of professional-
1
www.supremecourt.ge
2
See: b. boxaSvili `adamianis uflebaTa evropuli sasamarTlos
precedentuli samarTali~, 2004, gv. 241.
3
See: DJ Harris, M O’ Boyle, C Warbrick “Law of the European Convention on
Human Rights”, 1995, p. 223.
4
See: “Fear” by Stefan Zveig, “A Crime and a Punishment” by T. Dostoyevsky.
5
See: DJ Harris, M O’ Boyle, C Warbrick “Law of the European Convention on
Human Rights”, 1995, p. 223.
6
Ibid.
7
See: Article 6(1) of the Law of Georgia on International Treaties, 16 October, 1997.
8
See: Article 6(2) of the Constitution of Georgia.
9
See: Article 28 of the Vienna Convention on the Law of Treaties, 22 May, 1969.
10
See: Silva Pontes v. Portugal, 23 March 1994, 14940/89, para. 38; also: Baggetta
v. Italy, 25 June, 1987, 13/1986/111/159, para. 20.
11
See: DJ Harris, M O’ Boyle, C Warbrick “Law of the European Convention on
Human Rights”, 1995, p. 223.
12
See: Council of Europe, Key case-law extracts – The published case-law on the
European Convention on Human Rights, 2003, p. 210.
13
See: Foti and others v. Italy 10 December 1982, .7604/76; 7719/76; 7781/77; 7913/
77; para. 52.
14
See: P.Leach “Taking a case to the European Court of Human Rights”, 2005, p. 260.
15
Wemhoff v. FRG 27 June 1968, .7 (See also Neumeister v. Austria, 27 June, 1968
#1936/63 ).
16
See: Guincho v. Portugal, 10 July 1984, 8990/80, para. 29.
17
See: Vernillo v. France, 20 February, 1991, 11889/85, para. 29.
18
See: Beaumartin v. France, 24 November, 1994, 15287/89, para. 30.
19
See: Council of Europe, Key case-law extracts – The Published Case-law on the
European Convention on Human Rights, December, 2003, p. 211.
20
See: DJ Harris, M O’ Boyle, C Warbrick “Law of the European Convention on
Human Rights”, 1995, p. 195.
21
See: Va l lee v. France, 26 April, 1994 22121/93, para. 33.
22
See: C. Ovey and R. White, “The European convention on Human rights”, 2002, p. 167.
23
See: A.H. Robertson, J.G Merrills “Human Rights in Europe”, 1993, p. 101.
24
See: H v. France, 24 October, 1989, #10073/82, para. 48.
25
See: Milasi v. Italy, 25 July, 1987, #14/1986/112/ 160, para. 14.
26
DJ Harris, M O’ Boyle, C Warbrick “Law of the European Convention on Human
Rights”, 1995, p. 225; See also: Ferraro v. Italy, 19 February, 1991, 16/1990/207/
267, para. 15).
125
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
27
See: DJ Harris, M O’ Boyle, C Warbrick “Law of the European Convention on
Human Rights”, 1995, p. 223.
28
See: Bock v. FRG, 29 March, 1989, 1/1988/145/ 199, para. 37.
29
See: Girolami v. Italy, 19 February, 1991, 15/1990/206/266; See also: DJ Harris, M
O’ Boyle, C Warbrick “Law of the European Convention on Human Rights”, 1995,
p. 223.
30
See: Bock v. FRG, 29 March, 1989, 1/1988/145/ 199, para. 38; Hentrich v. France,
22 September, 1994, 13616/88, para. 59.
31
See: A. H. Robertson, J.G. Merrills “Human Rights in Europe”, 1993, p. 102.
32
See: Council of Europe, Key case-law extracts – The Published Case-law on the
European Convention on Human Rights, 2003, p. 210.
33
See: DJ Harris, M O’ Boyle, C Warbrick “Law of the European Convention on
Human Rights”, 1995, p. 224.
34
See: Union Almentaria Sanders S.A. v. Spain, 7 July, 1989, #11681/85 para.-s 32-33.
35
See: Angelucci v. Italy, 20 October, 1991, 13/1990/204/26, para. 15.
36
See: Foti and others v. Italy, 10 December, 1982, # 7604/76; 7719/76; 7781/77;
7913/77, para.-s 57-58.
37
See: Gunter v. Turkey, 22 February, 2005, # 22/05/2005, para.-s 34 and 37.
38
See: Boddaert v. Belgium, 12 October, 1992, #65/1991/317/389.
39
See: Vernillo v. France, 20 February, 1991, #11889/85, para. 31.
40
See: Nowicky v. Austria, 24 February, 2005, # 34983/02, para.-s 49 and 53.
41
See: Vallee v. France, 26 April, 1994, # 22121/93, para.-s 37-38.
42
See: Konig v. Germany, 28 June, 1987, #6232/73, para. 102.
43
See: Guincho v. Portugal, 10 July, 1984, #8990/ 80, para. 33.
44
See: Ferrantelli and Santangelo v. Italy, 23 February, 1996, #48/1995/554/640,
para.-s 40-42.
45
See: Zmalinski v. Poland, 22 March, 2005, # 52039/99, para.-s 39, 42 and 46.
46
See: C. Ovey and R. White, “The European Convention on Human Rights”, 2002, p. 167.
47
See: Proszak v. Poland, 16 December, 1997, # 2/1997/786/987 para. 40.
48
See: Kemmache v. France, 24 November, 1994, 17621/91.
49
See: Beaumartin v. France, 24 November, 1994, # 15287/89, para. 33.
50
See: Ciricosta and Viola v. Italy, 4 December, 1995, # 5/1995/511/594, para.-s
26 and 30.
51
See: Vernillo v. France, 20 February, 1991, #11889/85, para. 34.
52
See: Bock v. FRG, 29 March, 1989, #1/1988/ 145/199.
53
See: Guincho v. Portugal, 10 July, 1984, #8990/80, para. 34.
54
See: Zmalinski v. Poland, 22 March, 2005, # 52039/99, para.-s 40, 43, and 47.
55
See: Corigliano v. Italy, 10 December, 1982, # 8304/78, para. 42.
56
b. boxaSvili `adamianis uflebaTa evropuli sasamarTlos precedentuli
samarTali~, 2004, gv. 243.
57
Ibid.
58
DJ Harris, M O’ Boyle, C Warbrick “Law of the European Convention on Human
Right”, 1995, p. 225.
59
See: Martins Moreira v. Portugal, 26 October, 1988, 21/1987/144/198, para. 60.
60
See: Martins Moreira v. Portugal, 26 October, 1988, 21/1987/144/198, para. 60.
61
See: Korkelia K., Kurdadze Ir., “International Law of Human Rights from the
Perspective of the European Convention on Human Rights”, 2004. p. 162.
62
See: Proszak v. Poland, 16 December, 1997, #2/1997/786/987, para. 33.
63
See: Kemmache v. France, 24 November, 1994, 17621/91, para. 68.
64
See: Boddaert v. Belgium, 12 October, 1992, 65/1991/317/389 para.-s 37-38.
65
See: Zimmerman and Steiner v. Switzerland, 13 July, 1983, # 8737/79.
66
See: Buchholz v. Germany, 6 May, 1981, 7759/77.
67
See: Ciricosta and Viola v. Italy, 4 December, 1995, #5/1995/511/594, para. 31.
68
See: Milasi v. Italy, 25 June, 1987, 14/1986/112/160, para.-s 17 and 18.
69
See: Neumeister v. Austria, 27 June, 1968, 1936/63, para.-s 20 and 21.
70
DJ Harris, M O’ Boyle, C Warbrick “Law of the European Convention on Human
Rights”, 1995, p. 225.
71
b. boxaSvili `adamianis uflebaTa evropuli sasamarTlos precedentuli
samarTali~, 2004, gv. 244.
72
Ibid.
73
DJ Harris, M O’ Boyle, C Warbrick “Law of the European Convention on Human Rights”,
1995, p. 227.
126
nona kalandaZe
127
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
128
n. kalandaZe, `SromiTi migrantebisa da maTi ojaxebis wevrebis uflebaTa dacvis ...
129
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
130
n. kalandaZe, `SromiTi migrantebisa da maTi ojaxebis wevrebis uflebaTa dacvis ...
131
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
2004 wels, Tumca unda aRiniSnos, rom mas cialur gamoqveynebamde. Tumca saukeTe-
praqtikaSi cota saxelmwifo Tu iyenebs – so, risi varaudic SeiZleba, aris gaeros
mas arc vinme uWers mxars da arc vinme mier finansuri saxsrebis ekonomiurad
gmobs.49 gamoyeneba.
CamorCena erT-erTi seriozuli sak- miuxedavad imisa, rom zogierT SemTx-
iTxia. Tu gaviTvaliswinebT, rom saxelm- vevaSi adamianis uflebebi irRveva ekono-
wifoTa angariSebis ganxilvas saSualod mikuri faqtorebis gamo, ufro xSirad
sami weli sWirdeba, xolo perioduli an- aRniSnulis mizezebi politikuria. gaeros
gariSis wardgena savaldebuloa or weli- sistemaSi problemaa is, rom darRveva
wadSi erTxel, problema aSkaraa. gaeros klasificirebuli unda iyos rogorc mu-
SeuZlia sanqciebis Sefardeba, Zalis qara saerTaSoriso mSvidobisa da uSiS-
gamoyeneba da, bolos da bolos, wevrobis roebis mimarT, gansazRvrebis mixedviT ki
CamorTmeva. wesdebis Tanaxmad, nebismier komitetis mier miRebuli bevri individ-
saxelmwifos, romelic ar asrulebs or- ualuri saCivari amgvarad ar kvalifici-
ganizaciis moTxovnebs, SeiZleba eTxovos rdeba. amas emateba isic, rom individu-
misi rigebis datoveba. miuxedavad amisa, aluri Setyobinebebi arasakmarisad gamo-
mas xSirad urCevnia saxelmwifos sakuTar iyeneba. individualuri saCivrebis ganx-
rigebSi datoveba, vidre misi gagdeba da ilvis procesi unda iyos ufro swrafi,
masze kontrolis mTlianad dakargva. sajaro, srulad dasabuTebuli da mas
monawile saxelmwifoTa daswreba im unda mohyves gadawyvetilebis Sesrule-
Sexvedraze, romelzec ganixileba maTi ba. saxelSekrulebo monitoringis yvela
angariSebi, sasargeblo ki aris, magram organos mieca winadadeba, mieRoT Ses-
masTan dakavSirebuli xarjebi amas Seu- rulebasTan dakavSirebuli procedure-
Zlebels xdis. sesiebis raodenobis zrda bi da zomebi, romlebic maT gauCenda an-
aseve procesis daCqarebis erT-erTi gariSebis droulad Cabarebis survils.51
gzaa, Tumca aq kvlavac mTavaria resur- generalurma mdivanma aRniSna sax-
sebis problema. gaeros monitoringis elSekrulebo monitoringis organoTa
uwyebaTa Rrma finansuri sirTuleebi muSaobis modernizebis aucilebloba.
gamoaaSkarava venis deklaraciam da samo- Tumca es nawilobriv mimarTulia ufro
qmedo gegmam da adamianis uflebaTa mso- saxelmwifoTa mier angariSebis Sedgena-
flio konferenciam. sTan dakavSirebuli muSaobis Semcirebi-
bolo wlebSi mudmivi diskusia mim- saken, vidre gaeros finansuri mdgomar-
dinareobs gaeros moxsenebis sistemis eobis Semsubuqebisaken. mimdinareobs
racionalizaciaze. mTavrobaTa valde- TanamSromlobis ganmtkiceba xelSek-
bulebaa, zogjer erTsa da imave sakiTxe- rulebis monitoringis uwyebebs Soris da
bze moxsenebebi warudginon sxvadasxva angariSgebasTan dakavSirebuli miTiTe-
periodulobis sistemiT momuSave ram- bebis modernizeba.52 arsebuli sistema
denime saxelSekrulebo organos. moxse- sakmaod araefeqtiania misken mimarTuli
nebebis mniSvnelovani dagvianebiT ward- resursebis gaTvaliswinebiT.53
gena da zogierTi saxelSekrulebo orga-
nos mxridan moxsenebaTa ganxilva aseve 6. saqarTvelo da qarTvel
mniSvnelovnad Wianurdeba.50 SromiT migrantebTan
garda amisa, monawileTa raodenobis dakavSirebuli problemebi
gazrda dakavSirebulia Targmanis xar-
jebis zrdasTan. gaeroSi angariSebi un- sabWoTa kavSiris daSlis Semdeg
da iTargmnos gaeros oficialur enebze saqarTveloSi mimdinare socialur-eko-
(Cinuri, inglisuri, franguli, rusuli, nomikurma procesebma qveynidan migraci-
espanuri da arabuli) da SeiZleba kidev is farTo masStabebi gamoiwvia. kvlevis
sxva enebze. angariSebis reziumeebi amJa- Sedegebidan gamomdinare, intensiuri mi-
mad mzaddeba inglisur da frangul eneb- graciis mTavari ganmapirobebeli saqar-
ze mxolod imitom, rom Semcirdes ward- Tvelos mosaxleobis cxovrebis donis
genis dagvianebis SemTxvevebi, magram gauaresebaa.54
gaero kvlavac moiTxovs angariSebis yve- XX saukunis 20-ian wlebSi saqarTve-
la oficialur enaze Targmnas maTs ofi- los soflebSi SromiTi resursebis bune-
132
n. kalandaZe, `SromiTi migrantebisa da maTi ojaxebis wevrebis uflebaTa dacvis ...
133
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
1
Office of the United Nations High Commissioner for Human Rights, The Interna-
tional Convention on Migrant Workers and its Committee, Fact Sheet No. 24
(Rev.1), p. 3. ekonomikuri da socialuri sabWos 1973 wlis moTxovnis safuZ-
velze umciresobaTa dacvisa da diskriminaciis aRmofxvris qvekomi-
siam 1976 wels miiRo aqti kanonsawinaaRmdego da faruli trefikingis
134
n. kalandaZe, `SromiTi migrantebisa da maTi ojaxebis wevrebis uflebaTa dacvis ...
135
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
136
n. kalandaZe, `SromiTi migrantebisa da maTi ojaxebis wevrebis uflebaTa dacvis ...
19
komitetTa Tavmjdomareebis mier gansaxilveli sakiTxebi fokusirebu-
lia teqnikuri xasiaTis problemebze, rac gaeros komitetTaSorisi da
specialuri procedurebis informaciis urTierTgacvlas ukavSirde-
ba. garda amisa, ewyoba araoficialuri konsultaciebi ama Tu im xelSek-
rulebis monawile saxelmwifoebTan, gaeros partniorebTan da
arasamTavrobo organizaciebTan.
20
pirveli aseTi Sexvedra moewyo 2002 wels JenevaSi.
21
http://www.ohchr.org/english/bodies/cmw/index.htm
22
saerTaSoriso konvencia `SromiTi migrantebisa da maTi ojaxis wevrTa
dacvis Sesaxeb~, 73-e muxlis .1-li punqti;
aseve: http://www.un.org/russian/documen/convents/migrant7.htm
23
saerTaSoriso konvencia `SromiTi migrantebisa da maTi ojaxis wevrTa
dacvis Sesaxeb~, 73-e muxlis me-2 punqti;
aseve: http://www.un.org/russian/documen/convents/migrant7.htm
24
saerTaSoriso konvencia `SromiTi migrantebisa da maTi ojaxis wevreb-
is dacvis Sesaxeb, 73-e muxlis, me-4 punqti;
aseve: http://www.un.org/russian/documen/convents/migrant7.htm
25
United Nations, HRI, International Human Rights Instruments, Distr., General
Hri/Gen/2/Rev.2/Add. 1, 6 May 2005, Original: English, Compilation of Guidelines
on the Form and Content of Reports to be Submitted by States Parties to the
International Human Rights Treaties.
26
angariSis es nawili unda Seicavdes:
a) SromiTi migrantebis konvenciis monawile saxelmwifos aRniSnu-
li konvenciis implementaciisaTvis konstituciuri, sakanonmdeblo,
sasamarTlo da administraciuli CarCoebis, aseve migraciasTan dakav-
Sirebuli ormxrivi, regionuli Tu mravalmxrivi SeTanxmebebis aRweras;
b) migraciul nakadebze (imigraciis, tranzitis, emigraciis) ricxobriv
da xarisxobriv da, rac SeiZleba, detalur informacias; g) realuri
mdgomareobis, iseve rogorc konvenciis implementaciasTan dakavSire-
buli sakiTxebis, aRweras da konvenciis debulebebis Seusruleblobis
gamomwvevi mizezebis gansazRvras; d) monawile saxelmwifos mier konven-
ciis gavrcelebisa da konvenciaSi gatarebuli debulebebis mxardasa-
Werad samoqalaqo sazogadoebasTan TanamSromlobisaTvis gatarebuli
RonisZiebebis Sesaxeb informacias (United Nations, HRI, International Hu-
man Rights Instruments, Distr., General Hri/Gen/2/Rev.2/Add. 1, 6 May 2005, Original:
English, Compilation of Guidelines on the Form and Content of Reports to be
Submitted by States Parties to the International Human Rights Treaties, p.2).
angariSis meore nawili unda Seicavdes konvenciis saTiToo muxl-
Tan, kerZod, konkretuli saxelmwifos mier konvenciis debulebebis im-
plementaciasTan, dakavSirebul informacias. imisaTvis, rom saxelmwi-
foebs gauadvildeT angariSis warmodgena, angariSis formisa da Sinaar-
sis wesebis Semcveli dokumenti moicavs CamonaTvals, Tu ra Tanmimdevro-
biT unda moxdes angariSSi informaciis warmodgena (United Nations, HRI,
International Human Rights Instruments, Distr., General Hri/Gen/2/Rev.2/Add. 1,
6 May 2005, Original: English, Compilation of Guidelines on the Form and Con-
tent of Reports to be Submitted by States Parties to the International Human
Rights Treaties, p.2-5).
angariSis meore nawilis a) punqti aucileblad unda Seicavdes
zogad principebze miTiTebas, kerZod SromiTi migrantebis konvenciis
1-li muxlis 1-l qvepunqtsa da me-7 muxlSi (aradiskriminaciuloba), 83-e
(uflebaTa dacvis efeqturi saSualebebi) da 84-e (saxelmwifos valde-
buleba kovenciis pirobebis Sesrulebaze) muxlebSi gatarebul princi-
pebTan SesabamisobaSi saxelmwifos mier gatarebul RonisZiebebs; b) punq-
tSi SromiTi migrantebis konvenciis mesame nawilis (SromiTi migrante-
bisa da maTi ojaxis wevrTa adamianis uflebebi) muxlebTan Sesabamiso-
baSi gatarebuli RonisZiebebi Camoiwereba. gansazRvruli Tanmimdevro-
biT konvenciis mesame nawilis TiTqmis yvela muxlSi gatarebuli ufleb-
is Sesabamisad unda iqnes moyvanili informacia am uflebis implementa-
ciasa da Sedegebze (me-8, me-9 da me-10; me-11; me-12, me-13 da 26-e; me-14 da
me-15; me-16.1_me-16.4, me-17 da 24-e; me-16.5-me_16.9, me-18 da me-19; me-20;
21-e, 22-e da 23-e; 25-e, 27-e, 28-e; 29-e, 30-e, 31-e; 32-e da 33-e); g) punqti
SromiTi migrantebis konvenciis me-4 nawilis (legaluri da mudmivi sta-
137
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
138
n. kalandaZe, `SromiTi migrantebisa da maTi ojaxebis wevrebis uflebaTa dacvis ...
139
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
55
rogorc Sromis saerTaSoriso organizaciis eqspertTa Sefasebebi miu-
TiTebs, SromiT migrantebs weliwadSi fulisa da saqonlis saxiT SeaqvT
saSualod 2000 aSS-is dolari, anu TveSi saSualod 166.7 dolari. es cifri
TiTqmis emTxveva saqarTveloSi saSualo gzavnilis sidides – 162, 4 aSS
dolars. saerTaSoriso organizaciis saqarTvelos misiis xelmZRvane-
li, SromiTi migracia saqarTvelodan – migraciis saerTaSoriso orga-
nizaciis angariSi, Tb., 2003, gv. 61.
56
statistikis saxelmwifo departamentis informaciiT, 1990-1998 wlebSi
saqarTvelo datova 194 600-ma qarTvelma. damoukidebeli eqspertebi ki
acxadeben, rom es cifri Zalian dabalia. maTi gamoTvliT, imave peri-
odSi saqarTvelodan wavida 1 638 000 qarTveli _ es ki Zalian didi
cifria, Tu gaviTvaliswinebT imas, rom 1990 wlis dasawyisSi saqarTve-
los mTliani mosaxleoba iyo 5 421 700-sa (damoukidebeli eqspertebis
informaciiT) da 5 456 100-s (mTavrobis informacia) Soris.
57
`gaWirveba sazRvargareT Tu SimSili samSobloSi~, saqarTvelodan ara-
legaluri migraciis kvleva, migraciis saerTaSoriso organizacia, se-
qtemberi, 2001 weli, gv. 6.
58
iqve.
59
iqve, gv. 67-69.
60
http://en.wikipedia.org/wiki/Committee_on_Migrant_Workers
61
http://www.un.org/russian/topics/reform/refordoc/part2.htm
62
Migrant Workers in International Human Rights Law Their Protection in Coun-
tries of Employment, Ryszard Chelewinski, Clarendod Press Oxford, 1997, p.V,
ix. http://www.questia.com/PM.qst?a=o&d=74392289
63
saerTaSoriso organizaciis saqarTvelos misiis xelmZRvaneli, SromiTi
migracia saqarTvelodan – migraciis saerTaSoriso organizaciis an-
gariSi, Tb., 2003.
64
amJamad msoflioSi ar arsebobs adamianis uflebebze momuSave raime
saerTaSoriso tribunali, Tumca gaeros zogierTi komiteti muSaobs
kvazisasamarTlo mimarTulebiT (International Human Rigths Monitoring
Mechanisms, Essays in honour of Jakob Th. Möller, The Raoul Wallenberg Insti-
tute Human Rights Library, Volume 7, Martinus Nijhoff Publishers, The Hagu/
Boston/London, Kluwer Law International, 2001, p. 133), `miukerZoebeli msa-
julTa jgufi, romelic funqcionirebs proceduris sakuTari wesis Se-
sabamisad da romelsac SeuZlia arCeuli mxareebis eqspertTa Cvenebis
mosmena sakuTari azris gamoTqmamde (romelic samarTlebrivad ar aris
savaldebulo). process, romelSic monawileobas iRebs iseTi organoe-
bi, rogoricaa adamianis uflebaTa komiteti da rasobrivi diskrimi-
naciis yvela formis aRmofxvris komiteti (romelsac SeuZlia indi-
vidualuri saCivrebis miReba), aqvs sasamarTlos saxe. adamianis ufle-
baTa zogierTi aspeqtis win wamoweva ruandisa da yofili iugoslaviis
sisxlis samarTlis sagangebo tribunalebis damsaxurebaa". adamianis
saerTaSoriso uflebebi, saxelmZRvanelo, meore gamocema, rona k.m. smi-
ti, oqsfordis universitetis gamomcemloba, 2005, gv. 217.
65
magaliTad, dRemde SromiTi migrantebis konvencia miRebuli ar aqvs
arc erT did saxelmwifos, risTvisac ix.: http://www.ohchr.org/english/coun-
tries/ratification/13.htm
66
saqarTvelo da saerTaSoriso samarTali, statiaTa krebuli, Tb., 2001,
gv. 25-26, ix. aseve: http://www.un.org/esa/about_esa.html
67
asborn eide, katarina krauze, alan rosasi, ekonomikuri, socialuri
da kulturuli uflebebi, saxelmZRvanelo, meore ganaxlebuli gamoce-
ma, Targmani nana jafariZe-WyoiZisa, 2005, gv. 525.
68
http://www.migrationinformation.org/Feature/display.cfm?id=288
140
NONA KALANDADZE
141
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
bers of their families shall not be important for The Committee on Migrant Workers held
the States, they shall equally to other citizens its first session in 2004. The meetings of the
protect their rights and dignity. Committee take place annually. Secretary
In comparison to all other instruments on General of the UN preliminary informs the par-
the migrants, the first part of the Convention ticipants of the committee on the place as well
provides for the comprehensive definition of as on the date of the meeting (as early as
the term “Migrant Workers”8. The Convention possible).16
applies equally to all migrant workers and The Committee is publishing its reports on
member of their families. In spite of the fact the activities annually.17 The report is public
that, the list of restrictions is illustrative and and accessible. They can be also found in in-
non-comprehensive, it is still more complete ternet. The reports mainly provide for infor-
than the grounds stated by the other Conven- mation on the activities of the committee.18
tions on Human Rights.9 For the enhancement of monitoring it is also
The Convention grants all migrant work- important to underline the role of meetings of
ers who are documented and in regular sta- Chairmen and inter-committee meetings. The UN
tion with the additional rights. All migrant work- General Assembly has introduced such meet-
ers and members of their families legally re- ings since 1983, which aims at enhancement of
siding or having a permanent status in the activity of the committees supervising the exe-
State of employment shall have the right to be cution of treaties. First meeting of the Chairmen
fully informed on their future working condi- of the Committees was held in 1984, but from
tions, as appropriate, as well as on the other 1995 such meetings take place annually.19
issues related to their working conditions (Ar- Also inter-committee meetings are being
ticle 37). held aimed at20 harmonization of working methods.
The Convention bounds the State parties
to respect migrant workers as individuals, it 2.2. Examination of the Reports of the
provides for the frames of support to create Member States by the Committee on
normal, fair, human and lawful conditions in Migrant Workers
relation to the international migration.10
The main task of the Committee is moni-
toring the implementation of the Convention
2. ACTIVITY OF THE COMMITTEE ON MIGRANT on the Migrant Workers on the basis of re-
WORKERS ports submitted by the Member States.
2.1. Committee on Migrant Workers and The main aim of the system of reports pro-
Monitoring Mechanisms of the Protection vides an opportunity to monitor the compati-
of Rights of Migrant Workers bility of the State.
Each Member State shall be obliged to
Unfortunately accession to any conven- submit the regular reports on the measures
tion does not mean that the listed rights and taken for the implementation of the Conven-
obligations will be performed appropriately and tion.21 The Submission of the report is manda-
steadily. Therefore the Convention provides tory within one year after the entry into force
for the creation of the bodies responsible for of the Convention for the State Party con-
the implementation of the Convention aimed cerned, thereafter every five years and when-
at monitoring of process of implementation of ever the Committee so requests.22 The reports
the Convention.11 shall also indicate factors and difficulties (if
After the entry into force12 on the basis of any) affecting the implementation of the Con-
Article 72 of the Convention on the Migrant vention and shall include information on the
Workers the Committee on the protection of characteristics of migration flows in which the
the rights of migrant workers and members of State Party concerned is involved,23 Iand which
their families was established,13 which is a com- is also interesting and important in the scope
ponent of the office of the UN High Commis- of monitoring, these reports shall be widely
sioner for Human Rights.14 available to the public in their own countries.24
The Committee on the Migrant Workers is The Committee has also elaborated the doc-
an independent group of experts, which mon- ument containing the form and content of re-
itors the implementation of the Convention on port,25 which provides for the section of infor-
the Migrant Workers by the States.15 mation of a general nature.26
142
N. KALANDADZE, INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL ...
In accordance with the provisions of Arti- Individual appeals are one of the mecha-
cle 76 of the Convention on Migrant workers, nisms implementing human rights. As the
any State Party to this Convention is entitled mechanism of receiving individual appeals
to address another State in written form if con- does not operate yet, procedural rules are not
siders that this State violates or does not per- elaborated by the Committee on Migrant Work-
form the obligations under the Convention. ers and thus it does not have an experience
After three months from the date of receipt of in the field of individual appeals. However the
the written notification, the State shall submit Committee may operate similarly to the pro-
explanation or any other statement in written cedures established by other bodies and im-
form to the sending State. plement activities, stipulated by Article 77 of
Similar written notification regarding the oth- the Convention on Migrant Workers, through
er State shall be submitted to the relevant com- the same methods.30
mittee by any State. Within 12 months from As it is already mentioned a certain element
the date of receipt of such notification the com- of sanction may be imposed on a State, if it vio-
mittee shall submit a report. If the decision is lates obligations under the treaty. Therefore,
positive, the committee will refer only facts and individual appeals partially help the performance
solution methods in its report. But if it is not of obligations related to human rights – perhaps
possible to solve the issue positively, the re- the State will have an appropriate approach to
port of the committee shall include list of facts the obligations, rather than risk to introduce a
related to issue raised between the States con- punitive sanction. Negative results often push a
cerned. State to change its legislation or practice.31 It
From practical or diplomatic point of view, should be mentioned that the success of indi-
the States avoid and sometimes even do not vidual appeals is higher when local means are
want to be involved in disputes between the available to the claimant.32
States. It is proved also by the experience of
International Judiciary. Even in well founded 3. SPECIAL RAPPORTEURS IN MONITORING
court systems such as in EU and Council of SYSTEMS OF LABOUR MIGRANTS
Europe, the amount of interstate appeals is
very low.27 Human rights monitoring international or-
Such kind of applications shall be deliv- ganizations often address to Rapporteurs for
ered to the UN Secretary General, who shall assistance.
send their copies to the other member States The Commission requires special Rappor-
to the Convention on Migrant Workers. Such teurs33 to discuss obstacles related to the im-
written notification shall be any time abolished plementation of migrant rights, including legal
by sending notification to the Secretary General. and illegal migrants.34
In case of threat to peace and security the Upon receiving the information on viola-
UN Security Council may intervene, despite tion of rights of migrants, Special Rapporteur
the facts who lodged the complaint. 28 shall immediately send an appeal or address
All abovementioned procedure shall come to the relevant State, in order to clarify the
into force when ten States Parties to the Con- situation and/or to draw attention on them.35
143
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
Special Rapporteur shall discuss individual creased the importance of human rights. Fur-
appeals regarding rights of migrants and also thermore, researches and statistics collected
discuss applications defining general situa- by Rapporteurs may be used in order to as-
tions in certain countries. The application of sist international and regional bodies in the
Special Rapporteur may cause necessity of field of standard development.43
requesting information, mutual cooperation
(accusatory letters) and/or other urgent ac- 4. THE ROLE OF NGOS IN THE UN
tivities (urgent appeals). Special Rapporteur MONITORING PROCESS
has elaborated special questionnaire, which
is available for any person. This can also be The NGOs are regularly taking part in the
found on the internet.36 Special Rapporteur is working groups of the UN44, but the informa-
entitled to request information on violation of tion provided by the NGOs does not have an
the rights of migrants through the Authorities, official status in all committees.45
contracting parties, intergovernmental and Currently while discussing the State re-
competent bodies of the UN or NGOs includ- ports the information provided by NGOs is
ing migrant organizations and take abovemen- widely used by the UN committee members.
tioned appropriate measures.37 It shall be also mentioned that on the ses-
Special Rapporteur also holds visits in dif- sion of Economic and Social Council of UN in
ferent countries38 upon invitation of their Gov- 1996 orders to be consulted with NGOs was
ernments. Such visits do not necessarily mean discussed as one of the issue. In accordance
that the Government of the country has violat- with the principles discussed in this document,
ed human rights, but that gives opportunity to the NGO should have representative structure
elucidate every possible detail of the situation.39 and mechanism of responsibility of a member
Special Rapporteurs determine that mi- controlling the activity of the organization.46
grants are oppressed by deprivation of their However, consideration of representation with
liberty. Activities of the States to decrease ir- such dimensions has not been determined more
regular migration violate the rights of migrants. precisely.47
Labour migrants having legal status often Can be mentioned that mankind is ana-
could not receive assistance neither from re- lyzing the role of NGOs and their participation
ceiving country nor from representatives of also in the monitoring system of the UN has
consulates of their countries. Consular posts become more important and valuable.
often have a lack of qualified staff. In some
cases consulates do not recognize migrants 5. PROBLEMS RELATED TO HUMAN RIGHTS
without any documentation as their citizens be- PROTECTION MONITORING SYSTEM
cause of their illegal status.40
Rights of migrant children are not protect- As it is already discussed above, interna-
ed as well, they are not guaranteed with any tional human rights are a new system and have
protection of their rights. Although, adminis- about more than 50 years history.
trative detention towards them should be used Within last thirty-five years the State ap-
only as a last resort, this measure is applied proach to Human Rights has been dramati-
quite often.41 cally changed. Nowadays each State recog-
Special Rapporteur notes that violation of nizes human rights but the question still re-
migration rules by the States shall not be a mains: in what quality? Unfortunately signa-
reason to consider the violator migrant as an ture of the documents by the States has a for-
offender. Special Rapporteurs often do not mal character.
receive any information from considerable The increasing number of the members
number of States about their practices and of the UN and regional organizations resulted
legislation.42 in increased number of States signing the doc-
Unfortunately the rights are also violated uments devoted to human rights. However it
in cases of legal migration. Discrimination and did not coincide with the increase of resourc-
anti-migration ideology reflect on each migrant es and remedies of agencies controlling the
whether having legal or illegal status. implementation process.
Undoubtedly, the work of Rapporteurs on Still the problem is to initiate a dialogue
selected rights and freedoms has greatly in- with number of States on ratification of a trea-
144
N. KALANDADZE, INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL ...
ty. It should be mentioned that many States expenses. In the UN the reports shall be trans-
recognize the convention only after making a lated into official languages of the UN (Chi-
reservation. At the initial stage of reaching nese, English, French, Russian, Spanish and
universal ratification, the reservations shall be Arabic languages) and may be also translat-
considered negatively.48 ed into other languages. Currently the re-
Reporting system is frequently considered sumes are prepared only in English and French
as a weak system, because it depends on a in order to reduce the number of delays of
will of a State. In many cases reports have more submission. Nevertheless, the UN still requires
formal and prosaic character and, in fact, they the reports to be translated into all official lan-
are repetition of those laws which are in comp- guages before their publication. However, the
liance with the established norms. If a State best that can be supposed is to use the finan-
has ratified all (seven) main treaties, it shall cial resources of the UN in the most economic
be obliged to submit seven reports, perhaps way.
most of them at the same time to Geneva or Despite the fact that in some cases human
New York and to make seven different opin- rights are violated because of an economic fac-
ions. The draft of such guideline principles were tor, in the most cases the reasons are political.
elaborated in 2004. However, a few States are The main problem in the UN system is that the
implementing them in practice. This project either violation shall be classified as a threat to inter-
is not supported or condemned by anybody.49 national peace and security, but many individu-
One of the serious problems is to be back- al appeals received by the Committee are not
ward. Taking into consideration that discus- qualified in accordance with this definition. In
sion of the State reports takes approximately addition, individual notifications are not applied
three years, while submission of periodically sufficiently. Consideration of individual appeals
reports is obligatory once in two years, the shall be rapid, public and well-grounded and be
problem is obvious. The UN is entitled to im- followed by the decision. Every treaty monitor-
pose sanctions, use of force and finally, dep- ing body was proposed to take measures and
rivation of membership. In accordance to procedures related to the implementation, which
Charter any State who does not fulfill the re- would motivate them to submit reports in time.51
quirements of the organizations, may be asked Un Secretary General underlined the ne-
to leave its positions. Despite this, the UN pre- cessity of modernization of treaty monitoring
fers to leave a State on its positions rather bodies operation. However it is more directed
than to deprive its membership and to lose to reduction of a cooperation in making re-
control over it. ports, rather than facilitation of financial situ-
Participation of State parties during the ation of the UN. The cooperation between trea-
discussion process of their reports is useful, ty monitoring agencies are developing and
but the expenses related to their participation proposals in relation to the reports are mod-
make it impossible. One of the ways to speed ernizing.52 The existing system with its resourc-
up the process is to increase a number of ses- es is quite inefficient.53
sions, but the problem of resources still re-
mains to be important. Vienna declaration and 6. GEORGIA AND THE PROBLEMS RELATED TO
action plan as well as world conference on GEORGIAN LABOUR MIGRANTS
human rights revealed serious financial diffi-
culties of Monitoring agencies of the UN. The political and economic processes
Rationalization of the UN reporting system underway in Georgia since the breakdown of
has been long discussed since the last years. the former Soviet Union activated a large-scale
Obligation of the Governments is to deliver migration from the country. As confirmed by
reports on the same topics to several treaty the results of this study, the main factor lead-
based body operating with different periodi- ing to the intensive migration of population from
cal systems. Submission of the reports with Georgia is the ongoing deterioration of the
delay and also considerable delay of discus- local social-economic conditions and, thus, of the
sion of reports by some treaty base bodies is standard of living of the Georgian population.54
a long lasting procedure.50 In 1990th natural increase of labour recours-
Furthermore, the increase of the partici- es in villages was high and local labour mar-
pants is related to the increase of translation kets were not able to ensure to balance la-
145
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
bour forces with provisional requirement, which Furthermore, government officials should
led to the migration of population from moun- be informed through seminars and sympo-
tainous regions and especially from regions siums on the definition, nature and incidence
settled by ethnic minorities. of irregular migration and trafficking. They
Currently, hundreds of thousands of fam- should also be trained in determining what
ilies are receiving living wage through labour roles they can play in its prevention and control.59
migration, while the country receives solid This is an area where the Government of
amount through export of labour forces.55 Georgia has to take the lead, assisted by the
The most important factor that determines international community.
the future potential of irregular migration from
Georgia is social-economic development and CONCLUSION
the benefit that the population can have from
any progress. If the living condition of majori- In 2005, the number of international mi-
ty of population remains in hardship, presum- grants is between 185 and 192 million.60 This
ably irregular migration from Georgia will not re- represents approximately three per cent of the
duce.56 world population. Nearly all countries are con-
The most challenging task ahead for the cerned by migration, whether as sending, tran-
Government of Georgia is to reduce the in- sit, or receiving countries. International migra-
centives to migrate abroad by improving the tion has become an intrinsic feature of glo-
social-economic conditions of Georgian citizens. balization.61 We need better understanding of
Internacional OrganizaTion for Migration (IOM) the causes of international flows of people and
and other international organizations have shown their complex interrelationship with develop-
a clear commitment to assist the Georgian gov- ment.62 The plight of migrant workers and their
ernment in accomplishing these tasks.57 families is one of those intractable issues in
Within last decades IOM important activi- the field of human rights. In the current anti-
ties are: wide discussion of the laws of Geor- immigration climate in many developed indus-
gia in the field of migration and promotion of trialized countries, economic migrants are of-
their unification into common legislation, which ten misunderstood. They are easy targets for
shall ensure to regulate all aspects of migra- politicians and the media in difficult economic
tion. There in no civil inclusion practice in Ge- times and are considered a threat to the host
orgia and very small number of people are be- society, particularly those that enter the coun-
having in this way. Instead deceived clients try of employment without authorization. Ille-
prefer to find justice themselves, they commu- gal migrants are frequently perceived as
nicate with traffickers and employers themse- “scroungers” on the welfare state, as crimi-
lves, put pressure on and request to return nals, or as potential trouble-makers.
money. Sometimes people are not aware Migration contributes to the transforma-
where to appeal and do not trust law enforce- tion of contemporary economic and social re-
ment bodies, such as police and prosecutors lations. Labour migration plays a great role in
office. the development of many countries in the
The legislative basis is as of yet insuffi- world. Labour migration is an objective reality
cient, and the management structures and and despite its predominantly negative per-
policy focus are not adequate enough to be ception, this process yields more benefits than
able to take a firm stance against organizers detriments.63
of irregular migration, despite the fact that Although, lawyers have established inter-
Georgia has signed almost all UN treaties re- national standards of human rights, but in or-
garding Human Rights. Some analysts claim der to implement them cooperation with politi-
that certain government officials have vested cians is very necessary. Because of certain
financial interests in the operation of tourism reasons the States do not use the potential of
firms and employment mediators, which could international law.64 Numbers of States includ-
serve as an explanation why so many orga- ing big States do not seek for rapid progress
nizers of irregular migration can still operate development, which has often been proved in
in virtual impunity in Georgia.58 practice.65 It is also proved by the UN 10-year
Generally people in Georgia do not have programme. Unfortunately it does not contain
any idea about the risks related to migration. provisions improving realization of legal
146
N. KALANDADZE, INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL ...
1
Office of the United Nations High Commissioner for Human Rights, The interna-
tional Convention on Migrant Workers and its Committee, Fact Sheet No. 24
(Rev. 1), p.3 On the basis of the request of the economic and social council at
1973 U.N. subcommittee on the prevention of discrimination and protection of
minorities in 1976 adopted the act on the use of labour resulted from illegal and
hidden trafficking. The mentioned act was calling for the UN to elaborate the
Convention, which would protect the rights of the labour migrants. This particular
recommendation was responded by the Geneva conference of 1978 on fighting
against racism and racial treatment. But in the resolution 33/163 of the General
Assembly was mentioned on improvement of the condition and ensuring the
human rights protection and dignity of the labour migrants.
2
Please see: http://en.wikipedia.org/wiki/Human rights treaty_bodies, also Manfred
Nowak, Introduction to the International Human Rights Regime, The Raoul Wal-
lenberg Institute, Human Rights Library, Volume 14, Martinus Nijhoff Publishers,
Leiden/Boston, 2003 and economic social and cultural rights, guideline second
updated edition, Asborn Eide, Katerina Krauze, Alan Rosas, 2005, p. 456.
3
Economic, social and cultural rights, guidelines, second updated edition, As-
born Eide, Katerina Krauze, Alan Rosas, 2005, p. 456.
4
Office of the United Nations High Commissioner for Human Rights, The Interna-
tional Convention on Migrant Workers and its Committee, Fact Sheet No. 24
(Rev.1), p. 1
5
Please see http://www.ohchr.org/english/countries/ ratification/13.htm, 2006.
6
http://en.wikipedia.org/wiki/Human_rights_treaty_ bodies,2C2006.
7
The convention consists of preamble and nine part: Preamble, 1. Scope and
Definitions, 2. Non-discrimination with respect to rights, 3. Human rights of all
Migrant Workers and Members of their Families, 4. Other Rights of Migrant Work-
ers and Members of their Families who are Documented or in a Regular Situa-
tion, 5. Provisions Applicable to Particular Categories of Migrant Workers and of
their Families, 6. Promotion of Sound, Equitable, Humane and Lawful Condi-
147
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
148
N. KALANDADZE, INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL ...
149
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
150
N. KALANDADZE, INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL ...
Thematic mandates include the team working on the issues related to compul-
sion of persons or forcible disappearance of persons and wilful detention.
40
Îðãàíèçàöèÿ îáúåäèíåííûõ íàöèé, ýêîíîìè÷åñêèé è ñîöèàëüíûé ñîâåò Distr.
General E/CN.4/2003/85,30 December 2002, RUSSIAN, Original: English,
Êîìèññèÿ ïî ïðàâàì ÷åëîâåêà, Ïÿòüäåñÿò äåâÿòàÿ ñåññèÿ, Ïóíêò 14 à)
ïðåäâàðèòåëüíîé ïîâåñòêè äíÿ, Êîíêðåòíûé ãðóïïû è ëèöà, òðóäÿùèåñÿ-
ìèãðàíòû, Äîêëàä Ñïåöèàëüíîãî, äîêëàä÷èêà ã-æè Ãàáðèýëû Ðîäðèãåñ
Ïèñàððî, ïðåäñòàâëåííûé â ñîîòâåòñòâèè ñ ðåçîëþöèåé 2002/62, Êîìèññèè
ïî ïðàâàì ÷åëîâåêà, ñòð. 3.
41
Îðãàíèçàöèÿ îáúåäèíåííûõ íàöèé, ýêîíîìè÷åñêèé è ñîöèàëüíûé ñîâåò Distr.
General E/CN.4/2003/85,30 December 2002, RUSSIAN, Original: English,
Êîìèññèÿ ïî ïðàâàì ÷åëîâåêà, Ïÿòüäåñÿò äåâÿòàÿ ñåññèÿ, Ïóíêò 14 à)
ïðåäâàðèòåëüíîé ïîâåñòêè äíÿ, Êîíêðåòíûé ãðóïïû è ëèöà, òðóäÿùèåñÿ-
ìèãðàíòû, Äîêëàä Ñïåöèàëüíîãî, äîêëàä÷èêà ã-æè Ãàáðèýëû Ðîäðèãåñ
Ïèñàððî, ïðåäñòàâëåííûé â ñîîòâåòñòâèè ñ ðåçîëþöèåé 2002/62, Êîìèññèè
ïî ïðàâàì ÷åëîâåêà, ñòð. 19.
42
Îðãàíèçàöèÿ îáúåäèíåííûõ íàöèé, ýêîíîìè÷åñêèé è ñîöèàëüíûé ñîâåò Distr.
General E/CN.4/2003/85,30 December 2002, RUSSIAN, Original: English,
Êîìèññèÿ ïî ïðàâàì ÷åëîâåêà, Ïÿòüäåñÿò äåâÿòàÿ ñåññèÿ, Ïóíêò 14 à)
ïðåäâàðèòåëüíîé ïîâåñòêè äíÿ, Êîíêðåòíûé ãðóïïû è ëèöà, òðóäÿùèåñÿ-
ìèãðàíòû, Äîêëàä Ñïåöèàëüíîãî, äîêëàä÷èêà ã-æè Ãàáðèýëû Ðîäðèãåñ
Ïèñàððî, ïðåäñòàâëåííûé â ñîîòâåòñòâèè ñ ðåçîëþöèåé 2002/62, Êîìèññèè
ïî ïðàâàì ÷åëîâåêà, ñòð. 31.
43
International Human Rights, Guidelines, second edition, Rona K.M. Smith, pub-
lication of Oxford University, 2005, p. 222.
44
Mobilization of the Conscience of Mankind: Conditions of Effectiveness of Hu-
man Rights NGOs Peter R. Baehr Professor and Director Netherlands Institute
of Human Rights (SIM) Utrecht University, Utrecht, Netherlands, NGOs: The Peo-
ple's Voice in International Governance?, Leon Gordenker Professor Emeritus
Princeton University Princeton, NJ, USA Presentations Made at a UNU Public
Forum on Human Rights and NGOs on 18 September 1996, UNU, Tokyo, Japan,
- Reliability.
45
The information provided by the NGOs has the official status in: Committee
Against Torture, Committee on Economic, Social and Cultural Rights, Commit-
tee on the Right of Child, but information provided by NGOs in the Human Rights
Committee, Committee on the Elimination of Discrimination Against Women
and Committee on Elimination of Racial Discrimination has less informative
character, although it does not mean that they are less important. The NGOs are
entitled to submit their reports to the Committee on Economic, Social and Cultur-
al Rights in written form and participate in discussions held on the day of general
discussions. The NGOs are entitled to not only to submit their proposals in
written form but also to make a speech – please see: Economic, Social and
Cultural Rights, guidelines, second edition, Asborn Eide, Katarina Krause, Allan
Rosas, 2005, p. 502.
46
Un/Scetdg/29/Inf. 63, Ecosoc Resolution 1996/31: Arrangements for Consulta-
tion With Non-Governmental Organizations, Part 1. Principles to be Applied in the
Establishment of Consultative Relations, 12.
47
Mobilization of the Conscience of Mankind: Conditions of Effectiveness of Hu-
man Rights NGOs Peter R. Baehr Professor and Director Netherlands Institute
of Human Rights (SIM) Utrecht University, Utrecht, Netherlands, NGOs: The Peo-
ple's Voice in International Governance?, Leon Gordenker Professor Emeritus
Princeton University Princeton, NJ, USA Presentations Made at a UNU Public
Forum on Human Rights and NGOs on 18 September 1996, UNU, Tokyo, Japan
- Representativeness.
48
International Human Rights, guidelines, second edition, Rona K.M. Smith, pub-
lication of Oxford University, 2005, p. 230.
49
International Human Rights, guidelines, second edition, Rona K.M. Smith, pub-
lication of Oxford University, 2005, p. 232-234.
151
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
50
Economic, social and cultural rights, guidelines, second edition, Asborn Eide,
Katarina Krause, Allan Rosas, 2005, p. 503.
51
International Human Rights, guidelines, second edition, Rona K.M. Smith, pub-
lication of Oxford University, 2005, p. 232-243.
52
UN Doc, A/58/351 p. 7.
53
International Human Rights, guidelines, second edition, Rona K.M. Smith, pub-
lication of Oxford University, 2005, p. 239.
54
Davide Tertzi, Head of the Mission of International Organization for Migration in
Georgia – Report of International Organization for Migration, 2003, Tbilisi, p. 5 .
55
Following to the evaluations of experts of International Labour Organization
(ILO), labour migrants channel an annual average of 2000 USD in the form of
money and goods to their home countries. This amounts to an average of 166.7
USD per month. This figure almost coincides with the average remittance sent to
Georgia 162.4 USD – Head of the mission of International Organization for Mi-
gration in Georgia, Labour migration from Georgia – Report of International Or-
ganization for Migration, 2003, Tbilisi, p. 61.
56
In accordance with the information provided by the State Department of Statis-
tics, 194 600 citizens of Georgia left the country in 1990-1998. But according to
independent experts this figure is very law. Following to their calculation 1 638
000 citizens of Georgia left the country during this period.56 Taking into account
that in the beginning of 1990 the total amount of population was over 5 421 700
(information provided by independent experts) and 5 456 100, this number is
very high.
57
“Hardship abroad or Hunger at Home”, A Study of Irregular Migration from Geor-
gia, International Organization for Migration, September, 2001, p. 6.
58
Ibidem.
59
Ibidem.
60
http://en.wikipedia.org/wiki/Committeeon Migrant_Workers.
61
http://www.un.org/russian/topics/reform/refordoc/ part2.htm.
62
Migrant Workers in International Human Rights Law Their Protection in Coun-
tries of Employment, Ryszard Chelewinski, Clarendod Press Oxford, 1997, p.V,
ix. http://www.questia.com/PM.qst?a= o&d=74392289.
63
IOM Chief of Mission to Georgia, labour migration from Georgia – report of
International Organization for Migration, Tbilisi, 2003.
64
Currently no international tribunal working on human rights issues exist, but
several UN committees work on quasi court direction. (International Human
Rights Monitoring Mechanisms, Essays in honour of Jakob Th. Möller, The Raoul
Wallenberg Institute Human Rights Library, Volume 7, Martinus Nijhoff Publish-
ers, The Hagu/Boston/London, Kluwer Law International, 2001, p. 133), Group of
impartial judges, operating in accordance with its own rules of procedures and
which before expressing its opinion (which is not legally binding) can listen the
testimonies of experts selected by the parties. Proceeding, where the Commit-
tee on Human Rights and the Committee on Elimination of All Forms of Discrim-
ination (which can receive individual complaints) are participating, have the form
of court. Putting forward of some aspects of human rights is a merit of interna-
tional criminal tribunal for the former Yugoslavia – international human rights,
guidelines, second edition, Rona K.M. Smith, publication of Oxford University,
2005, p. 217.
65
For example: None of the big States accepted International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their Families.
Please see: http://www.ohchr.org/ english/countries/ratification/13.htm.
66
Georgia and International Law, compilation of Articles, Tbilisi, 2001, p. 25-26.
Please see also: http://www.un.org/esa/about_esa.html.
67
Economic, social and cultural rights, guidelines, second renewed edition, ,
Asborn Eide, Katarina Krause, Allan Rosas, 2005, p. 525.
68
http://www.migrationinformation.org/Feature/ display.cfm?id=288.
152
lali fafiaSvili
153
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
154
l. fafiaSvili, arasrulwlovanTa marTlmsajulebis zogierTi sakiTxi
155
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
156
l. fafiaSvili, arasrulwlovanTa marTlmsajulebis zogierTi sakiTxi
157
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
dakavSirebiT aris 37-e da me-40. bavSvis ebaSi misi sasargeblo rolis Sesaxeb, ase-
uflebaTa konvenciis 37-e muxlis pirve- ve gaiTvaliswinebs alternatiul insti-
li punqti specialurad icavs Tavisuf- tuciuri movlis sakiTxebs. wevri saxelm-
lebaaRkveTil bavSvebs maTi samarTliani wifoebisagan igi moiTxovs, uzrunvely-
procesis darRvevisagan da icavs maTi pi- os, rom arasrulwlovanTa marTlmsaju-
rovnuli xelSeuxeblobis uflebas. igi: lebis gansakuTrebuli sistemis miznebi
• krZalavs wamebas, sastik, araadamia- iyos ufro pozitiuri, vidre damsjelo-
nur, Rirsebis Semlaxvel mopyrobas an biTi.
sasjels, sikvdiliT dasjas, samuda- arasrulwlovanTa marTlmsajuleb-
mo patimrobas, Tavisuflebis aRkve- is aRsrulebis Sesaxeb gaeros mini-
Tas ukanonod an TviTneburad, da- maluri standartuli wesebi – pekinis
kavebas an dapatimrebas; wesebi (1985). pekinis wesebi pirveli saer-
• iTvaliswinebs, rom dakaveba an dapa- TaSorisosamarTlebrivi dokumentia,
timreba gamoyenebul unda iqnes mxo- romelic mTlianad adgens arasrulwlo-
lod, rogorc ukiduresi zoma da rac vanTa marTlmsajulebis aRsrulebis
SeiZleba naklebi periodis ganmavlo- wesebs. maT praqtikulad win gauswres
baSi; bavSvis uflebaTa konvencias. isini spe-
• aRwers TavisuflebaaRkveTili bavS- cialurad aris naxsenebi gaeros bavSvis
vebis uflebas, epyrobodnen adamia- uflebaTa konvenciis SesavalSi.
nurad da pirovnebis Rirsebis pati- pekinis wesebi saxelmwifoebs uwesebs
viscemiT, ise, rom gaTvaliswinebuli miTiTebebs bavSvis uflebaTa dacvisa da
iyos misi asaki, gancalkevebuli iyos arasrulwlovanTa marTlmsajulebis
ufrosebisagan, SeinarCunos ojaxTan calke da specializebuli sistemebis gan-
kavSiri, dauyovnebliv miiRos samar- viTarebisaTvis, maTi moTxovnebis pati-
Tlebrivi da sxva Sesabamisi daxmare- viscemis Sesaxeb.
ba, gaaprotestos misi Tavisuflebis saxelmwifoebisaTvis rekomendebu-
aRkveTis kanoniereba da daelodos lia, gamoiyenon yvela SesaZlo resursi,
dauyovnebliv gadawyvetilebis gamo- `maT Soris: ojaxi, moxaliseebi da sazoga-
tanas nebismieri aseTi procesu- doebis sxva jgufebi, iseve, rogorc sko-
aluri qmedebis Taobaze. lebi da sxva sazogadoebrivi dawesebule-
ufro metic, me-40 muxli moicavs uf- bebi~, raTa ganxorcieldes ori mizani:
lebebs yvela bavSvisas, vinc Caidina da- 1) minimumamde iyos dayvanili `kano-
naSauli da dakavSirebulia iseT sakiTx- nis gamoyenebis~ aucilebloba da
ebTan, rogorebicaa: principi nullum cri- 2) Semcirdes ziani, romelic SeiZleba
men sine lage – ar arsebobs danaSauli, gamoiwvios iseTma Carevam, rogoricaa
rom ar iyos gaTvaliswinebuli kanoniT; `kanonmdeblobis damrRvev arasrulwlo-
minimaluri dacvis garantia sadamsjelo vanebTan mopyroba efeqturad, samarT-
proceduris yvela etapze; kanonebis, lianad da humanurad~.
procedurebis, organoebisa da dawese- pekinis wesebi iTvaliswinebs, rom da-
bulebebis Camoyalibeba uSualod iseTi patimreba unda iqnes gamoyenebuli mx-
bavSvebisaTvis, romlebic braldebulni olod rogorc sasjelis ukiduresi zoma
an cnobilni arian sisxlis samarTlis (ultimium refugium), rac SeiZleba, mokle
kanonmdeblobis damrRvevebad, da aseve, vadiT da Sesabamisad: mxars uWers insti-
adgens sisxlissamarTlebrivi pasuxism- tucionalizaciis alternativis gamoy-
geblobis minimalur asaks. damnaSave bavS- enebas, rac SeiZleba, maqsimalur zRvram-
visadmi mopyroba xels unda uwyobdes de. minimaluri Carevis principi mniS-
misi Rirsebisa da sakuTari Tavis mniSv- vnelovnad exmareba axalgazrdebs, rom-
nelobis grZnobis ganviTarebas, rac mas lebic cnobili arian damnaSaveebad...
ganumtkicebs adamianis uflebebisa da pekinis wesebis Sesabamisad: sisxlis-
sxva ZiriTadi Tavisuflebebisadmi pa- samarTlebrivi pasuxismgeblobis asaki
tiviscemas, gaiTvaliswinebs bavSvis asaks ar unda iyos `Zalian dabali~ da unda iT-
da xels Seuwyobs mis reintegracias, Tav- valiswinebdes mozardis emociuri, su-
dajerebulobis ganmtkicebas sazogado- lieri da inteleqtualuri ganviTareb-
158
l. fafiaSvili, arasrulwlovanTa marTlmsajulebis zogierTi sakiTxi
159
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
iqnes mcire dakavebis periodebi; arasru- rili unda iyos; arasrulwlovanebs unda
lwlovanebi winaswar sapatimroebSi udan- hqondeT garesamyarosTan adekvaturi
aSaulod unda iTvlebodnen; maT unda kontaqti, maT Soris, SeuzRudavi kon-
mieceT ufaso samarTlebrivi daxmarebi- taqti ojaxis wevrebTan da megobrebTan;
sa da advokatTan komunikaciis ufleba; maT unda mieceT ufleba, datovon dawe-
unda hqondeT: samuSaos (anazRaurebiT), sebulebebi TavianT ojaxebSi vizitebi-
ganaTlebis an profesiuli wvrTnis miRe- saTvis an saganmanaTleblo Tu sxva mniS-
bis saSualeba, aseve, miiRon da Seinaxon vnelovan mizezTa gamo; aseve, unda hqon-
Sesabamisi masalebi TavianTi Tavisufa- deT ufleba, miiRon regularuli da xSi-
li droisa da dasvenebisaTvis. ri stumrebi, werilobiTi an telefoniT
arasrulwlovanTa dawesebulebeb- komunikaciis ufleba da saSualeba, sis-
is marTvasTan dakavSirebiT gaeros tematiurad iyvnen informirebulni axa-
wesebi TavisuflebaaRkveTil aras- li ambebis Sesaxeb.
rulwlovanTa dacvis Sesaxeb gan- Tavisuflebis aRkveTa an Zalis gamo-
sazRvravs, rom arasrulwlovani ar unda yeneba SezRuduli unda iyos da mxolod
iqnes dapatimrebuli moqmedi dapatimre- Sesabamisi kanoniT an wesebiT regulire-
bis brZanebis gareSe; yoveli arasrul- bul SemTxvevaSi unda gamoiyenebodes,
wlovanisaTvis unda Seiqmnas individu- Tuki igi ar gamoiwvevs damcirebas da ga-
alur CanawerTa dosie, romelic konfi- moyenebul iqneba, rac SeiZleba, mokle pe-
dencialuri iqneba da romlis informa- riodiT; personalis mier iaraRis tare-
cia sadavo ar gaxdeba misTvis. arasrul- ba akrZaluli unda iyos; regularuli
wlovanebi izolirebulni unda iyvnen inspeqtireba unda Catardes kvalifici-
ufrosebisagan, Tuki isini ar arian maTi uri damoukidebeli inspeqtorebis mier
ojaxis wevrebi. da yoveli Semowmeba unda damTavrdes an-
Tavisuflebis aRkveTa unda xdebodes gariSiT; arasrulwlovanTa uflebebis
mxolod im dawesebulebebSi, romlebic darRvevis amsaxveli faqtebis an dakave-
pasuxoben janmrTelobisa da adamianis bis dawesebulebaTa funqcionirebis
Rirsebis moTxovnebs: saZineblebi unda Sesaxeb unda ecnoboT kompetentur or-
Sedgebodes patara jgufisaTvis gankuT- ganoebs.
vnili saerTo an individualuri oTaxeb- gaeros wesebi TavisuflebaaRkveTil
isagan; sanitariuli mowyobilobebi unda arasrulwlovanTa dacvis Sesaxeb aseve
iyos damakmayofilebeli da misaRebi fiz- gansazRvravs disciplinuri procedure-
ikuri moTxovnilebebisa da piradi cx- bisa da arasrulwlovanTa mier saCivreb-
ovrebisaTvis; personaluri tansacmlis is aRZvris wesebs.
floba da qoneba nebadarTuli unda iyos; gaeros rezolucia #1997/30 – aras-
tanisamosi unda iyos klimatis Sesaferi- rulwlovanTa marTlmsajulebis aR-
si da adekvaturi kargi janmrTelobis sruleba: venis saxelmZRvanelo princi-
uzrunvelsayofad; sakvebi unda iyos mis- pebi (1997). es samoqmedo programa iTval-
aRebad momzadebuli da mirTmeuli nor- iswinebs RonisZiebaTa amomwurav nusxas,
maluri sadilis dros; xelmisawvdomi romelTa mizania arasrulwlovanTa mar-
unda iyos sufTa sasmeli wyali; profi- Tlmsajulebis aRsrulebis kargad fun-
laqtikuri da gamosajanmrTelebeli qcionirebadi sistemis Seqmna, bavSvis
samedicino momsaxureba adekvaturi unda uflebaTa konvenciis, pekinis wesebis,
iyos; ganaTleba unda mimdinareobdes sa- riadis saxelmZRvanelo principebisa da
zogadoebriv skolebSi da Sesabamisi sa- arasrulwlovanTa dawesebulebebis mar-
ganmanaTleblo programa, biblioTeka da Tvis Sesaxeb TavisuflebaaRkveTil aras-
profesiuli wvrTna xelmisawvdomi iyos; rulwlovanTa dacvis gaeros wesebis Se-
imavdroulad, arasrulwlovans unda sabamisad da am saerTaSoriso standart-
hqondes muSaobisa da Sesabamisi anazRau- ebis efeqturad gamoyenebisa da Sefarde-
rebis miRebis saSualeba; gamajansaRebe- bis xelSewyoba. dazaralebuli bavSvisa da
li saqmianoba, aseve zogierTis religi- mowmeebis sakiTxs gansakuTrebuli yura-
uri aqtivoba nebadarTuli da mxardaWe- dReba eTmoba.
160
l. fafiaSvili, arasrulwlovanTa marTlmsajulebis zogierTi sakiTxi
161
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
sabamisi zomebi, aseve, TiToeul sasjel- pekinis wesebis me-6 wesis moTxovnis
moxdil bavSvTan mimarTebiT gaTavisu- Sesabamisad, gadawyvetilebis mimRebT
flebamde unda SemuSavdes masze Semdgo- sisxlis samarTlis procesis nebismier
mi zrunvis gegma. stadiaze unda hqondeT diskreciis gamo-
miuxedavad im faqtisa, rom arasrul- yenebis SesaZlebloba, maT Soris gadaw-
wlovanTa cixeebSi ganTavseba Zviria, sam- yvetilebebze, gagrZeldes, Tu ara gamo-
wuxarod, cixis sazogadoebrivi alter- Zieba an devna. aRniSnuli wesis Sesabamis-
natiuli saSualebebiT Secvlis nakle- ad, sadac SesaZlebelia, arasrulwlovan
bobaa. marTalia, sisxlis samarTlis kod- damnaSaveTa saqmeebi ganxilul unda iq-
eqsi ganusazRvravs mosamarTles mTel nes formaluri sasamarTlo ganxilvis
rigs SesaZlo arasapatimro sanqciebisas, gareSe. damatebiT me-10 wesi gansazRv-
gasamarTlebis dros, praqtikaSi, Zalian ravs, rom mosamarTlem an sxva kompeten-
cota arCevania – uamravi araadekvaturi turma organom, dayovnebis gareSe, unda
alternatiuli dasjis saSualebaa. ganixilos ganTavisuflebis sakiTxi. po-
arsebuli proceduris Tanaxmad, Tu licia ar sargeblobs aRniSnuli wesebiT
bavSvi dapatimrebulia, igi dakavebuli gaTvaliswinebuli diskreciuli ufle-
iqneba policiis izolatorSi 48 saaTis bamosilebiT. Sesabamisad, policias unda
ganmavlobaSi, sanam Catardeba gamoZieba mieces diskreciis ufleba, ar gaagrZe-
da miiReba gadawyvetileba imis Taobaze, los Zieba. es ar niSnavs aucileblad, rom
arsebobs Tu ara mtkicebulebebi bavSvis moxdes danaSaulebrivi qmedebis ignor-
dasadanaSauleblad. izolatorSi arse- ireba, aramed – unda mieceT maT damna-
buli pirobebi amJamad ar Seesabameba SaveTa mimarT alternatiuli, gansxvave-
saerTaSoriso minimalur standartebs. buli zomebis gamoyenebis saSualeba sa-
policias aklia moqnloba – maT ar aqvT Wiroebis SemTxvevaSi. policias unda
ufleba, am drois ganmavlobaSi bavSvi mieces uflebamosileba, gaafrTxilos
gaaTavisuflon mSoblebis an meurveebis bavSvi, rom SemdegSi danaSaulis Cadenas
mzrunvelobidan, miscen gafrTxileba, SesaZloa, mohyves misi gasamarTleba, an
rogorc dakavebisa da gamoZiebis alter- CarTos bavSvi iseT programaSi, romelic
natiuli saSualeba, an saerTod gamoyon yuradRebas miaqcevs mis danaSaulebriv
igi sisxlissamarTlebrivi sistemidan, saqciels.
maSinac ki, Tu aRiarebs Tavis danaSauls policiis ganyofilebaSi miyvanidan
da inaniebs mas... dakiTxvis dawyebamde, drois mcire
gaeros bavSvis uflebaTa konvenciisa monakveTis gamo, mSoblebi ver axerxeben
da gaeros minimaluri standartebisa da misvlas da dakiTxvaze daswrebas, ris
normebis moTxovnaTa sawinaaRmdegod po- gamoc es ufleba azrs kargavs.
licias, prokuraturasa da mosamarT- im bavSvebisaTvis, romlebic aRiare-
leebs ar aqvT uflebamosileba, gadaiy- ben danaSauls, ar arsebobs araformalu-
vanon bavSvi sisxlissamarTlebrivi marT- ri sasamarTlo procesis sistema da amas
lmsajulebis sistemidan sazogadoebriv mivyavarT araaucilebeli winaswari pa-
programebSi, romlebic yuradRebas amax- timrobisaken. mokled, ar arsebobs siste-
vileben danaSaulebriv qmedebebsa da ma, romlis meSveobiTac saqme SeiZleba
bavSvTan da mis ojaxTan muSaobaze. dana- swrafad damTavrdes da bralis wayene-
Saulis pirvelad CamdenTaTvis, aseve, bidan mokle vadebSi waredginos sasamar-
ganmeorebiT msubuqi danaSaulis Camden- Tlos saboloo mosmenisaTvis. sanacv-
TaTvis amgvari sqemis Camoyalibeba uz- lod, bavSvi rigSi unda idges da elodos
runvelyofs, rom bavSvi ar iqnes sasama- misi saqmis ganxilvis dawyebas. es ar xde-
rTloSi wardgenili msubuqi danaSauleb- ba bavSvis sasargeblod da dakaveba ar
isaTvis da ar miadges yvela is arasasur- aris gamoyenebuli, rogorc ukiduresi
veli Sedegi, rasac gasamarTleba iwvevs. zoma da, rac SeiZleba, naklebi xangrZli-
amiT bavSvebs miecemaT sakuTar ojaxebSi vobiT. resursebis TvalsazrisiTac Za-
darCenis, ganaTlebis ufleba da daxmare- lian araefeqturi da Zviria. konsolidi-
bis miRebis saSualeba. rebuli sasamarTlo procesi xels Seuwy-
162
l. fafiaSvili, arasrulwlovanTa marTlmsajulebis zogierTi sakiTxi
163
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
1
hovard ligi sisxlis samarTlis reformisaTvis, (1997 w.) gogonebis
mimarT Tavisuflebis aRkveTis gamoyeneba, faqtebis furceli 16.
2
venis deklaracia da samoqmedo programa (1-li nawili, §21) miRebulia
adamianis uflebebze msoflio konferenciis mier, vena, 25 ivnisi, 1993.
(/C.157/24 (1-li nawili, 111-e Tavi)).
3
udanaSaulobis prezumfcia; ufleba, ecnobos cvlilebebis Sesaxeb;
dumilis ufleba; konsultaciis ufleba; mSoblis an meurvis daswrebis
ufleba; mowmesTan dapirispirebisa da jvaredini dakiTxvis ufleba;
zemdgom instanciaSi gasaCivrebis ufleba; piradi cxovrebis dacva.
4
mag.: me-.5; me-.6.1.; me-8.1; me-8.2 muxlebi; pirveli damatebiTi oqmis me-2
muxli.
164
LALI PAPIASHVILI
The number of children aged under 18 Instead of depriving children of liberty, the
held in detention in all over the world grew Convention on the Rights of the Child urges
dramatically. Increases took place in both the States to “seek to promote measures for deal-
remand and sentenced population. According ing with such children without resorting to ju-
to UNICEF researches, over 1 million children dicial proceedings” (Article 40). Entry into the
are deprived of their liberty by law enforce- formal justice system can be traumatic and can
ment officials. At the same time an increasing stigmatize an adolescent. It should therefore
number of juveniles are being prosecuted of- be avoided whenever the matter can be ade-
ten for non-violent offences. quately dealt with in a less formal way. Diver-
Children in detention often suffer viola- sion can take the form of a warning that fu-
tions of their basic rights – including no edu- ture offences will have more serious conse-
cation and lack of basic medical care. Fre- quences, voluntary acceptance of some form
quently, the conditions under which they live of supervision or counselling, a commitment
are deplorable and inhumane – no heat, in- to attend school or to avoid persons or plac-
adequate food, insufficient beds, poor sani- es associated with the offence, community ser-
tation facilities and no exercise, cruel and in- vice, or restitution to or reconciliation with the
human disciplinary measures, insufficient victim. The alternative to formal adjudication
sleeping space and living quarters, poor or must be compatible with the rights of the child,
non existent educational and vocational train- which precludes measures such as corporal
ing opportunities, lack of information and little punishment. Therefore, deprivation of person-
or no contact with the outside world and etc. al liberty shall not be imposed unless the ju-
Some are kept in solitary confinement for long venile is adjudicated of a serious act involv-
periods. Physical abuse is common. In many ing violence against another person or of per-
cases, even the most fundamental principles sistence in committing other serious offences
of due process are violated. Parents are com- and unless there is no other appropriate re-
monly denied right to visit and are often not sponse; The well-being of juvenile should be
informed of a child’s whereabouts. the guiding factor in the consideration of her
It is clear that institutionalization is an ex- his case.
tremely painful process for young offenders. Therefore there is a more fundamental
The fact that they have been arrested and need to ensure that the numbers of young-
placed in a prison or a juvenile institution stig- sters in custody are kept to an absolute mini-
matizes them for life, a stigma that is memori- mum. And in order to achieve this goal atten-
alized in official identity documents and from tion should be paid to the prevention of juve-
which they cannot escape as they seek em- nile delinquency which requires efforts on the
ployment and a normal life in the community. part of the entire society to ensure the har-
Moreover it has repeatedly demonstrated the monious development of adolescents, with
ineffectiveness of both punishment and incar- respect for and promotion of their personality
ceration. from early childhood. Since there is a high
The history of criminal and juvenile jus- correlation between neglect and exposure to
tice and the high reconviction rates for young violence during childhood and involvement in
people leaving prison establishment demon- crime, society and government are responsi-
strate the failure of traditional approaches to ble according to Riyadh Guidelines to assist
crime control based on punishment. the family in providing care and protection and
165
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
in ensuring the physical and mental wellbeing Juvenile justice is a broad topic covering
of children. Government agencies should give prevention of delinquency, the type of offenc-
high priority to programmes for young persons es with which children may be charged and
and provide sufficient resources for the effec- the way they are treated by the police, by the
tive delivery of services, facilities and staff for courts and in facilities for juvenile offenders.
adequate medical and mental health care, Therefore it is a multiple, inter-connected func-
nutrition, housing and other relevant servic- tional systems with different players .
es, including drug and alcohol abuse preven- The functioning of a specific JJ system is
tion and treatment, ensuring that such resourc- often judged by whether it is:
es reach and actually benefit young persons. • effective; and
The Beijing Rules clearly stresses the impor- • fair and humane – It must respect human
tance of the rehabilitation/reintegration pro- dignity judged by references to internation-
cess. Furthermore, the promotion of juvenile al, regional and domestic JJ and HR stan-
welfare is viewed as only one of the objec- dards and be considerate of the develop-
tives of comprehensive social policy for juve- mental needs (well-being) of a juvenile
niles that shall, play a crucial role also in pre- involved.
vention of juvenile delinquency. Therefore states have to balance interest
The aim of the paper is to represent the of the vulnerable juveniles from one hand and
international legislation for the protection of protection of society from the other through
the children that deprived their liberty effective use of state resources.
Fundamental principles underlying The aim of Juvenile Jusice system is to
any approach to issues of juvenile justice encourage a behavioral change of a juvenile
include: – The minimum age for criminal re- involved by helping him/her to feel account-
sponsibility should be the age of 15 or as close able and to understand the consequences of
as possible to that age; – presumption of in- his/her actions; avoid or minimize intervention
nocence; – due process guarantees; – imme- by the formal justice system; promote reinte-
diate notification of parents or guardians and gration as the main goal of treatment; employ
their right to be present upon the apprehen- other than punitive responses (such as depri-
sion of a juvenile; – avoiding detention before vation of liberty).
trial if possible and ensuring that any pre-trial In order to avoid or minimize the interven-
detention is for the shortest possible period tion by the formal justice system, various al-
and only as the last resort; – right to facilities ternative programs were developed to reach
and services that meet all the requirements that aim. But the alternative programs are
of health and human dignity, and to adequate designed and limited to the: 1. first-time of-
medical care, both preventive and remedial; fenders, 2. offenders accused of non-serious
– prohibition of all disciplinary measures con- acts 3. offenders who admit the offence:
stituting cruel, inhuman or degrading treat- Alternative programs include: 1. police
ment including corporal punishment that may caution – the police decide not to press for-
compromise the physical or mental health of mal charges but simply to warn the juvenile
the juveniles concerned; – right to fair and and parents that any recurrence of that be-
humane treatment, including the right to vis- havior will result in a court appearance; 2.
its, to privacy, to communication with the out- French Rappel a la loi – formal meeting of
side world and to time for daily exercise; – pro- representatives of court, juvenile and parents
vision of education (provided outside the de- within which the juvenile is appraised of the
tention facility by qualified teachers) suited to legal text relating to the offence as well as of
his her needs and designed to prepare him the potential sentences of the court; 3. Screen-
her for return to society; – ensuring that chil- ing process carried out by a social worker
dren are detained separately from adults un- before the court appearance and offer that if
less they are members of the same family; – the juvenile agrees to the offence and than
prohibition of death penalty can satisfactorily complete a special course
A proper approach to juvenile justice also the prosecution will drop the case.
requires that efforts be made to prevent chil- In Scotland “children’s hearings” system
dren coming into conflict with the law in the conditions of the hearing are less formal and
first place. adversarial than in court setting; a panel of
166
L. PAPIASHVILI, SOME ISSUES OF JUVENILE JUSTICE
trained lay members discusses the act with the contact with their families, the right to be in-
juvenile, family, teachers and social worker formed of the reasons for detention, the right
and decides on disposition based on the ju- to legal assistance and the right to challenge
venile’s welfare. Decision is subject to client’s the legality of the deprivation of liberty. In ad-
appeal. While the ”village justice system” in dition, they have the right laid out in Article 37
the Philippines involves mediation scheme of the UNCRC not to be detained with adults
designed to bring about mutually acceptable and the right to be treated in accordance with
settlement and etc. the needs of persons of their age. According
Children suspected of committing an offence to article 37(c) of the Convention of the Rights
have the same rights as adults, including the of the Child: “every child deprived of his or
right to be presumed innocent, the right to her liberty shall be separated from adults, with
privacy (which includes the right not to be the exception of unusual cases in which it is
searched without sufficient cause), the right not in the child’s best interest maintain such
not to be obliged to give information and the separation”. It is a great matter of concern that
right not to be interrogated without the pres- in most countries there are not young offend-
ence of an advisor. In addition, they have the ers institutions designed for girls. Therefore
right to special protection, which includes the they are held together with adult prisoners
right not to be confined with adults and the despite concerns that they may learn criminal
right to have their families or another responsi- skills from mixing with adult offenders1. The
ble adult notified of their situation immediately. right not to be detained with adults is intend-
Article 37(b) of the Convention on the Rights ed primarily to prevent abuse, exploitation or
of the Child states that: “No child shall be de- victimization by other prisoners.
prived of his or her liberty unlawfully or arbi- Sentences should be kept as short as
trarily”. It adds that “the arrest, detention or im- possible (short-term incarceration) while alter-
prisonment of a child shall be used only as a native sanctions (community services, work to
measure of last resort and for the shortest pay the damages incurred, and attendance
appropriate period of time”. This applies to all
of learning schemes) could be adopted in cas-
phases of proceedings, from investigation to
es of non-severe offences. Despite their suc-
sentencing.
cess, most community alternatives still only play
With regard to adolescents under inves-
a marginal role in most justice systems. More-
tigation or awaiting trial, the ‘last resort’ re-
over, great importance should be placed on
quirement means that detention is not warrant-
juvenile crime prevention and comprehensive
ed unless there is no other way to avoid a
resettlement support should be made available
substantial risk of flight, the commission of
to all youngsters leaving young offender in-
additional offences or tampering with evi-
stitution in order to minimise the currently high
dence. The payment of caution (bail) as an
risk of re-offending and imprisonment. Chil-
alternative to detention prior to trial is not ap-
dren’s special needs and life circumstances
propriate because it discriminates against
while deprived liberty require a special res-
adolescents from poor families. Where the
ponse from society in law and in practice.
family’s ability to ensure effective supervision
is uncertain, additional forms of supervision “Juveniles detained in facilities should be
conditions may be imposed or the child may guaranteed the benefit of meaningful activities
be placed in foster care on a temporary ba- and programmes which would serve to promote
sis. In the case of children who have left home and sustain their health and self-respect, to
due to abuse or neglect, or whose family can- foster their sense of responsibility and encour-
not be identified or located, release into the age those attitudes and skills that will assist
care and supervision of another responsible them in developing their potential as members
adult or organization should be considered. of society” (UN Rules for the Protection of Ju-
When the detention of an adolescent await- veniles Deprived of their Liberty, Rule 12).
ing trial is unavoidable, priority should be giv- There is also a need for effective pro-
en to completing the trial as soon as possible. grammes that help adolescents involved in
Adolescents in detention have the same crime overcome their problems, and assist
basic human rights as other persons, includ- them in preparing for life as law-abiding mem-
ing the right to humane treatment, the right to bers of society.
167
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
The system for the rehabilitation of juve- standards and set out desirable practices to
nile offenders should ensure the following: be pursued by the world community.
1. availability of Non-residential programmes, The UNCRC makes it clear that the inher-
including guidance and supervision, proba- ent special needs and vulnerability of children
tion, community service, compensation and must be taken into account in the implementa-
restitution to the victim and group counselling; tion and development of laws on juvenile jus-
2.Residential facilities should be small enough tice. The primary goal of a juvenile justice sys-
to facilitate individual treatment, and be de- tem should not be that of punishment for the
centralized so as to permit juveniles to receive crime, but rehabilitation and reintegration of the
treatment near their community; 3. availability juvenile.
of residential rehabilitation programmes in- International instruments setting out stan-
volving education, counselling, vocational dards and containing guidelines for adminis-
training and recreation, adapted to the needs tration of juvenile justice have existed for sev-
of the different types of offenders, in cooper- eral decades. However the rights, norms and
ation with community-based services and pro- principles involved are regularly ignored, ex-
grammes when possible; 4. isolation from the tensively disregarded and sometimes also
community should be no greater than neces- seriously violated. Despite the fact, that all
sary, and contact between the residents and state parties to the UNCRC (even with transi-
their families should be encouraged and fa- tional or week economies) are obliged to “al-
cilitated, unless it would be contrary to the in- locate the maximum extent of its available re-
terests of the child; 5. Effective, independent sources for the implementation of the Conven-
mechanisms established to investigate com- tion and priority give to children.”2 The chal-
plaints against law enforcement agencies or lenge nowadays is to transform the universal
officials alleging violations of the rights of the acceptance of children’s rights into universal
child. observance of these rights.
I. Un Convention on the Rights of the
INTERNATIONAL INSTRUMENTS Child: The UNCRC (1989) – The Convention
on the Rights of the Child is the first internation-
Involvement with juvenile justice systems
al instrument to adopt a coherent child rights
is a reality for a great number of children and
approach to the international legal regulation
adolescents. Addressing this growing concern,
of the deprivation of liberty of children. The
the United Nations has adopted a number of
most specific articles of the CRC in relation to
international instruments directly dealing with
juvenile justice are Art. 37 & 40. Article 37(1)
children’s rights and juvenile delinquency.
of the Convention on the rights of the Child
The most important instrument for juve-
specifically protects children deprived of their
nile justice is the UNCRC ( specifically articles
liberty from violations of their due process and
37, 39, 40) supported by the UN Minimum Stan-
personal integrity rights. It:
dards and Norms in Juvenile Justice. The min-
imum standards are made up of the United • prohibits torture, cruel, inhuman, degrad-
Nations Standard Minimum Rules for the Ad- ing treatment or punishment, capital pun-
ministration of Juvenile Justice (the ‘Beijing ishment and life imprisonment, arbitrary or
Rules’), the United Nations Guidelines on the illegal arrest, detention or imprisonment;
Prevention of Delinquency (the ‘Riyadh Guide- • stipulates that arrest and detention shall
lines’) and the United Nations Rules on the only be used as a last resort and for the
Protection of Juveniles Deprived of Liberty. shortest appropriate period of time; and
The UN Minimum Rules for the protection of • describes the right of children deprived of
Juveniles deprived of their Liberty (Havana their liberty to be treated with humanity,
Rules) and the more recent Vienna Guidelines respect and dignity in a manner that takes
for action on Children in Criminal Justice Sys- into account their age, to be separated from
tem. The UN minimum standards and Norms adults, to maintain family contact, to have
supplement expand and support the provi- prompt access to legal and other assis-
sions in the UNCRC. Although guidelines are tance, to challenge the legality of their
not binding for Georgia directly, “together they detention and to expect a prompt decision
constitute a comprehensive set of universal in relation to any resulting action.
168
L. PAPIASHVILI, SOME ISSUES OF JUVENILE JUSTICE
Moreover, article 40 covers the rights of best helped by the principle of minimum inter-
all children in conflict with the law relates to mat- vention.
ters such as the principle of nullum crimen sine According to the Beijing Rules the age of
lege; the minimum procedural safeguards to criminal responsibility should not be “too low,
be guaranteed at all stages of penal proceed- bearing in mind the facts of emotional, mental
ings; the establishment of laws, procedures, and intellectual maturity of the juvenile; basic
authorities and institutions specifically appli- procedural safeguards should be guaranteed
cable to children alleged as, accused of, or at all stages of proceedings 3; preference
recognized as having infringed the Penal Law, should be given to diversion; pre-trial deten-
including a minimum age for criminal respon- tion should be used “only as a measure of last
sibility; Treatment of children in conflict with resort and for the shortest possible period of
law in a manner consistent with the promotion time”, detainees should be kept separate from
of the child’s sense of dignity and worth, which adults and should receive necessary care,
reinforces the child’s respect for the human protection and assistance; prohibition of cap-
rights and fundamental freedoms of others ital or corporate punishment; strict limitation
and which takes into account the child’s age where deprivation of liberty is a possibility;
and the desirability of promoting the child’s least possible use of institutionalization. Treat-
reintegration and the child’s assuming a con- ment of juveniles placed in institutions should
structive role in society and the availability of provide care, protection, education and vo-
alternatives to institutional care. It requires cational training; special attention to young
States Parties to promote a distinctive system female offenders, right to access for parents
of juvenile justice with specific positive rather or guardians. Adequate academic and/or vo-
than punitive aims. cational training should be provided to ensure
Un Minimum Rules for the Administra- that “they do not leave the institution at an
tion of Juvenile Justice: The Beljinc Rules educational disadvantage”; possibility of fre-
(1985) – The Beijing Rules were the first inter- quent and early recourse to conditional re-
national legal instrument to lay down compre- lease and etc.
hensively rules for the administration of juve- UN Guidelines for the Prevention of
nile justice. They actually predate the UNCRC Juvenile Delinquency (The Riyadh Guide-
and are specifically mentioned in the Pream- lines) – The Riyadh Guidelines represent a
ble of the latter. compre-hensive approach to prevention and
The Beijing Rules, provide guidance to social reintegration. Prevention or rather its
States for the protection of children’s right and goals shall not be limited to protection of soci-
respect for their needs in the development of eties or crime control but shall be informed by
separate and specialised systems of juvenile the well being of your person from the early
justice. childhood, which should be the “focus of any
States are urged to use all the resources preventive program”. The Guidelines call for
available, “including the family, volunteers and child-centered orientation, progressive delin-
other community groups, as well as schools and quency prevention policies and continuous im-
other community institutions” to reach two goals: provement and development of measures.
(1) to minimize necessity for “intervention The Riyadh Guidelines also call for the
under the law and enactment of specific laws and procedures to
(2) to reduce harm that may be caused promote and protect rights of juveniles; the
by such intervention by “dealing with juveniles decriminalization of status offences; the es-
in conflict with the law effectively, fairly and tablishment of an office of ombudsman or sim-
humanely”. ilar independent body as well as the training
The Beijing Rules stipulate that detention of the personnel working with juveniles.
should be used only as a last resort (ultimum Un Rules for Protection of Juveniles
refugium) and for the shortest possible peri- Deprived of Their Liberty: The JDLs –Com-
od of time and therefore encourage the use pared to the Beijing Rules and Riyadh Guide-
of alternatives to institutionalisation to the lines, the JDLs set out far more detailed rules
maximum extent possible. Young people who are to follow focused on ensuring, even in the
identified as having committed an offence are detention in closed facilities, full respect for the
169
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
human dignity and fundamental HR of detained ries or individual bedrooms; sanitary installations
juveniles. should be sufficient and suitable for physical
The UN Rules for the Protection of Juve- needs and privacy; the possession of personal
niles Deprived of their Liberty set forth a com- clothing and effects should be allowed; cloth-
prehensive approach to the rehabilitation of ing should be suitable for the climate and ad-
juvenile offenders, inspired by the Convention equate to ensure good health; food should be
on the Rights of the Child. Some of the main suitably prepared and presented at normal
principles are: meal times; clean drinking water should be
• Facilities should be decentralized, to pre- available, preventive and remedial medical
vent juveniles from being detained far from care should be adequate; education should
their families and communities, and small take place in community schools and juveniles
enough to allow for individualized atten- should have access to appropriate educational
tion. programs, library and vocational training. At
• The system should include open or semi- the same time, juveniles should have the oppor-
open facilities, to meet the needs of chil- tunity to work and receive an equitable remu-
dren who require a residential setting but neration. Recreation activities as well as prac-
do not pose a serious danger to the com- tice of one’s religion shall be allowed supported;
munity. Juveniles should have adequate commu-
• Treatment should begin with an evalua- nication with the outside world, including but
tion of the needs of the individual, and not limited to family members and friends; ju-
should include appropriate forms of educa- veniles should be permitted to leave the facil-
tion, work, spiritual and psychosocial coun- ities for visits to their family homes or for edu-
selling, recreation and care of medical cational, vocational or other important reasons;
problems, including drug or alcohol de- they should also have the right to receive reg-
pendency. ular and frequent visits, the right to communi-
• Respect for the rights of the child is es- cate in writing or by phone and the opportuni-
sential to rehabilitation, because it encour- ty to keep themselves informed regularly of
ages respect for the rights of others. the news.
According to the JDs detention before Recourse or physical restraint or the use
trial shall be avoided to the extent possible; of force should be limited to exceptional cas-
all efforts should be made to apply alternative es and only as explicitly authorized by law or
measures; if preventive detention is used, pri- regulation; even then they should not cause
ority should be on a speedy trial to ensure humiliation or degradation and be used only
the short detention periods; juveniles in pre- for the shortest possible time; carrying of weap-
trial detention should be presumed innocent; ons by personnel should be prohibited; Reg-
they should have the right to free legal aid ular inspections should be conducted by qual-
and communicate with their counsels; they ified independent inspectors and each inspec-
should have a chance to pursue work (with tion should finish with a report; facts indicat-
remuneration), education or vocational train- ing a violation of rights of juveniles or opera-
ing and to receive and retain materials for their tion of a detention facility should be commu-
leisure and recreation. nicated to competent authorities.
Concerning Management of juvenile JDs also sets rules for disciplinary proceed-
facilities JDs states, that juveniles should ings and rules for complaints by juveniles.
not be detained without a valid commitment Un Resolution 1997/30 Administration
order ; individual record file should be estab- of Juvenile Justice: The Vienna Guide-
lished for each juvenile which should be con- lines (1997). This program of action provides
fidential, however information from the file a comprehensive set of measures aimed at
should be contestable by juvenile concerned. establishing a well-functioning system of ju-
Juveniles should be separated from adults venile justice administration according to the
unless they are members of the same family CRC, Beijing Rules, Riyadh Guidelines and
Deprivation of liberty should only be in JDLs and promoting effective use and appli-
facilities which meat all the requirements of cation of these int’l standards. The topic of
health and human dignity. Sleeping accommo- child victims and witnesses is given a special
dation should consist of small group dormito- consideration.
170
L. PAPIASHVILI, SOME ISSUES OF JUVENILE JUSTICE
According to the Guidelines comprehen- bers of society.. There is sant regard to the
sive child-centered juvenile justice process need of the detainees for privacy sensory stim-
should be established; states should special uli, opportunities for association with peers and
procedures designed to take into account the participation in education, work sport, physi-
specific needs of children; principle of mini- cal exercise or leisure time activities as re-
mum intervention should be developed; the quired by the UN Rules on Juveniles Deprived
placement of children in closed institutions of their Liberty. .Sleeping accommodation did
should be reduced; not meet the required standards, the food is
Instruments Adopted by Council of inadequate and etc. But of far greater con-
Europe – Prior to 1989, the Council’s two main cern is the length of time for which children
treaties – the European Convention for the are locked up in cells and the consequent lack
Protection of Human Rights and Fundamen- of exercise. The long periods of time spent by
tal Freedoms (1950) (ECHR) and the Euro- young people In the prison system makes it
pean Social Charter (1961) did not contain extremely difficult for them to be rehabilitated
any specific provisions relating to the rights in the community. Family ties and community
of children. However, references to the rights ties will have been lost, education neglected
of children can be found in several articles of with little possibility of employment both due
the ECHR4. to the stigma of having been imprisoned and
In 1996 European Convention on the the failure to acquire any vocational skills.
Exercise of Children’s Rights was adopt- Although there are four social worker staff
ed. The objective of this Convention is to pro- at the prison there appears to be no planning
mote the [children’s] rights, to grant them pro- for when a child is released. Thus some chil-
cedural rights and to facilitate the exercise of dren find themselves with no accommodation,
these rights by ensuring that children are … job or skills on release, making the risk of re-
informed and allowed to participate in proceed- offending high. There needs to be coopera-
ings affecting them before a judicial authority. tion between probation and the staff in Avchala
The Convention strengthens and creates pro- to ensure that a child’s release is properly
cedural rights of children and determines planned and arrangements for the child’s sup-
roles, duties and responsibilities of the state port are in place and ensure that each child
and its agents. who has served a term of imprisonment has a
Although Georgian legislative acts – Crim- discharge care plan before release.
inal Code, Criminal Procedure Code, and Pris- Despite the fact, that placing juveniles in
on Laws provide special treatment of juvenile custody is expensive, unfortunately there is a
offenders, it is too early to speak about the ex- lack of community-based alternates to custo-
istence and development of juvenile justice in dy. Although the Criminal Code provides the
Georgia. judge with a range of possible non-custodial
Juvenile cases are tried in the common sanctions when sentencing, in practice, the
court. This fact shows that despite particular le- options are few and there are an inadequate
gal norms, Georgian justice does not consid- range of alternatives to detention.
er juvenile legal procedure as an independent Under current procedure, once a child is
procedure, while it is principally and substan- arrested he/she will be detained in the police
tially different from common legal procedures isolator for up to 48 hours while an investiga-
of adults. Judges do not have discretionary tion is conducted and a decision made as to
power of individual approach to juvenile crimes. whether there is evidence to charge the child.
In general practice, the activities in the The conditions in the isolator do not at present
direction of education and correction of juve- conform to international minimum standards.
nile offenders are limited, which seriously im- The police lack flexibility: they do not have the
pedes their further re-socialization. power to release the child into the care of his
The overall design of the facilities in Geor- parents or guardian during this time, to give a
gia and physical environment is not in keen warning as an alternative to detention and in-
with the rehabilitative aim of juvenile justice. vestigation or generally to divert children away
Juveniles are not guaranteed the benefit of from the criminal justice system even if the
meaningful activities or programmes that will child admits his/her guilt and confesses to the
assist them to develop their potential as mem- offence.
171
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
Contrary to the requirements of the UNCRC cess of reducing delay and would reduce the
and the UN Minimum Standars and Norms, the time children spent in detention.
police, prosecutors and judges have no pow- There does not appear to be any oppor-
er to divert children from the criminal justice sys- tunity for the teacher or the lawyer to speak
tem into community based programmes that to the child before the questioning begins.
address offending behavior and work with the Thus there is no opportunity to explain why
child and his/her family. The establishment of they are there, their role or what is going to
such schemes for first time offenders and re- happen to the child as a result of being ar-
peat minor offenders would ensure that chil- rested. To a great extent the protection pro-
dren are not taken to court for minor offences vided by the attendance of the teacher and
and suffer all te disadvantages that prosecu- the lawyer is illusory. Therefore, the lawyer
tion causes. It would enable children to stay should be entitled to talk to his child client in
with their families, in education and allow them private before any questioning by the police
to receive support. occurs.
Rule 6 of the Beijing Rules require that Courts are frightened and intimidating plac-
decision makers should be able to exercise es for children facing trial who, like adults are
discretion at any stage in the criminal process, placed in a cage in the court, away from their
including in relation to the decision on wheth- parents. At the outset of court hearings, judg-
er to continue with an investigation or prose- es explain the rights of the accused , but it is
cution. The Rule requires that consideration likely that many children fail to understand the
should be given wherever appropriate to deal- legal language used by the judge and are not
ing with juvenile offenders without resorting to familiar with court procedure. The physical
formal trial. In addition, Rule 10 provides that placement of the parents so far away from the
a judge or other competent body shall without child reduces the support that they are able
delay consider the issue of release. The po- to offer a child facing trial. In the intimidating
lice do not have the discretion envisaged in arena of an adult court, it is vital that minors
the Rules. Therefore, the police should be giv- are adequately represented o ensure that their
en discretion simply not to proceed with an case is properly considered and that mitigat-
investigation. This does not necessarily mean ing factors are presented.
ignoring the offending behavior, but taking al- The Beijing Rules lay down detailed on
ternative, diversionary measures to deal with sentencing. Any sanction imposed on a child
offending where this is necessary. Police must always be proportionate to the circum-
should be given the power either to warn a stances of the offence and also to the circum-
child that further offending may lead to pros- stances and the needs of the juvenile, as well
ecution, or to refer a child to a diversion pro- as the needs of society. The best interest of
gramme that would address the child’s offend- the child should be the guiding principle in any
ing behavior. decision.
The short period of time between arrival at The Criminal Code has provisions relat-
the police station and the start of questioning ing to early release and parole, but these are
does not allow time for the parents to arrive at not widely used. He court can conditionally
the police station and to be present at ques- release a juvenile sentenced to corrective la-
tioning, making this right largely meaningless. bour or imprisonment before the expiration of
There is no system of summary trial for the term if the court holds that complation of
children who admit offences and this leads to the sentence is no longer necessary for cor-
unnecessary pre-trial detention. In other rective purposes. Although it is encouraging
words no system by which his case can be to see some applications for early release, it
fast-tracked and brought into the court short- would appear that it is rare to review the sen-
ly after charge for final hearing. Instead , the tence of a juvenile to determine a need for
child must wait in the queue for his case to be custody continues to exist. The failure to re-
heard. This is not in the child’s best interests view amounts to non-compliance with art. 25
and is not using detention as a last resort for UNCRC, the ECHR and Rules 32.3 and 28 of
the shortest period of time. It is also deeply the Beijing Rules.
ineffective and costly from resource perspec- Current system of JJ provides too little dis-
tive. Consolidated trials would assist the pro- cretion, flexibility and alternatives to criminal-
172
L. PAPIASHVILI, SOME ISSUES OF JUVENILE JUSTICE
ization to meet human rights standards. Once arrested for serious offences of violence or
a child is suspected of a crime he/she will find for persistent property theft should be placed
himself inexorably drawn into the criminal jus- in secure accommodation. All other children
tice system. Once arrested, the police have should be released under the supervision of
no discretion to discontinue their investigation their parents or the children’s home in which
and divert the child out of the criminal system they live.
and neither does the prosecutor. There is far A range of community based services
too great a use of pretrial detention and too should be developed nationally, including:
few options of non-custodial sentencing avail- • preventive services for children at risk of
able to the courts. The detention facilities pres- anti-social behaviour or offending
ently used for juveniles violate children’s • a range of pre-trial diversion programmes
rights. In addition there is no juvenile police • a range of alternatives to custodial sen-
juvenile courts and etc. tencing and pre-trial detention, including
It is necessary to introduce early interven- fostering, supervision.
tion programmes for children at risk of offend- These programmes should be developed
ing, diversion programmes for those who have and funded as a matter of urgency and should
offended the development of a child friendly be made available country wide and for every
justice system and alternative, community child who could benefit.
based sentences for children who offend.
Children should no longer be placed in
police isolators. The small number of children
1
The Howard League for Penal Reform, (1997), The Use of Imprisonment for
girls, Fachtsheet No. 16.
2
Vienna Declaration and Programme of Action (Part 1, para. 21) adopted by the
World Conference on Human Rights, Vienna, 25 June 1993, (A/CONF. 157/24
(Part 1, chp.111).
3
Presumption of innocence; the right to be notified of the charges; the right to
remain silent; the right to counsel; the right to the presence of parent or guardian;
the right to confront and cross-examine witnesses; the right to appeal to a higher
authority, the protection of privacy.
4
Example Art. 5; Art. 6.1; Art. 8.1; Art. 8.2; Art. 2 of the first additional protocol .
173
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
givi miqanaZe
ombudsmenis instituti
174
g. miqanaZe, ombudsmenis instituti
175
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
da, rogorc Cans, aqvs islandiuri fuZe, sistemaSi Sevida. aRniSnul wlamde sapa-
xolo Sveduri sityva `umbud~ iTargmne- rlamento ombudsmenis instituti, Sve-
ba rogorc Tarjimani an sxva pirTa war- deTis garda, sxvagan arsad arsebobda. am
momadgeneli; meore mosazrebiT, termi- wels igi fineTSi dainerga.
ni `ombudsmeni~ germanuli warmoSobisaa samarTlebrivi saxelmwifos pirobeb-
da misi fuZe momdinareobs germanel tom- Si ganuzomeli mniSvneloba eniWeba adami-
Ta cxovrebis adreuli periodidan. om- anis uflebaTa dacvis samarTlebriv-in-
budsmenad iwodeboda piri, romelic mkv- stitucionaluri garantiebis ganmaxor-
lelobis Semdgom dazaralebuli mxaris cielebel organoebs – sakonstitucio
saxeliT vergelds krebda. warsulSi sasamarTlosa da ombudsmenis insti-
Svedebi da sxva skandinavieli xalxebi am- tuts. meore msoflio omis Semdeg msof-
jobinebdnen, sityva ombudsmeni eTargm- lio sazogadoebrioba mivida im daskvnam-
naT rogorc `rwmunebuli~, `saqmeTa mmar- de, rom adamianis uflebaTa darRvevis
Tveli~, `ndobiT aRWurvili piri~; aris me- faqtebi xels uSlida msoflioSi marTl-
same mosazrebac, romlis Tanaxmadac, om- wesrigis ganmtkicebas, ramac ganapiroba
budsmenis institutis warmoSoba safuZ- adamianis uflebaTa dacvis rogorc sa-
vels iRebs romaeli cenzorebis, tri- erTaSoriso, aseve Sidasaxelmwifoebrivi
bunebisa da provinciebis prokurorebi- meqanizmebis Zieba-Seqmnis procesi. am
sagan. droisaTvis msoflios sxvadasxva qveya-
ombudsmenis instituti pirvelad naSi farTod ikidebs fexs konstituci-
SvedeTSi 1809 wels daarsda, rodesac Sve- uri kontrolisa da ombudsmenis insti-
deTis riksdagma miiRo dokumenti marT- tutebi.
vis Sesaxeb (konstituciuri aqti). aRniS- Tanamedrove msoflios 80-ze met qvey-
nul dokuments safuZvlad daedo mon- anaSi ombudsmenis institutis 100-ze
teskies xelisuflebis danawilebis Teo- meti nairsaxeobaa, Tumca TiToeuli maT-
ria. mefisa da parlamentis uflebamosi- gani zrunavs Sesabamis saxelmwifoSi ad-
lebis gasaTanasworeblad am ukanasknels amianis uflebaTa da TavisuflebaTa
eZleoda specialuri saparlamento ko- dacvaze. aRniSnuli instituti daniasa
misris (ombudsmenis) arCevis ufleba, da norvegiaSi 1953 wels dafuZnda, Tum-
romelsac zedamxedveloba unda gaewia ca norvegiaSi igi 1963 wlamde samxedro
sasamarTloebisa da xelisuflebis sxva ombudsmenis institutis saxiT funq-
organoebisaTvis parlamentis mier miRe- cionirebda;
buli kanonebis Sesrulebaze. 1952 wels ceilonSi, gaeros mier ombu-
dasawyisSive ombudsmeni aRiWurva dsmenis institutis Taobaze gamarTul
aRmasrulebeli xelisuflebisa da sxva seminarze, daniis pirveli ombudsmenis,
organoTa saqmianobaze konstituciuri Stefan gurviCis, moxsenebiT aRfrTov-
kontrolis ganxorcielebis funqciiT. anebulma axalzelandielebma, romlebic
mas daevala administraciis TviTnebobi- am seminarze generaluri prokurorisa
sagan moqalaqeTa uflebebis dacva, rad- da iusticiis ministris moadgilis sax-
gan saerTo sasamarTloebi administra- iT iyvnen warmodgenilni, 1962 wlis 7 se-
ciaze kontrols ar axorcielebdnen da, qtembers miiRes kanoni, romelmac am qvey-
Sesabamisad, igi rCeboda yovelgvari kon- anaSi ombudsmenis institutis SemoRebis
trolis gareSe. safuZveli Seqmna.
ombudsmeni ganisazRvreba rogorc administraciul sasamarTloTa
ndobaminiWebuli damoukidebeli piri, sistemis krizisis da am problemebze mar-
romelic parlamentis mier uflebamosi- Tlmsajulebis saerTaSoriso komisiis
lia, daicvas calkeul moqalaqeTa ufle- inglisis qvedanayofis mier momzadebu-
bebi da ganaxorcielos saparlamento ko- li Whyatt Report axdenda did britaneTSi
ntroli saxelmwifo Tanamdebobis pire- ombudsmenis institutis SemoRebis reko-
bze, magram maT mier miRebuli gadaw- mendebas. marTalia, mas bevri mowinaaRm-
yvetilebebis Secvlis uflebis gareSe. dege hyavda, ZiriTadad, saxelmwifo biu-
1919 wlidan moyolebuli, msgavsi or- rokratiis saxiT da arc premier-ministr
ganoebi msoflios sxvadasxva qveyanaSic mak-milanis konservatoruli mTavroba
dainerga da samarTlebrivi kontrolis uWerda mxars, magram vilsonma, romelmac
176
g. miqanaZe, ombudsmenis instituti
177
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
178
g. miqanaZe, ombudsmenis instituti
179
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
mens umaRlesi sakanonmdeblo organo timrebas, misi binis, manqanis, samuSao ad-
irCevs, Tumca zogn ombudsmenis insti- gilis an pirad gaCxrekas im organos Tanx-
tutma aRmasrulebeli xelisuflebis mobis gareSe, romlis mierac daniSnuli
mier daniSvniTi saxe miiRo. kerZod, saf- an arCeulia igi. gamonaklisia danaSau-
rangeTSi mediatori iniSneba saxelmwifo lze waswreba, rac dauyovnebliv unda
sabWos dekretiT, didi britaneTis sapa- ecnobos mis amrCev an damniSvnel orga-
rlamento rwmunebuls ki niSnavs dedofali. nos da mxolod misi TanxmobiT unda ganx-
ombudsmenis garantiebze saubrisas orcieldes saTanado saproceso moqme-
ar SeiZleba gauTvaliswinebloba kanonm- debebi; uaris SemTxvevaSi, dakavebuli an
deblobiT gantkicebuli SesaZleblobe- dapatimrebuli ombudsmeni dauyovneb-
bisa ombudsmenisaTvis vadamde uflebam- liv unda gaTavisufldes.
osilebis Sewyvetis Taobaze. umetes SemT- ombudsmenis damoukideblad moR-
xvevaSi aRniSnuli mizezebi identuria vaweobisaTvis damatebiTi garantiaa misi
imisa, rac gansazRvrulia saqarTvelos ufleba, ar misces Cveneba im faqtis gamo,
saxalxo damcvelisaTvis organuli kano- romelic mas gaandes, rogorc ombudsmens
niT – moqalaqeobis dakargvis, zedized 4 da romelic mas unarCundeba uflebam-
Tvis ganmavlobaSi movaleobis Seusrule- osilebis Sewyvetis Semdegac. mniSvnelo-
blobis, mis mimarT sasamarTlos gamam- vani garantiaa, agreTve, ombudsmenis pa-
tyunebeli ganaCenis kanonier ZalaSi Ses- suxisgebaSi micemis dauSvebloba Tavisi
vlis, sasamarTlos mier misi qmeduunar- movaleobis Sesrulebisas gamoTqmuli
od, ugzo-ukvlod dakargulad an garda- azrebisa da SexedulebebisaTvis.
cvlilad cnobis, mis statusTan SeuTav- finansuri damoukideblobis Tval-
sebeli Tanamdebobis dakavebis an SeuTav- sazrisiT, aRiarebulia, rom ombudsmenis
sebeli saqmianobis warmoebis, nebayof- institutis organizaciasa da saqmiano-
lobiT gadadgomisa da gardacvalebis basTan dakavSirebuli xarjTaRricxva
SemTxvevaSi. niderlandebSi es SeiZleba calke muxliT unda iyos gaTvaliswineb-
iyos SemTxveva, rodesac erovnul om- uli saxelmwifo biujetSi, amasTan, mra-
budsmens sasamarTlos kanonier ZalaSi val qveyanaSi damkvidrebulia praqtika,
Sesuli gadawyvetilebiT dauwesdeba romlis mixedviTac ombudsmenisaTvis bi-
mzrunveloba da meurveoba, gamocxadde- ujetiT gaTvaliswinebuli Tanxebis
ba gakotrebulad, miiRebs moratoriums, odenoba ar SeiZleba iyos wina wlis biu-
an aRekveTeba Tavisufleba valebis gamo2 jetiT gamoyofil Tanxebze naklebi.
(samoqalaqo da politikur uflebaTa yovelive zemoaRniSnulidan gamomdi-
saerTaSoriso paqtis me-11 muxlis Tanax- nare, SegviZlia davaskvnaT, rom ombuds-
mad: `aravis SeiZleba aRekveTos Tavisu- menma miiRo sakanonmdeblo da sazogado-
fleba mxolod saxelSekrulebo valde- ebrivi aRiareba im saxelmwifoebSi, sadac
bulebebis Seusruleblobis safuZ- arsebobs marTva-gamgeobis sxvadasxva
velze"); agreTve, Tu igi Tavisi moqmede- forma: konstituciuri monarqia, saprez-
bis an umoqmedobis Sedegad iwvevs qveda idento respublika, saparlamento res-
palatis seriozul undoblobas. umaR- publika. ombudsmenis instituti warma-
lesi sakanonmdeblo organos mxridan om- tebiT funqcionirebs sxvadasxva samarT-
budsmenis uflebamosilebis vadamde Sew- lebriv (anglosaqsuri da kontinenturi
yvetis safuZvlad misTvis undoblobis samarTlis) ojaxs mikuTvnebul saxelmwi-
gamocxadeba dafiqsirebulia SvedeTis foebSi.
kanoniTac. poloneTSi rwmunebulis ombudsmenis nebismier saxelmwifo
uflebamosilebis vadamde Sewyveta Sesa- wyobilebasTan Segueba aixsneba im gare-
Zlebelia am ukanasknelis mier ficis da- moebiT, rom yvela qveynisaTvis damaxasi-
rRvevis SemTxvevaSi. aTebelia biurokratiuli problemebi.
xelSeuxeblobis garantia ganamtki- saxelmwifos administraciuli funqcie-
cebs ombudsmenis damoukideblobasa da bis gafarToebasa da saxelmwifo regu-
misi saqmianobis miukerZoeblobas. umrav- lirebis zrdas Sedegad sakanonmdeblo
lesi qveynis kanonmdebloba dauSveblad xelisuflebis mniSvnelobis Semcireba da
miiCnevs ombudsmenis sisxlis samarTlis aRmasrulebel struqturaTa pozicieb-
pasuxisgebaSi micemas, dakavebas an dapa- is ganmtkiceba mohyveba. ar aris gamori-
180
g. miqanaZe, ombudsmenis instituti
gamoyenebuli literatura:
1. g. miqanaZe – `evropis ombudsmenebi~, Tb. 1999.
2. g. miqanaZe – statia `saxalxo damcvelis instituti saqarTveloSi~, statiaTa
krebuli `adamianis uflebaTa evropuli standartebi da maTi gavlena saqarTvelos
kanonmdeblobasa da praqtikaze~, k. korkelias redaqtorobiT, Tb., 2006.
3. Àëüâàðî Õèëü Ðîáëåñ – “Ïàðëàìåíòñêèé êîíòðîëü çà àäìèíèñòðàöèåé (èíñòèòóò
îìáóä-ñìàíà)”, Ì., 1997.
4. Ý. Öîëëýð – “Çàùèòà ïðàâ ÷åëîâåêà âî ôðàíöèè”, Ì., 1993.
5. Í. Ðàãîçèí – “Ïðàâà ÷åëîâåêà â ñîâðåìåííîì ìèðå”, Äîíåöê 1995.
6. Â. Áîéöîâà – “Çàùèòà ïðàâ ÷åëîâåêà è ãðàæäàíèíà – ìèðîâîé îïûò”, Ì., 1996.
7. Í. Õàìàíåâà – “Óïîëíîìî÷åííûé ïî ïðàâàì ÷åëîâåêà – çàùèòíèê ïðàâ ãðàæäàí”, Ì., 1998.
8. Gregory R., Hutchesson P. – “The Parliamentary Ombudsman. A Study in the Control of
Administrative Action”, London, 1975.
9. Clark D. Citizen and Administration in France – the Review of Discussion the Conseil d’Elat v.
Ombudsmen // Public Administration, 1984.
10. Commissioner for Civil Rights Protection of Poland – “National Ombudsmen (Legislation of 27
Countries)”, Warsaw 1998.
1
saxalxo damcvelis Sesaxeb muxli pirvelad saqarTvelos 1995 wlis
konstituciaSi gaCnda, organuli kanoni `saqarTvelos saxalxo
damcvelis Sesaxeb~ miRebul iqna 1996 wlis 16 maiss, xolo pirveli
saxalxo damcveli saqarTvelos parlamentma 1997 wlis 29 oqtombers
airCia.
2
samoqalaqo da politikur uflebaTa saerTaSoriso paqtis me-11 muxlis
Tanaxmad: `aravis SeiZleba aRekveTos Tavisufleba mxolod
saxelSekrulebo valdebulebebis Seusruleblobis safuZvelze~.
181
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
GIVI MIKANADZE
OMBUDSMAN INSTITUTION
Human rights represent universal value. Jacques Maritain has noted with regard
Cultural-historical eras, civilizations and polit- to natural law: Individual human being pos-
ical forces play considerable roles in their de- sesses rights solely due to the fact that he/
velopment. she is a personality, integral master of himself
The concept of human rights derives from and his actions. Thanks to the natural law a
the natural law doctrine and embraces two human being has a right to be respected, be a
main notions. The first implies that a human subject of rights, to possess rights. All of these
being is granted inviolable and inalienable are deserved by a human being due to a sin-
rights. These moral rights originate from hu- gle reason of being a human.
man nature of an individual and their purpose During XVIII century first incarnation of
is to preserve the sense of self-esteem of a ideas related with the “natural rights” resulted
human being. The second notion of the con- into recognition of norms of “natural law” as
cept of human rights embodies legal rights. legal norms. The mentioned norms became
They are established as a result of legal draft- constituents of national constitutions first time
ing processes which take place at both – na- in the history of mankind thus depicting con-
tional and international planes. These rights are tractual relationship between a state and an
based on the consent of those who shall enjoy individual, deriving from which state authority
these rights, i.e. of legal objects, whereas the was based on the consent of an independent
rights affiliated to the first group are based on individual. The 1776 United States Declara-
the natural order. tion of Independence and the 1789 French
Life and dignity of a human being have been Declaration of the Rights of Man and Citizen
trampled throughout the history. The idea of derive from the above mentioned basis. In the
employing uniform norms without any discrim- subsequent period the principle was shared
ination towards each and every individual by a number of European, Latin American and
emerged several centuries ago. Indeed there Asian states, which escaped the fate of being
is no society which would have no rules for colonialized.
protection of certain rights. Despite all the above-mentioned, it can be
Principle of equality of every member of rightly argued that human rights, as political-
human society, just alike many other basic legal phenomenon is a creature of new and
principles, which make up what today calle modern history. It is universally recognized that
human rights, are in principle attributable to each individual is granted rights and obliga-
all cultures, religions and philosophical tradi- tions prescribed by international law, and state
tions. One of such traditions, which derives on its turn is obliged to respect and protect
from religion, is called jus naturale, or natural these rights and freedoms. This standpoint is
rights. well reflected in the United Nations Charter, in
Emergence and establishment of the term the Preamble of which the Peoples of the Unit-
human rights was preceded with the notion of ed Nations have unanimously declared that
natural rights, widely accepted by XVII centu- they were determined to reaffirm faith in fun-
ry philosophers and politicians. The concept damental human rights, in the dignity and
of natural rights was on its turn related with worth of the human person. United Nations is
the theory of natural law (lex naturale) elabo- resolute to “promote and encourage respect
rated by intellectuals of ancient era. “Inviola- for human rights and for fundamental freedoms
ble” or “inalienable rights” were used as syn- for all without distinction as to race, sex, lan-
onyms to the term “natural rights”. guage, or religion”.
182
G. MIKANADZE, OMBIDSMAN INSTITUTION
By introducing the aforementioned value bodies. At the same time such a participation
into the Charter of the United Nations the fa- of a state does not exclude vigorous actions
thers of the organization laid down foundation on behalf of an individual that considerably ex-
for emerging new field of international law – tends options for protecting interests of a per-
international law of human rights. The keystone son.
document for the latter appeared to be the Ombudsman institution occupies a partic-
1948 Universal Declaration of Human Rights, ular place among the mechanisms which pro-
adopted and proclaimed by the UN General tect human rights and legal interests of an in-
Assembly Resolution of 10 December 1948. dividual from arbitrariness of state governing
Based on the fact that the Declaration does bodies. Introduction of ombudsman institution
not possess an obligatory character, a num- was caused by the need of increasing possi-
ber of international instruments (Covenants, bility of protection of human rights when they
Conventions, and Charters) were drafted, happen to be violated by state bodies, as well
which incorporated efficient mechanisms of as the need of decreasing the since of citi-
human rights protection. zens of being unprotected vis-a-vis a bureau-
The second stage of development and cratic system, improving the degree of gover-
strengthening human rights was introduction nance and humanizing relations between a
of principles recognized by international law person and a state.
into the national constitutions and respective The word “ombudsman” originates from
harmonization of domestic legislation. At the “umbud” (in the medieval Swedish the word
same time, in conjunction with introducing such stood for strength or authority) and, as it seems,
international human rights protection institu- must be coming from Icelandic roots, whereas
tions as the UN Human Rights Committee, the the Swedish word “umbud” means translator
European Court of Human Rights, Inter-Ameri- or representative. According to another view,
can Commission on Human Rights, Inter-Amer- the word is of a German origin and its roots
ican Court of Human Rights, African Commis- come from the early stages of the German
sion on Human and People’s Rights, it was tribes’ life. A person who was convening Ver-
necessitated to create similar institutions at geld on behalf of the injured party in a murder
national levels, to ensure protection of human case was called ombudsman. In the past the
rights and freedoms. The necessity served the Swedes and other Scandinavian nations pre-
emerging provision following which human rights ferred to translate word ombudsman as a
must be guaranteed not only normatively, but “plenipotentiary”, “confident” or “charge d'affai-
in practice as well. res”. In line with the third view the roots of
Approach of a state as a single whole as Ombudsman institution originate from Roman
well as of its individual bodies with regard to censors, tribunes and provincial procurators.
human rights is a conspicuous indicator of a Ombudsman institution was first established
political system established in the state. Nowa- in Sweden in 1809. This was the time when
days, there are almost no highly developed the Swedish Riksdag approved a document
states which do not have fundamental human on governance (a constitutional act). The
rights and freedoms contained in the consti- mentioned document was based on Montes-
tution. quieu theory of separation of powers. In or-
Reflection of human rights and freedoms der to put on apart the powers of a King and a
in constitution creates legal guarantees of re- Parliament the latter was allowed to elect a
stricting a state’s possible oppression of an special parliamentary commissioner (ombuds-
individual. It is true, that not all the rights and man) who would oversee the implementation
freedoms can be included into a constitution, of laws adopted by the Parliament in courts
if for no other reason than due to the fact that and other organs of administration.
along with development of a society the circle Right from the beginning an ombudsman
of universally recognized rights and freedoms was equipped with a function of control of ac-
is also expanding. tivities of executive and other bodies of au-
Constitutional norms provide for protec- thority. Ombudsman was charged to protect
tion of rights of an individual by a state and its rights of citizens from arbitrariness of admin-
183
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
istration, as common courts did not exercise bureaucracy as well as lacking the support of
control over administration and respectively the Prime Minister MacMillan’s Conservative
the latter was left without any supervision. Government, Wilson, who included the issue
Ombudsman is defined as entrusted in- into his pre-election campaign program, won
dependent person who is authorized by a Par- the elections and Law on Parliamentary Rep-
liament to protect rights of individual citizens resentative was adopted in three years time,
and exercise parliamentary control over state in 1967.
officials, however he/she does not possess a At the edge of 1960-70s the institution was
right to alter decisions made by them. being introduced into a number of US states,
Since 1919 the similar bodies were intro- in 1973 – in France, in 1976 – in Portugal, in
duced and incorporated into the legal control 1981 – in Spain, in 1982 – in the Netherlands,
system in a number of countries throughout in 1988 – in Poland, in 1995 – in Georgia.1
the world. Before 1919 the ombudsman insti- In international practice ombudsman is
tution did not exist anywhere but Sweden. In often called different names. In particular, it is
that year the institute was introduced in Finland. called Mediator in France, Provedor for Jus-
In a Rule of Law state tremendous impor- tice – in Portugal, Public Defender, like in
tance is attached to organs carrying into ef- Georgia – in Spain, Commissioner – in Poland,
fect legal and institutional guarantees for hu- etc. Despite such a variety of names the term
man rights protection – constitutional court and “ombudsman” has maintained its particular
institution of ombudsman. After World War II position, as of international denominator of this
the world community reached the conclusion mechanism of human rights protection.
that facts of human rights violation were ham- The experience proves that ombudsman
pering establishment of legal order through- institution is mostly demanded in cases when
out the world, and this led to the process of different institutions fail to exercise functions
searching and creating both – international, of controlling state authorities and additional
as well as national mechanisms of human protection of citizens’ rights from arbitrariness
rights protection. By now in a diverse group of of an administration is considered necessary.
states institutions of constitutional control and Creation of ombudsman institution is close-
ombudsman are being widely disseminated. ly linked with both – the theory of separation
There are more than 100 diversities of of powers, as well as contemporary develop-
ombudsman institution in over 80 countries of ment of society and broadening the scope of
the contemporary world, though each of them state and administrative activities. The latter is
takes care of protection of human rights and a cause of expansion of disagreement between
freedoms in a respective state. The institute state-administrative bodies and citizens. This
was launched in Denmark and Norway in 1953; is supported by a constant increase of number
however, in Norway it functioned as a martial of people employed in state apparatus, great
ombudsman’s institution until 1963. number of legal acts and regulations, infor-
In 1952 representatives of New Zealand – mation deficit over executive branch of the
the Prosecutor General and a Deputy Minis- government in parliament, overloading admin-
ter of Justice of the country – attending an UN istrative courts with proceedings, etc. In such
organized seminar on ombudsman institution a situation a citizen is constantly under the
were flabbergasted after listening to the re- pressure of administrative and other bureau-
port of the first ombudsman of Denmark Ste- cratic institutions that causes citizen’s displea-
fan Gurvich in Ceylon and a law introducing sure and distrust towards a state.
an institution of ombudsman followed, which Based on all the above mentioned it can
was adopted on 7 September, 1962. be concluded that proliferation of ombudsman
Whyatt Report, produced by the England institution and its inclusion into political-legal
section of the International Justice Commis- systems of a number of countries is precondi-
sion working on the crisis in the administra- tioned with the state entering into all social
tive court system also recommended introduc- spheres of life of a society, broadening state’s
tion of ombudsman institution in Great Britain. administrative functions, through state regu-
Despite having many opponents in the state lations, which strengthen a role of legislative
184
G. MIKANADZE, OMBIDSMAN INSTITUTION
185
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
186
G. MIKANADZE, OMBIDSMAN INSTITUTION
187
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
tion outside Scandinavian states, the institu- institution, provided for a significant transfor-
tion proved its importance and what is impor- mation of the traditional Scandinavian model.
tant, it perfectly conjuncts with the national Ombudsmen offices in each of the countries
legal systems of various countries despite the were solving emerging problems on their own
fact, whether they recognize a principle of way. Indeed this is exactly the reason why a
separation of powers or grant a priority to ex- comparative analysis of legal institution of
ecutive branch of government. ombudsman is difficult. Peculiarities and dis-
Flexibility of ombudsman’s institution was tinguishing features, as well as somewhat dif-
revealed in its successful activities both in the ferent histories of national, state mechanisms
Unitarian as well as Federal states. The spe- are expressed in its creation and functioning.
cific conditions, which preceded creation of the
Bibliography:
1
A provision about Public Defender was initially introduced in the 1995 Constitution
of Georgia, the Organic Law on Public Defender of Georgia was adopted on 16
May 1996 and the first Public Defender was elected by Parliament on 29 October
1997.
2
According to the Article 11 of the International Covenant on Civil and Political
Rights “No one shall be imprisoned merely on the ground of inability to fulfill a
contractual obligation”.
188
xaTuna ToTlaZe
189
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
190
x. ToTlaZe, `saqarTvelos saerTaSoriso xelSekrulebebis Sesaxeb~ saqarTvelos ...
191
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
192
x. ToTlaZe, `saqarTvelos saerTaSoriso xelSekrulebebis Sesaxeb~ saqarTvelos ...
193
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
194
x. ToTlaZe, `saqarTvelos saerTaSoriso xelSekrulebebis Sesaxeb~ saqarTvelos ...
195
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
196
x. ToTlaZe, `saqarTvelos saerTaSoriso xelSekrulebebis Sesaxeb~ saqarTvelos ...
gamoyenebuli literatura
1
ix. 1995 wlis 24 agvistos saqarTvelos konstituciis me-6 muxli.
2
F.G. Jacobs, S. Roberts (Edited), The Effect of Treaties in Domestic Law, Vol. 7,
Sweet & Maxwell, 1987, p. xxiii-xxxi.
3
ix. 2004 wlis 6 Tebervlis konstituciuri kanoni N3272 `saqarTvelos
konstituciaSi cvlilebebisa da damatebebis Setanis Sesaxeb~.
4
k. korkelia, saerTaSoriso xelSekruleba saerTaSoriso da Sidasaxelm-
wifoebriv samarTalSi, Tb., 1998, gv. 49-50.
5
saqarTvelos kanoni „saqarTvelos saerTaSoriso xelSekrulebebis Sesax-
eb~, 1997 weli, me-4 muxli.
6
saqarTvelos kanoni „saqarTvelos saerTaSoriso xelSekrulebebis Sesax-
eb~, 1997 weli, me-8 muxli.
7
mag., xelSekrulebis teqstis miRebis mizniT gamarTul molaparakebebze
SesaZlebelia molaparakebis erT-erTma mxarem meore mxares gadasces
axali xelSekrulebis proeqti. saxelmwifoTa Soris damkvidrebuli
praqtikis Tanaxmad, aseTi SeTavazeba oficialurad gadacemulad iTv-
leba da fiqsirdeba molaparakebebis oqmSi.
8
ix. saqarTvelos kanoni „saqarTvelos mTavrobis struqturis, ufleba-
mosilebisa da saqmianobis wesis Sesaxeb~, 2004 weli, 1-li muxli.
9
saqarTvelos kanoni „saqarTvelos saerTaSoriso xelSekrulebebis Sesax-
eb~, 1997 weli, me-9 muxlis me-7 punqti.
10
ix. iuneskos wesdeba, muxli XV.
197
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
11
À.Í. Òàëàëàåâ, Âåíñêàÿ Êîíâåíöèÿ î ïðàâå ìåæäóíàðîäíûõ äîãîâîðîâ,
Êîìåíòàðèé, Ì., 1997, ñ. 43.
12
k. korkelia, saerTaSoriso xelSekruleba saerTaSoriso da Sidasax-
elmwifoebriv samarTalSi, Tb., 1998, gv. 89-90.
13
ix. `saxelSekrulebo samarTlis Sesaxeb~ venis 1969 wlis konvencia, me-20
muxli.
14
À.Í. Òàëàëàåâ, Âåíñêàÿ Êîíâåíöèÿ î ïðàâå ìåæäóíàðîäíûõ äîãîâîðîâ,
Êîìåíòàðèé, Ì.,1997, ñ. 61-63.
15
`saxelSekrulebo samarTlis Sesaxeb~ venis 1969 wlis konvenciis 25-e
muxlis mimarT kolumbiam da kosta-rikam gaakeTes daTqmebi, romlebi-
Tac uari ganacxades saerTaSoriso xelSekrulebis droebiT gamoyeneba-
ze, TavianTi kanonmdeblobiT dadgenili wesis gamo.
16
G. Gulmann, Denmark, F.G. Roberts (Edited), The Effect of Treaties in Domestic
Law, Vol. 7, Sweet & Maxwell, 1987, p. 29-30.
17
ix. saqarTvelos erovnuli usafrTxoebis koncefcia da saqarTvelos
sagareo politikis strategia – 2006-2009, www.mfa.gov.ge
18
k. korkelia, saerTaSoriso xelSekruleba saerTaSoriso da Sidasax-
elmwifoebriv samarTalSi, Tb., 1998, gv. 94-95.
19
ix. saqarTvelos prezidentis brZanebuleba saqarTvelos sagareo samin-
istrosTan saqarTvelos saerTaSoriso xelSekrulebebis Sesrulebis
sakonsultacio sabWos Seqmnisa da debulebis damtkicebis Sesaxeb, 2001
wlis 11 maisi, N 188, saqarTvelos prezidentis aqtebis krebuli, N5,
Tbilisi, 2001 weli, gv. 38-39.
20
ix. sagareo saqmeTa saministros saarqivo dokumentacia (mimowerebi).
198
KHATUNA TOTLADZE
199
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
The law of Georgia "on International Trea- are entitled to submit recommendation.6 Mem-
ties of Georgia" provides for three categories ber of Parliament within his/her competence
of international treaties: interstate, intergov- may also submit recommendation on conclu-
ernmental and interagency.5 Decision on the sion of international treaty. It is also important
conclusion of interstate and intergovernmen- to entitle the Constitutional Court of Georgia,
tal treaties shall be made by the President of the Supreme Councils of Autonomous Repub-
Georgia, but the decision on the conclusion lics of Adjaria and Afkhazia to submit recom-
of interagency treaty shall be made by the mendation which is not envisaged by the law.
Minister of Foreign Affairs. In fact, the role of In accordance with the existing law "recom-
the Prime Minister of Georgia is combined with mendations on the conclusion of international
the President. The latter was considered as treaties shall include the motivation on expe-
the Head of State as well as the Head of exec- diency", which is quite an unclear provision
utive authority upon the adoption of the law. and in practice, usually becomes subject to
Therefore, considering current reality, it is diverse interpretation. Therefore, it would be
important to put forward the significance of the advisable to define that the recommendations
of Prime Minister and determine its compe- on the conclusion of international treaties shall
tence in relation with the activities connected include the text of international treaty in Geor-
to international treaties. gian language and explanatory memorandum
It would be reasonable if the decision on on the expediency of concluding the treaty.
the conclusion of intergovernmental treaties
is made by the Prime Minister as the Head of 4. PROPOSAL TO FOREIGN STATE
Government of Georgia. Consequently, any OR INTERNATIONAL ORGANIZATION
action related to the conclusion of internation- ON THE CONCLUSION OF A TREATY
al treaties of intergovernmental nature or ter-
mination of its operation shall be implement- The law does not stipulate when the pro-
ed by the direct participation of the Prime Min- posal to foreign State or international organi-
ister. zation on the conclusion of a treaty is consid-
ered to be officially submitted. In practice,
3. RECOMMENDATIONS ON THE CONCLUSION there are number of cases when the draft in-
OF INTERNATIONAL TREATIES ternational treaty is delivered to the first per-
sons of the country during the official visits.
In spite of the particular form of express- Consequently, it is important to determine that
ing the consent to be bound by a treaty by ex- treaty is considered to be submitted if it is pre-
ecutive or legislative authority (signature, rat- sented to the President of Georgia, Prime Min-
ification, acceptance, approval, accession, ister of Georgia, high political officials or if it is
exchange of instruments, which constitute a delivered to Georgian party through the dip-
treaty), the appropriate internal procedures lomatic channels.7
under the relevant law shall be conducted on
any type of aforementioned draft treaty. 5. DIFFICULTIES ARISEN DURING
On initial stage, the existence of the advi- THE IMPLEMENTATION OF THE LAW
sory institute shall be underscored, which is
extremely flexible and simplified form in com- In accordance with the existinglaw propos-
parison with the proposals on the conclusion al regarding the conclusion of the international
of international treaties, which shall pass treaty shall be submitted to the President of
through the domestic procedures stipulated Georgia by the Ministry of Foreign Affairs of
by the law. In case of non acceptance of rec- Georgia. The central bodies of executive au-
ommendation, its consideration shall be ter- thority are also entitled to submit a proposal.
minated without complex and extensive pro- According to the law of Georgia "on Structure,
cedure of examination of expediency of the Authority and Rules of Operation of the Gov-
conclusion of international treaty by the rele- ernment of Georgia", the Government of Geor-
vant Ministries. Following to the law the Par- gia shall provide for implementation of the
liament of Georgia, the Supreme Court of executive power,8 which shall consist of the
Georgia and the Public Defender of Georgia Prime Minister and Ministers including State
200
K. TOTLADZE, GAPS OF THE LAW OF GEORGIA “ON INTERNATIONAL TREATIES OF GEORGIA”
201
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
202
K. TOTLADZE, GAPS OF THE LAW OF GEORGIA “ON INTERNATIONAL TREATIES OF GEORGIA”
Character", and interpretation of the law is the would exist without imperative requirement of
competence of the judiciary, in practice diffi- performance of obligations recognized by its
culties related to the performance of domes- subjects.
tic procedures with respect to the conclusion Principle – pacta sunt servanda (treaty
of treaties of military character often arise. shall be performed) reinforced by Vienna Con-
Main direction of Georgian foreign policy vention is incorporated into the law of Geor-
is the integration into European and Euro-At- gia "on International Treaties of Georgia".
lantic structures. To that end national security Following to its Article 31 international treaty
concept of Georgia and the Georgian Foreign of Georgia shall be the subject of performance
Policy Strategy for 2006 – 2009 has been elab- in good faith.
orated. One of the strategic aims and priori- Issue of implementation of the international
ties of Georgia is to establish Georgia’s place treaty may be considered as a sovereign right
in common European family by deepening in- granted to the country to define such meth-
tegration in European Union and joining ods itself by considering State arrangement,
NATO.17 To accomplish this goal, following to traditions and experience unless the similar
the NATO standards, international treaties in issues are particularly defined by the treaty.
the field of defense are intensively conclud- Therefore it is proved that the States shall
ing. In relations with particular treaties it is of- define the ways and methods of performance
ten necessary for the State to express its con- of international treaty it themselves.
sent to be bound by them as soon as possi- Ways and methods selected in such a way
ble. Internal procedures provided by the law falls under the competence of national law, the
are time-consuming that hinders the accep- results of which has an affects on internation-
tance of important instruments for the coun- al treaty obligations of a state on internation-
try. In certain cases Ministry of Defense of al level.18
Georgia has to make a political decision in According to the Georgian legistation the
order to sign and to be bound by a treaty. It is President and the Parliament of Georgia are
clear that such documents arises political and taking relevant measures in order to ensure
no legal obligations to Georgia. performance of international treaty, and the
Considering all the abovementioned it is central bodies of executive authority, that have
important to define a treaty of military charac- competence on certain issues of international
ter by the Law "on International Treaties of treaties are, shall ensure performance of ob-
Georgia", which implies that all other types of ligations of Georgia undertaken by interna-
treaties concerning the military issues, which tional treaty, observe the protection of inter-
do not fall under the definition of "Treaty of ests of Georgia as well as performance of ob-
Military Character" may be concluded on be- ligations by the other parties of the treaty. The
half of the Ministry of Defense of Georgia, upon Ministry of Foreign Affairs of Georgia provides
the agreement of the parties and may enter general supervision on the performance of the
into force even by the signature. international treaty. Thus, the central bodies
"Treaty of Military Character" may be de- of executive authority of Georgia shall be
fined as follows: "International treaty on the obliged to provide the Ministry of Foreign Af-
basic principles of cooperation in the military fairs with comprehensive information on the
field or treaty on the usage of Georgian terri- condition of performance of international treaty.
tory for transit or temporary dislocation pur- General supervision on the performance
poses of armed forces of a foreign State, par- of international treaty covers the conduction
ticipation of Georgian military forces in the of different activities, including coordination of
armed Conflicts or peacekeeping operations, activities of Georgian agencies by the Minis-
receipt or transmission of military equipment, try of Foreign Affairs. Basically on that ground,
military trainings". in summer 1999, the Division of Performance,
Analyze and Control of International Treaties
9. PERFORMANCE OF INTERNATIONAL TREATY
was the Ministry of Foreign Affairs. Based on
its functions this Division supposed to be as a
Principle on performance of international part of Department of International Law, how-
treaty in good faith is an ancient principle of ever as a result of structural reorganizations
international law. None of the legal system the Division was established in the General
203
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
Secretariat of the Ministry. But in May 2001 Despite the particular obligations pre-
on the basis of special decree of the Presi- scribed by the law none of the normative acts
dent, interagency organ has been established determine a mechanism, which shall be ap-
in the Ministry of Foreign Affairs – Advisory plied by the central bodies of the executive
Council regulating performance of Georgian in- authority of Georgia in case of breach or non-
ternational treaties.19 performance of treaty obligations. The law
In the process of operation of the Division provides for the general obligations of agen-
number of difficulties emerged. In particular esis to provide the Ministry of Foreign Affairs
there was no relevant structure or person at with the information on the conditions of per-
the agency, to whom the coordination of the formance of international treaties. The Minis-
mentioned issues could be assigned. Fre- try of Foreign Affairs of Georgia as a general
quently Ministry of Foreign Affairas received coordinator of the conclusion, operation, ter-
meaningless and irresponsible replies, for ex- mination and performance of an international
ample: "Ministry/body is not able to perform treaty, should be fully informed on the condi-
obligation undertaken by a treaty, because of tions of performance of treaties, for this goal
the financial problems", while the performance particular terms shall be defined within which
of some of the paragraphs was not actually the Ministries will be obliged to submit com-
connected to the financial arrangements. Ap- plete and comprehensive information on the
proximately 40% of the agencies did not even condition of the performance of treaty obliga-
reply, which was also pointing on the weak- tions and on related difficulties. For example,
ness of the coordination and nonexistence of perhaps at least once a year every Ministry
controlling mechanisms.20 shouldl prepare a report on the performance
Analysis of the received information from of the international treaties under ther com-
the relevant bodies of Georgia reviled super- petence, and submitit to the Ministry of For-
ficial and irresponsible approach, which the eign Affairs of Georgia.
Also relevant structures should be estab-
most state bodies were demonstrating in a
lished in all bodies of the executive authority
view of performance of international treaty
in order to promote proper implementation of
obligations. This fact was mentioned in the first
functions of the Ministry of Foreign Affaires
Report of the Division, which was submitted
prescribed by the law. To achieve this goal,
to the Minister of Foreign Affairs of Georgia,
adoption of the regulating document on the
but since his competence was quite limited
level of the President or the Prime Minister is
and was not able to react on undue perfor-
essential. Organization of the specific internal
mance by the agencies and there was no
structure will enhance the coordinated activi-
mechanism, which would facilitate the actual
ty and the responsibility of relevant bodies on
supervision by the Ministry of Foreign Affairs the performance of international treaties and
on the performance of treaty obligations; significantly increase the quality of informa-
therefore this document remained only as an tion to be presented as well.
internal information and could not be reacted Restoration of the activity of appropriate
or respectively. Advisory Council is necessary and would be
Regarding to the Advisory Council regu- desirable that relevant prominent scholar-ex-
lating the performance of international trea- perts together with the high officials to be in-
ties, as a result of the developments in No- cluded as its members.
vember 2003 in fact it terminated its activity,
while the Ministry of Foreign Affairs was un-
10. CONCLUSION/RECOMMENDATIONS
der the reorganization for several times. In
such conditions the supervision by the Minis- Thus, on the basis of the abovementioned
try of Foreign Affairs on the performance of analysis of all the , we can conclude that the
international treaties was terminated. The doc- law of Georgia "on International Treaties of
ument regulating the functioning of the Advi- Georgia" does not meet the requirements of
sory Council has to be amended to bringit in the current reality any more and during its im-
line with existing the legislation and amend- plementation process number of practical and
ments into the relevant normative acts shall legal difficulties arises. Accordingly, in order
take place. to perform international obligations of Geor-
204
K. TOTLADZE, GAPS OF THE LAW OF GEORGIA “ON INTERNATIONAL TREATIES OF GEORGIA”
Bibliography:
1
Please see the Constitution of Georgia of August 24, 1995 Article 6.
2
F.G. Jacobs, S. Roberts (Edited), The Effect of Treaties in Domestic Law, Vol. 7,
Sweet & Maxwell, 1987. p. XXIII-XXXI.
205
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
206
irakli giviaSvili
207
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
208
i. giviaSvili, bolo periodSi ruseTis federaciis mxridan saqarTvelos mimarT ...
209
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
`a) erTi saxelmwifos samxedro Zaleb- samxedro Zalis gamoyeneba da, Sesabamis-
is mier meore saxelmwifos teritoriaze ad, agresiis aqti, rac dadgenilia agre-
SeWra an Seteva, an nebismieri samxedro siis gansazRvrebis Sesaxeb gaeros gener-
okupacia, Tundac droebiTi, romelic aluri asambleis 1974 wlis rezoluciis
aseTi SeWris an Setevis Sedegia, an sxva danarTis me-3 muxlis (b) punqtSi.
saxelmwifos teritoriis an misi nawilis
nebismieri aneqsia samxedro Zalis gamoye-
3.3. Tavdacvis uflebis
nebiT;
gamoyenebis marTebuloba
b) erTi saxelmwifos SeiaraRebuli
Zalebis mier mier meore saxelmwifos gaeros wesdebis 51-e muxlis Tanaxmad,
teritoriis dabombva, an erTi saxelmwi- gaeros wevr saxelmwifos aqvs Tavdacvis
fos mier meore saxelmwifos teri- ufleba im SemTxvevaSi, Tu samxedro Set-
toriis winaaRmdeg raime sxva saxis iar- eva ganxorcieldeba mis winaaRmdeg. am
aRis gamoyeneba; muxlis mixedviT, Tavdacvis mizniT sam-
c) erTi saxelmwifos SeiaraRebuli xedro zomebis gamoyeneba daiSveba manam,
Zalebis mier meore saxelmwifos navsad- sanam uSiSroebis sabWo miiRebs saTanado
gurebis an sanapiroebis blokada;
zomebs saerTaSoriso mSvidobisa da usaf-
d) erTi saxelmwifos SeiaraRebuli
rTxoebis aRsadgenad. Tavdacvis ufleb-
Zalebis mier meore saxelmwifos saxmele-
is gamoyenebis SemTxvevaSi, saxelmwifo
To, sazRvao an sahaero Zalebze Seteva;
valdebulia, uSiSroebis sabWos miawodos
e) erTi saxelmwifos mier SeiaraRebu-
informacia gatarebuli TavdacviTi zo-
li Zalebis gamoyeneba im saxelmwifos te-
mebis Taobaze. Tumca unda aRiniSnos,
ritoriaze, sadac imyofeba mimReb saxel-
rom, marTalia, samxedro Seteva avtoma-
mwifosTan SeTanxmebiT, rodesac Zalis
turad warmoSobs wesdebis me-2 muxlis me-
gamoyeneba arRvevs aseTi SeTanxmebis pi-
4 punqtis (anu Zalis gamoyenebis akrZal-
robebs an SeTanxmebis vadis Sewyvetis Sem-
vis principis) darRvevis prezumfcias, am
deg maT teritoriaze yofnis nebismieri
muxlis darRveva yovelTvis ar kvalifi-
gaxangrZliveba;
cirdeba samxedro Setevad 51-e muxlis
f) erTi saxelmwifos mier ganxorcie-
mniSvnelobiT, 12 – 51-e muxlSi naxsenebi
lebuli qmedeba, romelic nebas rTavs me-
samxedro Seteva saxezea mxolod maSin,
ore saxelmwifos, raTa misi teritoria
gamoyenebul iqnes am ukanasknelis mier rodesac samxedro Zala gamoyenebulia
mesame saxelmwifos winaaRmdeg agresiis SedarebiT farTo masStabebiT da arsebi-
aqtis gansaxorcieleblad; Ti xasiaTis SedegebiT (ubralo sasazRv-
g) erTi saxelmwifos mier, an misi saxe- ro incidentebi, magaliTad, erTi saxel-
liT, SeiaraRebuli bandebis, jgufebis, mwifos sasazRvro samxedro patrulis
araregularuli SenaerTebis an daqira- mier meore saxelmwifos sazRvris gadak-
vebuli pirebis gagzavna, romlebic axor- veTa ganixileba rogorc me-2 muxlis me-4
cieleben samxedro Zalebis moqmedebebs punqtis darRveva, magram ara rogorc
meore saxelmwifos winaaRmdeg iseTi sim- samxedro Seteva, 51-e muxlis Sesabamis-
ZimiT, rom ganixilebian rogorc zemoT ad).13 unda aRiniSnos, rom gaeros wesdeb-
CamoTvlili aqtebi, an maTSi arsebiTi mo- is komentarebis mixedviT, gaeros gener-
nawileobis miReba~. aluri asambleis 1974 wlis rezoluciaSi
saqarTvelos konstituciisa me-3 CamoTvlili agresiis aqtebi (maT Soris,
muxlisa da saxelmwifo sazRvris Sesaxeb zemoT xsenebuli me-3 muxlis (b) punqtiT
saqarTvelos kanonis me-2 muxlis Tanax- gaTvaliswinebuli moqmedeba) SesaZlebe-
mad, saqarTvelos teritoria moicavs sa- lia, miCneul iqnes 51-e muxlSi miTiTebu-
qarTvelos teritoriis sahaero sivrc- li samxedro Setevis magaliTad.14 Sesaba-
es, Sesabamisad, ucxo saxelmwifos gama- misad, erTi saxelmwifos mier meore sax-
nadgureblis mier saqarTvelos Sinagan elmwifos teritoriis mimarT samxedro
saqmeTa saministros upiloto (mzveravi) Zalis gamoyenebis SemTxvevaSi, dazarale-
TviTmfrinavis Camogdeba saqarTvelos bul saxelmwifos SeuZlia, hqondes pre-
sahaero sivrceSi udavod aris saqarTve- tenzia, gaeros wesdebis 51-e muxlis Tana-
los saxelmwifos teritoriis mimarT xmad, Tavdacvis uflebis gamoyenebaze.
210
i. giviaSvili, bolo periodSi ruseTis federaciis mxridan saqarTvelos mimarT ...
211
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
212
i. giviaSvili, bolo periodSi ruseTis federaciis mxridan saqarTvelos mimarT ...
1
`6. adastureben ra, rom afxazeTi aris saqarTvelos ganuyofeli nawili,
Tanamegobrobis monawile saxelmwifoebi saqarTvelos mTavrobasTan
SeuTanxmeblad:
a) ar ganaxorcieleben savaWro-ekonomikur, finansur, satranspor-
to, an sxva operaciebs afxazTa mxaris xelisuflebasTan;
b) ar daamyareben oficialur kontaqtebs afxazeTis teritoriaze
arsebuli struqturebis warmomadgenlebTan an Tanamdebobis pirebTan,
agreTve, maT mier Seqmnili SeiaraRebuli formirebebis wevrebTan.
7. damoukidebel saxelmwifoTa Tanamegobrobis monawile saxelmwi-
foebi ar dauSveben TavianT teritoriebze afxazTa mxaris xelisuflebis
warmomadgenlobebs, agreTve pirebs, romlebic oficialurad warmoad-
genen am xelisuflebas~. `afxazeTSi, saqarTvelo, konfliqtis daregu-
lirebis zomebis Taobaze~ dsT-is saxelmwifos meTaurTa sabWos 1996 wlis
19 ianvris gadawyvetileba. ix.: (qarTuli teqsti) <http://www.rrc.ge/law/
Gadackyvet 1996_01_19_q.htm?lawid=1148&lng_3=ge>, (inglisuri teqsti)
<http://www.rrc.ge/law/gad_ 1996_01_19_e.htm?lawid=1148&lng_3=en>
2
saerTaSoriso saxelSekrulebo samarTlis Sesaxeb venis konvenciisaTvis
ix. Malcolm D. Evans Blackstone’s International Law Documents (Blackstone
Press, 2001).
3
Ðåøåíèå Ñîâåòà Ìèíèñòðîâ Èíîñòðàííûõ Äåë 25 àïðåëÿ 2007 ãîäà Î
ðåêîìåíäàöèÿõ Êîíñóëüòàòèâíîãî êîìèòåòà ðóêîâîäèòåëåé ïðàâîâûõ ñëóæá
ìèíèñòåðñòâ èíîñòðàííûõ äåë ãîñóäàðñòâ-ó÷àñòíèêîâ Ñîäðóæåñòâà
Íåçàâèñèìûõ Ãîñóäàðñòâ “Î ìåòîäè÷åñêèõ ðåêîìåíäàöèÿõ ïî ðàçðàáîòêå
ïðîåêòîâ ìåæäóíàðîäíûõ äîãîâîðîâ, çàêëþ÷àåìûõ â ðàìêàõ Ñîäðóæåñòâà
Íåçàâèñèìûõ Ãîñóäàðñòâ” è “Î ðåøåíèÿõ îðãàíîâ Ñîäðóæåñòâà Íåçàâèñèìûõ
Ãîñóäàðñòâ”.
4
ix.: (qarTuli teqsti) < http://www.rrc.ge/law/ gadawk 1997_03_28_q.htm?lawid=
1158&lng_3=ge>, (inglisuri teqsti) <http://www.rrc.ge/law/gad1_1997_03_28_
e.htm?lawid=1158&lng_3=en>
5
ix.<http://www.echr.coe.int/ECHR/EN/Header/Basic+Texts/Basic+Texts/
The+European+Convention+on+Human+Rights+and+its+Protocols/>
6
ix. Malcolm D. Evans Blackstone’s International Law Documents (Blackstone
Press, 2001).
213
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
7
Êîíâåíöèÿ î ïðàâîâîé ïîìîùè è ïðàâîâûõ îòíîøåíèÿõ ïî ãðàæäàíñêèì,
ñåìåéíûì è óãîëîâíûì äåëàì (22 ÿíâàðÿ 1993 ã., ã. Ìèíñê).
8
ix. <http://conventions.coe.int/Treaty/en/Treaties/ Html/030.htm>
9
ix. <http://www.un.org/aboutun/charter/>
10
B. Simma (ed.), The Charter of the United Nations: A Commentary (Oxford:
Oxford University Press, 2002), p. 117.
11
ix. <http://daccessdds.un.org/doc/RESOLUTION/ GEN/NR0/739/16/IMG/
NR073916.pdf?OpenElement>
12
B. Simma (ed.), The Charter of the United Nations: A Commentary (Oxford:
Oxford University Press, 2002), p. 796.
13
iqve.
14
iqve.
15
iqve, gv. 722.
16
iqve.
17
ix. <http://untreaty.un.org/cod/icc/statute/romefra. htm>
18
ix. <http://daccessdds.un.org/doc/UNDOC/GEN/ N99/172/89/PDF/
N9917289.pdf?OpenElement>
19
ix. D. Kumbaro, The Kosovo Crisis in an International Law Perspective: Self-
Determination, Territorial Integrity and Nato Intervention (Final Report, 2002,
Nato, Office of Information and Press).
20
EC Declaration on the “Guidelines on the Recognition of New States in Eastern Europe and
in the Soviet Union” (16 December 1991), Annex 1.
214
IRAKLI GIVIASHVILI
215
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
from the 1996 Decision (this would be rele- Tskhinvali region.The same Decree estab-
vant if the Decision had a status of interna- lished the list of official documents that shall
tional treaty in the Russian Federation) with be issued by the de-facto organs of Abkhazia
the former. However, withdrawing from the and Tskhinvali regions to natural persons, as
1996 Decision on 6 March 2008 does not au- well as recognized validity of the registration
thorize the Russian Federation to undertake of the legal entities registered in Abkhazia and
activities with the Abkhaz separatist regime Tskhinvali region in accordance with the local
against the territorial integrity of Georgia, as: legislation; in line with the afore mentioned
1) The international law in general rec- Decree the Federal bodies of the executive
ognizes protection of: a) the principle of invio- branch of the Russian Federation are charged
lability of territorial integrity of a state; b) as to cooperate with and provide mutual legal
well as the principle of non-interference into assistance to the Abkhazia and Tskhinvali re-
domestic matters of a state and c) the princi- gion in civil, family, and criminal matters. De-
ple of integrity of state bounderies. riving from the interests of persons permanent-
2) Apart from the 19 January, 1996 De- ly residing in Abkhazia and the Tskhinvali re-
cision of the Heads of States of the CIS, from gion the territorial bodies of the Ministry of
which the Russian side withdrew, the latter has Foreign Affairs of the Russian Federation are
recognized territorial integrity of Georgia and charged to perform consular duties; concur-
thus unlawfullness of the self-proclaimed re- rently the consideration of the additional pro-
gime of Sukhumi, in accordance with other posals for the further enhancement of coop-
analogous decisions of the Heads of States of eration with Abkhazia and the Tskhinvali re-
the CIS. As an example the following can be gion are envisaged.
reffered to: The Decision of 19 May 1996 on The above mentioned task given by the
the Presence and Extending the Mandate of President of the Russian Federation to the
the Collective Peacekeeping Forces in the Government and the actions undertaken lately
Conlifct Zone of Abkhazia, Georgia; The 28 by the Russian Federation with regard to
March 1997 Decision on Implementation of the Georgia do clearly contradict with the univer-
Measures for Conflict Settlement in Abkhazia, sally recognized norms enshrined in both in-
Georgia;4 The 8 May 1998 Decision on Addi- ternational customary and codified laws, which
tional Measures with regard to the Settlement represent the cornerstone of the internation-
of the conflict in Abkhazia, Georgia etc. al system and are supported by the United Na-
3) The principle of the territorial integrity tions Charter, the 1975 Helsinki Final Act, as
of Georgia is reinforced by the Unied Nations well as by the founding documents of all the
Security Council Resolutions regarding the universal or regional (inter alia the CIS) inter-
conflict in Abkhazia, Georgia ; national organizations.
4) Militarisation of the separatist regimes The actions undertaken by the Russain
may be considered as creating threats to Federation which were "reasoned" by the pro-
peace, which is outlawed by the Charter of the tecting the citizens of the Russian Federation in
United Nations (Chapter VII of the Charter of the conflict zone, are not compliant with the gen-
the United Nations - Action with Respect to eral obligation stemming from the European
Threats to the Peace, Breaches of the Peace, Convention for the Protection of Human Rights
and Acts of Aggression, Articles 39-51). and Fundamental Freedoms. In particular, the
Article 1 of the Convention obliges the High
2. THE TASK ASSIGNED BY THE 16 APRIL
Contracting Parties to secure the protection of
2008 DECREE OF THE PRESIDENT OF THE
the rights only within their jurisdiction5.
RUSSIAN FEDERATION TO THE GOVERNMENT
The decision about granting the territorial
OF THE RUSSIAN FEDERATION REGARDING
bodies of the Ministry of Foreign Affairs of the
ABKHAZIA AND SOUTH OSSETIA
Russian Federation in the Krasnodar Kray and
the Republic of North Ossetia-Alania, in case
On 16 April, 2008 the President of the of such a need the authority to undertake con-
Russian Federation assigned the Governmnet sular duties, violates the 1963 Vienna Con-
of the Russian Federation a task to commence vention on Consular Relations6. The decision
direct cooperation with the representatives of to have mutual legal cooperation with the sep-
the de-facto authorities of Abkhazia and the aratist regimes in civil, family and criminal
216
I. GIVIASVILI, INTERNATIONAL LEGAL ASSESSMENT OF THE RECENT STEPTS TAKEN BY THE RUSSIAN...
matters, violates the 1993 CIS Convention on against the sovereignty, territorial integrity or
Legal Assistance and Legal Relations in Civil, political independence of another State. Ac-
Family, and Criminal Matters7 and the 1959 cording to Article 2 of the Resolution, if a state
European Convention on Mutual Assistance uses armed force in contravention of the Unit-
in Criminal Matters8. Respectively, the viola- ed Nations Charter, this will constitute prima
tion of the principle of discharging international facie evidence of an act of aggression. How-
obligations in good faith is evident. Yet anoth- ever, it must be also mentioned that accord-
er principle established in international law ing to the same Article, the United Nations Se-
and supported by the 1969 Vienna Conven- curity Council may, in conformity with the Char-
tion on the Law of Treaties – pact sunt ser- ter, conclude that a determination that an act
vanda – is also violated. of aggression has been committed is not jus-
tified if the committed act was not of sufficient
gravity. The Article 3 of the Resolution pro-
3. INTERNATIONAL LEGAL ANALYSIS
vides for the acts, which, if committed regard-
OF THE SHOOTING DOWN THE
less of a declaration of war shall qualify as an
UNMANNED (SPY) PLANE OF THE
act of aggression:
MINISTRY OF INTERIOR OF GEORGIA
a) the invasion or attack by the armed forc-
On 20 April, 2008 the unmanned (spy) es of a State of the territory of another State,
plane of the Ministry of Interior of Georgia was or any military occupation, however tempo-
shot down by a fighter in the airial space of rary, resulting from such invasion or attack,
Georgia, in particular in the Autonomous Re- or any annexation by the use of force of the
public of Abkhazia. As allaged by the Geor- territory of another State or part thereof;
gian side, the plane was shot down by the b) Bombardment by the armed forces of a
fighter of the Russian Federation. There shall State against the territory of another State or
be an internaitonal legal appraisal of the fact the use of any weapons by a State against
by Georgia. the territory of another State;
c) The blockade of the ports or costs of a
State by the amed forces of another State;
3.1 Principle of Prohibition of d) An attack by the armed forces of a State
Use of Force on the land, sea or air forces, or marine and
Article 2(4) of the United Nations Charter9 air fleets of another State;
determines the principle of prohibition of use e) The use of armed forces of one State
of force; in particular it stipulates that all Mem- which are within the territory of another State
with the agreement of the receiving State, in
ber states of the United Nations shall refrain
contravention of the provisions provided for
from the threat or use of force against the ter-
in the agreement or any extention of their pres-
ritorial integrity or political independence of
ence on such territory beyond the termination
any state. It is apt to mention here that armed
of the agreement;
force is considered in the mentioned article
f) The action of a State in allowing its ter-
under the use of force.10
ritory, which it has placed at the disposal of
Shooting down of the unmanned (spy)
another State, to be used by that other State
plane of the Ministry of Interior of Georgia by
for perpetrating an act of aggression against
other state does certainly constitute a viola-
the third State;
tion of the principle of prohibition of use of
g) The sending by or on behalf of a State
force, as safeguarded in the Article 2(4) of the
of armed bands, groups, irregulars or merce-
United Nations Charter.
naries, which carry out acts of armed force
against another State of such gravity as to
3.2 Act of Aggression
amount to the acts listed above, or its sub-
In 1974 the United Nations General As- stantial involvement therein.
sembly adopted the Resolution 3314 about the According to the Article 3 of the Constitu-
deifinition of aggression.11 According to the tion of Georgia and the Article 2 of the Law of
Article 1 of the the mentioned Resolution, ag- Georgia on State Boundaries the territory of
gression is a use of armed force by a State Georgia includes the air space of Georgia, re-
217
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
spectively, shooting down by a fighter of a for- right of self-defense as provided for by the
eign state of the unmanned (spy) plane of the Article 51 of the United Nations Charter.
Ministry of Interior of Georgia does without any
doubt constitute a use of armed force against 3.4 Chapter VII of the United Nations
the Georgian state territory and correspond- Charter – the Actions with respect to
ingly this constitutes the act of aggression, as Threats to the Peace, Breaches of the
defined by the Article 3 (b) of the 1974 United Peace and Acts of Aggression (Art. 39-51)
Nations General Assembly Resolution.
According to the Article 39 of the Unted
3.3. Relevance of the Use of Nations Charter, the Security Council shall
the Right of Self-defense determine the existence of any threat to the
peace, breach of the peace, or act of aggres-
According to the Article 51 of the United sion and shall decide what measures shall be
Nations Charter, a Member of the United Na- taken in accordance with Articles 41 and 42,
tions possesses the inherent right of self-de- to restore or maintain international peace and
fense if an armed attack occurs against it. security.
According to the mentioned article, resorting The Security Council, acting within the
to armed forces for the purpose of self-de- contecxt of the Article 39, when establishing
fense is permitted until the Security Council an act of aggression, uses the definition as
has taken measures necessary to maintain provided for by the UN General Assembly.15
international peace and security. In case of However, establishing an act of aggression by
the Security Council within the meaning of the
using the right of self-defense, the state is
Article 39 represents a political decision and
obliged to immediately report to the Security
there have been cases when the Security
Council on the measures taken by it in the
Council have not recognized certain short
exercise of the right of self-defense. However
term armed activities as aggression.16
it must be mentioned that even though the
In case of establishing a threat to the
armed attack automatically triggers the right
peace, breach of the peace and the act of
to act contrary to the principle established by
aggression, in accordance with the Article 41,
the Article 2(4) of the UN Charter (i.e. the prin-
the Security Council may decide to undertake
ciple of prohibition of use of force), the viola-
measures not involving the use of armed force
tion of the mentioned paragraph is not always
and it may call upon the Members of the Unit-
qualified as an armed attack within the mean- ed Nations to apply such measures (for ex-
ing of the Article 51 of the Charter.12 An armed ample, interruption of econoic relations and
attack, as provided for in the Article 51, is ex- of rail, air, sea, and postal communication;
ercised only when the armed force is used in severance of diplomatic relations).
a relatively wide scale, inflicting the substan- If the measures provided for in Article 41
tial outcomes (simple accidents at the state prove to be inadequate, the Security Council
boundaries, such as for example, crossing by may, in accordance with the Article 42, take
a border patrol police of a state the border such action by air, sea, or land forces as may
line of another state will be considered a vio- be necessary to restore international peace
lation of Article 2(4), but not an armed attack and security.
within the meaning of the Article 51).13 It must However, it must also be taken into con-
be mentioned that according to a Commen- sideration that according to the Article 27 of
tary to the United Nations Charter, the acts of the United Nations Charter the Security Council
aggression provided for in the 1974 United makes a decision by a majority of affirmative
Nations General Assembly Resolution (includ- vote (of minimum 9 members), including the
ing an act envisaged by the above mentioned concurring votes of the permanent members
Article 3(b)) may be considered as an instance (which icludes the Russian Federation as well).
of an armed attack, as provided for in the Ar- There is a possibility for Georgia to apply
ticle 51.14 Correspondingly, if a state uses an to the Security Council in order to determine
armed force against the territory of another the act of aggression based on the Article
state, an injured state may claim to use the 39, however taking into account that the Rus-
218
I. GIVIASVILI, INTERNATIONAL LEGAL ASSESSMENT OF THE RECENT STEPTS TAKEN BY THE RUSSIAN...
219
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
the principle of self-determination will super- States? It is important to consider other simi-
sede the principle of territorial integrity of a lar situations in this respect. For example, Pal-
State, is devoid of any international legal estine is recognized by over 100 States, how-
grounds. The recognition of subjects used to ever up to now it is neither considered to be
take place before the recognition of Kosovo an independent state and nor it is a UN mem-
and will be occurring in the future as well; and ber-state. Taiwan is recognized by 24 States,
there is no ground based on which it may be including the Holy See, however it is not a UN
claimed that the recognition of Kosovo will play member-State and is not considered to be a
the decisive role in destroying the existing subject of international law. Northern Cyprus
balance between the principle of self-deter- Republic is only recognized by Turkey and it
mination and the principle of territorial integri- is beyond any consideration that it may be
ty in international law. recognized by the international community as
It may be mentioned here as an example an independent State and a subject of inter-
that based on the principle of self-determina- national law.
tion the decolonisation on the African conti- It must be mentioned that there is no con-
nent took place, the Soviet Union as well as cretely prescribed legally binding universal
Yugoslavia was dissolved, and Montenegro got norm of international law, regulating the crite-
independence not long ago. East Timor was ria of recognition. However, there are certain
separated from Indonesia. This process has documents and norms referring to the justi-
not commenced with the so called Kosovo’s fied basis of the recognition. The first such a
possible precedent and will neither proceed norm is that the realisation and recognition of
with it. This is the process, which takes place the principle of self-determination is justified
within the constraints of the international law. only in case when an armed aggression is
There are numerous international treaties exercised against the population of the sub-
in force, which confirm both – the principle of ject and they are not entitled to economic,
territorial integrity, as well as the principle of cultural and political identification. As regards
self-determination.19 There is an interaction the situations, when there are no military mea-
between the two principles, and the recogni- sures exercised against the local population
tion of individual subjects, such as for exam- and they are given possibility to exercise and
ple Kosovo, can not violate the interplay de- develop democratic mechanisms within the
riving from these international documents. framework of the big subject, then the recog-
The question emerges – in terms of the nition is not justified. IT is important to recall
international law what may follow the recogni- here the EC Declaration on the `Guidelines
tion of the Autonomous Republic of Abkhazia and on the Recognition of New States in Eastern
the Tskhinvali region as independent states Europe and in the Soviet Union', which was
by the Russian Federation and/or any other adopted in 1991.20
1
"Confirming that Abkhazia is an integral part of Georgia, the member-states of
the Commonwealth of Independent States, without consent of the Government of
Georgia:
a) will not exercise trade-economic, financial, transport or other operations
with the authorities of the Abkhaz side;
b) Will not engage themselves in official contacts neither with the representa-
tives or officials of the structures established in the territory of Abkhazia, nor with
the members of military formations of Abkhazia.
7. Member-states of the Commonwealth of Independent States will not permit
the functioning of representations of the authorities of neither the Abkhaz side in their
territories, nor the persons in a capacity of official representative of those authorities"
See: Decision Taken by the Council of the Heads of States of the Common-
wealth of Independent States on Measures for Settlement of the conflict in Abkha-
zia, Georgia.
See: The Georgian text at: http://www.rrc.ge/ law Gadackyvet_1996_01_19_
q.htm?lawid=1148&lng_3=ge
220
I. GIVIASVILI, INTERNATIONAL LEGAL ASSESSMENT OF THE RECENT STEPTS TAKEN BY THE RUSSIAN...
221
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
mariam gociriZe
222
m. gociriZe, fizikuri da iuridiuli pirebis diplomatiuri dacva saerTaSoriso sajaro ...
223
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
224
m. gociriZe, fizikuri da iuridiuli pirebis diplomatiuri dacva saerTaSoriso sajaro ...
225
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
226
m. gociriZe, fizikuri da iuridiuli pirebis diplomatiuri dacva saerTaSoriso sajaro ...
227
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
228
m. gociriZe, fizikuri da iuridiuli pirebis diplomatiuri dacva saerTaSoriso sajaro ...
229
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
230
m. gociriZe, fizikuri da iuridiuli pirebis diplomatiuri dacva saerTaSoriso sajaro ...
231
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
232
m. gociriZe, fizikuri da iuridiuli pirebis diplomatiuri dacva saerTaSoriso sajaro ...
233
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
vali wertili diplomatiuri dacvis gan- rTlis komisiam didi wvlili Seitana am
xorcielebisas unda iyos moqalaqis uf- mimarTulebiT da, saxelmwifoTa arse-
lebebisa da interesebis dacva da misTvis bul praqtikaze dayrdnobiT, mraval sa-
miyenebuli zianis gamo saTanado dakmayo- kiTxze yvelaze liberaluri gadawyveti-
filebis uzrunvelyofa. swored am mizan- leba SemogvTavaza. saerTaSoriso samar-
sa da ideaze unda iyos morgebuli yvela Tali swrafad ganviTarebadi dargia. vi-
formaluri, proceduruli, Tu sxva sax- medovnebT, uaxloes momavalSi yvela ze-
is winapiroba, rac aucilebelia diplo- moaRniSnuli problema gadawydeba da
matiuri dacvis ganxorcielebisaTvis. diplomatiuri dacva ufro metad miuax-
rogorc naSromis ZiriTad nawilSi lovdeba im mizans, rasac saxelmwifos
vnaxeT, diplomatiuri dacvis sferoSi mier sakuTari subieqtebis uflebebisa
SeiniSneba dadebiTi da sakmaod saimedo da interesebis dacva hqvia
tendenciebi. gaeros saerTaSoriso sama-
1
` Shelter from the Storm: Rethinking Diplomatic Protection of Dual Nationals in
Modern International Law~ (SemdgomSi – Shelter from the Storm), Craig Forcese,
George Washington International Law Review, George Washington University,
2005, p. 1.
2
Shelter from the Storm, p. 472; CveulebiTi norma aris samarTlis normis
saxiT damkvidrebuli sayovelTao praqtika, ix. Article 38(1)(a), Statute of
the International Court of Justice, http://www.icj-cij.org/documents
3
sasamarTlo praqtika da saerTaSoriso samarTlis maRalkvalificiur
mecnierTa Sromebi. ix. Article 38(1)(d), Statute of the International Court of
Justice.
4
I.L.C., Report of the International Law Commission on the work of its fifty-sixth
session (3 May-4 June and 5 July-6 August 2004) UN Doc. A/59/10, p.22.
5
I.L.C., Report of the International Law Commission on the work of its fifty-eighth
session (2006) UN Doc. A/61/10 (SemdgomSi - Report of the International Law
Comission 2006), p. 13.
6
saerTaSoriso samarTlis komisiis wevrTa naSromebi unda ganvixiloT
rogorc maRalkvalificiur mecnierTa Sromebi marTlmsajulebis saer-
TaSoriso sasamarTlos wesdebis 38(1)(d) muxlis konteqstSi. ix. Article
2(1), Statute of the International Law Commission, Adopted by the General As-
sembly in its Resolution 174 (II) of 21 November 1947.
7
Mavrommatis Palestine Concessions Case, p. 12.
8
Article 1: Definition and Scope; Draft Articles on Diplomatic Protection, Interna-
tional Law Commission,fifty-eighth session, 2006 (SemdgomSi - Draft Articles on
Diplomatic Protection)
9
ix. Malcolm N. Shaw, `International Law ~ (SemdgomSi – M. N. Shaw, `Internation-
al Law~), Fifth Edition, Cambridge University Press, 2003, p. 733.
10
Mavrommatis Palestine Concessions Case, p. 12.
11
M.N. Shaw, `International Law~, p. 722.
12
`Case Concerning the Barcelona Traction, Light and Power Company, Limited~
(Belgium v. Spain) Second Face, Judgment of 5 January 1970I.C.J Reports, p. 44
13
ix. iqve, gv. 44.
14
`First Report on Diplomatic Protraction~, ICL, 52 Session, Doc. A/cn.4/506, 7
March 2000, para. 80.
15
ix. iqve, §80.
16
Report of the International Law Commission 2004, p.28.
17
Article 19(a), Draft Articles on Diplomatic Protection 2006.
18
Report of the International Law Commission 2004, p. 29.
19
`Nationality Decrees Issued in Tunis and Morocco~, PCIJ, Advisory Opinion of 7
February 1923, Series B, No. 4, p.24.
20
Article 3, Hague Convention on Certain Questions Relating to the Conflict of
Nationality Laws, 1930.
234
m. gociriZe, fizikuri da iuridiuli pirebis diplomatiuri dacva saerTaSoriso sajaro ...
21
`Nationality Decrees Issued in Tunis and Moroc ~, p. 24, ix. Report of the Inter-
national Law Commission 2004, pp. 30-31.
22
Article 4, Draft Articles on Diplomatic Protection 2006.
23
Article 9(1), Convention on the Elimination of all forms of Discrimination against
Women, 1979.
24
Report of the International Law Commission 2006, p.52.
25
`Nationality Decrees Issued in Tunis and Morocc~, p. 24.
26
24-e muxli, saqarTvelos kanoni saerTaSoriso kerZo samarTlis Sesax-
eb, 29 aprili, 1998, 1362 – Iis.
27
ix.`Case Concerning the Barcelona Traction~.
28
Article 9, Draft Articles on Diplomatic Protection 2006.
29
Report of the International Law Commission 2006, p.58
30
ix.`Case Concerning the Barcelona Traction~, para 44.
31
ix. iqve, §44.
32
ix. iqve, §43.
33
Report of the International Law Commission 2006, pp. 55-70.
34
`Case Concerning the Barcelona Tractin~, para 65.
35
ix. iqve, § 92.
36
es praqtika gamoyenebul iqna aseve adamianis uflebaTa evropuli sasama-
rTlos mier. ix. Agrotexim case, ECHR., Series A (1995), No. 330-A, para. 68.
37
`Case Concerning the Barcelona Tract n~, para 66.
38
Article 11, Draft Articles on Diplomatic Protection 2006.
39
Report of the International Law Commission 2006, p. 61-62.
40
`Case Concerning the Barcelona Traction~, para 92.
41
`Case concerning Electronica Sicula S.p.A~, United States of America v. Italy,
ICJ. Reports, 20 July 1989.
42
Article 11§b, Draft Articles on Diplomatic Protection 2006.
43
`Case Concerning the Barcelona Tracti n~, para 46-47.
44
me-8 muxlis pirveli nawili, saqarTvelos samoqalaqo kodeqsi, 1976 wlis
28 ivnisi, 786 – Iis.
45
ix. Case of Certain German Interests in Polish Upper Silesia, P.C.I.J. Reports,
Series A, No. 7.
46
ix. Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribu-
nal, P.C.I.J. Reports, Series A/B, No. 61.
47
Article 13, Draft Articles on Diplomatic Protection 2006.
48
Report of the International Law Commission 2006, p. 70.
49
`Case Concerning the Barcelona Traction~, para 38.
50
Report of the International Law Commission 2006, p. 70.
51
`Nottebohm Case~, p. 13.
52
ix. Brownlie, Ian, Principles of Public International Law (SemdgomSi - I. Braun-
lie, Principles of Public International Law), 5th edition, 1998, p. 391.
53
Article 3, Hague Convention 1930; Chapter V, ETS 166 – European Convention on
Nationality, 6.Sptember 1997.
54
ix. Case of Nottebohm.
55
I. Brownlie, Principles of Public International Law, p. 390.
56
Report of the International Law Commission 2006, p. 42.
57
Article 6(1), Draft Articles on Diplomatic Protection 2006.
58
Article 6(2), Draft Articles on Diplomatic Protection 2006.
59
Article 4, Hague Convention 1930.
60
Case of Raparation of Injuries Suffered in the Service of the Unoted Nations,
I.C.J. General List No 4, April 11, 1949, p. 186.
61
Shelter for the Storm, pp.494-495.
62
Shelter for the Storm, gv. .495.
63
Report of the International Law Commission 2006, p. 45.
64
The Role of International Human Rights and the Law of Diplomatic Protection in
Resolving Zimbabve’s Land Crisis, Jonathan Shirley, Boston College Interna-
tional and Compatarive Law Review, Winter 2004, pp. 170-171.
65
Nasser Esphahanian v. Bank Tejarat, Iran-United States Claims Tribunal, Case
No 157, Awards No 31-157-2, 29. 03.1983, p. 12.
235
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
66
Article 7, Draft Articles on Diplomatic Protection 2006.
67
Report of the International Law Commission 2006, pp. 43-47.
68
Nasser Esphahanian v. Bank Tejarat, p. 17.
69
Report of the International Law Commission 2006, p. 46.
70
Nasser Esphahanian v. Bank Tejarat, p. 15.
71
Report of the International Law Commission 2006, p. 46.
72
`Case Concerning the Barcelona Traction, Light and Power Company, Limited~,
Separate Opinion of Judge Jessup, para 48, Separate Opinion of Judge Fitzma-
rice, para. 63.
73
`The Continuous Nationality of Claims Principle: Its Historical Development And
Curren Relevance to Investor-State Investment Disputes~, Matthe S. Duchesne,
George Washington University, 2004, p. 4.
74
ix. iqve, gv.4.
75
ix. iqve, gv.4.
76
Case of Loewen Group Inc. v. USAICSID Reports, vol. 7 (2005), p. 442 at para.
225 (ix. Report of the International Law Commission 2006, p. 37).
77
Articles 5 and 10, Draft Articles on Diplomatic Protection 2006.
78
Report of the International Law Commission 2006, p. 36.
79
Articles 5, paragraph 1 and 10, paragraph 1, Draft Articles on Diplomatic Protec-
tion 2006.
80
Articles 5, paragraph 2, Draft Articles on Diplomatic Protection 2006; Report of
the International Law Commission 2006, p. 39.
81
Articles 10, paragraph 2, Draft Articles on Diplomatic Protection 2006.
82
Articles 10, paragraph 3, Draft Articles on Diplomatic Protection 2006.
83
ix. iqve, muxli 13.
84
Symposium: State Immunity in Civil Proceedings for Serious Violations of Hu-
man Rights – Torture and State Immunity: Deflecting Immunity, Destroying Sover-
eignty, Lorna McGregor, European Journal of International Law, November, 2007,
p. 910.
236
MARIAM GOTSIRIDZE
237
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
draft) together with the comments was adopt- 3. MAIN ELEMENTS AND PRINCIPLES OF
ed with the first hearing in 2004,4 but in 2006 MECHANISM OF DIPLOMATIC PROTECTION:
the draft was approved with the second hear- THEORY VERSUS PRACTICE
ing.5 Currently, mentioned document of codifi-
cation of international law on diplomatic pro- Diplomatic protection as one complete le-
tection still remains as a draft and does not gal mechanism consists with numerous sepa-
have any binding force other than subsidiary rate elements, in order to put in motion first
means for the determination of main sources separately and further as a one complete
for the Member States of the international com- mechanism it is necessary to comply with cer-
munity.6 tain principles and requirements. In the men-
Permanent Court of International Justice tioned process we face numbers of barriers,
has defined the diplomatic protection as "an which significantly decrease the range of per-
Elementary Principle of International Law", stat- sons who have a real opportunity to enjoy dip-
ing that "a State is entitled to protect its sub- lomatic protection.
ject, when injured by acts contrary to interna-
tional law committed, from whom have been 3.1. Right to Exercise Diplomatic
unable to obtain satisfaction through the or- Protection
dinary channels".7
In accordance with traditional principle of
Commission in the draft norms on the dip-
international law, exercise of diplomatic pro-
lomatic protection defines this instrument as
tection is a prerogative of the State. Perma-
follows: "diplomatic Protection consists of the
nent Court of International Justice in the Case
invocation by a State, through diplomatic ac-
of "Mavrommatis Palestine Concessions" stat-
tion or other means of peaceful settlement, of
ed that while exercising diplomatic protection
the responsibility of another State for an inju-
a State applies its right "to ensure, in the per-
ry caused by an internationally wrongful act
son of its subjects, respect for the rules of in-
of that State to a natural or legal person that
ternational law".10
is a national of the former State with a view to
Exercise of diplomatic protection is the
the implementation of such responsibility."8
right of a State. According to the international
As we see, diplomatic protection is a me-
law, a State is not obliged to protect its citizen
chanism, which may give an opportunity to the
on international level and consequently in
citizen residing abroad to protect his/her vio- case of refusal to exercise protection no lia-
lated rights through his/her own State, in cas- bility shall be imposed. This is caused by the
es, when the violation rises a State liability.9 fact that the States historically avoid granting
Although, shall be noted that exercising dip- individuals with the right in international law to
lomatic protection with all methods is inadmis- initiate a case against the States themselves,
sible. As it is seen in the definition elaborated which is motivated by reasons related to the
by the International Law Commission, exercise principle of State sovereignty and non inter-
of diplomatic protection falls under the frames ference into internal affairs of the State.11 On
of international law only in case of applying the case "Barcelona Traction" Permanent
the remedies of peaceful settlement of dispute. Court of International Justice stated that: "State
It is also interesting that diplomatic protection may exercise diplomatic protection by what-
covers protection of only those nationals who ever means and to whatever extent it thinks
are not involved in diplomatic-representational fit, for it is its own right that the State is assert-
activities abroad on behalf of the State, be- ing... The State must be viewed as the sole
cause such violations are considered as di- judge to decide whether its protection will be
rect violation against a State. Generally this is granted, to what extent it is granted, and when
a legal gist of the mechanism of diplomatic it will cease".12
protection. Thus, as it is already illustrated, first and
We shall endeavor to demonstrate to what the most important obstacle for natural and
extent the diplomatic protection is accessible legal persons to enjoy the protection by a
and realized mechanism, through detailed State of their nationality is nonexistence of
analyze of its main consisting elements and obligation of a State to exercise diplomatic
principles. protection. Therefore, citizen is not able to
238
M. GOTSIRIDZE, DIPLOMATIC PROTECTION OF NATURAL AND LEGAL PERSONS IN INTERNATIONAL ...
force a State to exercise his/her protection in petence [of the States].19 Provision of the same
international law regime. Furthermore, "should content was included in the Convention "on
the natural or legal persons on whose behalf Certain Questions Relating to the Conflict of
[the State exercise diplomatic protection] con- National Laws" of 1930.20
sider that their rights are not adequately pro- Although the exclusive right of each State
tected, they have no remedy in international to determine who are its nationals was recog-
law"13 nized in the context of international law, the
However, in this respect the positive trends case is not so simple, as it is seen. In the
in contemporary practice of the States shall frames of international law mentioned right of
be underscored. Some members of the inter- a state to determine the nationality of a per-
national legal community believe that individ- son is limited.21 In particular, following to the
ual should be entitled to request a State to international law all those persons who under
exercise diplomatic protection as a matter of the jurisdiction of a State are recognized as
right on their behalf. Although limited, there is its nationals, in this case for the purpose of
in fact some State practice to support this diplomatic protection, may not be considered
view.14 Constitutional provisions in a number as nationals of this country at all.
of States recognize the right of individual to As Article 4 of draft Articles formulated by
receive diplomatic protection for injuries suf- the International Law Commission, recogniz-
fered abroad.15 Among these States is Georgia es the right of a State to determine who can
as well. In accordance with Article 13 of the be its national, at the same time establishes
Constitution of Georgia: "Georgia shall pro- the limitation of this right in frames of interna-
tect its citizens irrespective of their location." tional law.22 The Article provides for non-com-
In spite of the abovementioned positive prehensive list of methods of nationality which
trends, the fact remains that traditional princi- complies with international law. Nationality ac-
ple on the right of a State to the exercise dip- quired by birth, descent, naturalization, succe-
lomatic protection still maintains binding force ssion of State totally corresponds to the grounds
in international law. International Law Commis- of acquisition of nationality in the scope of in-
sion refused the proposal on the recognition ternational law. However there are also such
of limited obligation of a State on exercising forms of acquisition of nationality, which are
diplomatic protection.16 However, it could not totally acceptable under domestic law, but are
neglect absolutely these positive trends. Com- unacceptable under international law; For ex-
mission in the draft Articles on diplomatic pro- ample, automatically acquisition of the nation-
tection included Article 19(a)17, which some- ality by a spouse as a result of marriage.23
how recommends a State to not leave without Thus, a person being a national of a State
the State protection especially that citizens, with full rights in accordance with the domes-
who suffered by the significant damage. tic legislation, has a political and legal bound
with it, performs its national obligations in a
3.2. Beneficiaries of the Mechanism good faith, pays taxes, etc, will not be able to
of Diplomatic Protection enjoy State protection, unless its nationality
falls under the definition of "national" follow-
Nationality is a bound between the State ing to international law.
and injured person, which provides the basis Legal Persons. According to the custom-
for exercising diplomatic protection.18 In this ary international law on diplomatic protection
case the term national includes as natural as and international practice on this issue, also
well as legal persons. In defining the national- Articles of draft Articles elaborated by the In-
ity of natural and legal persons, we face cer- ternational Law Commission of the UN, diplo-
tain characters for each of them, for that rea- matic protection covers not only natural but
son this two groups are discussed separately. legal persons as well. Diplomatic protection
Natural Persons. Historically it was a pre- of Legal persons is very important and diverse
rogative of a State to define who its nationals area. Here we have to distinguish protection
were. Permanent Court of International Jus- of corporations and non-profit-making legal
tice on the case "Nationality Decrees in Tunis persons. Furthermore, not only corporations
and Morocco" defined that questions of na- enjoy diplomatic protection but also their
tionality wera in principle within domestic com- shareholders.
239
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
Currently State practice is largely con- On the case of company "Barcelona Traction",
cerned with the diplomatic protection of cor- the most part of a share was in hands of na-
porations. In this case corporation means prof- tionals of Belgium, however, following to the
it-making legal person with limited liability, decision of the Court, Belgium did not have a
whose capital is generally represented by right to exercise diplomatic protection on be-
shares.24 half of the company. But Canada which has
As with natural persons corporations shall been considered as a State having the right
meet certain requirements in order to be con- to exercise diplomatic protection, has not even
sidered as nationals of a particular State. expressed its interest in the fortune of the
Though, it should be also noted that similar to Company.
natural persons, international law provides for With such formalistic approach, the pur-
such high barrier to the corporations that nu- pose of this instrument will not be satisfied to
merous part of them may appear out of the ensure appropriate diplomatic protection for
application of the institute of this international the corporations. In such a case, as an alter-
law. As it is already stated above, in this case native criteria, by applying genuine economic
the issue of granting of nationality to a corpo- interest and criteria of effective bound the aim
ration is within the internal jurisdiction of a of the protection of corporation would be bet-
country.25 But this domestic competence does ter achieved.
not have any power for the purposes of diplo- International Law Commission, tried to re-
matic protection as in case of natural persons. duce the mentioned barriers of the nationality
The States to determine nationality of le- and in Article 9 of the draft Articles has left
gal person, are applying the different tests, only one criteria – the place of incorporation.
weather it is the State of registration, head- Though, much important success out of pro-
quarter or simply country of location of repre- cedures of this exception was the provision
sentation. For example, Georgia in order to included into this Article. "However, when the
determine the legal capacity of the legal per- corporation is controlled by nationals of an-
son applies the law of the country of factual other State or States and has no substantial
location of the administration of legal person.26 business activities in the State of incorpora-
International Court of Justice on the "case tion, and the seat of management and the fina-
concerning the Barcelona Traction" deter- ncial control of the corporation are both loca-
mined that in accordance with the traditional ted in another State, that State shall be rega-
norms of international law, right of diplomatic rded as the State of nationality."28 This is extre-
protection of the corporation shall be granted mely important success, the criteria of estab-
to that State where the company is incorpo- lishing the nationality has been simplified, and
rated and has a registered representation.27 also those countries have been taken into con-
Thus, as it is seen the criteria of upholding sideration, which may be much more interest-
the request of the company on nationality is ed to protect the rights of the corporation.
rather high, corporation to be considered as In accordance with fundamental principle
a national of a country shall not only be incor- of the diplomatic protection of corporations a
porated, but shall also have registered repre- corporation is to be protected by the State of
sentation. Whilst, the countries may apply one nationality of the corporation and not by the
of these two tests. State of nationality of the shareholders in a
Furthermore, shall be noted that under corporation.29 Under the interpretation of the
this criteria the States, which have substan- court "for although two separate entities may
tially more economic interests towards the com- have suffered from the same wrong, it is only
pany may remain out of game, rather than one entity whose rights have been infringed."30
those States, which may meet the requirements The decision of the court to grant the State of
of the country of nationality for the purposes incorporation with the exclusive right of diplo-
of diplomatic protection. Particularly in condi- matic protection was motivated with several
tions of contemporary economic and commer- reasons. First, corporation and shareholders
cial relations, company may not have any tie are two different entities. "But the mere fact
with a State of its incorporation, but may have that damage is sustained by both company
a tight bound with any other State or States. and shareholder does not imply that both are
240
M. GOTSIRIDZE, DIPLOMATIC PROTECTION OF NATURAL AND LEGAL PERSONS IN INTERNATIONAL ...
entitled to claim compensation"31. Exclusive damage and consequently, remedy for the
characteristic of the corporation is that the protection of the rights of shareholders re-
responsibility of shareholders is limited and is mains only international justice.35
separated from the rights and responsibilities Therefore, if the corporation "ceases to
of the corporation. The second, foreign share- exist" the State of the shareholder may apply
holder upon the subscription of the capital is the right to exercise the diplomatic protection.36
taking into consideration the risk that the State It shall be noted, that in this case the court
of incorporation may not exercise the discre- applied extremely severe criteria. The corpo-
tion of diplomatic protection of the corpora- ration may formally continue its existence, al-
tion.32 Finally, under interpretation of the court, though in reality be paralyzed, the mentioned
exercise of diplomatic protection by the States was not considered by the court and estab-
of the shareholders will cause the variety of lished that, "only in the event of the legal de-
the disputes. mise of the company are the shareholders
If under the definition of the court, share- deprived of the possibility of a remedy avail-
holder and corporation are two different enti- able through the company".37
ties, then it is unclear why a State of both of Article 11 of draft Articles makes the crite-
them may enjoy equal rights of protection. ria even stricter and states that, cease of ex-
Despite of the fact that responsibility of the istence of the company shall not be reasoned
shareholder is limited in the company, it is in- by the caused injury, which is possible object
conceivable to prove that substantial damage of diplomatic protection.38 The mentioned is
of the company will not have any effect to and motivated by the fact that in this case the di-
injure shareholder. Imagine the situation of the rect infringement of right of corporation takes
shareholder, if only the State of incorporation place and prerogative of diplomatic protection
is granted with the right of diplomatic protec- falls under the State of incorporation.39 Although,
tion and this later will refuse to exercise this we still face with misunderstanding, it is incon-
right. How can be possible to discuss the as- ceivable how the State of incorporation will
sumption of risk in such conditions when fol- exercise the diplomatic protection on behalf
lowing to the contemporary State practice, the of the non-existed corporation.
States as a rule establish obligatory require- Following to the second exception "the
ments in a form of incorporation to the foreign State of the shareholders has a right of diplo-
entrepreneurs. Thus, this can not be consid- matic protection when the State whose respon-
ered as a voluntary risk. Finally, if the prob- sibility is invoked is the national State of the
lem arises in a procedural viewpoint related company".40 Afterwards the mentioned deci-
to variety and quantity of the disputes, it can sion, this exception was followed by States
be also solved by merging the enterprises, mostly under the form of bilateral agreement.
consolidated application of the party with the Though, in the view of practice of court, the
several representatives, or using the princi- judgment of the International Court of Justice
ple of attendance. Shall be also noted that the on the case "concerning Electronica Sicula"41
reality provided by mentioned approach of the is very important. Here the court has really
court will outweigh the procedural difficulties, allowed a mentioned exception, when grant-
in particular, those shareholders frequently ed the United States of America with the right
appear to be without any protection. to protect its two national companies, which
The court allowed two exceptions from its were holding the absolute amount of shares
severe formalistic approach, when a State of of Italian company and which were damaged
the shareholder is entitled to protect the in- by the State of its nationality, Italy. From this
terests of its nationals: a) as an exception from case it is obvious that the court digressed from
the main principles; and b) when directly the formal approach and recognized the
shareholder and his/her rights and interests mentioned exception in favor of the sharehold-
were injured.33 The State of nationality of the er’s State.
shareholder is entitled to exercise diplomatic This exceptions wera taken into consider-
protection as an exception only in two cases: ation by the International Law Commission as
a) when corporation ceases its existence in well, in the draft Articles on diplomatic protec-
the State of incorporation;34 and b) State of tion.42 It is vague why did the Commission de-
the corporation is the author of the caused cide to limit the mentioned exception, while the
241
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
242
M. GOTSIRIDZE, DIPLOMATIC PROTECTION OF NATURAL AND LEGAL PERSONS IN INTERNATIONAL ...
on diplomatic protection of shareholders was national law. Following to the decision of the
extended to members of other legal persons International Court of Arbitration on Salem
by analogy.50 Case the Defendant State is not entitled to put
in question admissibility of a claim of the Ap-
3.3. Principle of "Nationality of Dispute" plicant State by indicating on other State of
nationality.56 The same decision was made by
Mechanism of diplomatic protection is the Italian-American Tribunal on Mergi Case
based on so called "principle of nationality of in 1955.57
dispute". As it was already mentioned above, International Law Commission relied on the
the bond of nationality between the State and same principle upon elaboration of Article 6
the individual alone confers upon the State the of draft Articles. In accordance with this Arti-
right of diplomatic protection.51 Without prov- cle, in case of dual or multiple nationality each
ing formal bond between a State and a per- State may exercise diplomatic protection
son, that is a nationality, it is very difficult to against the third State.58 The commission went
prove that the State has an interest and further and in paragraph 2 of Article 6 deter-
grounds to exercise diplomatic protection on mined that two or more States of nationality may
behalf of this person.52 Principle of nationality jointly exercise diplomatic protection.59
of dispute means, that only the State of na- Now let us see what happens when one
tionality is entitled to exercise the right of dip- State of nationality claims against the other
lomatic protection. This issue can be easily State of nationality. Previously so called doc-
solved when both natural and legal persons trine of "exclusion of responsibility" was dom-
are nationals of the same State. This is more inating in international law, according to which
complicated in case of dual nationality, as fol- exercising diplomatic protection by the one
lowing to the principle of "nationality of dis- State of nationality over the other State of
pute" both States of nationalities are entitled nationality was not allowed. 60 This principle
to exercise diplomatic protection. was emphasized by the ICY as "established
Dual or multiple nationality is not forbid- practice" in a case of "Reparation of Injuries".61
den by international law.53 However dual na- It would be unreasonable to rely on the
tionality raises number of problems for the mentioned practice in contemporary interna-
countries desiring to exercise diplomatic pro- tional law, whilst communication between dif-
tection to their nationals. ferent States and moving business to another
Existence of the bond between the State State have become easier and frequent, while
and a national is necessary in order to exer- in such circumstances people often become
cise diplomatic protection. Consequently, it is national(s) of other States either voluntarily
logical that each State of nationality is entitled or involuntarily. This doctrine would leave nu-
to exercise diplomatic protection against the merous individuals without protection. Fortu-
third State on behalf of person having several nately, international law is avery rapidly de-
nationalities. Despite the abovementioned, veloping field. Although the abovementioned
the International Court of Justice in Nottebo- doctrine was not abolished at all and following
hm Case55 in 1951 referred the issue in a more to universal principle of State sovereignty
complicated way and determined that only could not be abolished, the way out has been
bond of nationality is not enough and exist- found.62 In order to determine whether it was
ence of real tie between the State and a na- possible to exercise diplomatic protection by
tional is necessary. With this the court made one State towards the other State the Ameri-
these existing strict requirements for exercis- can-Italian Tribunal on "Mergi" case estab-
ing diplomatic protection even more severe. lished: Principle … that excludes diplomatic
Wide application of the mentioned text will ex- protection in cases of dual nationality could
tremely limit the availability of exercising dip- not outweigh the principle of effective nation-
lomatic protection, which contradicts to the ality, if such nationality belongs to Applicant
purposes of diplomatic protection to give the State.63 At the same year the principle of ef-
opportunity to a State to protect its national fective nationality was applied by the Interna-
on international level. tional Court of Justice in "Nottebohm" case.
The above mentioned practice does not Although the Court discussed on this issues
comply with the practice established in inter- in a rather different contexts, it played impor-
243
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
tant role in further decision making process in of Peru in the Kingdom of Netherlands.71 How-
relations to dual nationality, for instance nu- ever it shall be mentioned that none of the
merous decisions were made by Italian-Amer- abovementioned factors is decisive and the
ican Tribunal as well as by Iran-American Tri- weight and importance attributed to each fac-
bunal under the principle of effective nation- tor will vary according to the circumstances of
ality.64 In A/18 case Iran-American Tribunal, each case.72
relying on decisions on Mergi and Nottebohm
cases, established that issue of dual nation- 3.3. Principle of "Continuous Nationality"
ality should be solved according to particular
circumstances of each case by defining effec- Second problem concerning the nation-
tive nationality of a citizen.65 The principle of ality is the principle of "continuous nationality".
effective nationality was frequently used in The core of the principle is that only national-
future by the Tribunal, among them, in one of ity tie between the State and a person is not
the cases the Tribunal declared that in present enough to legitimate exercise of diplomatic
case the theory of effective nationality was the protection by the State, but a person shall be
way of solution which was mostly in conformi- a national of a State both for the moment of
ty with the principles of public international committing crime and particular stage of legal
xlaw.66 proceedings. One of the aims of this rule is to
Thus, as we see the contemporary inter- avoid delivering the right of initiating dispute
national law practice aims at making excep- by the nationals of small States to big States.73
tion from the oldest doctrine on "exclusion of According to opinions of highly qualified
responsibility". Furthermore, the Internation- scholars of international law the States give
al Law Commission included these exceptions the obligatory nature the rule that nationality
also in draft Articles. In accordance with Arti- tie must exist both for the moment of injury
cle 7 "a State of nationality may exercise dip- and particular stage. Ian Brownlie noted that,
lomatic protection in respect of a person there is no agreement on the second part of
against a State of which that person is also a this rule; in particular, how long the continuity
national unless the nationality of the former of nationality must last.74 There are several
State is predominant, both at the date of inju- approaches regarding this issue, in particu-
ry and at the date of the official presentation lar, a phase, up to which the continuous na-
of the claim".67 It is obvious that, apart from tionality principle must be protected is differ-
effective nationality necessary requirement is ent: initiation of diplomatic negotiations, filing
to establish dominant bond of nationality at of the claim, signature, ratification or entry into
the date of injury and at the date of the official force of the agreement referring the dispute
presentation of the claim.68 Numerous factors to arbitration, conclusion of the oral hearing,
may be taken into consideration while deter- delivery of judgment and execution of award,
mining effective nationality. As it was men- etc.75 In the opinion of Feller and Oppenheim,
tioned in one of the cases by French-German following the practice of States, more accept-
mixed Tribunal, a person shall be considered able for States is to retain nationality until the
as a national of that country to which he/she official presentation of the claim.76 Though, it
has not only legal but factual bond as well.69 shall be mentioned that several years ago in
This may include the living period in the coun- 2003 International Center for Settlement of In-
try, date of acquiring nationality, place of edu- vestment Disputes (ICSID) arbitral tribunal in
cation, language of education, employment its decision declared that continuity of nation-
and financial interests, place of family life, fam- ality must last until the final judgment of the
ily ties in the State, participation in social and Court.77
public life, taxation, bank accounts, insurance, As we see the abovementioned provision
visits in other State of nationality, possession is one more restricting factor for exercising of
and use of passport, military service, etc.70 In diplomatic protection. In addition if we take into
order to establish effective tie Permanent consideration that a national has to attempt
Court of Arbitration in "Canevaro" case took to resolve a dispute by internal remedies, fur-
into consideration the fact that the person was ther to wait for the decision of the State to ex-
standing for candidacy of the Senate of Peru ercise diplomatic protection on his/her behalf,
and later agreed to become honorary consul initiation of the dispute and conclusion of a
244
M. GOTSIRIDZE, DIPLOMATIC PROTECTION OF NATURAL AND LEGAL PERSONS IN INTERNATIONAL ...
certain stage of the court proceeding, it would in case of liquidation of the corporation in the
be logical to conclude that probability of State of incorporation. Consequently the Com-
changing nationality by a national is rather mission allowed exception and determined a
high. Furthermore, attention shall be given to State continues to be entitled to exercise dip-
the fact that often changing of nationality does lomatic protection in respect of a corporation
not depend on a desire of an individual and it which was its national at the date of injury and
happens automatically, independently from which, as the result of the injury, has ceased
him/her. In such case individual remains with- to exist according to the law of the State of
out any protection. incorporation.83 The regime regarding the prin-
Principle of "Continuous Nationality" cer- ciple on "continues nationality", established in
tainly was envisaged in draft Articles by the relation to corporations extends to non-profit-
International Law Commission. But high qual- making legal persons by analogy.84
ified members of the Commission were more
flexible and allowed some exceptions from this CONCLUSION
rule. The Commission determined that a per-
son must be a national of a State continuous- At the beginning we raised a question, in
ly from the date of injury to the date of official what extend the diplomatic protection is ac-
presentation of the claim to the Court. 78 cessible for an ordinary citizen, whose rights
Though the Commission taking into consider- were violated and injured by action of foreign
ation that there is no agreement in interna- State. Abovementioned detailed analyze of the
tional community on necessity to retain nation- mentioned institute certainly does not provides
ality between these two dates, decided that if for the opportunity to consider diplomatic pro-
continuity can not be proved possession of tection as alternative, accessible and real rem-
nationality on both dates will be considered edy of satisfaction of the citizen.
in accordance with the role on "continuous In the frames of current international law,
nationality."79 The mentioned Principle of "Con- exercise of diplomatic protection falls under
tinuous Nationality" is applicable in respect to the discretion of the State, and it is the discre-
diplomatic protection of both natural and le- tion process during which a person initially is
gal persons.80 The Commission determined forced to conduct negotiations and petition
correctly that if we recognize the Principle of with herl his own State, in order to submit the
"Continuous Nationality" we shall take into dispute to international justice. Especially in
consideration the interests of persons and al- cases when for the violating rights a person
low certain fair exceptions from this rule. It is there is no adequate, accessible and effec-
possible to exercise diplomatic protection on tive remedy, it is totally inadmissible to leave
behalf of natural persons by avoiding the the discretion of exercising diplomatic protec-
present principle if the following conditions are tion to the State. Contemporary State practice
met: a) the person seeking diplomatic protec- inclines to bind a State at least partially to ex-
tion had the nationality of a predecessor State ercise diplomatic protection. Although, until
or has lost his or her previous nationality; b) this mechanism maintains the discretionary
the acquisition of the new nationality is not character, it can not be considered as an ac-
related to exercising diplomatic protection in cessible and alternative remedy for the pro-
respect of this person; c) the acquisition of tection of citizens. Regrettable result which is
the new nationality has taken place in a man- followed by the mentioned discretion was clear-
ner not inconsistent with international law.81 ly illustrated by NGO Amnesty International:
Here the Commission applied the rule stip- The States frequently sacrifice the legal rights
ulating that a State is no longer entitled to ex- of the victims to those political interests, such
ercise diplomatic protection in respect of a as maintenance of friendly relations with a
corporation that acquires the nationality of the State responsible for the violation.85
Applicant State.82 However, the Commission in Analyse provided for by the present pa-
respect with the corporations has allowed both per made clear that non-existence of the obli-
negative and positive exceptions. Authors of gation of diplomatic protection is not the only
the project took into consideration the opin- problem connected to this mechanism. Prior
ion that none of the State may exercise diplo- to the exercise of diplomatic protection there
matic protection on behalf of the corporation are numerous formal and procedural precon-
245
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
ditions, which extremely decreases the num- bers and etc. Bearing into mind the multitude
ber of such cases, when the citizen has a real of all these conditions, and complexity in some
opportunity to exercise diplomatic protection cases, also the aims and interests of foreign
through his/her State. policy of the State of nationality in certain
First most important requirement, related cases,it is hard to discuss how real it is the
to the national bond between a State and vic- expression of good will by the State on exer-
tim, is not limited only to determine such bond. cise of diplomatic protection.
Moreover, shall be defined weather the form Finally, one more factor has to be taken
of obtaining nationality complies with the re- into consideration, which has not been dis-
quirements of international law. Determination cussed in the main part of present paper just
of the issue of nationality to be completely for the simple reason that it is related to the
under the jurisdiction of a State is the most execution of decision of the international court
reasonable and logical. In this case, such in- and not directly connected to the legal mech-
cidents may be avoided when the citizen hav- anism of diplomatic protection. If the violation
ing tight national bond with the State through- of international law by the State is established,
out the years remains without protection only this latter shall pay compensation to the in-
due to the fact that the form of obtaining citi- jured State. Also in this case the State has dis-
zenship contradicts to the requirements of in- cretion whether to pay the compensation re-
ternational law. ceived by the reparation to the violated victim
The issue of citizenship does not end with or not. Commission on International Law left
this. "The principle of continuous nationality" the issue open whether the State is obliged to
following to its vague content may create arti- pay that compensation to the injured person
ficial problems for exercising diplomatic pro- or no, which as form of compensation was re-
tection. Although, the existence of continuous ceived as a result of solving the dispute, initi-
nationality is certainly an essential mandato- ated through exercising diplomatic protection,
ry precondition for exercising diplomatic pro- in favor of injured.
tection, it is still unclear until which level the
Likewise all legal procedures, diplomatic
nationality shall be maintained. Application of
protection certainly involves the satisfaction
such practice which requires the existence of
and performance of range of mandatory re-
national tie until the delivery of final judgment
quirements, procedures and preconditions.
on the case or until its execution is extremely
Mentioned is rather logical and correct, how-
dangerous. In the institution of International
ever, diplomatic protection includes the obli-
Court, execution of justice is rather extended
gation to protect numbers of minor terms, tech-
process. The years are required for only ad-
nical and formal procedures and require-
missibility of some applications, not to men-
ments, which may raise artificial barriers for
tion the consideration of the case and deliv-
exercising this mechanism of protection. Dip-
ery of final judgment, moreover the execution
lomatic protection is a remedy for a State to
of this case. Throughout this entire period
protect its citizen against illegal action of the
change of nationality by a person is not so
other country, as well as for citizens to achieve
unreal. By the strict protection of the principle
the reparation of violated law on international
of "continuous nationality" the citizen may lose
the opportunity of protection in frames of in- level. Thus, the main point while exercising
ternational justice. diplomatic protection shall be the protection
Besides the abovementioned, there are of rights and interests of the citizen and provi-
numbers of other requirements and precon- sion of proper satisfaction for the caused in-
ditions which shall be satisfied for the purpos- juries. All formal, procedural and other kind
es of exercising diplomatic protection by the of preconditions, which are necessary for ex-
State, which may be, exhaustion of domestic ercising diplomatic protection, shall be exact-
remedies, determination of violation of inter- ly adjusted on this aim and idea.
national law in the action of the State, issues As we saw in the main part of the paper, in
related to dual or multiple nationality, taking the filed of diplomatic protection positive and
into consideration the features of exercise of rather reliable trends are evident. The Inter-
diplomatic protection of natural and legal per- national Law Commission of the UN has made
sons and their shareholders, relevant mem- a great contribution in this direction and on
246
M. GOTSIRIDZE, DIPLOMATIC PROTECTION OF NATURAL AND LEGAL PERSONS IN INTERNATIONAL ...
the basis of existing practice of States, pro- ture all abovementioned problems will be
posed the most liberal solution on the range solved and diplomatic protection will approach
of subjects. International law is avery rapidly to that aim, which is protection of rights and
developing field. Hopefully, in the nearest fu- interests of its subjects by a State.
1
"Shelter from the Storm: Rethinking Diplomatic Protection of Dual Nationals in
Modern Interna-tional Law" (Heirafter – Shelter from the Storm), Craig Forcese,
George Washington International Law Review, George Washington University, 2005, p. 1.
2
Shelter from the Storm, p. 472; customary norm is the universal practice estab-
lished in a form of law, please see. Article 38(1)(a), Statute of the International Court
of Justice, http://www.icj-cij.org/documents.
3
Practice of the court and works of high qualified scientists. Please see. Article
38(1)(d), Statute of the International Court of Justice.
4
I.L.C., Report of the International Law Commission on the work of its fifty-sixth
session (3 May-4 June and 5 July-6 August 2004) UN Doc. A/59/10, p.22.
5
.L.C., Report of the International Law Commission on the work of its fifty-eighth
session (2006) UN Doc. A/61/10 (Hereafter - Report of the International Law
Commission 2006), p. 13.
6
Works of the members of the International Law Commission shall be consid-
ered as works of scientists of recognized competence in the context of Article
38(1) of the Statute of the International Court of Justice. Please see. Article 2(1),
Statute of the International Law Commission, Adopted by the General Assembly
in its Resolution 174 (II) of 21 November 1947.
7
Mavrommatis Palestine Concessions Case, p. 12.
8
Article 1: Definition and Scope; Draft Articles on Diplomatic Protection, Interna-
tional Law Commis-sion, fifty-eighth session, 2006 (hereafter - Draft Articles on
Diplomatic Protection)
9
Please see. Malcolm N. Shaw, "International Law" (hereafter – M. N. Shaw, "Inter-
national Law"), Fifth Edition, Cambridge University Press, 2003, p. 733.
10
Mavrommatis Palestine Concessions Case, p. 12.
11
M.N. Shaw, "International Law", p. 722
12
"Case Concerning the Barcelona Traction, Light and Power Company, Limited"
(Belgium v. Spain) Second Face, Judgment of 5 January 1970I.C.J Reports, p. 44
13
Ibidem, p. 44
14
"First Report on Diplomatic Protraction", ICL, 52 Session, Doc. A/cn.4/506, 7
March 2000, para. 80.
Please see. Ibidem, paragraph 80.
15
Ibidem, paragraph 80
16
Report of the International Law Commission 2004, p.28.
17
Article 19(a), Draft Articles on Diplomatic Protection 2006.
18
Report of the International Law Commission 2004, p.29.
19
"Nationality Decrees Issued in Tunis and Moro-cco", PCIJ, Advisory Opinion of 7
February 1923, Series B, No. 4, p.24.
20
Article 3, Hague Convention on Certain Questions Relating to the Conflict of
Nationality Laws, 1930.
21
"Nationality Decrees Issued in Tunis and Morocco", p. 24, please see. Report of
the International Law Commission 2004, pp. 30-31.
22
Article 4, Draft Articles on Diplomatic Protection 2006.
23
Article 9(1), Convention on the Elimination of all forms of Discrimination Against
Women, 1979.
24
Report of the International Law Commission 2006, p.52.
25
"Nationality Decrees Issued in Tunis and Moro-cco", p.24.
26
Article 24, the Law of Georgia on International Private Law, April 29, 1998, N1365
27
"Case Concerning the Barcelona Traction"
247
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
28
Article 9, Draft Articles on Diplomatic Protection 2006.
29
Report of the International Law Commission 2006, p.58
30
Please see. "Case Concerning the Barcelona Traction", paragraph 44.
31
Please see Ibidem, paragraph 44
32
Please see Ibidem, paragraph 43
33
Report of the International Law Commission 2006, pp. 55-70.
34
"Case Concerning the Barcelona Traction", para-g-raph 65.
35
Ibidem, paragraph 92
36
This practice was also applied by the European Court of Human Rights. Please
see Agrotexim case, ECHR., Series A (1995), No. 330-A, paragraph. 68.
37
"Case Concerning the Barcelona Traction", pa-ra-g-raph 65.
38
Article 11, Draft Articles on Diplomatic Protection 2006.
39
Report of the International Law Commission 2006, pp. 61-62.
40
"Case Concerning the Barcelona Traction", pa-rag-raph 65.
41
"Case concerning Electronica Sicula S.p.A.", United States of America v. Italy,
ICJ. Reports, 20 July 1989.
42
Article 11, Draft Articles on Diplomatic Protection 2006
43
"Case Concerning the Barcelona Traction", paragraphs 46-47.
44
Article 8, Civil Code of Georgia, 28 June1976, N786 – I-is
45
Please see: Case of Certain German Interests in Polish Upper Silesia, P.C.I.J.
Reports, Series A, No. 7.
46
Please see: Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbi-
tral Tribunal, P.C.I.J. Reports, Series A/B, No. 61.
47
Article 13, Draft Articles on Diplomatic Protection 2006.
48
Report of the International Law Commission 2006, p. 70
49
"Case Concerning the Barcelona Traction", paragraph 38.
50
Report of the International Law Commission 2006, p. 70
51
"Nottebohm Case", p. 13.
52
Please see: Brownlie, Ian, Principles of Public In-ter-national Law (Hereafter - I.
Braunlie, Principles of Public International Law), 5th edition, 1998, p. 391.
53
Article 3, Hague Convention 1930; Chapter V, ETS 166 – European Convention on
Nationality, 6.Sptember 1997.
54
Please see: Case of Nottebohm
55
I. Brownlie, Principles of Public International Law, p. 390.
56
Report of the International Law Commission 2006, p. 42.
57
Article 6(1), Draft Articles on Diplomatic Protection 2006.
58
Article 6(2), Draft Articles on Diplomatic Protection 2006.
59
Article 4, Hague Convention 1930.
60
Case of Reparation of Injuries Suffered in the Service of the United Nations,
I.C.J. General List No 4, April 11, 1949, p. 186.
61
Shelter for the Storm, pp.494-495.
62
See ibidem. p. 495
63
Report of the International Law Commission 2006, p. 45.
64
The Role of International Human Rights and the Law of Diplomatic Protection in
Resolving Zimbabve’s Land Crisis, Jonathan Shirley, Boston College Interna-
tional and Comparative Law Review, Winter 2004, pp. 170-171.
65
Nasser Esphahanian v. Bank Tejarat, Iran-United States Claims Tribunal, Case
No 157, Awards No 31-157-2, 29. 03.1983, p. 12.
66
Article 7, Draft Articles on Diplomatic Protection 2006.
67
Report of the International Law Commission 2006, pp. 43-47.
68
Nasser Esphahanian v. Bank Tejarat, p. 17.
69
Report of the International Law Commission 2006, p. 46.
70
Nasser Esphahanian v. Bank Tejarat, p. 15
71
Report of the International Law Commission 2006, p. 46
72
"Case Concerning the Barcelona Traction, Light and Power Company, Limited",
Separate Opinion of Judge Jessup, paragraph 48, Separate Opinion of Judge
Fitzmarice, paragraph. 63.
248
M. GOTSIRIDZE, DIPLOMATIC PROTECRION OF NATURAL AND LEGAL PERSONS IN INTERNATIONAL ...
73
"The Continuous Nationality of Claims Principle: Its Historical Development And
Curren Relevance to Investor-State Investment Disputes", Matthe S. Du-ch-esne,
George Washington University, 2004, p. 4.
74
See Ibidem. p. 4
75
See Ibidem. p. 4
76
Case of Loewen Group Inc. v. USAICSID Reports, vol. 7 (2005), p. 442 at pa-
ragraph. 225 (Please see. Report of the International Law Commission 2006, p. 37).
77
Articles 5 and 10, Draft Articles on Diplomatic Protection 2006.
78
Report of the International Law Commission 2006, p. 36.
79
Articles 5, paragraph 1 and 10, paragraph 1, Draft Articles on Diplomatic Protec-
tion 2006.
80
Articles 5, paragraph 2, Draft Articles on Diplo-matic Protection 2006; Report of
the International Law Commission 2006, p. 39
81
Articles 10, paragraph 2, Draft Articles on Diplo-ma-tic Protection 2006.
82
Articles 10, paragraph 3, Draft Articles on Diplo-ma-tic Protection 2006.
83
Please see Ibidem: Article 13.
84
Symposium: State Immunity in Civil Proceedings for Serious Violations of Human
Rights – Torture and State Immunity: Deflecting Immunity, Dest-roying Sovereign-
ty, Lorna McGregor, European Journal of International Law, November, 2007, p. 910.
249
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
danarTi
saqarTvelos kanoni
diplomatiuri samsaxuris Sesaxeb
Tavi I
zogadi debulebani
250
danarTi, saqarTvelos kanoni diplomatiuri samsaxuris Sesaxeb
251
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
252
danarTi, saqarTvelos kanoni diplomatiuri samsaxuris Sesaxeb
Tavi II
diplomatiuri samsaxuris sakadro Semadgenloba
253
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
254
danarTi, saqarTvelos kanoni diplomatiuri samsaxuris Sesaxeb
Tavi III
diplomatiuri samsaxuris gavla
255
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
256
danarTi, saqarTvelos kanoni diplomatiuri samsaxuris Sesaxeb
1. am kanonis 24-e muxlis pirveli punqtis „a“ – „d“, „v“ da „z“ qvepunqtebis safuZ-
velze rotaciis wesiT samuSao mivlinebis vadaze adre Sewyvetisa da rotaciis wesiT
samuSao mivlinebis vadis gasvlis gamo gamowveuli pirebi, agreTve is pirebi, romlebmac
warmatebiT gaiares konkursi, magram vakansiis ararsebobis gamo ver dainiSnnen Sesaba-
mis Tanamdebobaze, Caricxuli iqnebian diplomatiuri samsaxuris rezervSi da vakan-
turi Tanamdebobis dakavebisas mieniWebaT upiratesoba maTi diplomatiuri rangisa
da kvalifikaciis Sesabamisad.
2. sazRvargareT saswavleblad gamgzavrebuli pirebis diplomatiuri samsaxuris
rezervSi Caricxvis pirobebi ganisazRvreba diplomatiuri samsaxuris gavlis wesiT.
3. diplomatiuri samsaxuris rezervSi Caricxul, rotaciis wesiT samuSao mivlineb-
is vadaze adre Sewyvetisa da rotaciis wesiT samuSao mivlinebis vadis gasvlis gamo
gamowveul pirebs ufleba aqvT, rezervSi yofnis periodSi axorcielebdnen anazRaure-
bad saqmianobas sxva dawesebulebaSi.
4. am muxlis me-3 punqtis moqmedeba ar vrceldeba rotaciis wesiT samuSao mivlineb-
is vadaze adre Sewyvetisa da rotaciis wesiT samuSao mivlinebis vadis gasvlis gamo
gamowveul im pirebze, romlebic uars ganacxadeben saministros mier SeTavazebul Tan-
amdebobaze da survils gamoTqvamen, Caricxul iqnnen rezervSi.
5. diplomatiuri samsaxuris rezervSi yofnis maqsimaluri vadaa 3 weli. aRniSnuli
vada ar vrceldeba am kanonis 25-e muxliT gansazRvrul pirebze.
257
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
ministri uflebamosilia:
a) saqarTvelos prezidentTan SeTanxmebiT, rotaciis wesiT samuSao mivlinebis vada
gaugrZelos diplomatiuri warmomadgenlobis xelmZRvanels;
b) diplomatiur warmomadgenlobasa da sakonsulo dawesebulebaSi rotaciis wesiT
samuSao mivlinebiT wargzavnili Tanamdebobis piris mivlinebis vada gansakuTrebul
SemTxvevaSi gaagrZelos 1 wlamde, xolo generaluri konsulis mivlinebis vada – 2 wlamde;
g) diplomatiuri warmomadgenlobis xelmZRvanelis an generaluri konsulis ward-
ginebis safuZvelze, misi mivlinebis vadis gasvlamde, gaugrZelos mivlinebis vada dip-
lomatiur warmomadgenlobasa da sakonsulo dawesebulebaSi momuSave administraci-
ul-teqnikur personals.
258
danarTi, saqarTvelos kanoni diplomatiuri samsaxuris Sesaxeb
Tavi IV
diplomatiuri rangebi
259
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
260
danarTi, saqarTvelos kanoni diplomatiuri samsaxuris Sesaxeb
Tavi V
samsaxuridan gaTavisufleba
261
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
Tavi VI
socialuri dacva da garantiebi
muxli 42. rotaciis wesiT samuSao mivlinebaSi wargzavnili pirisa da misi ojaxis
wevrebis socialuri dacva
262
danarTi, saqarTvelos kanoni diplomatiuri samsaxuris Sesaxeb
Tavi VII
263
saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
Tavi VIII
gardamavali da daskvniTi debulebani
264
danarTi, saqarTvelos kanoni diplomatiuri samsaxuris Sesaxeb
saqarTvelos prezidentis
movaleobis Semsrulebeli
n. burjanaZe
Tbilisi,
2007 wlis 7 dekemberi.
#5568_IIs
265
Tarjimnebi: mixeil Ciqobava
qeTevan xuciSvili