Parsing the Georgian Cease-Fire Agreement

by Chris Borgen

The New York Times has posted online the (possibly fraying) cease-fire agreement concerning the conflict in Georgia.

At the time of its signing, President Sarkozy had said something to the effect that this is not a document for a lasting peace, but rather just to stop the shooting.  Looking at the text, I can see why he wanted to make that clear.  In the various pieces I’ve written (either on this blog or in law journals) on the conflicts in Georgia, Moldova, and the other frozen conflicts, I have tried to show that international law can play a useful role in conflict resolution. Peggy McGuinness introduced me to the phrase “negotiating in the shadow of international law” to describe the phenomenon I was writing about.

This agreement, though, seems more like the result of “negotiating in the shadow of an armored division.”

Here are a few points that I think worthy of note:

The agreement is silent regarding Georgia’s territorial integrity.  Such statements are common in diplomatic statements concerning the frozen conflicts.  Not including it here does not mean that South Ossetia (and arguably Abkhazia) are juridically separate from Georgia, but the absence of an assurance of territorial integrity is conspicuous as it likely means the Russians would not agree to the language. And that does not bode well for the Georgians in the coming negotiations (if there are any) concerning a long-term solution to the conflict.

The Russian forces are referred to as “peacekeepers” in paragraph 5. This is probably irksome to the Georgians who do not see the bombing of Gori or of Poti or of Tbilisi as having anything to do with keeping the peace. This language gives the Russian troops a certain mantle of respectability that they are not just an invading force and that they are actually acting under a mandate.  According to a discussion on WNYC’s the Brian Lehrer Show earlier today, the Russians now claim that they are in Gori and other cities in order to protect the Georgians from South Ossetian reprisals.

This agreement could be read to mean the Georgian forces have to withdraw, but the Russians don’t necessarily have to. This is another point that was mentioned on the Brian Lehrer Show. Compare paragraph 4, which states

Georgian military forces must withdraw to their normal bases of encampment.

with paragraph 5, which states:

Russian military forces must withdraw to the lines prior to the start of hostilities. While awaiting an international mechanism, Russian peacekeeping forces will implement additional security measures (six months).

The emphasis is mine. The second line is of concern as it arguably gives the Russian troops the option to undertake additional military activities (my read of “security measures”) prior to the enactment of an “international mechanism.” The role of Russian peacekeeping forces stem from the Soci Agreement of 1992 (here it is in Russian).  See “Passerby’s” comment to this post on August 10 at 7:46 a.m. for a discussion of Soci and an explanation why Soci should be understood as only allowing the use of joint peacekeeping forces, not forces of a single party (such as Russia). If anything, this new agreement may give Russia the cover to use its forces in a way that the Soci Agreement did not (not that that mattered much).

The parenthetical “six months” is from a handwritten comment by Sarkozy. Perhaps the goal is to have an international mechanism (I assume an multinational peacekeeping force) established within six months. Query whether the handwritten parenthetical actually binds the Russians to stop any military activities within six months. (I will give you one guess as to the likely Russian interpretation.)

I find this language especially worrying because, as I understand it, there have been talk and negotiations about the replacement of Russian troops in the Georgian and Moldovan conflicts for about 14 years. Russia has never been satisfied with the various “international mechanisms” that have been proposed. The concern is that Russia can stonewall on accepting an international mechanism and, in the interim, it has the leeway to keep using its “peacekeeping” forces.

There are concerns as to whether this agreement, as written, falls afoul of the prohibition in the Vienna Convention on the Law of Treaties of coercion by the threat of the use of force (Art 52).  Greg Fox mentioned this argument to me in an e-mail, also noting that the exception for peace treaties would not apply if Russia’s military intervention was viewed as an act of aggression. See Anthony Aust, Modern Treaty Law and Practice (2000), p. 257.

***

None of these concerns should be taken to say that President Sarkozy should not have brokered this agreement.  I think he did the best he could in an exceedingly tough situation. His first concern was to do what he could to prevent further death and destruction.  That is why we say “blessed are the peacemakers,” not “blessed are the lawyers.”

So, if this agreement holds, he has made peace, for a time.  And, in that interval, we need to find a way to make a just and equitable peace that is more lasting. And, as President Sarkozy has already signalled, we will need to start with a new document to do that.

http://opiniojuris.org/2008/08/14/parsing-the-georgian-cease-fire-agreement/

2 Responses

  1. 1.  Don’t forget the shadow of Europe’s near-monopoly energy supplier.  The mediators are not without incentive to sell out Georgia in order to curry favor, perhaps even particular favor over other European nations, despite their representative nature (France as President of EU; Finland as Chair of OSCE; and Sweden as Chair of Council of Europe Committee of Ministers).

    2.  This was a uniquely favorable moment for Russia to act.  France has an historic affinity with Russia.  Finland and Sweden are not NATO members and have complex histories with Russia.  These three European offices were most recently held by Slovenia, Spain and Slovakia, respectively, some of whom likely would have reacted with greater hostility to the Russian incursion than the current office-holders.  And Georgia soon likely would have been admitted to NATO with its security guarantees.  This situation illustrates some of the seams within Europe. 

    3.  History is not always repeated, but it does reveal tendencies, including that uninvited Russian tanks tend to long overstay their initial stated purposes (see Poland jumping at stronger security guarantees yesterday.)  Why should Russian tanks be allowed under the ceasefire to roam beyond S. Osettia and Abkhazia?  There are no lawful reasons, yet there are many reasons.  The security of the pipeline should not be assumed.  Or BP could find itself in another joint venture.

    4.  This conflict also illustrates why one should be extremely careful handing out security guarantees, recalling the role of guarantees and alliances in the onset of WWI.  There are also analogies to counterparty risk and moral hazard.

    5.  Among the many cyber-questions:  (a) Do analysts tone down their rhetoric so as to keep their servers running?  (b) Would Google have helped out Georgia if the opposing country was China? 

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