In a thought-provoking commentary shared on his Facebook page, Said Gezerdaa, a prominent lawyer at the Centre for Humanitarian Programmes in Sukhum, Abkhazia, delves into the legal and political complexities of the Pitsunda Agreement. Gezerdaa's analysis, originating from his social media platform, offers a critical perspective on the procedural nuances and the substantive legal challenges emerging from this pivotal case.
In the aftermath of a recent discussion at the Media Centre, the intertwining of lies and unprofessionalism is evident, particularly in the context of the Pitsunda Agreement. A striking instance was reported by the Parliament of Abkhazia’s Telegram channel, where it was announced that a coordinate error, crucial to the territory's demarcation for transfer to the Russian Federal Protective Service (FSO), was rectified through an exchange of notes (https://t.me/parliamentabkh/3164). However, this move raises legal questions, as neither Abkhazian nor Russian laws on international treaties permit amendments in the period between an agreement's signing and its ratification. This is specifically outlined in Article 28 of the Republic of Abkhazia's Law "On International Treaties."
The government, seemingly cornered, has resorted to a sly approach, referencing Article 79 of the Vienna Convention on the Law of Treaties (1969). Minister of Justice Anri Bartsits, during a roundtable on December 22, leaned on this article, suggesting a flexibility in correcting errors based on mutual consent (https://youtu.be/TY2Z5Ave1GQ?si=F8WYSXGTzWq-xAJ1). His defense primarily relies on this article and a general theory of law, though this interpretation stretches beyond the doctrine's typical scope in international law.
In response, I emphasized that Article 79 of the Vienna Convention addresses a very specific kind of error, not applicable for amending the Agreement. A closer look at Article 48, titled "Error," clarifies that only textual mistakes like typos or grammatical errors can be corrected under Article 79, not substantial errors that pertain to the treaty's object.
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Indeed, significant errors, like the one in the coordinates, are classified differently under Article 48 of the Vienna Convention and can render a treaty invalid. Since these substantial errors pertain to ratified treaties, the Pitsunda Agreement, still unratified, faces a legal conundrum. It cannot be presented for ratification with such an error, nor can it be amended at this stage as per international treaty law. The appropriate course of action would be either not to ratify the Agreement or to withdraw it from Parliament for further review of its shortcomings.
During the discussion, I also cited leading Soviet and Russian international law experts, I.I. Lukashuk and A.N. Talalaev, to reinforce my points. Unfortunately, these arguments were largely ignored, leaving the matter unresolved.
To quote these legal scholars: Minor errors that do not affect the essence of an agreement do not invalidate it and can be corrected as per Article 79. This distinction between minor textual errors and significant treaty errors is crucial in interpreting these provisions of the Vienna Convention.
In conclusion, the government's handling of the Pitsunda issue appears to be marked by dubious tactics: clandestine discussions, signing, and note exchanges, coupled with attempts to rush a resolution before the year-end holidays, a time when public attention might be diverted from politics.
It’s also important to note that according to Article 79 of the Vienna Convention, amendments to international treaties are permissible only post-ratification, a fact not addressed in the discussion.
This commentary is translated from Russian.