2. Academic literature
3.1 Defining Rule of Law
3.2 External factors of democratization
5.1 Georgia after the Rose Revolution
5.2 Georgian - European relationship
5.2.1 The ENP as an instrument of external democratization
“[The EU's] flag is Georgia's flag as well, as far as it embodies our civilization, our culture, the essence of our history and perspective, and our vision for the future of Georgia... Our steady course is toward European integration. It is time. Europe finally saw and valued Georgia and took steps toward us.”
Georgian President Mikhail Saakashvili, Inaugural Address, 25 January 2004.
The collapse of Communist systems in Central and Eastern European Countries (CEECs) marked a fundamental turning point in their domestic development. The transformation of postcommunist systems included not only the partly won democratization of the political systems, but also the transformation of virtually all social subsystems. Over the years, it soon became apparent that the former communist states were performing very differently in this task and achieved very different successes.1
While in Hungary, Poland, the Czech Republic and the Baltic States, functioning democratic systems and pluralistic societies have been established relatively quickly, many of the states that emerged from the collapse of the Soviet Union remained in stagnation and chaos or developed into authoritarian systems.2 On the other hand some states evolved from some fundamental steps towards democratization like for example Georgia where the so called Rose Revolution, a peaceful change of power, took place. This revolution allowed the country not only to transition to another political system but also towards a change of Rule of Law in an echo of the European thought. Important to know in this case is that during the Rose Revolution in 2003 and right after this event the European Union (EU) increasingly supported Georgia through a diverse set of measures - especially covering the financial aspect in order to develop a more independent judicial system.3 Therefore, this paper will focus on the lack of judicial independence as a long-standing problem in Georgia, dating back to Soviet times. The EU is trying to solve this problem with the help of projects and agreements. Georgia is (progressively) approaching the EU by signing an association agreement in 2014 “in which the country undertook to pursue comprehensive reforms, particularly in the areas of democracy, the Rule of Law, human rights and basic civil liberties, good governance, market economy and sustainable development.”4 In this context this paper will focus on the two parts of the promotion of democracy and the Rule of Law by the EU but also Russia as a counterpart to it. It is indispensable not to see a connection between both influence s, the European one and the soviet or Russian one because of the soviet history of the country. We also should take into consideration the geopolitical aspect of this threefold relationship. For the EU, both, the promotion of Rule of Law in the Caucasus region, as well as the promotion of so-called western values and the economic influence play important roles. The same applies to the Russian Federation which tries to maintain its influence and power in this area in order to act as a counterbalance to the EU.
In this context I will try to answer the following research question in this paper:
In which way can external factors/actions by the EU shape Georgia's judicial and political system?
Translated in a more methodological way the independent variables represent the measures proposed by the EU in the framework of Georgia to promote the Rule of Law in Georgia as well as the measurements taken by Russia to maintain the historical and political relation between Russia and Georgia. The dependent variable is the development of the legal system and the change in political system in Georgia during and shortly after the Rose Revolution in 2003. An important argument to examine is that “in the area of political reforms, however, only limited results have been evident, a fact that is recognized by the EU itself and confirmed by scholars and independent experts in the EU.”5
As there are other researchers who claim that in general the EU's influence on Georgia is positive for the development of a liberal democratic system which is founded by the Rule of Law and others claim negative influences or inefficient influences6 on the political and judicial processes in Georgia, the hypothesis to be examined in this paper is the following:
There is a noticeable positive impact of EU-funded measures to promote the Rule of Law in Georgia.
In order to answer the research question I will first elaborate a more concise definition of what is meant here by external influences by the different regimes involved in the revolutio nary process (in context of the research question) as well as a short definition of the Rule of Law concept in regard to EU standards and soviet standards. Afterwards, I will focus on the case of the Rose Revolution in Georgia and the most important events which had an influence on that process. Then, by explaining the method used to answer the research question, I will analyse the connection between the external factors of the EU as well as the important external factors of Russia which might have an advantageous or a detrimental influence on the political a judicial system in the times after the Rose Revolution. Finally, I will try to find a connection between the results and other cases to emphasize/support the findings.
2. Academic literature
In several publications practitioners and researchers write about the EU as a normative power promoting its so-called common values as its ambitions ‘as a force for good'7. Furthermore the research shows that there are kinds of self-interested objectives taken by the EU; so not only to promote these common values “but also to further the EU's security objectives related to maintaining stability and preventing the inflow of security threats.”8 By focussing on the EU's objectives while promoting the Rule of Law and its democratic values the following topics and questions came up in the existing studies:
“[W]hat does the Rule of Law policy output tell the interested audience about the nature of the EU's power in international relations? (.) How does the European Union promote Rule of Law in the European Neighbourhood Policy? (.) How can the emergence of a particular power projection (normative, hybrid or strategic power) be explained in different components (.) of the EU's Rule of Law promotion policy?”9
Regarding the promotion of Rule of Law and these common values in Eastern Europe and especially in Georgia existing studies focus on the limits of the EU's impact on its eastern partners.10 One crucial suggestion for a more successful promotion of the Rule of Law and towards political change is to involve the civil society and not only focussing on institutional reforms.11 Also in the latter studies the authors claim that the EU's main targets - namely the promotion of values through institutionalization - are not the right way to support the Eastern partners.12
By getting closer to my research question, Buscaneanu was examining “to what extent (...) the EU eastward democracy promotion approach under the ENP [has] been effective and consistent?”13
These subjects will serve this paper as preparatory studies by explaining the positive or negative impact of the strategies themselves which are used to promote the EU's values and Rule of Law. The terms ‘positive' and ‘negative' in this context are defined as successful strategies and impacts on the political and judicial system not only for the promoting countries but also for the affected country, in this case Georgia.
The theoretical concepts that will be used for the analysis originate from the normative and institutional aspects of external influence and especially external democratization processes which imply the Rule of Law concept. The concepts should be shaped here by the aspect of an international power like the EU and under the historical aspects.14 Therefore the analysis should take into consideration Georgia's relationship with the Russian Federation as it is a former soviet state. The influencing powers of the EU and Russia can be called regional powers. So the intentions of a regional power need to be defined too in order to display the geopolitical or security aspects of the relations.15
Therefore there is a necessity for a clearer definition of the meaning of external democratization or in general external influence which is exerted by the EU on the one hand and still by Russia on the other hand.
The overall reference point of the theoretical basis will be the concept of liberal democracy as former Georgian president Saakashvili was referring to it while establishing a closer relationship with the EU away from so-called neo-soviet influences.
According to the findings of the already explained research approaches the following definitions will resume the earlier objectives and ambitions of Rule of Law and value promotion of the EU.
3.1 Defining Rule of Law
Rule of Law - regarding the research question in this paper - will be defined in accordance with European values. European values as an orientation towards a liberal democracy will be defined in the next chapter as the Rule of Law will be part of these values.16
“We believe that international law and the Rule of Law are the foundations of the internatio na l system. Thus, the Rule of Law is among the core principles on which the EU builds its international relations and its efforts to promote peace, security and prosperity worldwide.”17 Rule of Law guarantees fundamental human rights and values, the application of EU law should be guaranteed and it shall support investment-friendly business environments. It is one of the fundamental values upon which the EU is based on. The Rule of Law especially implies the independence of the judiciary. But in case of day-to-day judiciary, the Rule of Law is just a foundational principle with no direct implication into judges' work. It is rather an ‘exported value' or“a foundational principle with an umbrella nature.”18 This uncertain concept therefore needs to be defined in a clearer context. Therefore the following definition has been chosen in accordance to the norms and values of the EU and its international ambitions and the EU as a normative international power. The aim of Rule of Law as an objective of foreign policy is not the constitutional function but it rather “operates as a ‘soft' and largely undefined ideal that is supposed to broadly guide EU actors when they act in the international arena.”19 So, in practice the Rule of Law can be found “in clauses of agreements, as an objective of financial and technical assistance, as a key element of conditionality and as part of the Union's developing conflict prevention and crisis management policies.”20 As there does not exist a clear definition of the real practice of the Rule of Law, Wennerstrom differentiated between three models regarding external influence: the Co-operation model, the Development model and the Security and Defense model.21 All three models follow the rules of promoting liberal democratic values. Therefore, the next chapter will focus especially on the external factors of democratization while considering the Rule of Law in the European sense as a key characteristic.
3.2 External factors of democratization
We are assuming that an independent and effective judicial system is an essential part of a democratic order; that is why it will be part of the external factors of democratization processes.22
1 Cf. Mackow, Jerzy (2005): Totalitarismus und danach. Einfuhrung in den Kommunismus und die postkommunistische Sy stemtransformation, Baden-Baden, p. 89.
2 Cf.. Simon, Gerhard: Der Wandel autoritarer Systeme. Postkommunistische Volksbewegungen fur Demokratie, in: Osteuropa, 56. Jg. 2006, Heft 7, S. 79-93, p. 79.
3 Cf. European Union External Action (2017): EU-Georgia relations, factsheet. Online : https://eeas.europa.eu/headquarters/headquarters-homepage_en/23634/EU- Georgia%20relations ,%20factsheet. 05.08.2018.
4 Deutsche Gesellschaft fur Internationale Zusammenarbeit (GIZ) GmbH (2018): Georgia. Online: https ://www.giz.de/en/worldwide/359.html.
5 Falkenhain, Mariella/ Solonenko Iryna (2012): The EU and Civil Society in Eastern Europe: Partners in the Pursuit of Policy Change? In: Borzel, Tanja Anita (Ed.): Policy chance in the EU's immediate neighbourhood. A sectoral approach. 1. Aufl. Baden-Baden: Nomos (Nomos eLibrary : Europa, 93), 56-76, p. 57.
6 Cf. Goetz, Klaus H. (2005): The New Member States and the EU: Responding to Europe. In: Bulmer, Simon/Lequesne, Christian (Eds.): The Member States of the European Union. Oxford/New York, 254280.
7 Cf. Manners, I. (2006): The Constitutive Nature of Values, Images and Principles in the European Union. In: Lucarelli,S./Manners, I. (Eds.): Values and Principles in European Union Foreign Policy. London, New York: Routledge, 19-41.
8 Wichmann, Nicole (2011): The Rule of Law promotion in the European Neighbourhood Policy. Normative or strategic power Europe? Baden-Baden: Nomos (Studies on the European Union, 4), p.15.
9 Wichmann (2011), p. 17.
10 Cf. Borzel, Tanja Anita (Ed.) (2012): Policy chance in the EU's immediate neighbourhood. A sectoral approach. Baden-Baden: Nomos (Nomos eLibrary: Europa, 93), p. 56.
11 Cf. Falkenhain/Solonenko (2012), p. 56.
12 Cf. ibid. p. 57.
13 Buscaneanu, Sergiu (2016): Regime Dynamics in EU's Eastern Neighbourhood. EU Democracy Promotion, International Influences, and Domestic Contexts. New York: Palgrave Macmillan US: Imprint: Palgrave Macmillan, p. 63.
14 Cf. Wichmann (2011), p.16.
15 Cf. Fischer, Sabine (2007): The EU and Russia: Democracy promotion in a ‘strategic partnership'? In: Junemann, Annette/Knodt, Michele (2007): Externe Demokratieforderung durch die Europaische Union. European External Democracy Promotion. Baden-Baden: Nomos (Schriftenreihe des Arbeitskreises Europaische Integration e.V, 58), 247-268, p. 248.
16 Cf. Carothers, Thomas (2001): “The Many Agendas of Rule-of-Law Reform in Latin America,” in Rule of Law in Latin America: The International Promotion of Judicial Reform, Pilar Domingo and Rachel Sieder. London: Institute of Latin American Studies, 4-16, p.6.
17 Statement by Patricia Galvao Teles (EU Presidency Statement), United Nations 62nd Session of the General Assembly, 6th Committee ‘Agenda Item 86. Rule of Law at the national and international levels', 25 October 2007, online: http://undocs.org/en/A/RES/62/70.
18 Pech, Laurent (2009): The Rule of Law as a Constitutional Principle of the European Union. In: Jean Monnet Working Paper No. 04/09, p. 59.
19 Ibid. p. 67. / Article 21(1) and 21(2)(b) TEU, one of the general provisions dealing with the EU's external action: “The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy , the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law”; “The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to ... consolidate and support democracy, the rule of law, human rights and the principles of international law (...)” Online: https://eur- lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008M021&from=EN , 10.09.2018.
20 Cremona, M. (2004): The European Neighbourhood Policy: Legal and Institutional Issues” In: Center on Democracy, Development, and the Rule of Law Working Papers, Stanford Institute for International Studies, no. 25, p. 10.
21 Cf. Wennerstrom, E. (2007): The Rule of Law and the European Union. Iustus Forlag, 48-89.
22 Cf. Carothers (2001), p.6.