The President of Georgia issued a Decree on 27 May 2014 according to which the Prime Minister was assigned the one-time right to sign the Association Agreement with the European Union. Instead of countersigning, Irakli Gharibashvili stated the following: "I do not need any countersigning. I do not need any additional right. We do what is written in the Constitution. I do not need any additional authority. I have the proper authority to sign the [Association] Agreement."

Due to the fact that this aforementioned issue became a subject of discussion and controversy between the President and the Prime Minister, FactCheck

tried to figure out which representative of the executive branch is entitled to sign the Association Agreement with the European Union.

It is necessary that the state speaks with one voice in international relations and a state’s representative has the authority to express the state’s position. A similar clause can be found in the Vienna Convention on the Law of Treaties.

According to the first part of Article 12 of the Convention, the consent of a state to be bound by a treaty is expressed by the signature of its representative. According to the first part of Article 7 of the Convention, a person is considered as representing a state who has been granted the proper authority from the state.

First, let us determine who has the authority to represent Georgia in international relations according to the Constitution of Georgia. According to the first part of Article 78 of the Constitution of Georgia,

the Government of Georgia is the supreme body of the executive power to implement both the internal and foreign policy of the country. This clause in the Constitution emphasises that the Government of Georgia is the "supreme" decision-maker about the issues of internal and foreign policy.

As for the President’s authorities, according to the first part of Article 69 of the Constitution of Georgia, the President of Georgia is the Head of the State of Georgia, the guarantor of national independence and the unity of the country and represents the country in foreign relations.

At first look, the authorities of the Government of Georgia as the "supreme body" and the President as "representative" as stated in the Constitution of Georgia somewhat intersect in the sphere of international relations.

Sub-paragraph A of Article 73 of the Constitution of Georgia should be taken into consideration which states that the President of Georgia is to conclude international agreements and treaties in agreement with the Government. The fact that the President needs to negotiate with the Government regarding the signing of an agreement implies that the Government is not in possession of exclusive authority over the President; that is, the President has the authority to represent the state on the international arena but needs to negotiate with the Government in order to do so.

Equally important is for us to determine whether or not the Government of Georgia needs a similar consent from the President for the signing of an agreement. According to the first part of Article 12 of the Law of Georgia on International Treaties of Georgia,

the President of Georgia, the Prime Minister of Georgia and the Minister of Foreign Affairs of Georgia may carry out any actions for concluding international treaties without presenting full powers.  Accordingly, the President, the Prime Minister and the Minister of Foreign Affairs are entitled to representation by the Law. This implies that each of them may act on the international arena without presenting full powers. This implies the signing of an agreement as well. The President, therefore, is authorised to sign an agreement as a representative of the executive branch of the Government.

Despite the aforementioned, the President of Georgia issued a Decree on 27 May 2014 which, according to his Parliamentary Secretary, was needed to transfer the authority to the Prime Minister to countersign the Association Agreement according to the Constitution of Georgia and the Law of Georgia on the International Treaties of Georgia. Davit Patraia, the Parliamentary Secretary, stated: "In order not to question the legitimacy of the signature by the Prime Minister of Georgia, neither today nor in the future, the President of Georgia has transferred this authority, as granted by the Constitution, to the Prime Minister."

The issuing of this Decree by the President was based upon Article 13 of the Law of Georgia on International Treaties of Georgia. According to it, if, under the Constitution of Georgia, concluding a treaty falls within the powers of the President of Georgia, he/she is granted full powers to sign the international treaties. This is done by the President issuing an edict that requires a countersignature of the Prime Minister of Georgia. As we can see, there is a note in the Law about the President’s authority which, under the Constitution, falls within the competences of the President. However, the existence of such an exclusive authority is not reflected in the text of the Constitution.

Accordingly, the interpretation of Article 13 of the Law of Georgia on International Treaties of Georgia may become a subject of theoretical debate and the decision of the Constitutional Court. The Government and the President may appeal to the Constitutional Court and demand the annulment of the first part of Article 13 (due to the non-existence of the exclusive authorities). In the case of the Constitutional Court not considering the annulment of the aforementioned clause, then it will have to define what belongs to the exclusive authority of the President. In the case of the Constitutional Court considering the annulment of this sentence of Article 13, it will be cancelled and the President will not be entitled to issue a decree such as the aforementioned due to the non-existence of an exlusive authority. FactCheck

will refrain from assessing this particular issue.

It is also important that we discuss the statement of Shalva Tadumadze, the Government’s Parliamentary Secretary. According to Tadumadze, in the case of the President signing the Association Agreement, the President will not have the legal power to do so without the countersignature of the Prime Minister.

Of further note is that according to Article 73¹

of the Constitution of Georgia, the Prime Minister is to countersign the legal acts of the President of Georgia with the exception of those acts issued during martial law. However, the second, third and fourth parts of the same Article define those exceptional cases when the countersignature of the Prime Minister is not required. According to the third part of the Article, a countersignature is not required for the legal acts of the President of Georgia that, under the Constitution, have been issued upon the recommendation of the Government or have been preliminarily approved by the Government. As we stated before, according to sub-paragraph A of Article 73, the President of Georgia is to conclude international agreements and treaties in agreement with the Government. Accordingly, in the case of an agreement, the countersignature of the Prime Minister is not required and the agreement automatically becomes legal.

Subsequently, after the President issued the Decree, Shalva Tadumadze stated that the President of Georgia is not authorized to sign the Association Agreement without an agreement to do so with the Government. In this part of the statement, Tadumadze’s legal reasoning is correct. According to sub-paragraph A of Article 73 of the Constitution of Georgia, the President of Georgia, in fact, needs the Government’s agreement to conclude such agreements. The second part of the statement by the Government’s Parliamentary Secretary is also noteworthy wherein he states that the President’s Decree is drawn up in violation of the Constitution. According to Tadumadze, the Ministry of Foreign Affairs of Georgia is to submit the President’s proposal to the Government of Georgia. Tadumadze is perhaps basing his argument upon Article 9 of the Law of Georgia on International Treaties of Georgia according to which the Ministry of Foreign Affairs of Georgia is to submit proposals to the Government of Georgia for the purpose of concluding international treaties. Tadumadze is incorrect, however, in this part of his statement due to the fact that the Decree issued by the President does not represent a proposal for concluding an agreement; that is, the President of Georgia named an authorized person to sign the Association Agreement with his Decree but which is an absolutely different process than the aforementioned proposal. Therefore, the Decree by the President did not require submission by the Ministry ofForeign Affairs of Georgia. Accordingly, the Law of Georgia on International Treaties of Georgia was not violated in issuing the President’s Decree.

The authority to sign the Association Agreement is not the exclusive authority of the President. This is a competency which he shares with the Government. Determining whether or not the Government of Georgia can act without the participation of the President is also a point of importance and interest. As we have stated above, according to Article 78 of the Constitution of Georgia and Article 12 of the Law of Georgia on International Treaties of Georgia, the Government of Georgia conducts foreign policy as a "supreme body" which is authorized to represent Georgia on the international arena without submission.

For comparison we can review the case discussed by the Constitutional Tribunal of Poland in 2009. The case concerned a particular session of the European Council held on 15-16 October 2008 in Brussels where the issues of the global financial crisis and energy-security were discussed. The Prime Minister of Poland issued a Resolution on 9 October 2008 according to which the members of the Polish Government’s delegation (Prime Minister, Minister of Finance and Minister of Foreign Affairs) were defined. After four days, the President stated that despite the Prime Minister’s Resolution, he would nonetheless still participate in the session. The President addressed the Constitutional Tribunal and asked for the separation of powers and the formation of the competences. The Constitutional Tribunal of Poland concluded that the President had the right to make an independent decision to participate in a particular session of the European Council.

The Polish Tribunal’s decision about cooperation is relevant for the situation in Georgia. According to the Tribunal’s decision, the Polish President, the Cabinet of Ministers and the Prime Minister are obliged to comply with the principle of cooperation among public bodies while using their constitutional responsibilities and powers.

According to this decision, cooperation is necessary in order to conduct Poland’s actions at the European level. Despite the fact that the Constitution of Poland does not define the rules and manners of cooperation, the participation and engagement of the President of Poland is required in cases of conducting foreign policy. The decision adopted by the Constitutional Tribunal of Poland is similar to the Georgian case due to the fact that both cases deal with shared competences.

FactCheck

talked to Davit Zedelashvili, an expert on the Constitution of Georgia, who made a long and interesting comment on this issue: ”In the controversy about defining the authority related to the signing of the Association Agreement, neither the President nor the Government complies with the constitutional obligations of cooperation. Of course, according to the Constitution, the Government is divided and the institutions of the political government, the Government and the President have their own authorities. However, we should not forget that they represent the sovereign state on the international stage and act on its behalf and according to its interests. A state should speak with one voice in international relations or, otherwise this will create some inconveniences, at the very least, in the sphere. In the worst case, the effective conduct of international relations by a state would be put under risk and its image as a reliable and predictable partner thereon would be questioned.

Due to this particularity of international relations, the constitutional theory and the constitutional practice of states distinguishes the executive government as the leading constitutional institution of foreign policy.

At the same time, the Constitution of Georgia does not give unlimited discretion to the executive branch in the sphere of foreign policy. The principle of the division of the government also grants the authorities of foreign policy making and conducting to other institutions of the political government (the President and the Parliament). However, the specifics of international relations impose a special obligation of cooperation on the coordinated branches of the government in order not to damage the interests of the sovereign state.

Cooperation is not a nice political gesture. It is an imperative, implied constitutional obligation. In the aforementioned controversy, we encounter the unilateral request of authority and the unilateral assertion that the exclusive constitutional authorities exist. The Constitution of Georgia does not provide exclusive authorities regarding the conduct of foreign policy as well as the signing of international agreements. The Constitution sets the leading role of the government as the supreme body of the executive branch in conducting foreign policy. However, this neither grants the government an exclusive authority in foreign policy nor the unlimited discretion.

In the narrow sense, the assertion by the Prime Minister that he has a preferential right to sign the agreement is right, although, the Constitution of Georgia does not grant the discretional authority to the Government to solve this issue unilaterally without the participation of the President. The President has a full authority to participate in the deciding about the signing of such an international agreement which, by its content, is connected to his authorities as the head of the state and the guarantor of the state’s sovereignty and the Constitution of Georgia. The Association Agreement with the European Union by its content is connected to the aforementioned authorities of the President and implies Georgia’s long-term political and economic integration into such a supranational community of states as is the EU. Ensuring the President’s participation does not necessarily require the countersignature of the Government’s acts by the President or the countersignature of the President’s acts by the Government. The main thing is that the President’s effective participation in the decision-making is ensured.”

Also of note is that non-governmental organizations such as Transparency International Georgia, Georgian Young Lawyers’ Association and the Young Constitutionalists’ Association also agree that the aforementioned authority is shared. The majority of the non-governmental organizations as well as constitutionalists agree that the legitimacy of the Association Agreement would not be questioned in the case if both the President and the Prime Minister sign the Agreement.

Conclusion

We can conclude that according to Article 78 of the Constitution of Georgia and Article 12 of the Georgian Law on International Treaties of Georgia, the Government of Georgia has a preferential authority to conduct foreign policy. On the other hand, the President of Georgia is a state representative on the international arena. Despite the fact that Article 13 of the Georgian Law on International Treaties of Georgia refers to the delegation of authorities by the President, according to the Constitution it is not clear over which type of agreements the President has exclusive authority.

It is obvious from the interpretation of the Law and the Constitution that the signing of the Association Agreement belongs to the shared competences and its legitimacy will not be questioned in the case if both the President and the Prime Minister sign the Association Agreement. The Prime Minister has the authority to sign the Association Agreement but he also has the obligation to cooperate with the President. Due to the fact that the Association Agreement with its content itself belongs to the function of the President as the head of the state and guarantor of unity and national independence, isolating him from political processes is not permitted.

FactCheck concludes that Prime Minister Irakli Gharibashvili’s statement, "I do not need any additional authority. I have the proper authority to sign the [Association] Agreement," is HALF TRUE.