By Phillip Takhar*
Georgia has hoped, for some time, to join the European Union (EU). While progress towards this goal has been slow, Georgia has been working with the EU on a visa free travel agreement that is seen as an important step toward further integration with Europe. At the same time, the European Commission has used these negotiations to push for significant changes in certain areas of Georgian law. Specifically, the Visa Liberalisation Dialogue and Action Plan for Visa Liberalisation has led to significant liberalization of laws relating to stateless individuals and antidiscrimination. These legal changes, however, are only likely to last if the EU is willing to keep its side of the bargain and extend visa free travel to Georgians in a timely manner.
Georgia, like other former Soviet Republics, is in a difficult geopolitical position. While the country would like to join the EU (although popular support is less strongly in favor than in the past), Russia vigorously opposes integration and has used propaganda, and other forms of soft power, to further diminish the idea’s popularity. For its part, Europe has been cautious about developing its relationship with Georgia so as to avoid provoking Russia. Some have argued that this may lead Georgia to move closer to the Kremlin. Pro-Russian groups have formed in Georgia over the last few years and, in 2016, even gained some seats in parliament. Still, the country’s reelection of the Georgia Dream, a pro-EU membership party, is an indication that pro-Russian sentiments have not yet met with widespread approval.
Georgia sees visa free travel status as a concrete step towards developing a stronger economic bond with Europe that will hopefully be part of its path to eventual EU membership. Georgia and the EU have been negotiating visa liberalisation since June 2012. As part of these negotiations, Georgia was required to implement an Action Plan for Visa Liberalisation (VLAP) which consisted of numerous legal, political, and bureaucratic reforms that needed to be undertaken in order for a visa agreement to be reached. Compliance with the VLAP has been assessed through four progress reports and focused on four areas: passport and travel document security, border management, internal security, and fundamental rights for its residents. Areas that have been of particular note include the status of stateless individuals and anti-discrimination against minorities in Georgia.
The Status of Stateless Individuals
In 1961 the United Nations signed the Convention on the Reduction of Statelessness to give stateless individuals certain rights to establish nationality. Most European Union member states are signatories of the Convention and the European Commission used the Convention as a standard for Georgian reform in the VLAP.
Given that Georgia shares a border with Turkey, it receives around one hundred asylum seeking applications every year. There are currently an estimated 770 stateless individuals in the country, a number that has been reduced from around 1670 over the past seven years. While the issue of statelessness is clearly important in Georgia, prior to the VLAP the President would only grant asylum to stateless individuals in “exceptional cases.”
In the first VLAP progress report, the Commission noted approvingly that Georgia’s Commission on Migration Issues Working Group on the Reduction of Statelessness had prepared a draft law on Georgian citizenship that used the 1961 UN Convention as a benchmark. Georgia had not yet signed the 1961 UN Convention, but it was considering doing so.
In the second progress report the Commission reported that Georgia had passed the Law on the Legal Status of Aliens and Stateless Persons, which recognized rights and established legal guarantees for stateless individuals in compliance with the VLAP. In particular, this legislation created a process for stateless individuals to obtain residence permits and temporary identification cards. It also guaranteed equal legal protection for stateless individuals. In addition to these domestic reforms, Georgia also resolved to ratify the 1961 United Nations Convention on the Reduction of Statelessness and passed a Law on Georgian Citizenship to match the Convention’s principles.
The third and fourth progress reports noted that these reforms fulfilled Georgia’s VLAP benchmark for freedom of movement for aliens and stateless individuals.
Anti-Discrimination against Minorities
The European Commission also used the VLAP to change Georgian anti-discrimination law. Georgia has long had issues with protection of minority rights. After the Soviet Union fell, feelings of nationalism, a lack of political representation and protection for ethnic minorities, and massive poverty created a dire situation for the Kurdish, Armenian, Azeri, and other minorities in Georgia. Unfortunately, employment and education discrimination, as well as more general public xenophobia, has historically been acceptable in Georgia. While the country did eventually create anti-discrimination laws, they did not apply to private parties. In a 2010 report, the European Commission against Racism and Intolerance stated that there were no recorded cases in which an individual was legally compensated for suffering racial discrimination.
In the first VLAP progress report, the European Commission noted that Georgia was working on a new piece of legislation intended to combat discrimination based on several categories in line with Council of Europe recommendations, including race, sex, citizenship, nationality, and religion. The Commission noted, however, that it was unclear whether the law would apply only to the public sector.
In the second progress report, the Commission reported that the Law on the Elimination of All Forms of Discrimination had been passed. This law implemented the previously noted features and was very broad in scope. It contained protections for both direct and indirect discrimination and introduced proactive measures to enhance gender equality. Despite concern that the law might only apply to government action, these protections were also extended to the private sector. In addition, this law gave the Public Defender of Georgia the responsibility to monitor issues related to discrimination for the purpose of eliminating it. The Public Defender has a number of enumerated duties, including working with international organizations and increasing awareness of the anti-discrimination law amongst those who could use it to protect their rights.
While the third progress report noted that the Anti-Discrimination law was an important step, it asserted that more work had to be done. It particularly recommended continued efforts to raise awareness of the law among its citizenry and civil servants and train legal professionals in the new law’s provisions.
In the fourth progress report, the Commission noted that the Public Defender had started an information campaign to fulfill part of its responsibility under the Anti-Discrimination Law. This campaign used a variety of media to educate the public about diversity and equality, in line with the Commission’s third progress report recommendations. Additionally, Georgia adopted a Strategy for Civic Equality and Integration that aimed to politically empower ethnic minorities. Assessing these developments as a whole, the Commission concluded that Georgia’s anti-discrimination benchmark had been achieved.
Aftermath of the Visa Liberalisation Action Plan
The fourth VLAP progress concluded that Georgia had met its benchmarks in every area of concern. It remarked that, while there would still be a need to continually monitor implementation of new laws and policies, Georgia had made remarkable progress in the areas of rule of law and justice reform.
However, despite achieving these benchmarks, Germany, France, and Italy voted against granting Georgia visa free travel status at an EU ambassador’s meeting in June of this year. Germany argued that the number of burglaries in Georgia needed to be investigated further before allowing unrestricted travel into the EU and requested that a suspension mechanism be put into any visa free agreement with Georgia, allowing the EU to freeze the agreement if it were abused by individuals staying in EU member states pass the 90-day limit.
This vote was a disappointing delay for Georgia, which had met the EU Commission’s legal requirements and hoped for a positive resolution of the issue this summer. Nevertheless, Georgian Prime Minister Kvirikashvili stated that Georgia had made impressive progress and was still committed to the visa liberalisation process and, more generally, eventual EU membership. In September, the European Parliament Committee on Civil Liberties, Justice and Home Affairs, approved visa free travel liberalisation, and this past month the European Commission approved Georgia’s bid. Georgia now must wait for the European Parliament to agree on an appropriate suspension mechanism before the visa agreement can take effect. It is expected that the plan will be approved by the end of the year.
The Law on the Legal status of Aliens and Stateless Persons and the Law on the Elimination of All Forms of Discrimination are both major developments in Georgian law. However, these changes are resisted by some Georgians who would prefer to turn back towards Russia. Progressive laws can only be maintained in the face of this opposition if there is stability in Georgia’s regional partnership with the EU. The EU’s goal of promoting human rights in the region would be well served by encouraging the continuation of these Georgian laws. Though Georgia has been in compliance with VLAP benchmarks since last December, implementation of the visa liberalisation agreement has already been delayed by four months. Hopefully, the EU won’t delay much more in rewarding Georgia for its efforts.
* Phillip Takhar is a 2019 J.D. candidate at Harvard Law School and a Feature Editor of the Harvard International Law Journal.