Environment is Meant to Gain More Space in International Law

There are certain things that sometimes escape international lawyer’s mind. Important things that sometimes are lost in the shadows of conflicts and crisis situations, treaties and customary regulations of war and peace. I am talking about environmental concerns of the modern world and how international law is in attempt to regulate them.

To start discussing the regulations in themselves it is important to first remind ourselves about the reasoning behind the environmental challenges. I was reminded by one particular panel on Crans Montana Forum that was held in Baku in the very end of June, called “The Impact of Globalization on the World Environment”. When panel’s keynote-speaker Vice-President of Heydar Aliyev Foundation, IDEA Campaign founder Leyla Aliyeva was delivering her speech it was striking to me that though I knew that our country was left with major environmental concerns just after the Soviet past, I practically never stopped to think that it is I who will be one of those responsible for future cleanup, as every other citizen of my generation will be. When Ms. Aliyeva was talking about the role of younger generation in the prevention of negative effects to the environment – it became clear to me that everyone of us will be responsible to the answer the environmental challenges in his/her own capacity. If I am an international lawyer – then it is quite obvious where I should raise awareness.

However it is not enough just to spread the word and conduct your efforts accordingly. You need to relay them into the future. Just as Ms. Aliyeva pointed out – education on environment is essential to address the future environmental challenges. Our generation when growing up lacked that kind of education due to the period of change and struggle to the basic development, however now we owe it to our children to provide them with the knowledge they need to continue what we will start in preserving our nature, taking care of environment and striving for sustainable development. Because just like Ms. Aliyeva said – the young people are the forth front for environmental developments.

If there will be no action now we might one day find ourselves in the situation described by the other speaker on the panel Mr. Subramaniam Eassuwaren, New Leader 2012 from Sri Lanka who told his very said however educational story of how Sri Lanka lost almost 90% of its rainforests to the development without heed to the environmental protection. If we don’t want to face such situation sometime in the future, we need to answer the call of Ms. Aliyeva that there is a need for urgent actions and commitments on the part of younger generations.

So what does the international law do right now to protect environment? Mostly sought topics of regulation in international law concerning environment are climate change, sustainable development, biodiversity, transfrontier pollution, marine pollution, endangered species, hazardous materials and activities, cultural preservation, desertification and the uses of seas. All of these topics in one or another matter have found themselves in the scope of international environmental law. It is worth mentioning that United Nations has its own Environmental Programme.

However the main question still remains on how to enforce the international environmental law. Of course there are forums that provide the arbitration to environmental disputes between states. There are several international arbitration panels, including International Court of Justice itself. The major problem is that such arbitrations require states to voluntarily submit to their jurisdictions. In addition even if there is a decision made in the international arbitration, it heavily depends on national governments to enforce such decisions. Problems arise when the implementations of ruling is withheld or suspended due to the political or economic reasons.

Another hindrance in the implementation of international environmental law is the lack of the international body charged with the responsibility to enforce such law directly. Thus the responsibility lies on the national authorities to adopt and use implementing policies. That is why it is very important for the international bodies to at least conduct monitoring and diplomatic functions when it comes to the responsibility of the states to protect environment.

Nonetheless, it seems that there is an upcoming tendency of international community to get more involved in the matters concerning international environmental regulations. Though a lot still depends on the good will of the states it is everybody’s responsibility to raise awareness of the situation and demand the effective implementation of the norms that will help us save our future. And it is the responsibility of international lawyers everywhere to take action in the lobbying and promoting the efforts to enforce international environmental law. With that it can truly be said that environment is meant to gain its proper space in international law.

Kamal Makili-Aliyev

Doctor of Laws (LL.D)

17.07.2012

News.az

Neighborhood Challenge: Outlook to Caspian Security from Azerbaijan

            Caspian Basin can best be described as a strategic natural border linking five states: Russia on the north, Iran on the south, two Central-Asian states of Kazakhstan and Turkmenistan on the east and South-Caucasian Azerbaijan on the west. Caspian Basin rich with natural resources and at the same time situated in geopolitically important region has long since become their collective concern of the neighboring states both in matters of delimitation of the basin as well as with security issues.

            Most of the conflicts of interest on the Caspian arise due to the fact that neighboring states have yet to decide on its legal status and establish recognized borders. Azerbaijan in its turn has always maintained the view that Caspian Sea has to be divided into five sectors. Thus in the limits of its own sector each state would be able to exercise its sovereignty.

            Such a position has a strong merit due to the fact that though Caspian is usually referred to as “sea” in reality is a very big lake as it is inland and does not constitute a part of the ocean. Thus, international law that can be applied to the seas does not apply to the Caspian, making the legal status of Caspian negotiable between the neighboring countries. However, it should be kept in mind that the customary practice of states in cases with bordering lakes is usually sector-based approach.

            Another matter is the environmental security of the basin. Here the approach changes due to the fact that any environmental damage to the Caspian Sea in localized sector would inevitably cause damage to all of the neighboring states. Hence, the situation calls for the approach based on the collective responsibility to protect environment.

            As opposed to the environment there are also military concerns. Recent years have shown steady growth of naval forces of all five neighboring states with Russia and Iran conducting modernization of their Caspian-based vessels and equipment, while Kazakhstan and Turkmenistan made considerable purchases of their own. Such situation was inevitably stimulating for Azerbaijan to start developing its naval military presence to be able to maintain its own naval security. Though such a military growth created a lot of speculations on why there is a need for Azerbaijan to develop naval presence so rapidly and against which country such a trend can be directed, these speculations are quite baseless due to the fact that the equipment Azerbaijan have purchased, was defensive in nature and thus cannot be directed against anybody. Plus it is only natural that Azerbaijan would build up on its naval security considering the overall geopolitical situation in the region.

            In May 2012 in line with such strategy Azerbaijan has conducted its naval military exercises called “Protection of Oil and Gas Fields, Platforms, and Export Pipelines” using ships, speedboats and helicopters. The main focus of the exercises was on protection and defense against terrorist attacks with no offensive objectives.

            However, the largest focus in Caspian still remains on energy security. Due to its geographic location Caspian is a very important link for energy transfers between rich with natural gas Turkmenistan and South Caucasus with opening corridors to Europe. For that same reason the idea of Transcaspian pipeline has dragged a lot of attention in both Azerbaijan and Turkmenistan as well as in Europe. Construction of such a pipeline would allow for the access of Turkmenistan on the European market while supplying Europe with the natural gas it needs thus creating a steady and secure flow of the energy resources from Central Asia.

            Though the project in itself is purely financial, there is a clear picture that it might not be in full accord with political, financial and other interests of other Caspian states. Especially with the borders of Caspian Sea still under question, level of political pressure rises atop the idea of the new pipeline. However, for official Baku it seems the issue stays in the limits of pure practicality. While Azerbaijan expresses both its interest and readiness for the creating of Transcaspian pipeline it will pursue its financial interests and the final decision will be made surely on the grounds of financial feasibility rather than issue-based negotiations. In light of that, it seems only logical that the decision should be made by the two interested states in the limits of their sovereign sectors of the Caspian without need for politicizing the overall process.

           All in all the common security of the Caspian is a serious issue for Azerbaijan. There are still challenges with both legal status of the sea as well as in issues of energy and military security. All of these are possible to overcome with the constructive and pragmatic approach that Azerbaijan is trying to adopt and relay.

Kamal Makili-Aliyev

Doctor of Laws (LL.D)

11.07.2012

New Europe, Issue 995, 15-21 July.

ICC vs. Libya: Taylor still in the middle

It is more than three weeks since Melinda Taylor was detained in Zintan as the result of the standoff between International Criminal Court (ICC) and Libyan interim authorities on who will put Saif Gaddafi on trial. Ms. Taylor was a part of ICC delegation that traveled June 6, 2012 to Zintan to meet with S.Gaddafi. Due to the indictment of Gaddafi by the ICC in crimes against humanity, Ms. Taylor was appointed as his lawyer to represent him in future trial in Hague. Militants that are responsible for the detention of the Saif Gaddafi, have reported that ICC team was in possession of several documents, one of which was a letter from one of the former accomplices of Gaddafi that is now residing in Egypt. That letter served as an official motive for the militants to detain Ms. Taylor and her team on June 7^th.

The situation attracted concern and attention from international community and many experts in international criminal and humanitarian law as well as certain governments and their officials.

Australian Prime Minister J.Gillard called on Libyan authorities to expedite the end of Ms. Taylor’s (who is an Australian national) detention. Australian Foreign Minister B.Carr said that there seems to be no interest from Libyans in the early release of Taylor and she was denied communication with her family, however her detention conditions are quite good. International movement Coalition for International Criminal Court have also extended its support to Taylor and urged the Libya to release the lawyer as soon as possible.

Nonetheless, the most interesting reaction was from ICC itself that posted press release on June 22, 2012. Through it ICC states that: “… [it] takes seriously the information reported by Libyan authorities in relation to the ICC staff members’ visit. The ICC fully understands the importance of the matter for the Libyan authorities and the people of Libya” and that: “… [it] attaches great importance to the principle that its staff members, when carrying out their functions, should also respect national laws. The information reported by the Libyan authorities will be fully investigated in accordance with ICC procedures following the return of the four staff members. For this purpose, the Court will be seeking further background information from the Libyan authorities. The ICC will remain in close contact with the Libyan authorities to inform them of progress.” Basically, Court have only acknowledged the graveness of the situation as its staff members were accused of breaching the domestic laws in Libya and its readiness to work with Libyan authorities on the matter. At the same time it did not demand the immediate release of its staff, only hinted that according to the procedures of the Court there will be an inquiry after the return of its four staff members.

Moreover, Court “… deeply regrets any events that may have given rise to concerns on the part of the Libyan authorities. In carrying out its functions, the Court has no intention of doing anything that would undermine the national security of Libya. When the ICC has completed its investigation, the Court will ensure that anyone found responsible for any misconduct will be subject to appropriate sanctions”. It seems Court have tried to secure itself in case there was a legitimate breach of domestic law on account of its staff and ensures Libyan authorities there are no hostile intentions on its part.

However, the question is still standing on whether the Libyan authorities had a right to detain ICC staff in the first place. Right now in the international law there are two standing arguments both supporting the claim that ICC staff should possess diplomatic immunity abroad when engaged in the official Court business. One of them argues in favor of applying customary international law. Basically, it argues that even states that are actively at war in vast majority of cases honor the immunity of their respective officials and diplomats. International relations are in themselves bound to one of the oldest principles of international law that is immunity. When we are talking about diplomacy, negotiations of treaties and agreements, international organizations activity we have to keep in mind that all of that would have been impossible without the notion of immunity. Thus considering the practice of states – diplomatic immunity should also be covering ICC officials.

The other point of view refers us back to the law of the treaties. There is an Agreement on the Privileges and Immunities of the ICC (APIC). Even though Libya has not ratified this agreement (as it hasn’t ratified Statute of ICC itself), the argument draws and analogy to the referral of the case of Gaddafi to the ICC by the UN Security Council. Thus if Libya is bound by the rules of ICC Statute through the referral, same goes to the immunities of its staff.

Whatever the stance of the international law is, however, it seems that ICC and UN Security Council are far from pushing its implementation, therefore putting Ms. Taylor in the middle. Nonetheless, diplomatic immunities have to be respected at all times.

Kamal Makili-Aliyev

Doctor of Laws (LL.D)

27.06.2012