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International Law

Human rights violations inside EU

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What is the Ostrich Protocol?
How the EU member states play ostrich when it comes to human rights violations inside EU?

The Treaty on the European Union, in its current format also known as the Lisbon Treaty, as well as the EU Charter of Fundamental Rights claim to establish an area of freedom, security and justice, founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and the respect for human rights[1]. That sounds perfect. After centuries of inhuman treatment of people very often by their own governments, culminating in the tyrannies of communism and Nazism in the 20th century, EU citizens should be able to feel safe from brutal attacks and illegal operations of a violent state, if not ….If they are not refugees from another EU member state and they do not try to look for protection because they were subject in their own state to political persecution, inhuman treatment or even torture.

The Geneva Convention about status of and asylum for refugees, persons subject to political persecution, is one of the great international achievements in the field of human rights. The European Union as a successful project of peace, freedom and justice promises in Art.18 of its Charter that “the right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention..[2]” But why is this guarantee denied when the asylum seeker comes from an EU country?

The EU Treaty consists not only of the main articles, but also of some so-called “protocols” which are “annexed” to the Treaty by the “high contracting parties”, i.e. the Member States. One of these Protocols is PROTOCOL (No 24) ON ASYLUM FOR NATIONALS OF MEMBER STATES OF THE EUROPEAN UNION which reads as follows:

The high contracting parties,

WHEREAS, in accordance with Article 6(1) of the Treaty on European Union, the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights,

WHEREAS pursuant to Article 6(3) of the Treaty on European Union, fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, constitute part of the Union’s law as general principles,

WHEREAS the Court of Justice of the European Union has jurisdiction to ensure that in the interpretation and application of Article 6, paragraphs (1) and (3) of the Treaty on European Union the law is observed by the European Union,

WHEREAS pursuant to Article 49 of the Treaty on European Union any European State, when applying to become a Member of the Union, must respect the values set out in Article 2 of the Treaty on European Union,

BEARING IN MIND that Article 7 of the Treaty on European Union establishes a mechanism for the suspension of certain rights in the event of a serious and persistent breach by a Member State of those values,

RECALLING that each national of a Member State, as a citizen of the Union, enjoys a special status and protection which shall be guaranteed by the Member States in accordance with the provisions of Part Two of the Treaty on the Functioning of the European Union,

BEARING IN MIND that the Treaties establish an area without internal frontiers and grant every citizen of the Union the right to move and reside freely within the territory of the Member States,

WISHING to prevent the institution of asylum being resorted to for purposes alien to those for which it is intended,

WHEREAS this Protocol respects the finality and the objectives of the Geneva Convention of 28 July 1951 relating to the status of refugees,

HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:

Sole Article

Given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters. Accordingly, any application for asylum made by a national of a Member State may be taken into consideration or declared admissible for processing by another Member State only in the following cases:

(a) if the Member State of which the applicant is a national proceeds after the entry into force of the Treaty of Amsterdam, availing itself of the provisions of Article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, to take measures derogating in its territory from its obligations under that Convention;

(b) if the procedure referred to Article 7(1) of the Treaty on European Union has been initiated and until the Council, or, where appropriate, the European Council, takes a decision in respect thereof with regard to the Member State of which the applicant is a national;

(c) if the Council has adopted a decision in accordance with Article 7(1) of the Treaty on European Union in respect of the Member State of which the applicant is a national or if the European Council has adopted a decision in accordance with Article 7(2) of that Treaty in respect of the Member State of which the applicant is a national;

(d) if a Member State should so decide unilaterally in respect of the application of a national of another Member State; in that case the Council shall be immediately informed; the application shall be dealt with on the basis of the presumption that it is manifestly unfounded without affecting in any way, whatever the cases may be, the decision-making power of the Member State.”

After very nice introducing words about “fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms constitute part of the Union’s law as general principles … and any European State, when applying to become a Member of the Union, must respect the values set out in Article 2 of the Treaty on European Union,” the disgraceful truth comes at the end: whatever happened or could happen with the applicant in his country, “the application shall be dealt with on the basis of the presumption that it is manifestly unfounded”!

This Protocol (no 24) stands not only in contradiction to itself and the idea of the European Union and its fundamental documents, Treaty and Charter on Fundamental Rights, but is also a severe violation of international law. The Geneva Refugee Convention[3], the Universal Declaration of Human Rights[4] and the European Convention on Human Rights[5] have to be respected by the European Union which should not be “a superstate where international laws which have protected individuals for decades are discarded.”[6] It is the disgraceful “ostrich protocol no.24” which should be discarded immediately by the European Council.

We certainly don’t live in a perfect world. Despite the Universal Declaration of Human Rights of the United Nations, the European Convention on Human Rights of the Council of Europe, the Charter of Fundamental Rights of the European Union, Conventions against torture and inhuman treatment and other International binding covenants human rights violations, torture, illegal detentions, extrajudicial executions etc. are still part of the daily life of too many people. Millions of people are leaving their home country to escape from political persecution, police and military brutality and other unbelievable atrocities[7]. To protect such people the international community set up already in 1951 the Geneva Refugee Convention, the key legal document in defining who is a refugee, their rights and the legal obligations of states, in particular to grant “asylum” to refugees. All member countries of the European Union are party to the Geneva Convention. In addition the EU Charter of Fundamental Rights states in its Art.18 that “the right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community”. That looks like the Union is endorsing international obligations of its member states under the Geneva Convention.

Therefore anybody subject to political persecution, police brutality, torture, inhuman or degrading treatment, illegal detention, unfair trial etc. should at least get asylum in an EU member country. Fortunately the description of the sad situation of millions of people does not apply to the European Union and its member states. And certainly everybody should desire that this situation does not even apply to a single individual within the European Union. But, is there a guarantee? Or is it just wishful thinking that there will be this guarantee? Could it be that “the high contracting parties” and there representatives, i.e. the heads of state and government of the EU member states base their decisions on wishful thinking? Most likely not, therefore we have to ask what else could be the reason for them to “play ostrich” and put, metaphorically speaking, their heads into the sand for not seeing the human rights violation by a partner state in the Union? Among people who know the background of the evolving of Protocol no.24 it is also called the “Aznar Protocol”[8]. As clearly stated by an expert of UNHCR, Karen Landgren, protocol no. 24 (and its assumption that “Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters”) “is the product of a political deal, supported by Spain as the initiator and all those countries who needed the support of Spain in other EU matters”[9].

That Protocol (no 24) had a purely political purpose is also demonstrated by the fact that it refers to nationals of a member state as citizens of the EU. That means that the protocol and therefore the automatic rejection of an asylum request does not apply to non-nationals of an EU member state who seek asylum because of persecution in a member state, for example stateless persons with residence in the EU. What is the reason for discrimination of EU citizens by the European Union? As described by Karen Landgren, Protocol (no24) is not based on legal ground but on pure political decision.

If one believes that political persecution, police brutality, torture, inhuman or degrading treatment, illegal detention, unfair trial could not happen on EU territory one should look to the judgments of the European Court of Human Rights and to the reports of Council of Europe’s Commission for the Prevention of Torture. The Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe adopted a report of MP Marieluise Beck, member of the German delegation to the Assembly, on “Threats to the Rule of Law in Council of Europe Member States” including also members of the European Union[10]. The report, based on facts, realizes politically-motivated prosecutions of political opponents, journalists and civil society activists as well as cover-ups of crimes committed or instigated and organized by politicians! “Serious problems related to the rule of law exist in several member states”. Politically motivated prosecution happens according to the Beck-report and is certainly one of the main reasons to seek asylum. And those who uncover crimes committed or instigated and organized by politicians are obviously under danger in the country where this happens. As one cannot exclude that the same politicians who committed, instigated or organized the uncovered crimes have the power to issue an European warrant, the whistleblowers can be prosecuted on the basis of wrong or fabricated accusations throughout Europe easily and the European partner states are obliged to help, to help the perpetrators. But this is exactly what asylum if well founded should avoid. But currently asylum for an EU citizen is excluded by the Ostrich Protocol. Of course, there were legal remedies, such as appeal to the European Court of Justice or the European Court of Human Rights. But everybody knows very well that these remedies take time, long time. In the meantime the asylum applicant may be extradited to the country of his persecution with unknown consequences.

Among 28 EU member states it was only Belgium who rejected such a deal at the cost of politically persecuted citizens and declared that it will fulfill its obligations under the 1951 Geneva Convention and the 1967 New York Protocol and will carry out an individual examination of any asylum request of a citizen of another EU member state! With this official declaration (no.56) Belgium indirectly confirmed that protocol no.24 is a violation of International law!

As a consequence the Council of the EU should discard Protocol (no 24) immediately. The European Commission, the European Ombudsman and the European Parliament are called upon to support this request. Of course, an application for asylum of an EU citizen will (hopefully) always be an extraordinary, special case. Therefore it may need a special procedure and also special consequences. Instead of forcing member states to ignore their international obligations asylum applications of EU citizens (and permanent residents) should be dealt with at EU level, e.g. by the Commissioner for Justice and Home Affairs or even better by an independent body or committee and when they are well founded asylum should be granted for the whole EU territory. But in such cases the Commission should automatically open an investigation of the situation in the country the applicant is coming from in order to avoid similar cases for the future. Such a procedure would be appropriate for the “area of freedom, security and justice, founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and the respect for human rights”.

 


[1] http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012M/TXT&from=EN

[2] idem

[3] http://www.unhcr.org/3b66c2aa10.html

[4] http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf

[5]Convention for the Protection of Human Rights and Fundamental Freedoms, http://www.echr.coe.int/Documents/Convention_ENG.pdf

[6]William Shawcross, member of the board of the International Crisis Group, Shawcross, A Disgraceful EU Asylum Proposal, the New York Times, 14.06.1997, http://www.nytimes.com/1997/06/14/opinion/14iht-edshaw.t.html ,

[7] 11,7 mio refugees at the end of 2013 according to the 2013 report of UN High Commissioner for Refugees http://www.unhcr.org/539809d40.html

[8]The then Spanish Prime Minister Jose Maria Aznar wanted to hinder with all means that supporters of the terrorist group ETA could be granted asylum in another EU country. But the application of Protocol no.24 is in no way limited to suspects of terrorism!

[9]Landgren, Deflecting international protection by treaty: bilateral and multilateral accords on extradition, readmission and the inadmissibility of asylum requests, UNHCR Working Paper Nr. 10, 1999, S. 12)

[10]http://website-pace.net/documents/19838/1085720/20150108-RuleOfLawThreats-EN.pdf/8f7cf82e-80d5-4b51-abdb-4df05301d73e

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International Law

The difference between Genocide and Ethnic Cleansing

Kagusthan Ariaratnam

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Guernica, 1937 by Pablo Picasso

The distinction between genocide and ethnic cleansing is a “grey area” that befuddles scholars, policy makers, and students alike. The concepts of “genocide” and “ethnic cleansing” can be illustrated through examples. An instance of genocide would be the Holocaust, the systematic obliteration of the Jewish population during the Second World War in Nazi Germany under Adolf Hitler. A more recent occurrence would be the mass murder of 800, 000 Tutsi people in Rwanda by Hutus in 1994.Another example would be the Rohingya Muslims’ persecution in Myanmar in late 2016, when the country’s armed forces and police carried out the killing of Rohingya people in Rakhine State in the country’s northwestern regions. On the other hand, ethnic cleansing, while it also involves the intention to exterminate a population, it is more limited to forced deportation or population transfer. A case of this is the conflict in Jammu and Kashmir. In this instance, terrorists forced the migration of 50,000 Hindus from the state of Jammu and Kashmir through the use of fear, rape, assault, and the destruction of property.

This essay will provide a theoretical explanation of the differences between genocide and ethnic cleansing. Firstly, it will explain the term “genocide” as it is defined by the United Nations’ Convention on the Prevention and Punishment of the Crime of Genocide. Secondly, it will outline the origins and definition of the term “ethnic cleansing” according to the United Nations Commission’s Report on the International Criminal Tribunal for the former Yugoslavia (ICTY).  Finally, the two will be discussed in relation to one another, and ultimately differentiated to shed some light on these two ambiguous terms.

Genocide

It has been outlined in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide in 1948, that genocide requires the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. The Convention explicitly outlines the very acts that are considered under the definition of genocide:

(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

Each component of this article involves lethal force. Furthermore, the Genocide Convention not only defines genocide, it prohibits it. Moreover, the Convention obligates any country to prevent genocide and punish those who have committed acts of genocide. While the Convention stipulates a country’s responsibility to more than merely refrain from genocidal acts, it also requires prevention and punishment, which gives it universal jurisdiction and scope. This highlights the international concern for genocide. It becomes difficult to prove cases of genocide, however, since the following two components are broad in nature, and thus, make “intent” difficult to interpret and prove:(1) The intent to destroy a particular group, and (2) The commission of specific acts in support of the intent.

Ethnic cleansing

The basic foundations of ethnic cleansing are widely understood; however, ethnic cleansing in contradiction or distinguished from genocide has never been codified in international law. Instead, ethnic cleansing is understood as a form of previously-defined crimes. For example, the commission of experts in the ICTY have identified practices employed in ethnic cleansing as “crimes against humanity” that “can be assimilated to specific war crimes” and added, “that such acts could also fall within the meaning of the Genocide Convention”. This quote illustrates the close relationship that the two concepts share, as ethnic cleansing is used interchangeably with genocide or understood as a result of genocide. With respect to previously-defined crimes, the warfare of the former Yugoslavia brought a detailed inspection of the term ethnic cleansing; however, failed to anchor the term within international law (Lieberman 2010). The effect of this incoherence within legal arguments can be seen in the work of the ICTY, but more specifically, in the effects of legal proceedings. The ICTY is the legal body responsible for punishing crimes associated with ethnic cleansing, and its proceedings have most often mentioned ethnic cleansing with the purpose of providing background to a case or evidence of another related crime. Also, within court proceedings, ethnic cleansing is often seen as a term within quotation marks. This, therefore, facilitates the confusion, and the continuation of a gray-area for scholars, policy makers and learners who use the term. In fact, one attorney, in defending the ICTY, sought to use the absence of an international legal definition as grounds to challenge the use of the term, stating that “It does not exist in [the] Genocide Convention or in the international customary law” (United Nations, Case number IT‐97–24‐PT).

Nevertheless, Benjamin Lieberman (2010) explains that in the early 1990s, ‘ethnic cleansing’ entered the academic circle as a new term closely linked with genocide. Lieberman notes:

Language referring to the idea of clearing away groups had been used in previous conflicts, but the particular term ethnic cleansing only gained widespread attention during the wars for the former Yugoslavia. Though now widely condemned, the term ‘ethnic cleansing’ may actually have been coined by supporters of violent attacks designed to drive Bosnian Muslims out of mixed communities in the spring of 1992 (2010: 2).

Since its origin, the use of the term ‘ethnic cleansing’ triggered controversy because it could function as a synonym, that is, a more favorable term to cover up macro acts of violence or make the phenomenon sound less harmful. Nonetheless, despite its origin and potential for the misconception, the term ethnic cleansing quickly gained common recognition as a major form of violence directed toward groups of people. It is a methodical attempt by one political, social, or religious group to remove an ethnic or religious group from a specific area through coercive means, where killing may be involved. It includes both forced migration and the threat of brutal killings to terrorize a minority population and force them to leave a specific territory. In addition, the means utilized to achieve ethnic cleansing may include torture, arbitrary arrest, execution, assault, rape, forcible eviction, loot and arson, destruction of property and so on.

Difference between Genocide and Ethnic Cleansing

To simplify, the term genocide commonly refers to mass murder that is prohibited and punishable under the jurisdiction of the Convention. Genocide and ethnic cleansing are very similar with respect to their intent or purpose; that is, a political or religious group intends to exterminate another political or religious group from the midst of their presence. However, the difference is found within the means by which each concept achieves their intentions. Genocide adopts a much more brutal approach that utilizes mass murders and brutal killings, while ethnic cleansing adopts a more limited approach that utilizes forced deportation or population transfer.  In other words, ethnic cleansing chooses to terrify a particular ethnic group, forcing them to leave a particular area in order to create a more homogenous population (Lieberman 2010). For example, although historians have used the word ethnic cleansing to explain the systematic and brutal killings of Jews during the Holocaust of the Second World War, the very fact that it involved mass murders of some six million Jews indicates that it was more of a genocide than ethnic cleansing. To distinguish, some 50,000 Hindus from the state of Jammu and Kashmir were displaced through acts of bodily harm and theft or the imposition of fear there from; thereby illustrating the acts of ethnic cleansing.

Debates over the classification of ethnic cleansing often focus on the intent of the perpetrator. Refugee movements, for example, confirms the characteristic of ethnic cleansing actions, but to apply the term ethnic cleansing, one must also entail a judgment or interpretation of the organization’s intent and the planning of their encouraged eviction. For example, the removal of civilians during wartime could be considered a war crime, however; the distinction of ethnic cleansing occurs when refugees flee a war zone as the result of the fear of uncertainty or the risk of grave harm. Genocide, on the other hand, would not involve such large emigration of refugees due to the mere extent of murder that would be involved. Therefore, it becomes clear that both ethnic cleansing and genocide involve roots of ethnic and religious hatred and refer to the intention of removing an ethnic or religious group from a particular area. The only difference that separates ethnic cleansing from genocide lies in the fact that ethnic cleansing is more of the nature of forced migrations, while genocide strictly involves absolute elimination through mass murders and brutal killings.

Conclusion

The global community deserves to understand the difference between these two ambiguous concepts since this distinction outlines the extent of the destruction caused, the extent to which people are targeted, and the explanations for why they are targeted. In short, the international scholar community must become more attentive to the finer details of each case of genocide and ethnic cleansing, as these populations who suffer horrendous crimes deserve legal justice. The international community will become further misguided if they only engage in legal debates surrounding the crimes committed, rather than become focused on their moral responsibility of proactively preventing future crimes of genocide and ethnic cleansing by way of clear identification.

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International Law

Legal framework of the Caspian Sea and the interests of Iran

Javad Heirannia

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Authors: Javad Heirannia and Omid Shokri Kalehsar*

In international law, the concept of power is inevitably alongside with the principles of the law.

In other words, since there is no judiciary reference in the international judiciary conflicts, the law is affected by the concept of power in international system. There are different opinions about the relationship between power and law.

Different legal schools of thought differ in their views towards the relativity of power and rights.

Realists believe that power is the main core of international law and takes the main role in the basic norms and principles of international law and relations. So; law should be in compliant with national interests and accordingly it takes prominence. Contrary to realists, scholars from the Yale University Law School do not accept power as the core of international law and emphasize global social commonalities instead of the traditional notion of power. But in general, we cannot ignore the role of power in creating international rules among governments.

Therefore, due to the importance of power in politics, when we want to determine Caspian Sea legal status, at the same time that we pay attention to previous legal contracts, including the treaties of 1921 and 1940 between Iran, Russia and the former Soviet Union, we have to also consider the political conditions. According to the text of an agreement between the presidents of Iran, Russia, Azerbaijan, Turkmenistan and Kazakhstan, signed on August 5 in Aktau, Kazakhstan, the five countries agreed on issues such as military, security, shipping and economic matters, but delineating seabed and sub-seabed postponed to bilateral agreements between countries. However, the announcement of the signing of an agreement between the government of Iran and the other four countries after nearly three decades of the collapse of the Soviet Union Led to the critical reactions of many Iranians, especially those saying that Iran had enjoyed 50% share of Caspian Sea during the former Soviet Union.

Russo-Persian Treaty of Friendship (1921), Treaty of Commerce and Navigation (1940)

The 1921 treaty is one of the agreements between Iran and Russia on the Caspian Sea. According to the treaty, the Caspian Sea is a common sea between Iran and Russia, both enjoying equal rights of free navigation. According to Article 40 of the treaty, 10 miles were considered as an exclusive fishing zone and the rest was shared between Iran and Russia. Of course, in this treaty, Iran was requested to surrender fishing privilege to Russia to help Russian livelihoods, and the privilege was awarded to them in 1925 for 25 years. But Iran’s Prime Minister, Mohammad Mosaddeq, did not extend the second period of 25 years, although the Soviets continued fishing in all areas and waters of the Caspian, but Iran was usually fishing only in the coastal zone. This continued, and although the fishing privilege for the Russians was not renewed, Russia and Iran both operated at the sea.

Before signing 1921 contract, only the Russians could have military naval forces in the Caspian on the basis of Treaty of Turkmenchay and Treaty of Gulistan, the privilege of which was awarded to Russians by two above-mentioned treaties. In fact, after the oppressive and one-sided Treaty of Turkmenchay and Gulistan between Iran and Tsardom in the first quarter of the nineteenth century, 1921 contract between Iran and the Russian government was the first formal agreement with almost equal status in the Caspian Sea. But the 1940 contract was a little different from the 1921 in which the Russians set to be in a higher position in the contract clinched during Stalin and Iran, the difference of which is totally clear by contrasting them. Parts of the 1940 treaty were on commercial and customs rights between the two countries and other clauses were about the shipping rights of the two sides over the Caspian Sea. The position of Iran in this contract was slightly better than the one in what were signed during the Tsardom of the Russian era.

Dividing the seabed and sub-seabed; ignoring Iran’s viewpoints

After the collapse of the Soviet Union and the founding of the Russian Federation, three other new countries around the Caspian Sea were created from the Soviet heritage, including Kazakhstan, Azerbaijan and Turkmenistan. Although Iran and Russia at this stage were set for the Caspian Sea to treat a shared one, the Russians took a dual stance in this case. In this regard, Russia from one side stroke a bilateral deal with Kazakhstan in 1988 dividing the northern seabed and its resources and from the other side clinched similar contract with the Republic of Azerbaijan. It led to Iran’s protest maintaining that because both countries enjoy the joint ownership of the Caspian Sea, then any decisions have to be taken jointly in this regard.

According to the joint ownership principle, resources are considered jointly and therefore would have to be divided equally based on an agreement signed by all the Caspian coastal countries. Hence, what the Russians did in dividing Caspian seabed and its resources bilaterally ran contrary to joint ownership principle. In fact, when we consider the Caspian Sea as a common sea, all the resources of this sea are divided equally among all members. Therefore, the Russians’ attempts to conclude bilateral agreements and the division of the continental shelf is contrary to the being common sea of the Caspian.

Under Mohammad Khatami, the then president of Iran, it was proposed that the Caspian Sea be divided equally having 20% share by each coastal country, but four others did not accept the offer, after which Iran declared that it will not allow any interference by other countries in 20% of its adjacent waters So, the Russian vessel left waters of Iran. Since that time, Iran has emphasized its 20% share, but Azerbaijan and Turkmenistan were dissatisfied with this situation, especially in the Alborz field with oil resources, making it a dispute and the disagreement has prolonged so far.

After Kazakhstan’s Aktau agreement on the Caspian Sea, Iran declared to continue governing its 20% share of waters as long as its share with Azerbaijan and Turkmenistan is not determined well.

After the meeting, Iranian President Hassan Rouhani stated: “There are still issues in the southern part of the sea between Turkmenistan, Iran and Azerbaijan. We had good agreements with Azerbaijan that are in operation, but some of these issues have not been resolved yet. At the recent Caspian Summit, some serious issues concerning Iran and many other countries were resolved the most important of which was security in the Caspian Sea.

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The talks between Iran and Azerbaijan and Turkmenistan on the Caspian Sea have been Unsuccessful. Recently, Russia has announced a new plan with coastal states accepting it with the exception ofIran. According to the Russian plan, 15 miles would be considered as the territorial sea and 10 more miles as the exclusive fishing zone. The surface water would be for shared shipping, but seabed and sub-seabed resources are divided according to the 1998 contract.

In Kazakhstan’s Aktau agreement, Caspian Sea navigation was calculated according to the Convention on the Law of the Sea(1982). According to the Convention, 15 miles considered as coastal waters and 10 miles as the exclusive fishing zone putting the rest as a common area. This means that the sovereign right of Iran in the Caspian will be less than 13%.

Because the Caspian Sea doesn’t have any link to open waters, it is in fact considered as a great lake the rules of which are regulated on the basis of the coastal states multilateral agreements.

Based on Kazakhstan’s Aktau agreement, the baseline of the Caspian Sea has been identified; therefore, it is impossible for Iran to determine its share of the seabed and sub-seabed resources in upcoming negotiations. Also, since the deeper part of the Caspian Sea is located in the southern part, the Iranian side, Iran’s share of internal waters will be much less. In the other words, Iran’s baseline in Caspian Sea will not be so distant from the coast, something that can bring about security consequences for the country.

Sharing seabed and sub-seabed in accordance with bilateral agreements among other countries expect for Iranis detrimental to Tehran. However, when the rule over a sea is deemed as joint ownership, its mineral resources, oil and gas are to be taken into consideration fully and then the achieved interests are divided among 5 countries. According to the Convention on the legal status of the Caspian Sea, the areas beyond the territorial waters and exclusive fishing zone of each country are to be known as a common or joint zone. In this case, the use of seabed resources in the Caspian Sea remains unclear.

This is especially true in the southern part of the Caspian Sea, because the fate of the resources in the northern part of the Caspian Sea is determined in the bi-and-trilateral agreements of Russia, Kazakhstan and Azerbaijan. So, the existing disputes are only among Iran with two countries including Azerbaijan and Turkmenistan. As a result, declaring the area beyond the territorial waters and the exclusive fishing zone as a joint ownership means destroying the sovereignty of Iran over the energy field of the Alborz in the Caspian Sea. Based on bilateral agreements signed between Russians with Kazakhstan and then with Azerbaijan and also between Kazakhstan with Turkmenistan in 1998, seabed and sub-seabed resources were divided between themselves, making the share of Iran negligible.

Russia, in fact, by signing the above bilateral contracts violated the joint ownership agreed upon with Iran and the case ended in Tehran’s detriment. Since the presidency of Khatami, Iran has emphasized that it has 20% share in Caspian Sea and announced not to allow others to do any kind of activity in its territorial waters. That’s why the Azerbaijani oil operation in the joint oil field with Iran was stopped. While before Kazakhstan’s Aktau agreement, Iran rejected the joint exploitation with Azerbaijan, Tehran approved 50-50 division of the oil field of Alborz with the country in this convention.

One of the criticisms leveled against Aktau convention is that the determination of the share of each Caspian coastal state in the seabed and sub- seabed and put to future bilateral negotiations.

In other words, the convention only discusses surface water and since the convention has determined the baseline, Iran cannot determine its share in seabed and sub-seabed.

Of course, the Kazakhstan’s Aktau agreement calls for a revision of the previous bilateral agreements between 4other Caspian Sea states, which can be in Iran’s favor. The review not to be based on the length of the beaches, since the contracts of 1921 and 1940 were not based on the length of the coasts, but all the sea was reckoned as common. Therefore, Iran’s share in Seabed and sub- Seabed resources should be more than what is now mentioned in the Aktau convention. Accordingly, if there is a review in the agreement, it can make a revision in Iran’s right and share in the Caspian Sea. While, due to the ordinary practice that making any decision is based on bi-and-multilateral negotiations, bilateral agreements clinched between some coastal countries have led to the violation of Iran’s rights in the Caspian Sea.

“Taking dual role, unfriendly and sensitive-inducing of Russia in the issue as well as sharing method of seabed based on bilateral agreements with new adjacent neighbors is one of the most important reasons Iran encounters a crucial problem in the Caspian Sea whereof”, Mohsen Aminzadeh, former deputy for foreign minister of Iran during the presidency of Mohammad Khatami, believes. In reaction to Russia on dividing the resources of the Caspian sub-seabed without any coordination with Tehran, Iran announced that the final acceptance of the Caspian Sea enjoying joint ownership in the legal regime is conditional to determine the Caspian sub-seabed resources. This is while Iran for the first time formally abandoned the condition at the second meeting of the Caspian Sea in Tehran accepting the joint ownership of everything in the Caspian Sea but the sub-seabed tacitly.

Iran also accepted the crossing of the pipeline and energy transmission through the Caspian Sea in the Aktau agreement. This is while the crossing from Turkmenistan and Azerbaijan could have been done through Iran instead. Consequently, from one hand, Iran lost this opportunity and on the other hand, accepting the crossing of the pipeline through the Caspian Sea will have environmental risks. Regarding security issues, The Kazakhstan’s Aktau agreement says that the Caspian Sea is not a military one, resolving Iran and Russia’s concerns over the presence of NATO in the sea. Of course, the very issue was in the previous treaties, but it was discussed more extensively in the Kazakhstan Convention. So, foreign powers cannot run for any military and naval bases on the Caspian shore and making any threats against other coastal states.

Prior to the Aktau agreement, When Iran had any disagreement over the Caspian Sea, it relied on both historical background and the 1921 treaties with Russia and 1940 treaties with the Soviet Union. Iran has always put emphasis on this historical background making its status one of two historical claimants of the Caspian Sea. Iran ignored these two historical contracts in Aktau convention by giving them up in its text.

Earlier, during the formal declaration of Tehran Summit, being the first joint document of the five leaders, no reference was made to the above-mentioned historical background and contracts.

The President of Kazakhstan formally stated in his speech that the previous treaties over the Caspian Sea have become null and void making it deemed accepted indirectly by Iran’s silence.

The newly independent coastal states are not interested in the historical background of the Caspian Sea, so they are trying to forgo the historical claimants of the two countries -Iran and the Soviet Union. They are more willing to Institutionalize the trends of the five countries instead of the historical background, but this doesn’t justify Iran’s withdrawal from its substantiated claims on the Caspian Sea.

“Iran could at least register its own stance alone concerning the historical background of its claims on the Caspian Sea in Tehran Summit putting emphasis on it. Therefore, it is really unclear why such a negligence was made in spite of the great importance of these backgrounds over Iran’s endless legal disputes over the Caspian Sea.” Mohsen Aminzadeh, former deputy for foreign minister of Iran during the presidency of Mohammad Khatami, believes.

*Omid Shokri Kalehsar, Senior Energy Security Analyst

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International Law

UN Global Compact on Migration: Toward a Resurrection of International Refugee Law

Dr. Nafees Ahmad

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International Refugee Law (IRL) stands on a humanitarian platform that is, unfortunately, derisory and insufficient for the contemporary time, but one, which remains a terra incognita despite the frequency and enormity of current refugee crises. The problem of the refugee is today profoundly different. The persecutors are not defeated and defunct regimes.  Instead, persecutors are existing governments, able to insist on the prerogatives of sovereignty while creating or helping to generate refugee crises.  When labeled as persecutors, they react as governments always react. They assert their sovereignty and castigate as politically motivated the human rights claims made against them.  To criticize these governments as persecutors are often the surest route to exacerbating a refugee crisis because it shrinks the opportunity to garner their requisite cooperation. In the face of dramatically and cataclysmically changed social and economic conditions, States felt obliged to abandon the centuries-old practice of permitting the free immigration of persons fleeing dangerous circumstances in their home countries. To limit the number of persons to be classified as refugees while still offering sanctuary to those in greatest need, international legal accords were enacted which imposed conditions requisite to a declaration of refugee status.

The Global Compact for Safe, Orderly and the Regular Migration (GCM) is slated to be unprecedented inter-governmental agreement secured by the United Nations Organization (UNO) addressing all dimensions of international migration. It provides an extraordinary occasion to enhance the Global Governance of International Migration within the Framework of Sovereignty, Safety, and Sustainable Development. In the contemporary international migration patterns, migrants have become a resource to sustainable development. The idea of GCM mooted in April 2017 would be crystallized at the end of 2018 by adopting the GCM at the United Nations General Assembly (UNGA) sponsored inter-governmental conference on international migration.

GCM Genesis: The New York Declaration

On 19 September 2016, Heads of State and Government congregated to regurgitate at the global level within the UNGA, challenges presented by the international migration and refugees’ flows across the globe. It evolved a political understanding that international migration and refugee issues must have visible priority in the global agenda. Thus, 193 UN nation-states have committed and recognized the necessity for greater cooperation coupled with a holistic and consolidated approach to address the human mobility and adopted the New York Declaration for Refugees and Migrants (NY-DRM). The NY-DRM envisages the protection, safety, dignity, human rights and fundamental freedoms of all migrants irrespective of their migratory status at all times by supporting nation-states who are receiving, rescuing and hosting large populations of migrants and refugees. It undertakes to integrate migrants with the host communities by addressing the requirements and capabilities of both migrants and host states within the framework of sovereignty, safety, and sustainable development. It requires combating xenophobia, abolishing the racism and eliminating discrimination towards all migrants by developing a state-driven process of non-binding principles and voluntary guidelines regarding the treatment of migrants in vulnerable situations. The NY-DRM stipulates the strengthening the global governance of international migration, including by bringing International Organization of Migration (IOM) into the UN orbit and through the accelerated development of a Global Compact for Safe, Orderly and Regular Migration.

GCM Aims: Agenda For Sustainable Development

The NY-DRM under its Annex II has commenced an inter-governmental process of consultations and parleys culminating in the scheduled adoption of the Global Compact for Migration at an intergovernmental conference on international migration in 2018.The GCM has been contemplated consistent with Target 10.7 of the 2030 Agenda for Sustainable Development in which UN Member States pledged to have global cooperation to enable safe, orderly and regular migration as per the mandate enunciated in Annex II of the NY-DRM. The Annex II proposes to address all dimensions of international migration, including the developmental, environmental, human rights-oriented, humanitarian, and other dimensions. It is bound to contribute to global governance and improve coordination on international migration by envisaging a framework for comprehensive international cooperation on human mobility and migrants. The impugned GCM framework would have a range of actionable commitments that might ensure the implementation, follow-up structure, and review among the UN Member States regarding international migration in all its dimensions propelled by the 2030 Agenda for Sustainable Development. Further, the Addis Ababa Action Agenda and the Declaration of the 2013 High-Level Dialogue on International Migration and Development would create an informed international community.

GCM Development: The Rule of Law, Transparency and Inclusion Process

The place of the rule of law in the global governance of international migration has been duly identified as an appropriate lego-institutional response to migratory movements. However, the rule of law required its application and interpretation in the municipal jurisdiction and as well as international courts and tribunals particularly in the context of human rights of migrants and refugees and forcibly displaced persons. Therefore, the rule of law must also be reflected in the reception policies of migrants, refugees, and forcibly displaced persons. The role of international and regional organizations like SAARC in supporting the incorporation the rule of law in municipal legal, administrative and judicial processes in the wake of global migration governance issues. Consequently, the process of consultations and negotiations for developing the GCM is being evolved with elements of openness, transparency, and inclusion. GCM subscribes to the active participation of all the stakeholders in its process such as civil society organizations, NGOs, the private sector, academic institutions, legislative bodies, diaspora communities, and migrant organizations. These elements have been postulated in the Modalities Resolution for GCM inter-governmental parleys.

Conclusion

The GCM is slated to explore the multi-layered dimensions of protection that international human rights law (IHRL), international humanitarian law (IHL), and customary international law (CIL) along with IRL offer to asylum-seekers, refugees, and the forcibly displaced migrants. The ambition of the GCM framework is to guarantee a defined range of protection to all human beings, and thus resurrect the IRL foundation from normative entitlement on the ground of exclusive reliance on national membership to substantive architecture of Safe, Orderly and Regular Migration Governance with a vision of common humanity. The GCM is a comprehensive initiative of international perspective that should not remain formally tied to States rather it must operate as a collective regarding its inception and implementation. The GCM norms must visualize the integration threshold with the empirical world while crystallizing the responsibilities for practical delivery. The GCM should remain predictable that the expectations raised by the normative reach of the IRL are often dashed in the multifaceted and problematic human world of contributory power, politics, and conflict. The mandate of the GCM ought to adumbrate the IHRL, IHL, CIL and IRL context, and allude the laxities and limitations for the resurrection of the IRL for ensuring the protection of refugees and asylum-seekers and to enhance the global governance of international migration.

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