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International Law

Whatever Happened To Due Process In International Relations?

Rahul D. Manchanda, Esq.

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It seems that recent events across the globe have further revealed a glaring hole within the framework and structure of international relations, law, and diplomacy – the complete and total lack of Due Process.

In each and every country around the world, from the local level all the way to the federal, there exists in criminal and civil jurisprudence the concept of Due Process – a concept which has been defined as the legal requirement that the state must respect all legal rights that are owed to a person.

Due process balances the power of law of the land and protects the individual person from it.

When a government harms a person without following the exact course of the law, this constitutes a due process violation, which offends the rule of law.

Due process has also been frequently interpreted as limiting laws and legal proceedings so that judges, instead of legislators, may define and guarantee fundamental fairness, justice, and liberty.

Analogous to the concepts of natural justice, and procedural justice used in various other jurisdictions, the interpretation of due process is sometimes expressed as a command that the government must not be unfair to the people or abuse them physically.

Due process developed from clause 39 of Magna Carta in England.

Reference to due process first appeared in a statutory rendition of clause 39 in 1354 AD: “No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.”

When English and American law gradually diverged, due process was not upheld in England but became incorporated in the U.S. Constitution.

While there is no definitive list of the “required procedures” that due process requires, Judge Henry Friendly (July 3, 1903 – March 11, 1986), a prominent judge in the United States, who sat on the United States Court of Appeals for the Second Circuit from 1959 through 1974, generated a list that remains highly influential, as to both content and relative priority:

(1) An unbiased tribunal;

(2) Notice of the proposed action and the grounds asserted for it;

(3) Opportunity to present reasons why the proposed action should not be taken;

(4) The right to present evidence, including the right to call witnesses;

(5) The right to know opposing evidence;

(6) The right to cross-examine adverse witnesses;

(7) A decision based exclusively on the evidence presented;

(8) Opportunity to be represented by counsel;

(9) Requirement that the tribunal prepare a record of the evidence presented; and

(10) Requirement that the tribunal prepare written findings of fact and reasons for its decision.

The international news media, on behalf of various governmental agencies, intelligence organizations, private deep state oligarch run businesses, has been blasting from time to time, allegations and accusations leveled by one country or empire versus another, most notably by the Western NATO powers against the Eurasian ones, that of Russia, Syria, Iran, and North Korea, China and others, while the converse has not occurred at all.

This should tell us something.

Lately, the Skripal poisoning attempts, the multiple alleged Bashar Assad Syrian government chemical weapons attacks, and countless others have dominated the headlines.

Russia has been screaming from the rooftops that their greatest concern is that the USA or West will manufacture some type of false flag attack to blame it on them.

The only solution then is that both the United Nations and the International Criminal Court must be given the power, funding, and support by countries that are being victimized by false flag allegations to be empowered to put a stop to these irresponsible lobbings and accusations of criminal conduct by one set of nations versus the others.

When Due Process is absent from our nations’ courts, police departments, law enforcement agencies, then innocent people get thrown into jail in criminal cases or bankrupted in civil matters.

But when nations are not afforded Due Process in the course of international relations, terrorism breaks out, and so does the possibility of nuclear annihilation of all the worlds’ people.

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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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International Law

Celebrate United Nation’s Anniversary Today

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Human history is full of wars, invasions, disasters, injustice and biases among human beings. However the World War I and II are the major disasters for human kind. But there was always a desire for peace, justice, equality and mutual respect. To achieve such goals, many efforts have been witnessed in the history such as the creation of “International Committee of the Red Cross” and “The Hague Conventions of 1899 and 1907”. Following the catastrophic loss of life in the First World War, “the Paris Peace Conference” established the “League of Nations” to maintain harmony between countries. But all efforts were in vain and peace could not be achieved. World War II, was a major catastrophe and number of loss of human life crossed all the records.

United nation was established on 24 October 1945, with its headquarters at New York, USA and further main offices in Nairobi and Geneva and Vienna. It has following six principal organs : the General Assembly (the main deliberative assembly); the Security Council (for deciding certain resolutions for peace and security); the Economic and Social Council (ECOSOC; for promoting international economic and social co-operation and development); the Secretariat (for providing studies, information, and facilities needed by the UN); the International Court of Justice (the primary judicial organ); and the UN Trusteeship Council (inactive since 1994). UN System agencies include the World Bank Group, the World Health Organization, the World Food Programme, UNESCO, and UNICEF.

UN charter was drafted very well, it covers almost all possible aspect of human protection and was based on mutual consultation. It was agreed upon and accepted by all major powers of that time.

The UN is led by Secretary-General, which is tenure post and keep on rotation among the member states based on merit and vote. Currently the post is held by Portuguese politician and diplomat António Guterres since 2017.

UN has few success stories and major achievements in its credit like the role of UN in providing Food Aid to famine hit area, looking after the refugees, protection of children, peace keeping among the warring factions & nations, running free & fair elections, re-productive health & population management, war crimes prosecution, fighting AID, and bringing invisible ignored issues in forefront. No doubt, these are big achievements and UN performed very well.

However, there are so many issues not solved yet. UN failed to narrow down the gap between the rich and poor, small and big nations. It failed to stop wars and invasion by strong countries like: Iraq War, Libya War, and Afghanistan and Syrian issues. UN also failed to implement its resolution of Palestine and Kashmir yet. Although Millennium development goals were defined very well, but still not achieved as per scheduled.

With the changes occurred in the 7 decades, the nature of issues and complication of problems has also changed to a large extent. With creation of new knowledge and new technologies, the world has become more complex. The awareness among human kind has enhanced and they are demanding much more. It might be appropriate that the UN may under-go a comprehensive revision and reforms. There may an open debate and news ideas to make UN more effective should be encouraged. Any reforms backed by masses and intellectuals may be welcomed. Especially the five permanent members of the Security Council may under-goes major structural reforms. As it does not represent Africa, the major continent by population as well as resources. Middle East was ignored, it may be compensated by providing a permanent seat in Security Council. European Union is already very well developed and very strong, but enjoying 2 seats in Security Council permanently. I am not biased and may not give any specific suggestion and do not want to offend any country or nation. But, rather recommend to open a debate and try to find the ways and means to strengthen UN and make it so powerful that, no single country or nation dare to violate its Charter. The objective is to make our world more peaceful and protected.

However, we are elder generation and have a moral obligation to hand-over the world to our young generation, where they can live respectfully, peacefully and fearlessly. Let’s celebrate the UN Day with a wish to make UN more powerful and fruitful.

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