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Trafficking in Human Beings: How Companies Can Make a Difference

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Identifying and prosecuting Trafficking in Human Beings (hereinafter, THB) is often very difficult because of the fear of the victims to testify in a criminal proceeding. Therefore, it is fundamental that there is cooperation among states, at all levels and with a holistic plan of action. However, we usually forget the major role that legal persons can play in combating THB, despite studies showing the importance of companies in this globalized crime. According to a report prepared by the Ashridge Centre for Business and Sustainability at Hult International Business School and the Ethical Trading Initiative, 77 per cent of companies think that there is a credible reason to believe that modern slavery occurs in their supply chains[1]. We cannot demonstrate the real data of the use of corporations to commit THB but it is clear that THB, by its very nature, it is often committed within company’s activities and there are companies that are most at risk, such as industries involving agriculture, migrant workers or seasonal product cycles. Therefore, trafficking is a liability for all companies and that liability could be in many countries not only moral, but also civil, administrative or even criminal. For this reason, companies should be aware of the responsibility that they have in the fight against THB and the serious consequences for them if their employers or their managers are involved in this type of crime. Apart from punishment, they would suffer a huge non-material damage as a result of the process.

BACKGROUNDS OF THE COMPANIES´ CRIMINAL LIABILITY

Pope Innocent IV established the Societas delinquere non-potest principle in order to prevent the papal excommunication of civil or business corporations, cities and legal entities for offences committed by one of its members[2]. The principle was later consecrated in most of European systems of criminal laws.  The notion of guilt has been considered as a concept of personal nature and therefore a company could not be criminal responsible for a crime until the 19 century, when the corporate criminal liability was set in the Common Law. The Netherlands became the first Civil Law country to introduce it into its criminal system in 1950, and nowadays most European countries have accepted that possibility. There exists a worldwide trend to corporate criminal liability[3].

We must take into account that we live in a globalized world, where corporations operate worldwide, which directly implies a high risk of being involved in cases of modern slavery or THB.

LEGAL INSTRUMENTS ESTABLISHING CORPORATE LIABILITY IN RELATION TO THB                                            

There has traditionally been some reluctance to attribute to companies liability for crimes committed by their managers or even by their employers. However, corporate liability has been considered a fundamental instrument against organized crime as established in the United Nations Convention against Transnational Organized Crime. Article 10 obliges each State Party to adopt and establish the liability of legal persons for participation in serious crimes involving an organized criminal group, including THB. The liability of legal persons may be criminal, civil or administrative; the main point is that it must be effective, proportionate and dissuasive.

In the same vein, both the Council of Europe Convention on Action against Trafficking in Human beings of 16.5.2005[4] and the Directive 2011/36 on preventing and combating trafficking in human beings require Member States to establish corporate liability. Specifically, according to articles 5 and 6 of the aforesaid Directive, all Member States shall take the necessary measures to ensure that legal persons can be held liable for THB committed for their benefit by any person, who has a leading position within the legal persons based on a power of representation of this legal person, an authority to take decisions on behalf of the legal person or an authority to exercise control within the legal person. Those measures shall ensure effective, proportionate and dissuasive sanctions, with criminal or non-criminal fines and penalties. Furthermore, it must be ensured that companies can be held liable for a lack of supervision or control, and what constitutes in my opinion the fundamental issue in order to use companies as mechanisms for fighting THB.

With regard to domestic legislations, I would like to make a brief reference to the UK Modern Slavery Act of 2015 and the California Transparency in Supply Chains Act of 2010. Both instruments impose obligations on large corporations in order to avoid THB in their supply chains, what constitutes major progress with regard to the fight against THB for labour purposes. Therefore, it would be desirable, in my view, to expand that type of regulations to other countries.

According to Section 54 of the UK Modern Slavery Act 2015 all companies with an annual turnover that exceeds £36m shall be required to make available a slavery and human trafficking statement for each financial year. That annual statement must address a full of organisational details such as the organisation structure,  training about slavery, its policies in relation to slavery and human trafficking, the parts of its business and supply chains where there is a risk of THB and its due diligences processes.

With regard to the California Act, it requires retailers and manufacturers doing business in California (that have over $100 million in global revenue) to prominently disclose, on company websites, the extent to which, if any, the company engages in specific activities to detect and prevent forced labour and human trafficking in their supply chains—verification, auditing, certification, internal accountability, and training. Thus, companies should implement due diligence programs with effective internal controls, with identification of areas at risks and with implementation of specific policies in order to address those risks[5]. Otherwise, they can be in many states criminal responsible for modern slavery or human trafficking and we can imagine the devastating effect that it could bring to them.

Despite those regulations, THB cases against corporations remain too low.  It is a relatively recent issue, with several obstacles such as the extraterritorial application of corporate criminal liability, evidentiary issues and the problems derived from subcontracting with complex corporate structures[6].

MAIN COMPANIES AT RISK

As already mentioned, human trafficking is considered a form of transnational organized crime, which includes displacement of people from their own countries or regions. THB crimes are often committed in more than one country by organized criminal groups[7]. However, smuggling of and trafficking in should be differentiated. According to professor Anis Bajrektarevic there are four differentiating elements: (i) an exploitation and usage of the trafficked person over a long period of time; (ii) inter-dependency that forms a strong (brothers-in-arms like) linkage, between trafficked victim and organized crime groupings; (iii) eligibility for further networking (recruitment for criminal purpose); (iv) very often trafficking itself is not a voluntary movement, but in the case of smuggled persons it always occurs voluntarily[8].

Therefore, it is usual that companies are used as means for THB, in the process of recruitment, transportation or exploitation.

According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Conventions against Translational Organized Crime Trafficking in persons “shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

Therefore, THB offences can be committed by different activities and each of them can involve a particular kind of company. For instance, while recruitment is usually committed on the Internet through false jobs postings, receipt of persons can be performed in hotels. Therefore, I am going to analyse which companies are most at risk stemming of the UN definition and differentiating between the various stages of the THB.

First stage: Recruitment              

The initial stage of the THB process consists of the recruitment. It can be done by several means, and it depends on the purpose of the offence. However, there are usual forms of recruitment, both on THB for labour exploitation and in sexual exploitation.

Social networks play a fundamental role in the recruitment phase and for that reason it is extremely important to implement in those companies effective THB detections systems. It appears that 89% of 12-17 year-old love to chat on the Internet: clase-mates, chat rooms or webnets. These are prefect points for traffickers, who use false identities to lure potential victims to a meeting[9].

With regard also to the Internet, it is common to make use of false jobs advertisements placed on it. It seems to be difficult to detect that type of simulated jobs, but it is also possible to implement different channels for identifying presumed traffickers. The false contracts, and the patterns are always similar. The companies that operate on the Internet should be on the lookout for signs of THB.

Nevertheless, it cannot be ignored that the identification on the Internet is very difficult. The anonymity and mass audience of online services increases both the discretion and profitability of the services but complicates the fight against the recruitment. For that reason, in my opinion the companies that operate on the Internet should increase the delivery of information to users in relation to the THB. Companies should expose the risk of being victim of THB and they should explain the traditional methods used by traffickers. Furthermore, companies should also provide users with direct contacts of the company specialized in the fight against THB, representing intermediaries between users and police authorities.

Finally, private employment agencies, as labour recruiters, have an important role in this first stage of THB. Therefore, the issue of labour recruitment and the responsibilities of governments and employers to protect workers from exploitation were at the centre of the 103 debate of the International Labour Conference, which led to the adoption of the Protocol of 2014 to the Forced Labour Convention, 1930, and the Forced Labour Recommendation 2013 (No.203). As specific provision, it is recommended the promotion of coordinated efforts by relevant government agencies, including efforts to regulate, license and monitor labour recruiters and employment agencies and eliminate the charging of recruitment fees to workers to prevent debt bondage and other forms of economic coercion[10].

In the same row, the International Labour Organization and the United Nations Office on Drugs and Crime (UNODC) call on governments, social partners, businesses, other international agencies, and all concerned stakeholders, to strengthen their efforts to address abusive and fraudulent recruitment practices in statement rendered in June of 2015 in which series of actions were requested:

1.Adopt and strengthen, criminal laws and other regulatory measures, to address the entire spectrum of fraudulent and abusive recruitment practices that may lead to trafficking in persons;
2.Raise awareness amongst recruiters, private employment agencies and employers in the private and public sectors on due diligence and best practices on how to eliminate abusive and fraudulent recruitment practices;
3.Enable cooperation among relevant government agencies, workers’ organisations, employers’ organisations and represent- actives of private employment agencies; promote strategic partnerships between the public and private sectors, and facilitate exchange of good practices within common migration routes;
4.Create complaint mechanisms and ensure that migrant workers who have experienced abusive and fraudulent recruitment practices or subsequent exploitation, gain access to justice and effective remedies, such as compensation;
5.Ensure the Right to Freedom of Association, maximise collective bargaining coverage and support trade unions in their efforts to organize workers, including migrant workers, to better protect them from exploitation during or resulting from the recruitment process.
6.Foster the transparent and participatory negotiation, conclusion and effective implementation of bilateral and regional agreements, rooted in international standards, as well as other specific mechanisms to ensure improved international coordination and cooperation and to close regulatory and enforcement gaps across common labour migration routes.
7.Ensure that national mechanisms to regulate the recruitment of migrant workers are integrated into labour migration policies and relevant bilateral and regional agreements, to ensure coherence between national laws and policies governing labour recruitment and the broader policies relating to employment, skills, and education.
8.Promote the ratification of relevant UN and ILO Conventions, in particular the recently adopted Protocol of 2014 to the Forced Labour Convention, 1930; the Trafficking in Persons Protocol; the Private Employment Agencies Convention, 1997 (No 181); the Migration for Employment Convention, 1949 (No 97) and the Migrant Workers (Supplementary Provisions) Convention, 1975 (No 143) to ensure proper recognition and regulation of labour recruiters and employment agencies

Second Stage: Transition             

According to the UN Protocol, it must be punished not only the recruitment, but also the transportation, transfer, harbouring or receipt of persons. One of the main characteristics of THB, and which distinguishes it from another forms of exploitation, is the transition stage. Victims are transported to the place of exploitation, either within the country or outside the country of origin of the victim, but in every case, apart from their families and friends, what makes them more vulnerable. Modern slavery requires that people are moved from one place to another and for that reason. It is important to adopt measures to prevent THB in all kind of transport firms, hotels and hosting’s companies.

Victims can be transported by land, sea and air. All shipping companies should be aware of the fights against THB. They can be responsible for human trafficking if they do not adopt any measure to avoid that the traffickers use their services to commit their criminal activities. Consequently, companies that depend on transport as part of their values chains, or that are supplying transportation services, must face the risk of being complicit in modern slavery[11]. For instance, there have been several scandals of smuggling and THB using trucks among the world[12], with fatal endings in some cases. To deal with such situations, it was created the Truckers Against Trafficking (TAT) with the mission to educate, equip, empower and mobilize members of the trucking and bus industries to combat human trafficking[13]. Its main goals are to saturate trucking and related industries with TAT materials, partner with law enforcement and government agencies to facilitate the investigation of human trafficking and marshal the resources of their partners to combat THB. Similarly, the International Transport Worker’s Federation is trying to make  people aware of the risk of low cost-holidays. Exploitation often happens at tourist destinations, hotels are anonymous and publicly accessible, making them likely venues for prostitution and crime. And even more anonymous would be new companies, which operate on online leasings or rentings short-term lodging such as apartments or homestays. However, tourism and hospitality stakeholders are often unaware of signs, contributing unknowingly to sex trafficking and the transportation of human beings[14], despite being likely to intervene not only in the second stage but also in the third phase of THB.

Third stage: Exploitation             

Exploitation could be for several purposes but it shall include, according to the Palermo Protocol, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

This phase is what justifies the existence of THB and where the companies have more risk to be responsible for the crime. In contrast with the previous stages, where it is complicated to attribute criminal responsibility to the companies, at this stage, companies should have strong mechanisms of THB detection and specially, those companies that are most at risk.

According to a study elaborated by NGO Verité in 2016, eleven sectors were found to be the most likely to have a risk of human trafficking globally[15]: agriculture, construction, electronics, fishing and aquaculture, forestry, healthcare, hospitality, housekeeping/facilities operation, mining and basic metal production and textile and apparel manufacturing. But there are also additional risk factors. Particular products, such as those that have seasonal cycles, certain business processes, for instance in long and complex supply chains, the use of certain vulnerable groups, such as women and children, and other operations in countries deemed as high risk. The study is mainly focused on the companies’ role attending to their supply chains. In the context of the sexual exploitation, we cannot forget the situation of bars, clubs, escort agencies and brothels, due to the fact that they constitute an important focal point for human trafficking. It is clear that in many occasions the owner of that kind of business would be  responsible for trafficking. But in many other cases, it would be difficult to make them responsible for the scenario of a THB victim working in their establishments, especially when they are big commercial premises. And for that reason, it is fundamental to have the possibility to attribute to that business any kind of liability, whether civil, administrative or criminal. Nonetheless, the seriousness of the offence and the high risk of having workers which are victims of THB in such kind of an industry justifies, in my opinion, the attribution of criminal responsibility to that business or even to the owners, in cases of absolute lack of control.

CONCLUSIONS

Trafficking in human beings is a global problem and one of the world’s most abhorrent crimes. It must be fought by land, sea and air, and with use of all the instruments of the rule of law. The fight against this crime must involve several actors with a multifaceted response. Otherwise, we will not be able to eradicate this shameful crime.

It is crucial that small, medium and large companies are involved in the fights against human trafficking. The aim of the traffickers consists in earning money and to that end they often need corporations. Therefore, if we achieve the goal of preventing the utilization of companies to commit THB, we would be able to put traffickers in a difficult situation. Corporations are a fundamental element in the fight of all globalized crimes. We should  emphasize that companies can and should play a vital role in preventing human trafficking.

At this point, there are already many companies that they are aware of the risks of being involved in a case of THB and take their responsibility for it. There are major initiatives in this area. For instance the aforementioned Truckers Against Human Trafficking or the European Alliance Bankers against Trafficking in Human Beings, which created a practical toolkit with “red-flag indicators”[16].

With the globalization of business, international compliance is a necessity. The global nature of companies with subsidiaries, affiliates, and vendors all over the world provide great opportunities but also great risks of being liable for the actions of  their staff[17]. However, there are many companies that are not conscious of the risks that they take if they do not implement effective measures against THB.

There is currently a worldwide trend to corporate criminal liability and it is only a matter of time we start prosecuting companies which are responsible for human trafficking. Judicial authorities, policy makers, press and civilian play an important role related to corporate liability. We should promote the awareness of companies of the necessity of the implementation of due diligence programs with effective internal controls, with identification of areas at risks and with implementation of specific policies in order to address those risks, and to avoid labour exploitation .

It is responsibility of all of us to combat THB with involvement of all the possible actors.

An early version of this text has been presented at the OSCE Conference (18 Alliance against Trafficking in Persons, Vienna 2018)

[1] LAKE Quintin, MACALISTER Jamie, BERMAN Cindy, GITSHAM Matthew, PAGE Nadine, “Corporate Leadership on Modern Slavery”, Hult research in partnership with the ethical trading initiative, November 2016, p.9.

[2] BRODOWSKI Dominik, DE LOS MONTEROS DE LA PARRA Manuel Espinoza, TIEDEMANN Klaus, “ Regulating Corporate Criminal Liability: An Introduction”, Springer International Publishing Switzerland, 2014, p.1.

[3] OECD, “ Liability of legal Persons for Corruption in Eastern Europe and Central Asia”, 2015,p.9

[4] Article 20 of the Council of European Convention on Action againts Traffiking in Human beinfs, Warsaw,16.5.2005.

[5] D. Sherman Jeffrey, COMM B, BRAITHWAITE Colin, “Risk assesment tools for effective internal controls”, First reference, September 2008,p.2

[6] RODRIGUEZ LOPEZ Silvia, “ Criminal liability of Legal Persons for Human TRaffiking Offences in International and European Law”, Journal of Traffikcing and Human Exploitation, Paris Legal Publishers, 2017, p.105-110

[7] A.FORSTER Bruce, “ Human Trafficking:A Transnational Organized Crime Activity”, American International Journal of Contemporary Research, Vol.3 No.1,January 2013, p.1

[8] BAJREKTAREVIC Anis, “The Palermo Convention, Ten Years After – toward the Universal Criminal Justice, GHIR (Geopolitics, History, International Relations) Addleton Academic Publishers NY, Volume 3(1) 2011, p.44

[9]  SKIOTOU Athanassia P., “Trafficking in human beings:Internet recruitment”, Council of Europe, 2007, p.27

[10] ANDREES Beate, NASRI Alix, SWINIARSKI Peter,”Regulating labour recruitment to prevent human traffiking and to foster fair migration, models challengues and opportunities”, International Labour Organization 2015, p.3.

[11] TRIER HANSES Thomas, “ Transport-The risk of complicity in modern slavery”,Sirius Publications, 2016, p.2.

[12] http://www.bbc.com/news/world-europe-34073534.

http://www.bbc.com/news/world-us-canada-40696306.

[13] http://truckersagainsttrafficking.org/.

[14] Carolin L, Lindsay A, Victor W (2015) Sex Trafficking in the Tourism Industry. J Tourism Hospit 4:166. doi:10.4172/2167-0269.1000166.

[15] DERPARMENT OF STATE, “ Trafficking in persons report 2015”, United States of America,  p.23.

[16] https://uk.reuters.com/article/banks-trafficking/bank-staff-will-red-flag-trafficking-suspects-with-powerful-new-tool-idUKL8N1HW3J4

[17] T. BIEGELMAN Marin, R.BIEGELMAN Daniel, “ Foreign corrupt practices act compliance guidebook: protection your organization from bribery and corruption”, Wiley Corporate F&A,2010,p.g31.

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International Law

A sea and thousands of concerns

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The name of the “Caspian Sea” has been recently heard more than any other time! In the meantime, there are rumors, ambiguities and, of course, concerns that need to be described in the Convention on the Legal Status of the Caspian Sea which was signed on August 12 in the port city of Aktau, Kazakhstan.

Accordingly, there are some important points that calls for attention and scrutiny. In general, over the past 21 years, several meetings have been held on the Caspian Sea and how the coastal countries should be benefited from its resources. In these meetings, legal, security, economic, and even cultural cooperation were discussed among the littoral countries.

After more than two decades of fraught diplomatic efforts, the five littoral Caspian nations – Russia, Iran, Kazakhstan, Azerbaijan and Turkmenistan – agreed upon a legal framework for sharing the world’s largest inland body of water. However, as long as all disputes, especially legal conflicts between the participating countries aren’t resolved, it is impossible to talk about the establishment and continuity of sustainable relations among these countries. It should be noted that over the past two decades, one of the main tasks of our country’s Ministry of Foreign Affairs has been to direct this case and determine its legal convention.

1) Prolongation of the finalizing process of a case is not undesirable if it’s the result of scrutiny in the legal and technical parts. This is the case with determining the legal dimensions of the Caspian Sea Convention. After the collapse of the Soviet Union, we witnessed a kind of transformation in the Caspian legal regime. The Soviet Union was divided into 15 countries.

Consequently, Russia, Kazakhstan, Azerbaijan and Turkmenistan each became a separate and independent variable in this equation. Undoubtedly, the transformation of a two-variable legal equation into a “legal-security” multivariable equation is not considered a simple transformation. Therefore, we should understand the complexities of the Caspian case.

The countries of Iran, Azerbaijan, Turkmenistan, Russia and Kazakhstan each have specific demands regarding their share of the Caspian Sea resources. Making a balance between these demands and subsequently realizing them is very difficult and complicated. What is important in this context is to strengthen the “principle of cooperation” among the Caspian coastal nations, and to define joint maritime projects among all neighboring countries to protect the Caspian Sea.

Another point to be taken into consideration here is about the draft of the Caspian Sea Legal Convention and the role of the Foreign Ministry in this process. As mentioned above, the Caspian Sea Case has been open for more than two decades and has not yet come to a complete conclusion. Negotiations held among the Caspian Sea littoral states should distract our attention from the realities.

It should be noted that the establishment of the Caspian Sea Legal Convention is the basis for solving the existing disagreements over the Caspian Sea and defining concrete and conclusive cooperation among the littoral countries. A remarkable part of such security and economic cooperation will be the result of this convention.
In other words, the Convention on the Legal Status of the Caspian Sea can’t and shouldn’t be taken as in the same level with “defining the security and economic cooperation” between the coastal countries. Undoubtedly, the definition of economic, security and even cultural cooperation between the coastal countries depends on the settlement of legal disputes between these countries and setting of a common legal convention.

2) Speaking of controversial issues such as Iran’s 50 percent share of the Caspian Sea, which couldn’t be fulfilled even before the collapse of the Soviet Union, and the creation of false subjectivities in the country, by those who claim to be the representatives of our people, has no result except for the weakening of national security.

his is while the Iranian president, Hassan Rouhani, had emphasized that “we should recognize there are more important issues that need to be addressed.”
This is a legal process, and one of the main tasks of our country’s diplomacy and foreign policy system is to manage and direct this complex process. Obviously, under the current circumstances, expressing biased and targeted words will only lead to the loss of focus of our country’s diplomatic apparatus on this critical case.

Finally, it should be noted that good commitments were made during the meeting among the countries involved in this case. Today, the ministers of foreign affairs of the Caspian littoral states, unanimously emphasize on the necessity of the absence of foreign forces in this region, which is a positive trend. Moreover, from the statements made by the foreign ministers of the Caspian littoral states, we understand that their cooperation on resolving existing disputes has become faster than before.

However, until all legal conflicts between the Caspian littoral countries are not totally resolved and the Convention of the Caspian Sea Law Convention is not perfectly codified, we can’t think of this legal and strategic case as closed and settled. Therefore, in this critical situation, all efforts should be made so that Iran can benefit most.
It is emphasized here that even one singled legal disagreement should not remain among the players involved in the case. Meanwhile, the mechanism for resolving disputes should be carefully decided. Therefore, while welcoming the settlement of the existing disagreements over the Caspian Sea, there shouldn’t be any haste in completing this process.

First published in our partner Tehran Times

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Iran has to be very careful in future negotiations on Caspian Sea

Payman Yazdani

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Professor of political science says although the text of the Caspian Sea Treaty signed on August 12, 2018 in Kazakhstan does not define the share of each of the littoral states, Iran has to be very careful in future negotiations.

Five Caspian Sea littoral states signed Caspian Sea Treaty on August 12, 2018 in Kazakhstan. The agreement has created many debates about the share of Iran in Iran.

To know more about the issue we reached out to Nader Entessar Professor Emeritus of Political Science in University of South Alabama.

There are many debates on the legal regime of the Caspian Sea. Some argue that according to the treaties of 1921 and 1940 between Iran and the USSR, the share of Iran equals to 50% of this sea. Is Iran’s share stipulated in those treaties?

Nader Entessar

No.  Neither the 1921 nor the 1940 treaties specify that Iran and the USSR each share 50 per cent ownership of the Caspian Sea.  Both of these treaties talk in general terms about the resources of the Caspian Sea being the used by Iran and the USSR without stipulating the exact ownership of the seabed, boundary delimitation, and other related issues.  We have to remember that these two treaties were signed well before the United Nations Convention on the Law of the Sea (UNCLOS) was drafted and came into force.  Therefore, the 1921 and 1940 treaties could not have foreseen the complex issues of maritime boundaries that were discussed in UNCLOS.

Based on the international law, what is the legal status of the Caspian Sea after the collapse of the USSR and the sharing of the Caspian Sea by the five littoral states? Some bring about the idea of 20% sharing? Is there any base for this idea in the international law? 

The answer to this question depends on if the Caspian is defined as a “sea” or a “lake.”  If one classifies the Caspian as a lake, then according to international law its resources should be divided equally among the five riparian states.  However, if the Caspian is designated as a sea, then the five littoral states should draw lines extending from their shores to the midway point with littoral neighbors.  This explains why for many years Iran had insisted on defining the Caspian as a lake.  However, it appears that the five littoral states agreed in Aktau that the Caspian is a sea.  That is why some observers have argued that in the final delimitation agreement, Iran will end up getting not only about 13 per cent of the Caspian but also the saltiest and deepest part of it.

Is the share of each of the littoral states from the Caspian Sea defined in the convention signed on August 12 in Kazakhstan?

No, the text of the Caspian Sea Treaty signed on August 12, 2018 in Kazakhstan does not define the share of each of the littoral states.  In so far as Iran is concerned, this issue will have to be determined in a future agreement with Azerbaijan and Turkmenistan.  Iran has to be very careful in future negotiations with its two neighbors because the resulting boundary agreement will determine Iran’s final Caspian share.

What is the main achievement of the Aktau Convention, signed on August 12 in Kazakhstan, in regards to the legal regime and status of the Caspian Sea?

Although some reports have referred to the Caspian Sea Convention as a “landmark agreement,” I don’t view this agreement as such.  Its main achievement was that after more than 20 years of contentious diplomatic efforts, the five littoral states of the Caspian Sea finally agreed on a legal framework for sharing the resources of this significant body of water.  There are some clear and specific agreements in the Convention.  For example, all five littoral states agreed to 15 miles of sovereign waters, plus a further 10 nautical miles of fishing area.  But the wording of the Convention remains vague in many parts of the document, thus delaying divisive decisions that have to be made in future negotiations.

First published in our partner MNA

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Fifty Years of NPT: Weaknesses over the course

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NPT is a landmark treaty that lies at the heart of non-proliferation regime (NPR). In July 2018, Fiftieth anniversary of the NPT has been celebrated. Theoretically, NPT is committed to the goal of arms control and aims to accomplish the nuclear disarmament. For this purpose, the NPT member states are devoted to pursue three key objectives of the treaty: prevent horizontal proliferation, state’s right to use nuclear energy for peaceful objectives, and nuclear disarmament. However practically due to shifting US’ alliances, major power politics, and growing arms race, the fifty years of NPT has only delivered “Distress, Conflict and discrimination”.

Loopholes and weaknesses exist in NPT which are being misused by Nuclear Weapon States (NWS) and Non-Nuclear Weapons States (NNWS) of the treaty. Despite the NPT’s presence for 50 years and an expansion in its membership, atomic weapons have not been wiped out from the world. All the NWS aim to maintain their nuclear weapon state status due to their security or strategic concerns. Despite the dialogues of arms control, all major and smaller nuclear weapon states are committed to maintaining credible deterrence and strategic balance. Such aspirations of NWS demonstrate that major powers party to the arms control and disarmament treaty are merely the silent spectators to the existing weakened structure of the so called universal treaty of 191 member states due to their own vested interests.

The fifty years of NPT have reaffirmed that the universal mechanism to fight with nuclear proliferation and achieving the objective of disarmament is not adequate for two reasons: first, the international mechanism of non-proliferation has failed to deal with the few potential proliferators; secondly, strategic and security concerns of NWS and NNWS has undermined the Articles I, II, IV, VI and X of the treaty. In spite of the fact that until the 1980s worldwide measures to counteract atomic multiplication were generally more effective, yet in the subsequent years the NPT was not much successful to counter the aspirants of nuclear capability such as North Korea, Iran, Libya and Syria. Due to inadequate mechanism and weaknesses of the treaty, now nine states possess nuclear weapon capability and approximately 30 states have the technical ability to acquire it that is viewed as serious threat to the NPT.

Despite the potentials of non-proliferation, since 1968 with participation of 191 states and various agreements and talks, an efficient and effective regime stresses on pin pointing the weaknesses and restructuring, re-evaluation and reformation of the treaty structure.  The key setback to the NPT is that the articles of the treaty are not fairly adopted by the member states due to which the regime has failed to address the significant objectives of horizontal proliferation, arms control and disarmament. For instance under Article I of the treaty, transfer of nuclear material and technology by NWS to NNWS is prohibited. But treaty has failed to address the transfer of fissile material and nuclear technology from one NWS to another NWS. Such dynamic have increased the insecurities of NNWS and resultantly forces them to take extreme measures to ensure their security .e.g. North Korea. Simultaneously, despite being the member of the treaty, the US has been providing nuclear related technology to India since 1990s under the umbrella of various bilateral treaties or agreements. India-US nuclear agreement and granting of NSG waiver to India is viewed as an intentional measure to help India increase its military buildup to carry forward strategic ambitions of the US in the Asian region.

Furthermore, the US agreement with India for joint production and development of  military related technology such as mini UAVs , distinctive kits for C130 and designing/ development of jet engine technology has played central role in speedy development of India’s nuclear program. Such development is not only the violation of NPT by the US but also compels the NNWS to acquire nuclear capability to address their security concerns.  Right of all states to use nuclear energy for peaceful objectives played key role as bargaining chip and is viewed as major loophole in the treaty due to technical similarities in peaceful use of nuclear technology and technology for military purposes. North Korea Withdrew from the NPT in 2003.Article X of the treaty provides the right to member states to withdraw from the treaty if their sovereignty is on stake. However not accepting the states’ right to withdraw from the treaty is denial of their right of self defence and violation of treaty. Therefore, discriminatory attitude, special treatment and country specific treatment pose serious question mark on the implementation and standards of NPR.It demonstrates that the regime is just an instrument of major powers to fulfill their strategic and foreign policy objectives.

The current doctrines of NWS comprise of elements warfare, which shows hegemonic mindsets of major powers and explains their reluctance to give up on their “nuclear assets”. These factors have posed negative impact on the process of non-proliferation and disarmament. Therefore it can be inferred that the above mentioned scenarios have played central role in keeping Pakistan away from joining the NPR. If NPT states want to attract non-NPT states for the membership of regime then the current member states will have to pursue non-discriminatory approach towards non-proliferation themselves.

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Diplomacy3 hours ago

Kofi Annan: A Humane Diplomat

I was deeply shocked whenever I heard that Kofi Annan is no more. A noble peace laureate, a visionary leader,...

Economy4 hours ago

3 trends that can stimulate small business growth

Small businesses are far more influential than most people may realize. That influence is felt well beyond Main Street. Small...

Terrorism5 hours ago

Terrorists potentially target millions in makeshift biological weapons ‘laboratories’

Rapid advances in gene editing and so-called “DIY biological laboratories”which could be used by extremists, threaten to derail efforts to prevent...

Newsdesk6 hours ago

UN mourns death of former Secretary-General Kofi Annan, ‘a guiding force for good’

The United Nations is mourning the death of former Secretary-General Kofi Annan, who passed away peacefully after a short illness,...

South Asia9 hours ago

Pakistan at a crossroads as Imran Khan is sworn in

Criticism of Pakistan’s anti-money laundering and terrorism finance regime by the Asia Pacific Group on Money Laundering (APG) is likely...

Russia11 hours ago

All sanctions against Russia are based on lies

All of the sanctions (economic, diplomatic, and otherwise) against Russia are based on clearly demonstrable intentional falsehoods; and the sanctions...

East Asia1 day ago

Chinese Game: U.S. Losing Asia and Africa

As the US sanction pressure on Russia intensifies, the US economic and political competition with their most important economic partner,...

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