Introduction
On 18 January 2023, Azerbaijan announced that it had launched against Armenia an inter-state case under the dispute settlement provision in the 1979 Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention). Azerbaijan notified the Bern Convention Secretariat of the dispute by letter on 27 March 2023, stating that negotiations would have failed to resolve it and that the dispute had been submitted to arbitration. This is another episode in a fiery exchanges of legal proceedings between the two states, in particular in relation to the contested area of Nagorno-Karabakh. At the time this post is written, there is a pending case brought by Azerbaijan against Armenia before the International Court of Justice (ICJ), a pending case brought by Armenia against Azerbaijan before the same Court, a number of inter-state proceedings before the European Court of Human Rights, and, most recently, an arbitration initiated by Azerbaijan under the Energy Charter Treaty.
Azerbaijan’s Bern Convention initiative has reached mainstream media not only because it is a new chapter in the legal battle on the Nagorno-Karabakh conflict (which has sparked several international law commentaries over the years), but because it pertains to environmental damage in armed conflict. According to its January 2023 press release, Azerbaijan seeks an order that Armenia cease all ongoing violations of the Bern Convention, and pay full reparation for environmental destruction in the formerly occupied territories. This is the first time that the inter-state dispute settlement provision under the Bern Convention has been invoked. This blog post analyses the relevance of this case in relation to the applicability of multilateral environmental agreements in occupied territory. Using the lack of explicit rules on the protection of the environment in occupied territory as a starting point, we will explore whether environmental treaties such as the Bern Convention are applicable to occupied territory, and their potential to enhance the protection of the environment in occupied areas. We will also discuss under which conditions the specific inter-state mechanisms under the Bern Convention can be activated.
The Law of Occupation and the Environment
The area of Nagorno-Karabakh has been under Armenian occupation between 1994 and 2020 (see e.g. RULAC). The rules governing occupied territory (so-called law of occupation) are customary in nature and are mainly codified by the 1907 Hague Regulations (HR), the 1949 Fourth Geneva Convention (GCIV), and the 1977 First Additional Protocol (API). In contrast to the law on the conduct of the hostilities, which offers some protection to the environment (see e.g. Articles 35(3) and 55 API), the law of occupation contains no explicit reference to the protection of the environment.
The limited protection offered by the law of occupation to the environment is limited and indirect. For instance, under Article 43 HR, the occupying power must take ‘all the measures in his power to restore, and ensure, as far as possible, public order and civil life, while respecting, unless absolutely prevented, the laws in force in the country.’ There is a mutual relationship between the occupant’s responsibility under the first part of Article 43 to maintain public order and civil life on the one hand, and the protection of the environment in the occupied territory. The more the environment is protected, the more civil life of the local population is guaranteed. Moreover, the duty to respect ‘unless absolutely prevented, the laws in force in the country’ prior to the occupation encompasses the duty to respect the local environmental legislation.
Moreover, indirect protection of the environment under the law of occupation can be provided through the rules on property and objects indispensable to the survival of civilians. The rules on both public and private property in the law of occupation focus on the illegality of aspects of the occupying power’s conduct such as unjustified destruction and pillage of property in the occupied territory, as recently affirmed by the 2023 French Military Manual (section 4.4.2.5). For example, Articles 46(2) and 55 HR, Article 53 GCIV, and Article 54 API can be applied to those elements of the environment that are private or public property. For instance, in 2005, the ICJ has recognised the responsibility of Uganda for the illegal exploitation of some components of the natural environment in occupied DRC in light of the applicable rules of the law of occupation on property (paras 219 and 245); later in 2022, the Court awarded to DRC reparations for damage to flora and fauna caused by Uganda in the occupied region of Ituri (paras 328-363).
However, not all the components of the environment are either public or private property. In part to adopt a more comprehensive approach to the protection of the environment in armed conflict, since 2013, the ILC has been working on codifying the rules on the protection of the environment in relation to armed conflicts, with significant attention devoted to occupied territories.
The Applicability of the Bern Convention in Occupied Territory
Although scholars have debated for decades whether international environmental treaties apply to armed conflict and occupied territories (see e.g. Bothe et als; Dam-de Jong; Sjostedt; Longobardo; Dienelt), no international court or tribunal has provided an answer to whether these conventions apply to occupied territory (Abegón Novella, section IV.III). Accordingly, if the proceedings launched by Azerbaijan against Armenia result in an arbitral award on the merits, this would be an important precedent with potentially significant repercussions in this field.
Although in the Nuclear Weapons opinion, the ICJ avoided the question affirming that ‘the issue is not whether the treaties relating to the protection of the environment are or are not applicable during an armed conflict, but rather whether the obligations stemming from these treaties were intended to be obligations of total restraint during military conflict’ (para 30), the International Law Commission (ILC) has confirmed that the existence of an armed conflict does not suspend or terminate the application of a treaty (Article 3 2011 Draft articles on the effects of armed conflicts on treaties). Rather, the ILC considered that ‘treaties relating to the international protection of the environment’ are among those treaties whose ‘subject-matter … involves an implication that they continue in operation’ (ibid, Article 7 and Annex, g).
The analysis of whether the Bern Convention applies to occupied territory can be performed taking into account the twofold test devised to assess whether international human rights law conventions are applicable to occupied territory (see e.g. Ben-Naftali and Shany; Vité; Lubell; Gutiérrez Castillo): first, it is necessary to explore whether a certain convention is applicable to situations of armed conflict given that occupations are situations of armed conflict; and second, one has to explore if the convention applies extraterritorially, the occupied territory being located outside the sovereign territory of the occupying power. The analogy with the applicability of international human rights law conventions is logical: the legal issues at hand are similar (i.e., the applicability of peacetime conventions in armed conflict outside the territory of a state). Moreover, international human rights law is relevant per se to the protection of the environment in occupied territory e.g. in the field of the right to health (see Hulme).
The Bern Convention does not include any provision regarding its application to situations of armed conflict and occupation, nor does it address its extraterritorial scope of application. However, that does not mean the Convention is not applicable to situations of occupation. The applicability of the Bern Convention to occupied territory can be compared to the applicability of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), which, similarly, does not contain any clause on its application in armed conflict and on its extraterritorial scope. In 2004, the ICJ affirmed in its Wall opinion that the ICESCR is applicable to occupied territory (para 112). There is no reason why such an approach should not be employed by the arbitral tribunal created under the Bern Convention in relation to the application of the Bern Convention to Nagorno-Karabakh: nothing in the Bern Convention excludes its applicability during armed conflict and denying its applicability to situations of extraterritorial jurisdiction (i.e., occupations) would frustrate the object and purpose of the Convention itself. In this vein, in relation to the 1971 Ramsar Convention, the Conference of the Contracting Parties in 2022 confirmed that its obligations are applicable to Ukrainian territory under Russia occupation.
In light of the above, we consider that the Bern Convention is applicable to the occupation of the Nagorno-Karabakh, along with international humanitarian law. Accordingly, there is no reason that the arbitral tribunal should decline to hear the case because of the inapplicability of the Bern Convention.
Procedural Issues under the Bern Convention
The arbitral proceedings have been commenced by Azerbaijan under Article 18 of the Bern Convention. This provision refers first to the role of the Convention’s Standing Committee in facilitating a friendly settlement of any difficulty to which the execution of the convention may give rise. Where a dispute between contracting parties cannot be settled through the endeavours of the Standing Committee or by negotiation, then Article 18 provides for arbitration at the request of one of the parties to the dispute. It is not uncommon for multilateral environmental agreements to provide for arbitration of disputes concerning the interpretation or application of their provisions, either at the request of one party to the dispute or with the agreement of both parties. In such instances, the agreement often incorporates a set of arbitration provisions, while providing for the tribunal to determine its own rules of procedure (see for example, Convention on Biological Diversity, Annex II; OSPAR Convention, Article 32). Article 18 of the Bern Convention does not contain a full set of arbitration rules. It sets out the rules governing the appointment of arbitrators, and the tribunal is then to draw up its own rules of procedure. Each party to the dispute should designate one arbitrator, and the two party-appointed arbitrators should appoint a third.
Article 18 contains a default appointment procedure, so that the arbitral tribunal can be constituted even if one of the parties does not designate an arbitrator. This could be a time-consuming process. If a party fails to designate an arbitrator within three months of the request for arbitration, the other party may request the President of the European Court of Human Rights to designate an arbitrator within the next three months. The same procedure applies if, within three months of their designation, the two designated arbitrators cannot agree on the choice of the third arbitrator. If Armenia rejects Azerbaijan’s complaints and objects to them being formulated in the terms of compliance with the Bern Convention, one might anticipate a lengthy process for the constitution of the arbitral tribunal, and, in due course, objections to jurisdiction and admissibility.
Besides the applicability of the Convention to the dispute, a further jurisdictional hurdle might be whether prior recourse to negotiation or to the friendly settlement role of the Convention’s Standing Committee constitutes a prerequisite to commencement of arbitral proceedings under Article 18 (in ICJ, see Georgia v Russian Federation and Ukraine v Russian Federation, and see Nakajima).
Should the arbitral tribunal be established, there are plenty of examples of inter-state arbitration rules upon which the tribunal might draw, including those established by other MEAs, and the optional rules published by the Permanent Court of Arbitration, which include specific rules for arbitrating disputes between states, and rules for arbitrating disputes relating to natural resources and the environment. Any use and adaptation of such rules would generally be made in consultation with the parties to the dispute. Given the nature of Azerbaijan’s claims, rules relating to scientific evidence and the possible appointment of experts in respect of the identification, attribution and assessment of environmental damage are likely be of particular importance. Such issues have proved challenging for international courts in recent cases involving compensation for damage to the environment, including in the context of armed conflict (on assessment of compensation, see for example, Certain Activities (Costa Rica v Nicaragua) and Armed Activities (DRC v Uganda), and see Desierto, Bendel). Further, arbitration rules relating to the failure of a party to appear or make submissions in the proceedings may also be of significance.
Under Article 18 of the Bern Convention, decisions of the tribunal may be taken by majority vote, and the arbitral award is final and binding. Parties are to bear the expenses of their designated arbitrator, and share the expenses of the third arbitrator and other costs entailed by the arbitration. The designation of the registry and provisions for the administration for the arbitration are also not addressed in Article 18. The Permanent Court of Arbitration has been selected as the registry for most inter-state arbitral proceedings in recent years, but it may also be that this role could be fulfilled within the Council of Europe institutions.
Conclusions
This post has explored the potential for the pending arbitral proceedings between Azerbaijan and Armenia under the Bern Convention to offer an authoritative clarification on whether multilateral environmental treaties conventions apply in occupied territory. We argued that this is possible. Accordingly, the outcomes of these proceedings should be closely monitored since they offer the possibility to finally conclude that international environmental law complements the law of occupation in relation to the protection of the environment in occupied territory.
The dispute also has implications for the evolution of the Council of Europe’s approach to environmental protection in armed conflict. In early 2023, the Parliamentary Assembly adopted a resolution and a recommendation, which propose, among others, consideration of further measures under the Bern Convention and/or under a separate regional legal instrument on the protection of the environmentally during armed conflicts.