And the Azerbaijan-Armenia Lawfare Expanded
The Arbitration brought by Azerbaijan under the Bern Convention
On 18 January 2023, the government of Azerbaijan announced that it had launched an inter-state arbitration proceedings against Armenia under the Bern Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention). According to the press release by the Ministry of Foreign Affairs, the lawsuit intends to “hold Armenia accountable for its extensive destruction of Azerbaijan’s environment and biodiversity” during the years of “illegal occupation” of the territories from 1994 to 2020.
Both Azerbaijan and Armenia ratified the Bern Convention in 2000 and 2008, respectively, without any reservations. The Convention aims to “conserve wild flora and fauna and their natural habitats, especially those species and habitats whose conservation requires the co-operation of several States” (Article 1). The obligations of contracting parties under the Convention consist essentially of taking “appropriate and necessary legislative and administrative measures to ensure” the conservation and protection of habitats and species (Articles 4 to 7). As Azerbaijan claims, this case appears to be the first known inter-state arbitration under the Bern Convention.
This post addresses several procedural and substantive legal issues that may arise during the course of the proceedings before placing this latest development within the broader context of the lawfare that Azerbaijan and Armenia have been engaging in since 2020.
Azerbaijan’s Environmental Claims in the Aftermath of the 2020 Nagorno-Karabakh War
The Second Nagorno-Karabakh War, also known as the “44-Day War”, was a major escalation of the conflict between Azerbaijan and Armenia over the area in 2020. The intense clashes were followed by the conclusion of a ceasefire agreement which took effect on 10 November 2020. Under the Russian-brokered peace deal, Armenian forces were to withdraw from the zone of hostilities, and certain regions that had been under Armenian control were to be returned to Azerbaijan (see a visual illustration here).
Against this backdrop, and according to Azerbaijan’s narrative, upon “liberating” these territories in 2020, Azerbaijan collected evidence regarding “Armenia’s destruction of the environment” that “caus[ed] severe harm to the area’s natural habitats and species” and “depleted natural resources and destroyed biodiversity”. It refers to “the shocking scale of deforestation” in connection to the building of the Damirli-1 mine, the Galacha hydropower plant in Lachin and the Chardaghli mine. Azerbaijan contends that Armenia breached its obligations under the Bern Convention “to maintain populations of all wild flora and fauna, especially in the area of ensuring conservation, restoration and improvements to the habitats of wild flora and fauna”. As remedies, Azerbaijan is demanding Armenia “cease all ongoing violations of the Bern Convention” and “pay full reparation for its environmental destruction”. However, any further details of substantive issues remain to be seen insofar as Azerbaijan’s notice of arbitration is yet to be publicly available.
Path to Arbitration Under the Bern Convention
The language of the Bern Convention anticipates a sequence of procedural questions that may arise in the course of the proceedings. Paragraph 1 of Article 18, located in a chapter entitled “[s]ettlement of disputes”, provides that a “Standing Committee”, consisting of the delegates of the Contracting Parties, “shall use its best endeavours to facilitate a friendly settlement of any difficulty to which the execution of this Convention may give rise”. Paragraph 2 of Article 18 then reads, in full: “Any dispute between Contracting Parties concerning the interpretation or application of this Convention which has not been settled on the basis of the provisions of the preceding paragraph or by negotiation between the parties concerned shall, unless the said parties agree otherwise, be submitted, at the request of one of them, to arbitration”.
At a glance, arbitration is to be preceded by the involvement of the Standing Committee or direct negotiation between the disputing parties. Given that “words ought to be given appropriate effect”, it may be argued that the two modes of dispute settlement constitute preconditions to be fulfilled before commencing arbitral proceedings, as in the famous Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination setting procedural preconditions for the seizing of the International Court of Justice (see Georgia v. Russia, para. 141). However, the use of the present perfect tense (“has not been settled”) in Article 18, paragraph 2, of the Bern Convention, rather than the simple present tense adopted by the Racial Discrimination Convention, might arguably be interpreted as meaning that the words of the Bern Convention “are descriptive in character” (see Alleged Violations of the Treaty of Amity, para. 50) imposing no obligation to negotiate before starting arbitration.
Assuming that Article 18, paragraph 2, of the Bern Convention sets preconditions for arbitration, the question arises as to whether the two modes of dispute settlement are cumulative or alternative. The conjunction “or”, when forming part of a negative clause, may have either disjunctive or conjunctive meaning (Ukraine v. Russia, para. 107). Nevertheless, the reference to a “friendly settlement of any difficulty” in paragraph 1, as in the “amicable solution” in Article 22 of the Racial Discrimination Convention, may indicate that the involvement of the Standing Committee “is for the States concerned to reach an agreed settlement of their dispute” (Ukraine v. Russia, para. 109). Seen as two means to achieve the same objective of dispute settlement by agreement, Article 18, paragraph 2, of the Bern Convention may arguably be interpreted as imposing alternative preconditions on arbitral competence.
It will then be asked whether one of the two preconditions has been fulfilled. As far as negotiations are concerned, it is likely to be interpreted that the word requires “a genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute” (Georgia v. Russia, para. 157). It remains to be seen whether this threshold is actually met in the present case.
The Azerbaijan-Armenia Lawfare in Context
Azerbaijan’s notice under the Bern Convention is the latest move in the Azerbaijan/Armenia lawfare in the aftermath of the Second Nagorno-Karabakh War in 2020. Both States instituted proceedings before the International Court of Justice, blaming each other for the breach of obligations under the Racial Discrimination Convention (here and here). Further requests for the indication of provisional measures made by both parties will be heard successively on 30 and 31 January 2023. Thus far, Azerbaijan has also commenced two inter-state applications against Armenia before the European Court of Human Rights, whereas Armenia has brought four cases against Azerbaijan (see here) before the same forum. Furthermore, as reported, the first publicly known investor-State dispute arising out of the Second Karabakh War was notified by a group of Armenian investors against Azerbaijan under the 1994 Energy Charter Treaty. The dispute concerns hydroelectric power plants located in the territories retaken by Azerbaijan.
Insofar as both Azerbaijan and Armenia are actively instituting multiple proceedings in various international fora, the Azerbaijan/Armenia lawfare has its own characteristics in comparison to other modern lawfare, which is typically launched by the weaker party against the stronger party in a dispute (see here). Presenting itself as “right” and even a “true victim” in the armed conflict is arguably perceived as serving for recruiting diplomatic support, irrespective of the eventual success or lack thereof in each front of the expanded lawfare. While it remains to be seen what goals the environmental claims of Azerbaijan will serve and to what extent, it is recalled that the ultimate goals of the strategic use of international litigation may go beyond the courtroom (see here).