On January 19, 2023, the Ministry of Foreign Affairs of Azerbaijan (MFAA) issued a press release announcing that Azerbaijan had commenced arbitration proceedings against the Republic of Armenia under the Berne Convention on the Conservation of European Wildlife and Natural Habitats, to which both states are a party. The press release was transmitted to the U.N. on the same day by the Permanent Representative of Azerbaijan to the U.N. The press release stated that this was the first known interstate arbitration under the convention and that the aim of the proceedings was to “hold Armenia accountable for its extensive destruction of Azerbaijan’s environment and biodiversity” in the territories of that were held by Armenian military forces from 1994 to 2020 in the Nagorno-Karabakh region. Citing a 2022 report of the U.N. Environment Programme (UNEP), the press release accused Armenia of deforestation, unsustainable logging, and polluting rivers in the region in violation of the country’s obligations under the convention.
Article 1 of the convention states the aims of the treaty to be conserving wild flora and fauna and their natural habitats, promoting the cooperation of contracting parties in conserving species and habitats whose conservation requires international cooperation, and emphasizing the conservation of endangered and vulnerable species. To this end, the convention requires contracting parties to take appropriate and necessary legislative and administrative measures to protect wild flora and fauna and their habitats. Article 18(1) of the convention provides rules for dispute settlement under the convention, according to which the governing body of the treaty “shall use its best endeavours to facilitate a friendly settlement of any difficulty to which the execution of this Convention may give rise.” Article 18(2) stipulates that “[a]ny dispute between Contracting Parties concerning the interpretation or application of this Convention which has not been settled on the basis of the provisions of [article 18(1)] 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.”
The fact that this is the first known interstate arbitration proceedings brought under the convention attracted commentary on various aspects of the case. One commentator noted that the arbitration could “set a precedent for putting an economic value on biodiversity and environmental destruction” should Azerbaijan succeed, without commenting on the merit of Azerbaijan’s claims. Another commentator raised the questions of whether the procedure in article 18(1) of the convention constituted a precondition for arbitration, and whether the modes of dispute settlement in article 18(2) were cumulative or alternative, thus questioning whether Azerbaijan could directly start arbitral proceedings without first attempting to engage in discussions with Armenia to resolve the dispute. According to a media report published on February 13, 2023, a spokesperson for the Council of Europe, which is the repository for the convention, stated that they had not yet received a dispute settlement request.
Azerbaijan’s move took place against the backdrop of the 2020 Nagorno-Karabagh War and the 2020 ceasefire agreement that resulted in Azerbaijan gaining control of some parts of the territory that were under Armenian control since 1994. A border conflict continues between the two countries. Armenia and Azerbaijan also brought claims against each other in the International Court of Justice under the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan (No. 180) & Azerbaijan v. Armenia (No. 181)) and lodged interstate applications against each other with the European Court of Human Rights claiming violations of the European Convention on Human Rights (Armenia v. Azerbaijan (no. 42521/20); Azerbaijan v. Armenia (no. 47319/20)). All cases are pending.
Kayahan Cantekin, Law Library of Congress
March 13, 2023
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