New Paper: Azerbaijan's Foreign Policy: Between East and West...

Please find my new paper on Azerbaijan's Foreign Policy here. In paper I discuss current state of Azerbaijan's regional and international frameworks of foreign policy and how it was able to arrive where it stands now.

 Kamal Makili-Aliyev

Doctor of Laws (LL.D)

28.01.2013

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Foreign Policy Blueprint: Azerbaijan 2012

2012 is over and out, however events of the year are still here with us, defining the future of Azerbaijan. For Azerbaijan past year was successful both in areas of international cultural and sport events as well as in matters of foreign policy and economy. It can be well said that the interaction of the country with international community have increased as well as the positive feedback on the state’s profile. Moreover, economic growth is also stable and running skywards. In 2012 Azerbaijan continued developing on its bilateral relation with its neighbors in terms of cooperation and trade as well as in solving common problems and negating threats.

Looking back at the past year with scores of different events and stories it seems relevant to chose top five events that have made the most impact on the international relations of Azerbaijan:

       Non-permanent membership in the UN Security Council. Elected by the support of 155 member-states of the UN in 2011 as a non-permanent member of the UN Security Council for 2012-13, Azerbaijan marked its first year with active and enthusiastic approach. Starting its membership in January 2012, Azerbaijan due to the rotation was chairing in UN Security Council in May 2012. During the chairmanship of Azerbaijan UN Security Council discussed many issues including non-proliferation of the nuclear weapons, the situation in Middle East, dealing with crisis in Syria as well as with the situation in Balkans and open high level discussion chaired by the President of Azerbaijan on the matters of combating terrorism. Voting and active participation of Azerbaijan in UN Security Council showed the attention and concern of the country towards different situations that international community is faced with.

        First recognitions of the Khojaly genocide. For Azerbaijan 2012 was also successful in terms of recognition of Khojaly genocide. Genocidal acts committed by Armenian armed forces in February 25-26, 1992 in Khojaly village of Azerbaijan that caused 613 civilian deaths, were officially recognized by the Senate of Mexico on January 31, 2012. That was the first official recognition of the genocide on the legislative level. Following that another legislative body – Senate of Pakistan have adopted the resolution condemning the occupation of the 20 percent of territories of Azerbaijan and the genocide against Azerbaijani civilians committed by Armenian armed forces in the Azerbaijani town of Khojaly on 26 February 1992. With that act Pakistan recognized the Khojaly genocide and demanded implementation and enforcement of the UN Security Council resolutions that demand the withdrawal of Armenian armed forces from the occupied territories of Azerbaijan.

      TANAP. Azerbaijan and Turkey have signed international agreement on trans-Anatolian natural gas pipeline project (TANAP) on June 26, 2012. This project can be considered one of the largest events in energy diversification policies of Azerbaijan. The pipeline’s estimated cost is 7 billion USD. The start of construction works is planned for 2014, while the completion of pipeline is scheduled to 2018. Gas from Azerbaijan will be delivered through Turkey to Europe with the planned capacity of TANAP of 16 billion cubic meters of natural gas per year at initial stage. On later stages the planned increase is up to 23 billion cubic meters by 2023, 31 billion cubic meters by 2026, and at the last stage – 60 billion cubic meters with aim to establish ability to transport additional gas supplies from (or through) Azerbaijan. With that deal Azerbaijan have considerably strengthened its positions both as the energy source for the European market as well as the transit state.

       No man is left behind. In September 2012 after intense diplomatic negotiations Iran have finally released two Azerbaijani poets wrongfully accused of espionage. Moreover, on August 31, 2012 convicted Azerbaijan’s armed forces officer Ramil Safarov was extradited to Azerbaijan where on the same day he was pardoned by the President of the Republic. Though Hungary, the extraditing state, have acted in accordance with European Convention on Extradition, Convention on the Transfer of Sentenced Persons and bilateral agreements, Republic of Armenia following the extradition, have decided to suspend the diplomatic relations with that country. This event, though serious diplomatic and political success of Azerbaijan, have also been used by third parties as an excuse for stalling already quite stagnant process of negotiations around Nagorno-Karabakh conflict. Frustrating ineffectiveness of Minsk Group as well as the slowing dynamics of the negotiations have thus prompted the question of future relevance of the OSCE format of mediation.

       Shutdown of Gabala radar station. Azerbaijan and Russia were unable to come to an agreement and extend a lease deal on Gabala radar station. Previous lease deal on one of 8 main elements of anti-missile defense system of former Soviet Union have expired on December 12, 2012. Two days prior to the end of agreement Russia have officially notified Azerbaijan that it will stop the exploitation of the radar. Official position on both sides sees no harm to the strategic partnership between the countries. The end of the lease on Gabala radar station is significant due to the fact that it was the last presence of Russian military forces in Azerbaijan. After 2012 there will be none.

 Kamal Makili-Aliyev

Doctor of Laws (LL.D)

30.12.2012

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Happy Holidays and Happy New Year

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Growing importance of cybersecurity for Azerbaijan

Only twenty years ago, the cybersecurity matters were of any concern only to people in Hollywood developing movies like “Hackers” that pictured the cybercrimes and cyberwarfare as science fiction. Today, we can safely say that we are living this science fiction.

Growing numbers of cyberattacks on the data and infrastructural systems underlines the importance of the comprehensive cybersecurity for states as well as individuals or corporations. World is experiencing the stage when wealth is digitized and that includes money, personal data and intellectual property. And if you locate your wealth in the digitized form, you have to be ready that cybercriminals may target it.

All that is just one part of the story. On the other hand, for the states like Azerbaijan, that are engaged in the protracted armed conflict for more than twenty years now, the nature of warfare is as changing as rapidly developing information and military technologies. Moreover, when there is an absence of active hostilities and only occasional skirmishes on the frontline, with years the warfare only naturally starts to shift its domains. Right now the shift became apparent. From classic domains of land and air, the warfare for Azerbaijan shifts towards so-called “5^th domain” or cyberspace.

The rapid development of information technologies both globally as well as regionally prompts the countries in the region to keep up with the cyberarms race. Cybersecurity is becoming more crucial for the comprehensive defense of not only digitalized wealth or data, but also quite physical infrastructure and communication systems. Free flow of information by itself constitutes a blessing as well as challenge to sustain and maintain it free.

In such situation Azerbaijan can soon face variety of cyberweapons directed against it. Such weapons were already used in several cases to disrupt, deny and deceive an adversary’s strategic intentions. Though such weapons have not proved to be yet coercive by themselves, they might become just that in the course of future development. Moreover, if used with more conventional instruments of power a coercive effect might build up. The danger of cyberweapons at the same time is in their contemporary indiscriminate character. Computer viruses such as Stuxnet or Flame that have been used as cyberweapons, for example, did not feature the proper level of targeting and became indiscriminate in the process of their use. Effective cyberattack is usually a complex operation with large burden of intelligence. Precisely because of that, for now, the resources and ability to carry out an effective cyberattack lie in the hands of states. However, due to the rapid development of technology, that might well change in the course of next years and provide the groups or even individuals with the same abilities to be engaged in cyberwarfare.

What is more is that for now there is no clear opinion in the international law itself on the matters of cyberwarfare. Many questions relate to if the laws of war apply to cyberwarfare? Can the state exercise its right to self-defense if attacked by the cyberattack? Can it retaliate with physical force?

In the situation of uncertainty even on the theoretical level, cybersecurity of Azerbaijan becomes of growing importance. In light of variety of threats that starts to be even more apparent. First and main threat in cyberwarfare is simple espionage. While it becomes more manageable, the danger to the security of your data, strategic plans or any other classified information increases dramatically as it becomes digitalized and networked. Cyberthreats directed toward obtaining such information should be then countered by the comprehensive security measures.

Another area is so-called “information war”. Being a victim of aggression and even having international law on your side does not by itself safeguard Azerbaijan from the flow of false information and propaganda. As our territories still occupied, so is our country still on the defensive in the “information war”, countering negative flow of the information as well as propaganda from Armenia. In such situation you want to maintain both free flow of information for yourself as well as to protect your “information hubs” from being compromised or misused by the enemy.

Third level of danger might bring even more severe consequences if reached. Cyberattacks proved to be able to bring physical and kinetic effects that become much more an alarming threat as the cyber-weapons progress. In the situation like that it is crucial for Azerbaijan to maintain an appropriate level of cybersecurity to protect its critical infrastructure such as energy grids, financial networks and defense industrial base. The rapid digitalization in these areas brought both positive results for overall infrastructure as well as new security concerns. 

For Azerbaijan the development of cybersecurity strategy becomes increasingly important. Comprehensive strategy in this area would provide for the implementation of effective centralized cybersecurity for the whole country to be able to answer any modern challenges of cyberwarfare, explore potential of cyberspace, protect its networks and systems, add to technological innovations in the area and strengthen collective cybersecurity with its international partners.

 Kamal Makili-Aliyev

Doctor of Laws (LL.D)

03.10.2012

News.az

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Ukrainian Gambit

Ukrainian parliamentary elections are getting closer and closer. On October 28, 2012 Ukraine will have to elect its new “Verkhovna Rada” that consists of 450 members, through new combined proportional and majoritarian (also called “First Past the Post”) systems. Under the new electoral legislation half of the seats in Rada will be elected through the former system (party lists), while the rest of them will be filled through the latter system of elections.

Moreover, the new legislation provides that the voting barrier to be reached by the party to be able to get any seats in parliament was raised to 5%, while political blocks are not able to participate in elections at all anymore – political parties only.

Considering all that, when we look at the pre-election situation it seems quite different from what was to see in 2007. No more there are political forces led by the Vladimir Litvin or Alexander Moroz with leftist and socialist ideas and at the same time there are changes in the opposition to the ruling Party of Regions too. Both most charismatic leaders of the opposition Yulia Tymoshenko and Yuriy Lutsenko are serving their sentences in jail due to criminal charges pressed against them almost a year ago. Hence, the opposition went with the policy of unification and gathered under the banners of All-Ukrainian Union "Fatherland". While the nominal leader of this Union is still Tymoshenko, it is becoming more obvious that the real leadership already belongs to Arseniy Yatsenyuk whose party Front of Changes became a part of the Fatherland in February this year.

Furthermore, there are new players in the game. Famous Ukrainian boxer Vitaliy Klychko is going to the elections as the leader of his newly developed party UDAR (Ukrainian Democratic Alliance for Reform). Almost no one expected such a pre-election success of that party and it has to be noted that its currents polls shows 12% of possible votes under the proportional system. Some experts forecast even 15% as the elections result for this party. Interesting situation is with another newcomer to the political battleground in Ukraine – the Party of Natalia Korolevska “Ukraine – Forward!” Though it is still unknown if this party will be able to reach 5% barrier (current polls less than 4%), it is still impressive how such a fast-runner could prove so well on the pre-election stage.

Last but not least is the participation in the elections of All-Ukrainian Union "Svoboda" led by Oleh Tyahnybok. The Union unites the nationalistic ideologies of Ukraine and currently believed to be able to pass the voting barrier and get its seats in parliament. Svoboda is in strong opposition to the Communist Party of Ukraine that has been steady in its decrease in popularity, however still able to get enough votes to secure seats in parliament.

From the general outlook to the situation one can see the progress in the political development in Ukraine in the sense that there are new political forces on the ground, new coalitions and balances on the table and there seems to be no stagnation in the ideological matters. However, when analyzing the situation on the practical level, everything seems quite different.

United opposition Fatherland on the current polls is a little bit stronger that the Party of Regions on proportional system and they have already negotiated the representation of the candidates in majoritarian system with Svoboda. However, there are still hindrances to the opposition in terms of the unequal opportunities in the pre-election campaigning.

When it comes to UDAR of Klychko and the party of Natalia Korolevska they tend to position themselves as an opposition to the current government, however there are some specifics that may indicate that the situation is less clear. For example, the main financial sources of “Ukraine – Forward!” come from the circles that are close to the Party of Regions, whereas the party of Klychko is still unable to reach some kind of agreement with the united opposition and their allies.

That leaves us with the Party of Regions that has a very interesting strategy. Apart from their customary coalition with the Communist Party, they seem to direct attention more to the first past the post candidates rather than to their party lists. The strategy then will be in form of “Ukrainian Gambit”, by sacrificing the victory on proportional system to the opposition, while gaining more seats in parliament through majoritarian system and securing the dominancy when attracting the possible “swinging parties” like “Ukraine – Forward!” or even UDAR of Klychko (if unable to reach an agreement with opposition) to their coalition in the parliament. 

Will the ruling Party of Regions be able to get its ultimate goal of 300 seats in parliament, thus securing an absolute constitutional majority, remains to be seen. Much will depend on if the new parties will be willing to make their own gambit and sacrifice the democracy for the representation in the parliament.

Kamal Makili-Aliyev

Doctor of Laws (LL.D)

03.10.2012

New Europe, Issue 1002, 14-20 October.
 

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Environment is Meant to Gain More Space in International Law

There are certain things that sometimes escape international lawyer’s mind. Important things that sometimes are lost in the shadows of conflicts and crisis situations, treaties and customary regulations of war and peace. I am talking about environmental concerns of the modern world and how international law is in attempt to regulate them.

To start discussing the regulations in themselves it is important to first remind ourselves about the reasoning behind the environmental challenges. I was reminded by one particular panel on Crans Montana Forum that was held in Baku in the very end of June, called “The Impact of Globalization on the World Environment”. When panel’s keynote-speaker Vice-President of Heydar Aliyev Foundation, IDEA Campaign founder Leyla Aliyeva was delivering her speech it was striking to me that though I knew that our country was left with major environmental concerns just after the Soviet past, I practically never stopped to think that it is I who will be one of those responsible for future cleanup, as every other citizen of my generation will be. When Ms. Aliyeva was talking about the role of younger generation in the prevention of negative effects to the environment – it became clear to me that everyone of us will be responsible to the answer the environmental challenges in his/her own capacity. If I am an international lawyer – then it is quite obvious where I should raise awareness.

However it is not enough just to spread the word and conduct your efforts accordingly. You need to relay them into the future. Just as Ms. Aliyeva pointed out – education on environment is essential to address the future environmental challenges. Our generation when growing up lacked that kind of education due to the period of change and struggle to the basic development, however now we owe it to our children to provide them with the knowledge they need to continue what we will start in preserving our nature, taking care of environment and striving for sustainable development. Because just like Ms. Aliyeva said – the young people are the forth front for environmental developments.

If there will be no action now we might one day find ourselves in the situation described by the other speaker on the panel Mr. Subramaniam Eassuwaren, New Leader 2012 from Sri Lanka who told his very said however educational story of how Sri Lanka lost almost 90% of its rainforests to the development without heed to the environmental protection. If we don’t want to face such situation sometime in the future, we need to answer the call of Ms. Aliyeva that there is a need for urgent actions and commitments on the part of younger generations.

So what does the international law do right now to protect environment? Mostly sought topics of regulation in international law concerning environment are climate change, sustainable development, biodiversity, transfrontier pollution, marine pollution, endangered species, hazardous materials and activities, cultural preservation, desertification and the uses of seas. All of these topics in one or another matter have found themselves in the scope of international environmental law. It is worth mentioning that United Nations has its own Environmental Programme.

However the main question still remains on how to enforce the international environmental law. Of course there are forums that provide the arbitration to environmental disputes between states. There are several international arbitration panels, including International Court of Justice itself. The major problem is that such arbitrations require states to voluntarily submit to their jurisdictions. In addition even if there is a decision made in the international arbitration, it heavily depends on national governments to enforce such decisions. Problems arise when the implementations of ruling is withheld or suspended due to the political or economic reasons.

Another hindrance in the implementation of international environmental law is the lack of the international body charged with the responsibility to enforce such law directly. Thus the responsibility lies on the national authorities to adopt and use implementing policies. That is why it is very important for the international bodies to at least conduct monitoring and diplomatic functions when it comes to the responsibility of the states to protect environment.

Nonetheless, it seems that there is an upcoming tendency of international community to get more involved in the matters concerning international environmental regulations. Though a lot still depends on the good will of the states it is everybody’s responsibility to raise awareness of the situation and demand the effective implementation of the norms that will help us save our future. And it is the responsibility of international lawyers everywhere to take action in the lobbying and promoting the efforts to enforce international environmental law. With that it can truly be said that environment is meant to gain its proper space in international law.

Kamal Makili-Aliyev

Doctor of Laws (LL.D)

17.07.2012

News.az

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Neighborhood Challenge: Outlook to Caspian Security from Azerbaijan

            Caspian Basin can best be described as a strategic natural border linking five states: Russia on the north, Iran on the south, two Central-Asian states of Kazakhstan and Turkmenistan on the east and South-Caucasian Azerbaijan on the west. Caspian Basin rich with natural resources and at the same time situated in geopolitically important region has long since become their collective concern of the neighboring states both in matters of delimitation of the basin as well as with security issues.

            Most of the conflicts of interest on the Caspian arise due to the fact that neighboring states have yet to decide on its legal status and establish recognized borders. Azerbaijan in its turn has always maintained the view that Caspian Sea has to be divided into five sectors. Thus in the limits of its own sector each state would be able to exercise its sovereignty.

            Such a position has a strong merit due to the fact that though Caspian is usually referred to as “sea” in reality is a very big lake as it is inland and does not constitute a part of the ocean. Thus, international law that can be applied to the seas does not apply to the Caspian, making the legal status of Caspian negotiable between the neighboring countries. However, it should be kept in mind that the customary practice of states in cases with bordering lakes is usually sector-based approach.

            Another matter is the environmental security of the basin. Here the approach changes due to the fact that any environmental damage to the Caspian Sea in localized sector would inevitably cause damage to all of the neighboring states. Hence, the situation calls for the approach based on the collective responsibility to protect environment.

            As opposed to the environment there are also military concerns. Recent years have shown steady growth of naval forces of all five neighboring states with Russia and Iran conducting modernization of their Caspian-based vessels and equipment, while Kazakhstan and Turkmenistan made considerable purchases of their own. Such situation was inevitably stimulating for Azerbaijan to start developing its naval military presence to be able to maintain its own naval security. Though such a military growth created a lot of speculations on why there is a need for Azerbaijan to develop naval presence so rapidly and against which country such a trend can be directed, these speculations are quite baseless due to the fact that the equipment Azerbaijan have purchased, was defensive in nature and thus cannot be directed against anybody. Plus it is only natural that Azerbaijan would build up on its naval security considering the overall geopolitical situation in the region.

            In May 2012 in line with such strategy Azerbaijan has conducted its naval military exercises called “Protection of Oil and Gas Fields, Platforms, and Export Pipelines” using ships, speedboats and helicopters. The main focus of the exercises was on protection and defense against terrorist attacks with no offensive objectives.

            However, the largest focus in Caspian still remains on energy security. Due to its geographic location Caspian is a very important link for energy transfers between rich with natural gas Turkmenistan and South Caucasus with opening corridors to Europe. For that same reason the idea of Transcaspian pipeline has dragged a lot of attention in both Azerbaijan and Turkmenistan as well as in Europe. Construction of such a pipeline would allow for the access of Turkmenistan on the European market while supplying Europe with the natural gas it needs thus creating a steady and secure flow of the energy resources from Central Asia.

            Though the project in itself is purely financial, there is a clear picture that it might not be in full accord with political, financial and other interests of other Caspian states. Especially with the borders of Caspian Sea still under question, level of political pressure rises atop the idea of the new pipeline. However, for official Baku it seems the issue stays in the limits of pure practicality. While Azerbaijan expresses both its interest and readiness for the creating of Transcaspian pipeline it will pursue its financial interests and the final decision will be made surely on the grounds of financial feasibility rather than issue-based negotiations. In light of that, it seems only logical that the decision should be made by the two interested states in the limits of their sovereign sectors of the Caspian without need for politicizing the overall process.

           All in all the common security of the Caspian is a serious issue for Azerbaijan. There are still challenges with both legal status of the sea as well as in issues of energy and military security. All of these are possible to overcome with the constructive and pragmatic approach that Azerbaijan is trying to adopt and relay.

Kamal Makili-Aliyev

Doctor of Laws (LL.D)

11.07.2012

New Europe, Issue 995, 15-21 July.

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ICC vs. Libya: Taylor still in the middle

It is more than three weeks since Melinda Taylor was detained in Zintan as the result of the standoff between International Criminal Court (ICC) and Libyan interim authorities on who will put Saif Gaddafi on trial. Ms. Taylor was a part of ICC delegation that traveled June 6, 2012 to Zintan to meet with S.Gaddafi. Due to the indictment of Gaddafi by the ICC in crimes against humanity, Ms. Taylor was appointed as his lawyer to represent him in future trial in Hague. Militants that are responsible for the detention of the Saif Gaddafi, have reported that ICC team was in possession of several documents, one of which was a letter from one of the former accomplices of Gaddafi that is now residing in Egypt. That letter served as an official motive for the militants to detain Ms. Taylor and her team on June 7^th.

The situation attracted concern and attention from international community and many experts in international criminal and humanitarian law as well as certain governments and their officials.

Australian Prime Minister J.Gillard called on Libyan authorities to expedite the end of Ms. Taylor’s (who is an Australian national) detention. Australian Foreign Minister B.Carr said that there seems to be no interest from Libyans in the early release of Taylor and she was denied communication with her family, however her detention conditions are quite good. International movement Coalition for International Criminal Court have also extended its support to Taylor and urged the Libya to release the lawyer as soon as possible.

Nonetheless, the most interesting reaction was from ICC itself that posted press release on June 22, 2012. Through it ICC states that: “… [it] takes seriously the information reported by Libyan authorities in relation to the ICC staff members’ visit. The ICC fully understands the importance of the matter for the Libyan authorities and the people of Libya” and that: “… [it] attaches great importance to the principle that its staff members, when carrying out their functions, should also respect national laws. The information reported by the Libyan authorities will be fully investigated in accordance with ICC procedures following the return of the four staff members. For this purpose, the Court will be seeking further background information from the Libyan authorities. The ICC will remain in close contact with the Libyan authorities to inform them of progress.” Basically, Court have only acknowledged the graveness of the situation as its staff members were accused of breaching the domestic laws in Libya and its readiness to work with Libyan authorities on the matter. At the same time it did not demand the immediate release of its staff, only hinted that according to the procedures of the Court there will be an inquiry after the return of its four staff members.

Moreover, Court “… deeply regrets any events that may have given rise to concerns on the part of the Libyan authorities. In carrying out its functions, the Court has no intention of doing anything that would undermine the national security of Libya. When the ICC has completed its investigation, the Court will ensure that anyone found responsible for any misconduct will be subject to appropriate sanctions”. It seems Court have tried to secure itself in case there was a legitimate breach of domestic law on account of its staff and ensures Libyan authorities there are no hostile intentions on its part.

However, the question is still standing on whether the Libyan authorities had a right to detain ICC staff in the first place. Right now in the international law there are two standing arguments both supporting the claim that ICC staff should possess diplomatic immunity abroad when engaged in the official Court business. One of them argues in favor of applying customary international law. Basically, it argues that even states that are actively at war in vast majority of cases honor the immunity of their respective officials and diplomats. International relations are in themselves bound to one of the oldest principles of international law that is immunity. When we are talking about diplomacy, negotiations of treaties and agreements, international organizations activity we have to keep in mind that all of that would have been impossible without the notion of immunity. Thus considering the practice of states – diplomatic immunity should also be covering ICC officials.

The other point of view refers us back to the law of the treaties. There is an Agreement on the Privileges and Immunities of the ICC (APIC). Even though Libya has not ratified this agreement (as it hasn’t ratified Statute of ICC itself), the argument draws and analogy to the referral of the case of Gaddafi to the ICC by the UN Security Council. Thus if Libya is bound by the rules of ICC Statute through the referral, same goes to the immunities of its staff.

Whatever the stance of the international law is, however, it seems that ICC and UN Security Council are far from pushing its implementation, therefore putting Ms. Taylor in the middle. Nonetheless, diplomatic immunities have to be respected at all times.

Kamal Makili-Aliyev

Doctor of Laws (LL.D)

27.06.2012

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