Part IV: Conclusion — Legal & Moral Imperatives
The abstract that advertised my presentation at the Environmental Engineering Seminar, University of Southern California, in October 2001, provides here a useful summary of the preceding parts of this quartet on the environmental demise of the Caspian Sea —
The ecosystem of the Caspian Sea is near death… It is already too late though for the more than 16,000 seals out of a population of 400,000 that washed up dead on the beaches of Azerbaijan and Kazakhstan in 1999-2000 alone… In less than a decade since the demise of the Soviet Union, the coveted beluga sturgeon is now near extinction, as the sea continues to yield less and less of the other varieties of fish… Yet, no greater priority preoccupies each of the five coastal states — Russia, Kazakhstan, Turkmenistan, Iran, and Azerbaijan — than how to secure for itself the greater share of some 200 billion oil-barrel equivalent of hydrocarbon that is trapped in this land-locked basin… There is only a half-agreement on the legal regime of the sea… And so there should exist no greater an imperative than a collective effort by the international community to address the Caspian's environmental woes before it is too late….
In the Caspian region, the environment simply is not a priority, even though there is mention of it in many official statements that emanate from the area. One set of inter-governmental documents worth exploring in this regard consists of the pronouncements of the Economic Cooperation Organization (ECO), a 10-member group of countries that include Afghanistan, Azerbaijan, Iran, Kazakhstan, Kyrgyzstan, Pakistan, Tajikistan, Turkey, Turkmenistan, and Uzbekistan. The Joint Communique that followed ECO's Second Summit Meeting (July 1993) listed the environment next to last among the group's priorities. It stated: “The protection of the environment has been identified as a new field of collaboration and Member States would draw up a list of environmental issues in the ECO region and consider ways of resolving them in collaboration with various international bodies.”
The ECO calendar of program implementation for 1994-95 contained no activity on behalf of the environment. The Joint Communique of the Third ECO Summit Meeting (March 1995), too, proved discouraging: The summiteers simply “[c]alled for appropriate strategies to enable adoption of such industrial and commercial policies that would take due account of the environmental concerns of the ECO region.” Three years later, in May 1998, the ECO Heads-of-Government Summit in Kazakhstan produced the Almaty Declaration. If it was an improvement on the prior statements of the organization it admitted finally that things were rotting in Ecostan.
In Almaty, the Member States “Underlined the growing importance of the environmental issues as well as their increasing impact on the sustainable development of the region and reiterated the need to enhance the protection of environment in the ECO area through regional cooperative measures.” And the summiteers “Welcomed the decision of the heads of Central Asian States on creation of International Fund on Aral Sea Saving and recommended to ECO Member States to consider the possibility of evolving rehabilitation projects with the financial and technical assistance of donor countries, regional and international financial institutions to the areas which are suffering from the ecological catastrophes including the Aral Sea, Caspian Sea and Sarez Lake basins, the Semipalatinsk Nuclear Rest Site, nuclear waste storage and disposal and others.”
Because five countries border the Caspian, the tendency has been among the environmentalists and policy-makers to naturally look to a multinational or international approach in dealing with the environmental woes of the sea. On the other hand, the pronouncement such as the Almaty Declaration is a disservice to the cause of environmental protection in the Caspian. Its heavy dose of emphasis on “regional” nature of the problem and its solution with the assistance of “international” financial and technical institutions permits a littoral country to look elsewhere to place the blame for the problems of pollution and absence of resources to solve and remedy them. If the circus-like farce that marked the proceedings of the Caspian Heads-of-State Summit Meeting in Ashgabat in April 2002 is any indication, it will be a very long time in the distant future before any regional or international environmental concert of any consequence can possibly take hold in this region.
Therefore, in the short-term and for an extended period beyond, the health of the environment in the Caspian must depend on whipping up and sustaining general grassroots eco-activism on a national level in the Caspian countries. Like with most everything else in life, it all begins with home. Perhaps no other single phenomenon better provides an analog to home-grown activism in these countries than the “Oil Spill That Sparked The Green Revolution.” As reported in
www.savecaspiansea.com, in January 1969 Union Oil of California's offshore drilling operation resulted in an explosion of the highly pressurized oil and gas that cracked the ocean floor in five places. The 3 million gallons of oil that spewed into the ocean turned the waters off Santa Barbara black and its beaches turned green.
The company, which is now called Unocal and has presently operations in the Caspian Sea and once tried to negotiate for the Turkmenistan-Afghanistan-Pakistan pipeline with the Taliban regime, was not doing anything illegal: It had obtained permission from the U.S. government to install the sub-seabed well casings not as deep beneath the ocean floor. Only a short year after the Santa Barbara oil spill, the United States enacted national legislation and established the Environmental Protection Agency.
The Santa Barbara analog tempts the conclusion that in democracies the environment fares better because the public, be it informed and educated about environmental risks or simply affected first hand by ecological disasters, has the constitutionally-protected right and means to demand redress and action. Even in a democracy, it is never easy, though, because the demands of the environment is often local and in conflict with larger interests, worst of which often is either unbridled capitalism or unprincipled government. Both of these worked to produce the disaster that was
Brilliantly told by Jamie Cassels in
The Uncertain Promise of Law: Lessons from Bhopal (1993), before the Winter of 1984, criss-crossed by dusty laneways lined with small shops and bursting with activity, this old town in India just barely contained its teeming market-places, mosques, and burlap-covered shanty-town dwellings. Bordering the old city to the north was an industrial area, which contained the bus station, the straw products factory, the hutment dwellings of thousands of poor daily-wage laborers, and the Union Carbide's pesticide factory. At midnight, on Sunday, December 2, as most slept, a massive explosion occurred at the pesticide factory and storage tank number 610 began to discharge poisonous gas. The lethal white vapor poured out of the tank for over two hours, blanketing the city for miles with a deadly fog. More than 2,500 people were killed, many of them in their sleep; thousands were injured, of whom many hundreds died later. The victims' struggle for compensation and justice however turned out to be yet a second tragedy. The world's biggest lawsuit, which could have provided greater relief to the victims in American courts and under American law ended up in Indian courts and dragged on for more than seven years. The final settlement satisfied the imperatives of Union Carbide and the Government of India, but the victims and their survivors were not made whole by any measure of justice.
The Union Carbide facility in Bhopal was not doing anything illegal, per se. Nor was the captain of the oil tanker
Jessica doing anything illegal when the ship hit bottom near the Galapagos Islands in January 2001 and spilled 185,000 gallons of oil in the seas gripped already by a persistent storm. He had mistaken a buoy for a lighthouse! That disaster killed off some 15,000 marine iguanas on one island alone.
Ultimately, what legal responsibility will be visited one day upon the captain or owner of an oil tanker, submarine pipeline, or of a hazardous materials installation along the Caspian coast, when a mishap causes pollution, death, or destruction in a littoral country. Will the government, whose territory and nationals have been affected be poised to take remedial action against the perpetrator? And on what legal basis? To minimize the likelihood of accidents, in each Caspian country, the government must enforce with brutal equality measures against the degradation of the environment by discharges of sewage, petroleum and other chemicals, and industrial waste. To be enforced against domestic and foreign persons alike, the law must seek justice by imposing a range of administrative fines, and civil and criminal penalties for various activities and infractions, including prison time for acts of gross negligence, with certain activities or omissions to be deemed hazardous or ultra-hazardous and made subject to strict liability. The government's jurisdiction should extend also to the author of any pollution or activity in another country that produces harm or injury in one's coastal area.
Most Caspian countries have a constitutional provision which requires the promotion and enforcement of laws to protect the environment. Article 50 of the Iranian Constitution  states: “The preservation of the environment, in which the present as well as the future generations have a right to flourishing social existence, is regarded as public duty in the Islamic Republic. Economic and other activities that inevitably involve pollution of the environment or cause irreparable damage to it are therefore forbidden.” It is doubtful whether a single case of eco-crime involving the Caspian has ever been prosecuted in Iran.
The Turkmen Constitution  is not as purposeful in this regard: Article 10 simply requires that the State shall be responsible for preserving the national, historical, and cultural heritage and the environment.” Article 31 of the Kazakh Constitution  on the other hand is serious stuff: “The State sets objectives for the protection of the environment favorable for the life and health of the people…. Officials are held accountable, in accordance with the law, for the concealment of facts and circumstances endangering the life and health of the people.”
The Russian Constitution  is a lesson in civic duties. In Article 36, the possession, use or management of the land or other natural resources by a person is conditioned on not causing damage to the environment or infringing the right of other persons. Article 42 states: “Everyone shall have the right to a favorable environment, reliable information about its condition and to compensation for the damage caused to his or her health or property by ecological violations.” Relatedly, Article 53 gives the citizen the right to seek compensation from the state for damage caused by the unlawful action or inaction of the state organs or their officials. And, Article 58 caps it all by saying that “Everyone shall be obliged to preserve nature and the environment, and care for natural health.” Yep!
The Azerbaijani Constitution , too, is stacked with good intentions. Article 39 provides “Everyone has the right to live in a healthy environment. Everyone has the right to collect information on the environmental situation and to get compensation for damage rendered to the health and property due to the violation of ecological rights.”
Environmentalists manage to get the attention of the politicians in societies where they can influence the politician's livelihood, that is, in democracies where people's vote makes a difference in who and for how long one clings to power. In any of the Caspian countries, however, it will be a long journey before a society will reach a juncture where the elected government is made to respond to the environmental woes that afflict the country. The Caspian societies are a long way away from where pressure is brought on oil companies, industrial firms, and powerful citizens alike to modify their individual behavior so as to favor the common environment.
Lack of access to justice is another impediment to the realization of environmental safety. For example, it is rather remarkable that the Volga can transport tons of pollutants and poisons annually along its long course down to the Caspian and yet engender not a single lawsuit by a suffering citizen against the Russian state, a polluter corporation, or government officials. In Kazakhstan, however, a state prosecutor is reportedly seeking action against an oil company, but the case seems more political than environmental. The other Caspian societies are yet to insist on the rule of law and demand the enforcement of their constitutional rights to a clean and safe environment.
What seems to emerge recently is a demand by the Caspian countries like Kazakhstan to have the oil operators carry bigger and bigger insurance policies to cover environmental risks. Insurance, in the estimation of this writer, may actually promote reckless conduct and is not a substitute for reducing the risk of accidents by requiring safe practices and using advanced technologies, insisting on clean ups, and demanding preventive and remedial health programs.
As long as a Caspian government is corrupt, it must be expected that it will sacrifice the environmental well being of its helpless citizens to the demands of the rich and powerful, foreign or domestic. On the basis of the data generated by Transparency International, which tracks corruption worldwide, and the U.S. Department of State's Human Rights Report, the Caspian governments rank among the lowest of the low in human rights and clean governance. As to human rights : Azerbaijan, Kazakhstan, and Iran rated “poor,” while Turkmenistan was rated “extremely poor,” and Russia was noted politely as “uneven, worsened in some area.” As for corruption : Azerbaijan scored a lowly 2.0 out of 10, with Kazakhstan 2.7, and Russia 2.3. Turkmenistan and Iran defied any ranking: It is commonly known that in 2000 the World Bank suspended its lending program in Turkmenistan because of corruption allegations. As for Iran, according to
Crime, Corruption, and Terrorism Watch, the country is ruled by a corrupt regime, with many of the scandals in 2000-2001 centering around charges of corruption in the oil sector.
To the degree that we in the capital-exporting, industrial West do not care about the state of human rights, political participation, the fundamental freedoms, and the physical environment of the far afield places on this earth we do irreparable harm to our own political interests in the long run. The day when the progressive elements in these societies finally rise to claim their own, the entrenched regimes supported by our blind support for their abusive and corrupt ways will be washed away and along with them so will our colonial economic interest and political influence. The Mossadeq lashing against the Shah and the British oil interest in Iran in the early 1950's was a reminder that the interest of the governor and its patron foreign power shall never become indistinguishable. Yet, a lesson not learned, by the Shah or the United States, provided for another episode in recent memory when in 1979 the foreign influence and the dependent regime were swept simultaneously out of favor.
What can the industrial West do to ensure that our love of cheap oil and gas does not leave an entire Caspian region resentful of our practices? We have the awesome responsibility to ensure that our corporations abroad do not get away with what they cannot at home, but try anyway. As a necessary condition of this exhortation, we must demand also that our governments promote open and transparent democratic decision-making processes in the Caspian countries. The Caspian constitutions may promise, as they do, the right to a safe environment and collection of information about the environment, but what good is all that if there is no meaningful right to dissent, of free press and open expression to inform, raise consciousness, organize, demand accountability, seek compensation, or effect change?
I end this essay with how I began the presentation at USC last October. “Terrorism,” I said with extreme regard for hyperbole, “is the product of a polluted heart. The despoliation of the human spirit is hardly a condition that obtains at birth, though. It is a deficit caused by years of an environment dominated by war, pestilence, poverty, and despair grating on the soul. Ecological degradation, too, is a product of a polluted heart, which becomes so when the individual, corporate, or governmental decision-maker places expediency over principle, self-interest over general welfare, profit over the common good.”
Mirfendereski is the author of
A Diplomatic History of the Caspian Sea (New York and London: Palgrave, 2001). The author acknowledges the material available on
www.savecaspiansea.com. This piece is being published contemporaneously in
IranFile (London: June 2002.)