Tanap Host Government Agreement
Since TANAP HGA is not an international agreement under VCLT, not all of the grounds for termination of HGA set out in the VCLT and mentioned above are applicable. Hovewer, this should not mean that HGA and therefore AI can in no way be completed. Paragraph 35 of the HGA specifies the grounds for termination. During the examination of the article in question, it is found that only the causes expressly provided for in the agreement can justify termination. It should be noted that the agreement provides for different possibilities to maintain it in force. The nature of termination is exceptional where an obligation is not fulfilled after a period given by a notification to remedy the infringement. In accordance with Article 35.2, such termination shall take effect three hundred and sixty (360) days after receipt of such termination from the TANAP Project Unit, unless, within such period of three hundred and sixty (360) days, the TANAP Project Unit makes the final investment decision regarding the TANAP Project. Similarly, in accordance with section 35.3, it provides for 180 days` notice if the project is not under construction within a specified period and in the event of a material breach of the obligations under section 35.3. AI ensures in the first place the free movement of natural gas. The relevant provisions of the agreement are intended to prevent possible activities that could interrupt the free transition and to impose certain obligations on Turkey, given that the route is the country of Turkey. The 6 billion cubic metres of the 16 billion cubic metres of gas transported by this pipeline will be reserved for the Turkish domestic market and the rest will be transported to the European market. (IEA Reports, 2014: 460) The first steps of TANAP were taken by an intergovernmental agreement signed by Turkey and Azerbaijan on 25 October 2011. Following the ensuing negotiations and with the support of Shah Deniz Field`s partners in Georgia and Azerbaijan, the government agreement between Turkey and Azerbaijan was signed on 26 June 2012.
Following the final investment decision taken by Shah Deniz Field`s partners for Phase 2 of the project in December 2013, work on the extension of the Baku-Tbilisi-Erzurum gas pipeline, which crosses Azerbaijan and Georgia to Turkey, and the construction of TANAP have been accelerated. Tanap was built in a short period of three years after the foundation stone was laid on March 17, 2015 and began transporting gas to Turkey on June 12, 2018. In addition, TANAP`s European link was inaugurated with a ceremony on 30 November 2019. In addition, like other HGA, TANAP HGA does not have the status of international agreements. Because tanap Project Company, a contracting party, has no international legal personality. Therefore, VCLT is not used with TANAP HGA. Finally, it is easy to see that TANAP HGA has no contradiction with Turkish national law. Through AI, companies implementing the project have the possibility, in the event of a dispute that may arise in the future, to rely on a second agreement in which states participate, in addition to private law agreements in which they are the only ones to participate. In this way, they have the support of the beneficiary state under AI. They are therefore protected by international law.
In practice, the problem is solved by international law based on ia, where national legislation creates problems (Hildyard vd., 2006: 47). The agreement concluded by TANAP is an “intergovernmental agreement between the Government of the Republic of Turkey and the Government of the Republic of Azerbaijan on the Trans-Anatolian Natural Gas Pipeline System” and its annex “Concerning The Trans Anatolian Natural Gas Pipeline System”.