Our Analytics 27 september — 12:19

Caspian legal status on the move forward

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BY DR. THEODORE KARASIK, EXCLUSIVELY FOR AZERI DAILY

Recent developments concerning the Caspian Sea’s legal status warrants attention.  A political statement by the heads of five Caspian Sea littoral states on the Caspian Sea status will be adopted at the 4th Caspian Summit on September 29 in Russia’s southern city of Astrakhan. The upcoming political statement of the presidents of five littoral states of the Caspian Sea, which are Russia, Iran, Kazakhstan, Azerbaijan and Turkmenistan, is likely to settle on-going disputes ever since the collapse of the Soviet Union in 1991. The Caspian countries have developed an agreement on two areas on the Caspian Sea zone including two key issues: state sovereignty zones and the fishing zones. It is possible by 2015 that a Caspian Sea Convention will be signed by all littoral countries. However, there is still work to be done.

A review of the Caspian Sea area is a requirement. The Caspian Sea is the largest completely enclosed body of salt water in the world and constitutes a particularly fragile ecosystem. It contains great fishery resources, including 90 per cent of the world’s stock of sturgeon, as well as vast oil and gas deposits in the subsoil. It is crossed by important transportation routes connecting Europe and Central Asia. For much of the twentieth century the Caspian Sea was the exclusive domain of Iran and the USSR.

During Soviet times, Caspian affairs were handled on a bilateral basis and were regulated by the Russian-Persian Treaty of 1921 and the Soviet-Iranian treaty of commerce and navigation of 1940. With the collapse of the USSR and the emergence of the three new countries on the Caspian Sea, these agreements, could not properly regulate the relations between littoral states. Thus, it was necessary to work out a new legal framework governing the sea that would comprehensively regulate all issues that serves the interests of all littoral states.

The rules of public international law that are applicable to the Caspian’s legal status depend mainly on the legal character of this body of water. How the Caspian Sea is regulated will therefore depend on its legal classification and the accompanying body of law. If the Caspian Sea is a ‘sea’ in legal terms, the United Nations Convention on the Law of the Sea (UNCLOS) of 1982 would be applicable. If, on the other hand, the Caspian Sea is a ‘lake’ in legal terms, then customary international law concerning border lakes would apply. The Caspian does not appear to fall into either category.

To be sure, under the convention, each of the five Caspian states can claim territorial waters from their coastal line out to 12 nautical miles (22 km) where they will be able to set laws, regulate use of and use fish, mineral and other resources. Vessels of other countries will be allowed 'innocent passage; through the territorial waters, which means that they will not be allowed to fish, mine, pollute, practice weapons or spy in territorial waters of a foreign nation.  Iran is the prime opponent of this option, because it has the shortest part of the shoreline - only 13 per cent of the total Caspian shoreline, which would make its territorial waters in the Caspian Sea the smallest of all five.  In addition, the Iranians, have sought to expand their rights in the Caspian because their small territory in the Caspian is highly unstable due to geological phenomena including volcano domes and their toxic plumes.

Throughout the history of negotiations over a new legal status for the Caspian Sea, Russia and Iran supported the position that the Caspian Sea was governed by a condominium regime. However, from the point of view of current international legal practice neither the provisions of the treaties determining its current status, nor the prior existing practice of these two states seem to justify such a position. Nor has international law more generally supported the presumption of a condominium regime.

The current situation also pertains to security issues. Indeed, the uncertainty of the legal status of the Caspian Sea doesn’t allow to effectively fight drug trafficking and crime since we don`t know who is responsible and for which part. Thus, the Caspian Sea is a transit zone for transnational crime and for real disputes over energy supply chains. Disputes between Azerbaijan and Turkmenistan are well-documented. Iran also has a Caspian Sea Flotilla that is threatening to its neighbours. Azerbaijan, Kazakhstan, and Turkmenistan are all land-locked and thus have coast guards and other craft but Iran’s naval assets by far dwarf them.

Clearly, the problems relating to the legal status of the Caspian Sea are multifaceted and encompass a number of key areas. The first has to do with the issues of delimitation, including division of the Caspian’s water area into maritime zones with different legal statuses, as well as airspace over the Caspian Sea, its seabed and the use of subsurface mineral resources.

The second area comprises the exploitation of natural resources, including marine life and establishing rules and protocol concerning fishing equipment, fishing seasons and special areas, exploration and the production of subsurface mineral resources of the Caspian seabed, artificial islands and structures, as well as procedures for marine scientific research. This sphere also deals with sovereignty over subsurface resource management and exclusive rights to the exploitation of aquatic biological resources within the respective zones of the littoral states.

The third area relates to environmental problems. It is closely related to the second area and embraces efficiency, protection and production of biological resources, protection of biodiversity, liability for damage caused to the ecosystem of the Caspian Sea, assessment of the impact of the proposed economic activity on the environment and other issues.

The fourth area mostly has to do with the problems of transportation. Issues surrounding marine navigation in maritime zones with different legal status, freedom of transit for all kinds of vessels, ensuring access to the sea and ocean, the transportation of hydrocarbons through underwater pipelines and aircraft flights are being discussed.

Finally, the fifth area relates to issues of security in all its aspects. This includes military issues, as well as cooperation in counteracting illegal activities (such as terrorism, illegal trafficking, arms trading, drug trafficking, poaching, etc.), and emergency management among other topics.

As per the delimitation of the Caspian Sea, as of today, a number of agreements between Kazakhstan, Azerbaijan and Russia have been signed.  In July 1998, Russia and Kazakhstan have signed an agreement on the delimitation of the northern part of the Caspian Sea in order to implement sovereign rights for subsoil use, and the protocol to this agreement was signed May 2002. Agreements on the delimitation of the Caspian Sea between Kazakhstan and Azerbaijan and the protocol were signed November 29, 2001 and February 27, 2003 respectively. Also, an agreement on the delimitation of adjacent sections of the Caspian Sea was signed by Kazakhstan, Azerbaijan and Russia May 14, 2003. The littoral states (Azerbaijan, Kazakhstan, Russia, Turkmenistan and Iran) signed the framework convention for the protection of the marine environment of the Caspian Sea in November 2003.

Furthermore, there have been three summits of the littoral states. Among the many important results of the Second Caspian Summit (Tehran, 2007) was the adoption of a final declaration, which for the first time confirmed at the highest political level the existing agreements on the legal status of the Caspian Sea, security and stability at sea, as well as the position of the Caspian states on most urgent international issues. At the Third Caspian Summit held in Baku in 2010, the heads of state signed a Joint Statement, as well as an agreement on security cooperation in the Caspian Sea. Numerous other meetings occurred in multi-level and bi-lateral level in the past three years.

Overall, the complexity of determining the status of the Caspian Sea is related, in particular, to its recognition as a lake or sea, a distinction of which is governed by different provisions of international law and the different interests of the five states, seems to be almost over but not quite. The Caspian states have agreed on barring the presence of armed forces of non-regional powers in the region, which is reflected in the draft of the upcoming policy statement in the coming days. Therefore, progress is being made slowly after a long and drawn out process.  However, the real key will be in the security sector and how Iran sees its maritime mission in the Caspian Sea. According to Iranian sources, Russia has been increasingly successful in convincing littoral states to accept its plan to divide the Caspian Sea based on a formula of Modified Median Line (MML). Agreements using the Russian proposal as the basis of defining a legal regime for the Caspian Sea have been reached between Russia and Kazakhstan, Russia and Azerbaijan, and Kazakhstan and Azerbaijan, leaving Iran and partly Turkmenistan as the lone holdouts. So more negotiation will be necessary.

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