A Lever to Balance Interests and Security

 

 

If we consider Caspian region as the Caspian Sea itself, lands that border it and are climatically, geographically and ecologically interconnected and interdependent, the region consists of an area twice as big as Iran.

 

The body of water forming Caspian Sea (which is the world’s biggest lake- five times big as Lake Superior which is second) may include less than one-tenth of the Caspian region, but undoubtedly this 400 thousand square kilometers is the heart of the region.

 

Caspian Sea is a hub for five important countries; therefore it has an economic potential that can be a symbol of successful regional and international cooperation. It possesses the largest supply of oil and gas after Persian Gulf and Siberia. So the countries of this region will be main suppliers of energy in the future and they’ll have a considerable influence on the balance of global energy and international oil markets.

 

Therefore, along with a potential of cooperation, this region holds in itself the seed of misunderstanding, dispute and turmoil that if developed, not only involves the countries of the region but also affects the interests of other countries and multinational companies outside the region.

 

So achieving a common understanding of Caspian Sea’s legal regime is not only a legal-economic necessity, but also urgent and of political-security importance. The solution to this problem will have a great impact on the future affairs of the countries of the region.

To enter the issue of Caspian Sea’s legal regime, first it is important to answer some basic questions:

 

 

To obtain a solution in every international problem, we can refer to various international law sources such as binding and agreeable principles of international law, contracts and agreements, norms of international law, judicial procedures, doctrines and statements of legal experts, or a collection of these sources.

 

Since no similarities exist between Caspian Sea and other lakes shared between two or more countries in political and security aspects and also in their economic capacity, their role in economic growth of countries, history, geography and even ecology, judicial procedures and even general conventions on seas may not help to solve the problem. Hence, existing contracts and agreements are the most important legal sources that should be used in diplomatic negotiations. Rights are concluded from these documents as long as a new agreement that overrides the existing ones has not been signed. Even if the documents prove to be ineffective, that is better than confusion.

 

Few issues of major conventions on law of the sea such as 1958 Geneva Convention and United Nations Convention on the Law of the Sea that was concluded in Montego Bay, Jamaica can be applied for the Caspian Sea.

 

In Article 122 of Chapter 9 of United Nations Convention on the Law of the Sea there is only a definition of enclosed and semi-enclosed seas that reads: “a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States”.

 

The next article only indicates that States bordering an enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavor, directly or through an appropriate regional organization:

 

As it can be seen, Caspian Sea with its geographical state can’t be an instance of enclosed and semi-enclosed seas’ definition as it has been mentioned in the convention. Based on criteria mentioned in 1982 convention 20 bodies of water can be identified as close and semi-enclosed seas of which we can name Baltic Sea, Bering Sea, Black Sea, Eastern Caribbean Sea, Mediterranean Sea, Red Sea, Solomon Sea, South China Sea, Gulf of Mexico, Gulf of Oman, Persian Gulf and nine other.

 

It is noteworthy that in Iran’s legislation literature, years before the contraction of United Nations Convention on the Law of the Sea and definition of enclosed sea, under the proviso of the 2^nd article Law of Discovery and Exploitation of Natural Resources of Continental Shelf of Iran it has been stated: “for the Caspian Sea the basis has been and is principles of international law on enclosed seas” which has some differences with the definition provided in the more recent conventions.

 

But we’re not talking about practicing based on Iran’s domestic law. Even if we want to act based on Article 123 of United Nations’ 1982 Sea Rights Convention we have to cooperate in management, conservation, exploration and exploitation of living sea resources and try to implement rights and duties of states by the protection and preservation of the marine environment.

 

As long as treaties are considered as the major source of international law, historical treaties such as Golestan and Turkmenchay are not related to Caspian Sea and they have been revoked by later treaties. The most important contracts that speak about the Caspian Sea, have not been revoked implicitly or explicitly by later contracts or through annulment, cancellation or nullification and are still binding, are the Friendship Treaty of 1921 and Navigation and Trade Agreement of 1940 between Iran and Soviet Union that transfer the rights to three other countries according to replacement principle.

 

The eleventh chapter of 1921 Friendship Treaty between Iran and Soviet Union claims for both parties equal right of navigation including military and merchant fleet and the 13^th article of Navigation and Trade Agreement signed on 25^th of March 1940 in Tehran between Iran and Soviet Union asserts that: “according to principles stated in treaty of 26^th of February between Iran and Russian SFSR, the contracting parties agree that there should not exist any vessels in the Caspian Sea except the ones belonging to Iran and Soviet Union or the ones belonging to subjects, mercantile and state transportation corporations of one of the contracting parties that are under Iran or Soviet Union’s flag”. Meanwhile and on the same day in appended letters the parties name the sea “Sea of Iran and Soviet Union” and assert that: “it is of especial importance for the contracting parties that subjects of a third country that serve on ships or port cities belonging to contracting parties do not use their service and residence in ships and port cities for purposes except the ones assigned for them”.

 

It may be a correct understanding that the 1940 treaty and its appended letters mainly refer to navigation and trade and the Sea’s bed, underground and hydrocarbonic resources have not been addressed. But the truth is that both parties have explicitly referred to “Sea of Iran and Soviet Union” and its “especial importance for contracting parties” and they have not addressed sea’s bed and underground separately.

 

Due to conditions of the era, lack of required technology and no feeling of necessity there hasn’t been any mentioning, but joint sovereignty and importance of the sea has been stressed.

 

To avoid straying from the topic let’s move back to the key questions mentioned at first. It seems as the question about the entities that are entitled to ownership and sovereignty of the Caspian Sea and its various sections, including bed and underground has been answered. But about the second question, is it necessary to divide the Caspian Sea to national and territorial sectors and delimit the boundaries according to the international law?

 

There is no doubt that resorting to international law is for a time that parties cannot reach an agreement and if the five coastal states agree on dividing the Caspian Sea into five national and exclusive territories and delimit this body of water with consent and mutual agreement, any other reasoning will be null and void. If attained, the agreement must include seven delimitation acts on the borders between countries which are:

 

 

Therefore the Republic of Azerbaijan must reach delimitation agreement in four cases, Kazakhstan and Turkmenistan in three cases and Iran and Russia each in two cases on sea borders and continental shelf.

 

According to valid treaties Caspian Sea has been called a commonly shared sea. It is not generally considered as an “international body of water” and is somehow an “inland body of water”, meaning that third parties do not have a navigation right like what exists in open seas or exclusive economic zones of coastal states, and issues such as territorial sea, exclusive economic zone, continental shelf, transit right and similar issues are not granted to third countries.

 

Therefore this question must be posed that does this sea necessarily have to be divided and demarcated? Are there any regulations in international law and its norms that can imply this necessity? If so, which procedure should be applied? Are median line and equidistance acceptable methods for these kinds of divisions?

 

Have these methods been applied to other demarcated lakes (such as the Great Lakes between United States and Canada, Lake Geneva and Lake Victoria) and after all can these lakes be compared with the Caspian Sea?

 

Have the issues of exploiting continental shelf resources and underground supplies in these lakes been as important as the Caspian Sea so that we apply the procedure to this body of water too? Or what has been mainly discussed about these lakes has been a matter of water supplies, navigation and fishing?

 

In which of these demarcated lakes has there existed any valid agreement like that of 1940 between Iran and Soviet Union for the Caspian Sea? And finally, in which of these lakes have the major historical owners and important coastal states been deprived from the wealth? So how can we generalize and apply these procedures to the Caspian Sea? Hence, we must accept that the Caspian Sea is an exceptional case.

 

A country like Azerbaijan calls a part of the sea “the Azeri section” -in parts far away from the country’s coast and with distinct borders- and signs contracts with third parties to exploit its resources based on agreement with one of the other entitled countries and the principle of Uti Possideties Juris. Expecting the other countries to accept this right is not reasonable. According to an acceptable principle in international law an agreement between two parties doesn’t bring any responsibilities and rights for a third country.

 

Azerbaijan has signed contracts with several corporations for extraction of supplies in Azeri, Chirag and Guneshli fields. Let’s not ask that why have corporations and countries from outside the region entered the Caspian Sea since technology, capital and oil marketing call for such acts, but ask why is this done when no agreements has been reached for demarcation and joint sovereignty is still valid and binding for the Caspian Sea.

 

How can companies invest billions of dollars in the region and give promises when not all the countries agree with this method of division? What legal criteria should they observe in their behavior? Should diplomatic pressures be used for a legal case?

Interestingly, a country from outside the region which has joined a consortium without any legal guaranty and ground, opposes the presence of a country that is historically and legally entitled to exploitation of a commonly shared territory.

 

Personally I believe that political ties shouldn’t meddle with an inherently legal issue. In the political domain, friends of today are foes of tomorrow, but legal facts impact the life of societies for generations and the current political and economic situation can’t be relied upon.

 

But on the third question that I addressed in the beginning: Based on international law, should joint sovereignty be the basis of practices if no agreement takes place for new divisions? To answer this question first we must make a distinction between the current joint sovereignty (as long as no comprehensive agreement has been reached by the entitled coastal countries) and establishment a sort of “condominium”. Because joint sovereignty is a legal mentality beyond solutions and methods that must be set as basis, and advising establishment of a condominium is a model that is adopted to realize such a mentality.

 

I’ve never claimed that establishing condominium is a must, derived from international law that has to be adopted by coastal countries as the only option. Also I’ve never believed that parties are bound to form a condominium, an international resource and consequently a type of enterprise, but all these have been suggestions that can be taken into consideration for practical and optimal solution for Caspian Sea to establish rights and interests of countries and remove their worries.

 

However, like many other people I believe that the Caspian Sea, whether demarcated or under joint rule, requires good will, cooperation and a high level of agreement among concerned countries.

 

Definitely cooperation on underground resources of the Caspian Sea is not an easy thing among coastal states and requires endeavor, good will and mutual understanding towards problems of all parties. Maybe in some case such as fishery, determination of an exclusive territory and delimitation becomes the basis and in some other cases especial methods and even international arrangements with the participation of all concerned countries lead to better results. Definitely these guarantee the fulfillment of all parties’ interest and aid marine environment preservation.

 

In brief, quick agreement on the new legal regime of the Caspian Sea is not only important but a necessity that satisfies interests of all countries and the best way to achieve this is negotiation between the five coastal states accompanied by good will