Izbassarov Aitzhan

3 year PhD student of the

Kazakh National University named after al-Farabi

Faculty of the Foreign Relations

Department of the International Law

Determination of the legal status of the Caspian Sea as the basis of regional security assurance

Annotation

А.О. Izbassarov The analysis of the history of relationship development among the Caspian bordering countries has been carried out. The legal relations’ issues of the Caspian bordering countries in relation to the Caspian Sea status have been considered, including their solution methods in accordance with the existing international legal rules. The contracts, conventions and applications adopted by the Caspian bordering countries determining the Caspian states’ jurisdiction regarding to the Caspian Sea have been also considered. The existing and established commissions by the Caspian bordering countries on problem solution in relation to the Caspian Sea were described. Proposals based on the experience of the other states have been developed.

Key words: The Caspian Sea status, the Caspian bordering countries, the legal status, the international convention, agreements, marine environment.

For the time being, there are a number of issues in the Caspian region that are to claim special attention and solution. They are as follows: issues on environmental protection, pipeline construction, economic relations development in various spheres, and many others. But the suspense of the legal status of the Caspian Sea is one of the most important and crucial problem, solution of which shall be undoubtedly the base and starting point of initiation of solution of a complicated “tangle of concerns”. In this connection, we can completely agree with the opinion of Yu. Merzlyakov, ex-leader of the Working Group on the Caspian Sea under the Ministry of Foreign Affairs of Russia, stating that most problems in the Caspian region are directly connected with the lack of proper regulation of the main point in respect of its legal status [1].

Different aspects of security control in the region are also directly dependant on and linked with the progress of interstate negotiation process and final definition of the status and control of the Caspian Sea. This is to confirm by the words of the Kazakh diplomat V. Gizzatov stating that “The Caspian issue, specifically the legal status of the sea, is a subject of active and very intricate negotiations among the littoral states, as a result of which it will be clear whether the Caspian Sea shall become the sea of peace and collaboration or an apple of discord that can lead the region to the conflict” [2, p. 39]. In continuation of its speech, he believes that if the issue of the legal status of the Caspian Sea is not solved, it will be quite difficult to depend on establishment of a long-term stability basis and multilateral co-operation in the region. The Azerbaijan international lawyer R. Mamedov shares his opinion reasonably believing that: “The key problem, on decision of which the chance of the future rapprochement and cooperation of the Caspian bordering countries is completely dependent as concerns efficient and rational use of the Caspian Sea is the point associated with its international legal status” [3, p. 231]. Besides, it should be born in mind that prior to the year 1991 – the date when Kazakhstan and other littoral states have obtained their independence – there were many problems of different nature and character in the Caspian Sea. But precisely after the year 1991 a wide range of matters connected with economic activity around the sea and the Caspian Sea itself has become vital and even increased the level of interstate situation of conflict in that critical and sensible world region.

Before the legal analysis of the current situation around the Caspian Sea, in a few words, it is necessary to touch upon the historical background, since it is of great importance in the course of impartial investigation of the actual state of matter. The Rasht Treaty, dated September 23, 1732, is one of the significant international agreements, whereby Persia was obliged to return several Caspian provinces to Russia [4]. In 1784, Makhachkala City, in 1796 – Derbent, and Baku – in 1806, formed the part of the Russian Empire. Over the 1804-1813 and 1826-1828 periods the Russian-Persian wars occurred. The Gyulistan Peace Treaty, dated November 5, 1813, formally established the termination of the first war, according to which Persia admitted the loss of some Transcaucasian territories, such as Baku Khanate and Dagestan. Persia has lost the right for having its own navy forces on the Caspian Sea, and only the Russian ships were permitted to stay at the water area of the Caspian Sea. The Turkmanchay Peace Treaty, dated February 22, 1828, formally established the termination of the second Russian-Persian war. This treaty corroborated the basic provisions of Gyulistan Peace Treaty, territorial expansion of Russia, and imposed an indemnity on Iran. In accordance with the Treaty on Persia Separation into the North and South Regions, dated August 31, 1907, Russia and the Great Britain confirmed their appropriate areas of influence. Since before the Russian-Persian Treaty, dated February 26, 1921, was signed, the Soviet Government’s appeal to the Persian nation and its government, dated June 26, 1919, has appeared. It was said that “The Caspian Sea, against the brigandish ships of the English imperialism, shall be declared to be free for ship floating under the Persian flags”. On February 26, 1921, the Soviet Russia and Persia concluded the Treaty of Friendship and Cooperation, where both sides made a commitment to respect the edge of the boundary defined by the Boundary Commission on 1881. The Treaty confirms the right of the both sides to navigate by the Caspian Sea, and accords the Soviet Russia a right to exercise distant-water fishery at the south seacoast of the Caspian Sea. Russia also consolidates a right to bring troops into Persia, in case if other state will make an attempt to use the Persian territory with hostile purposes against Russia. On October 1, 1927, the Treaty on Fishery Resources Utilization at the South Seacoast of the Caspian Sea was signed, establishing the joint Soviet-Iran fishing company with granting of a concession for biological resources development within the Iran part of the Caspian Sea [5, p. 156].

On October 10, 1927, the Treaty of Guarantee and Neutrality was signed, envisaging adjustment of contraventions between the parties solely by peaceful means. On October 27, 1931, the Convention on Settlement, Trade and Navigation between the Soviet Union and Persia was concluded [4]. This Convention’s regulations on ships location throughout the Caspian Sea that only belong to the USSR and Persia, were confirmed in the Treaty of Settlement, Trade and Navigation, and dated August 27, 1935. On August 27, 1935 the new Treaty of Settlement, Trade and Navigation was signed, confirming the principal provisions of the previous signed Convention on Settlement, Trade and Navigation, dated October 27, 1931. On March 25, 1940, the Treaty of Trade and Navigation was signed between the Soviet Union and Iran, and in accordance with the mentioned Treaty 10-miles fishing zones under the jurisdiction of the both littoral states were defined, including an important regulation that no other ships “have the right to navigate, except for that ones belonging to Iran or the Soviet Union, or entities and commercial and business enterprises of the parties flying the flag of Iran or the USSR”. The Soviet part pursued an aim not to permit the British Navy to penetrate to the Caspian Sea, this was confirmed by the direction specifying that only the Navy of the littoral states shall be present on the sea [5, p. 78].

According to the Azerbaijan concept “The Caspian Sea is the International Lake”, notwithstanding its dimensions, the flora and fauna, degree of salinity and mineral resources the Caspian Sea cannot correspond to an enclosed sea criteria in view of the fact that it do not have access to the sea [4]. This is different from Kazakh’s point, which adheres to the opinion that the Caspian Sea should be granted with the enclosed sea status. According to Azerbaijan part, the developed and operating waterways (Volga-Don and Volga-Baltic Canals) are not sufficient to characterize them as a direct passage to another sea or ocean. Therefore, to the present time Azerbaijan is still standing for granting the Caspian Sea with boundary lake status with subsequent separation into national sectors, that, as was shown, was confirmed by the formal Baku in Constitution, Clause 2 of Article 11, dated 1995. Having advanced and following this approach from this point on, the Azerbaijan part mainly pursues its economic interests. According to Е. Kepbanov, “Petroleum reserves impoverishment onshore encourages Azerbaijan to develop rapidly new fields at the shelf of the Caspian Sea” [7, p. 79]. As of the end of the year 1997, 1355 mln. tons of oil were made out of the Azerbaijan subsurface, of which 930 mln. tons were made out of wells located onshore, and 425 mln. tons – ocean mining. According to Azerbaijan state oil company as of January 1, 1998, the remaining oil reserves on 38 land fields of Azerbaijan amounted to 155 mln. tons, and average production amount is measured by 87% [7]. It is notable that quite a strong dependence of Azerbaijan on cash proceeds to the general government balance at the expense of oil resources exploitation significantly influences on the policy character to be fulfilled on the Caspian Sea.

With respect to statutory recognition of Azerbaijan’s approach, it is recorded in the treaties concluded. In bilateral joint declaration of the heads of the Russian Federation and the Republic of Azerbaijan concerning principles of cooperation on the Caspian Sea, adopted on January 9, 2001, the formal Baku expressed consent that consensus decisions on the Caspian Sea should be followed on a phased base, herewith, at the first stage it will be useful to demarcate a sea bed [8]. At this stage of conduct of bilateral and multilateral negotiations Azerbaijan supports the view “When separating the sea bed, the water will be common” as an intermediate stage on the way toward complete fractional separation of the Caspian Sea. This approach was reflected in the treaties signed by Azerbaijan along with the Republic of Kazakhstan, dated November 29, 2001, and the Russian Federation, dated September 23, 2002 [4].

On October 30, 1995 the Joint Russian-Iran Statement on the Caspian Sea was signed in Tehran, stating that: “Problems of the legal status and control of the Caspian Sea representing a unique water reservoir are of strictly regional character. Any matters concerning control management of the Caspian Sea and its resources shall be settled within the limits of international treaties with the participation of the Caspian bordering countries, considering their equal rights, as well as mutual interests. All rights with regard to the Caspian Sea and its resources belong to the Caspian bordering countries, and they are solely entitled to determine the rules of conduct on the Caspian Sea” [9]. Following to its approach, the Foreign Policy Department of Iran has stated that any unilateral act of any of the countries can be classified as nonlegal one due to the lack of multilateral mutually acceptable agreements concerning the Caspian Sea.

At the same time, Iran stands for the point that the previous treaties between the USSR and Iran shall remain in force until a new status of the Caspian Sea is stated [10]. Iran representatives emphasized that under the existing condition of indeterminacy it will be difficult to foresee, what is considered to be a continental shelf or territorial waters according to the government of some of the Caspian bordering countries, for example, Azerbaijan or Kazakhstan. In 1993, the Draft Treaty of Regional Cooperation on the Caspian Sea was developed by Tehran and proposed for a common attention, envisaging establishment of co-operation mechanism of the Caspian bordering countries. This initiative was greeted with suspicion by a number of the littoral states, since they discovered Iran’s willingness to thrust its vision of problems, and not permitting subsequent involvement of assets of major oil companies which promised to attract considerable investments to the economy of the states that settled down to a course of their national identity restoration. Iran, possessing large reserves of oil and having access to the Indian Ocean, is not strongly interested in early problem solution concerning the status of the Caspian Sea, and generally speaking, dealys the problem solution. Political regime in Iran is not also interested in strengthening of the United States’ influence in the Caspian region, and to a greater degree relies on further development of its bilateral communications with Russia. In view of inadmissibility of condominium principle by other Caspian states, Iran has established an alternative position envisaging an equal division of the Caspian Sea into five sections – of them 20% of the bed, water layer and surface shall be owned by each of the littoral states [11, p. 3]. Thanks in large part to the Iran’s initiative, on October 1996, the trilateral memorandum was signed in Ashkhabad between Iran, Russia and Turkmenistan on the intention to establish the joint trilateral oil company, which shall be engaged in exploration and development of oil and gas deposits at the bottom of the Caspian Sea in the areas of the mentioned three states. Invitation to participate in the project was also sent to Kazakhstan, which decided to refrain from participation. Earlier on, Iran has confirmed its formal point in the letter of its United Nations Ambassador addressed to the U.N. Secretary-General.

On October 30, 1995 the Joint Russian-Iran Statement on the Caspian Sea was signed, where the parties pointed to general consensus that determination of the legal status of the Caspian Sea shall be implemented based upon the consensus of all littoral states [9]. In 1996, Е. Primakov, the Minister of Foreign Affairs of Russia, advanced a compromise proposal on determination principles of the sea status, according to which Moscow disposes itself to accept the national jurisdiction of the littoral states within the limits of its zones up to 45 geographical mile wide, and in regarding to those deposits in the economic areas of the Caspian states, where extraction of oil has been carrying out [6, p. 101]. Thus, it was emphasized in one of the statement of the Ministry of Foreign Affairs of the Russian Federation that the Caspian Sea, according to its legal status, cannot belong to whatever Caspian state, and all of them have equal right of use.

From 22 till 23 of November 2011, the 30^th meeting of special working group on development of the Convention on the Legal Status of the Caspian Sea was held in Astana on the level of Deputy Ministers of Foreign Affairs of the Caspian states.

      Alexander Golovin, as special representative of the president on delimitation and demarcation of the state boundary of the Russian Federation mentioned that negotiations are to approach to the final result [12].

According to the analysis of the material mentioned it may be concluded that the Russian party is totally against the application of norms of United Nations Convention on the Law of the Sea, dated 1982, more specifically, its regulations on an enclosed sea, since in this situation a number of littoral states shall raise question of Volga-Don and Volga-Baltic Canals as that ones having international character, and a capability of free access and transit for their marine vessels. “Unwillingness of the Caspian bordering countries lacking access to the main sea – namely, Kazakhstan, Azerbaijan and Turkmenistan – to ensure freedom of transit by the Russian rivers and channels is one of the operant motives for the Russian diplomacy to deny the applicability of Convention on the Law of the Sea with regard to the Caspian Sea”, - according to the Russian researcher Yu. Fedorov [13]. During a minor digression it should be noted that Volga-Don Canal, opened in 1952 and having 101 kilometer in length, connects the Volga River near Volgograd with the Don River near Kalach City. Construction of the Volga-Baltic Waterway commenced at the beginning of XIX century and its length amounts to about 1100 kilometers, previously it was known as the Mariinsk Water System. The Volga-Baltic Canal connects the Volga River with the Baltic Sea, and with the White Sea via the Belomorsk-Baltic Canal [14]. It is necessary to point out that when facing with the real situation the Russian party admits impropriety of its line and makes the other political statements, even in unofficial way. Thus, in the summit dedicated to problems connected with the Caspian oil and gas, which was held in London, the Great Britain, dated March 22-23, 2001, it was declared by one of the Russian representatives that with respect to Moscow by the previous treaties “there are two serious problems: matters on subsurface use at the sea bottom and environment protection of the Caspian Sea are not governed by the Soviet-Iran treaties. Besides, for the time being there are five littoral states instead of two, as it was earlier in the time of treaty conclusion. Therefore, it is obvious that the new status is needed” [15, p. 39]. At the same time, the official authorities still consider that prior to a moment when the parties have come to a new treaty on the status of the Caspian Sea, the basic treaties regulating its legal control are the Treaty between Russian Soviet Federal Socialist Republic and Persia, dated February 26, 1921, and the Treaty of Trade and Navigation between the USSR and Iran, dated March 25, 1940. According to the Russian party, these treaties are based on “the common water” principle and they are referred to regimes of freedom of navigation and fishery for the littoral states (in case of fishery regime, 10-miles fishery littoral zone is an exemption), prohibition for marine vessel floating under the flags of non-Caspian states, but the main thing is that the matters on subsurface use are not regulated by the norms of the very bilateral treaties. The Russian authorities have also contributed suggestions on establishment of the Caspian tribunal of arbitration as a juridical mechanism solving various disputes on the Caspian Sea among the littoral states, in which over again, according to their opinion, the Russian party shall predominate.

The following is proposed:

-at the first stage, it is useful to determine the principles which are needed to be used in the course of continental shelf division. It is assumed that an integrated approach to the three basic principles should be present: division on the basis of the treaties between the states; division on the basis of special circumstances; division on the basis of median line and equal separation line.

 - the second stage shall be directed to working out of proposals on special circumstances establishment, which will be taken as the basis in the course of continental shelf division. It is assumed that the following shall be associated with them: abnormal coastline configuration; historical grounds.

-the third stage of negotiations shall determine the initial starting points, which shall be considered when forming the median line and equal separation line.

- the fourth stage shall be completed by signing of a wide-scale treaty on the continental shelf separation among the states.

LIST OF REFERENCE LINKS

1. Yu. Merzlyakov. Legal status of Caspian Sea //International life. - 1998. – No. 11-12. - 135-141 p.

2. V.Kh. Gizzatov Legal status of Caspian Sea and issues concerning with pipeline //Sayassat. - 1999. – No. 4. – 39 p.

3. R. Mamedov International legal status of Caspian Sea: yesterday, today, tomorrow (Theory and practice issues) //Central Asia and Caucasus. - 2000. – No. 2(8). – 231 p.

4. R. Mamedov International legal status of Caspian Sea in its historical development //Kazakhstan-Spektr. - 2000. – No. 3-4. – 109 p.

5. Soviet encyclopedic dictionary /Chairman of academic editorial board A.M. Prokhorov - Moscow: Soviet encyclopedia publishing house, 1981. – 842 p.

6. A.Ye. Abishev the Caspian: oil and policy. Second edition. - Astana: «КI Free society», 2004. - 380 p.

7. Ye.A. Kepbanov Legal status of Caspian Sea and regional safety //Moscow magazine of international law. - 2005. – No. 1/57. - С. 79.

8. The joint statement of heads of the states of the Russian Federation and the Azerbaijan Republic about cooperation principles on Caspian Sea dated January 9, 2001 //Dict. Legal system «Jurist». Local version. ITS: InfoTech&Service. August 19, 2006.

9. The joint Russian-Iranian statement on the Caspian Sea dated October 30, 1995// Dict. Legal system «Jurist». Local version. ITS: InfoTech&Service. August 19, 2006.

10. T. Baimukhanbetov Arrangements on the Caspian Sea are saved. // Kazakhstan truth. - 2001. – March 17.

11. M. Saffari. Speech at International Conference «the Caspian: legal Issues», February 26-27, 2002. Moscow // International Life. - 2002. – No. 4. - 3-54 p.

12. The near-Caspian countries mark positive dynamics in the coordination of the Convention on legal status of Caspian Sea. URL: http://www.zakon.kz/kazakhstan/4459618-prikaspijjskie-strany-otmechajut.html

13. Yu.Ye. Fedorov Legal status of Caspian Sea //Research of CMI MGIMO. - Moscow, 1996. – 36 p.

14. Soviet encyclopedic dictionary /Chairman of academic editorial board A.M. Prokhorov - Moscow: Soviet encyclopedia publishing house, 1981. – 842 p.

15. S.S. Zhiltsov, I.S. Zonn, A.M. Ushakov. Geopolitics of the Caspian region. - М: International relations, 2003. - 280 p.