Caspian Sea


About the international legal status of the Caspian Sea


© R. Mamedov

A new outlook on the problem of the international legal status of the Caspian Sea appeared after the cessation of the Agreement on the Foundation of the USSR as a result of increase of number of "The Caspian Club" members in 1992. In the Conference of the circum-Caspian countries held in Tehran this year the Iranian side made a proposal about the agreement preparation on cooperation in the Caspian Sea region and foundation of a regional organization to study possibilities of a sectoral division of the Caspian Sea and solution of related problems.


Before Azerbaijan signed "Contract of the Century" (before September 1994) with overseas oil companies on exploration of oil fields in the Azerbaijan shelf of the Caspian Sea, the problem of legal status of the Caspian Sea was of a theoretical character only. At the same time it is known that Teheran and Moscow many times had separate talks on the necessity of a more exact definition of this status.


Before this the legal status of the Caspian Sea was regulated by two agreements concluded between the Soviet Russia and Iran (of February 26, 1921) and between the USSR and Iran (of March 25, 1940) and formely there were concluded the Gyulyustan (1813) and the Turkmenchai (1825) treaties. The brief essence of these (and previous) agreements lies in following:


Year 1723. The St. Petersburg treaty between Russia and Iran. According to the treaty only Russia could have its fleet on the Caspian Sea.


February 13, 1729. Agreement between Russia and Iran which fixed demarcation of boundaries and free commerce in some areas and free navigation in the Caspian Sea as well and in the rivers Kura and Araz.


October 2, 1813. The Gyulyustan peaceful Treaty. Iran released his claims for the North Azerbaijan, Georgia and Dagestan.


February 10, 1828. A special Act was concluded in Turkmenistan between Russia and Iran. According to this Act all rights to the Caspian surface were given to Russia.


February 28, 1828. The Turkmenchai Treaty. The Iranian side agreed that only Russia could have navy in the Caspian Sea whereas Iran could have merchant navy.


February 26, 1921. A treaty on a free migration in the Caspian Sea between the RSFR and Iran. The Soviet Russia released all treaties and agreements of the tsarist government.


March 25, 1940. Commerce and Migration Treaty between the USSR and Iran which substantiated the Treaty of 1921 and enabled either state fishing within a 10-miles zone.


Some authors using these treaties as references speak about absurdity of idea of absence of the international legal status of the Caspian Sea at the recent stage. Thus, Russian research worker of Armenian origin (Barsegov, 1998) wrote: "idea of absence of the international legal status of the Caspian Sea is absurd: at the end of the XX century there are no and can not be any water basins without a status like that". While answering Mr. Barsegov let us remind him, that first of all, it is competent to apply a principle of deduction to policy and society in natural phenomena.


Secondly, none of the signed treaties was based on the international standards and those treaties were only agreements between two states and they did not touch most problems and did not solve them. Thirdly, the international naval regulations were only adopted in 1982, i.e. 42 years later after the conclusion of the last Agreement between the USSR and Iran. And, at last, and most important, there appeared new independent stares in the Caspian region which did not sign the agreements that did not take into account their political and economical interests in a recent geopolitical situation.


On the whole the international legal status of the Caspian Sea may be considered as a problem invented by some Pre-Caspian countries. It is quite obvious that, first of all, this problem is associated with interest of the former soviet republics towards the Caspian resources. Thus, there exist some contradictions between Russia and other new-founded Pre-Caspian countries in respect of the offshore oil fields. The trouble of the Russian Federation is that only a small part of these fields falls to its shelf zone. This fact explains position of Russia - by any means to preserve "superiority and predominance". Islamic Republic of Iran keeps the same position. However, other Pre-Caspian countries can not agree with it and decrease their rights to possession by hydrocarbon reserves in appropriate shelf zones of the Caspian Sea. The President of Azerbaijan Republic G.Aliyev in the meeting of Heads of nine overseas companies (June, 1994) expressed his opinion on this problem: "The of the legal status of the Caspian Sea is invented and was arisen by those who want to prevent cooperation of the Azerbaijan Republic with the west companies".


An interesting thing about this situation is that those who arose the problem do not want to solve it. There exist several ways of its solution. One of them is the previously concluded Agreements on the Caspian Sea should be made in accordance with new geopolitical situation. Another way is to consider the Caspian Sea as "a closed sea" and carry out its division according to standards of the international naval rights adopted in 1982.


Those who do not want to choose of any of these ways demonstrate a complete ignorance of elementary geographical notions. According to the definition of geographical objects "a capacious water basin which does not have a natural connection with the World Ocean is called lake". Moreover, please note that yet in the text-books published in the Soviet period there was given a definition that "The Caspian Sea is the largest lake in the Earth". But some people do not take into their consideration these facts and emphasize biologic factors and history of geologic evolution of the Caspian Sea and try to "make" the Caspian as sea. They completely ignore international world practice in this field.


According to international agreements there exist 65 international lakes throughout the world. The largest of them are as follows: Albert (Uganda-Zaire), Chad (Cameroon-Chad-Nigeria), Constans (Austria-Germany-Switzerland), Geneva (France-Switzerland), Great Lakes (Canada-USA), Victoria (Kenya-Uganda-Tanzania).


In accordance with Protocol of the first meeting of heads of legal departments of the Ministers of Foreign Affairs in the Pre-Caspian countries the legal status of the Caspian Sea should contain the following provisions:


  • navigation;
  • utilization of biologic resources;
  • ecologic problems;
  • utilization of mineral resources;
  • definition of limits of sovereign rights.
In respect of the legal status of the Caspian Sea the Pre-Caspian countries keep different positions.


Position of Russian Federation. It was very difficult for Russia to reconcile to the loss of bilateral (USSR-Iran) possession of the Caspian Sea. After the disintegration of the Soviet empire this country proclaimed itself predecessor of the USSR. In opinion of the Russian side it means that exactly it was the participant of Treaties of 1921 and 1940 between Russia and Iran and as a consequence exactly it is their successors, i.e. before the conclusion of new agreements the order and terms of the use of the Caspian Sea should remain in the frames of the existing agreements.


According to Barsegov, it means that newly formed Caspian countries including Azerbaijan should ask Russia to allocate them the part of "heritage". However, he forgets that after collapse of USSR new states determining boundaries of its territories did not make a request for Russia to cut them a piece of land and such kind of principle international community admitted to be completely legitimate.


Initially Russia position was in joint utilization of Caspian resources by all Caspian countries (by condominium principle), i.e. solution o all issues of activity on Caspian including the problem of resources development by joint efforts. However, afterward this position having no any international legal ground underwent significant changes. So, in June 6, 1998 Russia signed with Kazakhstan "Agreement on sovereign rights for underground resources in the northern part of Caspian Sea" and from that moment started the first period of Caspian division between Caspian countries. Having recognized the impossibility of realization in practice the principle of condominium then Russia leaves steps back from its initial position and offers compromise option. Proposal of Russia was demonstrated in Alma-Ata 1997 by former Minister of Foreign Affairs E. Primakov: "we agree to admit the right each of the Caspian countries to carry out the oil production and plan its activity not only in 45-mile coastal zone, and beyond its boundaries as well according to agreement of concerned parts".


Thus, politics of Russia in the given issue was evolved by the following way (Konoplyanik, 1998):


  • 1992-1995: Post-imperial approach. In that period in respect to other countries there was pursued a policy maximally complicating the development of hydrocarbon reserves in their shelf zones.
  • 1995-1997: pragmatic approach. Russia refused the use of force methods. In some issues relating to Caspian status, Russia juxtaposes positions with neighboring countries. Stops actions preventing the development of hydrocarbon resources of Caspian and accents on monopoly of oil-products delivery on the world market via its territory.
  • 1997-2001: integration approach. Russia refuses from monopolization of Caspian Sea delivery on the world market. Actually admits the principle of sector division of Caspian. Encourages involvement of Russian oil companies into international contracts in that region.

Despite such change of Russian Federation position, it still has the trump card allowing "force to his knees" any of Caspian country. This trump card-transit rivers on its territories ensuring outlet to the Black Sea, Sea of Azov and Baltic Sea is systematically used in relations with Republic of Azerbaijan.


Position of Islamic Republic of Iran. It is not strange, that in terms of issue of legal status and regime of Caspian position of this country is very close with (initial) position of Russian Federation. So far Iran considers itself together with Russia joint owner of Caspian. Basing on agreement 1921 and 1940 it invariably offers the same - condominium i.e. the idea of joint (collective) ownership of Caspian.


The most substantial moment of Iranian position-proposal on creation of Organization of Caspian countries for development of regional cooperation. At the same time Iranian part understands, that the existing situation radically differs from that being during USSR and that is why it protest against determination of legal status of Caspian. Change of initial position of Iran was reflected in the International conference that took place in December, 1995 in Teheran "Prospective of oil-gas fields development of Caspian Sea".


Minister of Islamic Republic of Iran G.R. Aga-Zadeh suggested at this meeting to remove priorities from political conjecture to economical benefit. Later after receiving 10% of share in contract "Shakhdeniz" this idea was practically confirmed.


However, there are no promotions in Iran position. On the contrary, some period of time later a permanent ambassador of IRI at the UNO sent an abrupt note of protest on the first oil production at Azeri field "Chirag" to Secretary General of this organization. Later, minister of foreign affairs Kyamal Kharrazi returned to initial position of IRI: "Our main position is the following - the Caspian area is in joint proprietorship of Pre-Caspian states, that is why all exclusive sectors (of these countries) must be cancelled…". So, the position of Iran does not base on international standards and pursues economical interest which is profitable only for Iranian side.


Position of Turkmenistan. The position of this country is very confused and unsynonymous; it has been changed many times over recent several years. At the beginning Turkmenistan as Iran considered the Caspian Sea to be inner closed reservoir (lake) and category of marine standards and principles of sector division are not suitable for it. However, Turkmenistan was the first among Pre-Caspian countries who adopted Law of the state borders (1993) and recognized 21-miles shelf and free economic zone in accordance wit international standards of maritime law and so Turkmenistan defined its priorities. On May 1995, the President of Turkmenistan S.Niyazov did not agree with point of view of Russian President B.Yeltsin that: "…Caspian Sea can not de divided both the bottom and the water surface".


In further speeches and statements both the President S.Niyazov and his minister of foreign affairs (a former minister B. Shikhmuradov) appealed for many times to recognize a juridical power of agreement which was between Iran and Soviet government and former Caspian legal regime before new agreements have been concluded. In 1996 in Ashkhabad Iran, Russia and Turkmenistan signed memorandum of International joint Consortium formation for development of Caspian oil fields. At last, in 1997 Turkmenistan expressed his abhorrence to contact of development of oil fields "Azeri" and "Chirag" which had been signed by Azerbaijan side and confirmed indirectly lawful sector Caspian division. So, position of Turkmenistan became close to position of Azerbaijan and Kazakhstan relatively Caspian sector division.


Position of Kazakhstan. According to position of this country the Caspian Sea is an inner closed sea and its suits the standards of marine Convention of UNO. Minister of foreign affairs of Kazakhstan K. Tokayev stated "agreement between USSR and Iran concerned only aspects of fishery and navigation. And concerning the use of mineral resources of the Caspian Sea there was juridical vacuum. Activity of Pre-Caspian states in exploitation of these resources on the base of generally recognized juridical standards and norms filled this vacuum…".


Close position of Kazakhstan and Azerbaijan reflected for the last time in special joint Statement "Principles of status definition of the Caspian Sea and cooperation in its shelf and water area". In process of exploitation of mineral and biological resources of Caspian they recognized the rights of other sides and other neighbouring states for economical activity in appropriate sectors. Actually, Azerbaijan and Kazakhstan defined their "national sectors" in the Caspian Sea.


Position of Azerbaijan Republic. Azerbaijan considers that Caspian Sea is an international sea and in accordance with the practice of division of international lakes it must be divided into 5 parts. Furthermore, each coastal state must have right to realize and to plan its activity independently in appropriating Caspian sector. It responds to Constitution of Azerbaijan Republic, in the 11th article of which is said:"Inner waters of Azerbaijan Republic, the sector of the Caspian Sea (lake) belonging to it, air space over Azerbaijan Republic are integrated parts of territory of Azerbaijan Republic".


According to proposal of Azerbaijan the Caspian Sea must be divided by coastal states in sectors on principle "medium line" (which is at the same distance from coastal line of each of them). To Barsegov opinion (1998) Azerbaijan takes the most "extremist position" on problem of the Caspian status and this is connected with location of the main oil reservoirs of country in the Caspian Sea. Let me remind this author the position of Azerbaijan is not "extremist" but the most stable. At all meetings of representatives of Pre-Caspian countries (there were 40 since 1992) dedicated to this problem Azerbaijan held the only position: the Caspian Sea is an International lake and according to existing practice of sector division of such seas it must be divided into 5 parts. The positions of other Pre-Caspian countries - through they suggested different proposals in different times (sometimes rather contradictive) - at present they are reaching positions of Azerbaijan.


Proposal of Azerbaijan includes not only sector divisions of the Caspian Sea as an international lake. It also includes marking of state borders on line contouring appropriate sector. This allows canceling all problems, which can appear in future between Pre-Caspian countries.


So, since appearing the problem as definition of international-juridical status of the Caspian Sea the pre-Caspian countries conducted about 40 joint meetings dedicated to this subject during 9 years. For this period there were some changes in their positions though approaching the single position (sector division of the Caspian) was clearly observed. It is clear the Caspian can not be divided into equal parts as Iran suggests ignoring international laws. Today sector division of the Caspian exists de-facto and probably it will be registered legally in future.


The last idea gradually becomes reality. And particularly it reflected in statement of Russian President during his visit in Azerbaijan on January, 2001. Russian side and Azerbaijan agreed to define maritime boundaries on principle of the Caspian floor division. At meeting of ministers of foreign affairs of the Pre-Caspian states (February 21, 2001, Tehran) the four of them expressed nearly the same point of view. And again Iranian side was on contrary position and obstructed the adoption of decision on this problem.


References


1. BARSEGOV, Yu.G. 1998. The Caspian in the international law and world policy. Publishing House: IMEMO RAN. Moscow. 64.

2. KONOPLYANIK, A.A. LOBZHANIDZE, A.A. 1998. Caspian oil on the Eurasian intersection: Preliminary analysis of economical prospects. Publishing House: IG and RGI. Moscow. 140