Die Rechtslage des Kaspischen Meeres (original) (raw)

2008, Z. Kembayev, ‘Die Rechtslage des Kaspischen Meeres’ [The Legal Status of the Caspian Sea] 68 Heidelberg Journal of International Law 1027-1055

The aim of this article is to examine the problem of the legal status of the Caspian Sea, one of the most contentious international legal issues which have emerged after the breakdown of the USSR. The first part of the article demonstrates that the problem basically consists in the disability of the currently five coastal states of the Caspian Sea (Azerbaijan, Iran, Kazakhstan, Russia and Turkmenistan) to agree on the juridical standing of the largest inland body of water and consequently to conclude an international agreement which would determine their mutual borders and the range of their jurisdiction in the Caspian Sea. The conclusion of an agreement on the legal status of the Caspian Sea encompassing all coastal states is of enormous practical importance since the Caspian Sea contains significant oil and gas resources which are vital for the further development of the coastal states. Moreover, a solution to this problem would certainly bring more stability and security to the Caspian area, which, due to its energy reserves and immense geopolitical significance, has become an arena of competition between the most powerful international actors (such as China, the EU, Russia and the US). In turn, the conflict of geopolitical interests of the big powers increases regional rivalry, which is already very intensive, and creates a potentially explosive situation. The second part examines the historical background of the Caspian area and shows that at the beginning of the 20th century, after centuries of expansion, the Russian empire succeeded to make the Caspian Sea its mare clausum. Soon this position was claimed by Soviet Russia (and later the USSR), which, on the basis of the arrangements with Persia (Iran) from 1921-1940 on the “Soviet-Iranian Sea”, pursued primarily the aim to keep the Caspian Sea away from the influence of third countries and thus to safeguard and strengthen its uncontradicted dominance in the region. The author argues against existing views that the regime of the Caspian Sea was defined as a condominium. The 432 km-long Astara-Gassan-Kuly line (which provided merely about 11% of the water surface to Iran) was treated both by the USSR and Iran as their border and it was never formally protested by Teheran. The only reason why this line was not officially recognized is that the USSR never gave up its ambition to establish its autarchy in the Caspian Sea. The third part deals with the relevant rules of international law applicable to the division of border water territories. Reflecting the different positions of the coastal states, this part considers the provisions of both the law of the sea and the law of lakes and argues that the Caspian states, as part of the international community, must follow norms and principles of international law recognized by the overwhelming majority of the states. Furthermore, the author states that the present international practice tends unambiguously cause division of border territories using the equidistance method of delimitation (both with respect to seas and lakes). Based on this fact, the author concludes that the Caspian Sea (no matter whether it is considered as a sea or a lake) should be split into national sectors. The fourth part examines the evolution of the legal positions of the bordering states with respect to the legal status of the Caspian Sea and the development of their mutual relations. The author differentiates three major stages of the advancement of interaction of the Caspian states: 1) exploring the problem of the legal status of the Caspian Sea (1992-1996) and since 1996 two simultaneous running processes: 2) the adoption of north-Caspian agreements and 3) the elaboration of a general Caspian convention on the legal status of the Caspian Sea encompassing all coastal states. Although the adoption of a general Caspian convention and thus the final solution of the problem of the legal status of the Caspian Sea is not to be expected any time soon due to contrary interests of the coastal states, the author argues that the conclusion of north-Caspian agreements evidently demonstrates the ability of (at least north-) Caspian states to find a compromise especially regarding energy issues, which, in turn, can develop into a solid foundation for the solutions of all remaining disputes. Summing up the article, the author makes a conclusion that the fact of preventing potential conflicts and the on-going process of elaborating a general Caspian convention are to be evaluated as very positive political and legal development. Along with the commitment to the duty to refrain from the threat or use of force, the coastal states should be guided more strongly by the principle of cooperation with one another. In this regard, especially important would be the achievement of a compromise between Azerbaijan and Turkmenistan and the completion of the adoption process of north-Caspian agreements. A concerted action of all north-Caspian countries could significantly facilitate in determining the legal status of the Caspian Sea. Furthermore, the author argues that it is in the interest of all Caspian states to agree on a general and comprehensive Caspian convention which would consider their mutual interests (e.g. security concerns v. freedom of transit) and thus to safeguard peace and security in the region. In doing so, the Caspian states should distance themselves from the views of the past that more influence of one international actor necessarily results in the loss of influence of another. More prosperity in one part of the Caspian basin will inevitably cause economic growth in another, strengthen the solidarity of the Caspian states and contribute to the stability and security in the Caspian region, which, in turn, will certainly benefit the entire international community.