The Legal Regime of Caspian Sea
Dr. Tomaj Arian
PhD Political Science, University of Mysore 570
005, India
publish in: www.worldwidejournals.com . VOLUME-8, ISSUE-7, JULY-2019 • PRINT ISSN No. 2277 - 8160
Abstract
My goal in doing this research was to reach at a certain definition
of the legal regime of Caspian Sea. We know that there are different methods to
divide the border seas and lakes. In this article, the scholar has tried to
explain all the ways through which Caspian Sea can be divided. At the same
time, the advantages and disadvantages of each way have been analyzed.
Different viewpoints of the littoral countries of this sea are also stated. All
the investigations done show the fact that Caspian Sea is a closed and big lake
and it takes its own specific solution to divide its bed and under bed. In
short, the legal regime of this sea is unique in the world. It should be done
based on the agreements between Iran and the former soviet union .Considering the
rights of the newly formed countries from the former soviet union, a new legal
regime has to be written for this sea. The best solution to that is to divide
this sea equally among the littoral countries for the resources of under bed
and to form a shared ownership for the surface waters of the sea.
Introduction
The legal regime of Caspian Sea is one of the important discussions
among the countries of the region after collapse of Soviet Union. The legal
regime is not agreed upon unanimously by mentioned countries. The legal regime
has been one of the main challenges of this sea regarding exploitation of the oil
rich regions of the sea and the ownership of sea. We intend to explain about
the Caspian Sea to see whether it is a sea or a lake. The legal argument about
that is brought in this article. The agreements on this sea made between Iran
and former Soviet Union will also be discussed. There are basically several
ways for dividing the Caspian Sea that is tried to be retold in this article.
The policies of littoral countries of Caspian Sea will be studied from the
beginning till now. The best possible solution for dividing the bed and under
bed of the Caspian Sea is tried to be offered.
Is Caspian Sea a sea or a lake?
One of the main discussions which has to be considered regarding
determining the legal status of Caspian Sea is the fact that whether the
Caspian Sea is basically to be seen as a sea or a lake from the international viewpoint
of the seas? Clarification of this issue will help the countries surrounding it
in a considerable way at the time they try to signify the legal status of this sea.
The reason for that is that using the title of lake or sea will have specific
significance from the political and legal viewpoint. it is so much so that if
it is proven that this body of water is a sea ,we can use legal concepts like domain
sea, supervision region, monopoly region and the plateau for this body of water
too as they are used for the open seas. We need to apply the convention of seas
law to this discussion in order to signify the reality of this sea. But if the
reservoir of water is considered to be a lake, the legal regime of the closed
seas and lakes would be used for it. Therefore, it is very important to clarify
this issue.
What is certain is that it is mentioned in the dictionaries and a
lexicon about definitions of sea is that sea is a geographical unit which has
connection to the world oceans and it is a part of the oceans. Lake is a geographical
unit which is made from accumulation of water in certain regions of earth and
is not connected to sea. Therefore, one of the criterions which have to be
considered for knowing the distinction between the lake and sea is their position
in the earth. We have to know that we cannot use the dimension of area a body
of water covers as the only measure for recognizing the difference between a
sea and a lake. With the above explanation, a sea like Azov having 38000 sq km
of area and 14 meters of depth is a sea but Caspian sea having ten times more
the area and 105 meters of depth is a lake with its own special circumstances. Despite
that, keeping the measure in the head that Caspian Sea is a lake, they call it a
sea conditionally in many scientific works. Because it has the characteristics
of sea such as salty water, its area is not less than that of Black, Baltic, Red
and North seas and it is even more than Azov and other similar seas. Part of
its flora and fauna has the characteristics of that flora and fauna found in
the seas. Shelyamin.b(1974)
Despite that, Caspian is the biggest lake in the world and deserves
to be called sea rightfully. Because it cannot be compared with the concept of
lake at all from the dimension of area it covers. It includes by itself almost
about 40% of the area of all the world lakes and it is five times wider than Superriver
which is second largest world lake. It is even larger than the total area of
Persian Gulf and Oman Sea. But this body of water has a special position from
the legal aspect which is the base of our work in this research. Prof. Paul Taverine
who is an expert on the seas' laws and is a professor of Paris University
states about the Caspian Sea that: "The legal regime of Caspian is about
the subject that whether this body of water is a sea or a lake." He goes
on to say that: "I have visited the Iranian shores of this sea. It had
high waves, its water was salty but I did not feel that I was standing at the
seaside. Therefore, it could clearly be said that it is a big lake. The geographical
and legal definition of sea should be equivalent to each other and both
definitions about the Caspian Sea would state that it is a lake. Maleki.a(1998)
Therefore, Caspian Sea is a closed basin as it does not have natural
path to world oceans. The measures which are used for the international law of
seas such as regulations about the domain sea, the supervision region, the
economic monopolies region and plateau cannot be used for it. The legal regime
of Caspian is related only to it (It has no similarity with other similar lakes
or closed sea and it is for the specific status of Caspian Sea.).The legal
regime of Caspian Sea was established through some agreements between
governments of Soviet Union and Iran before the collapse of Soviet Union. Maleki.a(1998)
In this part, definition of the legal regime will be done and it
will be extended to the lakes and seas
The legal regime of lakes and closed seas
The legal regime includes the collection of rules and regulations
applied to the method of exploiting all the sea potentials by the countries
surrounding the sea. It includes different grounds for exploitation of waterway,
the animate life in the sea, the mines and the natural reservoirs of the plateaus
and the domain right of each country over its littoral waters.
Considering that Caspian Sea is a closed sea and a lake,
investigation of the legal regime of the closed seas- using international laws-
seems necessary from this viewpoint.
In the yearly report of the international law of 1956 regarding the
seas, three different types of the closed seas were recognized; each one of
them was distinct from the other:
1. The sea which
is surrounded by the soil of a limited number of countries and is connected to
other open seas through one or more narrow straits. The legal regime about them
will be signified by the international conventions such as the Black and Baltic
seas.
2. The sea which
is surrounded by the soil of one or more countries but its legal regime is not
signified by the international conventions such as the Japanese Sea and the Akhtask
Sea.
3. The sea which
is surrounded by one or more countries and has no connection way whatsoever to
other seas such as Caspian Sea. Nameless(2004)
Seas and lakes inside a country are part of that country and no
country or state has the right to have any claim over exploiting it. But
regarding lakes and seas that are located among some countries, the scholars of
the international law have different views. Most of them are of the belief that
such lakes are part of the lands which make up the territory of the neighboring
countries. Among such people is Oppenheim. He believes that existence of
different agreements for dividing such lakes is a clear reason for that idea. Ganji.m(2002)
Some of the scholars are of the belief that in case there is no argument
for this issue, such lakes would not be part of the territory of the
neighboring countries and such countries have the right to rule over only the
littoral waters which are already signified. Beyond such waters, the lake would
be ruled according to the international law applied to open waters. Some others
believe that such lakes cannot be completely and permanently closed to other
countries at the time of peace. The rights conventions of United Nations for the seas which are made in Jamaica
in the year 1982 and came to force from the year 1994 and is the most reliable document
at the time being has nothing to say in this regard except for certain cases.
Based on the article 122 of the rights conventions for the seas, the closed and
semi closed seas are equal to bays, water basins or seas which are surrounded
by two or several states and would be connected to the ocean through a narrow
water way or another sea. This convention would encourage the neighboring states
with the closed and semi closed seas to cooperate in fulfilling their rightful
rule over the sea and executing their duties under the above mentioned convection
and believes that such countries have to be active directly or through regional
organization in fulfilling the following cases. These cases are stated as such
in the article 123 of the 1982 convention:
1. Cooridaniton
of management, protection of extraction and production of the animate life of
the seas.
2. Coorediantion
in executing the rights and duties by considering the reservation of supporting
and protecting of the sea environment.
3. In case of
necessity, invitation of other interested countries or the international organizations
for cooperating in the cause of promoting such cases. Ganji.m(2002)
Of course, the convention of the seas law won't impose the
obligatory mechanism to signify the legal regime over the littoral states. We
should take into account that the Caspian Sea has its own conditions. This fact
is the result of its specific geography which is being completely surrounded by
countries and being disconnected from open seas and its political specificity
which is being in the middle of two states of Iran and the former Soviet Union.
To that, historical considerations have to be added to understand the unique situation
of this sea. It does not have any of the cases which were mentioned for closed
and semi closed seas and were defined according to international law of seas.
Based on the criteria which were clearly mentioned in the 1982 convention, more
than 20 sea regions can be named as the closed or semi closed seas. Of such
seas, we can mention the Baltic Sea, Bering Sea, Black sea, Oman bay and
Persian Gulf. Emami.m(1992)
After the general definitions about the closed and semi closed seas,
we should notice that the above mentioned sea has its specific unique and legal
situation. The legal regime of this sea was signified by the agreements and
memorandums between its two littoral countries i.e. Iran and former Soviet
Union. This holds true about the legal regime of the seas and lakes which are
located between two or more countries. This sea, only through the created
channel (artificial) has been connected to the Baltic and Black seas. And from
the viewpoint of international law, it is considered to be part of the closed
waters and the rules and regulations applied for the general international law
regarding the open seas do not include the above mentioned sea. In the historical
agreements and memorandums between the two states of Iran and the former Soviet
Union, there was no mention of the international terms of rights for seas such
as territorial sea, the supervisions region, the monopolized economic region, the
plateau and the open sea about the Caspian Sea. Emami.m(1992)
Considering that, it became clear that Caspian Sea is a closed sea according
to the international law and is not included within the article of the international
law regarding the open seas. We can study the lakes similar to Caspian sea
which are located among several territories and will investigate the method of
agreement among the littoral countries of such lakes.
The legal situation of the lakes similar to Caspian Sea
1. The Constantine bou den se lake( map no.1):The most important and known principle about the border lakes
located among two or more countries, has been the agreement of the littoral
states about the legal regime based on the principle of unanimous vote. Such a
principle is not only clarified in the international law of seas but also it
has similar cases to that, given in the historical context, which would have
helped such principle to become international even more. From such lakes, the Constatine
bou den Se Lake can be mentioned. It is located among three countries of Germany,
Austria and Switzerland geographically and is the clear example of the execution
of the principle of the unanimous vote. This case is the only one in which the
neighboring waters of the respective states are divided but the rest of it is shared.
There is the shared domain over the sea regarding Austria and to some extent
Germany and only the waters of up to 25 meters of depth are claimed by Austria
as the territory of that country. Aghaee.b(1987)
In general, the legal regime of this lake is formed based on five
regional conventions among its littoral countries. One of the characteristics
of the legal system of the above mentioned lake is that there is no signified
border among the countries based on any given agreement. About the conventions
related to this lake, it has to be said that the 1960 convention among these
countries about the pollution of the environment has specified some rights and duties
for any of the mentioned states. Emami.m(1992)
The legal system of this lake has found reality not based on
division but in the form of shared ownership of three countries.
Considering that all the important issues of the sea have been
solved by the multilateral agreements, any issue resulted from it which is not
predicted in the above mentioned agreements has been solved by far through the spirit
of interaction and cooperation. Except the above mentioned sea, the suggestion
for the shared ownership does not have precedence in the world. Aghaee.b(1987)
2. The five seas:
They include Superior, Michigan, Hurn, Erie, and Ontario lakes.
These lakes are located between the two countries of United States and Canada.
The legal regime of these lakes which determines the affairs related to the
shipping, consulate regulations, fishing, military affairs and etc. is
signified based upon the agreements between the two countries and in this regard,
about 200 mutual agreements have been signed between the two countries. The
above mentioned countries have used secular international law and also the general
rules of the contract laws in the necessary grounds in compliance to the legal
system of the above mentioned seas. The two countries have accepted that the
northern border of America is the mid-line of this lake. That is why the two
sides of the above-mentioned line is part of the national waters of each of the
two countries. Therefore, there is no territorial water for this lake. The
lakes are not open to other countries. Only the two countries at its shores are
qualified to use this lake.
Hence, the legal status of the five lakes, contrary to the previously
discussed lake (Constantine bu dan se), has been shaped not based on the shared
ownership but on determining the area of each country. Maleki.a(1998)
What is understood from investigating the legal regime of lakes
similar to Caspian Sea was that though it might be possible that form and type
of complying legal regime for big lakes and closed seas can be different but
the mentioned regime would be signified by the littoral countries which can
have different forms in accordance to the interests of such countries.
But there are two major important principles in complying the legal
regime of such seas which include: the principle of unanimous agreement and the
specific characteristics of the closed seas. These two principles have been
accepted by the countries of Caspian Sea. It means that all the countries at the
shore of Caspian sea have admitted this reality by far that legal regime of Caspian
sea has to be complied by all the littoral countries. Though, they have
difference of opinions in the form and type of the legal regime. This is one reason
why complying the legal regime of Caspian Sea is delayed. Maleki.a(1998)
The agreements between Iran and former Soviet Union about Caspian Sea
In this section, we would investigate the agreements between Iran and
tsarist Russia and later former Soviet Union, so that we can clarify the content
of the agreements about the Caspian Sea, and can find a correct approach to
complying the legal regime of Caspian Sea.
1. The Golestan agreement
In the 19th century AD, we witnessed two major wars
between tsarist Russia and Iran which both lead to the defeat of Iran. The
first war was in the year 1804 AD. Iran, under pressure from England, made a
peace agreement with Russia. According to this agreement, the government of Iran
became deprived of the militarily marine force in the Caspian Sea. In the fifth
chapter of this agreement, it is stated that ships of the government of Russia
which move in the sea for transactions can go near the ports and shores of Iran
like older days and regarding the military war ships of Russia, they can move
in the Caspian sea as before and no other government but Russian has the right
to own ships in the Caspian sea. Madani.j(2001)
Till before this agreement was made, no other legal document, which
had notions regarding how this sea was to be used, was made. Following this agreement,
some restrictions were made for Iran. Such restrictions were further confirmed
after a new war began and the imposition of the Torkmanchay on Iran occurred.
2. Torkmanchay agreement
After about 12 years of the relative peace between Iran and Russia following
the Golestan agreement, Russia violated Iranian borders and blackmailed the
residents of those areas that brought Iran to the point of declaring war to Russia.
But the fact that Iranian military equipments could not be compared to Russian
military and the British diplomatic activities were in favor of Russia lead to
defeat of Iran. Nafisi.s(1998)
Following that, the agreement of Torkamanchay was made in the year
1828 AD between the two countries. This agreement confirmed the restrictions
imposed on Iran regarding the military usage of sea in Golestan agreement and
emphasized that except for Russia, no other government can have warships in the
Caspian Sea. Nafisi.s(1998)
This unfavorable situation for Iran regarding military usage of the
Caspian Sea till the end of First World War remained in place till the Bolshevik
revolution of Russia.
3. The 1921 agreement
Following the occurrence of the Bolshevik revolution in the year 1921,
the Bolsheviks started to hold peace agreements with their neighboring
countries in order to protect the revolution and provide for the security of
Russia and territories around it and to stop the support of neighboring
countries for the anti revolutionary forces .They went as far as giving some
concessions to the neighboring countries. In the year 1921, friendship and
peace agreement was made between Iran and the federation republic of Russia.
After Russian revolution, the government of Iran was the first government to
hold peace agreements with Russia, the purpose of which was to facilitate
political and business deals. Sheikh eslami.j(1991)
This agreement is arranged in 26 chapters. According to which the
imposed agreements of tsarist Russia on Iran were cancelled.
But the most important chapters of this agreement are the 11th
and 14th ones. In the 11th chapter of this agreement, it
is stated that some of the contents of Golestan and Torkamanchay were cancelled.
Such contents would include the military usage of Caspian Sea by Iran which was
no longer in place. In the mentioned chapter, it is written that " based
on the privilege mentioned in 8th chapter of the agreement on 10th
Feb. of 1828 between Iran and Russia in Torkamanchay, Iran is deprived from the
right of having military force in Caspian which is no longer valid. Therefore, both
parties agreed that from the time of this agreement onward, both countries have
the right to freely ship in the Caspian with their own national flags.
Therefore, the mentioned agreement, settling down the land borders of two countries,
created a new situation about the Caspian Sea. Velayati.a(1991)
An important point from
among points that make 1921 agreement is the emphasis on the shared rights of Iran
and the federation of Russia and cancellation of the discriminatory previous agreements.
That is the reason why this agreement is seen as a beginning point for the
legal outlook towards Caspian Sea based on two principles of justice and equality
of rights. Nameless.(1959)
From other agreements, the rules and content of which, help form
the legal regime of this sea and some of littoral countries emphasize upon its credibility
as the base for the new move is the shipping and business agreement of 1940 between
Iran and the former Soviet Union.
4. The shipping and business agreement of 1940
Regarding the conditions to sign the 1940 agreement, we have to state
that this time period is simultaneous with the second year of Second World War.
Based on the above mentioned agreement, it would be clearer that except for a
strip of littoral land which belonged to each of the two parties exclusively,
fishing has been free throughout the Caspian Sea and determining this sea limit
does not have any effect on the parts of Caspian Sea shared among countries.
From among other cases that were emphasized upon by this agreement was that
only the ships belonging to Iran and former Soviet Union have the right to move
and the ships of other countries don’t have the right to enter this sea.
Nameless.(1959)
The consequence of the two agreements of 1921 and 1940
In short, about the two agreements of 1921 and 1940, it can be said
that based on these two agreements and from theory viewpoint, the Caspian Sea
is known as the shared sea between Iran and former Soviet Union and any kind of
exploitation of that sea is forbidden for any other third country. There is not
signified any border between Iran and former Soviet Union in the sea and both countries
had equal rights regarding shipping and fishing.
From among cases that were not referred to by these agreements as a
result of temporal and technological reasons was the issue of the exploitation
of sea resources at the bed and under bed of this sea and this has caused
conflict between the opinions of the littoral countries and some of such
countries have seen these agreements as invalid for the same reason. Sheikh
eslami.j(1991)
The collapse of Soviet Union and the issue of replacement of the
governments
After collapse of the former Soviet Union, from the viewpoint of international
law, all the newly formed republics from former Soviet Union signed agreement
of Almaty on 21th December of 1991 and referring to that, they confirmed all
the independent common wealth governments would guarantee on their side to stay
committed to contents of the agreement made by the former Soviet Union
regarding certain important privileges for Iran. It does not need to be
reminded again that Iran and former Soviet Union's agreement about the Caspian Sea
is considered as the commitments of the former Soviet Union towards Iran's
rights in the Caspian Sea. And therefore, the agreement of 1921 and 1940 are
still valid. Hermidas bavand.d(2003)
But, some of the newly independent countries such as Kazakhstan and
Azerbaijan, using the doctrine of changing the status quo, believed that such an
agreement is not valid. It means that they don’t see themselves as committed to
the agreements between former Soviet Union and Iran. The analysis of Azerbaijan
is that considering the change in the status quo, such agreements are not valid
anymore and when in the year 1956, exploiting the resources of Azerbaijan began,
the government of Iran showed no objection to this act and therefore, its silence
can be interoperated as their consent to that behavior. Oxman.b(1996)
Kazakhstan, ignoring this agreement, began negotiating with the
reliable western companies and did not accept this agreement as valid. But
Russia has intensely objected to these unilateral actions and has presented its
opinion officially to the United Nations on16th October of 1994 through a
document named the federation of Russia's position about the legal regime of Caspian
Sea. In the above mentioned document, it is stated that according to international
law, the legal regime of Caspian Sea was signified between Iran and former Soviet
Union based on the series of agreements of 1921 and 1940 and this legal regime
is valid and has to be observed till all the littoral countries have not signed
any new agreement. In the April and September of 1994, Russia informed Britain
that the agreement between Britain and Azerbaijan about oil extraction is
illegal because there is nothing as Azerbaijan part in the Caspian Sea. Kohen.a(1996)
Now the question is raised that whether the newly independent
states i.e. Russia, Kazakhstan, Azerbaijan and Turkmenistan are according to
international law committed to the content brought in the agreements and
contracts between former Soviet Union and Iran or not.
Before answering this question, it is first needed that a short
explanation be given about the replacement of the states in the international
law.
What we mean by the replacement of states is that when the land is
transferred from one government to another, what rights and duties would be
handed over from previous government to the new one. The general rule in the international
law is that when a new government rises, that government, based on the
principle of the replacement of government, would not be committed to the execution
of agreements that were made by the previous government; because a new
government which was not party to an agreement cannot be basically held responsible
towards that agreement. This principle is known as the rule of non-transferring
or the doctrine of the blank board. This rule is true about both the newly independent
governments and the governments formed from disintegration and unity. But there
is an exception to the non-transferring or the blank board, in the sense that
the new government is committed towards the agreements about the transit right,
shipping, port facilities, determining the territorial borders, the river
banks, the water ways, the railways, the telegraph lines which are in the land
of another government. Therefore, answering the main question of this section which
is whether the newly formed countries of Caspian Sea are committed to the
contents of the former Soviet Union agreement with Iran, it has to be stated that
the agreements between Iran and the former Soviet Union are basically about
shipping in the sea and are not included in the rule of non-transferring or the
blank board. Consequently, the new governments of Caspian Sea have to execute
the former Soviet Union government's commitments towards Iran. Moghtader.h(1995)
Besides, through the articles 17 and 24 of the Vienne convention in
the year 1987 about the replacement of agreements regarding the newly founded governments,
the consent of the new governments about the agreement is to be considered. But
about the new governments which are established based on separation and division
of one government, they will automatically become the substitute of the former
governments. Moghtader.h(1995)
Therefore, based on the above mentioned rule, the littoral
countries of Caspian Sea are committed to two agreements of 1921 and 1940.
Commitment of the republics from former soviet union to the mentioned agreements
is not only from the rule of international law, but also confirmed by these
republics in the statement of Almaty dated 21st December 1991.Accoriding
to the same statements, all the independent common wealth governments guarantee
the execution of the contents from the agreement by the former Soviet Union and
in other words, they can break them. Despite that and according to the rules applied
to closed seas, the agreement of the littoral countries of the Caspian Sea is absolutely
essential to reach at an agreement. Moghtader.h(1995)
Different types of suggestion to make divisions in the Caspian Sea
The governments have used different methods by far in order to
signify their territory in the lakes. Such methods include:
1. Comprehensive condominium:
This method was suggested by the government of Russia and is
accepted by government of Iran too and is the confirmation of the agreements of
1921 and 1940 and is opposed by other countries specially Azerbaijan.
2. The method of connection line between the shores of the
countries
In this method, the last connection point in the land border is
connected to another one and the waters behind it will be monopolized by every
country ruling it. If this method is used, countries of Azerbaijan and Kazakhstan
will have the least share from Caspian Sea.
3. Method of division based on one focal point
In this method, the central point of Caspian Sea will be signified
and the lines of land border leading to the sea will be drawn towards central
point of Caspian Sea. This method will give the biggest share to Iran and
Kazakhstan (map no.2)
4. Method of division based on two focal points
In this method, the sea would be supposed to be oval and will have
two focal points. Connecting the two points by one line would make the end of
land borderline stretch towards that line and the distance between the two
stretched lines would make the marine border of the littoral country. In this method,
Iran's share would be almost 20% of the whole sea area.(map no.3)
5. Method of using the most projected land point into the sea
In this method, the projected points of land into sea will be used.
Kazakhstan will have more share than other countries and the share of countries
of Russia, Turkmenistan and Azerbaijan is almost the same.
6. Method of the most projected sea point into the land
This method is the same as the other one. The only difference is
that in this method, the most projected point of the sea into land of littoral
countries would be considered.
7. Division based on the length of littoral line
In this method, the northern-southern dividing line would be drawn
and proportionate to the length of each country's shore, the land border would
be connected to the dividing line.
8. Method of dividing into five equal parts
In this method which is called 20-20, a completely equal share in
the water, under water and under bed of sea has been considered for five
littoral countries. In this method, the land border towards the sea is as such
that the water surface would be divided into five equal parts.
9. Method of layer division of the sea
In this method, each of the sea parts would be divided in a special
way. In the layer division method, the resources of bed and under bed of the sea
would be divided equally and the resources in the water itself are divided in a
shared manner. Vahidi.m(2001)
Now that the viewpoints of international law about the closed seas
and its legal regime are analyzed and the agreements of 1921 and 1940 and 1991(Almaty)
have been studied and different methods of dividing the sea is discussed, we
would investigate the viewpoints of each of the littoral countries of Caspian
sea. Hermidas bavand.d(2003)
The viewpoints and the positions of the littoral countries of
Caspian Sea
1. The viewpoints and positions of Russia about the legal regime of
Caspian Sea
From the beginning, this country has had a completely double way of
dealing with the issue about the legal regime of Caspian Sea .It means that it
first supported the shared ownership of Caspian Sea and later on, it supported
the theory of dividing Caspian Sea into parts. Besides, it has to be said that
foreign ministry of this country has considered itself a supporter of the shared
ownership of the sea and on the other hand, the oil and energy ministry of
Russia and the oil companies ,by making mutual agreements with governments of Azerbaijan,
Kazakhstan and Turkmenistan, have practically confirmed the positions of the
above mentioned republics and the principle of division is officially accepted.
Hermidas bavand.d(2003)
The Russia's viewpoints are
divided into two groups on the whole: a. After gaining independence, Russia
has had the same outlook as Iran and through an official document named the Russia's
position about the legal regime of Caspian in the year 1994, announced that
considering that Caspian Sea is a closed sea, this sea is closed on all the countries
which do not have any border in this sea. Therefore, this sea does not follow
the principle of the international law of seas .But it has a special legal
situation. Russia is worried that if the rules of international law of seas are
used about the Caspian Sea, the canals of Volga-Dan, Volga-Baltic will be known
as international water ways and the Caspian Sea would be opened to other
countries. Russia believed that the agreements of 1921 and 1940 are credible
but considering the new regional changes, the above mentioned legal regime cannot
give proper answers to the related issues and this issue has to be solved
through making new agreements. Hermidas bavand.d(1997)
b. But with a
look at the Russia's behavior, we can understand that sometimes the national interest
of countries cause the countries to overlook many of the internationally
accepted rules and make new decisions contrary to the international law. Russia,
on 6th July 1998, in an agreement with Kazakhstan, divided the
northern part of Caspian Sea which shows big differences from its previous
positions about the legal regime of Caspian Sea. Based on the agreement of 6th
June of 1998 between Russia and Kazakhstan, the resources of the bed and under
bed of sea are divided between the two countries and the water surface between
the two countries are declared to be shared between them. Hermidas
bavand.d(2003)
What is understood from the double viewpoints and positions of
Russia regarding Caspian Sea is that this country is looking for more shares
and the privilege of drawing the oil and gas pipeline through the sea. Therefore
its positions are tactical. The Russia's action in making the agreement with Kazakhstan
is officially discrediting the agreement of 1921.1940 and 1991(Almaty). Hermidas
bavand.d(2003)
2. Viepwoitns and positions of Azerbaijan republic about the legal
regime of Caspian Sea
The republic of Azerbaijan is one of the countries which support the
theory of dividing the Caspian Sea into national parts intensely. The
government of Azerbaijan after gaining independence has tried to have an independent
policy away from its past. From the beginning, this country has supported the complete
division of the sea and demanded that methods used for the closed lakes to be
used for the Caspian Sea too. Azerbaijan's goal form choosing this strategy was
to completely divide the resources of the sea in its bed and under bed. It has persisted
to keep its position throughout the past years. azari.a(2001)
Azerbaijan claims that usage of Caspian Sea as Border Sea or an open
one is accepted for that country. Based on the legal concept of lake, any littoral
country would gain its share from Caspian Sea which is made from a littoral stretch
to the central line and it would practice the monopolized domain rights in this
part. The arrangements of the open sea are accepted by Azerbaijan too. The
reason for that is that based on the convention of 1982 of United Nations about
the seas' rights, not only 12 miles of the land waters but also 200 miles of
the monopolized economic region would be considered as official. Yakoshik.v(1998)
The country of Azerbaijan welcomes dividing the northern bed of
Caspian Sea between Kazakhstan and Russia and sees that as a useful step
towards reaching at its own goals but it has emphasized that this division
should include the surface waters of the Caspian Sea. Farhadi.j(2004)
In short, the positions and viewpoints of Azerbaijan republic can be
mentioned as the following:
1. Emphasis on the division of the sea and the legal regime of
division
2. Kazakhstan position is the same as Azerbaijan's regarding the
legal regime.
3. The extant agreements of Caspian are not seen by Azerbaijan to
be appropriate for the current situation.
4. Azarbiajn considers no objection from the countries which accept
the validity of agreements of 1921 and 1940 and also the investment of other
littoral countries as a reason for the consent of those countries regarding the
division that Azerbaijan has suggested. Noori.k(1994)
3. Viewpoints and positions of Kazakhstan about the legal regime of
Caspian Sea
The republic of Kazakhstan along with Azerbaijan is among the littoral
countries of Caspian Sea which support the theory dividing the Caspian Sea and
has clearly stated its positions in this regard. Kazakhstan believes that the agreement
of 1921 and 1940 considering the occurred political changes does not account
for the new political and geopolitical situation of the region anymore and it cannot
be seen as legal document to determine the legal regime of Caspian Sea. Kazakhstan
believes that by the increase of the littoral countries, there would occur a
new legal situation for the Caspian sea and in complying the new legal regime,
the interest of the newly founded countries have to be predicted and signified.
In a plan complied and arranged by this government, the Caspian Sea
is evaluated as a closed inside continent water basin which does not have any connection
to world oceans. Based on the same understanding, Kazakhstan has presented its
plan of legal regime by considering the convention of 1982 regarding the seas' rights,
based on which the national and territorial waters of each country would be demarked.
This country, following its policies on the 6th July of 1998, has
divided the shores of the country with Russia based on the mid line. Saliken.k(2002)
In short, the viewpoints and positions of Kazakhstan about the legal
regime of the Caspian Sea are as the following:
-sees the convention of 1982 of the law of the seas as the basis
-supports the division of the sea based on the agreement of 6th
July of 1998
-emphasis on the demarcation of limits and division of the sea into
territorial sea and the monopolized economic region
-considers no credibility for the agreements of 1921 and 1940. Gizatov.v(2002)
4. The viewpoints and positions of Turkmenistan about the legal regime
of Caspian Sea
The country of Turkmenistan is located at the east side of Caspian Sea.
Considering the geographical situation of this country (no access to the open
seas), it has always adopted a cautionary approach and positions similar to those
of Russia and Iran regarding the legal regime of Caspian Sea. This country
supports the shared ownership of the sea and its resources and believes that
recourses in the under bed of the sea should be divided by the agreement of all
the littoral countries. This country sees the Caspian Sea, as a result of its
special conditions, to be unique and contrary to Kazakhstan, emphasizes on not
using the international conventions regarding Caspian Sea. Nameless.(2000)
But the positions of this country began to change gradually as a
result of spread of western influence and weakness and double positions of
Russia. At the present moment, this country along with Kazakhstan and Azerbaijan,
has admitted the regime of division and is after drawing the agreement of
westerners and specially America for the plans of exploiting oil and gas.
Turkmenistan has announced in its last positions that if the regime of shared ownership
cannot be practiced for the Caspian Sea, it will support the theory of dividing
the sea to the national parts using the mid line and the division should
include bed and under bed of the sea. There should be a unitary legal regime dominant
over the sea too. Nameless.(2000)
5. The viewpoints and positions of Islamic republic of Iran about
the legal regime of Caspian Sea
The viewpoint of the Islamic republic can be divided into two
periods:
The first period which has always emphasized on the shared ownership
of the Caspian Sea .The second period which is from 6th July of 1998
onwards which was announced following an agreement between Kazakhstan and
Russia in which the two countries have divided the northern part of the Caspian
Sea.
1. In the first stage,
it believed that legal regime of Caspian Sea would be signified based on the
agreements of 1921 and 1940 and the documents annexed to it. In these documents,
except for the 10 mile limit, other parts of Caspian Sea were announced as the
sea of Iran and Russia and the two countries used to do the shared exploitation
of the sea. Iran believed at that time that the basis for negotiation should be
the two agreements of 1921 and 1941. Zarif.j(1997)
Considering the present conditions, Iran understands the necessity
of completing the extant legal regime and believes that according to Almaty agreement
of 1991, the newly founded countries of Caspian were committed to practice the two
above mentioned agreements (1921, 1940). And any one sided action from any of
those countries would be seen by Iran as the violation of the two agreements. Yovedda.d(1998)
2. But following
the agreement of 6th July of `1998 between the two countries of Kazakhstan
and Russia and dividing the northern part of Caspian Sea, we could see limited
flexibility in the positions and viewpoints of Iran. In this stage, the Iranian
authorities speak through their basic and ideal approach which is to use the
resources of sea in shared way by the littoral countries but following the agreement
between the two countries of Kazakhstan and Russia, a second approach was
adopted by Iran too and Iran has joined the idea of dividing Caspian Sea. jamshidi.m(1998)
Iran believes that if the Caspian Sea is to be divided, this
division should be fair and equal and include surface, bed and under bed of the
sea. It means that division will be in totality of the sea. In other words,
each of the five littoral countries of Caspian Sea would receive 20% of Caspian
Sea. Kharaazi.k(1998)
Conclusion
On the whole, we should state in the conclusion that Caspian Sea is
a closed one and is not included in the international laws as an open sea. That
is the reason why it has its own specific and unique legal status. The legal
regime of this sea, throughout the agreements of 1921 and 1940 is signified
between Iran and Russia. After collapse of Soviet Union and dividing of one
country to four littoral countries, there occurred issues between these
countries. Regarding the legal regime of Caspian Sea which led to the beginning
of negotiations about the new legal regime of Caspian Sea, many claims have
been posed by these countries about Iran's share in this sea.
It should be stated that till a certain result about the legal regime
of the Caspian sea is achieved, all the content of the previous agreements of
1921 and 1940 between Iran and Russia are kept valid and these countries (the separated
countries from former soviet union), based on Almaty agreement, have guaranteed
the execution of the commitments from the agreements of former soviet union .The
agreements of 1921 and 1940 are part of these agreements naturally.
Basically, Iran's policy about the Caspian Sea was formed as such
that the best way to provide for its interests was to emphasize upon the agreements
of 1921 and 1940.But after a while, in a sudden change of positions, the foreign
ministry of Iran brought forth the idea of 20% share of the sea and accepted that
Caspian sea be divided. It meant that removing the agreements of 1921 and 1940
from the place of validity. On the other hand, Russia which would follow the agreements
of 1921 and 1940 till 1997 as a basis for negotiations began to make mutual
agreements with Kazakhstan and Azerbaijan in a 180 degree of change of positions.
This practically meant the division of Caspian Sea and was against the previous
agreements.
We should admit the fact that as a result of collapse of former Soviet
Union, the littoral countries surrounding the Caspian Sea were five countries
from former two countries. Considering the previous agreements and the recent events,
it seems that if the member countries could reach at a collective agreement
about the Caspian Sea after long negations, it would be that Caspian sea be
divided into five equal regions among its littoral countries (Each of the
countries will have 20 % of the sea) (Division would be based on two focal
points brought in the map no.3). They can also reach at an agreement of shared
ownership about fishing and environment. Such an agreement would provide for the
interests of all the littoral countries of Caspian Sea and will be an end to disagreements
in this region.
Reference
Shelyamin.b(1974)."caspian sea".translator:soniya
habibian. Iranian Fisheries Company Publication Center.tehran.p 2-4.
Maleki.a(1998)." Seminar report on the development of the
Caspian Sea region". Central Asia and Caucasus Studies magazine.no 17.p
196-199.
Nameless(2004)."Caspian
sea, Review the legal regime ". Islamic Republic News Agency. Volume 4.p
43-45
Ganji.m(2002)."
Public International Law". volume 1.samt publications.p 256-259.
Emami.m(1992)."
International law Fishing and its implementation on the Caspian Sea".
Proceedings of the conference of Caspian Sea resources.babolsar.p 565-570.
Aghaee.b(1987)."
Legal Aspects of Marine Pollution by Oil" Foreign Policy magazine.volume
1.p 105-107.
Madani.j(2001)."
The political history of modern Iran".islamic publications center.p 32-35.
Nafisi.s(1998)."
Social and political history of contemporary".bonyad publications.tehran.p
310-330.
Velayati.a(1991)."the
history of foreign relation". Political and International Studies
center.tehran.p 96-99.
Sheikh
eslami.j(1991)." October Revolution of 1917 and Soviet-Iranian
treaties.political and economical information magazine.volume 56.p 12-15.
Nameless.(1959)."cet
of contracts Of the Soviet-Iranian treaties".volume 2 . Publications of
the Ministry of Foreign Affairs.p 88-101.
Oxman.b(1996)."Caspian
sea of bake :what reference does it make?".caspian cross roads magazine.p
47-49.
Hermidas
bavand.d(2003)." Legal regime of the Caspian Sea". Journal of
tomorrow's economy.vulome 7.p 12-14.
Kohen.a(1996)."great
game:oil politics in the Caucasus and central asia".heritage
foundation.usa.p 24-25.
Moghtader.h(1995)."
Public International Law". Publications of the Ministry of Foreign
Affairs.tehran.p 70-73.
Vahidi.m(2001)." Russian foreign policy in the Caspian
Sea". Central Asia and Caucasus Studies magazine.vulome 32.p 85-86.
Hermidas
bavand.d(1997)." Caspian Sea and Iran's Foreign Policy". Journal of
Middle East Studies.vulome 1.p 14-15.
Yakoshik.v(1998)."
Political disputes about the legal status of the Caspian Sea". Central
Asia and Caucasus Studies magazine.vulome 22.p 6-38.
Noori.k(1994)."
Iran's economic relations with the countries of Central Asia and the
Caucasus". Central Asia and Caucasus Studies magazine.vulome 8.p 122-124.
Saliken.k(2002)."
Kazakhstan plans on the legal regime of the Caspian Sea".payam darya
magazine.vulome 53.p 41-43.
Gizatov.v(2002)."
The legal status of the Caspian Sea".payam darya magazine.vulome 53.p
43-45.
Nameless.(2000)."
Comments Turkmenistan on the Caspian Sea legal regime".iran economy
magazine.vulome 5.p 7-8.
Zarif.j(1997)."
Caspian Sea and Iran's Foreign Policy". Journal of Middle East
Studies.vulome 1.p 15-16.
azari.a(2001)."
Iran's policies regarding the legal regime of the Caspian Sea".etelaat
magazine. Vulome 352.p 8.
Yovedda.d(1998)."
Investigation of Iranian policy toward the Caspian Sea legal regime".
Central Asia and Caucasus Studies magazine.vulome 33.p 119-122.
jamshidi.m(1998)."
Iranian perspectives on the legal regime of the Caspian Sea".hamshahri
magazine.vulome 253.p 8.
Kharaazi.k(1998)."
Iranian perspectives on the legal regime of the Caspian Sea". Publications
of the Ministry of Foreign Affairs.tehran.vulome 121.p 42-43.
Farhadi.j(2004)." The legal status of the Caspian Sea".
Journal of the National Defense
University.vulome 58.p 42-43.
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