nueva página del texto (beta)
Inglés (pdf)
Artículo en XML
Referencias del artículo
Traducción automática
Enviar artículo por email
Citado por SciELO 
Similares en
SciELO 
Permalink
Summary: I. Introduction. II. The Caspian Sea. III. The Caspian Summits. IV. Legal issues of the Caspian Sea. V. The Convention on the Legal Status of the Caspian Sea. VI. Conclusion. VII. Bibliography.
I. Introduction
Goods travelling by sea between China and Europe take 60 days, by land they will take 12-15 days.1 All land routes must journey through one of three possibilities: Russia, Iran or the Caspian Sea/Caucasus. Thus, “… the Caspian region threatens Russia’s role as a major energy supplier and, by extension, Moscow’s political influence over Europe”.2
One latent issue has been the legal status of the Caspian Sea. The demise of the USSR transformed this body of water controlled by two states into an object of desire for all five riparian States (Caspian-5).3 The legal regime of the former USSR and Iran governing the Caspian Sea was inadequate as it did not deal with aquatic borders nor subsoil resources.4 Vast potential of hydrocarbon resources are the main point of contention, aggravated by unilateral claims.
Academic discussions focused on whether the Caspian Sea is a lake or a sea and consequently apply a predefined legal status. If defined as a sea, the United Nations Convention on the Law of the Sea (UNCLOS)5 should apply, in spite of only Russia (1997) and Azerbaijan (2016) being a party. If defined as a lake, navigational and non-navigational uses of international watercourses6 or lacustrine regimes, would apply, supplemented by customary international law.
Five presidential Caspian Sea Summits have taken place, one in each riparian State.7 The Summits established general negotiation points alongside strategic issues, v. gr., no foreign military allowed to use the Caspian Sea, environmental issues are quintessential, and only consensus of the Caspian-5 could allow anything to happen in the Caspian Sea. The Fifth Summit (Aug. 12, 2018, Aktau) adopted the Convention on the Legal Status of the Caspian Sea (CLSCS).8 It regulates the rights and obligations of the parties dealing with sovereignty, navigation, waters, subsoil, natural resources, and environment. While CLSCS avoids defining the Caspian a lake or sea, by bringing verbatim texts from international law and UNCLOS it resembles a lake or a sea.
I present the Caspian Sea basin. I review CLSCS from an international law standpoint, recurring to maritime, lacustrine and customary international law. I present what CLSCS purports to do and future prospects, to determine the legal status of the Caspian Sea: a sea, a lake or a stipulated body of water. It is for the Caspian States to decide the future of the Caspian Sea. No other country nor other sayer may participate in the legal definition of this endorheic basin.
II. The Caspian Sea
The Caspian Sea is the world’s largest inland body of water, lying east of the Caucasus Mountains and west of Central Asia. It is an endorheic basin, i.e., with no outflows.9 Due to its large size and brackish waters, people saw a sea, and, as an endorheic basin it also saw a lake.
The Caspian Sea drainage basin has three sectors. The northern part, mainly shallow, occupies 27% of its surface.10 The middle part occupies 36% of the surface with 35% of its water volume. On the south, the Caspian contains 64% of its water volume and an average depth of 300 meters, with a maximum depth of 1025 meters11 -quite more than regional seas, such as the Persian Gulf (max. 90 meters, with an avg. 50 meters). At present, the Caspian Sea is only connected to the world’s oceans through the Sea of Azov/Black Sea/Mediterranean Sea, the Baltic Sea, and the White Sea by means of channels constructed in Russian territory using the Volga, Don, Neva, and Svir Rivers.12 The Caspian Sea receives water from 130 rivers, albeit 88% comes from three rivers: Kura, Terek and Volga. The latter accounts for 80% of the water inflow,13 thus Northern waters are sweeter than in the South.
Attention has fallen on it due to its hydrocarbons resources. Estimates state the Caspian basin contains 48 billion barrels of proven oil reserves, 8.76 trillion cubic meters of natural gas reserves.14 Hence, it is “another Persian Gulf”.15
III. The Caspian Summits
The Commonwealth of Independent States adopted the Alma Ata Declaration to respect all treaty obligations undertaken by the former USSR (1991). Such treaties did not refer to aquatic borders nor subsoil resources. Unilateral claims surged, opposed by other riparians. Turkmenistan (1993) and Kazakhstan (1994) established their claims in domestic legislation.16 Azerbaijan included its claim into article 12 of its constitution and in 1994 signed the Contract of the Century with a foreign consortium to develop its maritime oil fields; agreement that “signaled the beginning of a new era in world energy politics”.17 All other riparians opposed this,18 stating nothing could be unilaterally defined; Russia threatened sanctions19 and added “it would retain the right to take any appropriate and necessary measures to restore the proper regime of the Caspian Sea”.20 Kazakhstan reciprocally awarded Azerbaijan and Turkmenistan the right to exploit natural resources in the Caspian Sea21 In 1993, the Presidents of Azerbaijan, Kazakhstan, Russia, and Turkmenistan stated that “the comprehensive solution of the problem of rational utilization of the Caspian Sea requires the participation of all Caspian states”.22 All Caspian-5 submitted drafts for a Convention.23
There have been five Caspian Sea Summits. Tense moments characterized the First (Ashgabat, 23-24 Apr 2002).24 The Second (Tehran, 16 Oct 2007) adopted a declaration as a political guide in Caspian affairs, until the adoption of CLSCS.25 The Third (Baku, 18 Nov 2010) adopted the Agreement on Cooperation in the Field of Security in the Caspian Sea, envisaging a conceptual agreement on sovereignty and fishing zones. The Fourth (Astrakhan, 29 Sep 2014) defined further principles applicable to the Caspian Sea, including safety and military issues, and a territorial sea of 15 miles and an exclusive economic rights (over biological resources) sea in further 10-miles.
The Fifth Summit (Aktau, 12 August 2018) was held with protracted expectations for a legal definition of the Caspian Sea or it would remain “a hotly contested piece of water thanks to its oil resources, navigation, and access to the Middle East and Europe for pipeline routes”.26 Four years spanning from the Fourth Summit, developments became evident. Russia needed economic development and realized its national sector contains important hydrocarbon resources, and evolved from a closed sea/ condominium to an area used by all. Azerbaijan divided the basin in sectors with full sovereignty on available resources, particularly subsea -significant for its development. Khazakstan partitioned with Russia (1998) and Azerbaijan (2002) the North Caspian Sea. Turkmenistan several times hinted at a Trans-Caspian pipeline as an alternative to its gas exports to China. Iran claimed 20% to stall adverse progress.
After the December 2017 Turkmenistan-Azerbaijan agreement to jointly develop sectors of the Caspian Sea, the Iran’s President Rouhani visit to Baku in March 28-29, 2018, was the turn of the times. One agreement27 was highly relevant. Iran accepted to use the Caspian Sea’s resources without border demarcation but jointly developing resources. The day before, Rouhani similarly signed in Turkmenistan.28 The jointly developed fields would seemingly constitute the limits of claims, becoming a pragmatical difuse border. Five of six additional agreements signed in Aktau include an identical provision: “Nothing in this Agreement [Protocol] shall be interpreted [considered] as predetermining the legal status of the Caspian Sea”.29 Thus, CLSCS is authoritative on the matter.
IV. Legal issues of the caspian sea
The legal regime of the Caspian Sea comprises treaties, declarations, joint communiqués and other instruments.30 None deal with maritime boundaries, national sectors nor subsoil demarcation. Relevant is the 1970 Soviet Union’s Ministry of Petroleum and Gas Industry administrative decision dividing the soviet Caspian Sea, along a median line, into sectors belonging to Azerbaijan SSR, Kazakh SSR, Russian Federative SSR, and Turkmen SSR. After the USSR collapse, they were reciprocally recognized as borders of the newly independent states.31 Russian Prime Minister Viktor Chernomyrdin confirmed it in Astrakhan (1993).
1. Lake or Sea
Historically, the Caspian Sea has been considered lake or sea depending on who geopolitically controlled its waters.32 Researchers -even official documents-33
concentrated on the Caspian Sea as a lake or sea.34 The debate was fundamental to the region’s future.35
Discussions indicated that “lakes with their delimitation and resources are not subject to any particular international convention and are left to be governed predominantly by customary international law”.36 For others, UNCLOS “enjoys no direct application to a border lake; however, some of its legal principles may serve as guidance”.37 Save few exceptions, border lakes are divided among coastal states, “in the absence of an international treaty governing delimitation and governance of the international or transboundary lakes”.38 Lake delimitation has used: “thalweg” (line of the lowest elevation within a watercourse) mainly for international rivers, rarely for border lakes,39 “coastal line”,40 astronomical line,41 straight line,42 historical boundaries,43 geographical middle lines,44 and formal middle line.45 Some lakes, like Lake Constance, require consent of all littoral states to set boundary lines. Only Lake Titicaca has a condominium status.46
Were the Caspian a sea, several47 ascertained UNCLOS would -implying should- apply -as conventional law- not inquiring about customary international law. Hence, “oceans and seas in international law are governed by the United Nations Convention of the Law of the Sea”,48 assuming UNCLOS would apply in all circumstances, regardless of necessary conditions such as ratification.49
International agreements refer to “customary law of the sea as reflected in” UNCLOS50 and various international judicial bodies -ex. gr., International Court of Justice and International Tribunal on the Law of the Sea- have ruled certain issues are recognized as customary law, including innocent passage, territorial sea, contiguous zone, exclusive economic zone, immunity of warships, international navigation straits, continental shelf, and submarine cables.
Even if UNCLOS may not apply, other international instruments that regulate the use of marine resources and protect marine environment may still be applicable.51 Since 1999, the Caspian Sea has been included in the Regional Seas Programme (RSP)52 under the United Nations Environmental Programme (UNEP).53 RSP was the animus behind the Framework Convention for the Protection of Marine Environment of the Caspian Sea (Tehran Convention).54 Work on the Tehran Convention involved significant assistance from International Maritime Organization (IMO).55 IMO standards are referred to in Protocol Concerning Regional Preparedness, Response and Cooperation in Combating Oil Pollution Incidents to the Tehran Convention.56 Thus, while the Caspian Sea may not be a sea under UNCLOS or CLSCS, it is recognized as a sea for purposes of RSP and IMO.
This obviates that the Caspian Sea is, in fact, accessible only to the five riparian Caspian States.57 Only the Caspian-5 possess the natural reality to define the Caspian’s legal status recurring to local and regional practices.
2. Closed Sea
The former Soviet Union pushed forward the highly controversial closed sea58 doctrine whereby “because of geographical, historical and military-strategic reasons, certain seas located on the periphery of the USSR should be governed by special and exceptional international law rules”.59 The doctrine was to restrict/protect the use of water corridors accessing such seas from foreign warships,60 and forgotten after the USSR’s demise.
3. Condominium principle
Only USSR and Iran (and their nationals) were entitled to naval and commercial navigational rights on the Caspian Sea.61 A theory arising from the Soviet-Iranian Treaties of 1921, 1935 and 1940 was that they created a condominium regime.62 Per condominium, a border sea is under all coastal states joint political authority, which are equally sovereign in the sea.63 The regime requires a “clear convincing” consent on the existence of the condominium.64 Condominium applies in very few cases, notably the Gulf of Fonseca65 -quite different, as the area had previously been under one single sovereign-. Russia and Iran in 1990’s supported condominium, with occasional Turkmeni support.
International practice disputed condominium in the Caspian Sea.66 Post-Soviet Russia and Iran supported a “common sea”,67 not reflected in practice.
V. The Convention on the legal status of the Caspian Sea
The Convention has 11 preambular paragraphs and 24 articles. It refers to multiple issues, including sovereignty, navigation, environment, borders, innocent passage, fisheries, peace, military, and scientific research.68
1. Definitions in the Convention
“Parties” to the Convention are the “Caspian littoral States” that execute CLSCS (1st-Preamble paragraph [Pp]), term only used in the definition of “normal baseline” (article 1). It repeatedly uses “Party” or “Parties” (136 times) -distinguishing the “Parties” to the Convention from “parties” to other agreements (article 20)-. A “Party” is any of the Caspian-5, also referred as a “coastal State”. Like UNCLOS, CLSCS repeatedly uses “coastal State” without defining it.69
The differing use of “coastal State” and “Party” in the Convention may impact the lege ferenda period between signature and entry into force.70 CLSCS will enter into force with the fifth instrument of ratification (article 22), simultaneously for all signatories. By signing CLSCS, all are obliged to not defeat its object and purpose.71 As CLSCS refers to activities and regulations of the “coastal State” and not of the Parties, any “coastal State” may not freely regulate/use live resources in view of CLSCS-obligations to other “coastal States”, such as “shared aquatic biological resources”, “jointly managed by the Parties” (article 1).
2. Links to international law
CLSCS is adopted based on the UN Charter, as well as international law (1st Pp) and “arrangements”.72 CLSCS does not affect rights and obligations from other treaties (article 20). CLSCS-Parties must comply with international law.73
3. Principles to follow in activities in the Caspian Sea
Seventeen principles regulate the Parties’ conduct in the Caspian Sea. They relate to international law (article 3(1)), peace and security (articles 3(2) and 3(3)), military (articles 3(4), 3(5), 3(6), and 3(7)), and navigation and overflight issues (articles 3(8), 3(9), 3(10), 3(11), and 3(16)), environmental matters (articles 3(12), 3(13), 3(14), and 3(15)), and scientific research (articles 3(15) and 3(17)). Activities shall be conducted in accordance with: 1) the Convention, 2) “other agreements between the Parties consistent with this Convention, and [3] their national legislation” (article 4). One ponders whether “other agreements between the Parties consistent” with CLSCS only refers to agreements executed between all the Parties or between some of them.
4. The Caspian Sea: stipulated endorheic basin. Not a lake, not a sea.
In a pragmatic way, the drafters did not define the Caspian Sea as a lake or a sea. “Caspian Sea” is the current designator for the body of water between contemporaneous Azerbaijan, Iran, Kazakhstan, Russia, and Turkmenistan. CLSCS stipulated it is the body of water surrounded by the territories of the Caspian Sea States as outlined in three nautical charts of the General Department of Navigation and Oceanography of the Ministry of Defense of the Russian Federation in Saint Petersburg (article 1).74 The evident -silent- truth of this endorheic basin is that only these five states have natural means to reach its waters. With no other country claiming Caspian Sea’s waters, only they can purport to exercise sovereignty over any part.
The Convention strives to avoid a legal inference to identify it as lake or sea.75 Nonetheless, CLSCS implies it is a lake, for it is “the body of water surrounded by the land territories of the Parties” (article 1). Its provisions affect the Caspian Sea waters and the “land affected by the proximity of the [Caspian] Sea”.76 The latter may portray the Caspian Sea as common good and transboundary resource -with joint administration of its waters and sources. On the other hand, the Convention alludes to a maritime context by referring to the “Kronstadt sea-gauge” (article 1), establishing “sea lanes” (article 11(11)) and using “belt of sea” and “sea belt” to define territorial waters and fishery zones. More striking, CLSCS refers to “sea water”,77 connections “to other seas and the Ocean”,78 prevention of “smuggling of migrants by sea”79 and mentions seven times the “seabed”.80
5. The water area
Similar to UNCLOS, CLSCS divides the Caspian Sea waters into blocks (article 5).
15 nautical mile territorial waters (article 7(1)) where sovereignty applies, including internal waters (article 1).
The outer limit may not exceed 15 miles from the baselines.
The outer limit is a line resulting from every point located at a distance from the nearest point of the baseline (article 7(2)). The outermost permanent harbour works point forms part of the coast; not off-shore installations and artificial islands (as in article 11-UNCLOS).
Adjacent coast States must effect the delimitation of internal and territorial waters by agreement (article 7(3)).
Roadsteads may become an issue, as CLSCS is silent. Article 12-UNCLOS specifically states that roadsteads “which are normally used for the loading, unloading and anchoring of ships, and which would otherwise be situated wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea”. Should no CLSCS-Party have such roadsteads, the issue may become moot.
10 mile (article 9(1)) fishery zones adjacent to territorial waters (article 1), and
The common maritime space used “by all Parties” (articles 1 and 5). It is unclear if the intention was to allow open use of “by all Parties” in joint or separate activities. I.e., individual or joint use by all Parties.
6. Sovereignty and exclusive competence
Parties “exercise their sovereignty, sovereign and exclusive rights, as well as jurisdiction” (article 2(1)). Sovereignty over the land territory and internal waters is extended to territorial waters, seabed and subsoil thereof, and airspace over it (article 6). Exploitation of subsoil resources and economic activities are exercised as sovereign rights (article 8(1)).81 The Parties consider CLSCS akin to a “Constitution of the Caspian Sea” because this document “shall define and regulate the rights and obligations of the Parties in respect of the use of the Caspian Sea” (article 2(2)), including its waters, seabed, subsoil, natural resources, and airspace over the Caspian Sea.
The Caspian Sea is “of vital importance” to the littoral States (5-Pp). Solving any issue related to the Caspian Sea “falls within the exclusive competence” of the Parties (6-Pp]).82 CLSCS conveys that Caspian Sea issues fall within the “exclusive competence” of all CLSCS-Parties acting as a unique body of decision.83 No other state may aspire sovereignty or jurisdiction in the Caspian, because “only they possess sovereign rights over the Caspian Sea and its resources” (5-Pp). Consensus is needed for “exclusive competence” to solve Caspian Sea issues, falling to all Caspian-5 and not to any one of them.
7. Jurisdiction
Each Party exercises jurisdiction over ships flying its flag (article 12(1)) and “artificial islands, installations, structures, its submarine cables and pipelines” (article 12(2)) in its national sector. Laconic provisions compared to articles 27, 28, 91, 92, and 94-UNCLOS dealing with criminal and civil jurisdiction, nationality and status of ships, and duties of the flag State, including maintaining a register of ships and assuming jurisdiction under domestic law over ships and its crews.
Parties may adopt measures regarding ships to ensure compliance with its laws and regulations, including boarding, inspection, hot pursuit, detention, arrest, and judicial proceedings (article 12(3)). The Convention is silent on their meaning, wherefore UNCLOS becomes supplementary -particularly articles 110 and 111, regarding the right to visit, hot pursuit, criminal and civil jurisdiction on ships bearing another flag. Boarding, inspection, hot pursuit and detention may only be undertaken by warships or vessels bearing external marks indicating government service and authorized for such purposes (article 12(3)).84
8. Borders
CLSCS does not set mechanisms for border demarcation. A “baseline” (article 1) consists of “normal baselines” and “straight baselines”. While a normal baseline is the “low-water line along the coast as marked on large-scale charts officially recognized by the coastal State” (article 5-UNCLOS), CLSCS fixes the normal baseline at minus 28 meters below median sea level (article 1).85 This responds to substantial fluctuations of the Caspian Sea level recorded in past centuries, including several meters in recent decades. The current 7 cm. annual decrease in its level -evaporation rates [due to rising global temperatures] overcome the influx of water- will disappear the Northern Caspian in 75 years.86 This will have an impact on subsoil resources -currently underwater. Since the Caspian Sea is identified at minus 28 meters below median sea level, the median baselines will become -in no more than 75 years- the Parties’ boundary between its territory and “landed-Caspian Sea” territory with no fish in dried up territorial waters and fishery zones, but with easier access to hydrocarbon resources.
Whereas article 7-UNCLOS defines a straight baseline and its methodology, CLSCS provides that such methodology “shall be determined in a separate agreement among all the Parties” (article 1).87 Taking into account “existing arrangements” (13-Pp) between Parties, methologies therein should prevail.
Delimitation of the Caspian Sea seabed and subsoil into national sectors may only be effected by agreement between States with adjacent and opposite coasts (article 8(1)).88 Delimiting seabed national sectors will amount to exploit subsoil resources in quasi-territories.89 Within its sector, a coastal State has the exclusive right to construct and regulate construction, operation and use of artificial islands, installations and structures (article 8(2)).90
9. Freedom of navigation
Ships flying the flags of the Parties have freedom of navigation beyond territorial waters (article 10(1)). All Caspian-5 ships receive the same national treatment a Party gives to its ships (article 10(2)) in ports “open to ships flying the flags of the Parties” (article 10(3)). These would not apply to military ports.
Freedom of navigating in accordance to the Convention “and other compatible agreements between the Parties” without prejudice to sovereign and exclusive rights of the Parties (article 10(1)). CLSCS is silent on ships flying other flags.91
The Caspian Sea is not naturally connected to the world’s oceans. CLSCS recognizes the Parties “the right to free access from the Caspian Sea to other seas and the Ocean, and back” (articles 3(10) and 10(4)). Wherefore the Parties have “the freedom of transit for all their means of transport through the territories of transit Parties” (article 10(4)).92 Terms and procedures are determined bilaterally with the transit Parties or in accordance with the latter’s legislation. Thus, Russia retained control yet opened its canals to CLSCS-Parties.
10. Innocent passage
CLSCS does not formally include innocent passage, yet uses similar wording to articles 17 and 18(1)-UNCLOS and refers to ships flying the flags of the Parties may navigate through territorial waters.93 Navigation through territorial waters is only to traverse territorial waters “without entering internal waters” or for calling at a port facility outside internal waters, and to proceed to/from internal waters (article 11(1)). This applies to civil vessels. Military vessels may traverse territorial waters and internal waters in case of force majeure or distress. CLSCS does not define submarines or underwater vehicles as warships, but later encompasses all three in one phrase (article 11(2)).
11. Navigation rules
CLSCS does not allude to “foreign ship”. UNCLOS uses “foreign ship” to refer to a ship flying the flag of an UNCLOS-Party different to the coastal State. CLSCS forbids non-Parties’ armed forces in the Caspian (article 3(6)), but does not forbid ships from non-Caspian countries. Article 11(16)(a) closely follows article 24-UNCLOS: a Party shall not hamper passage of ships by imposing requirements which have the practical effect of denying or impairing the right of passage, substituting “foreign ships” with “ships flying the flags of other Parties”. The Convention seemingly confines navigation to CLSCS-Parties’ vessels. Yet, article 11(16)(b) brings verbatim article 24-UNCLOS and allows for the presence in the Caspian Sea of “ships flying the flags of other Parties or ships carrying cargoes” (emphasis added). Article 16 provides cooperation with non-CLSCS persons as well as international organizations. It is foreseeable they will own non-Caspian flag ships. Thus, the presence of non countries’ ships is not inconceivable.94
A Party may adopt laws and regulations, in conformity with CLSCS and other “norms” of international law, relating to passage through territorial waters, including safety of navigation, regulation of maritime traffic, protection of navigational aids and facilities, cables and pipelines, living resources, fishing, environment, scientific research and surveys. CLSCS includes ensuring national security, unforeseen in UNCLOS.95
As in article 22(1)-UNCLOS, navigation lanes and traffic separation in territorial waters may be set by each Party (article 11(11)).96 As in article 30-UNCLOS, per article 11(14) a State may require a warship not complying with its laws and regulations to leave its territorial waters immediately. The Convention also includes in this provision any government ship, operated for non-commercial purposes; issue not included in UNCLOS.97
In similar fashion to article 24-UNCLOS, a Party shall not hamper the right of passage except by means of laws and regulations adopted in conformity with CLSCS, and must give appropriate publicity of any danger to navigation within its territorial waters of which it has knowledge (article 11(16)).98
12. A sea of peace
Per article 88-UNCLOS, high seas are reserved to peaceful purposes. CLSCS underlines a favorable atmosphere of cooperation, good-neighbourliness and mutual understanding (3-Pp) wanting to expand such good relations (4-Pp). Thus, the Parties use the Caspian “for peaceful purposes… solving all issues related to the Caspian Sea through peaceful means” (article 3(2)).
13. Military issues
“Warship” is a naval vessel belonging to Party’s armed forces with external marks and under military discipline under the command of an officer governmentally commissioned (article 1).99 Passage through territorial waters must not be prejudicial to the peace, good order or coastal State’s security.
Activities will ensure “a stable balance of armaments of the Parties… developing military capabilities within the limits of reasonable sufficiency with due regards to the interests of all the Parties and without prejudice to the security of each other” (article 3(4)). This is subject to the interests of all Caspian-5. It is unclear if no Party should develop military capabilities in excess of their neighbors or maintain the current balance of weaponry in the Caspian Sea.100
The presence of armed forces from countries not party to the CLSCS is prohibited (article 3(6)). All Parties are prohibited from providing its territory “to other States to commit aggression and undertake other military actions against any Party” (article 3(7)). Nothing is said about military conducts against non parties; situation against a sea of peace (3-Pp, 4-Pp, 11-Pp, articles 3(2) and 3(3)) and the UN Charter. But one that recognizes past de facto situations in the region,101 while also implying that “common waters” are akin to “high seas”.102 The main concerns, for Russia and Iran,103 were not pipelines nor environment issues but security, non-interference and military aspects.104 Impasse over the Caspian’s status contributed to naval buildups and militarization albeit it never resulted in massive clash between littoral states; common security as norm.105
14. Military navigation
Warships, submarines and other underwater vessels are entitled to freedom of navigation in territorial waters in terms accorded between the flag and coastal States.106 In case of force majeure and distress, including rendering assistance, warships may approach territorial waters and en route the warship’s captain must agree with the coastal State terms, procedures, and exit.107
Article 11(6) provides, alike article 19-UNCLOS, that certain conducts are prejudicial to peace, good order and security of the coastal state.108 CLSCS expands UNCLOS to include carrying out “hydrographic survey” (article 11(6)(j)), “boarding or disembarking” of any person contrary to coastal state laws and regulations (article 11(6)(g)-CLSCS), “putting afloat, submerging or taking on board any military device and controlling it” (article 11(6)(f)), and “controlling” the launching, landing or taking on board any aircraft or military device (article 11(6)(e)). This refers to the 2015 launch of sea-based missiles from warships in the Caspian.
15. Security and safety
The Parties agree to combat crimes in the Caspian. Namely, international terrorism and financing thereof, trafficking in arms, drugs, psychotropic substances and their precursors, poaching, preventing and suppressing smuggling of migrants by sea, and other crimes (article 17-CLSCS).109
16. Economic development
The Caspian Sea is an important source of political, economic, social, and cultural development for the Parties (7-Pp). CLSCS is the vehicle “to create favorable conditions for the development of mutually beneficial economic cooperation in the Caspian Sea” (10-Pp). With economic development in view, there is a right to free access from the Caspian Sea and back (article 3(10)) in principle restricted ships flying the flag of one of the Parties (article 3(11)).110
17. Submarine cables and pipelines
Of interest is the possibility to lay submarine cables and pipelines on the Caspian Sea’s bed.111 The issue is driven by proposals for a Trans-Caspian Pipeline to transport hydrocarbons to Europe, something European officials have long hoped for, but which Russia and Iran had opposed.112 To lay such infrastructure (article 14(1)) must comply with environmental standards and requirements of international agreements,113 and for cables or pipelines require the agreement of the Party whose sector is to be crossed (article 14(3)). They must comply with environmental standards, wherefore the obligation to prevent, reduce and control pollution of the Caspian Sea “from any source” (article 15) may be used to dampen any such possibilities.114
18. Biological resources
Having 90% of world’s sturgeon stock -source of caviar-, exploitation and administration of living organisms is in article 1-CLSCS. “Aquatic biological resources” are “fish, shellfish, crustaceans, mammals and other aquatic species of fauna and flora” distinguishable from “shared aquatic biological resources” “jointly managed by the Parties”. “Harvesting” may happen in a “fishery zone” as well as in the “common maritime space”. The Parties commit to conserve, restore and rationally use biological resources (article 3(14)-CLSCS).115 While biological resources will be administered in an exclusive manner by the coastal State in its fishery zone, the same stocks shall be harvested in conformity with “agreed norms” while found in the common maritime space. This may present complications as such stocks do not restrict themselves to specific areas.116
19. Fishery zones
CLSCS provides fishery zones (article 9(1)) similar to an exclusive economic zone (EEZ) in UNCLOS-Part V. While EEZ measures 200 miles (article 57-UNCLOS), the fishery zone is 10 miles adjacent to territorial waters (article 9(1)), hence a maximum 25 miles.
In its fishery zone, each Party has exclusive right to harvest aquatic biological resources, with CLSCS-compliant rules. Agreements have to be separately executed by “all Parties” based on CLSCS and national legislation (article 9(2)). Adjacent coastal States will jointly determine the total allowable catch of shared aquatic biological resources and divide it into national quotas (article 9(3)-CLSCS). A striking difference is that article 9(4)-CLSCS makes this a prerogative of the Party (“it may grant access”) while article 62(2)-UNCLOS makes it mandatory to grant such access (“it shall… give access”).
20. Environmental issues
A recurrent theme is the CLSCS-Parties’ responsibility to secure the environment and the region’s sustainable development. The Parties are conscious of “their responsibility before the present and future generations” to preserve the Caspian Sea, as well as the need for its sustainable development (8-Pp), with “rational management of its resources as well as exploration, protection and conservation of its environment” (9-Pp). Ecology scientific research is facilitated by the Parties (article 3(15)-CLSCS).117 Harm by pollution occur to “biological resources and marine life” (article 1-CLSCS). The inclusion of “marine life”, from UNCLOS-1(1)(4), is odd, since it is only used in the definition of “pollution” and CLSCS deals with “biological resources”.118
A point not discussed is whether to consider the totality of the aquifer and its basin as a shared natural resource.119I. e., since the Caspian Sea receives waters from rivers crossing multiple countries, this seemingly needs to precise the (joint) rights and obligations of upstream and downstream states, just as the Caspian-5 would have towards each other.120
21. Final provisions
Amendments to CLSCS become an integral part of the Convention (article 18(1)). While the entry into force of CLSCS requires an instrument of ratification (article 22), amendments only require notification of completion of internal procedures. As a follow-up mechanism a regular high-level five-party consultation under their Ministries of Foreign Affairs must meet annually (article 19).
Disagreements and disputes about interpretation and application of CLSCS shall be settled by the Parties through consultations and negotiations. Any unsettled dispute may be referred to international law peaceful means, “at the discretion of the Parties” (article 21), without identifying if a dispute occurs between two Parties or between all Parties. Furthermore, one should ponder whether “discretion of the Parties” requires the acquiescence of all Parties, the discretion of one Party or of those involved in the dispute. One should also consider what will be a dispute in the Caspian Sea; particularly with recent case law by the International Court of Justice,121 with a different regional standard.122
VI. Conclusion
The Caspian Sea is neither a lake nor a sea. Per CLSCS, it is a stipulated body of water -identified in specific archived documents- with a unique legal regime.
The Caspian Sea is an endorheic basin, i.e., with no outflows. It is the largest body of water surrounded by land. Ancient peoples saw a lake. Due to its size and salinity it was concomitantly considered a sea. This ambivalence is reflected in the Convention on the Legal Status of the Caspian Sea. While CLSCS does not define the Caspian Sea as lake or sea, by verbatim drawing on international law and UNCLOS, it sometimes implies a lake or a sea. Regardless, CLSCS sets a unique legal regime applicable to the Caspian Sea.
CLSCS incorporates into (regional) international law, practices and principles adopted by the Caspian-5 before and after the demise of the USSR.
The Caspian Sea is a body of water identified in specific archived charts.
Territorial waters: 15 miles.
Exclusive economic (fishing) zone: 10 miles.
Other waters are considered common waters.
Seabed pipelines require approval only from States whose territories are involved, yet opposable by any Caspian-5 on environmental issues.
No foreign military forces are allowed in the Caspian Sea.
Only vessels of the Caspian-5 may formally navigate its waters.
CLSCS only applies to the riparian States, who could only ab initio define the Caspian Sea’s legal regime because per natura only they have access to it.
The Caspian Sea shares provisions with a sea status and with rules of bordering lakes. It follows international maritime norms, such as territorial sea, exclusive economic zones, and high seas, albeit with different designations and dimensions. It resembles a lake wherein only riparian States may use the Caspian Sea, only Caspian littoral State’s military presence is allowed, no third country may demand to use waterways connecting the Caspian Sea. The CLSCS is aligned with public international law with a general concept of innocent passage, freedom of high seas and international legal responsibility (vis-à-vis third countries for environmental damages).
Per CLSCS, the Caspian-5 have jurisdiction over 15 nautical miles of territorial waters and exclusive fishing rights in 10 additional miles. CLSCS allows laying of pipelines requiring approval of the countries whose territory they pass, subject to environmental issues. It forbids military assets in the region from non-Caspian countries. To preserve its ecology, CLSCS regulates human beings and “parts of the land affected by the proximity of the Sea”. After delimitation, each state enjoys sovereign rights for subsoil use within its national sector.
CLSCS combines important political factors with substantive legal elements. It is a treaty agreeing to disagree on fundamental issues, such as demarcation of borders -unsolved for twenty-five years- yet with a very pragmatic fashion the Caspian-5 found compromise and set rules for joint/non-vetoed exploration and exploitation of subsoil [hydrocarbon] resources. The delimitation of the seabed, which caused past disputes, requires additional agreements between littoral nations. With CLSCS, the Caspian-5 signaled the world their desire to move forward and establish a legal framework to jointly develop and exploit the Caspian Sea’s biological but particularly subsoil resources. With CLSCS, all Caspian littoral states enjoy a much stronger legal position for developing projects -as do transnational companies and international financial institutions.
CLSCS allows the Caspian-5 to use the Russian canals connecting the Caspian Sea to other seas and the oceans, yet Russia retained control over them. On the other hand, no discussions have surfaced touching the Caspian Sea as a common good, requiring joint administration of rivers, the Caspian Sea itself, and land affected by it.
The Convention’s approach regarding seabed delimitation was deemed “evasive” but “expected”123 or having “kicked the can down the road”.124 Yet it opened the way for littoral States to develop the Caspian Sea’s subsoil resources. In 2017 and 2018 they agreed to jointly develop offshore Caspian hydrocarbon resources: Azerbaijan and Iran, Iran and Turkmenistan, Azerbaijan and Turkmenistan, and even trilaterally125 These agreements announced the adoption of CLSCS and propelled arrangements to jointly develop the Caspian Sea in oil and gas matters (Azerbaijan-Kazakhstan, and Azerbaijan-Russia), as well as marine research (Azerbaijan-Russia).126
CLSCS leaves undefined the specific demarcation mechanisms to define borders, issue that could prove disruptive in the future. But it provides momentum to develop Caspian Sea resources, allowing bordering States to define the conditions on (joint) exploration and exploitation in disputed areas yet subjecting these to the implied veto of any and all Caspian-5 on environmental concerns. CLSCS, without border demarcation nor defining ownership of disputed areas, paves the way for States to benefit from the exploration and exploitation of (hydrocarbon) resources.
The Convention opens the way for Trans-Caspian (oil and gas) pipelines (TCP). It evidences the need to coordinate between coastal states regarding environmental issues, as environmental impact evaluations of TCP may delay any TCP construction. From the outset, Russia and Iran demanded construction of TCPs contingent on environmental authorization by all Caspian-5. While there are high hopes CLSCS will enter into force soon, any country may oppose any TCP, which they hitherto succeeded in blocking by subjecting any TCP’s construction to the approval of all Caspian-5.127 Just a month after CLSCS was adopted, Russia recalled that, while it does not have plans to lay pipelines on the basin’s seabed, “the laying of pipelines along the Caspian Sea bottom is ruled out in case of objections on the part of Caspian states”,128 and less than a year later it stated opposition to a TCP due to environmental issues.129
The Convention is a hiatus; a very important achievement. It evidences the will to move beyond past disputes and jointly develop the Caspian Sea. Pragmatism hoping to develop this stipulated at minus 28 meters below median sea level non-lake/non-sea endorheic basin.
