Abstract
The incompleteness of the Soviet–Iranian agreements and their conflicting interpretation raised doubt about the legality of the activities of Caspian littoral states in the 1990s. Actions taken by coastal states, often taken under the influence of mutually exclusive political and economic national interests of individual states, have an effect on all strategic areas of cooperation in the Caspian Sea, including the question of the setting of state borders, operating of ships and fisheries and degradation of natural resources and their transportation. This precarious situation alters already existing legal problems and creates new ones. Establishment of a uniform legally-binding document regulating the collaboration of states in the Caspian Sea basin is of tremendous importance for the political security of the entire region and its future economic development. Clarity and thus stability of the legal situation in the Caspian region is no less important for securing international investments in the extraction of Caspian resources, obtaining foreign loans as well as for the purchase of shares or exploitation rights to Caspian oil and gas fields. The introduction of legal standards and rules oriented towards peace and international legal standards would make an important contribution to the prevention of military solutions.
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Notes
- 1.
Article 90 UNCLOS.
- 2.
Article XIV Helsinki Rules (1966).
- 3.
On the concept of “international disputes” see: Caron and Shinkaretskaya (1995), p. 309.
- 4.
Art. 36(2) IJC Statute; Arts. 2003 et seq. of NAFTA Agreement.
- 5.
See: Land (2000), p. 19.
- 6.
See: Kunz (1968), p. 684.
- 7.
Annex to GA Res. 2625 (XXV), 1970.
- 8.
Annex to GA Res. 37/10, 1982.
- 9.
GA Res. 41/92, 1986.
- 10.
GA 44/23, 1989.
- 11.
See: Kimminich (1997), p. 282.
- 12.
UN Charter, Article 33.
- 13.
See: Mamedov (2001), pp. 217–259.
- 14.
Joint Communiqué of the Caspian States Representatives of 4.12.1992, in: Records of the Foreign Office of the Azerbaijan Republic.
- 15.
See: Mamedov (2001), p. 232.
- 16.
The principle of the prohibition of warships of non-Caspian states on the Caspian Sea, the principle of freedom and the warranty of merchant shipping safety for ships flying the flag of one of the contracting parties; the principle of denial of the right of passage to or within the Caspian Sea for ships flying the flag of a state other than a Contracting State; the principle of implementation of agreed standards and rules related to reproduction and regulation of the exploitation of bioresources; the principle of environmental protection of the Caspian Sea, preservation, restoration and sustainable use of its biological resources; the principle of responsibility of the states parties for having made harm to the ecological system of the Caspian Sea by causing pollution to its environment.
- 17.
The Draft Caspian Status Convention identifies identical water categories as UNCLOS (see Sect. 5.5), does however partially define them in a different manner and therefore does not describe the water categories using an identical wording. Furthermore, with the exception of Iran, all the coastal states agree that the seabed and its subsoil should be divided for the extraction of natural resources as well as other legitimate commercial and economic activities. This is similar to the UNCLOS provisions concerning the exclusive economic zone. In addition, in accordance with the provisions of UNCLOS, all Caspian littoral States except Russia agree that the sovereignty over the territorial sea will be applied in accordance with the Draft Caspian Status Convention and the rules of international law. Also, the concept of the width of the territorial sea in the draft corresponds to the regulation in the provisions of UNCLOS. As one of the basic standards for their action in the Caspian Sea, the littoral states have taken over the UNCLOS provision on the high seas that the Caspian Sea is reserved for peaceful purposes. Any issue relating to the Caspian Sea should be resolved by peaceful means, which is a principle enshrined in the UNCLOS. The provisions of the Draft Caspian Status convention regarding fishing in the Caspian Sea recognize the unlimited rights of the coastal states outside the exclusive fishing zones or outside the areas of national jurisdiction. These provisions build on the corresponding provision included in the UNCLOS regarding the high seas. As for shipping in the Caspian Sea, the Draft Caspian Status Convention contains an explicit reference to internationally binding sea law provisions, of which the most significant come from the UNCLOS. Azerbaijan, Kazakhstan and Turkmenistan agree that the coastal states in which mining sites are located on the seabed and the pipeline routes are allowed to be laid down, have the right to lay trans-Caspian pipelines. To clarify the pipeline route, agreements concluded among these states are applicable. The proposal corresponds to some extent to the provisions of UNCLOS related to the rights and obligations of states related to the laying of submarine cables and pipelines.
- 18.
The factors of time and certain behaviors are of crucial significance for the creation of international customary law. With the current developments of international law, customary law can arise very quickly. However, two conditions are necessary: as an objective element a general practice of states, to which the subjective element occurs as the opinion iuris sive necessitatis. See Bernhardt (1984), p. 215.
- 19.
See: Gornig and Despeux (2002), p. 6.
- 20.
See: Götz et al. (1998).
- 21.
North Sea Continental Shelf Judgement (1969), p. 41: “There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes one of the recognized methods by which new rules of customary international law may be formed.”
- 22.
See: Sohn (1950), S. 1008.
- 23.
UN Doc. A/52/913 of 21. Mai 1998, Attachment; UN Doc. A/56/850 of 1 March 2002; UN Doc. A/56/1017 of 31 July 2002.
- 24.
UN Doc. A/56/927 of 18 April 2002.
- 25.
Vienna Convention on the Law of Treaties, Art. 25.
- 26.
Tehran Convention, Articles 17–21; Barcelona Convention 1986, Articles 10, 11, and 20; Kuwait Convention 1978, Articles X–XII and XXIII; Abidjan Convention 1981, Articles 13, 14 and 22; Lima Convention 1981, Articles 7–10 and 14; Jeddah Convention 1982, Articles X–XII and XXII; Cartagena Convention 1983, Articles 12, 13 and 22; Nairobi Convention 1985, Articles 13, 14 and 23; Noumea Convention 1986, Articles 16–19.
- 27.
Tehran Convention, Articles 7–10; 1976 Barcelona Convention 1986, Articles 4–9; 1978 Kuwait Convention 1978, Articles II–IX; Abidjan Convention 1981, Articles 4–9 and 12; Lima Convention 1981, Articles 3–6; Jeddah Convention 1982, Articles III–IX; Cartagena Convention 1983, Articles 3–11; Nairobi Convention 1985, Articles 3–12; Noumea Convention 1986, Articles 4–9 and 15.
- 28.
Art. 6 (implementation); 7.2 (prevention, reduction and control of pollution); 8, 9, 10 (pollution); 14.2 (protection, preservation and restoration of marine biological resources); 18; 16 (sea level fluctuation); 17 (procedures of environmental impact assessment);
- 29.
Mediterranean Action Plan (1975), p. 481.
- 30.
See: Sands (1995), pp. 296–302.
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Janusz-Pawletta, B. (2015). Cooperation Levels in Caspian States’ Practice in the 1990s. In: The Legal Status of the Caspian Sea. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-44730-7_4
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