Is it possible to go to the International Court of Justice to resolve the legal regime of the Caspian Sea?

International Institute of Khazar Sea Studies (IIKSS) - After a period when was viewed emotionally to the Caspian Sea and Iran's share of this sea, Iran's political and social conditions are moving in the direction that we can say that our country is looking for a logical and technical view on this important issue. By developing legal concepts and rooting these concepts in the political discourse, we are moving in the direction that most experts are aware of the fact that this question, how much of the Caspian Sea is ours, is not basically correct and complete. The News Research Group has discussed this issue in an interview with Mr. Maysam Araee Daronkola, International Law Expert, analysis for the Caspian Sea issues, University Professor and the director of the International Institute of Khazar Sea Studies (IIKSS).

The seas and waters are categorized in diverse types due to the diversity of their use, and therefore issues related to surface water are separated from issues related to depth of water or water column. Also, rules and principles related to seabed vary from depth to surface water. Also, according to the proximity of the coast of a water area to the coast of a country, we see different legal foundations about surface water at various distances. For this reason, the question of how much is Iran's share of the Caspian Sea, is a false question.

In fact, it should be asked:

Is it possible to go to the International Court of Justice to resolve the legal regime of the Caspian Sea?

"Continental Shelf" – a fundamental and key challenge between countries of the Caspian Sea

The process of negotiations and received news show that show that there is no disagreement over territorial waters and fishery zone in the Caspian Sea. Many security and environmental issues have also been resolved with the level of reasonable natural challenges.

But at the moment, the legal regime of the seabed and subsoil, that is called the continental shelf, is the key challenge of the Caspian littoral states. The same challenge lies around Exclusive Economic Zone and around exact location of the baseline of the territorial sea, which is the starting point for determining other marine areas. The importance of this line is also not limited to determining other areas beyond it, because this line, for the reason that the waters behind it are considered as internal waters of a country, is also important. It should be noted that determining countries' share of the continental shelf and the Exclusive Economic Zone is one of the issues that essentially are related to neighboring or adjacent countries, and that the determination of these areas in the southern part of the Caspian Sea cannot be related to the determination of these areas in the northern countries of the Caspian Sea (including Russia and Kazakhstan). On the other hand, the determination of the share (delimitation) of Northern Caspian regions is not related to Iran. For this reason, bilateral negotiations (Iran-Azerbaijan, Iran-Turkmenistan) have to be conducted to resolve disputes regarding the delimitation between the countries in the southern part of the Caspian Sea and trilateral negotiations have to be conducted to determine three-point

In such a situation, if the parties cannot resolve their disputes by negotiation or mediation a third party, they inevitably must resolve disputes through legal channels. In this regard there are two basic ways:

Is it possible to go to the International Court of Justice to resolve the legal regime of the Caspian Sea?

The first way is to refer the matter to an arbitration that may be more acceptable to the parties. Because phobia of international law and its rules that are unknown to the Caspian littoral states, lead to more interest of these countries in this way. Because in the arbitration procedure, the parties select and designate arbitrators, and those arbitrators appoint some senior-arbitrators, so that they can resolve the present issue between the parties by relying on existing contracts or on any other principle that the parties consider binding. The attraction of this method is that the parties can base their arbitration on any rule or principle or agreement that they like and thus exclude themselves from the scope of coverage of the rules of international law.

But the second way, which is widely being discussed among the common people, is the referral of the matter to the International Court of Justice. I must point out that this is not an impossible, but much more difficult way than it is perceived. The ICJ is not like a domestic court which every country can easily refer to it and, in response, the other side or party (defendant) is obliged to participate in the process of investigation.

Optional jurisdiction over mandatory investigation

The International Court needs to have jurisdiction to initiate investigation. It means that the Court cannot initiate investigation until it has jurisdiction over a matter. So, from the point of view of international law, it is said: "The Court has optional jurisdiction over mandatory investigation." This means that countries must give permission to the Court to investigate a matter. Of course, allowing the Court may be in different shapes and forms. For example, this jurisdiction may be granted to the Court in the form of multilateral or bilateral agreement or even a unilateral declaration by the parties.

A study of existing documents shows that this jurisdiction can not be extracted from any document and the express and explicit consent of the disputed parties is the only way to refer the matter to the Court. This means that Azerbaijan and Iran should agree that the matter should be referred to the Court, which is also unlikely in the near future. Because the review of the Tehran Convention (Framework Convention for the Protection of the Marine Environment of the Caspian Sea) shows that countries have closed the smallest loophole for submitting environmental disputes to international courts. In this situation, it is unlikely that countries will accept submit disputes in much more important areas to international courts.

Conclusion

Perhaps the reason and justification of the Caspian states for not referring matters to international courts is quite clear and this is because international law is one of the main sources of the Court's domination. How are we expecting countries to resort to the International Court of Justice, when at present they are not willing in an intimate atmosphere to comply with the rules of international law in determining the legal regime of the Caspian Sea. Because studies show that compliance with the rules of international law in the current state of international law will most certainly be in the interest of Iran.

If decision-makers come to the conclusion that this dispute should be resolved through the International Court of Justice, then they must negotiate in such a way that the parties are convinced to refer the matter to the Court. In such a situation, with their consent it can be hoped that the matter be referred to the Court.

Author - Maysam Araee Daronkola - Member of the faculty of the University Payame Noor and the director of the International Institute of Khazar Sea Studies (IIKSS), PhD of public international law
Translator: Mohsen Hamidi - Expert on Central Asia and Caucasus, translator of Russian language and member of the Scientific Council of the International Institute of Khazar Sea Studies (IIKSS)
Source: The news research group of Islamic Republic of Iran Broadcasting

Links to the original pages: http://www.iribnews.ir/fa/news/2141020 and http://www.iikss.com/fa/index.php/route/news_det/MTAyMDA