Is the Caspian Sea a sea; and why does it matter? Legal Issues
With the dissolution of the Soviet Union, the Caspian Sea and its natural resources became a source of contention for Russia, Iran, Azerbaijan, Kazakhstan, and Turkmenistan. The underlying issue is paradoxical in light of its misleading simplicity – is the Caspian a sea or a lake? Throughout the article, we present proof that this question does matter and the answer should be given in the near future unless the world wishes to witness a cascade of conflicts. Even though the establishment of an international legal regime would place the region within the purview of UNCLOS and the international rule of law, thus ensuring safety and stability, the littoral states have pursued their own economic and political interests, resulting in a plethora of competing legal positions. As we evaluate the main points of disagreement and their respective impact on the status quo, the history of the region plays a prominent role. Consequently, the bordering countries choose to adhere to prevailing methods of dealing with issues of similar complexity: power competition over the resources of small states, negotiation and power politics instead of international rule of law, and protection that disguises coercion. Will the littoral states ever abandon the temptation of hostile geopolitical games and embark on a process of peaceful, open negotiations? This article seeks to help resolve this dilemma while analysing the failure of public international law to amend the situation, the legal chaos reigning in the region arising from the need to exploit the resources and construct pipelines to export them, and how the post-Soviet sphere has experienced a weakening of public international law as its doors open to the global petroleum market.
Is the Caspian Sea a sea? No question could seem sillier. The Caspian has been called a sea since its discovery and first description in ancient times. The bordering states – Azerbaijan, Iran, Kazakhstan, Russia, and Turkmenistan – call it a sea in their respective languages. The United Nations Group of Experts on Geographical Names recognizes the body as a sea.1 Its waters are salty, more so to the south than to the north.
Yet the Caspian Sea has some unique features that make its identity problematic. It is an inland sea that can only be accessed through Russia’s Volga River and the canals connecting it to the Black Sea, the Baltic Sea and the Sea of Azov. It is supplied by freshwater sources and has no salt-water connection to the open seas of the world. The determinations of the U.N. Group of Experts on Geographical Names have no legal status. In fact, a series of bi-lateral treaties between the Soviet Union and Iran identified the Caspian Sea as a lake, the resources of which should be divided equally between them.2 If the Caspian Sea is in fact a large salty lake under the jurisdiction of its littoral states, or of Russia and Iran alone, then the United Nations and international law have no jurisdiction over its waters. The seemingly silly question – is the Caspian Sea a sea? – takes on great import.
Of practical interest is access to and exploitation of the vast resources of the Caspian. Until recently the primary resources of interest were the rich fish stocks of the sea, including the sturgeon and its valuable caviar. In recent years, overfishing and the discovery of vast petroleum deposits have eclipsed the fisheries and made international oil exploitation the paramount issue. If the Caspian is an inland sea, its waters and resources are regulated by the United Nations Convention on the Seas (hereinafter UNCLOS), open to all the littoral states, and accessible to these states and the great multinational petroleum corporations. If the Caspian is just a lake, its waters and resources should be divided by the littoral states, and are not open to the international community. Moreover, if the Soviet–Iranian treaties are still in force, then Russia (as successor state to the Soviet Union) and Iran are masters of its waters, a solution that few other states would care to accept. Unclear provisions in the UNCLOS and the Vienna Convention on Succession of States in respect of Treaties (1980) (hereinafter Vienna, 1980) provide no answers to these questions. Thus the question – is the Caspian Sea a sea? – points to an even larger issue than those raised by the oil. We must ask, almost two decades after the dissolution of the Soviet Union and the creation of the newly independent states, whether international law has extended its reach into the interior of the former Soviet Union.