Home                                            Feedback

CHAPTER-I

INTRODUCTION

The end of the 20th century has witnessed a period of serious changes and transition. A series of developments in the 1980s gave birth to the dissolution of the Soviet Union and although the immediate effects were regional, its repercussions were on the global level. On one hand, international relations specialists have begun to deal with the new global structure, and new prospects for the future of international relations are being formulated. On the other hand as the Iron Curtain, which strictly prohibited any relations between the communist nations and the others was broken down, both the newly independent countries (in search for political and economic support and stability) and the developed states (searching for new markets and new reservoirs of resources) increased mutual political and economic contact.

1. 1. Caspian Basin in History

“Once a center of commerce, the Caspian Sea region began losing its significance ever since the rise of the sailing ship rendered the Silk Road out of date a half millennium ago.”[1] The Iron Curtain during the Soviet communist regime left the region outside the global view. In this context, these newly independent states have become the focus of attention only in the last decade of the 20th century.

1. 2. The Caspian Sea as the Focus of Attention

The importance of the Caspian basin has increased surprisingly as it is realized that it was not destabilization that the collapse ended in, but prospective economic and security advantages for the developed countries. So, not only the littoral states, but also the outside powers have involved in the issues related with the Caspian Sea. These powers at the beginning were restricted to the USA and to some extent Turkey. However, as the prize of the Caspian become to be known, the quantity of the outsiders increased. Alongside the European countries, the other superpowers of the world, such as China and Japan, also engaged in the Caspian matters. While the Russian side cannot help escaping from its imperial ambitions, thus aspiring to take all the activities in the region under its control, and developing its legal argument on the status of the Sea on this account, the outside powers are indirectly becoming the sides of the issue with their giant oil companies, some of which are powerful than most states. Thus, the interests of the companies also affected the determination process of the status dispute to a large extent.

The first reason for the region to become the focus of attention is the significance of the political dominance over the region. As is always the case, to obtain the political upper hand in a geostrategically vital region is the first goal of all the global powers. Especially, as the region has vast economic prospects, the struggle for power in the Caspian basin has been a strong factor in determining strategies over economic and energy issues. The second reason for the region being a focus of attention is the discovery of huge amounts of hydrocarbon energy resources. This is a crucial factor, for the reason that inadequacy of energy resources has been and will increasingly be the most serious problem of the world civilization, which is based on energy. The economic gift of these resources that will enrich both the Caspian region's states –which urgently need the profits from this gift for their economic survival and for the political future of their leaders- and all the involving countries and entities (such as firms and companies), also increases the significance of the exploration of hydrocarbon energy resources.

1. 3. The Legal Status Dispute

After the dissolution of USSR, many problems have emerged in the Caspian region. The solution to these problems has to be found in cooperation among the littoral states. However, the political and economic power struggle has hardened to reach this aim. One of these problems is the legal status dispute. As three new states have appeared by the Caspian Sea littoral, new regulations had to be established in the Sea. The Caspian Sea, which had two neighboring countries, USSR and Iran, now has five. The legal status issue is not by itself the core of the problem. The exploitation of mineral resources in the Sea and their transportation through pipelines have made the issue much more important and decisive. While the power struggle causes the delay in reaching a solution, in the mean time the ambiguity of the legal status of the Caspian Sea causes several problems.

The dispute over the status of the Sea halts or at least risks many utilization projects. There have already been border disputes between Azerbaijan and Turkmenistan, emanating from the uncertainty of the legal status, and have caused in bringing some economic initiatives to a standstill. Besides, it seems that such problems have also come out between Russia and Kazakstan, although they have reached some kind of an agreement on delimitation of the Caspian Sea between themselves.

1. 4. Description of the Thesis

In this thesis, a historical-legal background of the Caspian basin and the legal practice in the Sea will be presented. In the general assessments to the problem, only the Türkmençay (1828) agreement between Persia and Russian Empire before the USSR, and the 1921 and 1940 Soviet-Iranian treaties have been proposed as the main historical legal supports in determining the current status of the Caspian. In this research, the legal exercise in the basin throughout history will be held in detail as a basis for the contemporary solution of the issue. Second, the positions of the littoral states on the issue will be analyzed with a special attention to the developments after the dissolution of the USSR. Then the border disputes emanating from the ambiguity of the status of the Caspian Sea will be dealt with, with an emphasis on the dispute between Azerbaijan and Turkmenistan over the ownership of the oil fields in the middle of the Caspian. In the conclusion section, possible solution to the dispute will be examined taking into account the legal and geopolitical factors affecting the decision process of the problem.

CHAPTER II

LEGAL HISTORY OF THE CASPIAN SEA BEFORE 1991

2. 1. The name “Caspian”

The Caspian Sea in its whole history had been called with some 40 names. Almost all these names were given in reference to the nations, cities or geographical places aside the Sea. Name Hazar (i.e., Khazar), which still refers to the Caspian Sea in Turkish and Persian, was given in reference to the Khazars, a medieval Turkic people who had established a vast empire stretching from the Black Sea to the Caspian Sea. It was also called as ‘Girkanian Sea’, named after the state by the sea, ‘Girkania’. Russians for a long time named it as Khvalynskoe More (i.e., Khvaly Sea) referring to the name of the people living in the mouth of Volga.[2] The name ‘Caspian’ was given regarding the people called Kaspi on the southwestern shores of the Sea.[3]

2. 2. Descriptions of the Caspian in History

Historical presentations of the geographical characteristics of the Caspian Sea go back to the ancient times. Thousands of years ago, scientists and travelers (e.g., Homeros, Aristoteles, Herodotos) described or mentioned the Sea in their works, and generally held it as a closed, inland sea.[4] However, none of these presentations has any contribution to the contemporary search for determining the status of the Sea.

Present-day discussions over the status issue follow strictly the developing international legal conceptualization. It is necessary to bear in mind that the legal norms, in their character, do not strictly set the decision making process, but leave a vast area for some other factors which may influence the case under discussion. One of these factors, which is recognized by the 1982 Law of the Sea Convention above the international legal regulations, is the historical practice, if it is applicable.[5] Moreover, it is true that the historical experience in the Caspian region plays a decisive role in legal uncertainties. This historical experience, in the case of Caspian’s legal status, refers to the official documents on the status of the Sea and the historical legal practice of the neighboring states in the Sea. In determining the legal status of the Caspian Sea, it has much more significance as the involving states on the legal status of the Caspian Sea, in their contemporary arguments generally support their solution proposals referring to a practice in history. So, rather than the names and the non-legal definitions of the Caspian Sea (such as the above-mentioned scholarly definitions) the legal history of the Sea and the nearby states, and the different evaluations of the status issue at those times have to be dealt with to reach a proper conclusion on the historical practice contributing to the present debate.

Before examining the direct references to the status of the Caspian Sea between the lines of the agreements and treaties between the littoral states, and analyzing the official and scientific interpretations of the legal status of the Caspian Sea before the dissolution of the USSR, the issue of navigational practice by the Sea will be handled. In dealing with this issue, it is necessary to separate the military and commercial navigation while analyzing the official regulations in the Caspian Sea and evaluating the commentaries, for the simple reason that in almost all the relevant sources and legal agreements the two issues held separately.

2. 3. Military Navigation by the Caspian Sea

Throughout history, although many nations, states and big powers fought for the control over the Caspian Sea, beginning from the 18th century mainly Russia and Persia held the control over the basin. So, beside the military navigational activities of Russia and Persia on the Caspian Sea, legal regulations on military navigation will be followed in the treaties and agreements reached by the littoral states of the Caspian, after giving a brief historical background of the military navigation by the Sea.

2. 3. 1. Military Navigation by the Caspian Sea in History

One of the earliest Russian campaigns on the Caspian Sea was held on 913 under the command of prince Igor when 500 warships made transition into the Caspian Sea. The historians recorded one more Russian campaign into the Caspian with 72 warships on 1175, a little before the Mongol-Tatar attack on the region.[6]

Under the rule of the Golden Hord, Russians for almost two centuries had no connection with the Caspian Sea. However, as a result of the 1552 occupation of Kazan and then the 1556 occupation of Astrakhan and in about a decade establishing control on the north-eastern part of Caucasus down to the Terek river, Moscow became the owner of the waterway reaching the Caspian. In this way, beyond finding the suitable conditions to advance further into the Ottoman Empire on the one hand and on the other hand into Turkestan, Russia began to establish its dominance over the Caspian.[7] (see Map 1)

In the beginning of the 18th century, the Caspian Sea was almost completely taken from the Persians because of the Russian campaign during the reign of Peter I. At that time the political and economic significance of the Caspian Sea gained a deeper meaning. The Sea was regarded as the most important way to Central Asia and even further to the Indian region. Gül mentions the intentions of Peter I on the Caspian Sea and expresses that “having learnt the existence of an ancient waterway named ‘Uzboia’, Peter I planned to turn Amu Daria to its earlier direction and thus to acquire a waterway to India.”[8]

The ambitions of Peter I over the Caspian is obvious in his note to his commander fighting for the Caucasus: “Control over Baku is vital for the Russian dominance over the Caspian and thus to reach Central Asia.”[9] After the death of Peter I, the idea of dominance over the Caspian Sea and establishment of a military fleet on the Caspian Sea was intercepted.

Roughly on 1701, he sent a vessel to the Caspian Sea to prepare a detailed report of the geographical and social properties of the basin. In 1721-1722, Russian warships entered the Caspian region, with the justification of helping Persia to suppress the Afghan rebellion. In this way, Russia occupied some parts of the Caspian shores and even in 1723 an agreement was reached with the Persian representative in S. Petersburg, recognizing the sovereignty of Russian tsar over Derbent, Baku, Gilan, Mazandaran and Astarabad. However, Persia did not ratify this agreement and later in 1732, Russia was forced to leave the occupied regions.[10]

The first Russian fleet on the Caspian was established on the order of Peter I in 1732 in Astrakhan. This fleet played a significant role in the wars ending in Gulistan Treaty.[11]

It is necessary to note that the end of the 18th century and the first half of the 19th century was the bloodiest period in the history of Russian-Persian relations. Wars in this period were conducted particularly for dominance over the Caspian region, on the Sea itself and over the territories on both sides of the Sea.

2. 3. 2. Military Navigation in Documents

The research of available international legal material on Russian-Persian relations allows us to make the conclusion that the first international rule of law concerning military navigation on the Caspian Sea was set only in the beginning of the 19th century, after the wars between 1804-1813, by the Gulistan treaty of October 12, 1813. Because of this treaty and of inclusion of the norms on military navigation by the Caspian Sea, serious political and economic disagreements emerged between Russia and Great Britain as the sides of the ‘Great Game’. Despite all efforts of English diplomacy, Russia forced Persia to sign the 1813 agreement. According to the third article of this treaty, Persia recognized the sovereignty of the Russian Empire over Sheki, Shirvan, Derbent, Kuba, Baku and Talysh regions, which were before under the Persian control. Thus, it was stated the Persian Shah recognized the sovereignty of the Russian emperor over all Dagestan, Georgia, Abkhazia, Mingrelia, Imeretia and Shuragel province together with the Caspian Sea territories and peoples.[12] In the agreement an article forbade Persia from having a military fleet on the Caspian Sea, establishing military bases on the offshore and onshore regions of the Caspian and also from carrying out piracy acts on the sea against the Russian trade ships.[13]

Persia naturally was not satisfied with its humiliated situation, especially on the Caspian Sea. A new campaign against Russia between 1826 and 1828 ended in a second victory of Russia and on February 10, 1828 Türkmençay treaty was signed between the two sides. According to this treaty, Russia captured the Erivan and Nakhchevan Khanates. The borderline between Russia and Persia set beyond the earlier line at Astara on the river Arax.[14] As it was in the Gulistan treaty Russian side had the exclusive right to have a military fleet on the Caspian Sea, while Persia had not.[15]

In the second half of the 19th century and in the beginning of the 20th century within approximately one century, form the point of regulations on military navigation on the Caspian Sea nothing was changed.

The first reference, after the 1917 Revolution in Russia, to navigation by the Caspian was made in 1919, although the 1921 Contract is presented as such by some researchers.[16] In the third article of the document, it was stated by the Bolshevik administration that the Caspian Sea, after it is freed from the pirate vessels of British imperialism, would be declared free for the navigation of the vessels flying Persian flag.[17]

The basic rules regulating the navigation by the Caspian Sea were set in the Contract of 1921, according to which the right to navigation by the Caspian was equally given to the both sides of the agreement. However, in this regulation the type of navigation was not exactly stated. Therefore, the interpretations of the article were also ambiguous and conflicting. “Although there are arguments that practically neither Soviet nor Iranian warships passed a conditional line separating the Russian waters from Iranian, as in the Russian-Iranian contracts, there are no indications about the order of navigation of the warships by the Caspian Sea and the flights over it. The Iranian warships have the right to float in the Soviet part of the Sea. Same applies to the Soviet warships.”[18]

Later on, the 1940 agreement supports the idea that the Caspian Sea was considered common for the warships just as the others. Article 13 of the agreement states that, the contracting parties decided that, in accordance with the 1921 agreement between RSFSR and Iran, only the ships of the contracting sides may navigate by the Caspian Sea.[19]

2. 3. 3. Military Navigational Practice

The ironic point in all the discussion on the military navigation by the Caspian Sea is the fact that Iran did not have any military fleet on the Caspian Sea at all. Thus, the principle of freedom of military navigation did not become an effective and working rule. However, the following attitude of Rüstem Memedov explains why the Russian lawyers were interested in changing the regulations of military regulation on the Caspian Sea: “Iran insists on literal interpretation of the specified contracts’ articles concerning the freedom of military navigation by the Caspian Sea. In case of existence of a military fleet in Iran, freedom of military navigation will enable the Iranian warships to freely float on the entire basin and in this way to threaten the political interests of the USSR. Thus it is possible to ascertain that the practice of military navigation by the Caspian Sea contradicts the rules established in the bilateral Russian-Iranian contracts.”[20] He brings the fifth article of the 1921 Contract to support his argument. According to the fifth Article of the 1921 Contract, “the parties of the Contract decided not to permit on their own territories, formation or existence of organizations or groups or even separate identities standing with an aim of conflict against Russia and Iran or against their allies”.[21]

The crucial point here is that this article seems to be aimed at preventing the hostile activities of third powers (outsiders) trying to gain power in the region, rather than the contracting parties. These third powers may be England, Turkey or another state, but it is a fact that with various strategic considerations at different periods of history a variety of states have been interested in the region and especially against the ‘expansion of Russia towards the warmer seas’, they manipulated Iran, or tried to gain positions on the Caspian region.[22] The first signs of a Soviet official anxiety on such a formation, was explicitly stated already in the 1919 declaration against British activities.[23] Therefore, the authors of the Contract perceived a possible threat from the third parties, rather than from one of the contracting sides.

Another failing detail in the above argument is that even if in the article it was accepted that threat was perceived to come from one of the contracting sides, the parties of the Contract, at that time, considered the Caspian as a ‘closed sea’, as will be described in the following sections, and an area of common usage. Therefore, when the term ‘on their own territories’ was used, it is hardly possible that the parties considered the Caspian Sea area as any of their territories.

As a result of these evaluations, it is possible to conclude that the Caspian Sea was regarded as a basin open to the exploitation of both sides within the limits of the stipulations of the Contract. Therefore, both sides had the right to free military navigation by the Caspian Sea.

2. 4. Commercial Navigation

It is known that throughout history the Caspian Sea has been one of the key trading waterways of Russia. Especially after the invasion of Astrakhan and the Volga basin in 1556, the trade over the Caspian became a major source of the Russian economy.[24] Not only for Russia, but also for all its neighboring countries and nations, the Caspian Sea was a way of communication and commerce.

2. 4. 1. Regulations on Commercial Navigation

The basis of the international regulation of commercial navigation by the Caspian Sea for the first time was incorporated by the Petersburg Treaty of 1723, as a result of the known campaign of Peter I to Persia. According to this treaty, the freedom of trade by the Caspian Sea was established.[25]

As the Gulistan treaty is examined from the perspective of commercial navigation, the fifth article stated that, Russian trade vessels have the right to freely navigate by the Caspian Sea and when they are storm struck or shipwrecked, Persia will aid them in a friendly fashion. The same rights are also given to the Persian trade ships.[26]

The Türkmençay treaty of 1828, in Article 8, renewed the same regulation in the same wording.[27]

Although the 1921 agreement cancelled all the earlier treaties between Russia and Persia, did not alter the regulation on commercial navigation by the Caspian Sea. In the agreement, it is stated that at the moment the agreement is signed, the contracting parties will have the same right to commercial navigation by the Caspian Sea as it is set in the eighth article of the Türkmençay Treaty of February 10, 1828.[28]

The 1940 Contract has the most important place in the system of contracts regulating the international legal system of the commercial navigation by the Caspian Sea. The Contract sets an extended definition and description of the conditions and rules of navigation. Article 12 states that: “Trade ships, under the flag of one of the contracting parties, will be treated the same as the national trade ships in every respect, as they approach, stay and leave a port of the other party.”[29]

2. 4. 2. The Russian Anxiety

The legal regulations in all treaties recognize the right to free commercial navigation by the Caspian Sea. However, this principle was not completely practiced for the simple reason that the Iranian merchant marine fleet does not exist. Considering this fact, the Soviet lawyers expressed their anxieties over a possible argument from the Iranian side to activate the rules and regulations of the 1921 and 1940 agreements. The regime change in Iran increased these anxieties and a delimitation of the Caspian Sea was much strongly stressed by the Russian unofficial legal authorities.[30]

In case of an Iranian attempt to build a merchant fleet by the Caspian Sea, it would have the right to navigate freely by the Caspian Sea according to the above-mentioned agreements. However, the Russian proposal brings the argument of the existence of a conditional borderline between Astara-Hasankuli to the agenda, though they themselves confirm that any kind of limitation has never been mentioned in the official agreements and contracts signed between Russia and Persia.[31]

2. 5. Legal Status of the Sea: ‘Closed Sea’ or ‘Boundary Lake’

Until the beginning of the 19th century, the legal status of the Caspian Sea was out of question. After the Russo-Persian treaties of Gulistan (1813) and Türkmençay (1828) the legal status of the Caspian Sea came to the agenda. Until the end of the Russian Empire, the status of the Caspian Sea was not a problem of any country other than its littoral states i.e. Russia and Persia, due to the absence of any serious problems in relation to it, and because of the undeveloped level of the international legal institutions of that period. After the establishment of the Soviet rule, the status issue was not a concern of the outside countries, this time simply because of the completely closed structure of the Soviet Union. As a result, until the dissolution of the USSR, primarily the Russian scientists discussed the status issue. In this section, therefore, the Russian sources will be more frequently referred in order to follow how the status of the Sea was considered until the dissolution of the USSR.

2. 5. 1. Earlier Comments on the Status of the Caspian

Although the status of the Caspian Sea first came to the agenda of the international legal practice at the beginning of the 19th century, scholarly comments on the issue were made no earlier than the turn of the 20th century. One of the first comments on the issue from an international legal point of view was that of the Russian lawyer Fiodor Martens. Pointing to the status of the Sea after the Gulistan and Türkmençay treaties, he argued that, in comparison with the high seas, ‘a closed sea’ is surrounded by only one state and at the same time has no connection with the open seas. He developed his thesis on this basis, and concluded that the Caspian Sea, although it was surrounded not only by Russia but also by Persia, without any connection to the oceans, was a closed sea and had to be accepted as a Russian sea.[32] Two other Russian lawyers defended the same approach in 1908 in the following way: “…closed or inland seas are the ones, which have no connection with oceans, but represents in itself the properties of a sea, but not a lake. The Caspian Sea, belonging to Russia, can be considered in this context.”[33] One should bear in mind that these comments are made at a time when the last legal document on the status of the Caspian was the Türkmençay treaty, according to which Russia was the sole power with the right to have a military fleet on the Caspian. This meant that Russia “owned the Sea”. Although such comments were made, it is hard to say that a common concept on international legal regime of the Caspian Sea was formalized before the 20th century.

2. 5. 2. The Official Approach: Caspian as a ‘Closed Sea’

As Russia’s all the former treaties were nullified by the Bolsheviks, so were the ones with Persia. The regime of the Caspian Sea was formulated in the Soviet-Persian Treaty of Friendship (28 February 1921). Although in this treaty there are many regulations concerning the exploitation of the Caspian Sea, it is impossible to assess how the sides considered the Caspian from a legal point of view, as a lake or a sea. However taking into account the following correspondence between the sides and the practice on the Sea, it may be concluded that the sides accepted the Caspian as a ‘closed sea’. In the first note from the Persian side to the Soviet government on 1 October 1927, the Caspian Sea was emphasized as being a ‘Soviet-Persian sea’.[34] Considering the treaties and notes between the neighboring states of the Caspian, the status of the Caspian Sea is clearly recognized as a ‘closed sea’. The “Treaty on Trade, Navigation and Settlement” signed in 1935 and the “Treaty on Trade and Navigation” of 1940 imply that the Caspian Sea is a ‘Soviet-Persian Sea’.[35]

At the same time, Article 12 of the 1940 Treaty sets a 10-mile fishing zone in the Caspian Sea. This, also, is an indication of that the contracting parties perceive the Caspian Sea as a ‘closed sea’ and make the regulations on the basis of this perception.[36]

Some lawyers considered that the terms of the Soviet–Iranian treaty of 1940 did not apply the delimitation of the continental shelf and subsoil resources of the Caspian, which had to be done according to the international legal norms, if the Sea was accepted as a ‘closed sea’. However, this argument fails in considering the fact that the doctrine of the ‘continental shelf’ did not come into being until the 1945 Truman Proclamation used the term in geographical means to indicate the expansion of coastal state jurisdiction beyond territorial waters[37]; the exploitation of the subsoil resources of the Caspian did not come into consideration within the national interests of the contracting sides, until the end of the 1940s.[38] Therefore, it was historically impossible for the sides to apply these norms and rules in the 1940 Contract. [39]

By the same token, the letter about the Caspian Sea, which was exchanged between the governments of Iran and the USSR dated 25 March 1940, stated “the Caspian Sea, considered by both Contracting Sides as Soviet and Iranian Sea, represents an exclusive interest for the Contracting Sides.”[40]

2. 5. 3. The Reflections of the Official View on the Academic Publications

The acceptance of the Caspian Sea as a ‘closed sea’ not a ‘lake’ was so clear in these documents that this approach was recognized dogmatically by the Russian academics. In the legal works and in the law textbooks, the Caspian Sea was expressed as a ‘closed sea’ without any alternative. Already in 1940, in the “Handbook of Naval International Law”, it was marked that “the Caspian Sea, as geographically closed sea surrounded by two countries, Iran and the USSR, is considered as a Soviet-Iranian Sea.”[41] In the textbook published in 1957 the Caspian Sea was accepted as a ‘closed sea’ as it had no connections with the high seas.[42] In the ‘Handbook of Naval International Law’ published in 1966, Logunov, after a long discussion on whether the Caspian Sea is a ‘closed sea’ or a ‘boundary lake’, concluded that Caspian Sea is a Soviet-Iranian sea.[43] Boitsov also agreed that actually being a closed sea-lake, as a result of the agreements between the neighboring countries, the Caspian Sea has to be considered as a Soviet-Iranian sea.[44]

At the same time, the Iranian official approach was not much different. It was not only the speech of the diplomats or the notes in the correspondences, but moreover in the legislation of Iran this argument found its reflections. The municipal law of Iran recognized the Caspian Sea as a ‘closed sea’. In 1955 a note was added to the Article 2 of “The Iranian Law on the Exploration and Exploitation of the Continental Shelf Resources”: “As regards the Caspian Sea, the rules of international law relating to closed seas are applicable.”[45]

Thus, the analysis carried out till this point indicates that according to the Russian-Iranian legal practice and the following Soviet and Iranian doctrines of international law, which engaged in solely the interpretation of the already accepted contractual norms and principals, the legal status of the Caspian Sea was accepted as a ‘closed sea’.

2. 5. 4. Delimitation of ‘Closed Seas’ According to the 1982 Law of the Sea Convention

Accepting the legal status of the Caspian Sea as a ‘closed sea’ should have ended in delimitation of the sea. In delimitation of the closed seas, general practice is the application of the rules of the 1982 ‘Law of the Sea Convention’. According to Article 3 of the 1982 Convention: “Every state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.” Besides Article 33 states that: “The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.” In addition, on the exclusive economic zone it is stated in the 1982 Convention that: “The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.”[46]

The application of the international legal norms would result in a situation in which, the Caspian Sea would be regarded as a common sea, beyond the territorial sea and contiguous zone, on which both neighboring states could conduct all kinds of activities within the regulations of the international conventions.

2. 5. 5. The Practice in the Caspian Sea during the Soviet Period

Accepting the rules of the 1982 Convention was disadvantageous for the Soviet side. Although commissions, working on the definition of the legal status of the Caspian Sea and afterwards on its delimitation, were established immediately after the 1921 treaty and worked in tens of sessions until 1950s for a decision, it was impossible for the negotiating sides to reach an agreement as the sides had clashing interests.[47]

Without any delimitations, the Soviet Union was taking advantage of the uncertainty in the legal practice. Although the activities of the Soviet Union were not conducted in the southern sections of the Sea[48], there was no official limiting border for the USSR. Besides, the Iranian side, having enough resources in its southern part, did not dare dealing with the Soviet Union, which was the superpower of the period, for such an issue, which had not yet a strategic priority for Iran. Leaving aside conflicting with the USSR, Iran stayed silent, keeping the legal basis, established under the above-mentioned legal activities, for delimitation of the Sea, thus putting off the opportunity to exploit the resources resting under the Sea, commonly with its northern neighbor in a future time.

A dispute, which started in 1970s and accelerated with the revolution in Iran, to resume the question in such a way to conclude in advantageous position for the Soviet Union, regarding the fact that the application of the legal responsibilities on the Caspian Sea, such as the delimitation of the sea into territorial waters and contiguous zones, would also practically give the same freedom to the Iranian part, although there did not seem a possible Iranian initiative by the Caspian Sea in the near future. The argument was that the Caspian Sea should be considered as a lake, ‘boundary lake’, neighboring more than one country. Consequently, the delimitation would be realized in accordance with the general practice of the delimitation of lakes, dividing the Sea with a line so that each state would have its share, on which it could exercise sovereignty. In this way, there would be no place for any kind of common exploitation, and each party would exploit its own sector, as it liked. In this kind of delimitation of the Sea, however, the Soviet sector would be much bigger than the Iranian sector.

2. 5. 6. Inclination to ‘Boundary Lake’ status

In time, the above-mentioned politic anxiety found its supporters among the lawyers. It was more commonly argued that the Caspian Sea was actually a ‘boundary lake’, and the Caspian Sea should be delimited in accordance with this status. Gül openly characterized the Caspian as a lake: “The Caspian Sea, the biggest lake in the world, due to its size and saltiness, in the ancient times took the name ‘sea’.”[49]

Memedov defended the same argument, supporting himself with many Russian lawyers, such as Zhudro, Volkova and Bekiasheva. He argued that a sea surrounded by two or more states and which had no access to the high seas is not a sea, but a ‘boundary lake’. He also clearly put forward the conflict between the international legal status of the Sea with its consideration as a ‘closed sea’ in the agreements between Soviet Union and Iran. Interestingly, he was quite anxious about the Iranian activities on the Caspian Sea. Although he admitted the fact that according to the 1921 and 1940 treaties between the sides on freedom of navigation, he adds the following: “In our opinion in case of formation of a fishing fleet of Iran at the southern coast of the Caspian, then there may be claims on Iran’s right to freedom of fishing in the Soviet waters of the Caspian.”[50]

In the following pages of his research Memedov, after mentioning that Soviet Union started extraction of oil and gas on the offshore basins in the Caspian Sea as early as 1950, he refers to the Iranian demand in 1987 on cooperation with the Soviet Union in the field of development of oil and gas deposits in a southern part of the Sea. He commented on this demand in the following way: “On the first sight there is nothing abnormal and problematic. Based on the principle of cooperation Soviet Union helps Iran. However, it is necessary to take into account that Iran plans in the near future to extract oil and gas independently in the Caspian Sea and now, with this purpose, buys the necessary equipment for its future use. On the other hand, it is necessary to consider the fact that oil and gas resources are gradually exhausted and in the near future the Caspian basin will become a major source of these mineral resources for the Soviet Union and for Iran.”[51] As it is clearly stated in these above sentences, the Soviet Union had never any problem with Iran in its exploitation of the resources in the Caspian basin. That is to say, Iran never took a position against Russian interests in the Sea.[52] However, the Soviet side increasingly became more suspicious of an increase in Iran’s assertions on its right to freedom of navigation on the Caspian Sea.

2. 5. 7. The USSR’s Growing Anxieties on Iran’s Intentions

In order to understand the Russian anxiety despite the Iranian tameness, the contemporary geopolitical condition has to be taken into account. During the Shah period, while Iran was an ally of USA, the possible threat for the Soviet Union could be a military settlement supported by the USA on the shores of the Caspian. Such a possibility was prevented before it was realized, through the correspondence between the governments of the two littoral states of the Caspian. Besides, during the Shah period, Iran neither entered into a project on exploiting the Caspian resources itself, nor reacted against the Soviet involvements. The only sign of reaction to the Soviet exploitation of the sea resources, if it could be counted as a reaction, was put forward in a very polite manner: “We do not oppose the Soviet exploitation of the Caspian oil resources, but should not it have informed the Iranian side about that?”[53]

With the change of the regime in Iran, its policy on the Caspian Sea was also altered slightly. After the Islamic revolution, Iran pursued a more active policy and asserted its right to freedom of navigation and fishing (in reference to the 1940 treaty), though it did not claim any right to exploit the oil resources for the time being. Considering Iran’s rising interest in the Caspian Sea and in its resources, the Russian lawyers and politicians seemed to incline toward a legal establishment of the status question through which Iran would be prevented from free navigation above the southern part of the Caspian. Thus, the Russian lawyers implied to delimit the Caspian Sea by drawing a direct line between the two exits of the borderlines on both costs of the Caspian Sea, and in this way to separate the southern sector of the Caspian Sea, which remained below the Astara - Hasankuli line, from the northern and bigger part, which would be under full-sovereignty of the Soviet Union.

Shortly, all the above-mentioned official documents considering the USSR-Iranian relations, thus the legal-history of the Caspian Sea, indicate that the Sea was accepted by its neighboring states as a ‘closed sea’. However, it should also be borne in mind that, the discussions on the status of the Sea did not come to an end. On the contrary, it increased as the contracts, regulating the activities by the Caspian, became day by day out-of-date and as the Iranian interests came to the fore with its serious attempts to exploit the Caspian resources.

CHAPTER III

THE LEGAL STATUS OF THE CASPIAN SEA AFTER 1991

After the dissolution of the USSR, three more states emerged as the littoral states of the Caspian Sea. Until 1991, the legal status of the Sea did not consist a serious problem causing a regional political crisis, let alone at the international level. Together with the emergence of the newly independent states and their opening into the international oil market, however, the issue of the legal status of the Caspian Sea to the regional and then to the international agenda. Some of these newly independent littoral states, in a brief period, signed agreements with the western oil companies on finding, extracting and managing the oil and gas beneath the Caspian, which they assumed in their countries’ sectors of the Sea. These unilateral actions provided the grounds for the legal dispute to emerge.

3. 1. The Legal Status Dispute as a Determining Factor

It may seem that the legal aspect is not the main cause of the disagreements among the littoral states. However, the dimensions of the problems caused by the ambiguity in the legal status of the Caspian Sea require a deeper analysis of the problem.

The essentiality of the legal status issue emanates from the vast resources beneath the Sea. The figures indicating the richness of the oil and gas reserves explain that the prize is too big to be ignored. If the giant oil resources beneath the Sea and the wars for oil throughout history are considered together, it will be simpler to figure out how significant to acquire one more km2 on the seabed for the littoral states of the Caspian Sea.[54]

In this new ‘Great Game’ the enormous economic interests of all players, which are at risk in the determination of the status of the Caspian basin, makes the issue much more critical for the economic and political future of the region. Therefore, each littoral state proposes the solution for the ambiguity in the legal status of the Caspian Sea, in a way serving to its economic interests best. In order to understand why the ambiguity has become so decisive in the region’s politics, the magnitude of the region’s economic potential has to be illustrated. Accordingly, before analyzing the standpoints of each littoral state in this legal status discussion, a brief look at the potential wealth of the region will be taken.

3. 2. The Potential in the Region

The oil potential of the newly independent states has attracted the representatives of large and small oil companies and foreign government officials who have been trekking to this region to gain access to its energy reserves. Nevertheless, the pessimistic side of an ongoing debate over the amount of the mineral resources of the region argues that the figures about the oil and gas reserves are exaggerated. Moreover, they claim that the Caspian Sea oil does not dear investing in. Then the question arises: "How much is the wealth?”

3. 2. 1. Speculations on the Oil Reserves

Measuring the Caspian wealth is difficult. One difficulty in reaching exact values of the oil reserves is the clashing comments and gossips over the issue. About only the Azerbaijani portion of the oil, no amount can be declared exactly and reliably. Some of the Azerbaijani oil experts claim that Azerbaijan has as much as 20 billion tons onshore and 78 billion tons offshore. On the other hand, some experts working for US Department of Energy argue that in the Azerbaijani sector of the Caspian Sea, 30 billion tons (approximately 200 billion barrels) of oil exists.[55] Another statement claims that Azerbaijan's proven oil reserves are estimated at 11 billion barrels.[56] Thus, the estimations of only the Azerbaijani sector of the Caspian Sea oil reserves vary between 1,5 to 30 billion tons.[57]

The gap among the estimations for whole the Caspian’s oil potential is higher. L’Express, a journal published in France, wrote the Caspian has from 70 to 250 billion barrels of oil; at the Khazarneftegaz-97 exhibition experts operated with a figure of 200 billion barrels; the Ekspert journal of Russia estimated the Caspian resources as 7 to 8 billion tons of oil, while the State Oil Company of the Azerbaijan Republic held that only the republic has about 4 billion tons of oil.[58] On the other hand, according to Wood Mackenzie, a consultancy, the Caspian basin has 28 bbl (billion barrels) oil of proven reserves and 243 trillion cubic feet of gas, equivalent to almost 70 bbl oil.[59]

The uncertainty in measurements is not merely because of the geological obstacles, which makes measuring troublesome, but rather caused by the regional states' and the actors’ benefits in it. The Southern Tier states have considerable interests in keeping estimates high in order to maintain their attractiveness to outside investment.[60] It is dreadful for them to even think of any falsifying evidence to emerge, which shows that the oil does not worth extracting. Such pessimistic arguments are made by way of the high costs of pipeline projects and the low oil prices in the world market, taking the current (Chechnya, Abkhazia, Karabag) and possible conflicts and obstacles into consideration.[61] While the regional political elite tries to exaggerate the potential of the region to profit from the higher share prices of the exploitation and transportation of the oil, the oil companies engaging in the Caspian oil race also manipulate the statistics through their expert groups. Leaving aside all these unproven speculations and rumors, the data taken from US Government Energy Information Administration will be heeded in the following (although their objectivity is open to discussion).

3. 2. 2. Reserves of the Littoral States

The Baku oil fields were the world's largest oil producer at the turn of the century, but despite their impressive reserves, they fell to the thirty-fifth place by 1997. The country's proven oil reserves are estimated between 3,6 billion barrels of oil (bbl) and 12,5 bbl. Together with 32 billion barrels of estimated amount, totally, it has approximately 36-45 billion barrels. It is close to one third of Kuwait's reserves. Besides, Azerbaijan has 0,3 trillions of cubic meters (trillions of m³) of proven gas reserves. When the estimated gas reserve of 1 trillion cubic meters is added, Azerbaijan owns 1,3 trillions cubic meters gas reserves. However, in order to profit from these vast resources Azerbaijan, like the other oil-rich non-Russian former Soviet republics, must rely on Western oil companies for capital and technical help and still depends on Russia's pipelines to reach global markets, until new pipeline projects are decided and put into use.

With proven gas reserves of 101 trillions of m³, Turkmenistan ranks behind only Russia and Iran. The largest natural gas fields are in the Amu-Darya basin, with half of the country's gas reserves are located in the giant Dauletabad-Dönmez field. Together with 1,7 bbl of proven and 80 bbl of estimated oil reserves, roughly 82 bbl of oil in total, it has a potential to be the Kuwait of the Caspian region.[62]

After Russia, Kazakstan is the second largest oil producer in the CIS, yielding 520,000 b/d in 1996. Most of the oil is located in the northwestern Kazakstan, in the rich Tengiz and Uzen oil fields. Tengiz is one of the ten largest oil fields in the world, with proven high quality reserves of 10 to 17,6 billion barrels. Seismic profile (which was completed by the Kazakstan Caspi Shelf (KCS) consortium) of the Kazakh zone of the Caspian seabed indicated that offshore areas of the Caspian could contain 60 billion barrels of possible reserves. The figure for the total amount, according to the US Energy Information Administration (EIA) exceeds 100 bbl. Kazakstan's oil wealth is accompanied by large natural gas reserves, proven 1,5 trillions cubic meters and estimated 2,5 trillions cubic meters.[63]

While Russia, as the old superpower of the region, argued for a long time that all the resources of the region should be exploited commonly, considering its share in case of a division into sectors, it has 2,7 bbl proven oil reserves alongside 14 bbl unproven.[64]

Besides, the current statistics indicate that the lesser country in terms of proven oil reserves in the region is Iran with its 0,1 bbl proven reserves. However, it has at least 15 bbl possible oil reserves in the southern part of the Caspian Sea.[65]

The Caspian Sea is becoming an important region (and increasingly more substantial) for the world oil markets once again, this time by potentially becoming another non-OPEC source, similar to North Sea oil, with its more than 250 bbl oil resources. The world consumers are consequently trying to accommodate this new participant with new ties from export pipelines to security agreements. However, this is not a trouble-free process. One of the primary sources of these disagreements is the ambiguity in the legal status of the Caspian Sea. As a reflection of the clashing economic and political interests of the littoral states, the standpoint of each state on the issue is also clashing. Indeed, a deep analysis points out how much these standpoints are related with the interests of the states, and how much their proposals have altered in time, as their political and economic considerations and priorities have transformed.

3. 3. The Positions of the Littoral States after 1991

Before describing the positions of each littoral state in regards to the legal status of the Caspian Sea, the ambiguity in their standpoints and in the evaluations of their points of view has to be explained.

Indeed, it is hard to determine clearly, which state defends which position by following the statements of any state official or by monitoring the news agents. It is hard to say that the consequences of defending any position are well understood by each side of the dispute. Even among the declarations of one state, there are so many contradictions that it needs a special analysis of the declarations of each state to extract its point of view with reference to the legal status of the Caspian Sea. A selection from the speeches of officials might demonstrate the dimensions of the present ambiguity and contradictions.

3. 3. 1. Contradictory Official Statements

Regarding the contradictions among the Russian statements, three different positions were defended by the Russian official in various cases. As early as June 1994, Russian Foreign Ministry spokesman Grigory Karasin stated that: “Our position is that… by nature, the Caspian Sea is an enclosed water reservoir with a single eco-system….”[66] However prior to the Almaty Conference, Russian Foreign Ministry explained Russia’s approach as accepting the Caspian as ‘an isolated intercontinental salt lake’.[67] On the Russian Foreign Ministry’s letter to British Embassy dated 28 April 1994, it was stated that the Caspian Sea has to be accepted as an ‘enclosed sea’. As the third variant, according to the Moscow Interfax news agency, the deputy director of Russian Foreign Ministry’s Asia Department Maksim Peshkov stated on 21 December 1995 that: “From the point of view of international law the Caspian Sea is not a sea but a lake, one cannot apply such notions of the international sea law such as territorial sea, territorial shelf etc.”[68]

On the other hand, while Azerbaijan is known as the most determined opponent of the Russian view, the contradictory statements of the Azerbaijani officials were no less confusing. During the Ashgabat meeting, Azerbaijani Foreign Minister Hasan Hasanov set the Azerbaijani position in the following way: “The Caspian Sea is a border lake like the Great Lakes between the United States and Canada. The traditional use of the Caspian Sea and the implementation of sovereign rights to ownership of its relevant sectors cannot be made dependent on the collective solution of the question of the Caspian Sea’s legal status.”[69] Today the position of Azerbaijan is accepted by many researchers as that the Caspian Sea is a ‘sea’ to which the norms of the International Law of the Sea Convention have to be applied. This misunderstanding is a consequence of the contradictory statements of some other officials of the Azerbaijani Foreign Ministry. For instance, on 16 May 1995, during the Almaty Conference, Halef Halefov, the chief of the Legal Management in Azerbaijan’s Foreign Ministry, relating to the proximity of the approaches of Kazakstan and Azerbaijan to the legal status issue, stated that: “Azerbaijan and Kazakstan stand for the division of the Caspian into sectors and substantiate their position by the norms of the international law. Kazakstan and Azerbaijan come out for absolute sovereignty of the Caspian littoral countries on their national sectors on the Caspian Sea. This position is based on the international marine law and it is supported by the international experts.”[70] Halefov’s words imply that Azerbaijan, as Kazakstan, accepts the Caspian Sea as a ‘sea’, because firstly Kazakstan’s argument is in that direction and secondly, the international marine law can only be applied if it is accepted as ‘sea’, as there are no regulations for ‘lakes’.

On the other hand, the statements of Iranian officials are no less contradictory. While the Iranian president, Mohammad Khatami told at the Almaty summit that Tehran continued to regard the Caspian as the world’s biggest lake[71], Iranian Foreign Minister Ali Akbar Valayeti, called the Caspian as the world’s largest ‘inland sea’.[72] Besides, National Iranian Oil Company official in charge of oil extraction, Mehdi Huseini, also defined the Caspian as ‘inland sea’, but not an ‘open sea’.[73]

3. 3. 2. Contradictory Assessments of News Agencies and Researchers

These contradictory statements from the directly responsible officials, naturally, find their reflections in the commentaries and analysis of both the media and academics. Definitely, both he media and academics often give extremely confusing information on the subject. While Reuters, in its almost every news report on the Caspian Sea’s legal status added the commenting information that Russia and Iran had long argued that the Caspian Sea is a ‘lake’, while the newly independent states of the region, Azerbaijan, Kazakstan and Turkmenistan had argued that it was a ‘sea’, which should be carved into sectors.[74]

On the other hand, Itar-Tass stated that Russia and Iran had close approaches to the legal status of the Caspian Sea as accepting it as a ‘sea’.[75] The Tehran Times also gives the information that Iran and Russia in the same opinion defending the position that the Caspian is a ‘lake’, and the other littoral states argue that the Caspian is a ‘sea’. At the same time the APS (Arab Press Service) proposes a totally distinctive argument that Iran regards the Caspian as ‘lake’, and Russia, by 1998, has agreed to accept the water reservoir as a ‘sea’ rather than a ‘lake’, and that Turkmenistan and Iran share more or less the same positions.[76] However, Iran News states that: “Tehran prefers to maintain the status of the Caspian as a ‘sea’.”[77] Besides Azer-Press insistently implies, regarding the method of division of the Caspian, that Azerbaijan refers to the relevant articles of the Law of the Sea Convention. This means that Azerbaijan accepts the jurisdiction of the Law of the Sea Convention, which means accepting the Caspian as a ‘sea’.[78]

Adding the inconsistencies of the new agencies to the contradictory statements of the officials, and overall considering the changes of the state policies with respect to the status of the Caspian Sea in time, the highly conflictual assessments of the academicians and commentators on the issue are more understandable. However, attempts to understand the positions of the sides of the issue just through these assessments will obviously fail. As regards the Russian stand on the issue, Barsegov claimed that Russia accepts the Caspian as a ‘closed sea’.[79] Scott Horton does not agree with the idea at his speech presented at a conference on “The Geopolitics of Oil, Gas and Ecology in the Caucasus and Caspian Basin.” He defends that Russia views the Caspian as ‘an international lake’. [80] Another research refers to the Russian argument as that the Caspian Sea should be accepted as an ‘enclosed sea’ or a ‘closed lake’.[81] On the other hand, it is argued by many researches that the Russian argues the ‘lake’ status of the Caspian.[82] Besides, there is another argument that Russia, escaping from a well described definition, claims the Caspian neither a ‘sea’ nor a ‘lake’, but an ‘inland water’.[83]

On the other hand, as to the stand of Iran, while an Iranian monthly argues that the Caspian Sea, which was ones a ‘lake’, has turned into a ‘sea’ in time and now has to be accepted a ‘sea’,[84] another Iranian daily argues that the Caspian Sea is a ‘lake’ and 36 percent of this lake is Iran’s share.[85]

3. 3. 3. ‘Legal status’ or ‘legal regime’

The interests of the littoral states are not directly related with the status of the Caspian Sea, but rather related with the legal regime applied in the Sea, which will be decided as a result of the legal status of the Caspian Sea. The legal regime refers to the practical application of the legal status, i.e. how the legal status will be applied, according to which rules and laws. In the Caspian Sea case many types of legal regimes have been disputed, from dividing into national sectors over which full-state-sovereignty would be applied to common usage of the Sea leaving only 10-mile territorial waters for fishing and navigational purposes. That is to say, whether the Sea will be divided among the littoral states, or not; if divided how it will occur, are the main questions. However, these questions will be decided according to the decision over the legal status of the Caspian. As a result, the officials of the littoral states have been concerned more with the legal regime of the Caspian Sea than with its legal status.

The arguments for the Sea’s legal status are no more than expedients for backing their positions on the legal regime of the Caspian. Therefore, although a particular state’s officials claim different approaches to the legal status of the Caspian, they never defend different positions on the legal regime of the Caspian.

The positions of the littoral states concerning the legal regime of the Sea have never been ambiguous. For instance, although students of the issue contradicted with each other as some of them argued that Russia accepted the Caspian Sea as a ‘lake’ while some others claimed the Russian view as calling the Caspian a ‘sea’, there seems to be a consensus about the Russia’s wish that the Caspian Sea be accepted as a common property of all the littoral states. While many researches conflicted over the nature of the Azerbaijani approach to the legal status debate (whether it supports the ‘lake’ or the ‘sea’ argument), all of them accepted that Azerbaijan wanted the Sea to be delimited on a sectoral basis. Thus, the approaches of each littoral state should be analyzed in reference to their arguments on the legal regime of the Caspian Sea alongside their arguments on the legal status dispute.[86]

3. 3. 4. Russia

During the first meeting of the representatives of the littoral states to deal with the Caspian Sea’s problems –then the status issue was not dwelled on as the oil extraction contracts were not on the agenda- the Russian argument was that the Caspian Sea was an ‘enclosed sea’. According to the Russian position, the Caspian states could have their territorial waters and the middle area of the Caspian Sea would be the common property of all the littoral states.[87] This argument followed the regulations of the 1940 Contract. However, Russia did not need a long time to realize the disadvantage of defending this argument for its interests.

Accepting the Caspian Sea a ‘sea’ meant that the rules of the Law of the Sea Convention of 1982 have to be applied. According to the Law of the Sea Convention every littoral state of an ‘enclosed sea’, has the right to set ‘internal waters’, ‘territorial waters’, ‘continental shelf’ and ‘exclusive economic zone’. Considering that the Caspian Sea is not that large, the application of the above mentioned settings meant the delimitation of the Sea according to the ‘median line’ principle.

The relevant article of the Law of the Sea Convention stated that: “Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured.”[88]

Besides, accepting the Caspian a ‘sea’ from the legal point of view, would give the other littoral states, which had no outlet to the high seas, right to freely navigate over the Volga-Don and Don-Baltic channels. If the rules of the 1982 Convention are applied to the Caspian Sea, then Russia has to accept the status of the stated channels as international waterways, thus has to open the Caspian Sea to other states.[89] Realizing these geopolitical disadvantages of claiming the Caspian a ‘sea’, Russia quickly gave up this argument.

It is also not advantageous for Russia to argue that the Caspian Sea is a ‘lake’. There are no regulatory rules or laws in international law regarding the lakes. However, the international custom is to divide the international border lakes among its littoral states. There are many examples of such divisions: Lake Victoria (among Kenya, Tanzania, and Uganda), Lake Malawi (between Malawi and Mozambique), the Great Lakes of North America (between Canada and the United States), Lake Titicaca (between Bolivia and Peru), and Lake Geneva (between France and Switzerland).[90] Dividing these lakes into sectors gives the littoral states exclusive sovereign rights over their sectors as state territory. There is only one exceptional case in which the border lake was not divided into sectors among the littoral states, but was set by the International Court of Justice (ICJ) as a common property of the surrounding states and is referred to as a condominium: the Gulf of Fonseca.[91] Russia could insist on the application of the Gulf of Fonseca case to the Caspian Sea, and thus a condominium to be established. Nevertheless, the Gulf of Fonseca is a unique case. After all, it is not a “lake”, or an “enclosed sea”, but a wide-open gulf. Moreover, the other examples of delimitation of waters are so common that it is often said that equidistance delimitation of lakes and inland seas is a general rule of international law.[92]

As a result of these considerations, although there exist some contradictory official statements, it has been generally accepted the current official position of the Russian Federation in regards to the Caspian Sea, as stated in various ways, is that it should be recognized as one of these: ‘enclosed water reservoir’[93], ‘inland basin’, ‘inland water’,[94] ‘closed water pool’.[95] Referring to the Caspian Sea in this way Russia officially aimed at escaping from giving a concrete description of the sea, such as naming it simply as a ‘sea’ or a ‘lake’, thereby rejecting all the regulations set by the International Law of the Sea, and laying the groundwork for a unique legal regime to be implemented in the Caspian Sea.

As for the Russian approach about the legal status of the Caspian Sea, it has to be noted that Russia, being the natural and legal successor of USSR, thus one of the sides of the previous treaties and contracts regarding the Caspian Sea, claimed the validity of the previous agreements between USSR and Iran, as these agreements were not rescinded formally. Although Russia accepted that these documents were not adequate in regulating the contemporary issues and problems of the Caspian Sea, until new regulations and agreements would be reached with the consensus of all the littoral states, the previous agreements had to be in force. The agreements between USSR and Iran officially gave both sides the right to have a 10-mile zone of territorial waters. Thus, in line with this, Russia claimed that all the Caspian Sea littoral states would have the right to have 10-mile zone of territorial waters and nothing more. The remaining part of the Caspian Sea would be under the common ownership of all littoral countries.

It should be added that although the Russian approach to the legal regime of the Caspian Sea has changed many times until 1993, its approach to the legal status of the Caspian Sea has not changed. The above-mentioned description of the legal status gives Russia to justify all its legal regime proposals. Its definition of the legal status was the same when it defended that the Caspian Sea cannot be divided and should be accepted under the joint sovereignty of the littoral states, and when its position has changed to stating that the seabed may be divided, but the water surface has to be under joint management.

The conflict among the domestic political organs of the Russian Federation was obvious in the change of its approach to the legal regime of the Caspian Sea. However, this change has not found its reflection in the definition of the Caspian Sea as the wording of the definition as an ‘inland water basin’ gives Russia the opportunity to change its legal regime approach within the same conceptualization.[96]

3. 3. 5. Azerbaijan

Regarding Azerbaijan’s position in the legal status dispute, the main point is that Azerbaijan insisted on the ‘lake’ status of the Caspian Sea. Already in 1992, the position of the Azerbaijan Republic under president Elçibey was that the Caspian Sea is a ‘lake’ and its division should be made according to the median line principle. After the take over of the power by Aliyev, the position did not change.

In addition, in the Azerbaijani constitution, ratified by November 1995, the status of the Caspian as a ‘lake’ is clearly established and the territorial sovereignty of the Republic on the matter of the division of the Caspian Sea was declared as such: “The territory of the Azerbaijan Republic shall be united, inviolable and indivisible. The Azerbaijan Republic territory shall include the Azerbaijan Republic inner waters, the Caspian Sea (Lake) sector relating to the Azerbaijan Republic, air space over the Azerbaijan Republic.”[97]

In several occasions, this position of Azerbaijan has been confirmed by Aliyev, by the prime ministry and by the top officials of the Foreign Ministry of Azerbaijan Republic. For instance, on 8 August 1997, the prime minister of Azerbaijan, speaking to an Azerbaijani TV station was quoted as saying that: “The Caspian is a border lake belonging to five coastal countries. Therefore, in accordance with normal international practice, it must be shared out between them and divided into sectors in the same way as the American Great Lakes and Lake Chad in Africa.”[98]

Azerbaijan based its argument on that the Caspian Sea was earlier, in 1970, delimited by the USSR Ministry for the Oil and Gas Industry into sectors among the neighboring republics, while the Sea was already delimited between the USSR and Iran by drawing a boundary line across the sea between Astara and Hasankuli,[99] though it was not confirmed by the formal agreements. This practice meant that the Caspian Sea was accepted as a lake and Azerbaijan would continue the practice just as before. (see Map 2)

Azerbaijan may be accepted as the most stable littoral state in its policy toward the legal status and regime of the Caspian Sea. As for the legal regime policy, Azerbaijan from the very beginning insisted in its argument of sectoral division. Azerbaijan did not approach to agree with Russia, when Russia and Iran declared the Contract unviable after the ‘Contract of the Century’, when Russia, in its letter to the UN, mentioned ‘material damage’ against unilateral acts –implying Azerbaijan- beyond economic sanctions (which were not approved by Chernomyrdin). Azerbaijan did not come into terms with Russia, even in December 1996, when Yevgeniy Primakov, the prime minister of Russian Federation proposed a compromise stating, “We are prepared to recognize the jurisdiction of each Caspian state not only in the offshore zones of up to 45 miles but also with regard to the deposits which are outside the agreed limits of this zone where oil extraction is already in progress or should begin so.”[100]

The insistence of Azerbaijan on delimitation and especially delimitation in accordance with the 1970 decision of the USSR Ministry of Oil Industry is understandable, as this would give Azerbaijan the highest possible share. When the Caspian Sea would be divided, some of its largest oil and gas reservoirs will remain in the Azerbaijani sector. Azerbaijani sector is estimated to contain 25 of the 32 known oil and gas fields of the Sea as well as 145 of the 386 prospective structures.[101] According to the mentioned delimitation of 1970, Azerbaijan had about 80,000 sq km, the same share with Turkmenistan, Kazakstan had 113,000 sq km, and Russia had 64,000 sq km of the Caspian floor.[102]

Together with the high stakes of delimitation, the US political support has also been effective in Azerbaijan’s insistence over sectoral division. At the beginning, officially the US seemed to support the idea, which was backed by all the littoral states, that the legal status issue must be resolved with the consensus of all the littoral states.[103] Naturally, Azerbaijan was the most determined supporter of the statement. The US provision of the idea was an indirect hold up of the Azerbaijani position. However soon after the US support became more apparent, though not pressingly.

The development of the US support might be followed in the official records of the US bureaucrats. In October 1997, Stuart Eizenstat, the Undersecretary of State for Economic, Business and Cultural Affairs, answering a question whether the US had taken a position on the classification of the Caspian Sea as a ‘sea’ or a ‘lake’ or not, stated, “We have been encouraging all the littoral states to resolve their territorial disputes in accordance with international legal principles. We have not tried to involve ourselves in legal disputes or in the legal merits.”[104] In the same meeting, regarding the call of the president of Amoco (the oil company which has large stakes in the Azerbaijan oil projects) to the US subcommittee to help resolving the legal status of the Caspian Sea to protect private investment, Senator Brownback stated, “ This question is certainly one for the littoral states to resolve… the important thing is though to realize the condominium concept that the Russians and the Iranians are putting forward would indeed put them in the driver’s seat in determining where, when and by whom private investment could take place, and that is the main problem with the debate.”[105] The concern of the US government is apparently testified in 1999, when the Special Advisor to the President and secretary of State on Caspian Basin Energy Diplomacy, ambassador Richard Morningstar, stated that: “… and we believe the sectoral boundaries are ultimately the best way to go. It is important that settlement of these issues not hold up exploration and development of the Caspian resources.”[106]

3. 3. 6. Iran

Iran’s approach to the legal status of the Caspian Sea was not much different from that of Russia. Iran’s main argument was that the Soviet-Iranian treaties of 1921 and 1940 must govern until the five littoral states jointly devise a new legal regime for the Sea. According to the 1921 and 1940 treaties, the Caspian Sea was accepted as a ‘joint Soviet-Iranian Sea’, on which both sides have the equal rights. Besides, Iran strictly argued that unilateral actions on the Sea, without the consensus of all the littoral states, are illegal. This argument certainly targeted Azerbaijan at the first place and Kazakstan at the second.

Iran, just like Russia, refrained from defining the legal status of the Sea precisely. The Iranian news agencies seemed to be confused in their terminology possibly because of the priority of defining the legal regime, and the insignificance of setting the legal status in their opinions[107]. As for the Iranian officials, they have officially pronounced neither the term ‘lake’ nor ‘sea’, for the Caspian Sea.

The National Iranian Oil Company official in charge of oil exploration stated that: “The Caspian is an inland sea whose status is not defined as an open sea.”[108] As stated before, the Iranian foreign minister, Velayati also named the Caspian Sea as ‘the world’s largest inland sea’[109] Thus, Iran claimed that the rules of the International Law of the Sea Convention could not be applied to the Caspian, as it was not an open sea.[110] Besides, it was not a ‘lake’; therefore, sectoral division as a part of international customary law was not under discussion. Deputy Minister of Foreign Affairs stated, “Due to its size, geographical situation, environmental condition, and the presence of littoral states, the Caspian Sea is quite a special and unique sea; thus, the usual international legal practices do not completely correspond to the needs of the area.”[111]Accordingly, Iran defended the establishment of territorial waters for each littoral state and the remaining part would be under joint exploitation.

Until it was extracted from the Azerbaijani oil projects, Iran remained silent to the unilateral exploitation acts of Azerbaijan. However, after being taken out from the projects because of the high pressure of the USA over the Azerbaijani government, Iran took the opposition side together with Russia. In its letter addressing the United Nations, Iran severely criticized unilateral acts in the Caspian Sea without the consent of the other littoral states, and warned, “the full responsibility for consequences of such illegal measures and actions, including damage caused to other coastal states, rests with the states violating the legal regime of the Caspian Sea.”[112] However, by 1998, the Iranian approach to the legal regime, which was the co-ownership of the Caspian, loosened as the Russian attitude towards the delimitation of the seabed softened. The Iranian deputy Foreign minister for Europe and the Americas, Morteza Sarmadi, in his interview to an Iranian daily, explained, “Iran prefers common ownership, but if the view of all the other littoral states is for division of the sea we believe principles such as just and equal shares, uniformity of the regime under the bed and over the bed and the non-militarization of the sea must be considered.”[113]

An Iranian commentator notes that if the Caspian Sea is delimited into sectors, the Iranian share would be the minimum, namely the region below the Astara-Hasankuli line[114], which consists only a 12 percent of all the seabed.[115] Besides, it was calculated by an international law specialist that the application of the equidistance line principle gave a 14,6 percent to Iran.[116] However, the Iranian Director-General for Commonwealth of Independent States and Caucasia at the Foreign Ministry, Firuz Dowlatabadi, approaches to the debate from a different point of view and stated “If the sea is to be divided among the littoral states, Iran's share is more than 20 per cent and the proposal to give one fifth of the sea to each country has just been made out of good intention and aimed at upgrading the level of convergence in the region.” He defends his point claiming that Iran was one of the two major parts of the previous documents regulating the Caspian affairs that was why Iran should have a bigger share than 20 per cent.[117]

It is apparent that the major fear of Iran in case of a sectoral division is that the smallest share will be Iran’s. For that reason, Iran gave the signal that it would not oppose a sectoral division, however its major condition for that was an equal or at least an equitable division. Iranian president Khatemi, at the opening ceremony of ECO in Tehran n June 2000, mentioned the legal status issue and stated, “A regime of joint ownership will certainly meet all the needs of the littoral states, however should these littoral states share a sharing scheme of the Sea, the Islamic Republic of Iran, is ready to support the idea of division of the sea based on just and equal shares.” [118]

3. 3. 7. Kazakstan

Kazakstan’s position regarding the Caspian’s legal status was yet unformulated during the 1993 prime ministers’ meeting in Astrakhan.[119] Later, on July 1994, Kazakstan submitted a draft “Convention on the Legal Status of the Caspian Sea” to the other littorals of the Sea. Since then, this draft formulated the Kazak approach to the legal issues of the Caspian Sea.[120]

According to the draft Convention, Kazak view as to the legal status of the Caspian is based on the ‘enclosed sea’ concept.[121] Thus, Kazakstan stood for the application of the rules of the Law of the Sea Convention of 1982.[122] However, all the regulations of the 1982 Convention should not be applied in a mechanical way. Considering the special features of the Caspian Sea, the rules have to be adapted in an appropriate manner to the Caspian case.

Kazakstan proposed that the seabed and the resources should be delimited among the littoral states. Consequently, each state would have sovereign rights the seabed and its resources in its sector. Kazakstan supported its argument not only with the international norms and the experience of mineral resource exploitation, but also with the historical experience on the Caspian Sea. Regarding the historical experience Kazakstan argued that on the Caspian Sea, the previous littoral states, USSR and Iran, had never applied common ownership; on the contrary, each one extracted and exploited the resources without the permission and information of the other. Besides, referring to the 1970 division of the Caspian Sea among the Soviet republics, Kazakstan argued that already a sectoral division existed on the Caspian Sea.[123]

Kazakstan also referred to the 1982 Law of the Sea Convention in regards to the delimitation of the sea surface. After delimiting the seabed and its resources, it argued that the appropriate zones (territorial waters, exclusive economic zone), to which the coastal states’ sovereignty would be applied, should be established.[124] “Besides, fishing and exploitation of biological resources should be carried out by each state inside the relevant offshore zones of an agreed width and also through the establishment of fishing quotas and licenses. Each littoral state should practice the exploitation of mineral resources inside its own zone. The development of deposits inside the zones of two or more states should be the subject of an agreement on sharing the output between the relevant states. The political and military existence in the Caspian Sea should be excluded.”[125] At the same time, Kazakstan claims the right of the land-locked littoral states to passage through the Volga basin to the high seas.

On July 6, 1998, Kazakstan signed an ‘eternal friendship agreement’ with Russia, in which the above-mentioned regulations were partly accepted. Although the agreement had vague articles, its significance lays in the fact that Russia for the first time had accepted some kind of a division, though the division was restricted to the seabed. Moreover, the document said that if any oil or gas deposit were in between the national sectors it would be jointly developed by both sides. This rule has recently been proposed by the Russian side as a solution to the current and potential disputable cases, but failed in its first attempt.

3. 3. 8. Turkmenistan

Turkmenistan, different from the other four republics, did not have its own conceptualization of the Caspian Sea’s legal status. It preferred to follow the others’ arguments, changing sides from time to time. The sole act of Turkmenistan on the issue was its declaration of 12-mile territorial waters, on the Caspian Sea, on 1 October 1993.[126] This meant the acceptance of the Law of the Sea Convention. However, Turkmenistan on a number of occasions, expressed its agreement with the Russian-Iranian view, that is to say the joint ownership of the Sea.

At the same time, Turkmenistan accepted that until new legal regime was reached by a consensus of all the littoral states, the agreements between the USSR and Iran made in 1921 and 1940 were valid.[127]

While Turkmenistan, on 24 October 1993, in its communiqué with Iran agreed on the point that “no decision may be taken about the exploitation of the Caspian Sea or about its international and legal standing without the participation of all its coastal countries”,[128]at the same time issued tenders and signed agreements with the western oil companies on the development of offshore oil fields.[129]

Turkmenistan is currently developing oil fields far from 12-mile off its shore, claiming ownership rights over the oil deposits which are on the border between Azerbaijan-Turkmenistan sectors and declaring that it shares ‘very similar ideas’ over the legal status issue with Iran, Russia and Azerbaijan, all of which contradicts with each other.

CHAPTER IV

THE BORDER DISPUTES AMONG THE LITTORAL STATES: The Dispute Between Azerbaijan and Turkmenistan

Historical analysis indicates us that the positions of the littoral states in the disputes over the legal status of the Caspian Sea are shaped mainly by their standpoints as to the Caspian legal regime. The way, in which the legal status will be adapted and the management of the resources will be conducted, determines the littoral states’ political and economic benefits. In this context, Russian Federation has a special place. Beyond being the successor to the USSR, Russia played a major role in the evolution of the legal dispute.

At the beginning, Russia severely opposed unilateral acts (specifically against Azerbaijan) and in this way formed an alliance with Iran (sometimes Turkmenistan also joined in). Simultaneously, it was uncomfortable about the western involvement in the Caspian Sea issues through either oil companies or governmental institutions and it made several attempts to solve the legal question arranging bilateral negotiations and multilateral meetings. Thus, Russia always stayed at the very center of the dispute. Certainly, its struggle is not to loose its power in the region on the one hand, and grasp as much economic stakes as possible from the Caspian oil wealth on the other.

On the Caspian Sea, Russia tried to maintain such a regime, as a result of which it will have the opportunity to have some degree of control in the region’s economic and political activities. The common ownership principle would give this advantage at the maximum level. Because of several factors, however, Russia was obliged to accept the division of the seabed. On 6 July 1998, Yeltsin and Nazarbayev signed an ‘eternal friendship treaty’ in Moscow, and in accordance with the treaty, the seabed of the northern Caspian was divided between the two countries, thus, the mineral resources of the Caspian Sea. The treaty was not just an agreement between Kazakstan and Russia, as Russia for the first time accepted the division of the resources of the Caspian Sea; though the sea itself was not divided into sectors and the issues of fishery, navigation and ecology were to be regulated jointly. The only defendant of the joint exploitation of the mineral resources remained Iran. However, Iran did not insist on its position either and added the sectoral division option in its argument with several conditions to prevent any detriment to its interests in case of delimitation.

As a result of these shifts toward the sectoral division argument, the main point of the disputes has also shifted from whether the Sea should be divided or not, to how it should be divided. The border dispute is the result of the uncertainty in the way of division. Although, the border dispute was under debate since 1994, the dimension of the problem has broadened as the supporters of the division issue have increased. Before Russia and Iran joined the issue, Kazakstan and Azerbaijan, as the two defendants of the division of the Sea, had no problem as to the borderline between themselves, because it is very short and few oil fields exist in the disputable area. Turkmenistan, although in several occasions took part with Russia and Iran against the division of the Caspian, on the one hand opened tenders for its offshore oil fields, which was a unilateral act according to the common ownership argument and on the other entered into a discussion with Azerbaijan on the oil fields in the middle of the Sea, claiming that the fields were in the sector of Turkmenistan.

The dispute between Azerbaijan and Turkmenistan over the sea borders emanated from Turkmenistan’s claims over some of the oil fields, which Azerbaijan considered for oil exploitation. Mainly these oil fields are Azeri, Çerag, and Kepez (as Azerbaijan named them).

4. 1. Dispute over the Azeri-Çerag oil fields

The issue came on the table, on January 20, 1997, when Niyazov declared that the two oil fields did not belong to Azerbaijan, but to Turkmenistan. It was surprising, as Azerbaijan had already signed $8 billion-deals with western oil companies on the exploitation of these oil fields on September 20, 1994.

The immediate response came from the head of the State Oil Company of Azerbaijan Republic (SOCAR), Khoshbakht Yusufzâde, who has a deep personal experience on oil extraction activities in the Caspian Sea. In his article, published in Azerbaijan International, he pointed out many arguments defending the Azerbaijani position that those oil fields belonged to Azerbaijan. First, he mentioned the international rules, which referred to the different regulations with regard to seabed and sea surface. He asserted that setting 12-mile limit for fishing rights did not mean that the mineral resources must also be restricted as such, and he supported his arguments with the practice in the North Sea where Britain, Norway, and Holland, dividing the seabed, shared the mineral resources for years without any conflict.[130] In his assertion, he considered that Turkmenistan found it illegal for Azerbaijan to exploit oil wells outer than the 12-mile limit because Turkmenistan declared 12-mile territorial waters for itself. However, Turkmenistan’s claim for illegality of the Azerbaijani act finds its reason in the ownership of the fields, not the distance of the fields from the shore.[131]

Yusufzâde supported the ownership of Azerbaijan over the fields also with “the 1970 division of the Sea by the Soviet Oil Industry according to the internationally accepted law of equidistance method.”[132] He added that Azerbaijan, beginning from 1970s, carried out, and was responsible for all the research, discoveries, explorations and exploitations of oil in the Caspian Sea, and in that period Azerbaijani scientists found more than 15 petroleum reservoirs in the region including Azeri, Çerag, Günesli (which is the third field of the ‘Contract of the Century’ together with Azeri and Çerag). Consequently, the historical experience confirms Azerbaijani argument.[133]

Another point of the Azerbaijani side against Turkmenistan’s argument was the fact that there are oil fields (one of which is Kepez), which re developed by Azerbaijan, further from Azeri and Çerag fields, which are claimed to be in the sector of Turkmenistan. Thus, Turkmenistan could not oppose the development of these nearer fields by Azerbaijan, as it did not claim any right over further ones.[134] (see Map 3)

Azerbaijan Foreign Ministry proposed holding talks with Turkmenistan to settle possible disputes over rival claims over the oil fields. The talks continued until another oil field became the core of the dispute between the two countries.

4. 2. Disputes over the Kepez Oil Field

Azerbaijani officials several times referred to the Kepez oil field as being in the Azerbaijani sector of the Caspian Sea and being further from the disputed oil fields, Azeri and Çerag. In fact this was an open invitation to the Turkmenistan side to claim ownership right over also the Kepez field.

By March 1997, Turkmenistan was planning an oil tender, which would open six more offshore oil fields of Turkmenistan to the development of oil companies. However, the tender was postponed “until a decision over the delimitation of the Caspian Sea was reached.”[135] At the same time, the development of the Kepez oil field, which is nearer to Turkmenistan and is accepted even by the Azerbaijani officials to be possibly on the borderline between Azerbaijan and Turkmenistan, had long been under discussion. As early as April 1994, that is before the development agreement of the Azeri and Çerag fields was signed, LUKOil offered Azerbaijani government to develop Kepez in return for its share in the Azerbaijan International Oil Company (AIOC - the consortium which is responsible from the development of Azeri, Çerag and Günesli oil fields).[136] The Turkmen claims over the oil fields most likely urged Azerbaijani officials to take necessary steps to move further and start developing the fields, over which Turkmenistan might claim ownership and even open a tender (in such a case Azerbaijan would not have much to do as the legal status and regime of the Sea have not been established yet).

4. 2. 1. Azerbaijani Deal Over Development of the Kepez Oil Field

In June 1997, the negotiations were conducted between the Azerbaijani officials and the representatives of the LUKOil and Rosneft alongside Nemtsov, Russian First Deputy Prime Minister. It was also said that the deal had in fact been initiated by Russian Prime Minister Viktor Chernomyrdin.[137] On July 4, 1997 the $1 bn agreement was signed between the parties, sharing the prize in the following way: SOCAR: 50%, LUKOil: 30% and Rosneft: 20%. Turkmenistan was not late in reacting to the agreement. The day after, the Foreign Ministry of Turkmenistan protested the agreement “on the grounds that the field in question belonged not to Azerbaijan, but to Turkmenistan.”[138] The wording of the note, however, implied more than just a protest: “The ministry categorically demands that the oil accord be scrapped in order to avoid possible consequences for which Turkmenistan will not bear responsibility what so ever.” In the statement, the claim over the other two oil fields was also repeated, however, this time with a slight alteration: “"The Russian Federation and other Caspian littoral states know very well that Turkmenistan objects to the fact that its legal rights to such oilfields as Kaverochkin and The 26 Baku Commissars, which have been renamed by Baku as Çerag and Azeri, are openly ignored. The former oilfield belongs partly to Turkmenistan whereas the latter belongs to Turkmenistan fully.”[139] Being aware that this statement would not have an effect on the signed agreement, the issue was held in Niyazov’s Moscow visit and on August 7, Niyazov announced that the Russian government had annulled $1 bn deal between Russian companies and Azerbaijani government to develop the disputed field.[140]

In this way, Turkmenistan, this time, won over Azerbaijan. Moreover, the postponed call for tender came to the agenda not much later, on August 14. Although the fields included in the tender were not made public, it was an obvious counter attack. On September 1, 1997, the fields for tender were announced, among which was Kepez (Turkmenistan named it Serdar).[141]

4. 2. 2. Power Struggle Between Turkmenistan and Azerbaijan

Turkmenistan’s tender turned into a power struggle between Azerbaijan and Turkmenistan. Azerbaijan announced that it would apply sanctions against any company bidding on the disputed field.[142] However, in June 1998, Mobil won the right, under the September tender, to develop the field, and the Turkmenistan government invited Mobil to begin talks on development plans. However, later the victory turned to be a disappointment for Turkmenistan as Mobil announced that it would not sign an agreement with Turkmenistan or do any more than a preliminary analysis of the field until the two countries settle the dispute. Consequently, Turkmenistan declared that the company lost its exclusive right to develop the oil field as “it failed to begin talks within the time frame set by the government”.[143]

The talks continued between the sides without a resolution. After the Ashgabat meeting between the foreign ministers of the two countries on February 5, 1998, a joint statement was adopted: “The sides have agreed to divide the sectors of the Caspian Sea between Azerbaijan and Turkmenistan along the median line in accordance with the generally recognized principles and norms of international law on the basis of realizing their sovereign rights to the Caspian and taking into account the existing interests of the littoral states.”[144] Though this joint statement seemed to solve the question theoretically, it came to nothing since the sides insistently continued to argue the ownership rights over the disputed fields, drawing their own median lines.

4. 2. 3. The US Mediation

The dispute once more heated up in the mid-1999 (14 May), when the USA involved in the issue to mediate between the conflicting sides with its three-optional proposal. The exploration of gas in the Sah Deniz field (on May 29th), in the mean time, made the solution almost impossible. The US backed Trans-Caspian Pipeline project (TCP-project for a gas pipeline from Turkmenistan to Ceyhan), became a instrument for both states to gain the upper hand in the oil field dispute. Azerbaijan wanted its gas to be added in the TCP, however Turkmenistan rejected. On the one hand, Niyazov firmly linked the start of construction of the pipeline to an agreement on ownership of the disputed oil fields.[145] On the other hand, Azerbaijan Ministry of Foreign Affairs stated that: “Delimitation of the Caspian Sea among its littoral states will be a precondition of Azerbaijan’s participation in a sub-sea Caspian gas pipeline project.”[146]

At the end of August 1999, it became certain that US options would not be undertaken, as none of the three options were agreed upon by both sides. On the other hand, the US, in support for the TCP (which has become one of the US political priorities in the region as the project decreases the relative powers of Russia and Iran in the region), during the OSCE summit in Istanbul, sustained an agreement indicating that the Kepez/Serdar dispute will not stand on the way of TCP cooperation.[147]

The last incident on the issue is Turkmenistan’s proposal for the development of the disputed oil field together with Iran.[148] Turkmenistan obviously tries to take Iran on its side and thus, without agreeing with Azerbaijan, guarantee the field’s possession. However, Iran has not replied the proposal yet.

4. 2. 4. An Analytic Approach to the Dispute

Baku had a special place in the history of oil extraction. By 1901, Baku oil fields were placed first in the world in the amount of oil extracted, 11,5 million tons per year, a worldwide record at that time.[149] That is why the oil industry, science and technology so well developed in Azerbaijan in comparison with the other littoral states. Consequently, most of the exploration and development activities were conducted by the Azerbaijani scientists and institutions. However, both sides agreed on the delimitation of the Caspian among the republics within the USSR.

In 1970, the sectoral division of the Sea was realized by the USSR Ministry of Oil and Gas Industry. The delimitation was carried out based on equidistance method. SOCAR claimed the ownership of the disputed fields in reference to this delimitation, and argued that according to the 1970 delimitation all the three disputed oil fields belonged to Azerbaijan.[150] Besides, although most of the research in the Caspian sea was conducted by the Azerbaijani officials, the explored oil and gas fields in the other sectors were notified to the relevant governments. In this way, Günesli, Çerag, Azeri and Kepez oil fields remained in the Azerbaijani sector, while the fields of Livanov East, Lum, Gubkina, Barinova and Prechelikenski Kupol were found in the Turkmen sector.[151] However, the argument was rejected by Turkmenistan on the basis that the 1970 delimitation was no more than an administrative regulation as it was just an order of the Ministry of Oil Industry, but not a regulatory decision of the ‘Supreme Soviet’, which was the only body to set and change boundaries between the republics. Besides, all the mineral resources were actually owned by the USSR.[152]

Besides, it was proposed by the SOCAR that this delimitation gave rise to no objection from any of the former republics neither during the Soviet Union, nor after the dissolution of the USSR.[153] Even after the ‘Contract of the Century’ (20 September 1994), Turkmenistan, claiming ownership over the two oil fields among the three, which were the subjects of the Contract, claimed no rights for almost three years.

Another inconsistency of Turkmenistan is that its officials defend the joint ownership principle, but at the same time, the disputed fields are claimed to be of Turkmenistan.[154] However, these two positions contradict with each other.

4. 2. 5. Joint Development

On the other hand, Azerbaijan also presents inconsistencies within its own attitude toward the resolution of the dispute over the status of the Kepez field.

The immediate reaction of the SOCAR to the annulment of the deal with the Russian companies over Kepez, was favoring the sole ownership rights of Azerbaijan over Kepez.[155] However, the Foreign Ministry, at the same time, stated that Azerbaijan was ready to discuss “any mutually beneficial proposal with Turkmenistan.”[156] The prime minister’s first commentary was in the following way: “Azerbaijan has never considered Kepez to be entirely its own, since it is located between Azerbaijan and Turkmenistan sectors of the Caspian Sea.”[157] Aliyev defended Azerbaijani position referring to the exploration of the field by Azerbaijan, while admitting the debatable location of the field: “We know that Kepez is half way between us, but our oil producers have drilled the first exploratory well in it.”[158] Following these comments, in many occasions, either through diplomatic calls, or through SOCAR’s invitations, Azerbaijan called for a joint development of the field. On August 23, 1999, Ilham Aliyev, son of the president and the first president of SOCAR, proposed founding a joint Azeri-Turkmen company to develop the disputed oil field, Kepez.[159] Azerbaijan’s efforts for a joint ownership were perceived by Turkmenistan as recognition of Azerbaijan’s flawed position.[160] Although at the beginning of the dispute, Azerbaijan called many times for a joint development of the fields, it reacted negatively to the recent Russian proposal for joint development of disputed oil fields.[161]

On the other hand, from a pure legal point of view, the delimitation rules regarding the median line principle set by the UN Law of the Sea Convention should be resorted to. In the 2nd Part and 15th article of the Convention, it is stated that: “Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.”[162](emphasis added) If the historical practice is considered, it was clear that Azerbaijan (although it was known that Kepez is on the borderline between the states) explored and developed the oil field, so historical practice gave Azerbaijan the right to exploit the field.[163]

On the other hand, a just division, based on the median line principle would most probably gave the field to Turkmenistan. Kepez is located 184 km off Azerbaijan coastline and 104 km off Turkmenistan’s coast.[164] This meant that Kepez obviously remained in the Turkmenistan sector. However, Azerbaijani argument stated that the islands offshore had to be taken into account and the starting point must be measured from the island’s shore.[165] This certainly decreased the above-mentioned distance of the field from 184 km to approximately 145 km.[166] Accordingly, the field might be considered to be on the borderline between the two opposite states, while its major part remained in the Turkmenistan sector.

At this point, it is necessary to mention the three-optional proposal of the US. Though, the details of the proposal were kept secret and the negotiations were held behind the doors, as far as the officials of the negotiating sides implied, the US scheme was in the following way: There were three options for each state. The first option suited Azerbaijan more than Turkmenistan. The second option was vice versa. The third option was arranged to be a compromise, taking into account the arguments and interests of both states. However, it was argued that, in the last option, which was designed to be a compromise, the disputed Kepez field was situated in the Turkmenistan sector. Although through some arrangements in the development of the field the interests of Azerbaijan were said to be protected, Azerbaijan was not satisfied with the proposal and the matter remained suspended pending further discussion.[167] Whereas Azerbaijan was not satisfied with the fact, the investigation conducted by the US to draw a division line involving a satellite most probably showed the real position of the field being in the Turkmenistan sector, as Ilham Aliyev, when declaring Azerbaijan’s disagreement with the US proposal, admitted the fact a ruler would harm the Azerbaijani interests in the region: “I have kept telling that Kepez should not be approached with a ruler, that this field should serve the interests of both Turkmenistan and Azerbaijan.”[168]

Thus, although the historical practice backs Azerbaijani argument, the contemporary rules and regulations of the Law of the Sea name the field as not ‘Kepez’, but ‘Serdar’.

CHAPTER V

CONCLUSION

A distinction between the legal status and legal regime has to be made. For the sake of objectivity, the status issue has to be considered in isolation from all the other political and economic considerations and anxieties. As the historical and geological development of the Caspian Sea is regarded, it becomes certain that it has to be recognized a ‘sea’.[169] Its connections to the open seas in the ancient time (which is the reason for its saltiness) and its contemporary connection with the high seas through channels (although they are very narrow) support its status as a ‘sea’.

On the other hand, the practice in the Caspian Sea has been different sometimes. The practice through out history, points us that during the Soviet period, at the beginning the Sea was accepted as an ‘enclosed sea’, and all the related regulations were done according to this acceptance. However, through later adjustments, which were never reflected in the official agreements and documents, the Sea was turned into a ‘boundary lake’, delimiting the Sea on the Astara-Hasankuli borderline. The establishment of Free Information Region in 1964 through an ‘Aerial Agreement’ also supports the existence of this practice.[170] Besides, the Soviet scientists, conducting the exploration and exploitation of the oil fields in the Caspian Sea, report that, between 1966-1968, 44 structures were discovered in the Iranian shelf zone of the Caspian and Iran was notified.[171] Afterwards, on development of these structures, talks went on between Iran and USSR. These and relevant evidence indicate that the Caspian Sea was delimited between its two neighbors, as the regulations for lakes necessitate.

On the other hand, it is the crucial point that, although 1982 Convention backs the historical practice over the contemporary regulations, considering the new geopolitical conditions in the region and various interests of the littoral states, it is practically impossible to exercise the historical practice without any transformations. Whether the Sea will be recognized a ‘sea’ or a ‘lake’, the delimitation rule prevails. However, it is inescapable to establish more regulations. Even if the legal status of the Sea brings the complete division of the Sea into national sectors, the supporters of the ‘division’ idea also have to recognize some regulations as to the issues relating to the general provisions of the Caspian Sea, even if they continue to insist on unacceptability of any restriction over the sovereignty of the state. The environmental, navigational and fishing regulations, which are vital for the peace and security of the Sea, have to be decided with the consent of all the littorals.

It is now more apparent that the Sea will be fully divided into sectors, though for now there is a consensus only for the seabed delimitation. Besides, unfortunately, it has also been apparent that the division process will cause many political disputes and conflicts among the littoral states. The border disputes have already started negatively affecting bilateral relations of the neighbor states, which have economic and political benefit in cooperation and economic collaboration. Already in July 2000, a border dispute between Iran and Azerbaijan has caused the increase of tension between the states to the point that, Iran’s supreme leader Ayatullah Hamanei addressing the soldiers commented on the issue in a severe way of speech: “Iran will not allow enemy states on its borders to humiliate it.” [172]Besides, Niyazov has raised claims over some of the oil fields, which Iran recognizes as its own. These all are the signs of the prospective political disputes emanating from the uncertainty over the Caspian legal status, and lack of consensus among the littoral states over the Caspian legal regime.

As the analysis of the Azeri-Turkmen border dispute indicates, an overall consideration of historical practice, contemporary rules of international law (i.e. implementing the equidistance principle in dividing the Caspian) and the current interests of the littoral states, together with the primary condition of consensus of all the sides, may solve the current and possible disputes, securing the peace and cooperation in the region.

BIBLIOGRAPHY[173]

Official Documents

Bratia Naveki: Dokumenty i Materialy ob Ist. Druzhbe Rus. i Azerb. Narodov. Baku: 1987.

“Mirnyi Traktat Mezhdu Rossiei i Persiei, Zakliuchionnyi v Golistane 12 Oktiabria 1813 Goda.” Mezhdunarodnaia Politika Noveishego Vremeni v Dogovorakh, Notakh i Deklaratsiiakh, Chast I: Ot Frantsuzskoi Revoliutsii do Imperialisticheskoi Voiny. Moscow: 1925.

“Traktat, Zakliuchionnyi v Turkmenchaie 10 Fevralia 1828 g.” Sbornik Dieistvuiushchikh Traktatov, Konventsii i Soglashenii, Zakliuchionnykh Rossiei s Drugimi Gosudarstvami i Kasaiushchikhsia Razlichnykh Voprosov Chastnago Mezhdunarodnago Prava. V: 3 S.Peterburg: 1891.

“Obrashchenie Pravitelstva RSFSR k Pravitelstvu i Narodu Persii 26 Iiunia 1919 g.” Dokumenty Vneshnei Politiki SSSR. V: 2 Moscow: 1958.

“Dogovor o Torgovle i Moreplavanii Mezhdu Soiuzom Sovetskikh Cotsialisticheskikh Respublik i Iranom.” Sbornik Mezhdunarodnykh Konventsii, Dogovorov, Soglashenii i Pravil po Voprosam Torgovogo Moreplavaniia. Moscow: 1959.

“Dogovor Mezhdu RSFSR i Persiei 26 Fevralia 1921 g.” Dokumenty Vneshnei Politiki Rossii. V: 3 Moscow: 1965.

Dokumenty Vneshnei Politiki SSSR. Moscow: 1965.

Sbornik Mezhdunarodnykh Konventsii, Dogovorov, Soglashenii i Pravil po Voprosam Torgovogo Moreplavaniia. Moscow: 1959.

Sbornik Deistvuiushchikh Dogovorov, Soglashenii i Konventsii, Zakliuchennykh SSSR s Inostrannymi Gosudarstvami. Moscow: 1956.

Books and Thesis

Barsegov, Iu. G. Kaspii v Mezhdunarodnom Prave i Mirovoi Politike. Moscow: 1998.

Boitsov, F. S. Morskoe Pravo. Moscow: 1985.

Belli, V. A. Voenno-Morskoi Mezhdunarodno-Pravovoi Spravochnik. Moscow: 1940.

Çevik, Burcu. “The Status of the Caspian Sea: An Inquiry into the Issue of Delimitation.” Ph.D. diss., Middle East Technical University, 1998.

Gül, K.K. Kaspiiskoe More. Baku: 1956.

Kerimov, Elbar. “Mezhdunarodnoi Pravovoi Status Kaspiiskoe More.” Ph.D. diss., St. Petersburg University, 1999.

Komarovskii, L. A., V. A. Ulyanitskii. Mezhdunarodnoe Pravo. Moscow: 1908.

Kozhevnikov, F. I. Mezhdunarodnoe Pravo. Moscow: 1957.

Kök, Havva. “The Effects of the Caspian Oil Pipeline Issue on Russian Foreign Policy.” Ph.D. diss., The University of Leeds, 1999.

Kurat, Akdes Nimet. Türk Kavimleri ve Devletleri. Ankara: 1992.

Martens, Fiodor. Sovremennoe Mezhdunarodnoe Pravo Tsivilizovannykh Narodov. S.Peterburg: 1904.

Memedov, Rüstem Fahreddin Ogli. “Mezhdunarodno-Pravovoi Rezhim Kaspiiskogo Moria.” Ph. D. diss., Kirov State University, Baku: 1988.

Vyshnepolskii, S. A. Mirovye Morskie Puti i Sudokhodstvo. Moscow: 1953.

Articles

Adams, Jan. "Pipelines and Pipedreams." Problems of Post-Communism 5 (1998).

Aleksandrov, V. “Caspian Oil: Blessing or Curse?.” International Affairs 6 (1997).

Bremmer, Ian. “Oil Politics.” World Policy Journal 1 (1998): 27.

“Caspian Sea Oil Field Dispute.” IBRU Boundary and Security Bulletin 3 (1997).

Croissant, Cynthia and Michael Croissant. “The Legal Status of the Caspian Sea: Conflict and Compromise.” In Oil and Geopolitics in the Caspian Sea Region, edited by Bülent Aras and Michael Croissant. Connecticut: Preager Publ., 2000.

Dabiri, Mohammad Reza. “A New Approach to the Legal Regime of the Caspian Sea as a Basis for Peace and Development.” The Iranian Journal of International Affairs 1&2 (1994).

Gizzatov, V. Kh. “Kaspiiskaia Neft i Mezhdunarodnaia Bezopastnost.” In Kaspiiskaia Neft i Mezhdunarodnaia Bezopastnost’, Friedrich Ebert Foundation. Moscow: 1996.

Gökay, Bülent. “The Battle for Baku (May-September 1918): a Peculiar Episode in the History of the Caucasus.” Middle Eastern Studies 1 (1998).

Kasenov, U. T. “Kaspiiskaia Neft, Truboprovody i Mezhdunarodnaia Bezopastnost.” In Kaspiiskaia Neft i Mezhdunarodnaia Bezopastnost’, Friedrich Ebert Foundation. Moscow: 1996.

Kepbanov, Yolbars. “The New Legal Status of the Caspian Sea is the Basis of Regional Cooperation and Stability.” Perceptions V.2 N.4 (1998).

Kovalev, F. “Caspian Oil: Russian Interests.” International Affairs 3 (1997).

Logunov, V. D. “Mezhdunarodno-Pravovoi Rezhim Kaspiiskogo Morskogo Teatra.” In Voenno-Morskoi Mezhdunarodno-Pravovoi Spravochnik. Moscow: 1966.

Mehdiyoun, Kamyar. “Current Developments Ownership of Oil and Gas Resources in the Caspian.” The American Journal of International Law 1 (2000).

Nugman, Gulnar. “The legal Status of the Caspian Sea.” Eurasian Studies, 13 (1998).

Olcott, Martha Brill. “The Caspian’s False Promise.” Foreign Policy 111 (Summer 98).

“Oil Drums Calling.” The Economist, 7 February 1998.

Raczka, Witt. “A Sea or a Lake? The Caspian’s Long Odyssey.” Central Asian Survey 19 (2000).

Uibopuu, Henn-Jüri. “The Caspian Sea: A Tangle of Legal Problems.” The World Today 6 (1995).

Zhilo, P.V. “O Nazvaniiakh Kaspiiskogo Moria.” Izvestiia AN Azerb. SSR. Seriia Geol.-Geog. Nauk., 4 (1960).

Internet Resources

Alexandrov, Mikhail. “Russian Kazakh Contradictions on the Caspian Legal Status.” Russian Eurasian Bulletin (February 1998) (28 May 2000).

“An Interview with Deputy Foreign Minister.” Ettelaat. 2 June 1998. (5 July 2000).

Askarov, Gorhmaz. “Border Games in the Caspian Sea: Newly Independent States vs. Russia and Iran Co.” Caspian Crossroads Magazin 2 (1999) (28 January 2000).

Clagett, Brice. “Ownership of Seabed and Subsoil Resources in the Caspian Sea under the Rules of International Law.” Caspian Crossroads Magazine 3 (1995) (28 January 2000).

“Constitution of Azerbaijan.” Republic of Azerbaijan. 26 February 2000 (20 July 2000).

Croissant, Michael and Cynthia Croissant. “The Caspian Sea Status Dispute: Azerbaijani Perspectives.” Caucasus Regional Studies 1 (1998) (19 February 1999).

Cutler, Robert. “Azerbaijan vs. Turkmenistan: The Caspian Offshore Oil and Gas Conflict.” Central Asia-Caucasia Analyst. 19 January 2000. (25 May 2000).

Fedorov, Yuri. “Russia’s Policies toward Caspian Region Oil: Neo-Imperial or Pragmatic?” September 1996. (30 June 2000).

Horton, Scott. “International Law Ownership of the Caspian Seabed.” CIS Law Notes. September 1998. (29 June 2000).

“Iran-Caspian Sea Iranian Proposal on Caspian Sea Legal Regime Conforms to International Law.” 28 October 1995. (4 July 2000).

Kochumov [Koçumov], Yagmur. “Issues of International Law and Politics in the Caspian in the Context of the Turkmenistan-Azerbaijan Discussion and Fuel Transport.” Caspian Crossroads Magazine V4 I2 (Winter 1999)

Kuliev, Hasan. “Myths and Realities: Oil Strategy of Azerbaijan.” Central Asia and Caucasus. No. 1, 2000. (15.05.2000).

Maliki, Abbas. “Economic Development of the Caspian Sea Region.” Iran News. 25 June 1995. (5 July 2000).

“Mobil, Cairn and Texuna Loose Exclusive Rights in Turkmenistan.” Azerbaijan International V.4 N.5 (March 17, 1999) (3 December 1999).

“Mobil Has Another Important Oil Interest in Turkmenistan and Azerbaijan.” Game Scenari. (20 June 2000).

Momtaz, Jamshid. “Iran’s View on Caspian Administration.” Iran Today 21 (1998) (5 July 2000).

Oxman, Bernard. “Caspian Sea or Lake: What Difference Does It Make?” Caspian Crossroads Magazin 4 (1996). (13 June 2000).

“Resource Development at the Caspian Sea Region.” US Department of Energy. 1 August 2000. (2 August 2000).

“Shipping, Oil, ad Fishing Share in the Caspian.” Sanat-e Haml-o Naql. 158 (1996). Cited in Iran News. November 1996. (4 July 2000).

“SOCAR’s Official Statement by Natig Aliyev President of SOCAR.” Azerbaijan International V.5 N.3 (Autumn 1997) (10 June 2000)

“The Caspian Rising Its Health Deteriorates.” Iran News, 16 April 1995. (4 July 2000).

“Turkmenistan May Develop Caspian Oil Field with Iran.” Azerbaijan International V.5 N.7 (27 April 200) (15 June 2000).

“Turkmenistan’s Opens for Bids on the Exploration of the Caspian Sea Shelf.” Embassy of Turkmenistan. August 1997 (20 June 2000).

United Nations. Oceans and Law of the Sea. (15 July 200).

US Energy Information Administration. “Caspian Sea Region.” Country Analysis Briefs. June 2000. (05 July 2000).

“Velayati Calls Caspian Sea ''Common Heritage'' of Littoral States.” 23 October 1996. (3 July 2000).

Yusufzâde, Khoshbakht [Hosbaht]. “Azerbaijan and Iran.” Azerbaijan International V.6 N.1 (Spring 1998) (20 June 2000).

--------------------------------------------. “The Development of the Oil and Gas Industry in Azerbaijan.” Azerbaijan International V.4 N.2 (Summer 1996) (11 June 2000).

--------------------------------------------. “The Status of the Caspian.” Azerbaijan International V.2 N.4 (Winter 1994) (3 December 1999).

“25% of Russia’s Sewage Enters the Caspian Sea.” Hamshahri. 7 March 1995. Cited in Iran News. 10 March 1995. (4 July 2000).

News Agencies

Arab Press Service

Azer Press

Federal News Service

Itar-Tass

Reuters Business Briefing

World News Connection (WNC)

--------------------------------------------------------------------------------

[1] Martha Brill Olcott, “The Caspian’s False Promise,” Foreign Policy 111 (Summer 98): 94.

[2] P.V. Zhilo, “O Nazvaniiakh Kaspiiskogo Moria,” Izvestiia AN Azerb. SSR. Seriia Geol.-Geog. Nauk., 4 (1960): 94-95.

[3] K.K. Gül, Kaspiiskoe More (Baku: Aznefteizdat, 1956), 16.

[4] Ibid.

[5] In solving the conflictual cases, while also in setting rules of delimitation and bordering, 1982 UN Law of the Sea Convention sensitively sets the condition of lack of a historical point of agreement, as follows: “Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way, which is at variance therewith.” United Nations, Oceans and Law of the Sea, (15 July 200).

[6] S. A. Vyshnepolskii, Mirovye Morskie Puti i Sudokhodstvo (Moscow: 1953) 456.

[7] Akdes Nimet Kurat, Türk Kavimleri ve Devletleri (Ankara: 1992)

[8] Gül, 17.

[9] Bratia Naveki: Dokumenty i Materialy ob Ist. Druzhbe Rus. i Azerb. Narodov (Baku: 1987) 15.

[10] V. Kh. Gizzatov, “Kaspiiskaia Neft i Mezhdunarodnaia Bezopastnost,” in Kaspiiskaia Neft i Mezhdunarodnaia Bezopastnost, Friedrich Ebert Foundation (Moscow: 1996), 51.

[11] Mohammad Reza Dabiri, “A New Approach to the Legal Regime of the Caspian Sea as a Basis for Peace and Development,” The Iranian Journal of International Affairs 1&2 (1994): 46.

[12] ‘Mirnyi Traktat Mezhdu Rossiei i Persiei, Zakliuchionnyi v Golistane 12 Oktiabria 1813 Goda’, Mezhdunarodnaia Politika Noveishego Vremeni v Dogovorakh, Notakh i Deklaratsiiakh, Chast I: Ot Frantsuzskoi Revoliutsii do Imperialisticheskoi Voiny (Moscow: 1925) 104.

[13] Ibid.

[14] This treaty sets the borderline between the USSR and Iran, which was more or less kept the same until the dissolution of the USSR.

[15]“Traktat, Zakliuchionnyi v Turkmenchaie 10 Fevralia 1828 g.” Sbornik Dieistvuiushchikh Traktatov, Konventsii i Soglashenii, Zakliuchionnykh Rossiei s Drugimi Gosudarstvami i Kasaiushchikhsia Razlichnykh Voprosov Chastnago Mezhdunarodnago Prava V: 3 (S.Peterburg: 1891) 170.

[16] Cynthia Croissant and Michael Croissant, “The Legal Status of the Caspian Sea: Conflict and Compromise,” in Oil and Geopolitics in the Caspian Sea Region eds. Bülent Aras and Michael Croissant (Connecticut: Preager Publ., 2000), 22.

[17] “Obrashchenie Pravitelstva RSFSR k Pravitelstvu i Narodu Persii 26 Iiunia 1919 g.,” Dokumenty Vneshnei Politiki SSSR V: 2 (Moscow: 1958) 198-200.

[18] V. D. Logunov, “Mezhdunarodno-Pravovoi Rezhim Kaspiiskogo Morskogo Teatra,” Voenno-Morskoi Mezhdunarodno-Pravovoi Spravochnik (Moscow: 1966): 372-375.

[19] “Dogovor o Torgovle i Moreplavanii Mezhdu Soiuzom Sovetskikh Cotsialisticheskikh Respublik i Iranom”, Sbornik Mezhdunarodnykh Konventsii, Dogovorov, Soglashenii i Pravil po Voprosam Torgovogo Moreplavaniia (Moscow: 1959) 268-269.

[20] Rüstem Fahreddin Ogli Memedov, “Mezhdunarodno-Pravovoi Rezhim Kaspiiskogo Moria” (Ph. D. diss. Kirov State University, Baku: 1988), 83.

[21] “Dogovor Mezhdu RSFSR i Persiei 26 Fevralia 1921 g.,” Dokumenty Vneshnei Politiki Rossii V: 3 (Moscow: 1965) 727. The original text is as follows: “… storony uslovilis ni dopuskat na svoikh territoriiakh obrazavaniia ili prebyvaniia organizatsii ili grupp ili dazhe otdelnykh lits, stabiashchikh tseliu borbu protiv Irana i Rossii ili protiv soiuznykh s nimi gosudarstv.”

[22] See Bülent Gökay, “The Battle for Baku (May-September 1918): a Peculiar Episode in the History of the Caucasus,” Middle Eastern Studies 1 (1998).

[23] “Obrashchenie Pravitelstva RSFSR k Pravitelstvu i Narodu Persii 26 Iiunia 1919 g.,” 199.

[24]Kurat, 280.

[25] Gül, 187.

[26] “Mirnyi Traktat Mezhdu Rossiei i Persiei, Zakliuchionnyi v Golistane 12 Oktiabria 1813 Goda,” 104.

[27] “Traktat, Zakliuchionnyi v Turkmenchaie 10 Fevralia 1828 g.,” 170.

[28] “Dogovor Mezhdu RSFSR i Persiei 26 Fevralia 1921 g.,” 730.

[29] “Dogovor o Torgovle i Moreplavanii Mezhdu Soiuzom Sovetskikh Sotsialisticheskikh Respublik i Iranom,” 268.

[30] Memedov, 132.

[31] Ibid.

[32] Fiodor Martens, Sovremennoe Mezhdunarodnoe Pravo Tsivilizovannykh Narodov (S.Peterburg: 1904), 385.

[33] L. A. Komarovskii, V. A. Ulyanitskii, Mezhdunarodnoe Pravo (Moscow: 1908), 79.

[34] Dokumenty Vneshnei Politiki SSSR (Moscow: 1965): 429.

[35] Sbornik Mezhdunarodnykh Konventsii, Dogovorov, Soglashenii i Pravil po Voprosam Torgovogo Moreplavaniia (Moscow: 1959).

[36] The 4th item of the 12th Article reads as follows: “Apart from the previous regulations, the Contracting Sides reserve the right for the vessels bearing their own flags to fishing in their coastal waters, up to 10- miles, and reserve the right to give certain benefits to fish imports caught by the crew of the vessel bearing their own flags.”

[37] Bernard Oxman, “Caspian Sea or Lake: What Difference Does It Make?,” Caspian Crossroads Magazin 4 (1996), (13 June 2000).

[38] Gizzatov, 52.

[39] For a discussion on the 1940 Treaty, see Kamyar Mehdiyoun, “Current Developments Ownership of Oil and Gas Resources in the Caspian,” The American Journal of International Law 1 (2000): 181. See also Henn-Jüri Uibopuu, “The Caspian Sea: A Tangle of Legal Problems,” The World Today 6 (1995): 122.

[40] Sbornik Deistvuiushchikh Dogovorov, Soglashenii i Konventsii, Zakliuchennykh SSSR s Inostrannymi Gosudarstvami (Moscow: 1956): 71-72.

[41] Ed. V. A. Belli, Voenno-Morskoi Mezhdunarodno-Pravovoi Spravochnik (Moscow: 1940): 170.

[42] F. I. Kozhevnikov, Mezhdunarodnoe Pravo (Moscow: 1957): 222.

[43] Logunov, 375.

[44] F. S. Boitsov, Morskoe Pravo (Moscow: 1985): 46.

[45] Mohammad Reza Dabiri, “Rezhime-e Hoghugi-e Daryay-e Khazar: Ameli Baray-e Tavazon Manafeh va Tavazon Amniyat” [“The Caspian’s Legal Regime: Balancing National Interests and National Security”], Majalleh (Summer 1995): 141, 144, quoted in Kamyar Mehdiyoun, “Current Developments Ownership of Oil and Gas Resources in the Caspian,” The American Journal of International Law 1 (2000): 181.

[46] United Nations: Art. 15.

[47] Memedov, 60.

[48] In fact, the reason for Russia not to exploit oil of the southern sector, not its respect to the rights of Iran, but the practical difficulty in conducting exploitation in the southern part of the Caspian, as this section contains the greatest depths of the Caspian.

[49] Gül, 12.

[50] Memedov, 51-53.

[51] Ibid, 62-63.

[52] It should be noted that, the Iranian passivity in the Caspian Sea was one of the main reasons for the continuity of the uncertain status of the Caspian Sea during the Soviet period.

[53] A. Dowlatchahi, La Mer Caspienne (Paris: 1961): 187, quoted in Memedov, 63.

[54] See Daniel Yergin, The Prize: The Epic Quest for Oil, Money and Power (London: Simon and Schuster, 1991).

[55] “Resource Development at the Caspian Sea Region,” US Department of Energy, 1 August 2000 (2 August 2000).

[56] Jan Adams, "Pipelines and Pipedreams," Problems of Post-Communism 5 (1998), 26.

[57] Hasan Kuliev, “Myths and Realities: Oil Strategy of Azerbaijan,” Central Asia and Caucasus, No. 1, 2000. < http://www.ca-c.org/journal/eng01_2000/12.kuliev.shtml> (15.05.2000).

[58] Ibid.

[59] “Oil Drums Calling.” The Economist (7 February 1998): 5.

[60] Ian Bremmer, “Oil Politics.” World Policy Journal 1 (1998): 27.

[61] Olcott, p. 94.

[62] Adams, p. 32.

[63] US Energy Information Administration, “Caspian Sea Region”, Country Analysis Briefs, June 2000, (05 July 2000).

[64] Ibid.

[65] Ibid.

[66] “Russia not blocking Caspian oil deal - Azeri leader,” Reuters Business Briefing, 8 June 1994.

[67] “Russia Opposes Baku Position on Caspian Sea,” FBIS-SOV-95-095, 16 May 1995.

[68] “Moscow `Does Not Recognize' Division of Caspian Sea,” FBIS-SOV-95-246, 21 December 1995.

[69] “Ministers Cited on Caspian Sea Status,” FBIS-SOV-96-240, 7 December 1996.

[70] “Russia Opposes Baku Position on Caspian Sea,” FBIS-SOV-95-095, 16 May 1995.

[71] “Kazakhstan President Insists on Caspian Delimitation,” FBIS-SOV-98-131, 11 May 1998.

[72] “Velayati Calls Caspian Sea ''Common Heritage'' of Littoral States,” 23 October 1996, (3 July 2000).

[73] “Iran-Caspian Sea Iranian Proposal on Caspian Sea Legal Regime Conforms to International Law,” 28 October 1995, (4 July 2000).

[74] “Russia Says Oil-Rich Caspian Status Not Resolved,” Reuters Business Briefing, 01 February 1996.

[75] “Kazakhstan: Working Group To Determine Status of Caspian Sea,” FBIS-SOV-97-142, 22 May 1997.

[76] “Legal Status of the Caspian Sea,” APS Review, 06 July 1998.

[77] “The Caspian Rising as Its Health Deteriorates,” Iran News, 16 April 1995.

[78] In a report of the Azer Press, while commenting on the position of Azerbaijan as to the division of the Caspian Sea, it was stated that: “Azerbaijan refers to articles 5, 7, 8, 10 and 15 of UN Maritime Law Convention. It is claimed here that the sea can only be divided by the middle line, each point of which should be equally distanced from the nearest points of the coastlines.” This statement is wrongly understood by some researches as that Azerbaijan is defending the ‘sea’ position of the Caspian. However, the reference is made as to the regulations of the Law of the Sea Convention regarding the median line principle. “Ashkhabat Hopes for a Prompt Consensus on the Status of the Caspian,” Reuters Business Briefing, 20 July 1999.

[79] Iu. G. Barsegov, Kaspii v Mezhdunarodnom Prave i Mirovoi Politike (Moscow: 1998), 30-33.

[80] Scott Horton, “International Law Ownership of the Caspian Seabed,” CIS Law Notes, September 1998, (29 June 2000).

[81] Burcu Çevik, “The Status of the Caspian Sea: An Inquiry into the Issue of Delimitation” (Ph.D. diss. Middle East Technical University, 1998), 43.

[82] See Croissant and Croissant, 22, Gulnar Nugman, “The legal Status of the Caspian Sea,” Eurasian Studies, 13 (1998) 85, Yuri Fedorov, “Russia’s Policies toward Caspian Region Oil: Neo-Imperial or Pragmatic?” September 1996, (30 June 2000), U. T. Kasenov, “Kaspiiskaia Neft, Truboprovody i Mezhdunarodnaia Bezopastnost,” Kaspiiskaia Neft i Mezhdunarodnaia Bezopastnost’ (Moscow, 1996), 59.

[83] F, Kovalev, “Caspian Oil: Russian Interests,” International Affairs 3 (1997), 49. Mehdiyoun states that Russia accepts the Caspian as ‘a landlocked body of water’, in Mahdiyoun, 185. Also see Elbar Kerimov, “Mezhdunarodnoi Pravovoi Status Kaspiiskoe More,” (Ph.D. diss. St. Petersburg University, 1999), 23-28 and Witt Raczka, “A Sea or a Lake? The Caspian’s Long Odyssey,” Central Asian Survey 19 (2000), 209.

[84] “Shipping, Oil, ad Fishing Share in the Caspian,” Sanat-e Haml-o Naql, 158 (1996), 47-49, cited in Iran News.

[85] “25% of Russia’s Sewage Enters the Caspian Sea,” Hamshahri, 7 March 1995, 7, cited in Iran News.

[86] Realizing this fact, the officials of the littoral states have more inclined to discuss the legal regime of the Caspian Sea, postponing the disputes on how the legal status should be defined.

[87] Gorhmaz Askarov, “Border Games in the Caspian Sea: Newly Independent States vs. Russia and Iran Co.,” Caspian Crossroads Magazin 2 (1999) (28 January 2000).

[88] United Nations, Part 2 Article 15.

[89] See Uibopuu, 120 and V. Aleksandrov, “Caspian Oil: Blessing or Curse?,” International Affairs 6 (1997): 76.

[90] Memedov, 145-147.

[91] Ibid.

The Gulf of Fonseca is enclosed by El Salvador, Honduras and Nicaragua. The ICJ declared that the waters of the Gulf are shared by the three coastal countries as a condominium and each government has the right to declare 3-mile strip of territorial waters along their coasts.

[92] Brice Clagett, “Ownership of Seabed and Subsoil Resources in the Caspian Sea under the Rules of International Law,” Caspian Crossroads Magazine 3 (1995) (28 January 2000).

[93]Referred to the Caspian Sea as such many times by Russian Foreign Minister Karasin, also in: “Russia Stakes Claim to Caspian Sea Oil Resources,” Reuters Business Briefing, 2 June 1994.

[94] Referred to the Caspian Sea as such by Russian Deputy Minister for Fuel and Energy Vadim Dvurechensky in: “Russian Minister Calls for Caspian Sea Oil Talks,” Reuters Business Briefing, 24 March 1995.

[95] Referred to the Caspian Sea as such in the Russian letter to the UN on 8 October 1994. “Moscow Warns Against Unilateral Actions in Caspian,” FBIS-SOV-94-196, 8 October 1994.

[96] The disagreement between the Russian Foreign Ministry and the energy lobby was most apparent in their evaluations of the ‘Contract of the Century’ of 20 September 1994, when the Foreign Ministry declared the contract unacceptable and added that all the unilateral acts concerning the Caspian Sea are unviable and ‘Russia reserves the right to take necessary measures to restore the broken order and all the responsibility in these cases including the material damage will rest on those taking unilateral actions’. However the representatives of the Oil and Gas Ministry and LUKoil were celebrating the ‘Contract of the Century’ (the agreement between the Azerbaijan Republic and the international oil companies over developing three oil fields which were located in the Azerbaijani sector of the Caspian Sea) and the then Russian premier Viktor Chernomyrdin stated that Russia had no problem with the Azerbaijani activities in the Caspian. “Aliyev-Russia not Concerned with by Azerbaijan’s Oil Deal with Britain,” Reuters Business Briefing, 11 June 1994.

It is now observed that the energy lobby has won a victory against the neo-imperial minded bureaucracy as Russia officially recognized the division of the seabed. See Fedorov, supra 82.

For a detailed analysis of the conflict between the Russian Foreign Ministry and the energy lobby see Havva Kök, “The Effects of the Caspian Oil Pipeline Issue on Russian Foreign Policy,” (Ph.D. diss. The University of Leeds, October 1999).

[97] “Constitution of Azerbaijan,” Republic of Azerbaijan, 26 February 2000 (20 July 2000).

[98] “Turkmen-Azeri Oilfield Dispute Remains Unresolved,” Reuters Business Briefing, 8 August 1997.

In spite of the insistent Azerbaijani statements on the ‘lake’ status of the Caspian, unfortunately, it has to be noted that several researchers dealing with the issue refer to the Azerbaijani approach as accepting the Caspian as a ‘sea’.

[99] Gizzatov, 56, Mehdiyoun, 183, Mikhail Alexandrov, “Russian Kazakh Contradictions on the Caspian Legal Status,” Russian Eurasian Bulletin, February 1998 (28 May 2000).

[100] “Ministers Cited on Caspian Sea Status,” FBIS-SOV-96-240, 7 December 1996.

[101] Michael Croissant and Cynthia Croissant, “The Caspian Sea Status Dispute: Azerbaijani Perspectives,” Caucasus Regional Studies 1 (1998) (19 February 1999).

[102] Khoshbakht [Hosbaht] Yusufzâde, “The Status of the Caspian,” Azerbaijan International V.2 N.4 (Winter 1994) (3 December 1999).

[103] “Ministry Official Views Caspian Sea Status,” FBIS-SOV-95-098, 20 May 1995, “Russia Develops Joint Statement on Development of Caspian Sea,” Reuters Business Briefing, 28 August 1995.

[104] “US Interests in the Caspian Region: Hearing of the International Economic Policy, Export and Trade Promotion Subcommittee of the Senate Foreign Relations Committee,” Federal News Service, 23 October 1997.

[105] Ibid.

[106] “Press Conference with Ambassador Richard Morningstar”, Federal News Service, 25 February 1999.

[107] In the same commentary of ‘Iran News National Desk’, the Caspian Sea at first called as ‘the world’s largest inland sea’, then stated that the Sea could be defined as a ’lake’ in search for its legal status, and lastly it is stated that Tehran prefers to maintain the status of the Caspian as a ‘sea’. “The Caspian Rising Its Health Deteriorates,” Iran News, 16 April 1995 (4 July 2000).

[108] “Iran-Caspian Sea Iranian Proposal on Caspian Sea Legal Regime Conforms to International Law,” 28 October 1995, (4 July 2000).

[109] “Velayati Calls Caspian Sea ''Common Heritage'' of Littoral States,” 23 October 1996, (3 July 2000).

[110] However, the 1982 Convention can be applied on the inland seas, as are defined by the 1982 Convention.

[111] Abbas Maliki, “Economic Development of the Caspian Sea Region,” Iran News, 25 June 1995 (5 July 2000).

[112] “Iran Complains to United Nations over Azerbaijan’s Use of Caspian Sea,” Reuters Business Briefing, 17 November 1997.

[113] “An Interview with Deputy Foreign Minister,” Ettelaat, 2 June 1998 (5 July 2000).

[114] Dabiri evaluates the arguments claiming a borderline between Astara and Hasankuli as ‘amateurish’. Dabiri, 32.

[115] Jamshid Momtaz, “Iran’s View on Caspian Administration,” Iran Today 21 (1998): 47-48 (5 July 2000).

[116] Clagett.

[117] “Foreign Ministry Official Comments on Caspian Sea Status,” Reuters Business Briefing, 30 July 2000.

[118] “Iranian President Opens Regional Summit- Urges Defining Caspian’s Legal Status,” Reuters Business Briefing, 10 June 2000.

[119] The Kazakh premier, Sergey Tereshchenko, told Interfax that his cabinet had not yet prepared a plan to develop oil and gas deposits on the Caspian shelf. “Premiers Agree to Set up Council for Cooperation in Caspian Region,” Reuters Business Briefing, 19 October 1993.

[120] Alexandrov.

[121] Gizzatov, 57.

[122] “UN- Speakers Criticize Coercive, Unilateral Measures Taken by Certain States as Legal Committee Concludes Debate on Law Decade,” Reuters Business Briefing, 20 October 1997.

[123] Çevik, 53-54.

[124] Gizzatov, 56-57.

[125] “Ministers Cited on Caspian Sea Status,” FBIS-SOV-96-240, 7 December 1996

[126] Kerimov, 33.

[127] Yolbars Kepbanov, “The New Legal Status of the Caspian Sea is the Basis of Regional Cooperation and Stability,” Perceptions V.2 N.4 (1998): 9 and “Russian-Turkmen Communiqué Hails ‘Strategic Partnership’,” Reuters Business Briefing, 9 August 1997.

[128] “Iran and Turkmenistan Issue Joint Communiqué at the End of Rafsanjani’s Visit,” Reuters Business Briefing, 26 October 1993.

[129] “Commodities and Agriculture: Turkmenistan Awards Tenders to Western Companies,” Reuters Business Briefing, 18 November 1993.

[130] Yusufzâde, “The Status of the Caspian.”

[131] “Turkmenistan Lays Claim to Disputed Caspian Oil,” Reuters Business Briefing, 23 January 1997.

[132] Yusufzâde, “The Status of the Caspian.”

[133] Ibid.

[134] “Baku Proposes Talks With Turkmenistan to Settle Caspian Dispute,” Reuters Business Briefing, 31 January 1997.

[135] “Turkmen Oil Tender Hinges on End to Caspian Row,” Reuters Business Briefing, 12 March 1997.

[136] “Russia’s LUKOil seeks New Azeri Oil and Gas Deal,” Reuters Business Briefing, 5 April 1994.

[137] “Caspian Sea Oil Field Dispute,” IBRU Boundary and Security Bulletin 3 (1997):15.

[138] “Turkmenistan Protests at Russian Azeri Oil Agreement,” Reuters Business Briefing, 08 July 1997.

[139] Ibid.

[140] “Niyazov Announces Russian Withdrawal From Oil Agreement,” FBIS-SOV-97-219, 7 August 1997. [141] “Turkmenistan’s Opens for Bids on the Exploration of the Caspian Sea Shelf,” Embassy of Turkmenistan, August 1997 (20 June 2000).

[142] “Mobil Has Another Important Oil Interest in Turkmenistan and Azerbaijan,” Game Scenario (20 June 2000).

[143] “Mobil, Cairn and Texuna Loose Exclusive Rights in Turkmenistan,” Azerbaijan International V.4 N.5 (March 17, 1999) (3 December 1999).

Turkmenistan opened a new tender in September 1999, but this time did not include the disputed oil fields.

[144] “Turkmens, Azeris Agree To Median Line Division of Caspian,” FBIS-SOV-98-037, 6 February 1998. [145] “US Envoy Presents Scheme for Dividing Caspian to Niyazov,” Reuters Business Briefing, 2 June 1999.

[146] “Azerbaijan Wants Caspian Boundary Issue Settled,” Reuters Business Briefing, 24 August 1999.

[147] Robert Cutler, “Azerbaijan vs. Turkmenistan: The Caspian Offshore Oil and Gas Conflict,” Central Asia-Caucasia Analyst 19 January 2000 (25 May 2000).

[148] “Turkmenistan May Develop Caspian Oil Field with Iran,” Azerbaijan International V.5 N.7 (27 April 200) (15 June 2000).

[149] Khoshbakht [Hosbaht] Yusufzâde, “The Development of the Oil and Gas Industry in Azerbaijan,” Azerbaijan International V.4 N.2 (Summer 1996) (11 June 2000).

The US at that time was producing 1 million ton per year.

[150] Yusufzâde, “The Development of the Oil and Gas Industry in Azerbaijan.”

[151] Yusufzâde, “The Status of the Caspian.”

[152] Yagmur Kochumov [Koçumov], “Issues of International Law and Politics in the Caspian in the Context of the Turkmenistan-Azerbaijan Discussion and Fuel Transport,” Caspian Crossroads Magazine V.4 I.2 (Winter 1999)

[153] “SOCAR’s Official Statement by Natig Aliyev President of SOCAR,” Azerbaijan International V.5 N.3 (Autumn 1997) (10 June 2000)

[154] Kepbanov, 15.

[155] Yusufzâde, “The Status of the Caspian.”

[156] “Foreign Minister Reacts to Turkmen Concerns over Oil Deal,” FBIS-SOV-97-189, 8 Jul 1997.

[157] “Baku Regrets Withdrawal of Russian Oil Companies From Deal,” FBIS-SOV-97-219, 7 August 1997.

[158] “Aliyev Not Worried by Russian Withdrawal from Oil Field,” FBIS-SOV-97-220, 8 August 1997.

[159] “Azeri President’s Son Proposes Joint Exploration of Disputed Field,” Reuters Business Briefing, 25 August 1999.

[160] Kochumov.

[161] “Iran agrees With Russian Plan to Share the Disputed Oil Fields in the Caspian,” Reuters Business Briefing, 4 August 2000.

[162] United Nations.

[163] However it should be noted that the legal history for the disputed oil fields is a bit vague. Both sides have well-supported arguments.

[164] Çerag is 132 km away from the Turkmen coast while 148 km from Azerbaijan coast. Azeri is 118 km off the Turkmen coast and 160 km off Azerbaijan coast. See Izvestiia, 11 April 1998, quoted in Raczka, 221.

[165] Yusufzâde, “The Status of the Caspian.”

[166] “Aliyev Nemtsov Sign accord on Caspian Oil Field Exploration,” FBIS-SOV-97-185, 4 July 1997.

[167] “The Last Proposals of the USA Put Kyapaz in the Turkmen Sector,” Reuters Business Briefing, 23 August 1999.

[168] “The Last Proposals of the USA Put Kyapaz in the Turkmen Sector,” Reuters Business Briefing, 23 August 1999.

[169] Raczka, 195.

[170] Dabiri, 32.

[171] Khoshbakht [Hosbaht] Yusufzâde, “Azerbaijan and Iran,” Azerbaijan International V.6 N.1 (Spring 1998) (20 June 2000).

[172] “Iranian Supreme Leader Reportedly Accuses Azerbaijan of Claims on Caspian,” Reuters Business Briefing, 26 July 2000.

[173] This bibliography is limited to materials which are cited in the footnotes.