Historical background of international legal status of Caspian ‘sea’
The history of the development of the international legal status of the Caspian has deep roots in ancient times and the historical references to this water basin can be found as early as the works of Herodotus, Aristotle, Eratosthenes, Hecataeus of Miletus and others.
The later historical works that deal closely with the region date to the time when this area was of interest to the growing Arabic Caliphate in VIII-XI centuries A.D. It has to be pointed out though, that it is known that these territories were important centers of civilization long before the emergence of Christianity in Russia or Islam on the south of the Caspian. Nonetheless, the sources that have lasted until our days indicate that southern parts of the Caspian have been conquered by the Abbasid’s dynasty in 760-761 A.D., despite the fact that they were not able to fully suppress the Zoroastrian small kingdoms in this region until the IX century A.D. From that point on, the influence of ‘Persia’ in this region has not seen major changes up until as late as the year of 1722. Azerbaijani Safavid dynasty (1501-1722), for example, has been very active in the region of the Caspian spreading the Shia Islam among the populations of the southern part of that region, strengthening their own power in the process.
Moreover Russians have also been very interested in the region since IX century A.D. They have been sending war parties to the Caspian region all throughout X-XIII A.D. centuries until the invasions of the Mongolians. After that, Russians started to come back and show interest to the region once more only in XVI century A.D., trying to establish control and supremacy here. Throughout XVI-XVIII centuries Russian navy have raided Caspian ‘sea’, getting into the open conflict with Persia. Russians have captured and fully occupied the Caspian ‘sea’ after the famous war against Persia waged by the Russian tsar Peter the Great in 1722-1723. Struggle for the Caspian region, nonetheless, have spanned the following centuries as well. In 1828 Russia have captured all of the Northern Azerbaijan and in the second part of XIX century Turkmenistan as well. After the World War II Russia (Soviet Union at the time) even had a temporary control over Northern Iran, but failed to make it permanent. Thus, by the time of creation of the Soviet Union, it had practically full control over Caspian ‘sea’.
The interesting part here was treaty law that has been used to legitimize the territorial claims that Russian Empire have extended to the Caspian region. For example, the Treaty of Rasht of 1732 have granted property to Russian Empire over certain territories captured from Persia, solidified freedom of trade and navigation for Russia on the Caspian ‘sea’ as well as in Araz and Kura rivers. Further conquests of Russian Empire on Persian territories were solidified in Treaty of Gulistan of 1813 and later in Treaty of Turkmenchay of 1828. In accordance with article 8 of the later treaty Persia was allowed civil and trade navigation on the Caspian, however it was banned from having a military navy there. These treaties have defined first elements of certain legal status of the Caspian. They have been in force up until the Russian-Persian Treaty of Friendship of 1921.
The Russian-Persian Treaty of 1921 is one of the core basic elements of the treaty law that is now studied by the international lawyers as a historical basis to determine the elements of the future possible international legal status for Caspian ‘sea’. It has to be pointed out that this treaty was basically a background for future foreign policy of new communist Russia towards Iran. For Iran it was a direction that was taken both by shah and Islamic regimes in dealing with Soviet Union up until its dissolution
The analysis of the treaty is very rare and scarce though, taking into the fact that by definition Soviet Union and Iran have basically ignored the outside interest to the Caspian region while concluding this treaty, setting up a very closed and secluded (colonial maybe) regime of control over the water basin, where Iran was willfully discriminated by Russia in exchange for the ‘protectorate’ extended by the Russian regional domination. The conditions that led to this treaty have to be also taken into account.
After the Revolution of 1917, Russian newly found communist regime have taken steps to regain the control over the former territories of Russian Empire. Central Asia and Azerbaijan were practically re-occupied by 1920 and Russians were quite determined to push out the foreign naval presence from the Caspian. They have negotiated as much with Iran, solidifying the agreement that in the region of Caspian basin there will be no more foreign presence, whereas Iran was promised the guarantees that it will not be occupied by Russia.
The treaty itself is of particular interest. The Russian-Persian Treaty of Friendship has first of all in the article 1 abolished all the previous treaties that tsar regime had with Persia. Equality (though formal) was indicated by the treaty as the base of the bilateral relations. In article 3 the parties to the treaty have vowed to respect borders between Russia and Persia that have been established by the special commission as early as in 1881, however without identifying the borders on the Caspian ‘sea’. In accordance with article 8 of the 1921 treaty the consular jurisdiction was also abolished. Thus, Russia has denounced any economical privileges it has acquired by the use of military force including the rights to the bonds bought by the tsarist government in Persia.
Moreover, it is known that all the concessions on fishing before the treaty have been in exclusive ownership of Russians, however the treaty in article 14 have ended such a monopoly, allowing the Iranians the full rights on fishing equal to the Russian side. The shipping and naval security has also been addressed in the treaty. In article 11 Iran was allowed the equal rights to have ships on the Caspian as Russia: “...the two High Contracting Parties shall enjoy equal rights of free navigation on that [Caspian] Sea, under their own flags, as from the date of signing of the present Treaty”.
-  M.R. Djalili, “Mer Caspienne: perspectives iraniennes”, Cahiers d'etutes sur la Mediterranee orientale et lemonde turco-iranien, vol. 23, 1997, pp. 130-133.
-  R.Sardari, Un chapitre de I’histoire diplomatique de 1’Iran, These..., Paris, Maurice Laverque inprimfur, 1941,p. 32; ? .Ф.Бадирбейли, Отношение западно-европейских дипломатов к персидскому походу Петра I,«Известия АН Азербайджанской СС? . Серия: история, философия и право», Баку, 1979, no. 4, с. 44.
-  Alexander Mikaberidze, Treaty of Resht (1732), Conflict and Conquest in the Islamic World: A Historical Encyclopedia, ABC-CLIO, 2011, p. 346.
-  Text of the Treaty of Turkmenchay, 1828, http://www.hist.msu.ru/ER/Etext/FOREIGN/turkman.htm, 22 January 2014.
-  Б.Х.Парвизпур, Великий Октябрь и суверенитет Ирана, Тбилиси, ТГУ, 1984, с. 13-14.
-  S. Vinogradov, P. Wouters, “The Caspian Sea: Current Legal Problems”, Zeitschrift fur auslandisches offen-tliches. Rech und Volkerrecht, Heidelberg, 1995, pp. 607-608.
-  Text of the Russian-Persian Treaty of Friendship of 1921, http://bit.ly/1eRPErm, 22 January 2014.
-  Ibid.