Legal issues of the delimitation of the Caspian as an important element of the future international legal status
The legal issues of delimitation of the Caspian with a view to create the state borders between the new subjects of international law are in the center of the successful negotiation of the future legal status and will be one of the main elements of such a legal regime.
Critical situation with the border issues between the new actors were a result of the lack of the collectively legalized border. In combination with the rich resource base of the water basin, such situation inevitably led to legal and political conflicts between parties, as every side was concerned with the stabilization of its own economy. It has to be pointed out that up until now there is no common decision on the borders between all of the five littoral states.
To grasp the gravity of the issues of delimitation on the Caspian, it has to be taken into account that after the dissolution of the Soviet Union new states have struggled with the problems of transformation of the administrative borders into international frontiers. That transformation resulted in new geopolitical and geoeconomical consequences on the scale largely dependent on the will of the states to cooperate on bilateral or multilateral levels. Generally the clearly defined borders would play important geopolitical role in the Caspian, dividing the zones of national sovereignties and serving as a security beacons in terms of migration and trade. With that in mind, the states are very aware that zones adjacent to the borders carry not only legal, but also a geopolitical status.
The determination of the international borders (delineation) is the process that presupposes two operations that differ both technically and legally. The first one is delimitation - which is the principal agreement on the elements of the border status. The second is demarcation - which is a series of physical operations that serve to fixate the border on its place. At the same time the process of delineation can take up decades, just as it is happening with Caspian ‘sea’. The single reason for the clear delineation of the resources and limits of sovereign power of states is to prevent future conflicts between such states and to ensure peaceful cooperation on the borders.
One of the legal issues is the lack of the historical basis for the delineation. USSR was quite content with the de facto control over most of the Caspian and with total naval supremacy. For that reason Soviet Union did not bother to codify any kind of legal treaty with Iran on exact territorial borders on the Caspian that would include changes of domestic legislation of both states. It has to be pointed out though, that Soviet republics that were a part of USSR have been autonomous states in a very narrow sense. Their extremely limited sovereignty did not mean the full-scale demarcation and delimitation of borders, however the ‘intra-union’ delineation was formally present.
In 1970 Ministry of Oil and Gas of USSR have divided the seabed of the Caspian on Kazakh, Azerbaijani, Russian and Turkmen sectors using the principle of equidistance. Thus there was an opportunity to use previous internal Soviet arrangement in negotiation of the new status and delimitation of the Caspian. It seems that littoral states have never agreed on that and as a result scholars did not pay much attention to the principle of uti possidetis juris in relation to the situation with the Caspian ‘sea’. However, this principle is of importance due to the fact that international law has a rich history and customary practice of use of such principle in connection to the delineation of borders and so needs and additional research regarding its applicability to the Caspian dilemma.
Nonetheless, it seems that littoral states believe that the problem of delimitation of the Caspian as well as the use of its waters, seabed and subsoil, can finally be solved after there will be a common agreement on the treaty that would bind all the Caspian states. In its turn such treaty can lead to the elimination of all the previously reached agreements and resolutions.
With that in mind it has to be said that while multilateral treaty is still left undecided, the bilateral arrangements are in place starting from late 1990s. In 1998 Russia and Kazakhstan have signed a bilateral agreement on delimitation of the seabed of northern part of the Caspian. Later Azerbaijan has joined in the same arrangement in 2001. Kazakhstan and Russia have separated their jurisdiction based on the altered and negotiated median line that they found appropriate. Moreover, that arrangement have determined that waters and general activity there (shipping, limited fishing system and environmental practices) will remain in common sovereignty. The agreement has also determined the altered median line as one based on the equidistance from negotiated baselines, with exception of several parts that ignore equidistance as a principle due to the islands, geological structures and other issues or geological ex- penditures. Similar arrangements were used in delimitation of the seabed between Russia and Azerbaijan.
When it comes to Azerbaijan and Kazakhstan they were able to come to an agreement in 2001. They have also signed an agreement on delimitation of the Caspian seabed that stated that the seabed and subsoil of the Caspian ‘sea’ will be delineated between the parties by the median line based on the equidistance of baselines, islands and coast. Specific coordinates have also been determined. The final arrangement between all of this three littoral states have been the agreement on the junction point of the lines that delimit the seabed and subsoil of the Caspian based on bilateral agreements. It was signed in 2003 in Kazakhstan with the clear definition of the coordinates of the junction (42° 33,6’ North 49° 53,3’ East). According to the arrangement the shares of the Caspian were divided roughly as follows: Russia - 19%, Kazakhstan - 29%, Azerbaijan - 18-19%.
It has to be pointed out that this very restricted delimitation of the seabed of the Caspian that took place between only three of the littoral states is far from the adequate international legal status for the Caspian. These delimitation lines are hardly state borders, due to the fact that waters and their navigation as well as many other issues were left unresolved. Not to mention the fact that only northern part of the Caspian was involved.
-  Ph. Pondaven (1972), p. 59.
-  C.P.R. Romano, The Caspian Sea Dispute: The Role of Internationa! Law, University of Dundee, 2000, p. 6,http://bit.ly/1b77GUr.
-  Александра Блохина, К вопросу о правовом статусе Каспийского бассейна, «Коментарии», ИА-Центр, 2006, http://bit.ly/1fwfkdZ.
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