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The Caspian Sea Convention: International Law Meets International Relations

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About The Author

Niranjan Jose (Guest Contributor)

Niranjan Jose is a third-year law student pursuing BBA LLB from National Law University Odisha (NLUO). He is a national level debater with a keen interest in International Relations. At law school, Jose has exposed himself to a variety of subjects such as contemporary international politics, international monetary economics, and international trade law. He has presented papers at the Fifth International Conference on Social Sciences 2018 and Seventh International Conference on Asian Studies 2019.

The economist asks: "How does this policy affect the wealth of society, or a segment of it?"

The lawyer asks: "Is this policy in accord with the rules of law?"

The moralist asks: "Is this policy in accord with moral principles?"

And the political realist asks: "How does this policy affect the power of the nation?”

Hans J. Morgenthau

Teaching and commentary on international law often focuses on big ideas – human rights, supranational government, and new frontiers. Often neglected are the many bilateral and multilateral treaties between nations dealing with mundane issues such as borders, trade, and resource extraction. These treaties are shaped not so much by heady ideas as by geopolitics and national interest, and are often utilized as tools of a nation’s foreign policy. The student of international law who neglects international relations may find themselves lacking explanation, context, and a vital lens for examining the impact of international legal instruments.

The Convention on the Legal Status of the Caspian Sea, signed in August 2018 between five nations (Russia, Iran, Kazakhstan, Turkmenistan, and Azerbaijan) is a good recent example of this. The Caspian Sea has always been the intersection point of the geopolitical and economic interests of many leading states, as well as various ethnic and religious groups. Recently it has become one of the key regions of global politics.

Because of its natural resources, together with the Persian/Arabian Gulf, the Caspian forms the so-called “strategic energy ellipse”, in which about 70% of the world’s oil reserves and 40% of natural gas are concentrated. For the Caspian littoral countries this is a geostrategic advantage and one of the most important areas of cooperation. Russia, which sees the region as its geopolitical stomping ground, has set aside objections to a Turkmen pipeline and other demands in exchange for closer co-operation with the former Soviet states (Kazakhstan, Turkmenistan, and Azerbaijan) and security guarantees that assert its military dominance over the sea, amid attempts by China and the US to build ties in the region. Moscow’s strategy appears to be to make itself the fundamental arbiter in settling clashes while developing provincial security and monetary plans for the region.

History of the Caspian Sea - or is it the Caspian Lake?

As the world's biggest landlocked water body, the Caspian is wealthy in hydrocarbon reserves and acts as an obstruction between Turkmenistan's huge natural gas deposits and the power deficient Europe. It was previously partitioned between the Soviet Union and Iran. However,  the breakdown of the USSR in 1991 made four successor states with Caspian shores — Russia, Kazakhstan, Azerbaijan, and Turkmenistan — and tossed the status of the body into a mire of political wrangling. Whether the sea is an enormous lake was at the heart of the talks. International treaties govern seas and oceans and make clear how far sovereignty and economic and military zones extend from coastlines. Moscow and Tehran argued that the same should apply to the Caspian. Typically, a body of water surrounded by land is called a lake, but the immense size of the Caspian, stretching over 371,000 square metres and holding nearly 78,000 cubic kilometres of water, would seem to exceed reasonable definitions of the term lake. The next-largest lake, Lake Superior, is less than a quarter of the size of the Caspian at 82,100 square metres.

The Caspian is also technically not a sea, as it has no direct access to the world ocean (defined by international law as “sea”). And thus, confusion arose and lingered for years, with economic, military and political implications. Characterizing the Caspian as a lake would have required separating it equally between the five nations, while seas are split proportionately to the lengths of their coastlines.

The negotiations for the Convention on the Legal Status of the Caspian Sea went on for over 20 years before being finalized on 12 August 2018 by the heads of the five Caspian states at a summit in Kazakhstan. Between 1996 and 2018 51 gatherings between the nations were held, with special working groups and coordinated efforts between the foreign ministers. Four presidential summits were held: in 2002 in Ashgabat, in 2007 in Tehran, in 2010 in Baku and 2014 in Astrakhan. The 'Convention on the Legal Status of the Caspian Sea' has not yet settled all the issues; the most significant issue – the delimitation of the resource-rich seabed – has not yet been agreed. However, the settlement speaks to as a significant advance for the territorial security and monetary development of the region.

Per the Convention, the Caspian now has the status of an "intercontinental water body." According to the Carnegie Moscow Center, a leading think tank in the region:

The main thing is that the conceptual approach to determining the Caspian’s status has changed. The decision to consider the Caspian Sea neither a sea nor a lake, in legal terms, is revolutionary. Not classifying it as a sea means the UN Convention on the Law of the Sea does not apply to the Caspian, and made it possible to extend the width of territorial waters from 12 to 15 nautical miles from the coast, and to establish a 10-mile fishing zone, as opposed to an exclusive economic zone.

That has been the central question in demarcating the sea - Russia and Iran initially characterized it as a lake until Russia needed it for oil and gas exploration off its coa

The Trans-Caspian Pipeline

This confusion over the Caspian’s status previously forestalled Azerbaijan, Turkmenistan, and Kazakhstan from doing anything in the waters past their UNCLOS-affirmed limits. Specifically, it prevented them from developing a trans-Caspian pipeline that would connect with pipelines bringing gas and oil to Europe – “pipeline politics” are a key influence in the region. The 2018 settlement could lead to significant developments in important energy ventures, including the much-hyped Trans-Caspian gas pipeline (TCP), which could transport approximately 30 billion cubic metres of Turkmen gas every year over the Caspian seabed to Azerbaijan and afterward into Europe's gas pipeline systems.

The Convention is silent, however, on the important question of how subsoil resources within the Caspian Sea are to be divided. Article 8(1) instead provides that:

Delimitation of the Caspian Sea seabed and subsoil into sectors shall be effected by agreement between States with adjacent and opposite coasts, with due regard to the generally recognized principles and norms of international law, to enable those States to exercise their sovereign rights to the subsoil exploitation and other legitimate economic activities related to the development of resources of the seabed and subsoil.

This means that some of the long-standing conflicts over the Caspian Sea will remain going forward. For instance, two key disagreements about the ownership of oil and gas reserves - the Iran-Azeri disagreement about the Araz-Alov-Sharg field and the Azeri-Turkmen disagreement about the Serdar/Kapaz field - may hinder the advancement of the Trans-Caspian Pipeline.

Russia has also been a long-time barrier to the TCP, as for Moscow, the rise of Turkmenistan as a dependable gas provider for the EU market would represent a danger to Gazprom's predominant situation in Europe. In 2016, Gazprom declared that it will look to maintain 30% of the European market in the medium and long haul, and the Kremlin may utilize its political might to stop the venture that would imperil this expressed goal.[1] On the other hand, some commentators feel that Russia’s energy strategy has shifted, as Turkmen supplies are now a source of competition for American liquefied gas as a result of the shale gas boom in the US. This would explain why Russia appears to have backed down – at least for now – on the TCP.

Russia and Iran’s objective: a NATO-free Caspian?

The agreement states that only the signatories are allowed a military presence on the sea. Essentially, this blocks any potential NATO presence in the region, a key concern for both Russia and Iran. Russia is by far the most powerful naval power of the five and has used warships in the Caspian to launch missile attacks on Syria, around 600km away. Moscow also wants to maintain close ties with Tehran as part of its ambitions to become a major player in the Middle East, given their shared support for Syria’s Bashar al-Assad and plans by Russian energy companies to invest in Iran’s oil and gas sector.

Under 1921 and 1940 Iranian-Soviet treaties, Iran had a 50 percent portion of the Caspian Sea, although practically the nation was unable to control that much of the Caspian militarily. Since 1996, Iran has been consistent with its demand for a 20 percent share. To drive Iran to surrender a further 9 percent under the most recent agreement, Russia utilized Iran's monetary and political issues to pressurize them. For Iran to endure and not be completely marginalized, particularly after Donald J. Trump withdrew from the Iran nuclear deal earlier in 2018 (followed by increased tensions and sanctions from the US), the nation had to concede to Russia and acknowledge a mere 11 percent portion of the Caspian Sea. Iran's refusal could have led to Russia driving Iranian forces away from Syria – an undesirable situation for Iran as this would mean a reduced foothold in the troubled region.

Since the 1979 revolution and the subsequent regime change to a theocracy, the fundamental objective of Iran's regional and global policy has been the spread of the Islamic Revolution and foreign policy independence – “neither East nor West”. However, geopolitical shifts in the last few decades and increasing isolation from the West appear to have shifted Iran further towards strategic relationships with the East: China, India, and their old rival Russia. By compromising over the Caspian and easing relations with Moscow, Russia permitted Iran to remain in Syria and assume a vital role in the war-torn nation, allowing Iran to build influence in the region, where it is currently competing with Western proxies and regional rival Saudi Arabia. An important lesson here is that the negotiation of international treaties sometimes has very little to do with the subject matter of the treaty itself – Iran’s concessions in the Convention have little to do with the Caspian, and more to do with its conflicts in Syria and its struggles to remain independent of larger powers.

What is really being resolved in Caspian energy negotiations is the nature of the Caspian states and their outward orientation. The Convention on the Legal Status of the Caspian Sea is just the first of a series of treaties that states parties will need to agree to resolve the region’s many issues. Russia is making its bid to be the arbiter of disputes in the Black Sea basin (as opposed to the US or China), and appears closer than ever to achieving its goal of becoming the dominant power in the regi

Provision for Environmental Protection

The environmental protection of the Caspian Sea has been on the agenda for quite some time. In 2003, each of the five states signed the Framework Convention on the Protection of the Marine Environment of the Caspian Sea (the “Tehran Convention”) and under this Framework Convention subsequent protocols were adopted, including the 2011 Aktau Protocol on oil pollution and the 2014 Ashgabat Protocol on biological diversity. These instruments focus on the future improvement of the Caspian Sea and specifically the extraction of its hydrocarbon assets. On 20 July 2018, the five states extended the protocols with a Protocol on Environmental Impact Assessment in a Transboundary Context that includes critical commitments and procedural necessities for assessing the impacts of proposals on the marine and land conditions of the sea, including the exchange of information between the littoral states.

The Convention on the Legal Status of the Caspian Sea, meanwhile, requires the contracting States to take essential measures to guarantee environmental protection and to disallow anything that harms the ecology of the Caspian Sea. Article 14 of the Convention states that “the parties may lay trunk submarine pipelines on the bed of the Caspian Sea” (Art 14(2)) – these “trunk” lines are required for the transport of oil and natural gas. The routes of these pipelines are determined “by agreement with the Party the seabed sector of which is to be crossed by the cable or pipeline” (Art 14(3)). Article 14(3) effectively means that a pipeline course requires only the agreement of the nations whose sectors the pipeline crosses through. This speaks to progress from the past state of affairs, settling the question of which nations had approval rights to any submarine pipelines. However, the Convention is quiet on how exactly the parties are to give their approval to the pipeline’s course.

Meanwhile, Article 15 of the Convention requires the littoral states to “protect and preserve the ecological system of the Caspian Sea” with all necessary measures, and Art 14(2) stipulates that the laying of pipelines by states hinges on “the condition that their projects comply with environmental standards and requirements”. Russia and Iran have utilized concerns over ecological stability to stop the development of the TCP for more than twenty years and the wording of the agreement appears to be ambiguous about which " standards and requirements" apply. This may mean that each of the five Caspian littoral states will be able to weigh in on questions of the environmental impact of transboundary pipeline projects - which could become a new instrument some regional players might use to try to delay the construction of the TCP, effectively returning the dispute to where it started.

Further, the execution of those commitments under the Convention promises to secure the biological framework and ecological stability of the Caspian Sea, which may have ramifications for existing and future ventures in the Caspian Sea including fishing, submarine links, hydrocarbon extraction, and pipeline ventures. Further exploitation of the Caspian Sea has long been an environmental concern, both on a local scale from pollution and overfishing, and on a global scale, as projects like the TCP promise a ready supply of oil and gas at a time when environmentalists are stressing the importance of reducing fossil fuel use. By facilitating greater economic co-operation between the littoral states, the Convention brings these concerns to the forefront, despite its assurances about ecological protection.

Conclusion

Per the Vienna Convention on the Law of Treaties, a treaty in international law means “an international agreement concluded between States in written form and governed by international law”. By this definition the Convention on the Legal Status of the Caspian Sea, which per its preamble is “based on the principles and norms of the Charter of the United Nations and international law” is just as much an instrument of international law as the Universal Declaration of Human Rights, or the Vienna Convention itself.

The Convention makes little mention of rights or heady ideals. Instead, it deals with the carving up of a region for geopolitical and economic reasons. There is little there to excite those with a passion for human rights – indeed, several of the signatories are among the world’s most repressive regimes.

However, by confirming Russian military dominance in the region (at a time when tensions between the West and both Russia and Iran are ramping up) and paving the way for the Trans-Caspian Pipeline into Europe, the Convention and its successor treaties may have more impact on the planet – and the lives of ordinary people across the world – than any rights document. The student of international law who neglects this aspect of the field – geopolitics, economics, and international relations – in favour of the purely legal and philosophical will miss out on vital context, and is ultimately leaving one eye blind.

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Tagged: Environmental Law, International Law

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