By Kaveh L. Afrasiabi, Ph.D.
Abstract: This article explores the issue of the Caspian Sea's legal status or regime focusing (a) on the nature of relationship between the recent bilateral and trilateral agreements and the pre-existing accords signed by Iran and the Soviet Union in 1921 and 1940, and (b) the legal ramification of the proposed environmental convention for the Caspian Sea on the on-going quest among the littoral states for a new legal regime. From Iran's prism, certain modifications of the present Iranian approach to the question of Caspian legal status are called for and necessary in the light of the complex interrelationship between the old and the new accords.
Since early 1990s, the contested terrain of Caspian's legal status has preoccupied the policy-makers of the five littoral states, culminating in protracted negotiations and the ratification of certain bilateral and trilateral treaties among the so-called Northern Caspian states, i.e., Russia, Kazakhstan, and Azerbaijan. The validity of these agreements has been questioned by Iran and Turkmenistan, principally on the ground that the consent of every and all the littoral states is a sine qua non for any legal distribution of the Caspian's territorial water and its seabed resources. Thus, for example, Iran's Special Envoy For Caspian Affairs has recently stated: "Bilateral and trilateral agreements reached by some littoral states will only be legal if they are approved by every one of the five states."[i]
Behind Iran's steadfast opposition to these agreements is a two-fold argument that (a) these agreements will only "prolong"[ii] or "complicate"[iii] the process of adopting a comprehensive legal regime for the Caspian Sea, and (b) they are in violation of the only legal basis of any decisions on the Caspian, namely, the 1921 Iran-Soviet Union Friendship Accord and the Accord On Trade and Navigation signed by Iran and Soviet Union in March 1940.[iv] Insisting that these accords constitute the "existing legal regime of the Caspian Sea," Iran's official position is that any bilateral agreement "contrary" to them "has no credibility and the Islamic Republic of Iran will not recognize it."[v] This is in clear contrast to the official position of the Northern Caspian states which commonly view the bilateral agreements as "an integral part of the talks on the legal status of the Caspian Sea."[vi]
The conflicting interpretations of the bilateral (and trilateral) agreements notwithstanding, the purpose of this writing is to provide a framework based on international law from which to analyze and evaluate, as well as to deduce legal conclusions, respecting the connections between the recent and the old treaties. Are they contradictory, complementary, or supplementary?
The idea or suggestion of a complementary or supplementary relationship between the new and the old accords is championed by Russia's policy-makers who advocate a "stage approach" whereby incremental or "branch" agreements, e.g., on fishing, exploitation of natural resources, navigation, environment, and scientific research, would precede a comprehensive agreement on the status of the Caspian Sea.[vii] However, this runs contrary to the "package approach" of both Iran and Turkmenistan, although the latter has somewhat amended itself recently by its declared willingness to enter into bilateral talks with Azerbaijan and Kazakhstan on the issue of Caspian delimitation.[viii] Similarly, Iran and Azerbaijan have reportedly embarked on bilateral talks on the thorny issue of ownership of disputed oil fields in South Caspian.[ix] Meanwhile, at the latest (10th) meeting of the Caspian Working Group of the five littoral states in Moscow, Iran and Turkmenistan decided to set aside their misgivings and reservations about the proposed environmental convention and become signatory to it at a subsequent event in Tehran in November 2003.[x]
Without doubt, the diplomatic breakthrough on the Caspian environment represents a milestone in the hitherto-deadlocked negotiations pot marked with acrimony; on account of both the trans-boundary environmental issues plaguing the Caspian Sea as well as the potential side-effects of the draft Convention for the Protection of the Marine Environment of the Caspian Sea on the larger legal issue(s), the negotiating parties have seemingly drawn closer to each other at least conceptually, that is, in terms of viewing the Caspian Sea region as but a single zone in terms of shared environmental interests. It is conceivable that the good will generated by increased multilateral cooperation on the Sea's environment can have salutary influence on the overall issue of a new legal regime. This is so in part because the environmental convention calls for a regular "Conference of the Parties" (Section VI), which, if implemented, would further enhance the exchange of communication among the littoral states on their "common sea," indeed an important prerequisite for their future interactions.
But, while the positive connection between the environmental convention and a future multilateral convention on the Caspian's legal regime is relatively unambiguous, and one may even argue that it is rather self-evident, unfortunately the same cannot be said about the connection between the new and the old accords above-mentioned. An important, and exceedingly pertinent question particularly from the prism of Iran, is whether or not the conflicts between the two sets of treaties are resolvable?
A review of the recent bilateral and trilateral agreements between and among the Northern Caspian states, when put in the context of modern international treaty laws, leads us to several key conclusions. First, the idea or notion of a future multilateral agreement or convention is either explicitly or implicitly nested in these agreements. Case in point, the agreement between Russia and Kazakhstan on Caspian delimitation (Section V), explicitly defers any further agreements on the exploitation of the Caspian's natural resources to a future agreement on the Caspian Sea's legal status. This alone indicates that the signing parties to the bilateral and trilateral agreements do not themselves view these as final substitutes for a legal regime and, therefore, these agreements should be viewed as in the final analysis inconclusive. Second, this in turn raises the permanent status issue, namely, whether or not these agreements should be at best viewed as provisional agreements in view of the lingering absence of a new legal regime? What lends credence to this interpretation is, first and foremost, the self-limitation aspect or dimension of these agreements, mentioned above, which convey the understanding they are inadequate and must be eventually amended. Consequently, on an abstract legal level, these new agreements stand in a "figurative conflict" with a future comprehensive convention.
Third, these agreements do not have the force from (customary) international law, not only because of the fact that they are recent instruments, but also because the practice and opinio juris of only two or three states of the Caspian Sea region would not suffice.[xi] On the one hand, none of these agreements contain any "conflict clauses" which give priority to them over the previous, i.e., 1921 and 1940, accords, notwithstanding the Article 30 of the 1986 Vienna Convention of the Law of Treaties dealing with "Application of successive treaties relating to the same subject matter."[xii] The absence of any conflict clause is not surprising since there is neither any implied termination of the earlier treaties by the new treaties, nor do the latter include all the contracting parties to the earlier treaties, i.e., Iran, which would then allow the signatories to the bilateral agreements to invoke the lex posterior rule.[xiii] On the other hand, even if views as "transitional provisions," these bilateral agreements do not relieve their signatories, above all Russia, from their obligation to adhere to the terms of 1921 and 1940 agreements, notwithstanding Russia's declared compliance with the international contractual obligation of the Soviet Union.[xiv] Consequently, fourth, irrespective of the new treaties, Russia, perhaps more than the other three new Caspian states,[xv] remains wedded to its obligations and mutual rights governed by the 1921 and 1940 accords, in view of the Article 30(4) of the Vienna Convention which states:
"When the parties to the latter treaty do not include all the parties to the earlier one...as between a State party to both treaties and a state party only one of the treaties, the treaty to which both states are parties governs their mutual rights and obligations."
Hence, since Iran has refused to be a party to the new Caspian delimitation agreements and has branded them as injurious to its (national interests), the legal standing of these agreements have legitimately been questioned, from the prism of modern treaty laws speaking. Hypothetically, as an injured party, Iran may invoke the international responsibility of the "infringing" party (ies) in the light of the "integral obligation" of Russia and other Caspian states to the earlier treaty regime.
Following the insights from the Vienna Convention and other sources of public international law, modification of a legal regime is permitted as long as it "does not affect the enjoyment by other parties."[xvi] Article 41 of the Vienna Convention, titled "Agreements to modify multilateral treaties between certain of the parties only," specifies the conditions that must be met, including the following: "(2) does not affect the enjoyment by the other parties of their rights under the treaty of the performance of their obligations." Of course, there is nothing in the earlier treaties that would indicate that they forbid or preclude the conclusion of new treaties. On an abstract level, both the 1921 and 1940 agreements lend themselves to the Article 73 of the Vienna Convention on Consular Relations (Item 2) which provides:
"(2) Nothing in the present Convention shall preclude States from concluding international agreements confirming or supplementing or extending or amplifying the provisions thereof."[xvii]
Concretely speaking, Iran's objection to the new treaties is firmly grounded in the pacta tertiis rule (Article 30, Paragraphs 4(b) and 5: "A treaty does not entail either obligations or rights for a third state without its consent."
The Old and the New Treaties: Points of Collision
In reality, however, the new agreements contradict or collide with the earlier accords, first and foremost on the normative level. To elaborate, the 1921 and 1940 accords preclude any territorial division of the Caspian Sea by virtue of their normative application of the standards of so-called "condominium approach" conveying the notion of common ownership or "joint sovereignty." The clearest indication of this notion is contained in the diplomatic exchange of letters accompanying the 1940 Treaty, which refer to the Caspian Sea as "a Soviet and Iranian Sea."[xviii] The condominium principle is inferable from, among others, the "common use" shipping regime reflected in Article II of the 1921 Treaty (i.e., "free right of navigation") and Article 12 of the 1940 Soviet-Iran Treaty. Given the fact that these treaties have, and continue to remain, the cornerstone of the shipping regime of the Caspian Sea, together with the treaty laws' imperative against any partial abrogation of treaties, the legal validity of the new bilateral treaties excluding Iran from their purview comes under crushing questioning insofar as the priority of the earlier treaties and their normative preclusion of territorial division becomes inescapable. Hence, it is a question of application of the new agreements, violating the normative principles of condominium, and not of nullity, which puts them perpetually at odds with the earlier treaties and their condominium approach.
Interestingly, Russia and its North Caspian neighbors have seemingly taken this matter into consideration by stepping away somewhat from the "territorial division" contour of their recent agreements and emphasizing instead, at least in the course of their latest multilateral negotiations with Iran and Turkmenistan, the issue of "access" and "exploitation of seabed resources."[xix] Certainly, this is a step in the right direction, even though it is probably intended as a tactical maneuver to legally shield these agreements, to no avail mainly because the normative conflict with the existing legal regime is, as stated above, rather paramount.
The Russian-proposed compromise of "partial condominium" under the rubric of "common waters, divided seafloor," appears on a surface level as an effective solution to the legal quagmire caused in part by the collision of old and new treaties. Conceptually, however, the idea of territorial ownership operating behind the second rampart of this motto or formula, contradicts the normative principle of condominium to such an extent as to render it completely meaningless, thus representing a prima facie conflict, as a result of which the anachronistic slogan is best shelved for every one's sake, for there can be no division of any aspect or space of the Caspian short of completely abrogating the (condominium) spirit of the exiting legal regime, something that can be done only consensually and collectively as demanded by Iran and Turkmenistan. A "resource division," on the other hand, is a different species of behavior that has not been precluded by the current legal regime, notwithstanding the exclusive fishing zone provisions of the earlier treaties warranting their extension to seafloor. Application of this standard falls within the purview of Iran's (legally sound) position on the legal status of the Caspian Sea, which, in turn, requires certain modifications of the overall official position with respect to the contemporary necessity for revising the legal regime. But in conclusion, equally importantly, a theoretical and legal modus vivendi with the existing legal regime based on the 1921 and 1940 accords is called for by the policy-makers of North Caspian states, for otherwise the legal gulf between them and their South Caspian neighbor will inevitably widen, regrettably so in the light of their growing interdependencies reflected, among other things, in the ambitious North-South transportation corridor.
[i] Islamic Republic News Agency (IRNA), July 23, 2003.
[ii] Statement by Spokesman for Iran's Foreign Ministry, quoted by IRNA, January 12, 2001.
[iii] Statement by Spokesman for Iran's Foreign Ministry, quoted by IRNA, May 15, 2003.
[iv] According to Iran's President, Mohammad Khatami, "any legal regime should be devised based on these [i.e., 1921 and 1940 -KA] treaties." Quoted in "Khatami: Iran Opposes Any Unilateral Action in the Caspian Sea," IRNA, May 16, 2002.
[v] Statement by Spokesman for Iran's Foreign Ministry, quoted by IRNA, July 8, 2002.
[vi] Interfax, July 8, 2003.
[vii] Statement by Russia's President, Vladimir Putin, quoted by Interfax, April 11, 2002.
[viii] See, "Kazakhstan, Azerbaijan, Turkmenistan to discuss division of Caspian Sea," Interfax, July 29, 2003.
[ix] Communication to author by Iran's Special Envoy on Caspian Affairs, Mehdi Safari, May 2003.
[x] Interfax, July 23, 2003. The environmental convention is deficient with respect to, among others, allowing provisions for inputs by the environmental non-government organizations as well as migratory psecies. The provision on migratory specie of the Law of the Sea Convention (Article 64 (2) is particularly relevant here.
[xi] For more on this see Afrasiabi, "Caspian Sea, International Law, and Iranian Policy: Shifting Paradigms," available on: www.caspianstudies.com/articles, translated in Rahbord: Journal of Center For Strategic Research (Spring 2003).
[xii] Relevant works are: Jan B. Mus, "Conflicts Between Treaties in International Law," Netherlands International Law Review, Vol. XIV (1998); Anthony Aust, Modern Treaty Law and Practice (Cambridge: Cambridge University Press, 2000).
[xiii] Paragraph 2 of the Rule 30 contains the lex posterior rule: "When all the parties to the earlier treaty are parties to the later treaty, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty."
[xiv] For more on this see, UN Multilateral Treaties, Chapter 1.1; Peter Williams, "The Treaty Obligation of the Successor States of the Former Soviet Union, Yugoslavia, and Czechoslovakia: Do They Continue in Force?" Denver Journal of International Law and Policy (1994).
[xv] As is well-known, these new Caspian states have repeatedly adhered to the principle of treaty obligation with respect to the former Soviet Union, both in their December 21, 1991 Alma-Ata Declaration, as well as in the July 6, 1992 Memorandum "On the Question of Legal Succession in Relation to the Treaties of the Former Soviet Union, Constituting A Common Interest." For More on this see, Bernard H. Oxman, "Caspian Sea or Lake: What Difference Does It Make?" Caspian Crossroads Magazine, Vol. 1, no. 4 (Winter 1996). What Oxman overlooks however is that the doctrine of "clean slate" is inapplicable in the light of these states' commitment to the Soviet treaties, denoting continuity. As Anthony Clark Arend has correctly stated: "Under the doctrine of rebus sic stantibus the treaty or provision is no longer law because there has been a very fundamental change in circumstance." In Legal Rules and International Society (Oxford: Oxford University Press, 1999), p. 89. Ironically, the proponents of this doctrine, such as Azerbaijan, simultaneously draw on the administrative division of the Caspian Sea during the Soviet days in order to justify their present position, without demonstrating any clue about the contradictoriness of their position.
[xvi] Aust, op. Cit., p. 225.
[xvii] See, Treaties and Other International Agreements Series (No. 6820).
[xviii] See, Asnady az ravabet-e Iran ba manateghi az asiya-ye markazi (Documents on Iran's Relations With Aspects of Central Asia) (Tehran: Institute For Political and International Studies, 1999).
[xix] This information is based on author's communication, at an oil/gas conference in Baku in 2003, with the various Russian delegation to the Working Committee on the Caspian Sea.
... Payvand News - 9/17/03 ... --