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05/01/16

Transfer of the Caspian Sea Waters is a violation of the International Law

By Bahman Aghai Diba, PhD International Law of the Sea

Plans to transfer Caspian Sea waters have been discussed, studied and followed by the Caspian Sea littoral and non-littoral countries in the past and they are subject of serious debates at present. However, it seems that major transfer of the Caspian Sea waters, unilaterally and without the consent of all other littoral states is not compatible with the international law and even if a consensus is reached in this regard, it will open the doors for a practice that would not be limited to one country or one case and its consequences will bring an environmental disaster for the region and the world.


Caspian Sea Countries: Azerbaijan, Kazakhstan, Iran, Russia, Turkmenistan

Some of the plans for transfer of the Caspian waters are:

  1. Transfer of the Caspian Sea waters to Garabogazkol- this is a shallow lake in the northeastern corner of the present Turkmenistan. It is separated from the Caspian Sea proper. Its waters fluctuates seasonally and at times it becomes a bay of the Caspian Sea. (1) Before the collapse of the USSR, the Russians had opened the narrow strait between these two and this was causing a damage to the Caspian Sea because the Caspian waters was flowing to the Garabogazkol and rapidly evaporating due to the geographical characteristics of Garabogazkol. In 1980. Noting the damages (some experts consider the flow of Caspian waters to Karabogazkol as one of the main reasons for falling level of water in the Caspian Sea), the barrier to the Caspian Sea was blocked. (2) By 1984 Karabogazkol completely dried up. In 1992 the barrier was breached and Caspian waters refilled the Garabogazkol. (3)
  2. Transfer of the Caspian Sea waters to the Lake Aral- the Lake Aral (in Persian it was called “Darya-e Kharazm) is now situated between Kazakhstan and Uzbekistan. Once one of the largest lakes of the world, it has been shrinking since 1960s after the rivers that fed it were diverted by the Russian irrigation projects (4). Reviving the Lake Aral has been a concern for Kazakhstan, Uzbekistan, Tajikistan, Kyrgyzstan, and Turkmenistan. While no action has been taken up to now for using the Caspian Sea waters in reviving the Lake Aral, it an option that has been discussed and has the potential of being taken seriously in future. Talking about the possible solutions for saving the Lake Aral, an expert who has studied the case has referred to “ pumping the sea waters into the Aral Sea from the Caspian Sea via a pipeline,” (5)
  3. Transfer of the Caspian Sea waters to the Lake Urmia (or Uromieh) - the lake is in the Western Azerbaijan province of Iran. This is the largest saltwater lake in the Middle East. (6) It is shrinking rapidly. One of the solutions that has been proposed and studied in the past in various internal (inside Iran) and external levels (due to the proximity of the lake to the Republic of Azerbaijan and Turkey) was transfer of the Caspian Sea waters (7). Iranian government has asked the Norwegian Institute for Water Research (NIVA), to carry out an environmental study for transferring the Caspian Sea waters to the Lake Uremia. (8)
  4. Transfer of the Caspian Sea waters to the central deserts of Iran- In 2013, Iranian news agencies reported that Iran has finished the preliminary studies for transferring the Caspian Sea waters to the inland parts of the country (9).
  5. The proposal for Transfer of Caspian waters to Semnon province of Iran- at the moment there are serious debates in Iran about the various dimensions of proposals for transfer of the Caspian Sea waters to a province in Western part of Iran (Semnon) (10).

While the above mentioned cases are not the only proposed and studied plans in this regard, the extent of such plans reveal the serious implications of such programs. At the same time, it seems that from the internal legal point of view, unilateral transfer of the Caspian Seas without the consent of other states is not acceptable because:

  1. Caspian Sea is a lake- it is the largest inland body of water and for the same reason it has some “sea characters” and it has been called a sea. However, there is no doubt that the Caspian Sea is geographically a lake. Discussions about considering the Caspian Sea a sea in the legal context has no real meaning. At present, out of the five littoral countries of the Caspian Sea ( Iran, Azerbaijan Republic, Russia, Kazakhstan and Turkmenistan ) only one country ( Kazakhstan) believes that the general rules of the international law of the sea ( as envisaged in monuments such as the 1982 UN Convention on the Law of the Sea) should be applied in The Caspian Sea. This is the position of Kazakhstan for solving the problem of the legal regime of the Caspian Sea and no other littoral country is under any commitment to observe this position, unless approved by all of them. The situation of the Caspian Sea as a lake , legally means that:
      • The Caspian Sea has a special legal status ( Sui Generis), and not subject to the general rules of the law of the sea
      • It is the duty and responsibility of the littoral states to define the legal status of this body of water and implement it together.
      • Unilateral decisions about the use of the Caspian Sea waters (such as major transfer of its waters) is not compatible with the legal status of the Caspian Sea.
  2. According to the international legal principles and documents ( such as treaties), in the case of transboundary water resources, such as international lakes and rivers ( here international only means that it belongs to more than one country and this has nothing to with the “international” in the sense of being open to all countries like the high seas beyond maritime territories of countries), the countries sharing these kinds of resources are committed to cooperate, coordinate and inform each other about any decision that affects the common body of water , such as the Caspian Sea.
  3. Although the legal regime of the Caspian Sea is not finalized among the littoral states of the Caspian Sea, all of the existing documents, treaties, agreements and accords on the issues related to the Caspian Sea, have clear indication to the common nature of the Caspian Sea. Some of the most important documents in this field are:
    • Almaty Declaration of the 5 littoral states, adopted in 1994 (11). It calls for common decisions about the Caspian Sea and mutual protection of the Caspian Sea environment.
    • The final declarations of the summit conferences of the littoral states in Ashgabat (2002), Tehran (2007), Baku (2010) (12) and Astrakhan (2014).
  4. There are several agreements that in fact they have not waited for the general legal regime of the Caspian Sea becomes finalized and out of urgency of the issues, they have put emphasize on the need for the common and mutual actions, and these include:
    • Ramsar Convention of 2 February 1971 about the Caspian Sea wetlands. (13)
    • Framework Convention for the Protection of Caspian Marine Environment (2003). The convention commits the member states to prevent and reduce pollution, restore environment, use the resources in a sustainable and reasonable manner and cooperate with each other and the international organizations to protect the Caspian Sea. (14)
  5. Iran’s position regarding the legal regime of the Caspian Sea has always been focused on the common decisions acceptable to all countries and there is a need to follow this principle in the case of transferring the Caspian waters. Iran is opposing the use of MML (modified median line) by some Caspian states for delimitation of the Seabed (leaving the superjacent waters for common use), on the basis that they were not approved by all other Caspian stats and there is no doubt that any unilateral action by Iran to transfer the Caspian waters will seriously harm these positions.

Conclusion:
Transfer of the Caspian waters without the consent of other littoral states is violation of the international law. These kinds of actions set a bad practice and create international responsibility.

Notes and Sources:


About the author:
Bahman A Diba, PhD International Law of the Seas, is the author of several books. His latest books were published in 2011:

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