Legal Case of the Caspian Sea - Research Paper Example

?Introduction The Caspian Sea has been problematic ever since the Soviet Union collapsed in 1991 to 1992. Before the breakup of the Soviet Union, theCaspian Sea was owned, by treaty, by the Soviet Union and Iran. After the breakup of the Soviet Union, the Caspian Sea was abutted by five different countries – Iran, Russia, Turkmenistan, Kazakhstan and Azerbaijan. What complicates this even further is that the sea has an uneven distribution of precious resources – the parts of the sea abutting Turkmenistan, Kazakhstan and Azerbaijan are rich in mineral deposits. The parts of the sea abutting Iran and Russia are not. Iran and Russia, especially Iran, favor splitting the sea equally among the countries, with each country owning the sea with joint sovereignty. The other countries, however, favor partitioning – they get certain parts of the sea to control for their countries, and the other countries get their own slice of the pie. This describes the conflict in a nutshell. However, the conflict is more complex because other, more powerful countries, like China and the United States, have taken sides. This paper will describe the conflict, along with describing other water based conflicts, in recommending the best course of action for the five countries in dispute over the Caspian Sea. Discussion The dispute over the Caspian Sea has as its genesis the collapse of the Soviet Union in 1991-1992. According to Mirfendereski (2001), prior to the collapse of the Soviet Union, the Caspian Sea was the province of only two countries – the Soviet Union and Iran. After the breakup of the Soviet Union, however, the Caspian Sea was abutted by Iran, Russia, Azerbaijan, Turkmenistan and Kazakhstan. Further, Mirfedereski (2001) stated that, soon after the breakup of the Soviet Union, the Caspian Sea became a matter of international business, as, in addition to the countries abutting the Sea, other countries, such as the United States and China, developed a strategic interest in the region, because of the Sea’s rich and oil and gas reserves. As Zeinolabedin et al. (2011) states, the Caspian Sea and how it is divided up between the countries is important to the countries, and to the world, because of the Caspian Sea’s resources, particularly in the area of oil and gas. Roberts (2001) states that the issue of the Caspian Sea energy development is dominated by four factors – uncertain oil prices; the geology and geography of the area; the pipeline issue; and the ability of the Turkish government to develop a coherent energy import policy. Before the breakup of the Soviet Union, the Caspian Sea was divided according to agreements made between Iran and the Soviet Union in 1921 and 1940 (Laruelle & Peyrouse, 2009). However, after the breakup of the Soviet Union, this agreement became problematic, although Russia initially proposed, after the breakup of the Soviet Union, that the countries share the Caspian Sea, with the exception of ten miles (Laruelle & Peyrouse, 2009). The other countries, however, did not agree with this plan. This means that, for the new countries which abutted the Caspian Sea, there was not specific guidance on how the Sea should be partitioned. However, Mirfendereski (2001) states that at this time there was, when the Soviet Union was intact, delineations that the Soviet Union had made for the Caspian republics. There was also a division between the Soviet Union and Iran, called the Astara-Hassanqoli line. However, as these delineations meant that Russia had to concede a large portion of the Sea, Russian disputed the Soviet Union delineations, according to Mirfendereski (2001). What Russia was seeking, according to Mirfedereski (2001), was an equal but undivided share of the Sea as a whole, as opposed to partitioning. Iran, whose ostensible partition of the Caspian Sea, per the Astara-Hassanqoli line, deprived it of offshore petroleum deposits, went along with the Russian plan to ignore the Astara-Hassanqoli line and divide the Sea up so that each country had an equal but undivided share of the Caspian as a whole (Mirfederski, 2001). That said, other countries, whose positioning was more advantageous under the Astara-Hassanqoli line, insisted on the validity of this line. Mirfederski (2001) states that one of these countries was Azabaijan, who would have been entitled to offshore oil fields and, strategically, Azabaijan also had an interest in enforcing the Astara-Hassanqoli line, because Azabaijan was interested in boxing in Iran and not allowing it to claim any part of the sea which was north of the line. That said, Turkmenistan, who was proximally closer to the oil fields delineated to Azabaijan, disputed the Astara-Hassanqoli line. The status quo was for all five of the countries to share in the Caspian Sea equally, with all five having a one-fifth undivided interest in the sea. That said, Mirfederski (2001) states that Turkmenistan was the first country to challenge the existing Soviet-Iranian framework, passing a law which established for itself a 12 nautical mile territorial sea limit, effectively taking a slice of the sea all for itself. Turkmenistan also enacted a law which established an exclusive economic zone in the Caspian. Meanwhile, according to Mirfederski (2001), Azaerbaijan also took the view that it had authority over a part of the Caspian, for the purposes of oil and gas development. Kazakhstan, for its part, also tried to partition the sea. However, as Mirfederski (2001) noted, at this time, Russia was not having it – Russia put forth a declaration reiterating its position that the Caspian Sea should not be partitioned, but shared equally by all five countries, telegraphing that it would not countenance anymore attempts to partition by the other countries. Mirfederski (2001) states that the countries’ respective positions could be understood by what each country sought to gain. Turkmenistan, Kazakhstan and Azerbaijan all had offshore oil or gas in the areas adjacent to their coasts, therefore these countries all wanted to partition the sea so that they could take advantage of this (Dunlap, 2004). Dunlap (2004) states that the oil set to be drilled from the Turkmenistan, Kazakhstan and Azerbaijan coasts was, by early estimates, as high as 659 million barrels. Russia and Iran, however, did not have oil or gas in the areas adjacent to their coasts (Mirfederski, 2001). Therefore, the only way that Iran and Russia could obtain oil and gas from the sea would be if the sea was shared by all of the countries equally. Turkmenistan, Kazakhstan and Azerbaijan all would benefit from a partition. Moreover, as Bahgat (2007) notes, the new countries needed to be able to develop the sea for mineral explorations, because they did not have any other means for sustaining themselves, as these countries did not have any other means for economic development. While Russia’s initial policy was that the sea should be equally divided among the states, according to Chufrin (2001), Russia discovered oil off the Dagestan coast, which made her move away from the concept of common development, favoring outright division of the sea after this discovery. By 2004, Russia was advocating for a partition of the sea into national sectors, with regards to the oil and gas underneath the sea, while leaving the surface waters for common management and use, signing bilateral treaties with Azerbaijan and Kazakhstan which divided the northern part of the seabed with Russia, Azerbaijani and Kazakhstan. However, at this time, Iran was still advocating for the enforcement of the Soviet-Iran treaties, while refusing the recognize these bi-lateral treaties (Dunlap. 2004). Mehdiyoun (2000) further states that Azerbaijan’s position, that the sea should be partitioned, is also based upon the perception that international practice and rules of law supports the concept of the Caspian Sea partitioning, and that the Soviet-Iranian treaties, upon which Iran bases its opposition to partitioning, only covers navigation, fishing and border-guard practices. They are therefore inapplicable to mining. Mehdiyoun (2000) also states that Azerbaijan argues that the practice prior to 1991 supports it position, because, in 1970, the Soviet Union divided the Caspian into Iranian and Soviet zones, dividing the Soviet sector further between Azerbaijan, Russia, Kazakhstan and Turkmenia, and, further, Azerbaijan states that this division was approved by Russian Prime Minister Viktor Chernomyrdin in 1993. Iran has continued to dispute the bilateral treaties that Russia has signed with other countries, according to Zimnitskaya and von Geldern (2011). Their argument continues to be that the Soviet-era treaties are still in force, as no new multi-lateral agreements have yet taken their place. Mahdiyoun (2000) states that Iran’s position is based upon its belief that the littoral states must agree, by consensus upon a temporary minerals regime, which means that, even if the littoral states decide not to share the mineral resources of the Caspian, they should, at the very least, agreed on how to explore and exploit these resources. Iran’s position is also based upon the idea that the littoral states should use the condominium method of dividing the sea, which means that the each country has an undivided equal share of the sea. Mahdiyoun (2000) further states that Iran cannot divert resources and produce in the Caspian, as it is hampered by conservative domestic politics and foreign legal obstacles to these ventures. Iran also recognizes, according to Mahdiyoun (2000), the reality that the oil reserves in the Caspian would be in the deepest part of the sea, which is the most difficult to mine. Iran also recognizes that, under the condominium rule, as well as its idea regarding consensus, would mean that the Western states would have less influence over the region (Mahdiyoun, 2000). Iran’s position has led to confrontation when the other countries have attempted to contract their portion of the sea to foreign oil interests. One example of this is in 2001, when two British Petroleum (BP), on the basis of a contract with Azaerbaijani, were chased from a disputed oil field by an Iranian gunboat. This caused BP to suspend operations, and led the United States and Russia to condemn Iran actions in this regard (Zimnitskaya & van Geldern, 2011). Bahgat (2007) states that Iran’s position on the bilateral treaties forged between Russia and Kazakhstan and Azerbaijan lacked validity, as these treaties had to be approved by all five states, putting it at odds with Russia. However, accord to Sheikhmohammady et al. (2010), Iran softened its stance in the late 1990s, as Russia became pragmatic and agreed to cooperate with the other littoral sates, while arguing that the seabed should be divided between the littoral states. Sheikhmohammady et al. (2010) suggests that this new spirit of cooperation between Russia and the other three states made Iran feel isolated and lacking in power, therefore it proposed to divide the sea if its share would be no less than 20% and that it seabed areas and sea surface could be superjacent. While the countries bordering the Caspian Sea have been in a dispute over how to divide the sea since the breakup of the Soviet Union, Benke (2010) states that other countries are involved in the dispute as well. Rousseau (2011) further states that the global interest in the Caspian Sea is because the Middle East cannot sustain the hydrocarbon needs of Europe and America. Among the countries with an interest in the region is the United States, who has an interest in the Caspian Sea as an alternative to the Persian Gulf for harvesting natural gas. Moreover, the United States, according to Benke (2010), seeks to weaken Russia, lest it regain its status as a superpower, therefore, part of the United States’ interest in the Caspian Sea is to weaken Russia by propping up the other countries around the Caspian Sea to Russia’s expense, most notably with Turkmenistan through the future Nabucco natural gas pipeline. Marketos (2009) states that the Nabucco natural gas pipeline is sponsored by the United States and the EU. Valiyev (2009) states that the Nabucco pipeline is “designed to connect Caspian gas field to Europe through Turkey” and would provide “a natural point of alliance and cooperation for Turkmenistan and Azerbaijan” (Valiyev, 2009, p. 2). Ogutcu (2003) states that the United States involvement with the Caspian Sea has taken the form of intervening in the Caspian politics by supporting the division of the seabed, endorsing the Baku-Ceyhan pipeline as Azaerbaijan’s main export route and calling for Azerbaijan and Turkmenistan to resolve their quarrels through delimiting their national zones. That said, Ogutcu (2003) also states that the United States’ influence in the region has been resented because it is perceived as arrogant and marginalizing for Russia. China is another country who is involved with the Caspian Sea, according to Benke (2010), signing a $4 million contract with Turkmenistan to develop the natural gas fields. Another player is the European Union, which has depended upon Russia as its main supplier of energy since the 1990s (Benke, 2010). Moreover, Israel also has an interest in the region, according to Bahgat (2010), as Israel has increasingly relied upon Azerbaijan and Kazakhstan for its energy needs, and these two countries have begun to be major suppliers of oil to this Jewish state. Amineh (2003) states that China depends upon access to oil and gas for its expansion and therefore view the Caspian region as an attractive site for oil and gas exploration. The legal status of the Caspian Sea is complicated by the dispute over whether to classify it as a sea or a lake. According to Dunlap (2004), this matters because the United Nations Convention on the Law of the Sea (UNCLOS), a 1982 law, states that seas shall be divided up in accordance with the proximity to a nation’s land. Specifically, the UNCLOS states that a nation’s land extends 200 miles into the sea (Dunlap, 2004). Zimnitskaya and von Geldern (2011) state that the UNCLOS is public international law, and, if the countries would accede to the UNCLOS, there would be international court and arbitrational bodies which can govern the dispute. Lee (2005), however, argues that whether the Caspian Sea is a sea or a lake is not dispositive to the dispute. Lee (2005) states that, even though the UNCLOS provides guidance on the issue, there is not a single and generally recognized method delimitation, and that the UNCLOS only applies to its members. As of that time, Azerbaijan, Kazakhstan and Turkmenistan had not acceded to the UN Convention. However, as Lee and Kim (2008) note, if the Caspian Sea is considered to be a lake, then the littoral states would be entitled to share the Sea equally, as is Iran’s desired position. That said, however, Lee and Kim (2008) further note that, even if the Caspian Sea is considered to be a lake and not a sea, its legal status still would be uncertain, as divisions of lakes are subject to specific agreements, and that, absence a clear treaty, the sea would still not be subjected to joint sovereignty. The Caspian Sea is marked by asymmetrical power, partially because the United States is involved in the negotiations. Sheikhmohammady et al. (2012) has thus proposed an analysis of the conflict based upon this asymmetry. They based their models on the assumption that the decision makers seek a feasible solution to the problem, and that, if an agreement is reached, is must be an alternative which is taken from a pre-specified list, and that all decision-makers must accept this. Another assumption is that the decision-makers possess different levels of capability to support an agreement, so symmetry might be lacking. Sheikhmohammady et al. (2008) further state that the Caspian Sea negotiations can be resolved in one of five ways: condominium, which means that the countries have joint sovereignty, a position favored by Iran; division based upon the International Law applying to the seas; equal division (each country gets 20% of the total surface and seabed); division of the seabed according to international law, and division of the surface according to the condominium concept; and division based upon Soviet maps. Sheikhmohammady et al. (2012) found that, after taking the factors into account, the most likely method of dividing the Caspian Sea is division according to International Law applying to the Seas. Legal Cases involving other bodies of water While, thus far, no court has ruled on the Caspian Sea dispute, other courts have ruled regarding other bodies of waters which have presented problems. Water issues are usually resolved with treaties (Hamner & Wolf, 1997). However, in a few cases, courts have stepped in. One of these is the case regarding the Gulf of Fonseca (Land, Island and Maritime Frontier Dispute, 1992 ICJ Rep. 351), which found, in essence, for the condominium approach. In this case, as with the Caspian Sea, a body of water known as the Gulf of Fonseca was surrounded by El Salvador, Honduras and Nicaragua. Prior to 1821, all of these countries were a part of the Spanish empire, and, after the breakup of this empire, all of these countries laid claim to the body of water. The International Court of Justice found that the three states were each entitled a three mile strip off their coast, and, beyond this limit, the gulf waters appertained to all of them. That said, Mehdiyoun (2000) states that there are important differences between the Caspian Sea dispute and the Gulf of Fonseca disputed. For one, the Gulf of Fonseca belonged to only one entity before it broke up, and that was the Spanish Empire. In the Caspian Sea, the sea belonged to two countries before the Soviet Union broke up – Iran and the USSR. Moreover, another difference is that the successor states in the Gulf of Fonseca had treated the Gulf as common property for an extended period of time. That was not the case with the Caspian Sea littoral states. Another difference is that the International Court of Justice realized that, if it divided the Gulf of Fonseca that one of the states would have no passage to the sea, therefore partitioning would have presented insurmountable difficulties to one or more of the states. This is not the case with the Caspian Sea (Mehdiyoun, 2000). The Great Lakes in the United States is another body of water which has been the subject of dispute, according to Folger (2003). The Great Lakes is divided between the United States and Canada. The two countries entered into a Boundary Waters Treaty in 1909, while creating the International Joint Commission that would have jurisdiction over all boundary water disputes. This means that, before any disputes arose, the mechanism for resolving these disputes is already in place. Moreover, the resources are divided by consent through the Great Lakes Charter and the principle of “Prior Notice and Consultation,” which requires notification and consent of the other country before the water resources may be consumed. Folger (2003) states that the consent provision is similar to what Turkemistan had requested, which was that all of the Caspian littoral states would have to consent before extraction. Folger (2003) further states that such a consent agreement between the states is complicated by the fact that the states had already begun exploring for oil. That said, Folger (2003) notes that the water diversion from the Great Lakes is determined by equitable apportionment, and that the Caspian dispute could model itself after this apportionment, in that the states could push for equitable apportionment, as opposed to equal apportionment, while demonstrating to Iran that the international community has norms which favor such an apportionment. Lake Constance is another body of water which has presented issues, according to Folger (2003), and, as with Gulf of Fonseca, court intervention was necessary to resolve the dispute. In this case, according to Sanei (2001), the lake in question was surrounded by Switzerland, Austria and Germany and was controlled by the 1867 Bergenz Treaty. Folger (2003) states that the German Federal Court, or the Reichsgericht, applied international law principles in deciding that Lake Constance should be divided by equidistant boundaries among the three countries. Folger (2003) also states that , in the process, the three countries have reached other agreements with one another with regards to water withdrawal for fishing. The countries also developed rules regarding further disputes, in that the disputes would be governed by an arbitration commission to settle disputes that could not be settled by diplomatic means. The parties decided amongst themselves how to select arbitrators, how the arbitrators would base their decision and how binding the arbitrator’s decision would be on the parties (Folger, 2003). Folger (2003) states that the Lake Constance could prove to be a model for the Caspian Sea, because, as with the Caspian Sea, Lake Constance is bordered by more than two countries. Because Lake Constance and the Caspian Sea have this in common, the same mechanisms used in the Lake Constance case can be applied to the Caspian Sea. Moreover, as with the Great Lakes, the court in the Lake Constance case resolved the dispute by stating that each country would be entitled to an equidistant and equitable boundary scheme. Moreover, the Lake Constance case can be a model for the Caspian Sea, according to Folger (2003), because it demonstrates the value of establishing good diplomatic relations and for setting the groundwork for dispute resolution mechanisms, and these mechanisms can be used to resolve future disputes. Lee and Kim (2008) also compare the Caspian Sea dispute with the dispute regarding the East China Sea. In this case, both China and Japan want to develop the East China Sea and harvest its resources peaceably. Lee and Kim (2008) see the East China Sea situation as similar to that of the Caspian Sea for a variety of reasons. One is that both of these seas are valuable to the different countries because of their hydrocarbon resources. According to Harrison (2002) the East China Sea could be as hydrocarbon rich as the Persian Gulf. This analysis is concurred by von Hirschhausen and Engerer (1999). Another similarity between the two, according to Lee and Kim (2008) is that international law does not help in determining the boundaries of either body of water. The 1982 UN Convention on the Law of the Sea cannot state how the sea is divided, because the sea is only 360 miles at its widest, and the UN Convention states that the country’s portion of the sea can extend up to 200 nautical miles from the country’s shoreline. Lee and Kim (2008) further state that the dispute between the East China Sea is similar to the dispute regarding the Caspian Sea, because, in each case, the countries started developing the hydrocarbon resources before there was a legal framework in place to do so. For instance, China developed the Pinghu gas field before there was an agreement in place to do so (Hsiung, 2005).Other actions produced retaliation from Japan, which, in turn, produced condemnations from China with regards to Japan’s actions (Nakamoto, 2004). Similarly, with the Caspian Sea, Azerbaijan developed oil reserves, with the help of foreign investments, before there was a legal framework in place, which means that, at this point, Baku was exercising control over this portion of the sea. Similarly, Kazakhstan also started developing the sea before there was a framework in place. As with China and Japan, these premature development schemes provoked conflict, as Russia tried to keep these two countries in line by threatening them with unilateral actions (Lee and Kim, 2008). While there are similarities between the East China Sea dispute and the Caspian Sea dispute, there are also dissimilarities, as outlined by Lee and Kim (2008). One is that, with the East China Sea dispute, there is more of a symmetry of power between the countries involved in the dispute than in the Caspian Sea dispute. China and Japan, at least during the time of this dispute, are evenly matched, power-wise. On the other hand, in the Caspian Sea dispute, argues Lee and Kim (2008), the power is asymmetrical. In particular, the imbalance of power in that region is exacerbated by the appearance of the United States, which took the sides of Azerbaijan and Kazakhstan, against Russia. Therefore, if the United States did not get involved, the imbalance of power would have been caused by the fact that Russia is so much more powerful than the smaller states. With the United States involved, however, the imbalance of power shifted in favor of Azerbaijan and Kazakhstan (Lee and Kim, 2008). However, Lee and Kim (2008) see more similarities between the two situations than differences, and state that Japan and China has not built a healthy regime of sharing the East China Sea, stating that the imbalance of power in the Caspian Sea situation has helped it build a regime somewhat, and the balance of power in the East China Sea situation has hindered this same degree of regime building, because, with both Japan and China being equally powerful, there is not a reason for either country to back down. Moreover, Japan and China do not trust one another, and this, too, has hampered progress in building a regime in the East China Sea (Lee and Kim, 2008). Thus, Lee and Kim (2008) suggest that the Caspian Sea not model the negotiations between the parties in the East China Sea, as it is still at an impasse, and each country mistrusts the other, therefore the peaceable development of that sea is not possible. Conclusion The Caspian Sea is a dispute which is complex, to say the least. Five different countries have different views on how to resolve the dispute, and many of the countries have differing goals. The new countries which have branched out from the Soviet Union, Turkmenistan, Azerbaijan, and Kazakhstan, all have much to gain from partitioning according to the UN Rules, because their portions of the sea contains the most minerals, therefore their parts of the sea will enrich them the most. Russia and Iran, however, are abutted to parts of the sea which do not have these resources, therefore they have the most to gain from the concept of dividing the sea with the condominium approach – all of the countries share equally in the sea with joint sovereignty. While there has not yet been a resolution to the case, and the countries are not yet subjected to international tribunals to help them resolve it, other water disputes might provide guidance on how to approach the situation. For instance, with the Great Lakes, Canada and the United States have a mechanism in place which details how disputes would be resolved. The same approach is taken by Lake Constance, even though that case originally was the subject of court jurisdiction. With the case of the Gulf of Fonseca, which had very similar facts to the Caspian Sea, the condominium approach was favored by that court, with the exception that each of the countries involved in that dispute would be entitled to a three mile strip that each country could have all to themselves. However, as Mehdiyoun (2000) notes, in that case the court made a pragmatic decision because, if the court did not divide up the Gulf of Fonseca, one or more of the countries involved would have no egress to the sea. That is not the case with the Caspian Sea. Moreover, although Mehdiyoun (2000) did not address this, it stands to reason that the Gulf of Fonseca did not have the same mineral capabilities as does the Caspian Sea. And, as Baghat (2007) notes, the new countries depend upon the oil and gas in the Caspian Sea to survive. This makes the situation different from that of the Gulf of Fonseca. That said, the dispute regarding the East China Sea has many similarities and differences with the Caspian Sea, but one thing is clear – the Caspian Sea negotiations should not be modeled after the East China Sea conflict. That conflict is marked by two equally powerful countries refusing to give an inch to one another, and each of these countries are mistrustful of the others, so solving the conflict is that much more problematic. After noting how other water conflicts are resolved, the only thing that becomes clear is that, as the Great Lakes and Lake Constance have shown, the most important thing to get into place would be a way of resolving the conflict. Thus far, this has been the sticking point – international law does not apply to the situation, for a variety of reasons, so there is not an international court which would have jurisdiction over the matter. Moreover, there are powerful interests who are getting involved in the dispute, both because these powerful countries need the oil and because these powerful countries, especially the United States, has an interest in making sure that Russia does not get too powerful. These are complicating factors that the parties in the Great Lakes and Lake Constance disputes did not have to face. That said, the five countries at the very least need to come together and agree on a way to resolve the dispute by a neutral party, either through mediation or arbitration. That is the one lesson that other water disputes can demonstrate is necessary. 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