Five Nations Bicker over Whether the Caspian is Lake or Sea

BY RAHIM RAHIMOV

Azerbaijan, Iran, Kazakhstan, the Russian Federation, and Turkmenistan met recently to sign the convention on the legal status of the resource-rich Caspian Sea, a document more than two decades in the making. Meeting in the Kazakh coastal town of Aktau in mid-August, the leaders of the five nations hailed the summit as a historic success.

However, experts pointed out that the convention formalizes the existing status quo rather than genuinely settling any disagreements among the five littoral states. Russian deputy foreign minister Grigory Karasin announced before the signing ceremony that a consultative body on the Caspian Sea states would be established. This message signaled that not all issues had been settled and that the purpose of the new council would be to deal with those issues as they arose.

Questions concerning the legal status of the Caspian Sea and related disputes came to the fore with the collapse of the Soviet Union and the emergence of the newly independent states of Azerbaijan, Kazakhstan, the Russian Federation, and Turkmenistan. Until then, commerce and navigation on the Caspian were regulated by bilateral agreements between the USSR and Iran, at the time the only two coastal states bordering the Caspian, with third parties actively discouraged from use. As post-Soviet Azerbaijan, Kazakhstan, and Turkmenistan joined the littoral states, they began forwarding their own interests. The success of any littoral state in pursuing its goals hinges in part on whether the Caspian is legally recognized as a sea or a lake.

Under international law, different regulations apply to seas and to lakes. At the meeting in Aktau it became apparent that while Iran favors regarding it as a lake, to get a bigger share of its resources and opportunities, Azerbaijan, Kazakhstan, and Turkmenistan are for calling it a sea, for the same reasons, and Russia disagrees with either designation. If the Caspian was recognized as a sea, then Russia would be obliged to grant foreign vessels access to it through the Volga River. Thus the convention document reflects the existing “neither sea nor lake” status quo in the following regards.

Despite the evident lack of progress, there are four significant takeaways from the signed convention document. First, conceptually, the term “Caspian Sea” is used throughout the document, but Article 1 describes it as “body of water,” thus avoiding formally designating it a sea or a lake. The convention essentially imprints uncertainty on whether the Caspian is a sea or a lake, which fundamentally blocks application of any relevant international laws or instruments applicable to seas or lakes. The special status of the Caspian, now fixed in the convention, proactively prevents any littoral state from revising or amending the convention in the future on the basis of international law concerning seas or lakes.

Second, militarily, the most significant outcome of the convention is the ban on the presence of armed forces of nonlittoral states in the Caspian Sea under Clause 3.6. Nor, under Clause 3.7, can any party to the convention offer its territory to other states for committing aggression or other military actions against any littoral state. These military aspects of the deal echo a narrative long propagated by Russian president Vladimir Putin and Foreign Minister Sergey Lavrov, namely, to avoid conflicts and maintain peace, there must be a legally binding agreement that NATO will not expand or penetrate into areas Russia considers within its “sphere of interest.” Such a ban would also be in the interests of Tehran, as Iran is against any Western presence on its borders.

From the perspective of Azerbaijan, Kazakhstan, and Turkmenistan, the Caspian Sea would ideally be a demilitarized zone. However, Moscow rejected the demilitarization option long ago. Indeed, the fact that Russian warships in the Caspian Sea launched strikes against targets in Syria underscores its military significance for Moscow. Since Azerbaijan and Turkmenistan have joined the nonalignment bloc and Kazakhstan is home to Russian military bases through the Russia-led Collective Security Treaty Organization, the absence of nonlittoral states is acceptable to them for the moment. But the military conditions of the convention weaken the bargaining power of Azerbaijan, Kazakhstan, and Turkmenistan in negotiating other significant issues that were left unresolved by the convention, such as the construction of trans-Caspian pipelines or seabed division. It may even affect their ability to diversify their security partnerships in the future. That said, Clause 3.10 does provide for free access to and from the Caspian Sea and transit between it and other seas and oceans. It is the Volga River that gives landlocked Azerbaijan, Kazakhstan, and Turkmenistan such access to international waters. And the part of the Volga that runs through Russian territory provides Moscow with a strong advantage in negotiating agreements. From the perspective of access and transit, the flexibility of Azerbaijan, Kazakhstan, and Turkmenistan on the military provisions of the convention is understandable.

Third, Azerbaijan, Kazakhstan, and Russia, as well as Kazakhstan and Turkmenistan, had earlier agreed among themselves on a division of the seabed for mineral exploitation and fishing and had signed agreements on the matter. Azerbaijan, Iran, and Turkmenistan have so far failed to reach similar agreements and have experienced some military tension over the disputed offshore oil and gas fields. Article 8 of the convention leaves the issue of seabed division to the concerned states to tackle among themselves through agreements. Basically, the convention fails to offer any solution to the problem of seabed division. It simply reaffirms the existing status quo.

Fourth, the issue of construction of trans-Caspian pipelines or cables has been a major point of contention. Russia and Iran have effectively blocked such construction for many years. The long-proposed Turkmenistan-Azerbaijan gas pipeline in particular is viewed by Moscow as undermining Russian dominance over energy exports to Europe. Under Article 14 of the convention, a trans-Caspian pipeline can be laid with the agreement of those littoral states through whose territories the pipeline crosses. However, the article also states that the construction of pipelines or cables must satisfy environmental standards, particularly those set by the framework convention on environmental protection of the Caspian Sea. This means that any Caspian state—which would most likely be Russia—may veto construction of a trans-Caspian pipeline. The Russian team’s lead negotiator, Igor Bratchikov, made this clear in his statement for the press.

In sum, the convention document signed in August merely fixed in place the existing disputes and controversies surrounding use of the Caspian without laying out the means for disentangling and resolving their complexities. Until those issues are adequately addressed, the mere adoption of the convention can’t be regarded as a solution. Moreover, the convention itself must be ratified by all the Caspian states before it takes effect. And that ratification in turn may pivot on whether individual states decide to cling to “lake” or “sea” as a means of protecting their individual interests.