March 2022 (№21)
Volume 8; Issue 1; Page No. 35-52
ISSN: 2346-7916 (Print)
ISSN: 2587-5043 (Online)
INTERNATIONAL JOURNAL OF LAW: “LAW AND WORLD“
https://doi.org/10.36475/8.1.3

www.lawandworld.ge
Licensed under: CC BY-SA

What are the Applicable Norms andPrinciples of International Law Delimitationof the Caspian Sea?
Sedigheh Zarei
World Maritime University Alumni, United Nation (Sasakawa fellow), Head of investment anddevelopment department of Kish investment and Development Company (belong to Kish free zone), Iran
Henning Jessen(Supervisor of the Article) Associate Professor at World Maritime University, Sweden

ARTICLE INFOABSTRACT

Article History:

The purpose of this research was to identify the law applicable tothe delimitation of the Caspian Sea and selecting the best approachin this regards. In this sense, in the beginning, the geopolitical significance of the Caspian Sea in the region and the importance of theConvention on the Legal Status of the Caspian Sea were reviewed.
In order to examine applicable law, international legal resources under Article 38 of statute of international court of justice (ICJ) and thebest current approaches, standards, principles and methods for international maritime delimitation were discussed. Furthermore, themain source of current and past legal statutes of the Caspian Sea,
Soviet-Iranian agreement, bilateral agreement on the northern partof the Caspian Sea delimitation and the Caspian Sea Convention
was considered. In addition, special conditions and circumstance of
the Caspian Sea coast were assessed, and the best approach forthe demarcation of the Caspian Sea, the three stage approach, wasanalyzed. It is worthy to mention, this work is a compressed andupdate version of my Master thesis1 at world maritime university.

Received
Accepted
Published

02.03.2022		
22.03.2022
31.03.2022

Keywords:
Norm of sea delimitation,
Caspian Sea,
International law of the sea

126

Zarei, S., (2021). Identifying the Applicable Law and Approach Toward the Caspian. Sea delimitation. World Maritime
University.

“LAW AND WORLD“INTRODUCTION
The Caspian Sea is known as the world's largest inland water body, located in a geopolitical location, between Europe and Asia, having an areaof ​​390,000 km2, mean and maximum depths of
208 m and 1025 m respectively (Kosarev, 2005)2.
It is a source of 48 billion barrels of oil, 292 trillion
cubic feet (TCF) of gas (Kalanter, et al., (2021))3,
special biodiversity, and species such as sturgeons.
According to the report by the Food and Agriculture
Organization of the United Nations (FAO)4, “theCaspian Sea is the traditional home of sturgeon,
and the main producers of caviar in the world are
four states bordering the Caspian Sea: Azerbaijan,
Iran, Kazakhstan and Russia”.
After the collapse of the Soviet Union and the independence of three new countries, the number ofneighboring countries was increased to five, Azerbaijan, Kazakhstan, Turkmenistan, Iran and Russia,
and disputes arose over the legal status of the sea.
since, the only way to reach the World Ocean fromthe Caspian Sea is via the man-made Volga-Don
Canal, which lies entirely within Russian territory
and connects the Caspian Sea with the Black Sea(karataeva, 2019)5, the Iran and Russia argued that
Article 122 of the United Nations Convention on the
Law of the Sea (UNCLOS)6 does not apply, which
defined enclosed and semi-enclosed seas as “gulf,
basin or sea surrounded by two or more States andconnected to another sea or the ocean by a narrowoutlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two
2

3

4

5

6

Kosarev, A. N., (2005). Physico-geographical Conditionsof the Caspian Sea. In the Caspian Sea Environment. 5-31.
Springer, Berlin, Heidelberg. <https://link.springer.com/
chapter/10.1007/698> [Last seen: 21 March, 2022].
Kalanter, S. V., Maleki, A. & Saifoddin, A., (2021). Studyof Caspian Energy Markets Via a Hybrid Index For Energy
Demand Security in Caspian Countries in Years 2020 and
2030. International Journal of Energy and Water Resources, 1-13.
Food and Agriculture Organization (FAO). (n.d.). Sturgeons (Acipenseriformes). <http://www.fao.org/3/y5261e/
y5261e06.htm> [Last seen: 21 March, 2022].
Karataeva, E., (2019). The Convention on the Legal Statusof the Caspian Sea: The Final Answer or an Interim Solution to the Caspian Question? The International Journal of
Marine and Coastal Law, 35(2), 232-263.
United Nations. General Assembly. Convention on the lawof the Sea 1982. <https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf> [Last seen:
21 March, 2022].

or more coastal States”. Although UNCLOS didn’t
explain the type of “narrow outlet” whether it must
be natural or artificial, Iran and Russia to reduce therisk of the presence of third parties and due to shorter coastline, insisted, the Caspian Sea is not thesea, semi-enclosed or enclosed sea and it is a lakeand common property. Furthermore, Iran was not amember state of UNCLOS since didn’t ratify it andKazakhstan and Turkmenistan have neither signed
nor acceded either the Convention.
Lack of co-operation, growing disputes and unilateral action have increased opportunities for pollution, illegal fishing, and drug trafficking and illegal migration. (Zhekenov, 2020)7. However, states noticed
that the Caspian marine environment became fragile,
with excessive exploitation, habitat destruction, invasive species and oil pollution threatening the sea.
(Tsutsumi and Robinson, 2008)8. In light of this, theCaspian Maritime Environmental Protection Agreement, known as the Tehran Agreement, was signed
in 2003 and entered into force in 2006. Apart from the
Tehran Convention, four protocols were signed andthe uncertain legal status was one of the most important obstacles to the implementation of the protocols.
In addition, the discovery of oil fields in the northernpart of the Caspian Sea led to a trend of bilateralism, which Zimnitskaya and Geldern (2011)9 called
an innovative approach to the principle of "common
waters, a divided bottom" in the region, and by 2003
the northern part of the Caspian seabed was divided
by agreements between three states, the RussianFederation, the Republic of Azerbaijan and the Republic of Kazakhstan, but the agreements concerned
only the seabed. Finally, in August 2018, in Aktau,
Kazakhstan, five states signed the Convention on
the Legal Status of the Caspian Sea10. It was a monumental achievement, as the UN Secretary-General
7
8

9

10

Zhekenov, D., (2020). The Strategic Importance of the
Caspian Sea. Available at SSRN 3602279.
tsutsumi, R. & Robinson, K., (2008). Environmental Impact Assessment and the Framework Convention for theProtection of the Marine Environment of the Caspian Sea.
In Theory and practice of transboundary environmental
impact assessment. 53-70. Brill Nijhoff.
Zimnitskaya, H. & Von Geldern, J., (2011). Is the Caspian Sea a sea; and why does it matter? Journal of Eurasianstudies, 2(1), 1-14. <https://journals.sagepub.com/doi/full/10.1016/j.euras.2010> [Last seen: 21 March, 2022].
Convention on the Legal Status of the Caspian Sea, 2018.
<http://en.kremlin.ru/supplement/5328> [Last seen: 21
March, 2022].

“LAW AND WORLD“27welcomed the signing of the Caspian Sea Convention, stated "this historic document illustrating theimportance of regional cooperation, which is fundamental to maintaining international peace and security and an important step towards weakening regional
tensions”, and, Iranian President Hassan Rouhani
remarked11 “the signing of the Caspian Sea convention is a successful model for guaranteeing peace,stability, friendship, good neighborliness”. From a security point of view, the agreement actually provides
regional security since countries have agreed to ban
the presence of third parties in the Caspian Sea andbrings various political, environmental and economic
benefits to the states, as Janusz-Pawletta (2020)12
believed it is an important factor for sustainable development since it regulates the environment protection and access to energy. However, there are some
negative views toward the convention which for instance argued, some Articles of convention act as
obstacles to the exploration of oil and gas in the Caspian Sea and Iran and Russia intentionally put these
Articles, such as article 14(2) which declared “TheParties may lay trunk submarine pipelines on the
bed of the Caspian Sea, on the condition that theirprojects comply with environmental standards andrequirements embodied in the international agreements to which they are parties” (Gurbanov, 2018;
Bayramov, 2020)13. In parallel, Prichin and Anschchi(2019)14 argued the new convention only gives environmental surveillance powers to Russia and Iran.
Besides that, there were important issues of disputethat needed to be resolved.
Article 8(1) of the new convention states “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 andnorms of international law, to enable those States
to exercise their sovereign rights to the subsoil ex11

12

13

14

28

President addressing Caspian Sea Littoral States Summit.
<https://www.president.ir/EN/105637> [Last seen: 21
March, 2022].
Janusz-Pawletta, B., (2020). Legal framework for the interstate cooperation on development and transport of fossil
natural resources of the Caspian Sea. The Journal of World
Energy Law & Business, 13(2), 169-184.
Gurbanov, I., (2018). Caspian Convention and Perspectiveof Turkmenistan’s Gas Export to Europe’. Caucasus International, 8(2), 159-179.
Pritchin, S. & Anceschi, L., (2019). Caspian Sea. Russian
Analytical Digest (RAD), 235.

ploitation and other legitimate economic activities
related to the development of resources of the seabed and subsoil” and it does not clarify what norms
and principles of international law should be applied.
In the same vein, Article 7(3) and Article 9(1) of theconvention declared delimitation of internal and territorial waters and delimitation of fishery zone between States with adjacent coasts shall be effectedby agreement. Additionally, Iran subjected ratification of the Caspian Sea convention to the delimitation agreements. Since “each maritime delimitationcase differs and flexible consideration of relevant
factors is required to achieve an equitable result”(Tanaka, 2019)15 and delimitation of maritime zones
is crucial for peaceful relations between neighboring States (Lagoni and Vignes, 2006)16, defining thenorm and principles of delimitation will be a vital factor for the success of the new convention.

1. THE NORMS
AND PRINCIPLES
OF INTERNATIONAL LAW
FOR DELIMITATION
Before discussing international rules, standards
and principles of maritime borders, it is appropriate
to introduce the sources of the law of the sea. It
is generally accepted that the source of the recognized international law is reflected in the Article 38of the ICJ Constitution17 which states:“he court whose function is to decide under international law such disputes as are submitted to it
shall apply:●● general or particular international con­ventions, establishing rules expressly recognized by the contesting states;●● international custom, as evidence of a general practice accepted as law;●● the general principle of law recognized bycivilized nations;●● judicial decisions and the teachings of the
15
16

17

Tanaka, Y., (2019). Predictability and Flexibility in the Law
of Maritime Delimitation. Bloomsbury Publishing.
Lagoni, R. & Vignes, D. (Eds.), 2006. Maritime delimitation (Vol. 53). Brill. <https://books.google.se/books> [Lastseen: 21 March, 2022].
The International Court of Justice. Statute of theInternational Court of Justice. <https://www.icj-cij.org/en/
statute> [Last seen: 21 March, 2022].

“LAW AND WORLD“most highly qualified publicists of the various
nations as subsidiary means for the determination of rules of law”.
This Article lists sources of formal and material international law (Fitzmaurice, 2017)18.one of
the most important one are legal procedures bywhich legal rules come into existence. Customary law has two categories of public and private
or local customary law. Since treaties are binding
only on the parties involved, the rules of common
law are binding on all countries in the international community as the International Court of Justice(ICJ) stated:“General customary law must have equal force
for all members of the international community andcannot be subject of any right of unilateral exclusion.” (The North Sea Case, 1969)19.
Tanaka (2015)20 argued that, customary law
comes from two elements, namely an objective element, state practice, and a subjective element, judicial opinion. In addition to state practice, a treaty
may also generate a new common law rule. Roach(2014)21 listed in his study the rules of the UNCLOS that the international court has recognizedas customary international sea law, such as Article
15 and 83.
The boundary delimitation is governed by legislation, which over time has been expanded bycodification given in treaty provisions. Its growth
has also been substantially aided by the jurisprudence of the ICJ and ad hoc tribunals. Miron(2020)22 believed “The law on maritime delimitation is often characterized as judge-made law”.
In this regard, the source of maritime delimitation
was considered as follows.

18

19

20
21

22

Fitzmaurice, G. G., (2017). Some problems regarding theformal sources of international law. In Sources of international law. 57-80. Routledge.
North Sea Continental Shelf Cases, ICJ, 1969, <https://www.icj-cij.org/public/files/case-related/52/052> [Lastseen: 21 March, 2022].
Tanaka, Y., (2015). The International Law of the Sea.
Cambridge University Press.
Roach, J. A., (2014). Today's customary internationallaw of the sea. Ocean Development & International Law,
45(3), 239-259.
Miron, A., (2020). A Practitioner’s Guide to Maritime
Boundary Delimitation Maritime Boundary Delimitation:
The Case Law. Is It Consistent and Predictable? Cambridge University Press. 433.

1.1. Conventions Provisions
Concerning Maritime Delimitation
Three conventions relating to maritime delimitation of sea are, the 1958 Convention on the Territorial Sea and the contiguous Zone23 (hereinafterreferred to as TSC), the Convention on the Continental Shelf and the Convention on the Law of the
Sea (UNCLOS) 1982.
Paragraph 1 of Article 12 of TSC and Article 15
of UNCLOS provided the triple rule of “agreement –equidistance (median line) special circumstance.” fordelimitation of territorial sea. These two provisions
are generally considered to reflect customary law,which is consistent by applying the median line method if the states do not reach agreement. However, theconventions did not define the special circumstances
and it must be clarified during the development of jurisprudence and state practice in the field of maritime
delimitation. In addition, Article 6 of the convention
on the continental shelf 195824 introduced the notionof a special circumstance, similarly, UNCLOS contains special provisions, Article 74 and 83, for EEZ
delimitation and continental shelf which stated: “thedelimitation of the exclusive economic zone [the continental shelf] between states with opposite and adjacent coasts shall be effected by agreement basedon international law, as referred to in article 38 of thestatue of the international court of justice, to achieve
an equitable solution.” These two Articles omit any
reference to a method of delimitation. However, it isnoteworthy that the fundamental procedural principle
has been introduced by UNCLOS to sea delimitationis the peaceful settlement of international disputes
and emphasis on an agreement in good faith as the
ICJ stated:“Any delimitation must be effected by agreement
between the states concerned, either by the conclusion of the direct agreement or, by some alternative
method which must be based on consent” (the Gulfof Maine, 1984)25.
23

24

25

United Nations. General Assembly. Convention on the
Territorial Sea and the Contiguous Zone 1958. <https://legal.un.org/avl/ha/gclos/gclos.html> [Last seen: 21
March, 2022].
United Nations. General Assembly. Convention on theContinental Shelf 1958. <https://legal.un.org/ilc/texts/
instruments/english/conventions> [Last seen: 21 March,2022].
Gulf of Maine Case. ICJ, 1984. <https://www.icj-cij.org/
public/files/case-related/67/067-19841012-JUD>[Last“LAW AND WORLD“

29The most essential implication of the fundamental rule that maritime border delimitation should beaccomplished via agreement is that parties are free
to choose any delimitation line they choose basedon political, economic, geographic, or other considerations (DOALOS, 2000)26.

1.2. Approachesof Jurisprudence
to the Maritime Delimitation
Delimitation by judicial process is a legal operation and it is based on consideration of the law andthere is the distinction between delimitation basedon legal rules and delimitation by states during negotiation which is based on political consideration.
There are different approaches towards delimitation
as is described in the following parts.

1.1.2. Equidistance
Equidistance is the predictable method anddelimitation line mathematically determined. After1958 in many cases, governments did the negotiations by considering an equidistance line and the
majority of bilateral treaties on maritime delimitation
used this method. However, there may be complications if one state uses normal baselines that
follow the sinuosity of the coastline while the otheruses a straight baseline system that connects theoutermost islands, promontories, and rocks (Charney and Alexander, 1993)27. The ICJ and arbitral
tribunals reduced the equidistance technique's privileged standing as the basis of entitlement to boththe EEZ and the CS within 200 nautical, viewing it
as a method that, in some situations, may result ininequitable and irrational outcomes.

1.1.3. Equity principles
The equitable principle stems from court jurisprudence, which is the general guiding principle. It
combines two types of principles: procedural and
26

27

30

seen: 21 March, 2022].
United Nations. Office of Legal Affairs. Division for
Ocean Affairs, the Law of the Sea., (2000). Handbook on
the Delimitation of Maritime Boundaries. United Nations
Publications.
Charney, J. I. & Alexander, L. M. (Eds.), 1993. International
maritime boundaries. Martinus Nijhoff Publishers.

substantive. The procedural principle is that the delimitation is done by agreement, and the substantive
include equity. Cottier (2015)28 believed equity has
been a companion of the law ever since rule-based
legal systems emerged, and it provides a path tojustice if the law is unable to appropriately respond.
The equitable principle as customary law became
the main aspect of the law of maritime delimitation(Østhagen, 2020)29. The principle of equity and relevant circumstances has been stressed in article 59
of UNCLOS as a basis for the resolution of conflicts
regarding the attribution of rights and jurisdiction in
the EEZ. However, the approaches toward this principle were different as is described in the following
parts.
A) Result oriented equity approach
In the North Sea Case 1969, which involved
disputes of the Federal Republic of Germany with
the Netherlands and Denmark as regards theircontinental shelf delimitation, the ICJ held “there
is no single method of delimitation the use ofwhich is in all circumstance obligatory” and court
decided delimitation should be effected by agreement on the basis of equitable principle. The ICJ
stated equidistance line is not appropriate due tothe shape of the coasts of the Federal Republic of Germany, which was concave (Guernsey,
2000)30. In the same manner in the case of Guinea
and Guinea-Bissau before Arbitration Tribunal in
1983, the arbitral decided to reject the applicationof the equidistance method because of the existence of geographical circumstances, such as theconcave coasts of the States (McLarky, 1987)31.
This approach has been called the result-oriented
approach. It, focused on the equitable outcome
rather than the techniques to be used and provides the international court and tribunal’s opportunity to do not bind any method and decided
each case based on its own circumstance, as the
IJC stated:
28
29
30
31

Cottier, T., (2015). Equitable principles of maritime
boundary delimitation. Cambridge University Press.
Østhagen, A., (2020). Maritime boundary disputes: What are
they and why do they matter? Marine Policy, 120, 104118.
Guernsey, K. N., (2000). The North Sea Continental Shelf
Cases. Ohio NUL Rev., 27, 141.
McLarky, K. A., (1987). Guinea/Guinea-Bissau: Dispute
Concerning Delimitation of the Maritime Boundary, February 14, 1985. Md. J. Int'l L. & Trade, 11, 93.

“LAW AND WORLD“

“The result of the application of equitable principles must be equitable and the result which is predominant, the principles are subordinate the goal.
The equitable of a principle must be assessed in thelight of its usefulness for the purpose of arriving at
an equitable result”. (Tunisia v. Libya case, 1978)32.
B) Corrective Equity Approach
In the Libya/Malta case33 of 1985, the ICJ usedthe equidistance method just as starting point andequity as a corrective element and shift the equidistance line based on special circumstances.
This approach has been called “corrective –equity
approach”. In 1993, regrading delimitation of thecontinental shelf and fishery zone, the court byconsidering Article 6 of CS convention and customary law held:“Even if it were not appropriate to apply, not Article 6 of CS convention, but customary law concerning the continental shelf as developed in the decided cases, it is in accord with precedents, to begin
with, the median line as a provisional line and thento ask whether special circumstance require any adjustment or shifting that of the line” (Greenland v.
Jan Mayen case, 1993)34.
In this case, the court applied this approach as
customary law. In the Cameron v. Nigeria case35,
the court adopted a new interpretation, and since
there was no particular reference to any techniqueof delimitation in UNCLOS, it determined that a
specific method, namely the equidistance method,should be incorporated into these provisions.

tance line is first stage, then court will check therelevant circumstances in order to adjustment ofprovisional line and at the third stage, to avoid any
inequality the disproportionality test has to be applied. This approach also called the equidistance/
relevant circumstances method. This approach
has made maritime delimitation more predictable
and transparent (Miron, 2020)36. However, till now
courts have not established any recommended
technique for disproportionality test calculation(Fietta and Cleverly, 2016)37. In 2012, the ITLOS
used this approach and held:“At the first stage it will construct a provisional
equidistance line, based on the geography of thecasts and mathematical calculation, it will proceed
to the second stage of the process, which consistsof determining whether there are any relevant circumstances to adjustment, if so, it will make anadjustment the produces an equitable result. At the
final stage, the tribunal checks whether the adjusted
line results in any significant disproportion between
the ratio of the respective coastal lengths and theratio of the relevant maritime areas allocated toeach party.” (Bangladesh v. Myanmar, 2012)38.
Additionally, the ICJ, and arbitration used thisapproach, the ICJ in the Chile v. Peru case39, andthe arbitration in the Bangladesh V. India case.
Nowadays, international courts have transited fromthe result-oriented-equity approach to the threestage approach (Chuanxiang, 2016)40.

1.1.4. Relevant CircumstancesC) Three Stage Approach
For the first time in the Black sea case 2009
between Romania and Ukraine, the ICJ used
new formula which called “three-stage approach”.
Based on this approach, establishing the equidis32

33

34

35

Tunisia/Libya Case, ICJ, 1982. <https://www.icj-cij.org/
public/files/case-related/63/10660.pdf> [Last seen: 21
March, 2022].
Libya vs. Malta Case. ICJ, 1982. <https://www.icj-cij.org/
public/files/case-related/68/068-19820727-ORD> [Lastseen: 21 March, 2022].
Greenland/Jan Mayen Case, ICJ, 1993. <https://www.icjcij.org/public/files/case-related/78/078-19930614> [Lastseen: 21 March, 2022].
Cameroon v. Nigeria: Equatorial Guinea intervening case.
ICJ, 2002. <https://www.icj-cij.org/public/files/case-related/94/094-20021010-JUD-01-00-EN.pdf> [Last seen: 21
March, 2022].

The relevant circumstances are those circumstances are taken into account in the delimitation
process by States and the courts. Most relevant
and dominant geographical, historical, political,
economic, socio-economic, security, and otherkinds of factors can be taken into account by states,
36

37
38
39
40

Miron, A., (2020). A Practitioner’s Guide to Maritime
Boundary Delimitation Maritime Boundary Delimitation:
The Case Law. Is It Consistent and Predictable? Cambridge University Press. 433.
Fietta, S. & Cleverly, R., (2016). A Practitioner's Guide to Maritime Boundary Delimitation. Oxford University Press.
Bangladesh V. Myanmar, Bay of Bengal case. International Tribunal of Law of the Sea, 2012.
Peru v. Chile case. International Court of Justice, 2014.
Chuanxiang, S.U.N., (2016). 26 Comments on the Threestage Approach of Maritime Delimitation. In Challenges of
the Changing Arctic. 613-636. Brill Nijhoff.

“LAW AND WORLD“31open-ended categories, since till today not only theconventions, especially Article 6 of the convention
on the continental shelf and Article 15 of UNCLOS
but also courts did not provide the list of circumstances. In the Angelo – French case the United
Kingdom argued it does not mean there is no limitation for a special circumstance under Article 6 ofthe convention on the continental shelf but the court
rejected this claim (Evans,2018)41, which means
there is no limitation. However, DOALOS (2000)42,
stated “in the delimitation based on legal rule theinternational court has interpreted “relevant” criteria
and factors as directly relevant to the delimitation,
therefore, of a non-political or economic nature.”,Consequently in the negotiation stage, states havethe flexibility to influence the outcome in favor of
their interest.

2. SOURCES OF INTERNATIONALLAW FOR THE CASPIAN SEA
DELIMITATION
2.1. Agreements
To find the applicable law of maritime delimitation
for Caspian Sea, ascertaining whether there is any
pre-existing agreements relating to the maritime delimitation is crucial, in this regard Soviet-Iran agreements, additionally, delimitation agreements of thenorth part of the Caspian Sea will be reviewed.

agreement in 1941 (United Nation, Treaty Series,
1959).
After the disintegration of the USSR, these twoagreements were inadequate to deal with the presence of the new littoral states and their demand toward delimitation and consequently exploration andexploitation of natural resources in the seabed of
the sea. The treaties of 1921 and 1940 solely addressed navigation, fishing, and trade and did notclarify the legal status of the Caspian Sea, and neither provide an official and final delimitation line. In
addition, in this period (1921-1940) the concept of
EEZ and continental shelf was still some long years
away, while its general acceptance in practice andbeing introduced in the UNCLOS 1982. In this regard riparian states took various measures, which
demonstrated that they did not accept the validity ofthese agreements, nevertheless Turkmenistan in its
letter to the UN general assembly (UN General Assembly, 1998)44 accepted agreements. Additionally,by increasing the heated contention in the region,
Iran, and Russia as a party to these agreements, intheir joint statement (UN General Assembly, 2000)45
stated: “until the new legal status is devised for the
Caspian Sea, these two treaties retain their full legal
validity”. This statement gave the valid duration tothese agreements till introduction of the new legal
regime, and the texts represent evidence of the Parties’ understanding as far as the establishment of
future legal status of the sea is concerned.

2.1.1. Soviet-Iran agreements
During the era of the USSR, the Caspian Sea
was treated based on two agreements between Iranand USSR, the first one was signed on 26 February
1921(Mehdiyoun, 2000)43, and two parties were given equal shipping rights in the Caspian Sea as wellas the right to fly their flags on their commercial vessels and both reaffirmed the 10-nautical mile fishing zone in the Treaty of Commerce and Navigation

USSR in 1970 by its unilateral action set a delimitation line on the Caspian between Iran and
USSR and then divided its part into national sectors
among its Unions. In 1993, this delimitation wasapproved by Russia for the benefit of Kazakhstan,
Turkmenistan, and Azerbaijan, after disintegrationof its union. Russia entered into the seabed delimitation with Azerbaijan and Kazakhstan by differ-

41

44

42

43

32

2.1.2. Delimitation Agreements

Evans, M., (2018). Relevant circumstances. In Maritime Boundary Delimitation: The Case Law: Is It Consistent and Predictable? (pp. 222-261). Cambridge University Press.
United Nations. Office of Legal Affairs. Division for
Ocean Affairs, the Law of the Sea, 2000. Handbook on the
Delimitation of Maritime Boundaries. United Nations Publications.
Mehdiyoun, K., (2000). Ownership of oil and gas resources in the Caspian Sea. American Journal of InternationalLaw, 94(1), 179-189.

45

United Nation, General Assembly, Joint statement of the
President of the Islamic Republic of Iran to the Presidentof Turkmenistan, A/53/453, (October 1998), <https://digitallibrary.un.org/record/261632> [Last seen: 21 March,2022].
United Nation, General Assembly, Joint statement by the
Russian Federation and the Islamic Republic of Iran on
the proposed construction of a pipeline through the Caspian Sea, A/54/788, (March 2000), <https://digitallibrary.
un.org/record/409739> [Last seen: 21 March, 2022].

“LAW AND WORLD“ent agreements including the agreement between,
Russia and Kazakhstan in 1998, Russia and Azerbaijan in 2002, and the Agreement on the Convergence Point of the Delimitation Lines of Adjacent
Areas of the Caspian Seabed between Russia,
Azerbaijan, and Kazakhstan in 2003. Regarding theabove-mentioned agreements, the following matters call special attention:●● The preamble of these agreements stated“being guided by the conventional principles
and rules of international law”;●● Justified equidistance line method has beenused for delimitation in these agreements;●● Configuration of coast and islands has beentaken into account as a relevant circumstance;●● Based on Article 2 of the agreement between
Russia and Azerbaijan and Article 2 of the agreement between Russia and Kazakhstan “Development of mineral resources of the structures
crossed by the line of demarcation will be performed based on the international practice applied in case of development of cross-borderfields, the authorized organizations appointed by
the Governments of the parties”;●● These agreements just delimited the seabed, leaving main activates such as shipping, fishing, and environment regimes to be
determined later;●● All agreements have been declared illegal
by Iran.

2.2. Littoral States PracticeTunkin (1961)46 believed custom norms are being formed in international practice, as a rule, andopinio juris is an essential element of customarynorms. States practice can be a physical act, or
what they say such as policy statements, press released, opinion of official legal advisers and Opinio
Juris include public statements of states, diplomatic
correspondence, resolutions adopted by the international organization and it can play a crucial role inreflecting the interest of the international community. Following the disintegration of the USSR, the political view and practices of the coastal States were
contrary to each other. These views have beenshown in their letters to the UN general assemblyas the following table.

Table 1. Littoral state practice in the Caspian Sea region. Source: United Nation, General Assembly.

3

46

47.

48.

IMPORTANT POINTS OF STATEMENTS

Russia2

Date
A/49/475
October 199447

The Caspian Sea is a land-locked body of water. The norms of international maritime law, particularly
the territorial sea, EEZ and the continental shelf, are not applicable and any questions relating toactivities, including the exploitation of its resources, must be decided jointly by all states.

Azerbaijan
and
Kazakhstan

1

LETTER CODE

A/51/529
October 199648

The legal status of the Caspian Sea must be based on the generally recognized rules and principles
of international law and the international treaty, practice of States and the Parties recognized rights.

Turkmenistan

STATE

A/52/259
July 199749

Turkmenistan would welcome Russian-Azerbaijani agreement on the joint exploitation the CaspianSea if it does not includes the Serdar (formerly, Promezhutochnoe) deposit, which belongs to
Turkmenistan.

Tunkin, G. I., (1961). Remarks on the Juridical Natureof Customary Norms of International Law. Calif. L.
Rev., 49, 419.
United Nation, General Assembly, Position of theRussian Federation regarding the legal regime of the
Caspian Sea, A/49/475, (October 1994), <https://digitallibrary.un.org/record/163135?ln=en> [Last seen: 21
March, 2022].
United Nation, General Assembly, Joint statement on

49.
46

Caspian Sea questions adopted by the Presidents of
Azerbaijan and Kazakhstan in Baku, A/51/529, (October1996),<https://digitallibrary.un.org/record/222831?ln=en> [Last seen: 21 March, 2022].
United Nation, General Assembly, Statement issued
by the Ministry of Foreign Affairs of Turkmenistan, A/52/259, (July 1997), <https://digitallibrary.
Tunkin, G. I., (1961). Remarks on the Juridical Nature ofun.org/record/240871?ln=en> [Last seen: 21 March,
Customary Norms of International Law. Calif. L. Rev., 49,2022].
419.

“LAW AND WORLD“33Kazakhstan
Iran

A/52/324
September 199751

Iran

A/52/325
September 199752

Kazakhstan

A/52/424 October
1997538

Iran

A/52/588
November 199754

9

Russiaand Kazakhstan

A/52/802
February 199855

Iran

A/52/913
May 199856

5

6

7

10

11

12

50.

51.

52.

53.

54.

34

Iran

4

Russia andKazakhstan

A/52/318
September199750Russia has invited tenders for the exploitation of the mineral resources of the Caspian Sea and theareas involved lie partly within the Kazakh sector. Kazakhstan does not rule out the possibility of
exploiting jointly and such activity must be carried in accordance with the norms and principles
of international law.
It should be recalled that the successor States of the USSR, in accordance with the Alma Ata
Declaration of 1991, have guaranteed "the discharge of the international obligations deriving fromtreaties and agreements concluded by the former Union of Soviet Socialist Republics". Therefore
soviet-Iran agreements are binding on all successor States.
The joint statement by Kazakhstan and Turkmenistan relating to "the delimitation of administrative
and territorial borders along a line running through the middle of the Sea" bears no legal value.
Any use of the Caspian Sea will take place within the demarcation zones established during theexistence of the former USSR, using the median-line method adopted in international practice and
UNCLOS should be extended to the Caspian Sea.
The official announcement by Azerbaijan, regarding exploitation of oil from the Cheragh reservoir,
violate legal regime as defined in soviet Iran treaties.
The sides agreed to demilitarize the Kazakhstan-Russian part of the Caspian seabed on the basisof the principle of equidistant as well as the principle of agreement.
Treaty 1921 and 1940 contain no provisions for delimitation. And these instruments remains binding
and any attempt to divide the Sea is unacceptable. Consequently, the inclusion of such terms as
the "Kazakhstan Part" or the "Russian Part" is in contravention of the existing legal regime.

A/52/983
S/1998/693
July 199857

The seabed of the northern part of the Caspian Sea and the subsoil thereof, without prejudice tothe continued common use of the water’s surface, including the freedom of navigation, agreed
fishing quotas and environmental protection, shall be delimited between the Parties along a
median line adjusted on the basis of the principle of justice and the agreement of the Parties.

A/52/1011
August 199858

The Agreement signed by Russia and Kazakhstan regarding the legal status of the Caspian Sea
bears no legal merit.

United Nation, General Assembly, Statement issued by
the Ministry of Foreign Affairs of Kazakhstan, A/52/318,(September 1997), <https://digitallibrary.un.org/record/243239> [Last seen: 21 March, 2022].
United Nation, General Assembly, Position of the Islamic Republic of Iran concerning the legal regime of the
Caspian Sea, A/52/324, (September 1997), <https://digitallibrary.un.org/record/243268> [Last seen: 21 March,2022].
United Nation, General Assembly, the Permanent Mission of the Islamic Republic of Iran to the United Nations
addressed to the Secretary-General with reference tothe joint statement signed by the Presidents of Kazakhstan and Turkmenistan, A/52/325, (September 1997),<https://digitallibrary.un.org/record/243266> [Last seen:
21 March, 2022].
United Nation, General Assembly, Letter from the Minister for Foreign Affairs of the Republic of Kazakhstan addressed to the Secretary-General, Position of Kazakhstanon the legal status of the Caspian Sea, A/52/424, (October 1997), <https://digitallibrary.un.org/record/244600>[Last seen: 21 March, 2022].
United Nation, General Assembly, Declaration express-

55.

56.

57.

58.

ing the position of the Islamic Republic of Iran on the exploitation of the resources of the Caspian Sea, A/52/588,(November 1997), <https://digitallibrary.un.org/record/246697?ln> [Last seen: 21 March, 2022].
United Nation, General Assembly, Statement by the Ministry of Foreign Affairs of the Republic of Kazakhstan,
A/52/802, (February 1998), <https://digitallibrary.un.org/record/250916?ln=en> [Last seen: 21 March, 2022].
United Nation, General Assembly, Statement of theForeign Ministry of the Islamic Republic of Iran,
A/52/913, (May 1998), <https://digitallibrary.un.org/record/254563?ln=en> [Last seen: 21 March, 2022].
United Nation, General Assembly, Joint Statement by
the President of the Russian Federation and the Presidentof the Republic of Kazakhstan, A/52/983, (July 1998),<https://digitallibrary.un.org/record/258452?ln=en>[Last seen: 21 March, 2022].
United Nation, General Assembly, Statement of theForeign Ministry of the Islamic Republic of Iran on theAgreement signed by the President of the Russian Federation and the President of the Republic of Kazakhstan,
A/52/1011, (August 1998), <https://digitallibrary.un.org/
record/258299> [Last seen: 21 March, 2022].

“LAW AND WORLD“

21

59.

60.

61.

62.

63.

A/56/304
August 200162

The state-owned Oil Corporation of Azerbaijan, intends to carry out activities in the Alborz oil field
and to conduct any kind of activities, such as research projects, exploration and exploitation inthis oil field, necessary permission should be obtained from Iran. Thus, the said activities in the
Alborz oil field would be contrary to the interests of Iran.

A/56/850
February 200263

Agreement signed on 29 November 2001 by the Republic of Kazakhstan and the Republic ofAzerbaijan regarding the division of the Caspian Sea is in contravention of the existing legal statusof the Caspian Sea.

A/56/927
April 200264

Kazakhstan and Azerbaijan find the Iranian side’s contention that the Agreement of 29 November
2001 between the Kazakhstan and the Azerbaijan concerning the delimitation of the bed of the
Caspian Sea contravenes “existing legal instruments governing the legal status of the CaspianSea” to be unfounded.

A/56/1017
July 200265

The general agreement of all coastal States of a given lake is the only principle that applies to thedelimitation of international lakes. Since, the Caspian Sea is a unique international lake, bilateralagreement between Azerbaijan and Kazakhstan contravenes the said principle.

A/58/719
S/2004/137
200466

The parties attach exceptional importance to the signing of bilateral and multilateral agreements
to delimit the Caspian seabed between Russia, Azerbaijan and Kazakhstan, including the Agreement
between Russia and Azerbaijan in 2002 and the Agreement on the Convergence Point of the DelimitationLines of Adjacent Areas of the Caspian Seabed between Russia, Azerbaijan and Kazakhstan in 2003.

Iran andTurkmenistanAzerbaijan

20

Iran

19

Iran

18

Rejecting the protest made by Azerbaijan regarding the Iran agreement with oil companies by
invoking the 1921 and 1940 agreements and raising the Azerbaijani sector of the Caspian Sea islegally unfounded.

Iran

17

A/53/890
March 199961

Iran

16

A/53/741
December 199860

An agreement between Iran and the Shell and Lasmo oil companies on geological and geophysicalprospecting in an area which includes part of the Azerbaijani sector is illegal. And the sovereign rightsof the littoral States extend to the corresponding national sectors which have been established as aresult of the traditional activities of the littoral States and the use of the Caspian Sea within national
sectors on the basis of the recognized customary international law remains in effect. Iranian claims to
20 per cent of the territory are contrary to the rules and principles of international law.

Azerbaijan
and
Kazakhstan

15

A/53/453
October 199859

Russia andAzerbaijan

14

Soviet – Iran agreements are the sole international documents governing the Caspian Sea legal
issues. Condominium arrangement for the common use of the Caspian Sea by the littoral States
through assuming a sectoral coastal strip as the national zone is the most appropriate basis. In
case of division, the two sides emphasized the principle of equal share and equitable exploitationof the resources.

United Nation, General Assembly, Joint statement of the
President of the Islamic Republic of Iran to the Presidentof Turkmenistan, A/53/453, (October 1998), <https://digitallibrary.un.org/record/261632> [Last seen: 21 March,2022].
United Nation, General Assembly, Statement by the
Ministry of Foreign Affairs of the Azerbaijani Republic,
A/53/741, (December 1998), <https://digitallibrary.un.org/record/266364?ln=en> [Last seen: 21 March, 2022].
United Nation, General Assembly, Statement made by
the spokesman of the Ministry of Foreign Affairs of
the Islamic Republic of Iran, A/53/890, (March 1999),<https://digitallibrary.un.org/record/1491722>[Lastseen: 21 March, 2022].
United Nation, General Assembly, Annex to the letter
dated 16 August 2001 from the Permanent Representative of the Islamic Republic of Iran to the United Nations
addressed to the Secretary-General, A/56/304, (August2001),<https://digitallibrary.un.org/record/447131>[Last seen: 21 March, 2022].
United Nation, General Assembly, Letter dated 28 Feb-

64.

65.

66.

ruary 2002 from the Chargé d’affaires a.i. of the Permanent Mission of the Islamic Republic of Iran to the United
Nations addressed to the Secretary-General, A/56/850,(February2002),<https://digitallibrary.un.org/record/459204> [Last seen: 21 March, 2022].
United Nation, General Assembly, Letter dated 15 April
2002 from the Permanent Representatives of Azerbaijan
and Kazakhstan to the United Nations addressed to the Secretary-General, A/56/927, () April 2002, <https://digitallibrary.un.org/record/462931> [Last seen: 21 March, 2022].
United Nation, General Assembly, Letter dated 26 July
2002 from the Chargé d’affaires a.i. of the Permanent Mission of the Islamic Republic of Iran to the United Nations
addressed to the Secretary-General, A/56/1017, (July
2002),<https://digitallibrary.un.org/record/470529?ln=en> [Last seen: 21 March, 2022].
United Nation, General Assembly, Letter from theRussian Federation and the Republic of Azerbaijan,
A/58/719, (February 2004), <https://digitallibrary.un.org/record/516646#record-files> [Last seen: 21 March,2022].

“LAW AND WORLD“35

As it is shown in table 1, however, all five states
had diverging approaches toward the Caspian Sea,
and a considerable number of the arguments presented by states to the UN general assembly concerning delimitation, they believed the delimitation
has to be done by bilateral or multilateral agreementon the bases of international law and principles.

2.3. UNCLOS 1982
and Customary Law
Regarding the applicability of the UNCLOS 1982
as a treaty source of international law for delimitationof the Caspian Sea, two issues call for brief comments. Firstly, according to Article 34 of the VCLT,6747“a treaty does not create either obligations or rights forthe third state without its consent”, in this vein, Someof the littoral states of the Caspian Sea are not members of this treaty, furthermore, Article 1 of the convention on the legal status of the Caspian Sea, defined
this sea as a body of water which surrounded by theland territories of the Parties, nor sea nor closed sea,consequently the UNCLOS as treaty law is not applicable. However, the fact that not all coastal states areparty to the UNCLOS does not preclude the application of customary international law, which has beenrecognized by international tribunals. To the subject
matter, as before has been discussed, Article 15, 74
and 83 of UNCLOS which are related to delimitation ofmaritime zones, became customary international law.
In addition, based on Articles 74 and 83 of UNCLOS,
as customary law, delimitation must be achieved byagreement and results in equity. The doctrine of equitable principle, which is based on ex aequo et bono, isthe fundamental norm of customary international law
related to maritime delimitation and provides effective
delimitation by agreement (Kwiakowska, 1988).6848

2.4. Convention on Legal Status
of Caspian Sea
The Caspian Sea Convention establishes only
basic concepts, and other contentious topics have
67
68

36

Vienna Convention on the Law of Treaties., (1969).
Kwiakowska, B., (1988). Equitable maritime boundary delimitation-A legal perspective. Int'l J. Estuarine & Coastal
L., 3, 287.

been postponed to future treaties. Reviewing thestrength and weaknesses of the convention is beyond the topic of this research, however, somepoints merit particular attention as follow:●● According to the preamble of the convention“the Convention is based on the principles
and norms of the Charter of the United Nations and international law”;●● Convention defined maritime zones differently from the UNCLOS. The Caspian Sea
According to Article 5 of its convention, is
split into territorial seas, fishery zones, sectors and common maritime space;●● 15 nautical miles from the baseline has been
allocated as the breadth of the territorialzone. And based on article 7, “delimitationof internal and territorial waters between
States with adjacent coasts shall be effected by agreement based on the principles
and norms of international law”. However,the Article does not cover the opposite costs
delimitation such as Turkmenistan and Azerbaijan situation;
Based on the convention, where the coastline isindented or where there is a fringe of islands along
the coast in its immediate vicinity, Straight baselines
shall be used and Article 1 declared “the methodology for establishing straight baselines shall be determined in a separate agreement among all the Parties”. This means states to negotiate for delimitation
first must gain approval of all stats to draw Straightbaselines. However, as Schofield (2012)6949 stated,claim from straight baseline arise from varied interpretation of cut or indented coast, how many, howclose to one another and how far offshore fringing
islands need to be. In this vein, there is a lot of possibility for claim;●● Based on Article 9, 10 nautical miles-wide
adjacent to the territorial waters has been
defined as a fishery zone which has to bedelimitated between States with adjacentcoasts by agreement based on the principles
and norms of international law and it does
not cover the opposite costs delimitation;●● Contrary to the UNCLOS, which defined the69

Schofield, C., (2012). Departures from the coast: Trends
in the application of territorial sea baselines under the lawof the sea convention. The International Journal of Marine
and Coastal Law, 27(4), 723-732.

“LAW AND WORLD“maximum extension of the continental shelfby each state, the Caspian Sea convention
named the parts of the seabed and subsoil
for the subsoil exploitation as “sector” without allocation specific breadth. Nevertheless, similarly, to the UNCLOS, the seabeddelimitation shall be effected by agreement
between States;●● The convention is silent about the validity ofthe seabed delimitation agreements of thenorth of the Caspian Sea;●● Ratification of the convention by parties is
not subject to the delimitation agreements
however Iran postponed the ratification of
the convention to the agreements of delimitation and defining the methodology of thedrawing baseline by coastal states.
In summary, by taking everything into account, theconclusion could be drawn that the applicable law tothe delimitation of the Caspian case is customary law
and the sources of judicial decisions, since the Caspian Sea convention has not been entered into force
and some of the littoral states are not a party to the
UNCLOS. It is noteworthy, even in case of entering
into force of Caspian Sea convention, the new convention introduces the same way of maritime delimitation which has been declared by Article 74 and 83 of
UNCLOS, by agreement. However, Article 74 and 83
of UNCLOS did not specify any delimitation method,emphasized the content of “an equitable solution”. Regardless of whatever method is employed, the delimitation must be equitable, and to achieve equity, consideration should be given to the possible existenceof special circumstance. For instance, Soviet – Irantreaties are viewed as the historical right which Iranrelied on, however, based on Article 2 of the Iranianlaw on the exploration and exploitation of the resources in the continental shelf, declared “as regards the
Caspian Sea, the rule of the international law relating
to close sea are applicable”. It is obvious, the Iranianlawmakers recognized that Soviet-Iranian Treaties did
not apply to the delimitation of Caspian Sea resources.

CONCLUSION
Over two decades, the legal regime and statusof the Caspian Sea remain to be debated amongscholars and politicians till the convention on legal

statutes of the Caspian Sea has been signed in2018 which the Kazakh President Nursultan Nazarbayev considered as the “constitution of the Caspian Sea”. However, this instrument just reflects acompromise trend between the littoral States since
the sea bed and zones should be delimitated byagreements (Karataeva, 2019).7050
Unsettled delimitation of zones and seabedwould lead to a variety of risks such as breach ofinternational peace, security, and political instability,
reducing economic activities, an increase of pollution and risk of losing biodiversity due to lack of environmental cooperation, obstacles for navigation,
shipping and fishing activity, and unclear sovereign
rights and jurisdiction. In this regard, a brief accounthas been given to the introduction of the issue andliterature review, and in the next step, the norm andprinciple of international law in maritime delimitation have been reviewed. Therefore, based on anassessment of the entirety of the sources, agreements, texts, and negotiating history, as well as thestate's practice in formulating their maritime claims,
it is in the best interests of coastal states to engage
in negotiations to reach an agreement on maritime
boundary delimitation on the base of principle ofcustomary international law, the principle of equity
to secure the economic benefits and sustainability
goals, that will be derived from a clear and recognized definition of the maritime zone's extension.
The negotiation stage can be planned based on athree-stage approach which is the methodology thathas been usually employed in seeking an equitable
solution recently. Based on this approach, a preliminary delimitation line is established first to reach anequal outcome, as DOALOS (2000) stated “Practicehas shown that it is better to start the bilateral negotiations with a line and not to introduce right at the outset
the notion of the relevant area, this may be prescribedfor early disagreement since relevant will reveal itself
in the process of the negotiation” and then at the next
step relevant factors are reviewed to adjust the line toreach an equity outcome.
In the negotiation, states have the flexibility to
influence the outcome in favor of their interest by
applying different factors for drawing the line that
70

Karataeva, E., (2019). The Convention on the Legal Statusof the Caspian Sea: The Final Answer or an Interim Solution to the Caspian Question? The International Journal of
Marine and Coastal Law, 35(2), 232-263.

“LAW AND WORLD“37they consider equitable. Without a doubt, boundary
delimitation impacts and interacts with a variety ofvariables, including political issues, historical andcultural considerations, strategic and security concerns, main economic interests, and demographic
group interests. In the case of the Caspian Sea, theconfiguration of coast, presence of the island, andnatural resources, and historical rights can be discussed in this stage. However, regarding fishery right
DOALOS advised “fisheries, in particular, are betteravoided in such an agreement. As fisheries dynamics change over time, there may be a consequent
need to renegotiate such issues. If included in theagreement, these issues may give rise to reopening
the agreement as a whole, including its part on thedelimitation. A more advisable approach, would beto deal with living marine resources separately fromthe maritime boundary delimitation agreement”. Finally, states assess whether the effect of the line, as
adjusted, is such that the Parties’ respective sharesof the relevant area are markedly disproportionate
to the lengths of their relevant coast.
Moreover, delimitation Agreements of thenorth part of the Caspian Sea, does not bear out
claims that the Caspian was treated by the littoral states as a condominium, on the other hand,demonstrate that the littoral states acknowledged
the justified median line for delimitation and regrading mineral resources demarcation will be
performed based on the international practice applied in case of development of cross-border fields.
In the same manner in other parts of the CaspianSea, states may be aware of or expect to discover
petroleum or gas deposits in regions where theboundary line passes. Various resource-deposit
provisions are commonly used to deal with thisproblem. These could be resource-sharing clauses, resource-unity clauses, or resource conservation, management, and management clauses infuture agreement in south part of sea.

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