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Free Access to and from the Ocean in the Convention on the Legal Status of the Caspian Sea: The Law of the Sea and the Caspian “Body of Water”

Published online by Cambridge University Press:  20 August 2021

Alberto PECORARO
Alberto PECORARO*
Affiliation:
Law and Development Research Group, University of Antwerp, Antwerp, Belgium
*
Corresponding author: Alberto PECORARO, email: [email protected]
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Abstract

Access to and from the sea for landlocked states has been a long-standing issue in the law of the sea. Such issue is also addressed by the Convention on the Legal Status of the Caspian Sea (or Aktau Convention), which foresees a right of free access to other seas for landlocked State Parties—Azerbaijan, Kazakhstan, and Turkmenistan—through the Russian Federation. At the same time, it upholds the transit state's sovereignty and right to protect its legitimate interests. Consequently, it is important to assess the limits of the transit state's discretion pursuant to the Aktau Convention. In this regard, that instrument has important linkages with UNCLOS and with general international law. These linkages introduce in the Aktau Convention various norms—such as due regard and reasonableness—that play an important role in its interpretation.

Keywords

Convention on the Legal Status of the Caspian Sealandlocked statesUNCLOS
Type
Article
Information
Asian Journal of International Law , Volume 11 , Issue 2 , July 2021 , pp. 281 - 298
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press

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Footnotes

*

Doctoral Fellow, Law and Development Research Group, University of Antwerp, Antwerp, Belgium.

References

1 James L. KATEKA, “Landlocked Developing Countries and the Law of the Sea” in Isabelle BUFFARD, James CRAWFORD, Alain PELLET, and Stephan WITTICH, eds., International Law Between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner (Leiden: Martinus Nijhoff, 2008), 767 at 769.

2 Tiyanjana MALUWA, “Southern African Land-locked States and Rights of Access under the New Law of the Sea” (1995) 10 International Journal of Marine and Coastal Law 529 at 530.

3 South Africa virtually blockaded Lesotho to force the expulsion of ANC members from that landlocked state. See Erik VAN EES, “South Africa Lifts Blockade of Lesotho” United Press International (25 January 1986), online: United Press International <https://www.upi.com/Archives/1986/01/25/South-Africa-lifts-blockade-of-Lesotho/8160507013200/>.

4 The Volga-Don canal is the only ingress for over-sized offshore drilling rigs and other support equipment for the Caspian Sea. During the 1995–96 war with Chechnya, the Russian government closed the Volga-Don canal to ships sailing under the Azerbaijani flag. However, Russia had indicated a willingness to sign documents with Azerbaijan over the “question of maintaining joint use of the Caspian Sea's water surface and water mass for purposes of ensuring freedom of navigation and compliance with uniform standards of fishing and environmental protection” (see Timothy L. THOMAS, “Russian National Interests and the Caspian Sea” (1999) 4Perceptions: Journal of International Affairs 75 at 75–96).

5 KARATAEVA, Elena, “The Convention on the Legal Status of the Caspian Sea: The Final Answer or an Interim Solution to the Caspian Question?” (2020) 35 International Journal of Marine and Coastal Law 232CrossRefGoogle Scholar at 243.

6 Agreement Concerning Transit Questions, 25 April 1957, 672 U.N.T.S. 280 (entered into force 26 October 1962), art. 1:

the Union of Soviet Socialist Republics shall grant to Iranian governmental organizations, trading companies and merchants the right of free transit through its territory of all goods destined for Iran, irrespective of the country of origin and of export of such goods. This right shall not extend to the conveyance in transit of weapons and war matériel from third countries.

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9 BATYR, V.A., “The Balanced Current Special Status of the Caspian Sea under International Law” (2019) 1 Lex Russica 51CrossRefGoogle Scholar at 61.

10 Ibid., at 58.

11 Convention on the Legal Status of the Caspian Sea, 12 August 2018, online: Official Internet Resources of the President of Russia <http://en.kremlin.ru/supplement/5328> [Caspian Sea Convention], art. 1(1).

12 JANUSZ-PAWLETTA, Barbara, “Legal Framework for the Interstate Cooperation on Development and Transport of Fossil Natural Resources of the Caspian Sea” (2020) 13 Journal of World Energy Law and Business 169CrossRefGoogle Scholar at 182.

13 Karataeva, supra note 5.

14 Caspian Sea Convention, art. 3(11): “The Parties shall carry out their activities in the Caspian Sea in accordance with the following principles: … Navigation in, entry to and exit from the Caspian Sea exclusively by ships flying the flag of one of the Parties.”

15 Robert R. CHURCHILL and Alan V. LOWE, The Law of the Sea, 3rd ed. (New York: Juris Publishing/Manchester: Manchester University Press, 1999) at 440.

16 Russia—Measures Concerning Traffic in Transit, Report of the Panel, Decision of 5 April 2019, [2019] WT/DS512/R at 63, para. 7.174.

17 Convention on the High Seas, 29 April 1958, 450 U.N.T.S. 11 (entered into force 30 September 1962), art. 3 (emphasis added).

18 Helmut TUERK, “Forgotten Rights? Landlocked States and the Law of the Sea” in Rüdiger WOLFRUM, Maja SERŠIĆ, and Trpimir ŠOŠIĆ, eds., Contemporary Developments in International Law: Essays in Honour of Budislav Vukas (Leiden: Brill Nijhoff, 2016), 337 at 343.

19 Convention on Transit Trade of Land-locked States, 8 July 1965, 597 U.N.T.S. 3 (entered into force 9 June 1967), art. 2.

20 Ibid.

21 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 3 (entered into force 16 November 1994) [UNCLOS], art. 125.

22 Ibid., art. 87, these freedoms are: (a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine cables and pipelines, subject to Part VI; (d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; (e) freedom of fishing, subject to the conditions laid down in Section 2; and (f) freedom of scientific research, subject to Parts VI and XIII.

23 Ibid. (emphasis added).

24 Tuerk, supra note 18 at 347.

25 Kateka, supra note 1 at 780.

26 FRENCH, Duncan, “Treaty Interpretation and Incorporation of Extraneous Legal Rules” (2006) 55 International and Comparative Law Quarterly 281CrossRefGoogle Scholar at 295.

27 HARRISON, James, “Patrolling the Boundaries of Coastal State Enforcement Powers: The Interpretation and Application of UNCLOS Safeguards Relating to the Arrest of Foreign-flagged Ships” (2018) 42 l'Observateur des Nations Unies 117Google Scholar at 121.

28 UNCLOS, art. 293: “A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention.”

29 MIRON, Alina, “The Archipelagic Status Reconsidered in Light of the South China Sea and Düzgit Integrity Awards” (2018) 15 Indonesian Journal of International Law 306CrossRefGoogle Scholar at 322.

30 Arctic Sunrise Case (Netherlands v. Russia), Award of 14 August 2015, [2015] PCA Case No. 2014-02 at 82, para. 328.

31 Ibid., at 46, para. 197.

32 Ibid., at 46, para. 198.

33 UNCLOS, art. 49.

34 Duzgit Integrity Arbitration (Malta v. São Tomé and Príncipe), Award of 5 September 2016, [2016] PCA Case No. 2014-07 [Duzgit Integrity] at 54, para. 208.

35 Ibid., at 54, para. 209.

36 Ibid., at 69–70, para. 256.

37 Ibid., at 70–1, para. 260.

38 Caspian Sea Convention, art. 12(3):

Each Party, in the exercise of its sovereignty, sovereign rights to the subsoil exploitation and other legitimate economic activities related to the development of resources of the seabed and subsoil, and exclusive rights to harvest aquatic biological resources as well as for the purposes of conserving and managing such resources in its fishery zone, may take measures in respect of ships of other Parties, including boarding, inspection, hot pursuit, detention, arrest and judicial proceedings, as may be necessary to ensure compliance with its laws and regulations.

39 UNCLOS, art. 73(1):

The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.

40 UNCLOS, art. 78(2): “The exercise of the rights of the coastal State over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other States as provided for in this Convention.”

41 Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v. Myanmar), Judgment of 14 March 2012, [2012] ITLOS Case No. 16 [Bay of Bengal Case] at 121, para. 475.

42 Caspian Sea Convention, art. 15(4): “[t]he Parties shall be liable under the norms of international law for any damage caused to the ecological system of the Caspian Sea.”

43 See Case Concerning Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Decision of 25 September 1997, [1997] I.C.J. Rep. 7 at 67–8, “[b]y inserting these evolving provisions in the Treaty, the parties recognized the potential necessity to adapt the Project. Consequently, the Treaty is not static, and is open to adapt to emerging norms of international law.”

44 MOX Plant Case, Request for Provisional Measures Order (Ireland v. United Kingdom), Decision of 3 December 2001, [2001] ITLOS Case No. 10 at 106, para. 51.

45 Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission (ILC), finalized by Martti KOSKENNIEMI, UN Doc. A/CN.4/L/682 (2006), at 13.

46 Caspian Sea Convention, arts. 3(10), 10(4).

47 Ibid., art. 3(10) (emphasis added).

48 UNCLOS; see for example arts. 58(3), 79(5), 87.

49 Filleting within the Gulf of St. Lawrence between Canada and France (France v. Canada), Award of 17 July 1986, [1986] XIX Reports of International Arbitral Awards 225 [Filleting within the Gulf of St. Laurence Arbitration] at 258–9, para. 54: “like the exercise of any authority the exercise of regulatory authority is always subject to the rule of reasonableness.”

50 Affaire du Lac Lanoux (Spain v. France), Decision of 16 November 1957, [1957] XII Reports of International Arbitral Awards 281 [Lake Lanoux Arbitration] at 315.

51 Caspian Sea Convention, art. 10 (emphasis added).

52 Fisheries Jurisdiction Case (United Kingdom v. Iceland), Judgment of 25 July 1974, [1974] I.C.J. Rep. 3 at 31, para. 72.

53 Mathias FORTEAU, “The Legal Nature and Content of ‘Due Regard’ Obligations in Recent International Case Law” (2019) 34 International Journal of Marine and Coastal Law 25 at 29.

54 Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, [2015] PCA Case No. 2011-03 [Chagos MPA Arbitration] at 202, para. 519.

55 Ibid.

56 Tullio TREVES, “‘Due Regard’ Obligations under the 1982 UN Convention on the Law of the Sea: The Laying of Cables and Activities in the Area” (2019) 34 International Journal of Marine and Coastal Law 167 at 178.

57 Forteau, supra note 53 at 34.

58 Bay of Bengal Case, supra note 41 at 121, paras. 475–6.

59 Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, Advisory Opinion of 2 April 2015, [2015] ITLOS Case No. 21 at 68.

60 Lake Lanoux Arbitration, supra note 50 (emphasis added).

61 Chagos MPA Arbitration, supra note 54 at 203, para. 520.

62 Caspian Sea Convention, preamble and art. 3 (emphasis added).

63 Chagos MPA Arbitration, supra note 54 at 198, para. 504.

64 Caspian Sea Convention, art. 10 (emphasis added).

65 Enzo CANNIZZARO, “Proportionality and Margin of Appreciation in the Whaling Case: Reconciling Antithetical Doctrines?” (2017) 27 European Journal of International Law 1061 at 1068.

66 Filleting within the Gulf of St. Laurence Arbitration, supra note 49.

67 M/V “Virginia G” Case (Panama v. Guinea-Bissau), Judgment of 14 April 2014, [2014] ITLOS Case No. 19 [M/V “Virginia G”] at 81, para. 270.

68 James HARRISON, “Checks and Balances on the Regulatory Powers of the International Seabed Authority” (unpublished), quoting Olivier CORTEN, “Reasonableness in International Law” in Rüdiger WOLFRUM, vol. VIII, ed., Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2013), 645 at para. 15.

69 Duzgit Integrity, supra note 34 at 54, para. 209 (emphasis added).

70 Affaire concernant le filetage à l'intérieur du golfe du Saint-Laurent entre le Canada et la France: “this rule requires that a state proportionates its behaviour to the legally pursued goal taking into account the rights and freedoms conceded to other states.”

71 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment of 31 March 2014, [2014] I.C.J. Rep. 226 [Whaling in the Antarctic]. This was a reason cited by Judge Yusuf in his dissent (at 386, para. 12), when stating that:

The Court does not, however, use that applicable law to evaluate whether the special permits issued by Japan for JARPA II are for purposes of scientific research. Instead of using those parameters, the Court comes up with a standard of review that is extraneous to the Convention.

72 Arbitration Regarding the Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands, Decision of 24 May 2005, [2005] XXVII Reports of International Arbitral Awards 35 at 100, para. 163, and at 111, para. 202.

73 Ibid., at 111, para. 203.

74 Ibid., at 111, para. 205.

75 International Convention for the Regulation of Whaling, 2 December 1946, 161 U.N.T.S. 72 (entered into force 10 November 1948), art. VIII:

Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit.

76 STRAIN, Nicola, “Regulating Collective Resources under Multilateral Treaties: The Decision in Whaling in the Antarctic (Australia v Japan)” (2019) 20 Melbourne Journal of International Law 572Google Scholar at 588–9.

77 Whaling in the Antarctic, supra note 71 at 258, para. 88.

78 Ibid. (emphasis added).

79 Ibid., at 270–1, para. 140.

80 Ibid., at 274, para. 155.

81 Cannizzaro, supra note 65 at 1063.

82 M/V “Virginia G”, supra note 67 at 77, para. 254, quoting Tomimaru (Japan v. Russian Federation), Prompt Release, Judgment of 6 August 2007, [2007] ITLOS Case No. 15 at 96, paras. 75–6.

83 Ibid., at 78, para. 257.

84 Ibid.

85 Ibid., at 78, para. 256.

86 Ibid., at 77, para. 254.

87 Duzgit Integrity, supra note 34 at 69, para. 255.

88 Ibid., at 62, para. 235.

89 Ibid., at 69–70, para. 256.

90 Ibid., at 70–1, para. 260.

91 HAMAMOTO, Shotaro, “The Genesis of the ‘Due Regard’ Obligations in the United Nations Convention on the Law of the Sea” (2019) 34 International Journal of Marine and Coastal Law 7CrossRefGoogle Scholar at 13.

92 Rio Declaration on Environment and Development, United Nations Conference on Environment and Development, UN Doc. A/CONF.151/26 (1992), Vol. I, Principle 4: “environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.”

93 Christian DOMINICÉ, “The Iron Rhine Arbitration and the Emergence of a Principle of General International Law” in Tafsir Malick NDIAYE and Rüdiger WOLFRUM, Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah (Leiden: Martinus Nijhoff, 2007), 1067 at 1070.

94 Caspian Sea Convention, art. 3.

95 SCHILL, S.W. and DJANIĆ, V., “Wherefore Art Thou? Towards a Public Interest-based Justification of International Investment Law” (2018) 33 ICSID Review 29CrossRefGoogle Scholar at 47.

96 M/V “Virginia G”, supra note 67, Joint Dissenting Opinion of Vice-President Hoffmann and Judges Marotta Rangel, Chandrasekhara Rao, Kateka, Gao, and Bouguetaia at 225, para. 49.

97 Ibid., at 229, para. 60; Duzgit Integrity, supra note 34, Dissenting Opinion of Judge Kateka at 5–6, para. 12.

98 Diversion of Water from Meuse (Netherlands v. Belgium), Judgment of 28 June 1937, [1937] P.C.I.J. Series A/B No. 70 at 25, para. 84.

99 General Comment No. 32, Article 14: Right to Equality Before Courts and Tribunals and to a Fair Trial, UN Human Rights Committee, UN Doc. CCPR/C/GC/32 (2007).

100 Caspian Sea Convention, art. 21(2):

Any dispute between the Parties regarding the interpretation or application of this Convention which cannot be settled in accordance with paragraph 1 of this Article may be referred, at the discretion of the Parties, for settlement through other peaceful means provided for by international law.