INTRODUCTION
This is a difficult historical record to duplicate. In the Caspian Sea,
for example, while there are historical a Geography is a descriptive science.
Its classifications are designed to aid in understanding our world. When
jurists import those classifications into law, they sometimes overlook
two related assumptions: first, that geographic similarities and differences
should generate similarities and differences in the norms that govern human
activities; and second, that the purposes of particular geographic classifications
are relevant to the purposes of determining which norms should apply.
Geographers themselves do not make such assumptions. Their descriptions
distinguish between political geography and other forms of geography. Some
are designed to describe human activity. Many are not.
In addition, the choice of proper names in geography is not the result
of scientific, legal or political classification. Most proper names used
to identify natural features defer to custom. The traditional but controversial
appellation "Persian Gulf" need have no more political connotation than
the widely accepted terms "Indian Ocean" or "Gulf of Mexico." Under the
international law of the sea, the same legal regimes apply in the Gulf
of Mexico and the Red Sea, but not in the Gulf of Fonseca. In German, the
same root noun, see, albeit with different gender, is used to describe
both large seas connected to the open ocean, such as the Nordsee,
and relatively small lakes, such as the Stamberger See where the ill-starred
King and relatively Ludwig of Bavaria met his doom.
'I'his is not to say that geographic or geophysical classifications
have not had a major impact on the law. The most obvious are the distinctions
between land and sea and air. Under modern international law, the historical
system for allocating territorial sovereignty on land, rooted (directly
or through state succession) in conquest, effective occupation and cession,
does not apply at sea. The legal status of air space is determined by reference
to the status of the subjacent surface of the planet. (1)
Perhaps the most celebrated example of the appropriation of a geographic
term by jurists concerns the continental shelf. The 1945 Truman Proclamation
used the geographic concept of the continental shelf as the foundation
for the expansion of coastal state jurisdiction over the seabed beyond
the territorial sea.(2) The subsequent history of the legal concept of
the continental shelf amply illustrates its alteration to accommodate normative
rather than descriptive considerations.(3) The UN Convention on the Law
of the Sea redefined the continental shelf to embrace the entire area within
200 miles (4) of the coastal baselines, without regard to seabed geography,
or beyond that to the edge of the continental margin (of which, in geography,
the shelf Is but the initial landward component). (5)
With this the term becomes a pure normative concept: It embraces but
no longer reflects the ordinary geographic understanding of the term "continental
shelf." (6)
What this suggests is that even where geography itself establishes the
normative classification In principle, that is merely the beginning and
not the end of the legal inquiry. Legal regimes are the product of normative
and pragmatic considerations relevant to the regulation of relevant human
activities In the area in question. When geographic classification itself
is relevant to the normative and practical objectives of the regime, it
may play a prominent role. This is illustrated by the extension of coastal
state jurisdiction over the continental margin, by the use of an ecological
boundary to define the area of applicability of the convention for
the Conservation of Antarctic Marine Living Resources (7) and by a systemic
definition of international watercourses adopted by the International Law
Commission in its draft articles on the law of the non-navigational uses
of international watercourses.(8) But when decision-makers believe
such classification may frustrate normative and practical objectives, they
reject it. This is illustrated by the rejection of arguments for a geologic
boundary based on the "natural prolongation" concept in the Tunisia/Libya
Continental Shelf case (9) and of arguments for an ecologically influenced
boundary in the Gulf of Maine case.(10)
SEAS AND LAKES
Most of the planet's surface is covered by water. Most of that water area
is governed by a branch of international law whose emergence coincides
with that of modern international law, namely the law of the sea. But the
law of the sea itself recognizes that "internal waters" are subject to
the sovereignty of the riparian states. Traditionally, the use of classic
internal waters was not extensively regulated by the law of the sea, if
at all. Rivers and lakes are prime examples of classic internal waters.
The main reasons for the distinction are historic and, to some degree,
functional. The triumph of Grotius' theory of mare liberum removed
virtually all of the sea from the system of national sovereignty that obtained
on land. Its primary purpose was to guarantee global freedom of navigation
on the open sea. Its object therefore was the open ocean and all seas connected
to it. That object had no bearing on bodies of water completely cut off
from the open sea, like most lakes. While its logic could have extended
to navigable rivers bordered by more than one state, that did not occur,
at least not directly.(11) Although its logic bad a major impact
on the regime of straits, artificial canals were not regarded as straits
and are considered internal waters governed by special regimes.
It is sometimes said that rivers and lakes are subject to the regime
of the land. That statement can be misleading. Unlike the sea, rivers and
lakes are subject to national sovereignty without regard to the distance
from shore, and their use for navigation or any other purposes is subject
to authorization and control by one or more riparian states.(12) But, like
coastal areas at sea, rivers and lakes normally come under state sovereignty
by virtue of the prolongation of sovereignty from land, not independent
conquest or effective Occupation. As with marine areas subject to coastal
state sovereignty, the right to regulate activities in rivers and
lakes that border more than one state is usually allocated geographically
between the riparian states by agreement, and is also subject to special
regimes designed to accommodate the interests of all the riparian states
in navigation, non-navigational uses, and environmental protection. Significant
responsibility for regulating ships and those on board reposes in the flag
state.
THE CASPIAN SEA
These preliminary considerations suggest several things about the Caspian
Sea. First, and most obviously, the fact that its proper name uses the
word "Sea" says little if anything about either its scientific or its normative
classification. Second, the important legal question is not whether the
Caspian Sea is classified by geographers as a sea or a lake, but what are
the international legal rules governing relevant human activities with
regard to the Caspian Sea. (13) The substantive question14 then becomes:
To what extent, if any, does the legal classification of the Caspian Sea
as a sea or a lake make a difference in selecting between competing legal
results?
In considering this question, it is necessary to have some idea of what
we mean by "sea" in this context. If we mean semi-enclosed marine areas
subject in their entirety to the sovereignty of coastal states, then there
are two possibilities generally recognized by the law of the sea: juridical
bays surrounded by a single state whose entrance does not exceed 24 miles
or, in relatively rare instances, historic bays or waters over which coastal
states have acquired title by prescription over a long period of time.(15)
If we mean semi-enclosed marine seas with dimensions comparable to those
of the Caspian Sea, then we are not addressing areas subject in their entirety
to the sovereignty of the coastal states. Such seas would contain internal
waters subject to coastal state sovereignty landward of coastal baselines,
and territorial seas subject to coastal state sovereignty up to 12 miles
from the coastal baselines, but beyond 12 miles there would be more limited
coastal state rights in 24-mile contiguous zones, 200-mile exclusive economic
zones, and continental shelves.(16)
None of these examples fits the Caspian Sea, at least not perfectly.
It is not a juridical bay because It is surrounded by more than one state.
It is automatically subject to the control of the riparian states; prescriptive
title erganomnes is irrelevant.(17) Unlike semi-enclosed marine seas of
comparable size, It is subject in its entirety to the sovereignty of the
riparian states.
Thus, the real issue is not whether the Caspian Sea is a sea or a lake
as such, but whether, in light of its natural, political, and historic
characteristics, its regime is, or should be, analogous to the regime we
normally associate with lakes, or with historic bays, or with marine semi-enclosed
seas, in each case bordered by more than one state.
Of these, only the last is subject to a widely accepted written articulation
of the relevant rules
of international law as positive law, namely the UN Convention on the
Law of the Sea.(18) There are a fair number of lakes bordered by more than
one state and a few bordered by more than two states, (19) but they are
not the specific object of a generally accepted codification. They would,
however, be governed by a future convention incorporating the International
Law Commission's draft articles on international watercourses.(20)
Geography. On the one hand, like most lakes, the Caspian Sea
is fed by rivers and is not connected directly to the open sea. Apart from
the rivers, it Is completely surrounded by land. It is below sea level.
On the other hand, unlike most lakes, the Caspian Sea is bordered by
several states.(21) It is the largest inland body of water in the world,(22)
comparable in size, depth and salinity (23) to many semi-enclosed marine
seas.(24) Rivers feed the Caspian Sea, but do not drain it. It is possible
to navigate between the Caspian Sea and the open ocean by a complex network
of rivers and canals.
Nonriparian States. The law of the sea establishes navigational
and other freedoms and rights that may be exercised by all states. Thus,
for example, in a semi-enclosed marine sea such as the Persian Gulf all
states enjoy freedom of navigation and overflight and related rights in
the exclusive economic zone beyond the territorial sea, the right of transit
passage through the territorial sea and claimed internal waters at the
entrance to the Gulf in the Strait of Hormuz, and the right of innocent
passage within the ter ritorial sea and those waters that are internal
only because they are enclosed by a system of straight baselines.
Absent some special regime to the contrary, nonriparian states enjoy
no such freedoms or rights in lakes. Lakes may be used only by or
with the consent of the riparian states. In this regard, at least,
the regime of the Caspian Sea is presumably regarded as analogous to that
of a lake.(25)
Riparian States. If lakes are subject to the exclusive control
of the riparian states, and a particular lake is bordered by two or more
states, then the real questions are:
(1) Do the riparian states enjoy their rights in common in the
same area, or is the lake divided between or among them, each exercising
its rights in its own area? Is the answer the same for all purposes in
all parts of the lake, or are areas immediately adjacent to the coast treated
differently from other areas for some or all purposes?
(2) To the extent that the area is to be divided, what are the
relevant delimitation rules?
(3) What are the duties of the riparian states to each other,
and to the international community as a whole, in the exercise of their
rights?
The same questions may arise with respect to seas. The usual (but not
necessarily the only) response of states bordering semi-enclosed seas,
like states bordering lakes, is geographic division by agreement supplemented
by cooperative arrangements regarding matters such as scientific research,
fisheries management and pollution control.(28)
Condominium or Partition? There is no doubt that the states bordering
the Caspian Sea may reach agreement on joint use, joint control, geographic
partition, or some combination of these in different areas or with respect
to different uses.
If there is any lesson to be learned from the modern law of the sea,
it is that there is a vast middle ground between these options. Thus, for
example, beyond a relatively narrow belt of territorial sea, a partitioned
exclusive economic zone places certain uses (mainly resources) under coastal
state control but places other uses (mainly navigation and communications)
under flag state control. In each case, however, limitations are imposed
on the exercise of that control, and there are duties to cooperate.
In the context of a negotiation, the main considerations are the interests
and policy preferences of the parties. To the extent these differ, there
is a temptation to resort to legal arguments to buttress one's position.
Whatever those arguments may be, there is no persuasive evidence that a
position favoring partition or a position favoring common use and control
(or condominium) is decisively affected by the question of whether the
area's legal status is that of a sea or that of a lake; the specific geography
and history of that body of water and its uses are more likely to be dispositive.(27)
The reality is that most lakes and semi-enclosed seas bordered by more
than one state have been partitioned. That partition has been accompanied
by various degrees of cooperation and joint management. Those arguing for
condominium bear a substantial burden. But, as demonstrated by the case
of Lake Constance over a substantial period, it is possible to agree on
the regulation of particular uses and achieve pragmatic accommodations,
even between neutrals and belligerents in time of war, without resolving
the question of whether there is to be a condominium or partition, and
therefore without any formal and complete partition of sovereignty.(28)
In the Case Concerning the Land, Island and Maritime Frontier Dispute,(29)
a chamber of the International Court of Justice round the Gulf of Fonseca
to be an historic bay that would have had the status of internal waters
as a juridical bay had It been bordered by only one state.(30) The Chamber
found that each of the three riparian states was entitled to a three-mile
belt off its coast, but beyond that found the waters of the Gulf to be
held in common by the three states. In explaining its conclusion, the Chamber
stated:
[T]hose waters were waters of a single-State bay during the greater
part of their known history. They were, during the colonial period, and
even during the period of the Federal Republic of Central America not divided
or apportioned between the different administrative units which at that
date became the three coastal States of El Salvador, Honduras and Nicaragua.
There was no attempt to divide and delimit those waters according to the
principle of uti possidetis luris. The Chamber has been much struck at
the fundamental difference, in this respect. between the land areas It
has had to deal with. and this maritime area.... A joint succession of
the three States to the maritime area seems in these circumstances to be
the logical outcome of the principle of uti possidetis luris itself.(31)
This is a difficult historical record to dublicate, In the Caspian Sea,
fo rexample, while there are historical analogs, the practice of the Soviet
Union prior to its dissolution(32) and the practice of Azerbaijan(33)
and others(34) subsequent to dissolution may suggest a geographic division
at least with respect to subsoil resources.(35)
Navigation and Communications. In the event of a geographic division
of jurisdiction of a semi-enclosed marine sea, the effect on coastal state
communications interests is automatically moderated. This is because under
the law of the sea each coastal state enjoys the same communications freedoms
and rights as all other states. Thus, in areas of a semi-enclosed marine
sea allocated to its neighbor, each state nevertheless enjoys:
(1) the freedoms of navigation and over-flight, the freedom
to lay and maintain submarine cables and pipelines, and related rights
in the exclusive economic zone, and
(2) the right of innocent passage (or, In most straits, transit
passage) through the territorial sea and certain internal waters.
There are two principal reasons why riparian states might desire a similar
result in a lake. One is security and law enforcement. Navigation rights
would permit each state to patrol all or most of the lake, thereby increasing
its ability to deal with security, immigration, smuggling, and other law
enforcement problems.
The other is trade and communications. This is not a problem with respect
to communications between the riparian states concerned, since each In
any event determines the extent of such communication with its land territory.
But it may be a problem where navigation, cable or pipeline routes important
to one state must traverse a part of a lake belonging to another state
in order to communicate between points outside the second state. Such a
problem is most likely to arise where there are more than two states bordering
a lake (or system of lakes and rivers). Thus, for example, were the Caspian
Sea completely divided among the riparian states on the basis of lines
generally equidistant from their respective coasts, communications between
Iran and Russia or Kazakstan would have to pass through waters belonging
to Azerbaijan or
Turkmenistan.
Whether all states bordering a particular lake enjoy communications
rights in all or most of the lake is not determined conclusively by its
status as a lake. It would be determined by express agreement among the
riparian states or, failing that, by reference to customs (or estoppels)
that have developed regarding the lake as well as the geographic and other
objective necessities of the situation.(36)
In the Case Concerning the Land, Island and Maritime Frontier Dispute,
the Chamber stated that "the particular historical regime established by
practice must be especially important in a pluri-State bay; a kind of bay
for which there are notoriously no agreed and codified general rules of
the kind so well established for single-State bays."(37) The Chamber
went on to note that those general rules for single-State bays "are not
necessarily appropriate to a bay which is a pluri-State bay and Is also
an historic bay. ... More-over, the Gulf being a bay with three coastal
States, there is a need for shipping to have access to any of the coastal
States through the main channels between the bay and the ocean."(38)
At least some of this analysis would appear to be relevant to navigation
and communications interests in lakes bordered by several states. There
is of course no question of direct access to the open sea, but there may
be indirect access through a system of rivers and canals. Even where that
is not the case, there maybe navigation and communications interests in
the lake itself.
Perhaps more importantly, there appears to be little doubt that the
concerns expressed by the Chamber regarding access for shipping influenced
its overall conclusion in favor of joint sovereignty over most of the Gulf.
Those who favor partition might consider whether a solution to the navigation
and communications problems posed by partition could facilitate acceptance
of partition by the riparian states as well as by a tribunal. Quite apart
from general state practice,(39) with respect to the Caspian Sea
such an approach could find support in the 1921 treaty between Persia and
Russia, which declares that "the two High Contracting Parties shall enjoy
equal rights of free navigation on that Sea, under their own flags."(40)
Hydrocarbons and Minerals. Insofar as control of hydrocarbon
and mineral deposits is concerned, there is no significant difference between
lakes and marine semi-enclosed seas. In lakes, as in other internal waters
and the territorial sea, the sovereignty of the riparian states in cludes
the subsoil. in semi-enclosed seas, beyond the maximum 12-mile limit of
the territorial sea, the coastal state exercises sovereign rights over
the exploration and exploitation of living and nonliving resources of the
seabed and subsoil, including oil and gas, within the 200-mile exclusive
economic zone and over any continental margin that extends beyond that
limit.(41) While the sovereign rights of the coastal state in the exclusive
economic zone and on the continental shelf are subject to some limitations
that are not expressly applicable to lakes or other internal waters, in
reality those limitations, where rel evant, are likely to apply in lakes
to some de gree as well, if only by analogy.
For example, the Law of the Sea Convention establishes detailed rules
regulating the location of offshore installations and safety zones around
them.(42) The primary purposes of these rules are to protect foreign navigation
and other uses and to prevent accidents. If the regime in a lake is such
that no foreign navigation or other activity occurs or is permitted in
areas where the riparian state has established drilling rigs or other installations,
then it is up to that riparian state to decide the extent, if any, to which
it wishes to adopt policies to protect its own ships and routes (subject
to its environmental obligations). But if the regime in a lake is such
that foreign navigation, fishing or other activity ex ists as a matter
of right or is otherwise permitted in the relevant areas, then some accommodation
of uses is required, and the rules of the law of the sea are likely to
provide a useful guide.
Fisheries Management. A major portion of the Caspian Sea sturgeon
stock spends the summer months in the northern part of the Sea (and the
Volga and Ural rivers) and the winter months in the central and southern
parts of the Sea.(43) This poses a problem with respect to conservation
and management, and perhaps with respect to efficient fishing patterns.
Geographic partition cannot ensure sound management or equitable allocation
of migrating stocks. The choice is between cooperative arrangements among
the riparian states based on flag state jurisdiction and cooperative arrangements
among the riparian states based on riparian state jurisdiction, or some
combination of the two.
Biology is at the heart of the problem that requires cooperative resolution.
That is true whether the legal status of the area is that of a semi-enclosed
sea or a lake or anything else.
Environment Protection. The UN Convention on the Law of the Sea
contains a comprehen sive and powerful environmental protection re gime.(44)
But the assumption that requirements in a multistate lake are likely to
be significantly less exacting may be unduly facile. Pollution of a lake,
even a large lake, is likely to affect fish ing and other interests of
the other riparian states. To the extent the lake is divided, in many cases
the legal situation posed will be that of transboundary pollution, one
of the developing branches of international environmental law.(45)
To the extent the lake is undivided, the legal situation posed will be
that of damage to an area subject to the joint sovereignty of another state,
which could well be viewed as analogous to dam age to the high seas.
The environmental provisions of the draft articles prepared by the International
Law Commission on the law of the non-navigational uses of international
watercourses,46 which include lakes. were substantially influenced by the
UN Convention on the Law of the Sea. Article 7 of the draft articles provides,
"Watercourse States shall exercise due diligence to utilize an inter national
watercourse in such a way as not to cause significant harm to other watercourse
States."47 Article 20 provides: "Watercourse States shall, individually
or jointly, protect and preserve the ecosystems of international water
courses."(48) Like Part XII of the Law of the Sea Convention, the draft
articles contain detailed provisions on water pollution, exotic species,
cooperative management, notice and consultation, and other matters.
The underlying reality is that the riparian states will have to
cooperate to a significant degree to protect the environment of the Caspian
Sea. None of them can achieve this alone, and geographic partition cannot
guarantee protection of the environment of any given part. The riparian
states will have to address not only sources of pollution arising from
uses of the Sea itself, but land-based sources and pollution borne by rivers.
This is not easy. Canada and the US have devoted many years to cooperative
efforts to clean up and protect the Great Lakes; while much has been accomplished,
they still have much to do.
The Duty Cooperate. Article 123 of the UN Convention on the Law
of the Sea provides:
States bordering an enclosed or semi-en closed sea should cooperate
with each other in the exercise of their rights and in the performance
of their duties under this Convention. To this end they shall endeavour,
directly or through an appropriate regional organization:
(a) to coordinate the management, conservation, exploration
and exploitation of the living resources of the sea;
(b) to coordinate the implementation of their rights and
duties with respect to the protection and preservation of the marine environment;
(c) to coordinate their scientific research policies and
undertake where appropriate joint
programmes of scientific research in the area;
(d) to invite, as appropriate, other interested States
or international organizations to cooperate with them in furtherance of
the pro visions of this article.
To this, one might add the provisions of article 63, paragraph
1:
where the same stock or stocks of associated species occur within
the exclusive economic zones of two or more coastal States, these States
shall seek, either directly or through appropriate subregional or regional
organizations, to agree upon the measures necessary to coordinate and ensure
the conservation and development of such stocks. . .(49)
Part XII, on Protection and Preservation of the Marine Environment,
contains numerous requirements for regional consultation and cooperation.(50)
As the discussion in previous sections demonstrates, the principles
reflected In these pro visions flow from the necessities of the situation,
not from any factors inherently relevant to marine areas but not to lakes.
If regarding the law of semi-enclosed marine seas as the appropriate model
for these purposes facilitates the necessary cooperation and provides more
explicit guidance to the riparian states, so much the better. But calling
the Caspian a lake will not change the inherent need for essentially the
same level of cooperation to protect the rights and interests, individual
and joint, of all the riparian states.(51) Nor can it escape the political
and potential legal effects of the elaborate provisions for consultation
and cooperation contained in the International Law Commission's draft articles
on international watercourses, which will be the basis for work on a new
convention commencing this year.(52)
Delimitation Principles. Few subjects of inter national law have generated
as many decisions by international tribunals in recent years as has
the question of delimitation of marine areas between neighboring coastal
states. There is little reason to believe that the underlying principles
are inherently different for lakes. In the very first of the modern cases,
both the opinion of the Court (53) and the opinions of individual judges(54)
examined the general law of delimitation with respect to lakes and marine
areas with out distinction, particularly insofar as Internal waters are
concerned.
Certainly the principle that delimitation is to be effected by agreement,
and may not be imposed by one state upon another, is applicable to lakes,
rivers and marine areas alike. The states concerned are free to divide
the areas in question in any way they please. The precise "law" of delimitation
is relevant to the extent that one or another state wishes to make legal
arguments in support of its position in the negotiations, and of course
to the extent the question of delimitation is submitted to an international
tribunal.
The question Is whether the law of delimitation of lakes is less flexible
than the law of delimitation of marine areas, particularly the exclusive
economic zone or the continental shelf.With respect to the latter areas,
the International Court of Justice and other tribunals have rejected the
idea that equidistance(55) enjoys priority either as a principle or a method
of delimitation, and have embraced a more flexible view that delimitation
is to be effected in accordance with equitable principles, taking into
account all relevant circumstances, in order to achieve an equitable result.
With respect to the territorial sea, the UN Convention on the Law of
the Sea provides:
neither of the two States Is entitled, falling agreement between them
to the contrary. to extend its territorial sea beyond the median line every
point of which Is equidistant from the nearest points on the [coastal baselines].
The above prevision does not apply, however, where It Is necessary by reason
of historic title or other special circumstances to delimit the territorial
seas of the two States in a way which is at variance therewith. (56)
In practice, this is often a distinction with out a difference. One
person's equitable principles or equitable result is another person's special
circumstances.(57) Neither state practice nor law-making treaties nor decisions
of inter national tribunals mandate the use of equidistance in all cases.
While a substantial number of agreements between states delimiting marine
areas use equidistance or some close approximation thereof, a significant
number do not. And while a number of judicial and arbitral decisions use
equidistance as the point of de parture for analyzing the location of the
boundary, those that do frequently simplify, adjust(58) or move the line,
often substantially.
The principal problem with equidistance is coastal geometry. Particularly
as one moves further from shore. the effect of coastal configuration. irregularities
and minor features on the location of an equidistance line is exaggerated.
This is especially true where the respective coasts are adjacent to each
other. The cases illustrate these problems. In the North Sea Continental
Shelf cases,(59) were equidistance used, the relatively convex coasts of
the Netherlands and Denmark would have had a cut~ff effect on the concave
German coast. In the arbitration between Canada and France, equidistance
would have had the effect of creating large parabolas around the small
offshore islands of St. Pierre and Miquelon blocking the seaward projection
of the Canadian continental coast. In the Gulf of Maine (60) and Libya/Malta(61)
cases, equidistance would have produced a result substantially disproportionate
to the relative lengths of coastline of the parties facing the area to
be delimited.
Closer to shore, these problems sometimes are not as serious. Moreover,
for reasons of security and law enforcement, it Is generally considered
that small islands and other relatively minor features should retain some
jurisdiction close to shore.(62) Because the waters are usually close to
shore, equidistance is often more appropriate for delimiting internal waters
or the territorial sea than the exclusive economic zone or the continental
shelf. But the important consideration is the effect of using equidistance,
not the status of the waters. Thus, for example, equidistance is not the
basic method for dividing a navigable river between states on opposite
sides of the river. The "thalweg" is frequently used because navigation
was traditionally regarded as the predominant interest of the states concerned,
and dividing the deepest channel between them is the appropriate partition
from that perspective.(63)
Moreover, notwithstanding assertions by some publicists that equidistance
is the rule of division particularly between opposite coasts,(64)
the practice of states with respect to the division of lakes Indicates
no consistent use of equidistance.(65) It is used most often, but not consistently,
between Opposite coasts, and even then is often simplified and adjusted
to form long, straight lines.
Given the substantial size of the Caspian Sea, it would appear that
some of the problems with strict equidistance that arise in maritime delimitation
in semi-enclosed seas could arise there as well. This does not mean equidistance
is not appropriate In many or even all circumstances. But it does mean
that a prior Insistence on equidistance without considering its effects
would run counter to the vast body of learning and jurisprudence that has
developed on the question of delimitation in the last quarter century.
From this perspective, at least, it makes sense to apply the underlying
principles in the way they might be applied in a semi-enclosed marine sea.
Perhaps more importantly, the governments concerned should consider
carefully for what purposes partition is necessary or desirable at any
given time. If, for example, a regime of free navigation and joint regulation
of fishing are contemplated, then it could be useful to limit discussion
of delimitation to other specific uses for which it is immediately relevant,
such as development of hydrocarbon and mineral deposits.
CONCLUSION
Attempting to determine the rights and duties of the states concerned by
a process of deductive reasoning based on the status of the Caspian Sea
as a sea or a lake is largely, if not entirely, a pointless endeavor. The
true answer to the question of whether it is a lake or a sea is the eternal
answer of the thoughtful lawyer: "That depends."
If the question concerns the rights of nonriparian states and whether
all uses of the Sea as a whole are subject to control by the riparian states,
the appropriate place to look for the relevant rules is probably the law
applicable to lakes. If the question concerns navigation and communications,
to the extent that one or more riparian states have important navigation
or communications interests in areas removed from their own shore, the
appropriate place to look for the relevant rules could well be the law
applicable to semi-enclosed marine seas or, with much the same result,
the navigation regime established by Russia and Persia for the Caspian
Sea itself.(66) If the question concerns delimitation between the riparian
states, especially in areas more distant from shore, the learning and jurisprudence
developed for marine seas is likely to be useful. As to other matters,
as a practical if not a legal matter, it does not make much difference,
if any.
With respect to hydrocarbon and mineral deposits, partition would seem
to be a sensible result (assuming communications and environmental concerns
can be accommodated). It is supported by overwhelming state practice.(67)
This is true even in the Mediterranean Sea, where most coastal states exercise
partitioned continental shelf jurisdiction over the seabed and subsoil,
but have refrained from declaring or partitioning exclusive economic zones
in the water column beyond the territorial sea.
With respect to scientific research, fisheries conservation and management,
and protection and preservation of the environment, partition at best is
unlikely to protect the full range of interests of the riparian states,
and at worst may complicate their ability to conclude necessary cooperative
arrangements with each other. On the other hand, were the riparian states
to conclude strong cooperative arrangements with each other on these matters,
functional partition could facilitate enforcement of those arrangements.
Legal regimes exist to serve people. What the Caspian Sea needs is a
regime, probably a fairly complex regime, that takes into account its characteristics
and history, and that serves the diverse needs as well as the common interests
of the peoples along its shores. That is the real challenge faced by the
governments of the riparian states. A debate about the abstract status
of the Caspian Sea is an unnecessary and potentially expensive diversion.
References:
1. 'The effect of territorial sovereignty on civil aviation is moderated
to a significant degree by the Convention on International Civil Aviation,
Dec. 7, 1944, 61 Stat. 1180, 3 Bevans 944,15 UNTS 295.
2. Presidential Proclamation 2667, Sept. 28, 1945, 10 Fed. Reg.
12303 (1945). Assuming that for certain geographic purposes the continental
shelf is properly regarded a natural extension of the land, one is nevertheless
left to wonder why this geographic fact, in and of itself, suggests a normative
conclusion that the resources of the continental shelf should therefore
be subject to the control of one coastal state. Or that this exclusive
control should not extend further than the geographic continental shelf.
Or that this exclusive control should embrace sedentary species and Installations
extending Into the water column but not swimming fish, wrecks or submarine
cables and pipelines.
3. The 1958 Convention on the Continental Shelf made clear that
the concept applies to seabed areas off the coast of islands, and, defined
the continental) shelf its extending at least to the 200-meter isobath
(a liberal approximation of the geographic concept) and beyond that limit
to where the depth of the superjacent waters admits of the exploitation
of the natural resources of the seabed and subsoil. Convention on the Continental
Shelf, Apr.(29), 1958, art. 1,15 UST 471, TIAS 5578, 499 UNTS 311.
4. The references are to nautical miles.
5. United Nations Convention on the Law of the Sea, Dec. 10.(19)82,
art. 76, UN Doe. MCONF.(62)/122(1982). reprinted In United Nations, Official
Text of the United Nations Convention on the Law of the Sea with Annexes
and index, UN Sales. No. E.(83).v.5 (1983), and Senate Treaty Doc. 103-39(1994)
(hereinafter cited as the Law of the Sea Convention). For purposes of this
study, It Is assumed that the Convention reflects the existing customary
international law of the sea.
6. The fact that prominent petroleum geologists favored the broad
extension of coastal state jurisdiction over all areas of the seabed with
significant hydrocarbon potential helped to facilitate the transition from
geographic description to legal term of art.
7. Convention on the Conservation of Antarctic Marine Living
Resources. Apr. 7,1982.(33) UST 3476.
8. Draft articles on the law of the non-navigational uses of
international watercourses. art. 2. Report of the International Law Commission
on the work of its forty-sixth session. UN GAOR, 49th Sess., Supp. No.(10),
at 199, UN Doc. A/49/10 (1994). The UN General Assembly decided to begin
work on a convention on the convension on the matter in 1996. GA Res. 49/52
(Dec. 9,1994).
9. Continental Shelf (Tunisia/Libyan Arab Jamahiriya),
1982 ICJ 18 (Judgment). para. 61.
10. Delimitation of the Maritime Boundary in the Gulf of Maine
(Canada/United States). 1984 ICJ 246 (Judgment). The decision of the Court
to establish a maritime boundary dividing the main fishing ground
between Greenland and Jan Mayen appears to be Influenced by economic. not
ecological, considerations. Maritime Delimitation in the Area Between Greenland
and Jan Mayen (Denmark v. Norway), 1993 ICJ 38 (Judgment). para. 76.
11. The modern law of the sea provides for access to the sea
for land-locked states; this could include access via a system of rivers.
lakes and canals Law of the Sea Convention, arts. 124-132.
12. Use of classic Internal waters forming part of the sea, such
as a juridical bay of a single state. is also subject to authorization
and control by the coastal state.
13. In his informative review of current legal problems regarding
the Casplan Sea presented at a symposium of the Max Pianck Institute in
Heidelberg in January the potency of status-based analytical methods when
he declares, "The threshold question in this type of situation is whether
the particular body of water is a lake, or enclosed or semi-enclosed sea."
But he is no prisoner of such methodology. deftly concluding that the "Caspian
Sea... cannot be qualified as enclosed sea" and that "one cannot readily
qualify the Casplan Sea as an International lake."
14. This is not necessarily the same question as whether
advancing or rejecting a particular view is a useful tactic in negotiation
or litigation, or even a useful explication of a result.
15. Most historic bays when the maximum enclosure of a
juridical bay was expanded from a more restrictive customary limit. generally
thought to be ten miles, to the contemporary limit of twenty-four miles.
See Law of the Sea Convention, art. 10.
16. If they contain waters beyond miles from the coast, those
waters would be governed by the full high seas regime, subject to any continental
shelf extending beyond 200 miles.
17. Prescriptive title could conceivably play some role among
the riparian states inter sese. But see note 35 infra.
18. Because semi-enclosed seas are subject to all the general
regimes of the law of the sea in the same way as all other marine areas,
very little of the UN Convention Law of the Sea is addresed to semi-enclosed
seas alone; what there Is addresses the duty of cooperation by the coastal
states in implementing their rightsand duties under the other provisions
of the Convention. Law of the Sea Convention. arts. 122-123. The Convention
sets forth no regime for historic bays. Article 10, like the 1958 Convention
on the territorial Sea and the Contiguous zone, merely specifies that its
provisions regarding juridical bays "do not apply to so-called 'historic'
bays." The Convention's preamble affirms "that matters not regulated by
this Convention
continued to be governed by the rules and principles of general
international law."
19. Some examples: Africa has a large number of significant lakes
bordered by more than one state, including Lake Albert (Uganda, Zaire),
Lake Chad (Cameroon, Chad, Niger, Nigeria), Lake Edwand (Uganda, Zaire),
Lake Kariba (Zambia, Zimbabwe), Lake Nweru (Zaire, Zambia), Lake Nyasa
(Malawi, Mozambique, Tanzania), Lake Tanganyika, (Burundi, Tanzania, Zaire,
Zambia), Lake Turkana (Ethiopia, Kenya, approached by Sudan), and Lake
Victoria (Kenya, Tanzania, Uganda). North America of course contains
the Great Lakes (Canada, USA). In South America, Lake Titicaca (Bolivia,
lero) is the highest navigable body of water in the world. In Westerd Europe,
Lake Geneva (Lac Leman) (France, Switzerland) and Lake Constance (Bodensee)
(Austria, Germany, Switzerland) as well as Lake Lugano and Lake Maggior
(Italy/Swithzerland) are well known. Most but not all of these have been
divided geographically by the riparian states, with African states relying
heavily on the principle of uti possidetis. Large enclosed bodies
of water bordered by two or more Republics of the former Soviet Union include
the Aral Sea (Kazakhstan, Tajikistan) as well as the Caspian Sea (see note
21 infra)
20. See supra note 8.
21. Azerbaijan, Iran, Kazakhstan, Russia and Turkmenistan.
22. As of 1991, the area of the Caspian Sea was about 371,000
km2, and increasing as the sea rises, N.V. Aladin & I.S. Flotnikov,
Large Saline Lakes of the Former USSR: a Summary Review, 267 Hydrobiologia
1(1993), reprinted in Developments in hydrobiology, Saline Lakes v, at
I (Stuart H. Hurlbert ed.,1993). By way of comparison, the combined
area of the five Great Lakes In North America is about 244,000 sq. km.
23. Id. While most lakes, regardless of size, contain fresh water,
there are exceptions, including Utah's Great Salt Lake. With regard to
salinity, Professor Gidel states that cc criterium physique ne peut pas
etre exciusivement retenu par le juriste: La Mer Morte, La Mer Caspienne,
le Grand Lac Sale ne peuvent, malgre la nature de leurs eaux, etre consideres
comme des espaces regis par le drolt maritime." C. Gidel, Le droit international
public de la mer, v.1, p.40 (1932-34).
24. Compared with the Caspian Sea's area of about 371,000 km2,
the area of the Baltic Sea is about 414,400 km2, the Black Sea about 436,400
sq. km, and the Persian Gulf about 233,100 sq. km.
25. Vinogradov concludes from the Iran/USSR Treaty on Settlement,
Trade and Navigation of August 27, 1935 and Its replacement, the Iran/USSR
Treaty on Trade and Navigation of March 25, 1940: The underlying
principle of both documents ,,. was the exclusivity of rights of coastal
States. The Caspian Sea ‘closed’ to all third States and their nationals.
The right of navigation In the Caspian Sea, both naval and commercial was
reserved exclusively for ships belonging to the USSR and Iran, or to their
nationals and commercial and transport companies bearing the flag of either
State, The notion of exclusively went as far as, for example, not to allow
nationals of third States to be included in the ship crews or personnel
of ports." Vinogradov, supra note 13.
26. See Law of the Sea Convention, arts. 122-123.
27. While nothing that at least one author concludes that "the
letter and spirit of agreements reached between Iran and the former Soviet
Union legally specify the Caspian Sea as condominium (M.-R. Dabirit, A
New Approach to the Legal Regime of the Caspian Sea as a Basis for Peace
and Development, Iranian Journal of International Affairs. Spring 1994,
p.32). Vinogradov nicely distinguishes between the substantive and procedural
implications of this position, observing, "Neither division of the Sea
between the Caspian States, nor the application of the concept of condominium
seem to be acceptable to all coastal States," but also concluding "One
can even argue that there exists a regional custom based on the longstanding
practice of coastal States which considered the Caspian Sea as their common
resource. This custom can be changed only through the establishment of
a new regime based on the agreement of all States concerned." Vinogradov,
supra note 13.
28. See C.Graf-Schelling & D.Schenk, Le regime juridique
du lac de Constance, In The Legal Regime of International Rivers and Lakes,
p.(97) (R. Zacklin, L.Caflisch, eds.) (1981).
29. Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:
Nicaragua intervening), 1992 ICJ Rep. 351 (Judgment).
30. Id., para. 383. The Gulf of Fonseca is substantially smaller
than the Caspian Sea.
31. Id., para. 405.
32. "The delimitation line on the Caspian Sea as a continuation
of the terrestrial border between Astara and Hoseinqoli was established
unilaterally by the Order No 3 of the NKVD (Soviet Ministry of Internal
Affairs) in 1935 but has never been recognized by Iran as the Soviet-Iranian
border. " Vinogradov, supra note 13.
33. Azerbaijan has entered Into contracts with foreign companies
for the development of hydrocarbon deposits In areas of the Caspian Sea
off its coast, in some cases at considerable distances from the coast.
This was done "despite persistent Russian objections." Vinogradov, supra
note 13.
34. Vinogradov reports that "Kazakhstan Is now contemplating
entering Into a similar contract with another International consortium,"
and that through "enactment of the Law on the State Border In 1993, Turkmenistan
was the first State to establish, according to the rules of the law of
the sea, aterritorial sea and exclusive economic zone, thereby extending
Its coastal jurisdiction over vast areas of the Caspian Sea." Vinogradov,
supra note 13.
35. The development of hydrocarbons has taken place on the assumption
of partition. This does not mean that any specific partition may be imposed
by one state on the others. Arguments for imposing title on others on the
basis of effective exercise of public powers must be evaluated critictically
in terms of their impact on the behavior of governments and their possible
prejudice to objectives of the UN Charter, In particular article 2. Dipla
does not consider these problems. See H.Dipla, Le trace de la frontiere
sur les lacs internationaux, in The Legal Regime of International Rivers
and Lakes, supra note 28, p.247, 299-300. Surprisingly, neither does Cafliseb,
who rejects both a median line rule and the relevance to lakes of "equitable
principles" of maritime delimitation, and concludes. "On se retrouve ainsi
avec les regles generales en matiere de souverainete" et de frontie"res
terrestres, y compris ceile qul fait dependre la souverainte de l’exercice
eflectif et inconteste de Ia puissance publique." But since Calfiseb's
conclusion is based on the assumption that lacustral frontiers resemble
land boundaries more than maritime boundaries, Its application to the geographic
and political situation in the Caspian Sea does not, at the least, appear
to be typical case the author had in mind. See L. Cafiisch, Re gies generales
do droit des coors d'eau internatlonaux, 219 Rec. Coors (1989-VII), p.102.
36. 1n this regard, it could become relevant that three of the
states bordering the Caspian Sea are landlocked, and thus, without regard
to the regime of the Caspian Sea, are entitled to arrangements according
them rights of transit to the high seas across the territory of their neighbors.
Law of the Sea Convention. arts. 124-132.
37. Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:
Nicaragua intervening). supra note 29, pam. 384.
38. I.d., pam. 393.
39. Discussion in this regards tends to focus on rivers
rather then lakes in isolation from navigable rivers. See L. Cafiisch,
supra note 35, pp.(37)-42, 104-32, of which only the last few pages cited
concentrate on the question of navigation in lakes.
40. Treaty of Friendship between Persia and the Russian
Socialist Federal Republic, Feb.(26), 1921, art. 11, 9 LNTS 384 (1922)
(English translation at 401). A different formulation is found in article
1 of the 1909 Boundary Waters Treaty between Canada and the United States,
which provides that all navigable boundary waters shall forever continue
to be free and open for the purposes of commerce to both countries, equally
. . . ." Treaty Relating to the Boundary Waters and Questions Arising along
the Boundary between the United States and Canada, Jan.(11), 1909, art.
1, 36 Stat. 2448, 12 Bevans 319.
41. Law of Sea Convention, arts. 58, 77.
42. Law of Sea Convention, arts. 60, 80.
43. M.G.Karpinskiy. Aspects of Caspian Sea Benthic
Ecosystem, 24 Marine Pollution Bulletin 384, 386-87 (1992).
44. Law of the Sea Convention, Part XII.
45. As early as 1909, article iv of the Canada-U.S. Boundary
waters Treaty provided that boundary waters, which include the waters from
main shore to main shore of the Great Lakes along which the
international boundary passes, "shall not be polluted on either side to
the injury of health or property on the other. " Boundary Waters Treaty,
supra note 40.
46. Supra note 8.
47. Article 194 of the Law of the Sea Convention provides In
pertinent part, "States shall take all measures necessary to ensure that
activities under their jurisdiction or control are so conducted as not
to cause damage by pollution to other States and their environment." Reflecting
one of the most basic principles of the law of the sea, articles 58 and
87, among others, require those using the sea to have "due regard" to the
rights and interests of other states.
48. In a comment on this provision, one of the Commission's Special
Rapporteurs on the subject writes, "This is a powerful statement. It was
modeled on Article 192 of the United Nations Convention on the Law of the
Sea and reflects a recognition of the importance of the protection of ecosystems
to sustainable development." S.C. McCaffrey. The international Law
Commission Adopts Draft Articles on International Watercourses, 89 AJIL
395, 402 (1995).
49. 'The logic of this provision is not limited to the exclusive economic
zone.
50. See e.g., Law of the Sea Convention, arts. 194(1), 197, 198,
199, 207(3), 208(4), 210(5), 212(3).
51. Indeed, the model of regional cooperation established by
Canada and the United States for the Great Lakes is as strong as, If not
stronger than, those being implemented for marine sea such as the Baltic
Sea, the Black Sea, the Mediterranean Sea or the Persian Gulf.
52. Supra note 8.
53. North Sea Continental Shelf (Fed. Rep. Germany/Denmark; Fed.
Rep. Germany/Netherlands), 1969 ICJ 3 (Judgment), para. 80.
54. Judge Ammoun’s separate opinion contains the most lengthy
discussion, and distinguishes lakes from rivers but not seas In this regard.
Id., at 124-27 (Sep. Op. Ammoun.J.) He also distinguishes the lines drawn
by France and Switzerland In Lake Geneva, not on the grounds that they
were drawn in a lake, but on the grounds has this was a unique case. Id.,
at 146. In his dissenting opinion, Judge Tanaka considers the use of the
median line in international law for drawing boundary lines in the sea,
lakes and rivers, without distinguishing among them. Id., at 175
(Diss. Op. Tanaka, J.).
55. An equidistant line (or meridian line) is a line
each point of which Is equally distant from the nearest points on the respective
coasts (or coastal baselines) of the parties.
56. Law of the Sea Convention, art.15.
57. The International Court of Justice quoted, with evident approval,
the observation of an Anglo-French Court of Arbitration In 1977 that "the
combined ‘equidistance-special circumstances rule' jof article 6 of the
1958 Convention on the Continental Shelf, supra note 3j, in effect, gives
particular expression to a general norm that, failing agreement, the boundary
between States abutting on the same continental shelf is to be determined
on equitable principles. " Maritime Delimitation in the Area Between Greenland
and Jan Mayen, supra note 10, para, 46.
58. A line bisecting the angle formed by the general direction
of the coasts of the parties is in effect an adjusted equidistant line,
and is not infrequently used by tribunals.
59. Supra note 53.
60. Supra note 10.
61. Continental Shelf (Libyan Arab Jamahiriya/Malta), 1985 ICJ 13 (Judgment).
62. Thus, for example, the UN Convention on the Law of the Sea
denies an exclusive economic zone or a continental shelf, but not a (12-mile)
territorial sea, to rocks which cannot sustain human habitation or economic
life of their own. Law of the Sea Convention, art. 121.
63. The International Court of Justice applied similar logic
when it decided to locate the boundary between Jan Mayen and Greenland
so that it would divide the principal fishing grounds of concern to both
parties. Supra note 10.
64. See, e.g., P. Potidaven, Les lacs-frontiere (1972).
65. For a review of state practice, see id.; see also H. Dipla,
Le trace de Ia frontiere stir les lacs internationaux, supra note 35, pp.250-88,
296-300.
66. See supra note 40.
67. Apart from so-called utilization arrangements where a boundary
traverses a fluid resource, joint management regimes for hydrocarbon
and mineral deposits are not common, and apply in highly circumscribed
areas. They are usually the last resort of states that are unable to delimit
the particular area by agreement or litigation, but with to avoid a continuing
boundary dispute. Where joint management regimes for seabed resources are
intended to be more than de facto moratoria on developmend, they may be
implemented pursuant to administrative partitions between the states concerned.
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