International Institute For Caspian Studies
 

 

 

 

International Law and Iran’s Policy on the Caspian Sea: Shifting Paradigms


Kaveh L. Afrasiabi, Ph.D.

Senior Research Associate, State University of New York at Binghamton

 

  Abstract: This article examines the role of international law in the current disputes over the legal status of the Caspian Sea, focusing on Iran’s position.  A plausible case can be made for the importance of international law to Iran’s Caspian policy.  It should be a cardinal point of this policy to pursue a new and revised approach toward international law as rapidly as possible in order to alleviate some of the shortfalls and burdens of the current legal postulates by Iran.  The new approach is likely to bolster Iran’s position, to encourage cooperation with Iran, and, hopefully, to facilitate compromise among the littoral states.

 
Introduction

 As Iran enters the twenty-first century, one of the greatest challenges facing her leaders and policymakers is the future of the Caspian Sea region; this region encompasses Iran, Russia, and traverses Central Asia to the east of Caspian Sea and Southern and Northern Caucasus in the Western flank of the Sea.  In the region’s post-Cold War and post-Soviet Union context, Iran ideally holds out the expectations for the emergence of a “new regional order” assigned to peace and prosperity and international legal rules so that it would not settle back into a competitive balance-of-power system. While it is unclear precisely what this phrase “new regional order” means, it undoubtedly means the opposite of chaos and disorder. In such a new order, regional cooperation and interdependence would substantially increase and multilateral organizations would play a significant role in managing the regional issues and problems in the Caspian region and the surrounding areas.

            But, as the tragedies of Nagorno-Karabakh, Chechnya, Abkhazi, Tajikistan and Afghanistan played themselves out, and as the terrorist attacks on the United States in 2002 paved the way to unprecedented internationalization of (geo) political affairs in this part of the world, the Iranian expectations for a better, and more secure, regional order seemed premature.  Instead, many Iranian commentaries explicitly discussed anarchy and crisis, induced by a host of ethnicist, separatist, sub-national irredentist, and so on, forces, as the distinctive features of the “new” region-in-the-making. One reason is the legacy of the past, as the new states are still afflicted by the Soviet modality of cult of personality, bureaucratic iron fist, and rampant corruption. Another reason is the interplay of resource and security games featuring a complex interaction of  international actors, i.e., states, multinational corporations, and trans-national organizations, with the local actors. 

The “detailed complexity” of the Caspian region is nowhere more apparent than in the realm of on-going negotiations and transactions among the five littoral states concerning the Sea’s legal status.  The issue has stumped the region since the Soviet Union’s breakup more than a decade ago and promises to remain on the agenda of these states for the foreseeable future.  Far from a purely legal issue, the question of the Caspian’s legal status or regime is, in fact, inclusive of highly interwoven political, geopolitical, (geo) economic, and security[i] dimensions.  What is on the surface a relatively straightforward set of boundary and ownership questions turns out in deeper analysis to be highly complicated and a plethora of factors, such as the exigencies of decision-making in each state (e.g., role of public opinion,[ii] legislature), the short versus long time horizon of decisions and policies and their ramifications (e.g., on the legitimacy issue), add to its complexity.

One of the central issues of debate and discussion on the Caspian Sea’s legal regime pertains to the relevance and applicability of international law, particularly with respect to the negotiation stance of the littoral states.  This is, indeed, a vast, and to some extent open-ended, issue in the light of both the dynamic nature of international law, the fluctuating positions and postures of the parties, and the fluid negotiations and developments; the latter includes the emergence of a new matrix of bilateral agreements on the Caspian’s division which may or may not stonewall the future emergence of a truly multilateral arrangement on the Sea’s legal ownership.  The process of creating a new legal regime for the Caspian Sea inevitably travels through the windmill of international law in the light of the present condition of the international system. This is a process of making authoritative and controlling decisions arrived at consensually by the five littoral states and in conformity with the norm of legitimate expectations, i.e.,  pact sunt servanda. However, it is evident that this process is wrought with serious and substantial difficulties that make it unlikely to come to fruition any time soon.  The process may culminate in a shared agreement centered on “common interests,” or, on the contrary, may perpetuate the present quagmire of indecision borne by conflicting interests and predilections. Yet, what is certain is that the negotiation process enhances “territorial socialization”[iii] and, in so doing, may in fact transform the littoral states’ interests rather than just crystallize them. 

 

International Law and the Caspian Sea: The Question of Relevance

There is considerable disagreement among the Caspian littoral states regarding the (scope of) relevance of international law to the issue of the Caspian’s legal regime.  Thus, for instance, while some states have called for the application of the International Laws of the Sea (ILOS),[iv] this is opposed by other states questioning the appropriateness of ILOS on the ground that the Sea is a “closed lake” making it subject to the jurisdiction of the littoral states only.   Yet, the latter, including Russia and Iran, have in the past complained to the world organization about the behavior of other states in the Caspian, which can only be interpreted as signs of a latent desire for international adjudication of the dispute over the Caspian’s status. By accepting that the United Nations is a relevant source for resolving the dispute, these countries have implicitly if not explicitly accommodated themselves to the notion that the principles of international law occupy a place in the process of negotiating a new legal regime for the Caspian Sea.

In fact, during the early 1990s,  Iran acknowledged, albeit for a passing moment, the relevance of ILOS in the draft accord on the Caspian Sea’s legal status, which was prepared in collaboration with other littoral states.  According to Principle Five (5) of the draft accord, completed in October 1994, “In the Caspian Sea the United Nations’ principles of the 1982 Laws of the Sea will be implemented. The international borders of national states will be based on coastal waters.”  The draft accord, ultimately aborted, was a brainchild of the short-lived Caspian Sea Council, which was formed in 1994 and raised the issues of “shared use” of the Caspian Sea and specialized committees to deal with cooperation on various Caspian issues. Recently, the Iranian President has called for resurrecting the Caspian Sea Council,[v] and it remains to be seen if this will mean a back to the past policy of invoking the ILOS on Iran’s part.  For the latter to happen, several important prerequisites must be filled, including (a) avoidance of any static interpretation of international law that ignores that it is a dynamic set of laws often lending itself to contrasting interpretations, and (b) recognizing that there are distinct advantages to reconsidering the Caspian Sea as a “semi-sea” as opposed to a “closed lake,” whereby the ILOS Convention could be tapped into, albeit in a restricted fashion in the light of the Convention’s rather circumspect position with respect to the “semi-seas.” 

The 1982 Convention (Chapter 9, Items 122 and 123) stipulates that the contiguous states of a “closed” or “semi-closed” sea should “cooperate” with each other within the Convention’s “framework” in implementing their “rights” and “responsibilities. The Convention’s language here is soft and rather imprecise, and does not impose mandatory mechanisms, indeed an important factor often overlooked in the Iranian expert commentary on the Caspian legal regime.[vi]  What is equally neglected is the fact that there is a legal Iranian precedent for recognizing the Caspian as a “closed sea,” namely the 1959 Law Concerning Exploration and Use of Natural Resources (Amendment to Principle 2) stating: “With respect to the Caspian Sea the foundation for action is based on the principles of international law regarding the closed seas.” The (prior) domestic law is not irrelevant to the current legal posturing of Iran in the process of negotiating a new Caspian regime and is, in fact, a small ingredient for a shifting Iranian paradigm that seeks to telescope her Caspian policy to the ILOS and other international laws.

The question of international law’s relevance touches on the international dimension(s) of the “national” or “regional” and the character of the rules of the international community as flexible instruments for dealing with and regulating the contentious matters of Caspian Sea, i.e., ecology, fishing, shipping, seabed and surface sovereignty. Also, this emphasizes the distinction between different categories of ownership, i.e., res nullius, and res communis.[vii]  Another important category, which has been subjected to much theoretical scrutiny in the discussions of the Caspian legal regime is “condominium.”

Condominium “exists when two or more states exercise sovereignty jointly over a territory.”[viii]  According to one author, “On occasion, it has been suggested that in certain cases, for example, with reference to land-locked lakes and bays bounded by the territory of two or more states, the riparian states have condominium over the area by the operation of law. This is doubtful, but it is probable for the regime to rise by prescription.”[ix] 

The 1921 and 1940 Soviet-Iran agreements provided a regime of limited or partial condominium whereby both countries shared sovereignty over the Caspian waters, e.g., Item 7 of the 1921 Friendship Accord refers to “the equal right of shipping.” This is not to jump to the conclusion, as so many commentators have, that “the legal regime of the Caspian is determined by the agreements and accords between Iran and the then Soviet Union.”[x]  This is overstating the case since both treaties are limited in the scope of activities or “issue areas” they cover, namely, shipping, fishing, and custom, and, hence, their purview do not extend to seabed resources or geographical boundaries. This recalls an observation by Young that “Some writers have fallen into the habit of equating regimes with the agreements in terms of which the regimes are often expressed or codified. In practice, however, international regimes vary greatly in the extent to which they are expressed in formal agreements, treaties, or conventions.”[xi] 

Notwithstanding the above, any attempt to link the 1921 and 1940 agreements to a new legal regime must proceed by conceding that these agreements did not directly address the issue of ownership and involve only some subset of a comprehensive legal regime.[xii]  Here, insights from the so-called regime theory in the discipline of international regimes can be instructive.  Keohane, Young, and a number of other theorists have developed the regime theory into area of study referred to as institutionalism.  According to Keohane, “international regimes” are “institutions with explicit rules, agreed upon by governments, that pertain to particular set of issues in international relations.”[xiii]  A well-developed “regime” involves both organizations or institutions as well as “conventions,” i.e., “rules that shape the expectations of actors.”[xiv]  Accordingly, interpreting the 1921 and 1940 accords in the light of the regime theory leads us but to the conclusion that together these accords formed the basis for a partial or rudimentary legal regime lacking institutions, whereas today in view of the gradual creation of various Caspian organizations (e.g., an intergovernmental body on the environment), we are witnessing, at the outset of the new millennium, the incremental emergence of institutions hitherto lacking the benefit of a regime.

 

Iran and the Applications of International Laws

            So far, Iran’s recourse to international law, in her quest for a fair and reasonable share of the Caspian Sea, has been rather minimal.[xv]  This is primarily the result of Iran’s aversion of ILOS above-mentioned, and the related concern that should Iran explicitly resort to any aspects of international law, this will at some point or another implicate Iran in the ILOS net considered both irrelevant[xvi] and antithetical to Iran’s interest since, as the argument goes, following it would mean a measly 11% to 13% share of the Caspian for Iran given the ILOS’s requirement of using the “median line” standard.[xvii]

            The proponents of this argument ignore, however, that even the littoral states, e.g., Kazakhstan, favoring the application of ILOS have adopted a “modified median line” standard that takes into consideration, among other things, the Sea’s depth and land’s incursions into the Sea, not to mention “history” and “equity.”  Similarly, assuming hypothetically that Iran would be willing to use the ILOS criteria in the Caspian negotiations, in that case the emphasis would be squarely placed on the “modified”[xviii] so as to provide additional percentages of the Caspian for Iran.  Consequently, it is by no means a priori given that the ILOS is antithetical to Iran’s interests, particularly since the ILOS’s tribunal and other arbitration mechanisms represent potential sources for grievance procedure by Iran compelled to explore alternative options for reaching a settlement with her Caspian neighbors.  It has been noted that the International Tribunal on Law of the Sea is still at its infancy and rather experimental,[xix] all the more reason not to presuppose how it may conduct itself in a hypothetical case involving Iran and her Caspian neighbors. Besides, international adjudication, while certainly a compelling and valuable source, “is not of itself dispositive.”[xx]

Even in the absence of an official turnaround by Iran on the relevance of ILOS, Iran can still resort to the Tribunal for a number of related purposes, such as marine pollution,[xxi] crime, and surface and seabed arms control.  Concerning the latter, by drawing analogies[xxii] with the Seabed Arms Control Treaty, Iran can, and in principle should, push for the demilitarization of Caspian seabed.

            On the other hand, the criminal law component of the Laws of the Sea (Article 15, Paragraph 1 (b)) is equally relevant in the light of rampant poaching, drug and arms traffic through the Caspian, and other criminal activities in the Sea complained of most vociferously by, among others, Turkmenistan’s president at the 2002 Caspian Sea Summit in Ashghabat.[xxiii]  As for the environmental concerns and potential litigation, it is important to bear in mind that numerous aspects of the 1982 ILOS convention (e.g., articles 61, 63-67, 119-120, 123, 192, 196, 206, 297 (3)) expand the focus of international law to include such matters as habitat and ecosystem protection, rare or endangered species, coordinated stock management across judicial lines, associated or depleted species, pollution control, and special protection of marine mammals. 

Following these provisions, Iran can if need be resort to “extraterritorial enforcement measures,” even beyond its self-proclaimed 20% share, vis-ŕ-vis polluters and the like operating in the Caspian Sea. An historical precedent for such an initiative is Canada’s unilateral decision in 1970 to extend its regulatory jurisdiction over shipping within 100 nautical miles of Canada’s Arctic coast.[xxiv] Another pertinent precedent is the decision by Germany in 1984 to abandon its claim to a three mile territorial sea within the specific confines of the German Bight and to create a new sixteen miles limit on the basis of a box defined by geographical coordinates. “The new claim…was explicitly designed for the limited purpose of preventing oil spills in those busy waters.”[xxv]  Other examples worthy of consideration by Iran and other Caspian states include the International Commission for the Environmental Protection of Lake Constance, and the various international conventions and protocols on prevention of marine pollution by dumping of wastes, pollution from ships, and offshore activities, e.g., Basel Convention on Hazardous Wastes.

Should Iran emulate such initiatives at some future period, this would have the positive  side effect of enhancing Iran’s international image as environment-friendly and, in turn, this would assist Iran’s process of foreign policy re-orientation, spearheaded by President Mohammad Khatami, geared toward a new external identity formation.[xxvi] Of course, any unilateral move by Iran to follow the footsteps of Canada or Germany, above-mentioned, is likely to raise the objection by some of Iran’s Caspian neighbors that it is “illegal” or animus possidendi to put it in legal jargon.  A preemptory response would, in that case, point out that even the International Court of Justice (ICJ) has recognized that “a unilateral declaration could, in itself, be legally binding.” This is pursuant to ICJ’s Article 38 (1) (b), i.e., “international custom, as evidence of a general practice accepted as law.”[xxvii]  This, in turn, raises the issue of customary international law in the context of Caspian Sea.

 

 Customary International Law and Iran’s Legal Postulate

Customary international law is a relatively murky side of international law centered on, but by no means strictly limited to, state practice.  Shortcutting a long theoretical detour, suffice to say here that the claims and counter-claims in the Caspian dispute made on the basis of customary international law, i.e.,  opinio juris,[xxviii]  commonly look forward to a court’s articulation of states’ behavior in the Caspian Sea to their advantage to the disadvantage of the competitors. In the present context of a legal quagmire, this is a required constitutive element of any Iranian attempt to broaden the range of factors brought into a court’s consideration.  It includes statements of government leaders and spokespersons, national legislation, domestic court decisions, actions of diplomatic and military personnel, and a host of other examples of relevant state behavior.

Several insights from the literature on customary international law help shed lights on various aspects of Iran’s positions and policies with respect to the Caspian legal regime.  First, since 2000, Iran has given notification of her claims to some 20% of the Caspian Sea, thus fulfilling a prerequisite for “title.” However, it must be noted that notification of claims constitutes “evidence of occupation, but is not a condition for acquisition.”[xxix]  Second, Iran has set up its own installations in the disputed areas in the Caspian Sea, and this is tantamount to “creation of rights of sovereignty through symbolic acts.”[xxx]  The importance of this issue rests on the fact that the customary international laws deal with the tension between the legal and historical, “instant”[xxxi] and or “new” law and newly-created versus pre-existing laws and rights, notwithstanding the ICJ’s decision in the case of Island of Palmas to distinguish between “the creation of rights and the existence of rights.”[xxxii]  Iran’s symbolic initiative has an epistemological-legal component, insofar as it points at the creation of new customs via signs that advertise Iran’s aspirations and motivations.[xxxiii] A clue to the significance of this initiative is the ICJ’s judgment in the Guinea (Bissau)-Senegal Maritime Delimitation Case (1985) acknowledging that much depends on the particular facts and the intentions of the parties involved.[xxxiv] 

                Third,  Iran has been rightly adamant, e.g., at the Ashghabat Summit, not to sign onto any joint statement and or declaration that lacked reference to the 1921 and 1940 accords; these two agreements serve as prima facie evidence of the rights and claims of Iran, notwithstanding the ICJ’s Article 38 which recognizes prior agreements as a primary source for determining rights.[xxxv]  From the prism of customary international law, Iran’s summit behavior makes sense since to have done otherwise might have debarred Iran from emphasizing these accords in any international legal tribunal -- due to the requirements of estoppel. Estoppel “may involve holding a government to a declaration which in fact does not correspond to its intentions.”[xxxvi]  The problem with the Iranian approach, however, may be giving too much attention to the resolutions and declarations and not enough to the statements made on behalf of the littoral states.   Thirlway has suggested that the negotiations prior to a resolution, and the statements made on behalf of the member states in those negotiations, “will always be of greater relevance than the final resolution.”[xxxvii] In the context of negotiating a new Caspian legal regime, this conclusion may not be altogether correct, given the fact that the Ashghabat summit was the first gathering of heads of state of the littoral states and their joint declaration, in case one had been issued, would have conceivably carried a greater weight than the individual statements by each leader.

Fourth, another clue to the relevance of 1921 and 1940 accords in a future litigation in an international tribunal is that the international judges would have to interpret these accords according to the rule of international law at the time, that is, according to pre-1982 Convention on Laws of the Sea.  The ICJ’s ruling in the Aegean Sea Case stated: “The situation in question must be appraised, and the territory interpreted, in the light of the rules of international law as they existed at the time, and not as they exist today.”[xxxviii]  This requirement operates, in turn, against the strategy of Azerbaijan and other “new” littoral states to discard the 1921 and 1940 accords under the doctrine of “clean slate,” i.e.,  rebus sic stantibus.  “Under the doctrine of rebus sic stantibus the treaty or provision is no longer law because there has been a very fundamental change in circumstances.”[xxxix] 

Azerbaijan’s “clean slate” position is seemingly bolstered by the 1978 Vienna Convention which distinguished between the “newly-independent” states and the “successor states” which emerge due to the breakup of states, thus leading to the conclusion that “based on the existing international law, the new states are not bound to the commitments of their predecessors.”[xl]  Yet, this is a premature conclusion that overlooks that Iran’s Caspian neighbors have themselves consented, both through the Minsk Agreement of the Commonwealth of Independent States as well as the 1991 Alma Ata Declaration, to abide by the international commitments of the Soviet Union.[xli]  Their consent, no matter what the subsequent reconsiderations since then, forms a basis for Iran’s legitimate grievance to an international tribunal at some point in the future, should the current negotiations on Caspian legal situation reach a complete dead end.[xlii]  In that case, Iran must point out the contradiction in the position of Azerbaijan to on the one hand seeking to discard history and prior agreements via the “clean slate” argument and, yet simultaneously, defending the annexation of parts of the Caspian Sea on the basis of custom (urf va ravieh), e.g., Azeri oil exploitation in the Caspian Sea since 1956.[xliii] In other words, Iran’s counter-legal postulate must maintain the link between customary practice and prior agreements and oppose any move to discard one in favor of the other.  To be successful, the Iranian position must be inserted in a legal game-theoretic approach to the Caspian question that would be cognizant of the need to create linkages between issues.[xliv]    Thus, for instance, the fact that during the Soviet era Iran abstained from traversing the Astara-Hosseingholi line can and should be linked with Iran’s own usage of the ribus sic stantibus doctrine, following the argument, aptly put by President Khatami at the Ashghabat summit, that “the Soviets were oppressive and bullied their neighbors and that is why they crumbled.”[xlv]

In conclusion, the foregoing discussion has hopefully established the need to re-track Iran’s Caspian policy more firmly along the route of international law than has been the case so far. This may still well fall short of bringing the desired results,  but a paradigmatic shift in the substance and style of legal reasoning by Iran in the current disputes on the Caspian’s legal status is both necessary and inevitable if the intention of policy-makers is to achieve a just and equitable resolution of the dispute in line with the country’s national interests.

 

 

 

 

 

 



[i] “The lack of agreement on the Caspian Sea’s legal status is likely to prevent Central Asian states from joining the Trabzon [security- KA] agreement.” Jean-Christophe Peuch, “Caucasus: Energy Projects Given Impetus By Regional Summit, Arrival of U.S. Soldiers,” In www.refrl.org/nca/features/2002/05/07052002093200.asp.

[ii]  In the case of Iran, public opinion about the Caspian Sea and the government’s negotiation performance is capable of setting the range or limits of that performance or policy. Public opinion does not set policy but can constrain policymakers, especially when there is inconsistency between public demand and the drift of policy, and or facilitate policy options, depending on the circumstance.  For a theoretical work, see James N. Rosenau, Public Opinion and Foreign Policy: An Operational Formulation (New York: Random House, 1961).   

[iii] On the concept of “territorial socialization” see Mathias, David Jacobson, and Yosef Lapid, eds., Identities, Borders, Orders (Minnesota: Minnesota University Press, 2002), pp. 146-147.

[iv]  For a relevant work, see Bernard H. Oxman, “Law of the Sea” in Christopher C. Joyner, ed., The United Nations and International Law (Cambridge: Cambridge University Press, 1999), pp. 309-336.

[v] Speech b y President Khatami, Etelaat, April 24, May 5, 2002, p. 1.

[vi]  See, for example, Majid Yazdani, “The Legal Regime of Closed Seas With Consideration of the Caspian Sea,” (in Farsi) Central Asia and the Caucasus Review, No. 14 (Summer 1996).

[vii]  It has been noted that res nullius is “susceptible to acquisition by states but not as yet placed under territorial sovereignty” while res communis  refers mainly to high seas and includes “economic zones” and “is not capable of being placed under state sovereignty.”  In Ian Brownvilie, The Principles of Public International Law (Oxford: Oxford University Press, 1998), p. 105.  Also, Wesley Hohfeld, Fundamental Legal Conceptions (New Haven: Yale University Press, 1923).

[viii]  Brownvilie, op. cit., p. 114.  A historical analogy is the Dutch-Prussian condominium of 1816. See, Jean H. W. Verzijl,  International Law in Historical Perspective, Vol. 3  (Leyden, A.W. Sijthoff, 1981), pp. 429-443.

[ix]  Brownvilie, op.cit., p. 114.  Brownvilile further states that “national legislation and jurisdiction will not automatically extend to territory under the special regime of condominium…One state cannot alienate the territory without the consent of the other states.” Pp. 114-115.

[x]  Mohammad Reza Rafaat Panah, The Geographical Features and Grounds for Cooperation in the Caspian Sea (in Farsi)(Tehran: Doctoral Dissertation, College of International Relations, 1993). Also, Jamshid Momtaz and Said Mirzaie Yangieh, “The Legal Regime of the Caspian Sea: Iran’s Perspective,” (in Farsi)  Central Asia and the Caucasus Review, vol. 35 (Fall 2001), pp.  7-27; Hooshang Moghtader, Public International Law (5th ed.) (in Farsi) (Tehran: Institute For Political and International Studies, 1998), pp. 238, 240.  The Iranian perspectives on the ILOS and its (alleged lack of) applicability to the Caspian Sea often display a central matrix remarkably simplistic and myopic in their theoretical intent.  Unfortunately, this is often shared in the scholarly literature. See, for example, Cesare P. R. Romano, “The Caspian and International Law: Like Oil and Water?” In William Ascher and Natalia Mirovitskaya, eds., The Caspian Sea: A Quest for Environmental Security (London and Boston: Kluwer Academic Publishers, 2001), pp. 145-162.  Romano’s categorical statement that the UN Convention on the Laws of the Sea “does not apply to the Caspian” leaves a lot to be desired, not the least because of overlooking the various dimensions, e.g., on maritime crime, discussed here.

[xi] Richard Young, International Cooperation (Ithaca, NY: Cornel University Press, 1989), p. 24. Also, Andrew Hurrell, “International Society and the Study of Regimes,” in Volker Rittenberger, ed., Regime Theory and International Relations (Oxford: Clarendon Press, 1993).

[xii]  This view is based on a strict adherence to the idea of international treaties. For more on this matter, see Lord McNair, The Law of Treaties (Oxford: Clarendon Press, 1961). 

[xiii] Robert O. Keohane, International Institutions and State Power (Boulder, CO; Westview Press, 1989), p.3.

[xiv] Ibid., p. 4.

[xv]  During the early 1990s, Iran showed a greater propensity to utilize international law in respect to the Caspian disputes. Thus, a joint Iran-Russia communiqué on the Caspian Sea, dated October 30, 1995, states: “[Any} Decision on every issue concerning the coordinated use of Caspian Sea and its resources will be taken with consideration of international treaties.” See UN Document A/51/59.

[xvi] “The principles and rules of Laws of the Sea expressed in its convention are inapplicable to the Caspian Sea.” Ali Shafagh, The Legal Regime of the Caspian Sea and the Islamic Republic of Iran (in Farsi) (Tehran: Doctoral Dissertation, College of International Relations, 1997), p. 24.

[xvii] “In light of Iran’s lack of access to northern and central parts of the Caspian Sea, for a variety of reasons the median line standard will not be optimal.” Shafagh, op. cit., p. 124.

[xviii]  “The principle of median line applies, but as usual express agreement or acquiescence may order the modes of division. Moreoever, a condominium might be adopted.” Brownvilie, op.cit., pp. 165-166.  Also see,  Phillipe Pondaven, Le Lacs-Frontiere (Paris: Pedone, 1972).

[xix]  Oxman, op.cit., p.330-336.  Also, Clyde  Sanger, Ordering the Oceans: The Making of the Law of the Sea  (Toronto: Toronto University Press, 1987).

[xx] Brownvilie, op.cit., p. 135.

[xxi]  See, Y. Tharpes, “International Environmental Law: Turning the Tide in Marine Pollution,” Miami Inter-American Law Rev., vol. 20 (1989), p.579.  Oliver  Schachter, “The Emergence of International Environmental Law,” Journal of International Affairs, vol. 44 (1991), p. 457.  The issue of Caspian environmental problems is the subject of a growing literature. See, for example,  Mohammad Reza Abbas Turkamani, “Caspian Sea Pollution: Necessity of Respect For the International Environmental Principles and the International Duties of States,’ (in Farsi) Central Asia and Caucasus Review, Vol. 7, No. 27 (Fall 1999);  Afshin Danehkar, “The Environmental Status of the Caspian Sea: Fears and Hopes on the Verge of the 3rd Millennium,” (in Farsi) Central Asia and the Caucasus Review, No. 35 (Fall 2001).

[xxii]  On the issue of analogies in international law, see Hersch Lauterpacht, Private Law Sources and Analogies of International Law (Hamden, CT: Archon Books, 1970).

[xxiii] Quoted in Interfax, Turkmenistan, April 24, 2002. At the same summit, Russia’s president complained that as long as the arms traffic to the Chechen rebels through the Caspian remained the Sea could not be entirely demilitarized.  For a related work,  see Harvard Research Project, “Jurisdiction with Respect to Crime,” American Journal of International Law Supplement, vol. 29 (1935).

[xxiv]  See, Louis Henkin, “Arctic Anti-Pollution: Does Canada Make or Break International Law?” American Journal of International Law, vol. 65, no.  131 (1971).

[xxv]  Micheal Byers, Custom, Power, and the Power of Rules: International Relations and Customary International Law  (Cambridge: Cambridge University Press, 1999), p. 95.

[xxvi] A relevan work is, Mahmood Sariolghalam, Foreign Policy of the Islamic Republic of Iran: Theoretical Reconsideration and the Alliance Paradigm (in Farsi) (Tehran: Center For Strategic Research, 2001).  Arend has noted, “Law of the Sea Convention has begun the process of identity formation.” Anthony Clark Arend, Legal Rules and International Society (Oxford: Oxford University Press, 1999), p. 145.

[xxvii] Robert Jennings and Arthur Watts, eds., Oppenheim’s International Law, Vol. 1  (9th ed.) (Harlow: Longman, 1992), p. 26.

[xxviii] Representative works on the customary international law of treaties include McNair, op. cit., and Paul Reuter, An Introduction to the Law of Treaties (London: Kegan Paul, 1995); Mark Villiger, Customary International Law and Treaties (Dordrecht: Martinus Nijhoff, 1985). 

[xxix] Brownvilie, op.cit., p. 142.

[xxx]  See, Frederick J. Mann, Arthur S. Keller and Oliver J. Lissitzyn, eds., Creation of Rights of Sovereignty Through Symbolic Acts (New York: AMS Press, 1967).

[xxxi] “A new rule of customary international law based on the practice of states can in fact emerge very quickly, and even almost suddenly, if new circumstances have arisen that imperatively call for legal regulation – though the time factor is never wholly irrelevant.” Gerald Fitzmaurice, “The Law and Procedure of he International Court of Justice, 1951-54,” 30 British Yearbook of International Law (1953), 39, quoted in Byers, op. cit., 161.

[xxxii]  See Peter Malanczuk, Akehurst’s  Modern Introduction to International Law (7th ed.) (London and New York: Routledge, 2002).

[xxxiii]  This is based on insights from semiotics, the science of signs. For a relevant work, see Jack Solomon, The Signs of Our Time (New York: Random House, 1988).

[xxxiv] See International Law Review97, 636 at 657 (par. 40) (1985). In the Corfu Channel Case (Albania vs. United Kingdom), the ICJ referred to “every state’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states.” 1949 I.C.J. 4 (Apr. 9, 1949) at 22.

[xxxv]  The information regarding the Iranian objection to the draft final declaration at the Ashghabat summit was conveyed by Iran’s chief negotiator, Mr. Safari, at a lecture given on the Turkmenistan summit at Center For Strategic Research, May 4, 2002.

[xxxvi] Brownvilie, op.cit., p. 158. Also, Martin, L’Estoppel en droit international public (Paris, 1979).

[xxxvii] Hugh Thirlway, International Customary Law and Codification (Leiden: Sijthoff, 1972), p. 65-66.

[xxxviii] ICJ Reports, 2 at 32 (1978).  Also, Athanassios Vamvoukos,  Termination of Treaties in International Law: The Doctrine of Rebus Sic Stantibus and Desuetude (Oxford: Clarendeon Press, 1985).

[xxxix] Arend, op. cit., p. 89.

[xl]  Shafagh, op. cit., 65.

[xli] International Legal Material 31 (1992), p. 151.

[xlii] It is noteworthy that “on January 17 1992, The Russian Ministry of Foreign Affairs informed diplomatic missions in Moscow that the Russian Federation would continue to carry out obligations under international treaties concluded by the USSR, and that the Russian Government would perform the functions of depository for corresponding multilateral agreements in place of the USSR.” See, Malanczuk, p. 167.

[xliii]  At the Ashghabat summit, Azerbaijan’s attempt to insert the issue of custom and habit (urf va ravieh) in a final declaration met stiff opposition, principally by Iran and Turkmenistan, and this was another reason why the draft declaration was not adopted. This information is based on the author’s observations at the summit. For more on this see, Afrasiabi, “Iran’s Foreign Policy in the Caspian Region,”  The Middle East Insight (July/August 2002).

[xliv]  A clue to the legal-game theoretic approach, it includes “second-order games” which “gives players the power not only to pebble elements of the universe but to choose arbitrary new relations over the universe.” Neil Immerman, Descriptive Complexity (New York: Springer, 1998), p. 125.  See also, L.S. Shapley, “Measurement of Power in Political Systems,” in W.F. Lucas, ed, Game theory and Its Applications (Providence, RI: American Mathematics Association, 1981), pp. 69-81.

[xlv]  President Khatami made this response to the statement by the Azerbaijan’s president at the summit that “the Shah never went beyond the Astara-Hosseingholi line.” This information is based on the author’s observation at the summit.