Shipping is traditionally one of the most important regimes of the use of the Caspian Sea. It was once used for transporting all kind of goods, but nowadays it is used especially for shipping natural resources. The regulation of shipping was a subject of the earliest establishment of interstate law. The initial agreements concluded by the Soviet Union and Iran provided for freedom of shipping in the entire Caspian Sea for all ships exclusively of the coastal states. This regime is valid to this day. Although voices are frequently heard that the former Soviet-Iranian treaties have lost their legal force with the dissolution of the Soviet Union, nobody rejects the binding force of the freedom of shipping in the Caspian Sea. This approach reflects also the draft of the future Convention on the legal status of the Caspian Sea. The Draft Caspian Status Convention recognizes the shipping-related provisions of the law of the sea characteristic for the high sea zones. It extends such a regime over the whole space of the Caspian Sea, without foreseeing any differentiation in the scope of the shipping rights of third-party states typical for other maritime zones. An opposite interpretation of the recognition of the coastal states freedom in the Caspian Sea could derive from the draft regulation proposed to divide the Caspian Sea according to the middle line principle, which could end up entirely delimiting the Caspian Sea without leaving any space for free shipping. Such an interpretation of the proposed introduction of the middle line seems not be intended by the negotiating countries.
Due to the enormous importance of navigation on the Caspian Sea as a carrier of trade and economic development of the riparian states, those states drafted special regional regulations on navigation. The proposed regime remains far from the general provisions of the law of the sea. This is explained by the denial of the maritime character of the Caspian Sea and respective rejection of the necessity to apply international legal standards to the Caspian navigation.
Navigation is to be seen as one of the areas where the norms of international law are to enjoy a definite primacy over the regional regulations. The national legislation of coastal states may not violate internationally accepted standards applicable in specific cases. With regard to the regulation of navigation in the Caspian Sea, the indirect applicability of UNCLOS shall be considered. The draft of the future convention on the legal status of the Caspian Sea regulates navigation as follows:
"Merchant ships flying the flag of a contracting state enjoy the freedom of navigation on the entire Caspian Sea. The freedom of commercial navigation on the Caspian Sea is exercised according to the provisions of this Agreement and other agreements of contracting parties, which remain in accordance with this treaty". [Art. 10(10) Abs.1]
This regulation of the freedom of navigation on the Caspian Sea reflects the UNCLOS’s provisions regarding the high seas, albeit in a largely modified form. According to UNCLOS the freedom of navigationconstitutes one of the main "maritime freedoms" and it serves as a basis for the principle of freedom of the high seas. Thus within the freedom of each state, whether coastal or landlocked, is the right to sail ships flying its flag on the high seas. The Draft Caspian Status Convention grants unrestricted rights to navigate on the entirety of the Caspian Sea, without taking into account the existence of any special maritime zones. The discussions over the future delimitation of the Caspian Sea have not yet arrived at whether, and if so to what extent, the coastal states will exercise sovereign rights in future maritime zones in the Caspian Sea. However, regardless of the outcome of this dispute, the legal status of respective zones will not impact the coastal states’ freedom of navigation in the entire Caspian basin. The Draft Caspian Status Convention does not follow the traditional distinction included in UNCLOS between the regime of navigation within internal waters, territorial seas, and the exclusive economic zone. The UNCLOS provides no mandatory right to either entering or calling at national port facilities, which is an imminent part of national state territory, to the foreign merchant ships or warships, except in cases of emergency, or according to international agreements. In the contiguous zone, the coastal state has no special right to navigation, but may only exercise the control necessary to prevent or punish infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea. In the exclusive economic zone (also in the fishing zone) all states, whether coastal or landlocked, enjoy freedom of navigation as prescribed for the high sea. The only restriction for the freedom of navigation reflects the coastal states’ sovereign right to the protection and preservation of the marine environment, especially their legislative powers against pollution caused by ships.
The Draft Caspian Status Convention Sea provides for national treatment of all vessels as follows:
"Each State Party shall guaranty merchant ships of other contracting parties the same treatment as to the national merchant ships. This includes unrestricted calling in at national ports in the Caspian Sea for the purpose of loading and unloading of the cargo, the embarkation and disembarkation of passengers, payment of shipping and other port charges, as well as the use of the ordinary for shipping and carrying out of particular services to commercial activities"[Art 10 (10), paragraph 2].
The benefits provided here were limited by following rule:
"The regime shown in paragraph 2 of this Article shall be applicable to the ports of the Caspian Sea, which are open to the vessels flying the flag of States Parties" [Art 10(10) Paragraph 3]
The above principle of national treatment means a ban on discrimination against national ships. It confirms that all benefits granted to a merchant ship flying the flag of a contracting state must be granted also to a merchant ship flying flags of all other states parties. This clause is included in numerous international agreements where parties wish to ensure that their nationals, goods, ships, etc. are treated equally by the other contracting states. Thus, foreign goods and services and their providers must not be treated less favorably than domestic ones. In international legal practice, the national treatment, whose origin lies in the principle of freedom of transit, is very common, as for instance with respect to landlocked countriesor in the General Agreement on Tariffs and Trade (GATT). The principle of equal treatment is deeply rooted in the navigation tradition of the Caspian Sea’s littoral states. The agreement concluded by the Soviet Union and Iran established the equal treatment of all vessels flying the flag of the state parties. The equal treatment referred to rights and duties regarding calling in, anchoring, and leaving national ports in the Caspian Sea. The national treatment was limited to the following goods: passengers’ luggage, fuel, and goods necessary for operating the vessel, and the cargo of others ships which was loaded or unloaded from the vessel. The national treatment clause set by Soviet- Iranian treaties remains in line with the Draft Caspian Status Convention, and the future Convention’s principles concerning the equality clause.
The following rules regarding the transit rights on inland waterways for the Caspian states are included into the Draft Caspian Status Convention:
"Conditions and Procedure of the transit from the ocean through the internal waters of Russia for vessels flying the flag of Azerbaijan, Iran, Kazakhstan or Turkmenistan are to be set in an agreement between any of these countries and the transit state" [Art 10 (10) Abs.4-5, proposed by Russia, Iran, Turkmenistan]
or
"The Republic of Azerbaijan, the Republics of Kazakhstan and Turkmenistan as landlocked states have the right to free access to other seas and the ocean. For this purpose they exercise the freedom of transit with all means of transport through the territory of the Islamic Republic of Iran and the Russian Federation [Art. 10 (10) Abs.4-5, proposed by Azerbaijan and Kazakhstan]
or
"The Contracting Parties, which are landlocked, have the right of access to other seas and to the ocean. For this purpose they exercise the freedom of transit with all means of transport through the territory of transit countries. Conditions and Procedure of exercising the freedom of transit are to be set in bilateral, sub-regional or regional agreements between any of these countries and the transit state". [Art 10 (10) Abs.4-5, proposed by Kazakhstan, supported by Azerbaijan]
The only conceivable waterway which could be used as a transit route from the Caspian landlocked States, leads across the Volga River, the Volga-Don Canal and the Don. They constitute a navigable link to the Azov Sea and respectively to the Black Sea and the Mediterranean and the Atlantic. The Volga could be used for navigation from the Caspian Sea through the Volga-Baltic Canal to the Baltic Sea. All of these waterways are internal waters of Russia, granting Russia status of the "transit state", through whose territory the transit of persons, baggage, goods and means of transport passes by means of railway rolling stock, sea, lake, and river craft and road vehicles is to be carried out.
There is no agreement among the Caspian littoral states regarding the conditions of access of Azerbaijan, Kazakhstan, and Turkmenistan to the other seas and the ocean depending on whether the negotiating state is a landlocked country itself or not. The international legal regulations of such a problem would depend on the assumption of whether the Caspian Sea represents, in the legal sense, a sea (enclosed or semi-enclosed sea), or a lake. As was already mentioned, this question is no longer a point on the agenda concerning the future legal status of the Caspian Sea. In the early 1990s Kazakhstan, in representing the first option, used to call upon the states bordering the Caspian Sea, according to Part IX of UNCLOS, to cooperate with each other in the exercise of their rights and in the performance of their duties. This approach, without referring directly to UNCLOS, is still represented by the Caspian’s three landlocked countries. In contrast, Russia, backed by Iran and Turkmenistan, represents the view that the future standards regulating the freedom of transit for the landlocked Caspian countries shall be settled in a special agreement between the landlocked state and the transit state. However, Russia often wavers in its opinion on the matter.
With regard to the right of passage for non-merchant vessels in the Caspian Sea, the draft of the future Caspian status convention provides the following:
"Warships and other government ships operated for non-commercial purposes enjoy the right of transit through the zones of national jurisdiction of other states Parties. The passage must be continuous and expeditious. However, passage includes stopping and anchoring as long as a tentative agreement exist or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress. "[Art 11 (10) proposed by Russia]
Here the proposed rule on the right of innocent passage favors warships and other government ships operated for non-commercial purposesof the contracting states. It follows only partly on the provisions of UNCLOS related to the right of innocent passage through the territorial sea for ships of all states. The law of the sea provides for the right of innocent passage for merchant ships and the rules governing the passage of warships and other government ships operated for non-commercial purposesare not clear enough. The Geneva Convention on the Territorial Sea and the Contiguous Zone of 1958 and the UNCLOS can be interpreted as approval of innocent passage for warships. However, a number of states expressed serious reservations about the fact that the states retain the right to control or approval of peaceful passage of warships. The requirement for earlier approval by the coastal state or at least the duty of announcing the passage was not accepted during the Third Law of the Sea Conference. This condition did not become a part of the common law, either. Another difference between Russia’s proposal and UNCLOS provisions is that Russia requests peaceful passage within the Zones National jurisdiction, not the territorial sea. Russia views free passage as reserved exclusively for certain contracting states, rather than recognizing this right as belonging to all states, as UNCLOS does it. Stopping shall be allowed merely in emergencies for persons, ships, or aircraft.
The Draft Caspian Status Convention provides for states’ jurisdiction over their nationals:
"State Parties shall exercise their sovereignty [Russia proposed removal of this notion] and their jurisdiction in the Caspian Sea over their nationals, their ships, installations and structures according to the norms of international law" [Art 12 (11), Section 1]
Ships shall sail under the flag of one state only and shall be subject to its exclusive jurisdiction on the high seas, which covers administrative, technical, and social matters of ships. The rights of the coastal states over their nationals, vessels, and installations and structures in the Caspian Sea reflect the legal principles for the territorial sea and the exclusive economic zone.
Although a coastal state has full territorial sovereignty in the territorial sea, the criminal and civil jurisdiction of the coastal state can be exercised on board a foreign ship passing through the territorial sea merely in limited cases. The general principle of international law is that nationals of a state are exclusively subject to its jurisdiction. Neither a warship which encounters on the high seas nor foreign ship, other than a ship entitled to complete immunity, is justified in boarding it unless there are reasonable grounds for suspecting that the ship is engaged in piracy, in the slave trade, etc. (Art. 110 UNCLOS). The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal state have good reason to believe that the ship has violated the laws and regulations of that state (Art. 111 UNCLOS).
Finally, the Draft Caspian Status Convention provides for safety zones in the Caspian Sea:
"Geographical coordinates of the structures and contours of the safety zones shall be communicated to all contracting states." [Art 12 (11), Section 2]
The above proposal remains in accordance with the standards of international management of safety zones. Such regulations contains UNCLOS, which regulates Exclusive Economic Zone, where due notice must be given of the construction of such artificial islands, installations or structures, and permanent means for giving warning of their presence must be maintained. In the case of the necessity to protect artificial islands, installations, or structures the coastal state may establish an adequate safety zone. Within such zones the state may take appropriate measures to ensure the safety of navigation and of artificial islands, installations, and structures. The breadth of the safety zone is determined by the coastal state, taking into account applicable international standards. These zones must be designed so that they take into consideration the nature and function of artificial islands, installations, or structures. They shall not extend over a distance of 500 meters around the safety zones, measured from each point of the outer edge of the artificial islands, installations, or structures.
- Convention on Freedom of Transit, 1921
- Freedom and Safety of Navigation out of coastal sea area is regulated by UNCLOS (Part XII, Section 7 3 Fox, R., Dictionary of International and Comparative Law, 1992.
- GATT – General Agreement on Trade and Tariffs
- Kasoulides, C., Jurisdiction of the Coastal State and Regulation of Shipping, Revue Hellenique de Droit International, R 300, 1992
- [UNCLOS] United Nation Convention Law of the Sea in: Doc. A/CONF.62/122 (1982)
- Uprety, , Right of Access to the Sea of Land- Locked States: Retrospek and Prospect for Development, in: Journal of International Legal Studies, Bd. 21, Winter 1995
- Vukas, B., The Law of the sea, the selected writtings, Publications on Ocean Development, 45, 2004, Maritinus Nijhof Publishers