Building AzerbaijanBuilding Azerbaijan’’s Legal s Legal Framework for Marine Operations Framework for Marine Operations

on the basis of UNCLOS on the basis of UNCLOS

By ELCHIN GANJALIYEV By ELCHIN GANJALIYEV

United Nations United Nations -- Nippon Nippon

Foundation Fellow 2011Foundation Fellow 2011--20122012

Overview of the Presentation Overview of the Presentation

I. INTRODUCTIONI. INTRODUCTION

II. Practice of LandII. Practice of Land--Locked States in the Locked States in the

International Law of the Sea.International Law of the Sea.

III. Legal Issues of the Status and Territorial III. Legal Issues of the Status and Territorial

Division of the Caspian Sea. Division of the Caspian Sea.

1. Background information of Azerbaijan1. Background information of Azerbaijan

Officially The Republic of Officially The Republic of Azerbaijan is a country in the Azerbaijan is a country in the region of Eurasia. Located at the region of Eurasia. Located at the crossroads of crossroads of Western AsiaWestern Asia and and Eastern EuropeEastern Europe, it is bounded by , it is bounded by the the Caspian SeaCaspian Sea to the east, to the east, RussiaRussia to the north, to the north, GeorgiaGeorgia to to the northwest, the northwest, ArmeniaArmenia to the to the west and west and IranIran to the south and to the south and a short borderline with a short borderline with TurkeyTurkey to to the west.the west.

Area Total: 86,600Area Total: 86,600 km2km2

Population: 9 165 000 (estimate)Population: 9 165 000 (estimate)

Capital and Largest City: BakuCapital and Largest City: Baku

2. Definitions2. Definitions

�� A A ““landland--locked countrylocked country”” is defined in the UNCLOS as a is defined in the UNCLOS as a State that has no sea coast. In practical terms, landState that has no sea coast. In practical terms, land--locked countries are located in the interior of continents, locked countries are located in the interior of continents, hundreds or even thousands of kilometers from maritime hundreds or even thousands of kilometers from maritime ports. As January 1 on 2010 there were 45 such states, ports. As January 1 on 2010 there were 45 such states, and half of these have ratified the LOSC. and half of these have ratified the LOSC.

�� Bilateral agreements between coastal and land Bilateral agreements between coastal and land –– locked locked States also allow for equal access for LL States to the sea States also allow for equal access for LL States to the sea via maritime ports and article 131 of the UNCLOS states via maritime ports and article 131 of the UNCLOS states that: that: ““Ships flying the flag of LandShips flying the flag of Land--locked States shall locked States shall enjoy equal treatment to that accorded to other foreign enjoy equal treatment to that accorded to other foreign ships in maritime portsships in maritime ports””. .

�� As to Azerbaijan, the nearest maritime As to Azerbaijan, the nearest maritime

coast with a distance about 400 km from coast with a distance about 400 km from

Black Sea with the ports of in Georgia, Black Sea with the ports of in Georgia,

which plays key roles for Azerbaijanwhich plays key roles for Azerbaijan’’s s

import and export business. However import and export business. However

Azerbaijan is at the same a transit State Azerbaijan is at the same a transit State

for neighboring countries which are for neighboring countries which are

themselves landlocked. themselves landlocked.

3. 3. Transit and access in the 1982 UNCLOS:Transit and access in the 1982 UNCLOS:

Part X of the 1982 (Art 124Part X of the 1982 (Art 124--132) specially a 132) specially a number of rules concerning the right of access number of rules concerning the right of access of landof land--locked States to and from the sea. It locked States to and from the sea. It states that: states that:

a) Landa) Land--locked States shall have the right of locked States shall have the right of access to and from the sea for the purpose of access to and from the sea for the purpose of exercising the rights provided for in this exercising the rights provided for in this Convention including those relating to the Convention including those relating to the freedom of the high seas and the common freedom of the high seas and the common heritage of mankind. To this end, landheritage of mankind. To this end, land--locked locked States shall enjoy freedom of transit through States shall enjoy freedom of transit through the territory of transit States by all means of the territory of transit States by all means of transport. transport.

ContinuedContinued…………

b) The terms and modalities for exercising b) The terms and modalities for exercising freedom of transit shall be agreed between the freedom of transit shall be agreed between the landland--locked States and transit States concerned locked States and transit States concerned through bilateral, sub regional or regional through bilateral, sub regional or regional agreements. agreements.

c) Transit States, in the exercise of their full c) Transit States, in the exercise of their full sovereignty over their territory, shall have the sovereignty over their territory, shall have the right to take all measures necessary to ensure right to take all measures necessary to ensure that the rights and facilities provided for in this that the rights and facilities provided for in this Part for landPart for land--locked States shall in no way locked States shall in no way infringe their legitimate interests. infringe their legitimate interests.

At present only thirteen landlocked States possess At present only thirteen landlocked States possess merchant fleets: merchant fleets:

1.1. AustriaAustria

2.2. AzerbaijanAzerbaijan

3.3. Czech Republic Czech Republic

4.4. Ethiopia Ethiopia

5.5. HungaryHungary

6.6. KazakhstanKazakhstan

7.7. LaosLaos

8.8. Luxemburg Luxemburg

9.9. MalawiMalawi

10.10. ParaguayParaguay

11.11. SlovakiaSlovakia

12.12. SwitzerlandSwitzerland

13.13. Turkmenistan. Turkmenistan.

National legislation concerning maritime safety and National legislation concerning maritime safety and security, prevention and response to marine pollutionsecurity, prevention and response to marine pollution

Azerbaijan has ratified number of significant Azerbaijan has ratified number of significant

international maritime conventions, which include international maritime conventions, which include

the 1974 SOLAS, and 1972 STCW and the the 1974 SOLAS, and 1972 STCW and the

1973/79 MARPOL and became an IMO member in 1973/79 MARPOL and became an IMO member in

1995. 1995.

The main national legal framework is provided by The main national legal framework is provided by

Merchant Shipping Code and by the Statue of the Merchant Shipping Code and by the Statue of the

State Maritime Administration. State Maritime Administration.

�� IMO Convention 48;IMO Convention 48;�� IMO amendments 1991;IMO amendments 1991;�� IMO amendments 1993;IMO amendments 1993;�� SOLAS Convention 74;SOLAS Convention 74;�� SOLAS Protocol 88;SOLAS Protocol 88;�� LOAD LINES Convention 66;LOAD LINES Convention 66;�� LOAD LINES Protocol 88;LOAD LINES Protocol 88;�� TONNAGE Convention 69;TONNAGE Convention 69;�� COLREG Convention 72;COLREG Convention 72;�� STCW Convention 78;STCW Convention 78;�� FACILITATION Convention 65;FACILITATION Convention 65;�� MARPOL 73/78 (Annex I/II);MARPOL 73/78 (Annex I/II);�� MARPOL 73/78 (Annex III, IV, V);MARPOL 73/78 (Annex III, IV, V);�� MARPOL Protocol 97 Annex VI;MARPOL Protocol 97 Annex VI;�� London Convention 72;London Convention 72;�� CLC Convention 69;CLC Convention 69;�� CLC Protocol 76;CLC Protocol 76;�� CLC Protocol 92;CLC Protocol 92;�� LLMC Convention 76;LLMC Convention 76;�� SUA Convention 88;SUA Convention 88;�� SUA Protocol 88;SUA Protocol 88;�� SALVAGE Convention 89;SALVAGE Convention 89;�� OPRC Convention 90.OPRC Convention 90.�� Bunkers Convention 01Bunkers Convention 01

Facts about Caspian Sea. Facts about Caspian Sea.

The Caspian Sea, located in western Asia on the eastern edges of Europe, is the largest lake on the planet. History records that it's called a sea because it is found to be salty, especially in the southern reaches,

The measured surface area is 371,000 sq km (143,244 sq mi), and the maximum depth is at 1025 m (3,363 ft).

�� Five nations border the Caspian's shores: Azerbaijan, the IslamiFive nations border the Caspian's shores: Azerbaijan, the Islamic c

Republic of Iran, Kazakhstan, Turkmenistan and Russian FederatioRepublic of Iran, Kazakhstan, Turkmenistan and Russian Federation.n.

�� The Caspian is completely landlocked, causing a controversy overThe Caspian is completely landlocked, causing a controversy over

whether it is a sea or a lake.whether it is a sea or a lake.

�� The Caspian is home to seven different sturgeon species, some ofThe Caspian is home to seven different sturgeon species, some of

which are found nowhere else in the world. All told the sea holdwhich are found nowhere else in the world. All told the sea hold's 's

90% of the world's sturgeon.90% of the world's sturgeon.

�� Estimation of possible oil reserves reaching 230 billion barrelsEstimation of possible oil reserves reaching 230 billion barrels. .

�� A major problem also exist to in the transporting of this potentA major problem also exist to in the transporting of this potentially ially

enormous amount of oil and gas for export to the western and Asienormous amount of oil and gas for export to the western and Asian an

markets from the landmarkets from the land--locked Caspian region. locked Caspian region.

The major pipeline routes that transport oil from the The major pipeline routes that transport oil from the

Caspian region to the west include the following:Caspian region to the west include the following:

�� The 830 km The 830 km Baku Baku –– SupsaSupsa pipeline has a capacity to transport pipeline has a capacity to transport ––

100, 000 barrels of oil per day (b/d) from Baku, Azerbaijan to t100, 000 barrels of oil per day (b/d) from Baku, Azerbaijan to the he

Georgian Black Sea port of Georgian Black Sea port of SupsaSupsa..

�� The 1400 km The 1400 km Baku Baku –– Novorossiysk pipeline Novorossiysk pipeline has a capacity to has a capacity to

transport transport –– 100.000 b/d from Baku, Azerbaijan to the Russian 100.000 b/d from Baku, Azerbaijan to the Russian

Black Sea port of Novorossiysk.Black Sea port of Novorossiysk.

�� In order to decrease this heaviness from the Black sea and In order to decrease this heaviness from the Black sea and

Bosporus Straits, there was constructed the 1768 km Bosporus Straits, there was constructed the 1768 km Baku Baku –– Tbilisi Tbilisi –– CeyhanCeyhan pipelinepipeline with a capacity to transport 1 million b/d from with a capacity to transport 1 million b/d from

Baku, Azerbaijan to the Mediterranean port of Baku, Azerbaijan to the Mediterranean port of CeyhanCeyhan, Turkey., Turkey.

Territorial division and Legal Status of the Territorial division and Legal Status of the Caspian Sea.Caspian Sea.

�� The current legal status of the Caspian Sea are based The current legal status of the Caspian Sea are based both on the Soviet both on the Soviet –– Iranian treaties concluded in the Iranian treaties concluded in the first part of the twentieth and on earlier state practice first part of the twentieth and on earlier state practice and agreement. The first such treaty, on the and agreement. The first such treaty, on the demarcation and cession of certain territories, was the demarcation and cession of certain territories, was the Treaty of Resht(1729) concluded between Russian and Treaty of Resht(1729) concluded between Russian and Persian empires, which provided for freedom and Persian empires, which provided for freedom and commerce and navigation. commerce and navigation.

�� The treaty of Friendship between Soviet Union and The treaty of Friendship between Soviet Union and Persia (26 February 1921) became basis of bilateral Persia (26 February 1921) became basis of bilateral relations between the two States, however it did not relations between the two States, however it did not specifically address the issue of the legal regime of the specifically address the issue of the legal regime of the Caspian. Natural resources were mentioned only in Caspian. Natural resources were mentioned only in connection with the renewal of fisheries agreements. connection with the renewal of fisheries agreements.

Sea or lake? Territorial division problems.Sea or lake? Territorial division problems.

�� According to scientists, the Caspian possesses According to scientists, the Caspian possesses characteristics of both a sea and a lake. As a characteristics of both a sea and a lake. As a largest inland salt water reservoir in the world, largest inland salt water reservoir in the world, the size of the Caspian sea and is surrounded by the size of the Caspian sea and is surrounded by several states, which is not common for the several states, which is not common for the lakes. Furthermore, it is depth and salinity are lakes. Furthermore, it is depth and salinity are comparable to some semicomparable to some semi--enclosed seas, and enclosed seas, and the connection to the ocean exists only via the connection to the ocean exists only via artificial canals. Some dictionaries refer to its artificial canals. Some dictionaries refer to its connection to the ocean in the past as well as its connection to the ocean in the past as well as its large size and, therefore, define as a sea. large size and, therefore, define as a sea.

ContinuedContinued…………

�� To define the Caspian as a lake or a sea easier from a legal poiTo define the Caspian as a lake or a sea easier from a legal point of nt of view than a scientific one. International law does not consider view than a scientific one. International law does not consider a a reservoir a sea or lake depending solely on its size. Experts inreservoir a sea or lake depending solely on its size. Experts inmaritime law emphasise that, according to the UNCLOS, the basic maritime law emphasise that, according to the UNCLOS, the basic principle for definition of a body of water as a sea is its connprinciple for definition of a body of water as a sea is its connection ection to an ocean. A sea is a water reservoir with a direct connectionto an ocean. A sea is a water reservoir with a direct connection to to an ocean. Flowing waters such as rivers and canals, as mentionedan ocean. Flowing waters such as rivers and canals, as mentionedabove, are subject to internal affairs of the affected states anabove, are subject to internal affairs of the affected states and do d do not change the legal status of a reservoir into which they flow.not change the legal status of a reservoir into which they flow.According to the definition of the UNCLOS, the Caspian Sea, whicAccording to the definition of the UNCLOS, the Caspian Sea, which h is 1000 miles away from any ocean and has no natural outlet to iis 1000 miles away from any ocean and has no natural outlet to it, t, is not a sea. Of course, another common principle is that littoris not a sea. Of course, another common principle is that littoral al states can decide through unanimous agreement whether or not an states can decide through unanimous agreement whether or not an international lake is a sea. However, the Caspian Sea is not a sinternational lake is a sea. However, the Caspian Sea is not a sea ea according to the UN Conventions, and there is no respective according to the UN Conventions, and there is no respective unanimous agreement of the five littoral states. Following the lunanimous agreement of the five littoral states. Following the logic ogic of this argument, the Caspian Sea should be considered a lake inof this argument, the Caspian Sea should be considered a lake interms of maritime law. terms of maritime law.

�� Practice of delimiting lakes between littoral Practice of delimiting lakes between littoral

states shows that lakes are divided so that each states shows that lakes are divided so that each

coastal state has exclusive sovereignty over the coastal state has exclusive sovereignty over the

biological and natural resources, water surface biological and natural resources, water surface

and shipping in its national sector. The most and shipping in its national sector. The most

popular principles for delimitation of popular principles for delimitation of

international lakes are: international lakes are:

�� ThalwegThalweg

�� Coastal line Coastal line

�� Median line (median) Median line (median)

The The thalwegthalweg is the principle in which the is the principle in which the boundaryboundary between two political between two political states separated by a watercourse is denoted as the states separated by a watercourse is denoted as the thalwegthalweg of that of that watercourse, if those two states have agreed to use the watercourse, if those two states have agreed to use the thalwegthalwegdefinition. Various states have also defined their watercourse definition. Various states have also defined their watercourse international boundaries by a median line, left bank, right bankinternational boundaries by a median line, left bank, right bank, etc. The , etc. The precise drawing of river boundaries has been important on countlprecise drawing of river boundaries has been important on countless ess occasions; notable examples include the occasions; notable examples include the

-- Shatt alShatt al--ArabArab (known as (known as ArvandArvand RudRud in Iran) between in Iran) between Iraq and IranIraq and Iran, , -- the the DanubeDanube in central in central EuropeEurope, , -- the the Kasikili/SeduduKasikili/Sedudu Island dispute between Island dispute between NamibiaNamibia and and BotswanaBotswana, , settled by the settled by the International Court of JusticeInternational Court of Justice in 1999, in 1999, -- and the 2004 dispute settlement under the UN and the 2004 dispute settlement under the UN Law of the SeaLaw of the Seaconcerning the offshore boundary between concerning the offshore boundary between GuyanaGuyana and and SurinameSuriname, , in which the in which the thalwegthalweg of the of the Courantyne RiverCourantyne River played a role in the played a role in the ruling.ruling.

�� The coastal line principle was mostly applied in The coastal line principle was mostly applied in

a period of colonization of tropical countries a period of colonization of tropical countries

and later often replaced by middle lineand later often replaced by middle line, For , For

example: example:

1.1. Lake Malawi, 1890 GermanLake Malawi, 1890 German––British agreement British agreement

and 1891 and 1891 LusoLuso--British agreement; 1954 Great British agreement; 1954 Great

BritainBritain––Portugal agreement in Lisbon; Portugal agreement in Lisbon;

2.2. Caspian Sea, 1828 Caspian Sea, 1828 TurkmanchayTurkmanchay Treaty, 1940 Treaty, 1940

SovietSoviet––Iranian Trade and Navigation Iranian Trade and Navigation

Agreement.Agreement.

�� Despite the unsettled official status of the Despite the unsettled official status of the

Caspian Sea, several countries have concluded Caspian Sea, several countries have concluded

bilateral and multilateral agreements to divide it bilateral and multilateral agreements to divide it

into national sectors until a final convention into national sectors until a final convention

between all littoral states is agreed and signed. between all littoral states is agreed and signed.

Bilateral agreements have been signed between:Bilateral agreements have been signed between:

�� Kazakhstan and Azerbaijan, Kazakhstan and Azerbaijan,

�� Kazakhstan and Turkmenistan, Kazakhstan and Turkmenistan,

�� Kazakhstan and Russia, Kazakhstan and Russia,

�� Russia and Azerbaijan. Russia and Azerbaijan.

THANK YOU!!!!!THANK YOU!!!!!