CC BY
84
The Constitutional Court of the Azerbaijan Republic is exerting every effort to affirm the principles of the supremacy of the Constitution and respect for human rights and freedoms in the interrelations among all the state bodies, society, and each of its members—including by means of implementing the rules and standards of international law. By playing a significant role in forming democratic institutions of society and a law-abiding state, ensuring people’s power in its diverse forms, upholding the constitutional principle of the division of powers, forming judicial power, establishing the generally accepted principles and standards of international law as a concentrated legal expression for achieving progress in world social development, the Constitutional Court has become an authoritative and pivotal body of the young Azerbaijani state.
Rustam MAMEDOV
Ph.D. (Law),
head of the Department of International Public Law,
Baku State University (Baku, Azerbaijan).
DISARMAMENT AND DEMILITARIZATION IN THE CASPIAN SEA FROM THE VIEWPOINT OF INTERNATIONAL LAW
Abstract
The article examines the role of international law in regulating the naval activity currently unfolding in the Caspian Sea region. In this context, the author looks at ways to limit military activity: demilitarization, neutralization, non-
militarization, and so on. The conclusions he draws are based on the standards of international law and international law practice and reflect a realistic picture of the military-political processes going on in this region.
I n t r o d u c t i o n
For almost two centuries, the Caspian was considered Russia’s “inland sea,” and it was the only country with the right to engage in naval activity there. So it is unlikely we shall find a source indicating the qualitative characteristics of this unique kind of military activity. No one knows how many weapons were deployed there or when, or what submarines cruised there, which, incidentally, they still do. We only know that in the Soviet era, the Caspian was part of the action zone of the Soviet Union’s southern military ventures. This vector was considered the most important, since “uninvited” guests always came from the south.
The situation completely changed in the post-Soviet period, when all the Caspian littoral states began holding talks to discuss the security of the Caspian Sea and possible control mechanisms over arms and disarmament. It became clear that the time of Russia’s free military activity in the Caspian had come to an end. New players appeared in the region, including non-littoral, who began to demand that conditions be established for determining the number of arms deployed both in the basin of the sea itself, and on its surrounding territory.
During the talks, generally known terms applied at one time by Russian diplomats, servicemen, and seamen with respect to oceans, seas, and other water areas, such as “zone of peace,” “nuclear-free zone,” “demilitarization,” “neutralization,” “arms control,” “use of the zone for peaceful purposes,” and so on, came into active use. Several Caspian states began insistently demanding that international order be established during and after the signing of the Russian-Kazakhstani agreement of 1998 on demarcating the seabed of the northern part of the Caspian.
As A.I. Gusher justifiably notes, a situation arose where the Caspian Sea could become an arena of major disputes and conflicts, an arena not only of an economic and political, but also of a military struggle.1
It is a well-known fact that in recent years essentially all the Caspian states have been working to further build up their naval forces in the Caspian Basin. But this animation is fraught with violating stability in the Caspian region. To stave off a disaster, an agreement should be reached on limiting the naval activity of states in different zones of the Caspian Sea.
Demilitarization and Neutralization as a Form of Limiting Military Activity
Attempts to limit military activity in various bodies of water have been going on for a long time now. According to Ph. Pondaven, undertaking specific measures to limit arms on a global scale began with limitations on naval weapons.2
The threat of hotbeds of armed confrontation arising in the region prompted the authorities and nations of the Caspian region to take a serious look at the possible consequences of a hypothetical big or small war.
We all know that the approach to resolving the disarmament problem requires efforts in different directions. In some cases, the negotiations should focus on limitation, reduction, or even elimination of certain types of arms.3 In others, it may be more realistic to carry out measures to deter the arms race or prevent it altogether in a particular area of the world. These measures include forming nuclear-free zones, drawing up a set of measures for regional disarmament and, finally, creating zones of peace, since the formation of the latter in different regions is in itself a measure of partial demilitarization.4
Implementation of the principle of the non-use of force is in fact an interrelated process of partial and full demilitarization. According to B.R. Tuzmukhamedov, “...demilitarization implies the contractual international legal regime in a particular territory or area (for example, outer space) that forbids its use for military purposes in peacetime. This measure presumes removing military fortifications and structures from a particular zone and introducing a ban on keeping armed forces there. De-
1 See: A.I. Gusher, “Geostrategicheskoe izmerenie problem Kaspiiskogo moria. Analiticheskaia zapiska,” available at [http://www.analitika.org/article.php?story= 20050523042501631].
2 See: Ph. Pondaven, Les lacs-frontiere. These... Pedone, Paris, 1972, dp. 103-104.
3 See: V.F. Petrovskiy, Razoruzhenie: Kontseptsiia, problemy, mekhanizm, Politizdat Publishers, Moscow, 1982, pp. 94-96, 180-183.
4 See: Ibid., pp. 202-207, 217-222, 310-317; G.A. Osipov, Mezhdunarodno-pravovoi rezhim nerasprostraneniia iadernogo oruzhiia. Poniatie, osnovnye polozheniia, problema ukrepleniia, Nauka Publishers, Moscow, 1987, pp. 10-15; Vseobshchaia mezhdunarodnaia bezopasnost. Mezhdunarodno-pravovye printsipy i normy: Spravochnik, ed. by B.M. Klimenko, Mezhdunarodnye otnosheniia Publishers, Moscow, 1990, pp. 40-45, 63-71, 91-100.
militarization can be full or partial. In the first case, it presumes the elimination or prohibition of any military activity in a particular territory or area, which can apply not only to armed forces, weapons, and military fortifications and structures, but also to the production, importation, and transit (transportation) of materiel and the testing of various types of weapons. It also implies a ban on military training and recruitment into the armed forces, the passage of warships through the area, the flight of military airplanes over it, and so on.”5
According to Ariel Cohen, demilitarization is aimed at strengthening peace and international security. Its implementation makes it possible to exclude particular regions, territories, areas, and cosmic bodies of high strategic and international significance from the arms races and prevent them from being used for military purposes.6 He goes on to note that international agreements on demilitarization usually set forth the specific types and forms of prohibited actions. Whereby the types and forms of prohibited actions in a specific region established by an agreement may not automatically be applied to another demilitarized region or structure.7
B.M. Klimenko shows that demilitarization can be full or partial, temporary or permanent. As a rule, demilitarization of a region, territory, area, or cosmic body also implies its neutralization.8
Summing up the analysis of this legal category, it can be concluded that the concept “demilitarization” includes clearly established and strictly defined types and forms of military activity subject to prohibition in the demilitarized region (territory, sphere, space, or cosmic body).
In Western legal literature, there is the opinion that the activity of states aimed at creating demilitarized zones is a component of the struggle for universal and full disarmament. What is more, the definition of the term “demilitarization” envisages putting special measures into practice aimed at strengthening and maintaining peace and international security. In this way, states exclude areas and territories from the arms race, new wars, and conflicts.9 In so doing, the creation of demilitarized zones should be accompanied by drawing up measures for strengthening trust, which promotes mutual understanding and raises the level of confidence in the military activity of the littoral states.10 If there are favorable conditions on the borders of many countries, an entire system of demilitarized zones could be created, which would make a significant contribution to establishing international security.
In international practice, demilitarization frequently goes hand in hand with neutralization. The concept “neutralization” means establishing special negotiated legal conditions for particular territories, areas, and cosmic bodies, in compliance with which states are prohibited from conducting military action in them or using them as a basis for warfare. The Spitsbergen Archipelago, Antarctica, zones of the Suez and Panama canals, and the Moon are neutralized.11 The doctrine of international maritime law also suggests neutralizing the open sea, which could be entirely applied to the sea expanses of zones of peace beyond the territorial waters of littoral states.12
The parties concerned strive for neutralization in order to exclude certain territories and regions from the sphere of military action, and in so doing reduce the potential war zone and its destructive consequences, as well as help to reduce the arms race and strengthen trust and cooperation among
5 B.R. Tuzmukhamedov, Zony mira, Mezhdunarodnye otnosheniia Publishers, Moscow, 1986, pp. 13-14.
6 See: Kh. Ismailova, “Eshche ne vecher. Amerikanskiy politolog Ariel Cohen v interviu “Ekho” obeshchaet, chto my eshche uvidim shagi Vashingtona,” Ekho, Saturday, 18 August, 2001.
7 See: Ibidem.
8 See: B.M. Klimenko, “Sozdanie demilitarizovannykh zon,” in: Vseobshchaia mezhdunarodnaia bezopasnost, pp. 170-171.
9 See: R.R. Churchill, A.V. Lowe, The Law of the Sea, Juris Publishing, University Press, Manchester, 1999, pp. 430-431.
10 See: V.A. Romanov, “Protiv gonki vooruzheniy i konfrontatsii na moriakh,” Mezhdunarodnye otnosheniia Publishers, Moscow, 1989, pp. 158-166.
11 See: B.R. Tuzmukhamedov, “Mery po ukrepleniiu doveriia,” in: Mezhdunarodnoe pravo, mezhdunarodnaia bezopas-nost. Dialog sovetskikh i amerikanskikh ekspertov, Mezhdunarodnye otnosheniia Publishers, Moscow, 1991, pp. 315-316.
12 See: L. Timchenko, Quo Vadis, Arcticum? The International Law Regime of the Arctic and Trends in the Development, State University Press Osnova, Kharkiv, 1996, pp. 55-58.
states. What is more, it represents those conditions created in particular territories and regions, areas, and cosmic bodies, in accordance with which states are prohibited from conducting military action there or using them as a basis for warfare.13
The composite concepts “demilitarization” and “neutralization” make up the legal content of the term “exclusively for peaceful purposes,” widely used in contemporary international law. According to several scholars, it envisages the prohibition of all types and forms of military activity.14 It should also be noted that nuclear-free zones, their possible status and conditions, no matter where they were created, on land or sea, should correspond to the main provisions of international law, otherwise they cannot be recognized as binding for the entities of international law.
The parties to an international agreement creating this kind of zone determine the specific content of the zone of peace, keeping in mind its specifics. The agreement indicates the spatial limits of the zone, the scope and nature of the measures to be adopted to form it, as well as the participants in the undertakings to create and preserve the zone of peace.
Italian scientist N. Ronzitti emphasizes that there is a tangible link between the zones of demilitarization and neutralization (in particular, nuclear-free zones) and zones of peace.15 Zones of peace can be land or sea areas, as well as border (international) lake regions.
In this way, in the theoretical and practical respect, the main elements of the concepts “demilitarization,” “neutralization,” and “nuclear-free zone” can and should be incorporated to various degrees into the concept of “zone of peace.” Whereby these elements can be different for each geographic region in correspondence with the military and political realities existing there.
The Formation and Content of Convention Standards on Demilitarization and Neutralization of the Caspian Sea
The problem of demilitarizing the Caspian expanses was a topic of discussion at almost every meeting of the Special Working Group, particularly after the attack of Iranian warships on Azerbaijani oil fields on 23 July, 200116 and 11 September, 2001, when peaceful and military American facilities were the target of a terrorist attack.
The Iranian side made a frequent and insistent point of the need to demilitarize the Caspian Basin. For example, according to Artie McConnell, “Russia’s military buildup in the region (the Caspian Sea.—R.M.) is perceived by Iranian leaders as a threat to their negotiating position on the Caspian issue.”17 “From idea to law” became Iran’s leitmotif with respect to disarmament and arms control in the Caspian Sea,18 after which Azerbaijan,19 Kazakhstan,20 and Turkmenistan21 followed suit.
13 See: G.S. Gorshkov, G.M. Melkov, Voennoe moreplavanie i strategicheskoe ravnovesie: mezhdunarodno-pra-vovye aspekty, Voenizdat Publishers, Moscow, 1986, p. 111.
14 See: Ibid., pp. 116-117.
15 See: N. Ronzitti, “Demilitarization and Neutralization in the Mediterranean,” Italian Yearbook of International Law, Vol. 6, 1985, pp. 33-34, 53-54.
16 See: A. McConnell, “Iran Announces Unilateral Decision to Develop Caspian Resources,” p. 2, available at [http://www.eurasianet.org/departments/business/articles/eav060402.shtml].
17 Ibidem.
18 See: E. Pastukhov, “More pazdora,” Kontinent, 29 August-11 September, 2001.
19 See: S. Mamedov, “Azerbaijan Wants Demilitarization of the Caspian. In Baku a Working Group Begins Its Work on the Caspian’s Status,” Zerkalo, Friday, 7 October, 2005 (in Azerbaijani).
20 See: S. Gamova, “Kaspiiskii balans. Kazakhstan predlagaet kontrolirovat rost vooruzheniia v regione,” Novye Iz-vestia, 10 June, 2004.
21 See: A. Kurtov, “Kaspiiskoe more: neposledovatelnost Rossii nanosit ushcherb natsionalnym interesam,” available at [www.nasledie.ru].
As a result, this initiative found its expression in the draft of the Convention on the Legal Status of the Caspian Sea. In particular, Art 3, as proposed by Iran and supported by Azerbaijan, Kazakhstan, and Turkmenistan, contains Para. 3, which stipulates that activity in the Caspian should be carried out on the basis of the principle “[demilitarization of the Caspian Sea].”22 But sixteen Special Working Group sittings were unable to reach an agreement on it. Russia was against and continues to be against this idea and principle,23 so the draft text contains no explanatory provisions regarding the demilitarization of the Caspian.
A broader interpretation of this question can be seen in the speech by former head of the Working Group on the Caspian Sea of the Russian Foreign Ministry, Ambassador A. Urnov, presented on 22-23 March, 2001 in London at the summit on problems of Caspian oil and gas: “Russia’s policy in the Caspian Sea region is determined by several factors... A topic of particular concern is the threat of international terrorism and religious extremism. Regional and local conflicts present another threat. Russia is extremely interested in resolving them as quickly as possible.The scope of these interests requires Russia’s multidimensional presence in this region, including military. ...This is why at the current stage we cannot agree to demilitarization of the Caspian Sea.”24
How has Moscow motivated its refusal to disarm the basin of this unique water body all these years? This position was graphically shown at one time by former special representative of the Russian Federation V. Kaliuzhniy, who at the opening of the First International Forum in Astana, said: “Russia is in favor of non-militarization, and not demilitarization, of the Caspian region, as well as of arms limitation and carrying out military-building within the framework of reasonable adequacy. It is not yet time to disarm. Some of our partners are raising the question of demilitarizing the Caspian. This is hard to understand. Demilitarization means disarmament, but how are we to fight terrorists in that case? They have no intention of disarming and will be only too happy to fill the vacuum that will arise if we demilitarize.”25
This statement is tantamount to a refusal to demilitarize the Caspian. Instead a position was offered that calls for non-militarization of the Caspian Sea and the region, i.e. for establishing control over the existing weapons supplies. This is a clear hint by the Russian Federation to their Caspian neighbors who are not entirely disarming.
A unique and paradoxical situation has developed in the region: the Islamic Republic of Iran (IRI), Republic of Kazakhstan (RK), and Republic of Turkmenistan (RT) are very actively supporting demilitarization, while actually comprehensively building up their arms. This primarily applies to Iran, which is intensively arming itself and demonstrating its position at the talks. For example, in the draft of the Agreement on Confidence-Building and Stability Measures in the Caspian Sea it proposed, Art 2.4 offers the Caspian countries codification on a five-way basis of the demilitarization principle of the Caspian Sea, which should serve as “.a factor for guaranteeing regional and international peace and stability.”26 In this way, Iran is conducting a policy of militarization in its northern regions, including the southern part of the Caspian Basin. This is graphically shown by the facts and statements of high-ranking officials in the Iranian government.
In turn, Turkmenistan, a supporter of demilitarization and a permanently neutral state, gave instructions as early as 2002-2003 for its naval fleet to be formed in the Caspian.27 And immediate-
22 A Draft Convention on the Legal Status of the Caspian Sea. Project, Archives of the Azerbaijan Republic Foreign Ministry.
23 See: I. Mamedov, “Iran: konkurent i soiuznik Rossii,” Ekho, Tuesday, 24 July, 2001.
24 A.Iu. Urnov, “Geopoliticheskie problemy Kaspiia,” A Speech at the Summit on the Problems of Caspian Oil and Gas, London, 22-23 March, 2001,” Bulletin “Ispolzovanie i okhrana prirodnykh resursov v RossiiNo. 3-4, 2001, pp. 8-9.
25 Interview of Deputy Foreign Minister of the Russian Federation V. Kaliuzhniy, available at [http://www.mid.ru/ brp_4.nsf].
26 A Draft Agreement on Confidence-Building and Stability Measures in the Caspian Sea. The IRI’s Project. Archives of the Azerbaijan Republic Foreign Ministry.
27 See: R. Orudzhev, “Turkmenbashi razvorachivaet gonku vooruzhenii. Nagnetanie situatsii v regione budet pro-dolzhatsia,” Ekho, Saturday, 20 November, 2004.
ly after the incident with Azerbaijan “. Ashghabad began openly augmenting its military might.”28
As for Kazakhstan, despite its peace-loving position, N. Aliev and Kh. Ismailova write that “.the military potential of this country in the Caspian cannot be called weak. It is higher than Turkmenistan’s and Azerbaijan’s, although not as high as Russia’s.”29 According to K. Abuseitov, Russia’s negative attitude toward the question of demilitarization is its own business. “The gist of the idea to create small mobile Kazakhstani naval units in the Caspian does not mean that they will be directed against any of the states in the Caspian Basin. Kazakhstan relates the need to create these forces with the potential threats, primarily terrorist.”30 At the same time, the Republic of Kazakhstan believes it necessary to fix the principle of demilitarization in the text of the Convention on the Legal Status of the Caspian.
As follows from the above, the problem of neutralization is, unfortunately, still not urgent for the Caspian. A consensus has not been reached on the question of demilitarization, the Caspian states are unlikely to hold talks on neutralization, although it is no less important for objective and subjective reasons.
On the other hand, the littoral states are not against counting how many weapons each other has and re-deploying them; therefore, in their initiatives they often touch on the question of arms control in the Caspian Sea and its mechanism.31 In particular, the IRI, in its initiative called “Draft of the Agreement on Confidence-Building and Stability Measures in the Caspian Sea,” devoted an article to this question. For example, in Art 10 “Surveillance and Visitation” (with four items), the Iranian drafters note that if they consent to this, each Caspian State shall provide the other Parties with information on the potential of its armed forces in the Caspian Sea [.] miles from the coast” (Para. 10.1).32
And, finally, the confidentiality of surveillance. Tehran believes that “information on the amount, capacity, and potential of the forces present in the Caspian Sea will always be kept secret with respect to third parties”33 (Para. 10.4). In other words, the Caspian states in conflict with each other will have joint secrets that are not disclosed to the rest of the world.
As strange as it may seem, Kazakhstan presented these proposals to the Caspian states. Its draft of the “Pact of Stability in the Caspian Sea” contains Para. 11, which provides for such cooperation between the Caspian states.34 For example, according to this regulation drawn up by Kazakhstani specialists, “the Parties state the need for creating a control mechanism over the arms in the Caspian Sea, including establishing their stable balance, as well as the quantitative and qualitative limits of such arms by entering a corresponding agreement.”35
In the new Iranian draft called “Treaty on Security and Stability in the Caspian Sea” 2006, Art 13 says that if it is adopted, the parties shall draw up control methods on a five-way basis in order to create a dynamic arms balance in the basin of the Caspian Sea. This will help to control the arms, their quantity and their quality in the Caspian.36
28 A. Aliev, Kh. Ismailova, “Ocherednoi ultimatum. Turkmenistan predupredil Baku o posledstviiakh, k kotorym privedet razrabotka mestorozhdenii, Iran sosredotochil voennye sily na granitse s nashei stranoi, Rossiia popolniaet Kaspiiskuiu flotiliiu novymi boevymi korabliami, a Kazakhstan prizyvaet k miry.,” Ekho, Saturday, 28 July, 2001; N. Aliev, “Oruzhie dlia Turkmenbashi. Sosed Azerbaidzhana prodolzhaet narashchivat vooruzheniia, rasplachivaias za nikh gazom,” Ekho, Saturday, 17 January, 2004.
29 A. Aliev, Kh. Ismailova, op. cit.
30 Ibidem.
31 For more detail, see: R.M. Valeev, Kontrol v sovremennom mezhdunarodnom prave, Center of Innovative Technologies, Kazan, 2003.
32 A Draft Agreement on Confidence-Building and Stability Measures in the Caspian Sea.
33 Ibidem.
34 See: “Kazakhstan predlagaet priniat Pakt o stabilnosti na Kaspiiskom more,” available at [http://www.mideast.ru/ show_2867_rus.html].
35 Ibidem.
36 See: A Draft Treaty on Security and Stability in the Caspian Sea. The IRI’s Project (2006). Archives of the Azerbaijan Republic Foreign Ministry.
It should be noted that Iran and Kazakhstan constantly insist during Special Working Group meetings for an examination of the principle of control over the quantity of arms. Although this proposal was incorporated into the project’s content (Art 31.3) of the Convention on the Legal Status of the Caspian Sea, it has still not been agreed upon and retains its square brackets.37
And, of course, I would like to note the practice of the Caspian states regarding codification of the terms “exclusively for peaceful purposes” or “peaceful purposes”, which are closely related to the problem of demilitarization and neutralization. It is interesting that the Caspian states have already succeeded in agreeing upon this principle, and it is a component of Art 3.2 of the Convention Draft on the Legal Status of the Caspian Sea. This provision is also contained in the preamble of this document.38
The parties did not ignore the interpretation of the principle offered by the Republic of Kazakhstan in the draft of the “Pact on Stability in the Caspian Sea:” “The Caspian Sea should be used exclusively for peaceful purposes, and all questions regarding the Caspian will be resolved by peaceful means by the Caspian States themselves.”39
The Iranian draft of the “Agreement on Confidence-Building and Stability Measures in the Caspian Sea” also recognizes this principle and declares: “The Parties to the Agreement emphasize that they are using the Caspian Sea exclusively for peaceful purposes” (Art 2.23).
Art 7 of this project is interesting, in which the content and gist of the use of the Caspian Sea for peaceful purposes are set forth. In particular, in Para. 7.1, “the Parties are asked to assume the obligation to use the Caspian Sea exclusively for peaceful purposes.” For this purpose, the Caspian states are prohibited from any discharge of toxic or explosive substances, including the deployment of sea mines in the Caspian Sea in any form (Para. 7.2).40
The compilers of the Iranian draft believe that the sea may not be used for hostile or aggressive military action.41
Para. 7.4 is of interest from the viewpoint of this analysis. It states that “military technology in the Caspian Sea shall be used exclusively for legal defense purposes in compliance with the United Nations Charter.” In so doing, “the warships in the Caspian Sea shall remain, if possible, within the zone of national sovereignty of that Party to which they belong” (Para. 7.5).42
Para. 7.6 of the Agreement draft is disputable, since it leaves one of the Parties a broad range of possibilities with unpredictable consequences. This paragraph is formulated as follows: “If a sudden or serious threat is posed to the territorial integrity or political independence of one of the Parties, the Party subjected to aggression may defend itself in keeping with international law, providing the correlation between threat and rebuff is observed.”43
The tension created by the above-mentioned provision may be completely defused by Para. 7.7, which sets forth the procedure, according to which “the Parties may not, for various reasons, including preventive measures or the elimination of threats, use the Caspian Sea for military purposes without justification. And in any case, the principle is to use the Caspian Sea for peaceful purposes.”44 An analysis of Art 7 (“Use of the Caspian Sea for Peaceful Purposes”) will make it possible to evaluate the efforts of the Iranian politicians, diplomats, and lawyers engaged in the problems of the Caspian, which encompass essentially the entire range of questions on this problem. This experience may be useful when drawing up a special treaty (pact or agreement) on military problems or activity, which is to be entered on a five-way and bilateral basis.
37 See: Convention on the Legal Status of the Caspian Sea.
38 See: Ibidem.
39 A Draft of the Pact on Stability in the Caspian Sea, Project of the Kazakhstan Republic. Archives of the Azerbaijan Republic Foreign Ministry.
40 A Draft Agreement on Confidence-Building and Stability Measures in the Caspian Sea.
41 See: Ibidem.
42 Ibidem.
43 Ibidem.
44 Ibidem.
It is thought that this article could also be supplemented with provisions regarding the creation of a mechanism for defining the nature of action for peaceful purposes. This is particularly important since a biased evaluation of certain actions sometimes provokes a conflict situation. For example, the actions of Turkmenistan and Iran with respect to the well-known oil facilities in the Caspian Sea are still difficult to justify as “military actions for peaceful purposes.”
This necessity is confirmed by Art 8 (“Limitations on the Military, Non-Hostile Use of the Caspian Sea”) of the Iranian draft. What obligations are placed on the Caspian states? I think that Para. 8.1 deserves special attention: “The Parties recognize that, in order to avoid military rivalry, the number of weapons in the Caspian Sea and their potential should always remain at a level acceptable to the five Caspian states. The procedure for regulating and controlling this limitation will be coordinated and appended to this Agreement in a separate appendix.” In addition, according to the agreement draft, “The Parties have the right to bring their own military waterborne craft into the Caspian Sea if this does not disrupt the balance of forces and does not raise the potential of the existing forces agreed upon in the five-way format” (Para. 8.2).
From the viewpoint of contemporary law, the following three provisions of Art 8 meet international standards (Paras. 8.3, 8.4, and 8.5). Thus it is noted that the military waterborne craft of each of the Parties that leave the zone of national sovereignty of the Agreement member states in keeping with Art 7 do not have the right, without the permission of the other Party, to enter the [.]-mile zone of other Parties (Para. 8.3). It is further declared that each of the Parties shall inform the other Parties about the departure of their waterborne craft and their military aircraft from their territory 30 days in advance, if this undertaking is not of an urgent nature (Para. 8.4).
According to Para. 8.5, “in the event of urgent military use of the sea in keeping with this Agreement, the Parties, observing the provisions of this Agreement, shall immediately inform the other Agreement member states about the movement of their military hardware.”45
When summing up the results of the study conducted in this area, it should be emphasized that, despite the absence of coordinated viewpoints and normative provisions on demilitarization, neutralization, and arms control, the Caspian expanses should be a zone of disarmament in order to prevent the possibility in the future of using the military arsenal accumulated there for a showdown between countries.
At present there is no common, generally accepted understanding of the legal meaning of the terms “exclusively for peaceful purposes” and “for peaceful purposes” in international law and international practice of the states, although they are widely used in international treaty practice and at various international conferences, meetings, and symposia. Moreover, the concept “exclusively for peaceful purposes” implies only non-military, that is, civilian activity, during which all types and forms of military activity should not be carried out. In the general theoretical and practical respect, full demilitarization and neutralization correlate most to this term, but nevertheless, negotiation practice permits the possibility of using military personnel and equipment for scientific and other peaceful purposes, since this can in no way be regarded as a form of military activity.46
But the concept “for peaceful purposes” does not exclude military activity, including military seafaring and airborne navigation, which should be carried out in full compliance with the U.N. Charter and other current principles and standards of international law.47
However, this only applies to full demilitarization and neutralization of zones of peace and freedom from weapons of mass destruction. But, as was mentioned above, a zone of peace is not and cannot be the full composite of the concepts “demilitarization,” “neutralization” and “nuclear-free zone.” Due to the current military-political reality, a zone of peace may be used by all the states for peaceful purposes.48
45 Ibidem.
46 See: G.S. Gorshkov, G.M. Melkov, op. cit., pp. 117-119.
47 See: B.R. Tuzmukhamedov, “Printsip neprimeneniia sily i bezopasnosti na more,” in: Mezhdunarodnoe pravo: sovetskiy i angliyskii podkhody, Documents from a Soviet-British Symposium, Nauka Publishers, Moscow, 1989, pp. 78-79.
48 Ibid., pp. 119-120.
Even despite the fact that, according to the figurative expression of Russian President Vladimir Putin, “the naval fleet in the Caspian is performing very important functions relating to ensuring stability and security in the zone of peace and the contiguous water area,” it could become a means for warfare in the sea, turn into a lethal weapon, and cause a disaster and the destruction of the Caspian nations.49 When evaluating the situation in the Caspian Sea region, skeptics are saying that “in the next 5-7 years, there will be no need to talk about the possibility of demilitarization in the Caspian.”50
C o n c l u s i o n s
1. Despite the fact that all the Caspian states periodically support the idea of turning the Caspian Sea into a zone of peace, and at present, after the Iranian nuclear programs, into a nuclear-free zone, no one has been talking seriously about its components, that is, what this zone will consist of if it is created.
There has been no special practice of creating this kind of zone in border water areas, apart from the so-called nuclear-free zone in the region of Lake Titicaca, the demilitarized zone in the basin of the Great Lakes, the neutralized zones in the region and water areas of the African lakes, in the basin of the River Congo and Lake Geneva (Lake Leman). As for maritime practice, this experience applies to the Mediterranean Sea and the Indian Ocean.
We think it is important to draw up a series of international law provisions regarding the formation of a zone of peace (and possibly also a nuclear-free zone) in the Caspian region and Basin in a separate document (negotiated or declarative) or in the contents of a general treaty on security, confidence measures, and stability.
In this way, after analyzing the draft of the Convention on the Legal Status of the Caspian Sea, the drafts of the Iranian agreements on confidence-building and stability measures in the Caspian Sea, the draft of the Pact on Stability in the Caspian Sea of the Republic of Kazakhstan, and others, it can be concluded that an optimal alternative for building mutual relations among the Caspian states would be to draw up and agree upon a Pact on Security, Mutual Trust, and Political-Military Guarantees for Turning the Caspian Sea into a Zone of Peace.
A document of essentially the same name would contain the most successful provisions of all the available treaty drafts offered for discussion.
2. It should be noted in particular that unless this kind of international law document on ensuring international security in the Caspian Sea is adopted, it will be difficult to achieve a positive result at the talks on coordinating and adopting the draft of the Convention on the Legal Status of the Caspian Sea. As the last point in the system of components for defining the international legal status of the Caspian, the problem of ensuring the international security of this water body is nevertheless the main factor, which, if ignored, will prompt the Caspian countries to simply refuse to sign the draft of the Convention on the Legal Status of the Caspian Sea. The talks of 1992-2006 have graphically shown how and why the littoral states have been evading a final agreement on this basic document year after year. Without the guarantee of their security, many of them have not been striving to ultimately demarcate the Caspian and define its corresponding legal status.
In other words, the above-mentioned version of a five-way pact is a necessary prerequisite for drawing up and adopting the international legal status of the Caspian Sea. Without it, the status of sea’s basin will not be legally regulated for a long time to come.
What provisions should the draft of the Pact for Turning the Caspian Sea into a Zone of Peace be based on? In this context, it would be worth taking into account the provisions of Para. 64 of the
49 See: “Vladimir Putin pribyl na flagmanskiy korabl Kaspiyskoy flotilii,” 14 July, 2005, available at [http://www. arws.ru/a/2165].
50 R. Orudzhev, “Militarizatsiia Kaspiia usilivaetsia, nesmotria na zaiavleniia liderov pribrezhnykh stran o kurse na demilitarizatsiiu,” Ekho, Thursday, 23 December, 2004.
Final Document of the first Special Session of the U.N. General Assembly on Disarmament (1978). It stressed that creating zones of peace in different regions of the world under corresponding conditions, which should be precisely defined in a free procedure by the states interested in creating the zone of peace, taking into account the special features of such a zone and the principles of the Charter of the United Nations, as well as in compliance with international law, could contribute to strengthening the security of the states situated in such zones and international peace and security as a whole.51
Standards defining the geographic (territorial) limits of the zone of peace in the basin of the sea, as well as in the Caspian region, could become the leading provisions in this respect. It is entirely possible that these borders will include the water surface, waters, seabed, subsurface, and air space, as well as the land contiguous to the waters of the Caspian. However, the Caspian region is extremely complex, since it may consist of both the territory of the littoral and the non-littoral states.
An important component of the zone of peace in the Caspian could be regulations prohibiting the deployment of nuclear arms in the sea’s basin. In this case, nuclear states (we are talking here about Russia and possibly Iran) should not create nuclear military bases in the Caspian or disseminate nuclear arms and other destructive types of arms which pose a great threat to the maintenance of peace and international security. In addition, there should be a ban on all possible attempts to conduct nuclear tests or deploy nuclear arms by the Caspian and other countries both in the waters, on the seabed, and in the subsurface, and on the ships plowing the waters of the Caspian. The “foreign military presence” is one of the main provisions requiring serious discussion by the Caspian states. What should this provision be based on? Do the non-littoral states fall under this provision?
In the event that the littoral states agree to the sectoral principle for dividing up the Caspian Sea (this means dividing not only the seabed and subsurface into sectors, but also the water surface), the question of the presence of the Caspian states’ warships will also become pertinent from the viewpoint of the foreign presence in alien waters. But the classical understanding of this question on the whole and with respect to the waters of the Caspian in particular implies a prohibition on the foreign presence of third states, that is, non-littoral states. This provision could imply specific obligations prohibiting the presence of foreign military bases and ships in the region, the conducting of military exercises and maneuvers by the naval forces of foreign states, and the deployment of armed forces and missiles, which could cause great inconvenience and even pose a threat to the security of the Caspian countries. The prohibition or limitation of military presence will be accompanied by demilitarization processes. If foreign naval forces in the Caspian serve peaceful purposes, they may remain temporarily in the sea’s basin until complete withdrawal of these forces and bases.
3. With respect to the military activity of the Caspian states, the following can be noted. The Pact should not prohibit the traditional form of activity of warships, which military seafaring may carry out, using the method of entering the ports of other Caspian states, which, incidentally, may be both planned and forced. In so doing, the naval forces of one littoral state should guarantee the safety of other naval forces, into the ports of which these ships enter. But the creation of zones of peace may be accompanied by a limitation on military seafaring and other forms of military activity of even the littoral states.
4. Under mutual agreement, the countries of the Caspian Sea Basin could draw up international legal provisions for creating a system of regional security based on regulations for implementing regional measures aimed at ensuring peace by creating a regional (subregional) organization on security and cooperation in this territory. In this case, regionalism is an international legal standard ensuring the security both of the sea and of the states and their peoples. Its elements are already being considered by means of the institution of special representatives of the Caspian states for forming the legal status of the Caspian (Special Working Group) created in 1996 and working successfully.
51 See: B.R. Tuzmukhamedov, Zony mira, p. 9.
When drawing up rules on regionalism, it would be worth referring to the experience and practice of the states of the Black52 and Mediterranean sea basins.
It seems expedient to set forth corresponding standards on demilitarization, neutralization, and the peaceful use of the expanses and resources of the Caspian Sea in the Pact draft. It is important that the Caspian countries reach an agreement on a military balance and military might. In addition, the Caspian states should exchange pertinent military-political information pertaining to the problems of the sea’s security. An institution of permanent or temporary military observers should be created.
Respect of international law by the Caspian states, in particular of the principles and standards of the U.N. Charter, should also be manifested in their strict observance of and respect for each other’s sovereignty, territorial integrity, and political independence, and in their not being the first to use naval force against each other.
52 For more detail, see: A.F. Vysotskiy, Morskoi regionalizm (mezhdunarodno-pravovye problemy regional’nogo sotrudnichestva gosurdarstv), Naukova Dumka, Kiev, 1986, pp. 33-135; Mezhdunarodnaia bezopasnost i Mirovoi okean, Nauka Publishers, Moscow, 1982, pp. 150-203.
Kiamran SHAFIEV
Deputy head, Department of State-Building Legislation, Milli Mejlis (parliament) of the Republic of Azerbaijan
(Baku, Azerbaijan).
THE SELF-DETERMINATION PRINCIPLE IN THE CONTEXT OF GLOBALIZATION
Abstract
The author analyzes the principle of self-determination of nations in the contemporary context and points out that it does not contradict the principle of a state’s territorial integrity; he proves that
the principle can be realized within a state’s existing borders and offers an indepth discussion of the problems created when the principle is realized by means of secession.
I n t r o d u c t i o n
The end of the Cold War, as well as the end of ideological confrontation, created the necessary conditions for the transfer to a new format of international relations. The international community has arrived at the conviction that all countries and international structures should pool their efforts to address the fundamental tasks mankind is facing today.
