caspian sea

1

THE ANALYSIS OF THE FRAMEWORK CONVENTION FOR THE PROTECTION OF

MARINE ENVIRONMENT OF THE CASPIAN SEA

Nurseit Baizhanov

People blame their environment. There is only one person to blame - and only one - themselves.

Robert Collier

I. Introduction

The Caspian Sea is the largest lake on Earth and the largest inland water body. It

constitutes more than 40 percent of the world's total inland water according to the United Nations

Global International Waters Assessment (GIWA)1.

The isolation of the Caspian Sea basin within specific climate conditions and salinity

gradients of the sea have created a unique ecosystem in the world. The sea, including its coastal

area, is a habitat for an abundant variety of unique and rare species of fauna. The Caspian Sea is

the only habitat on Earth: for one of two freshwater seal species and for the rare white-tailed sea

eagle (which is the largest bird of prey in Europe). The extensive Caspian coastal wetlands offer

a popular winter ground and migration stop-off for many birds, in particular, the region hosts

rare visiting birds during the winter period, including the swamp hen and the purple flamingo.

Besides those species, the huge water area of the Caspian Sea with is a home to over 30 mammal

species, 250 bird species, and 58 fish species2. Also, over 90 percent of the world's sturgeon

catch is produced in the Caspian Sea, and the Caspian region holds the largest share of the

world's black caviar production3.

Besides rich and unique flora and fauna, the Caspian Sea area is one of the first industrial

oil-producing regions on Earth, and is a fast-growing and potentially significant source of global

energy output. This sea is shared by five littoral (coastal) countries Russia, Azerbaijan, Iran,

Kazakhstan, and Turkmenistan. These countries have oil and natural gas reserves amounting to

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about 14.6 percent of the worlds total proven oil reserves and almost 50 percent of the worlds

total proven natural gas reserves4.

Many international and national environmental organizations are concerned that the

unique Caspian ecosystem could be lost because of long-term extraction of hydrocarbon

resources and fast growing offshore extraction of those resources for the last decade. The

environmental problems of the Caspian have been disregarded from the first modern oil

exploration in the early 1870s. At beginning of 20th century, there were more than 3,000 oil

wells in Baku (Azerbaijan) that is counted as one of the black gold capitals of the world.5

The environmental situation around the Caspian Sea worsened after the collapse of the

Soviet Union when new four independent littoral states were established. When the common

resources (that are non-excludable and non-rivalry public goods) are owned by a larger number

of the owners, there are more incentives for free-riding and overusing the resources. This

problem is known as the tragedy of the commons. Also, the economic crisis and the weakness of

developing state institutions of the new countries made it difficult for these countries to control

the environmental situation in the Caspian Sea.

For a long time, the Caspian Sea has been known widely in the world for its sturgeon

fishery and caviar. Nevertheless, for a long period there has been a continuing trend of an

extreme drop in the sturgeon catch. The sturgeon catch decreased from around 30,000 tonnes in

1985 to 13,300 tonnes in 1990, down to 2,100 tonnes in 1994 [a 6-fold decrease after the break-

up of the Soviet Union in comparison to 1990] and even less, around 1000 tonnes in the last few

years 6 (Markandya, 2004). After the dissolution of the USSR, the strong fishery regulatory

system collapsed as well. As a consequence of that, the illegal catch in Caspian and the Volga

River is estimated at six to ten times the legal catch. The 1998 US Fish and Wildlife Survey

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estimated that 50 percent of worldwide trade in caviar is illegal (Markandya, 2004)7. A drastic

drop is observed in other endemic species of the Caspian Sea such as tulka (kilka) and mammals

(CEP, 2011)8.

Damage to fisheries and to the whole biodiversity of the Caspian Sea stems from water

pollution by rivers and oil spills. The main river polluter of the Caspian Sea is Volga. The World

Bank assesses that one million cubic meters of untreated industrial wastewater empty into the

Caspian annually (Markandya, 2004)9. The growing extraction and transportation of oil is

related with significant oil spills. According to the World Banks research the risks of spills are

highest from the abandoned Kazakh flooded oil fields in the vicinity of the Tengiz field in the

North Caspian10.

One factor that works against finding solution to the aforementioned environmental

problems of the Caspian Sea is the issue of the legal status of the Caspian Sea insofar as it relates

to the problem of what kind of international rules should be applied in the Caspian Sea case.

Different international rules would be applied if the Caspian water body were defined as

a sea or lake. Technically, the Caspian Sea should be counted as a lake (an enclosed water

body with no natural connection with oceans), but considering its large water surface area and an

artificial connection to the Atlantic ocean through the Volga-Don channel (through the Azov, the

Black, and the Mediterranean seas), the Caspian Sea can be considered a sea as well. However,

because there is no legal definition for the Caspian Sea, the littoral states should unanimously

agree on its legal status as a sea or a lake.

In the case when the Caspian Sea is legally defined as a sea," than the littoral states

should apply the United Nations Convention on the Law of the Sea of 1982 (UNCLOS). Under

this Convention, the coastal states would hold an area up to twelve nautical miles from shore as a

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territorial sea, up to nautical 200 miles as an exclusive economic zone, and continental shelf.

According to UNCLOS, because the widest part of Caspian Sea is less than 200 nautical miles,

than a median line between the littoral states should be applied. In that case, Kazakhstan would

receive 29% of the seabed, Turkmenistan, Azerbaijan, Russia would get 19% each and only Iran

would have 14% (Antonenko, 2004)11

. In this event, Irans share of the seabed would be under

deep water making extraction highly expensive, and large hydrocarbon resources have not yet

been found there.

If the Caspian Sea be recognized is a legal lake, then the boundaries should be

determined by bilateral or multilateral agreements. Based on customary international law, the

littoral states should border the seabed and the surface of the Caspian Sea by dividing the sea in

equal shares (around 20 percent to each state) based on the equidistant line.

Map 1. Caspian Gas and Oil Reserves and the Delimitation of the Sea Based on the Equidistant Line on the South of the Sea (dotted blue line) and Agreed-upon Maritime Boundaries on the North of the Sea (solid blue line) agreed between Kazakhstan, Russia, Azerbaijan.

Map 2. Caspian Gas and Oil Reserves and Delimitation of

the Sea: on the Equidistant Line (red dotted line) v. on the

Median Line (solid line)

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Source: US Energy Information Administration12

Source: The Heritage Foundation13

Discussions over the legal status of the Caspian Sea by the littoral states have continued

since the dissolution of the Soviet Union. The crux of those discussions has been how to divide

the seabed of the Caspian Sea, which is very rich with hydrocarbon resources.

Before the breakdown of the Soviet Union, the Caspian Sea was regulated by the Treaty

of Friendship concluded in 1921 between the Russian Socialist Federal Republic and Persia

(later Iran). According to Article 11 of that treaty, only Russia and Iran have a right to free

shipping for their cargo and warships. This treaty granted free shipping to both states, thus

allowing Iran to have both cargo ships and warships on the sea waters. Later, the Treaty of

Commerce and Navigation that was concluded in 1940 between Russia and Iran granted Iran

more rights to navigation and exclusive right to fishing on sea area from ten nautical miles the

coasts of each state (Nick, 2005, 597)14. So, all the treaties were based on a number of

premises, most importantly that the Caspian is closed to all but Iranian and the Soviet shipping,

that those parties have equal access to the Sea and equal treatment on its waters, and that any

decisions affecting the Sea and its resources must be made jointly by them (Zimnitskaya &

Geldern, 2011)15

. However, as observed by the experts, [when] the treaties were signed the

issue of exploitation of the seabed and subsoil resources did not yet exist. Consequently, there

are no articles in the treaties regarding that issue (Zimnitskaya & Geldern, 2011)16.

Initially, in the 1990s Iran and Russia actively cooperated to persuade the other littoral

states to follow the USSR-Iran treaties that recognized the Caspian Sea as a large lake, and urged

those states to acknowledge the Caspian seabed resources as a common ownership and develop

those resources with consent of other littoral states (Mamedov, 2001)17

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However, other littoral states opposed Russias and Irans stance. These countries,

especially Azerbaijan and Kazakhstan would stand to reap greater benefits under UNCLOS rules

that would devide the sea into national sectors. Azeri and Kazakhstani national sectors divided

according to the UNCLOS rules by the median line have much more oil and gas reserves than

other countries. To justify a median line seabed delimitation position, Azerbaijan argued that the

above USSR-Iran treaties should be annulled because the dissolution of the Soviet Union

constituted a case where the principle of rebus sic stantibus (the fundamental change of

circumstances provided by article 62 of the 1969 Vienna Convention on the Law of Treaties),

and the customary international law rebus sic stantibus (clean slate) doctrine should be applied.

Thus, the Caspian Sea must be divided among the littoral states according to the rules of

UNCLOS (Sanei, 2001) 18

. Moreover, Azerbaijan reasonably argued that as mentioned above

that the treaties are applied to shipping issues and they do not regulate delimitation of the

Caspian seabed and its resources. Azerbaijan also pointed out that Iran did not object to the

exploitation of natural resources of Caspian seabed by Tsars Russia and then by the Soviet

Union (Sneider, 1993)19

.

For the last two decades, positions of Russia and Iran were gradually altered due to the

following changes and factors:

1) As a first Caspian littoral state, Azerbaijan claimed its sovereignty over its

Caspian seabed sector by concluding the Contract of the Century in Baku in 1994 with

thirteen largest transnational oil companies in the world from eight countries (United States,

Great Britain, Saudi Arabia, Norway, Turkey, Japan, Russia, and Azerbaijan). Those companies

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already spent over U.S. $8 billion to explore and develop Caspian seabed resources, and they

plan to invest $100 billion additionally in following three decades (Nassibli, 2004)20

.

2) The discoveries of large oil and gas reserves in the Russian Caspian seabed sector

and decreasing levels of oil and gas in current reservoirs in Siberia.

3) Increasing activity of Azerbaijan, Kazakhstan, and Turkmenistan to build oil and

gas transportation bypassing the Russian Federation,

4) The change of Russian foreign policy to recover and increase its influence on the

former Soviet Republics.

5) The increasing international isolation of Iran by the international community.

Because of these factors, the pressure of the Russian oil and gas companies participating

in the Contract of the Century and their strong will to develop independently the Russian

sector of Caspian seabed, Russia began to observe the divided bottom, common waters

approach in the Caspian Sea. As a result of that approach, the modified median line method of

delimitation of the North Caspian seabed was accepted by Russia, Kazakhstan, and Azerbaijan

according to their trilateral agreement concluded on May 2003.

Iran has changed its position from one of common ownership of the seabed resources to

one that supports equal national sectors of each littoral state based on the equidistant line. One

of the reasons for this change in position, besides the changed Russian position, is a possible

military threat from the US via Azerbaijan to Iran in the case of free shipping of all littoral

states in the Caspian Sea (free shipping should be applied in case of the legal lake).

Although Turkmenistan is still supporting the approach of dividing the Caspian seabed

into national sectors, it continues to negotiate with Kazakhstan and Azerbaijan about how to

divide the Caspian seabed between these countries. The most difficult negotiations are going on

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with Azerbaijan because these countries have had long disputes (over 14 years) about the

ownership of three oil fields (Chirag, Azeri, and Kypaz) located between their national seabed

sectors (Abbasov, 2012)21

.

As mentioned above, the continuing discussion on the legal status of the Caspian Sea and

the unsettled issue of the delimitation of the Caspian Sea were decisive factors that delayed the

conclusion of a regional environmental agreement by the littoral states. These factors make it

unclear how the littoral states will take responsibility for the marine environment if they do not

know where their sovereignty lies.

However, despite the pending legal status of the sea, the five littoral States had shown

growing interest in common collaboration for the environmental protection of the Caspian Sea.

The intensive development of the North Caspian seabed, the aggravation of the environmental

situation in the sea, and ineffectiveness of the previous non-binding regional agreements

prompted the littoral states to negotiate a comprehensive binding environmental agreement.

The representatives of all littoral states of the Caspian Sea adopted the Framework

Convention for the Protection of the Marine Environment of the Caspian Sea (Framework

Convention) on November 2003. The former UN Secretary-General Kofi Annan characterized

the adoption of the Framework Convention as a significant step forward for the region and

noted that, once ratified, this landmark treaty will benefit the health and livelihoods of hundreds

of millions of people22.

The Framework Convention works as a set legal instrument (obligations) based on

general requirements and institutional procedures in order to protect the environment from all

sources of pollution, preserve and restore the Caspian marine environment, and facilitate

cooperation between Caspian States in those activities.

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However, even though that document was a sign of progress to protect the marine

environment, results of monitoring as well as statements of concerned states and environmental

organizations are showing that the Framework Convention is not yet working properly.

On January 27, 2013, the Deputy Head of Irans Department of Environment for Marine

Environment accused Azerbaijan and BP of continued pollution of the Caspian Sea by dumping

waste oil into the Caspian Sea. He stated that the southern coastlines of the Caspian Sea have

been covered with oil slicks over the past few years with the last such incident happening four

months ago, when about 25 tons of crude oil was cleared from Iranian shores." These oil spills

have minimized the chances for the survival of aquatic creatures in the sea because they

decrease oxygen content available to aquatic animals, leading to their death23.

Also, on November 4, 2013, this same Iranian official during the ceremony of the 10th

anniversary of signing the Framework Convention stated that the Caspian Sea seal's population

has decreased from one million to 100,000 during last twenty years. This has occurred because

of uncontrolled hunting and pollution24

.

Based on satellite-based monitoring, the specialists of ScanEx RDC detected 70 oil slicks

in the northern part of the Caspian Sea, most of them originating from ships. The total zone of

identified oil spills constituted 185 square kilometers25.

These facts can be considered proof of the tragedy of the commons when each coastal

state is going to exploit the sea to gain maximum benefits despite significant social cost. There

are many other facts that show that the environmental problems are still continuing to degrade

the environmental situation in the Caspian Sea basin. One reason for this situation is that the

Framework Convention is not adequately protecting the marine environment of the Caspian Sea.

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Accordingly, the goal of this paper is an analysis the Framework Convention with a focus

on what possible weaknesses of the Framework Convention may have led to the continuing

deterioration of ecology in the Caspian Sea.

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II. Analysis of The Framework Convention

1. The Main Provisions of the Framework Convention.

The Framework Convention for Protection of the Marine Environment of the Caspian Sea

is a regional instrument for building environmental principles specific to this sea, as well as to

develop mechanisms and procedures to provide more effective environmental protection for this

trans-boundary and unique sea.

The objective of the Framework Convention is to protect the Caspian environment from

all sources of pollution, and to protect, preserve, sustainably and rationally use its biological

resources 26.

In my mind, the cornerstone of the Framework that can be used to protect the marine

environment of Caspian is the recognition by all littoral states of the sea the following principles:

1) The guiding principle that should be used is the threat of serious or irreversible damage

to the Caspian Sea environment." The principle suggests lack of full scientific certainty

shall not be used as a reason for postponing cost-effective measures to prevent such

damage27. This principle is widely referred to in international environmental law as

Principle 15 (also called precaution," the precautionary approach, and the principle

of the precautionary approach) in the Rio Declaration on Environment and Development

(Rio de Janeiro, 3-14 June 1992)28

. The precautionary principle is an important concept

used to protect the environment, and it is the most frequently used principle in

international environmental law affairs. However, the principle is one of the most

controversial [] because of disagreements over its precise meaning and legal status and

because of concern that it may be misused for trade-protectionist purposes29.

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2) According to the Framework Convention,"the polluter pays principle (PPP) implies

the polluter bears the costs of pollution including its prevention, control and

reduction30. This principle is recognized as the cornerstone of international

environmental law31. It is similar to the Principle 16 of the Rio Declaration provides.

Initially, the PPP was adopted of the Declaration of the United Nations Conference on the

Human Environment in Stockholm at 1972 (Principle 21)32

. The scope of the PPP covers

all costs related to pollution.

3) The principle of accessibility of information provided in the Framework Convention

obliges the Contracting States to provide each other with relevant information in the

maximum possible amount33. This principle is important for the decision-making

process and the trans-boundary monitoring of the marine environment. The principle of

access to information is also provided in Principle 10 of the Rio Declaration, but in the

Framework Convention the access is limited only to the states. In comparison to the Rio

Declaration, the public participation by NGO and other Civil Society Organizations is not

mentioned in the Framework Convention. This drawback of the Framework Convention

will be discussed later in this paper.

Also, although that is not provided as a principle in the Framework Convention, a

principle to cooperate between the littoral countries is implied by Articles 6 Duty to Cooperate,"

18 Cooperation between the Contracting Parties and Part VI Institutional Arrangements of

the Framework Convention. The obligation to cooperate is one of most referred and accepted at

global, regional and bilateral levels in the international law. There are 191 states, members of the

UN, who ratified the Charter of the United Nations, and who are obliged to cooperate according

to articles 55 and 56 of chapter IX of that Charter. Also, Principle seven of the Rio Declaration

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provides States shall cooperate in a spirit of global partnership to conserve, protect and restore

the health and integrity of the Earths ecosystem34.

These Principles lay out the crucial features of international, regional regulation with

respect to the Caspian Sea. They also constitute new legal norms, and provide guidance to

interpret ambiguous or too general legal provisions at global, regional and bilateral levels,

including the Framework Convention. Also, the principles can fill gaps in the regulation

protecting the marine environment of the Caspian Sea.

Generally, the Framework imposes the obligations to the littoral states to prevent, reduce

and control:

1) Pollution from Land-Based Sources,

2) Pollution from Seabed Activities,

3) Pollution from Vessels,

4) Pollution Caused from Dumping,

5) Pollution from Other Human Activities,

6) Invasive Alien Species.

The Framework Convention obliges the states to endeavor to develop coastal zone

management and to alleviate the implications of the Caspian sea level fluctuations.

Also, the Framework provides some procedures and mechanisms that help the littoral

countries to observe their obligations. One effective procedure to protect the marine environment

is an environmental impact assessment (EIS) of any planned activity that is likely to cause a

significant adverse effect on the marine environment of the Caspian Sea35. As provided in the

Framework, results of the EIS must be disseminated between the contacting parties36

(1The

Convention). Besides the EIS, the Framework mandates the adoption of protocols that should

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play a leading role in determining, in detail, the states obligations when expressed too generally

in the Framework. To develop this approach, UNEPs Regional Office for Europe offered the

development of the protocols such as on the Conservation of Biological Diversity, on the

Protection of the Caspian Sea Against Pollution from Land-Based Sources and Activities, on the

Environmental Impact Assessment in a Trans-Boundary Context, on the Regional Preparedness,

Response and Co-operation in Combating Oil Pollution Incidents. Those Protocols were assigned

as priority by the Contracting Parties to the Framework Convention37

.

Based on the official website of the Framework Conventions Secretariat, up to now two

Protocols have been adopted:

1) The Protocol Concerning Regional Preparedness, Response and Co-operation in

Combating Oil Pollution Incidents ("Aktau Protocol") has been adopted and signed at the Third

Meeting of the Conference of the Parties (COP3) in Aktau, Kazakhstan on August 12, 2011. The

Republic of Azerbaijan, I.R. of Iran, Turkmenistan and Russian Federation already ratified the

Aktau Protocol38

.

2) The Protocol for the Protection of the Caspian Sea against Pollution from Land-

based Sources and Activities ("Moscow Protocol") has been adopted and signed at the Fourth

Meeting of the Conference of the Parties (COP4) in Moscow, Russian Federation on December

12, 2012. The Republic of Azerbaijan has acceded to the Moscow Protocol on 25 February 2014.

(Tehran Convention web-cite)39

.

Also, Part V of the Framework Convention envisages procedures to conduct research and

monitoring of the Caspian Seas environment. The Framework Convention also set up a

Conference of Parties. Among other functions, the Conference is responsible for keeping under

review the implementation of the Convention. The Secretariat is defined as an administrative

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body of the Convention. Finally, the Framework Convention addresses in very broad and general

terms the procedures for compliance and liability for damage, simply requiring states to

cooperate on the future development of these provisions. It does not create a dispute settlement

mechanism, but directs Parties to settle disputes by consultation, negotiation or other peaceful

means at their discretion.

2. The Main Drawbacks of the Framework Convention

The basis for effective control and enforcement of any regulation is transparency and

access to information. Those elements are crucial to ensure effective public control and

sustainable development. Because environmental issues are important in any society, a society

needs to know all about any decision-making process, the factual background of that process,

and any other aspects of actions that can impact human health and the environment. Moreover, it

is a prerequisite for the active involvement of civil society organizations, including Non-

Governmental Organizations (NGOs) to control government actions and to exert public

pressure in order to enforce environmental regulation. The principle of public access to the

information is one of the most used principles in the environmental law and it was reaffirmed in

the Principle 10 of the 1992 Rio Declaration that states:

At the national level, each individual shall have appropriate access to information

concerning the environment that is held by public authorities, including information on

hazardous materials and activities in their communities Although the Principles of Rio

Declarations are non-binding rules, they are well established and are regarded by some as a rule

of customary international law40.

However, this basic principle of environmental law is not accounted for sufficiently in the

Framework Convention. As mention above, in accordance with article 21, there is a limited

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possibility for exchange of, and for public access to, environmental information concerning the

Caspian Sea. The Framework Convention provided the norm obliging only for states to exchange

on regular basis information in accordance with provisions of the Framework Convention. There

is no obligation for the states to prompt private companies to share environmental information

about the marine environment to the public. The Framework Convention just requires the

Contracting Parties to ensure public access to environmental conditions of the Caspian Sea,

measures taken or planned to be taken to prevent, control and reduce pollution of the Caspian

Sea41.

The Framework Convention borrowed that norm from the Convention on Access to

Information, Public Participation in Decision-Making and Access to Justice in Environmental

Matters42

(Aarhus Convention) that establishes: Each Party shall endeavor to ensure that

officials and authorities assist and provide guidance to the public in seeking access to

information43. Nevertheless, the former provides the public the possibility to access

environmental conditions and the measures that much less by the scope than information. It

can be interpreted by the governmental agencies or companies to allow the public only to

monitor the environment of the Caspian Sea by their own or share information with the public

about taken or planned actions. However, that norm in the Framework Convention does not

oblige the sharing of environmental information regarding, for example, losses of endangered

species or results of ecologic inspections or observations that are fraught with danger to the

marine environment. Also, even though the Framework Convention prompts the Contracting

Parties to develop a centralized database and information management system to function as a

repository of all relevant data," that data is offered in non-binding manner to use as as a general

source of information and education for specialists, administrators and the general public.44.

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The Aarhus Convention obliges the parties endeavor to guarantee ...in facilitating

participation in decision-making and in seeking access to justice in environmental matters45 that

is not provided in the Framework Convention. The approach to consider access to information

and the procedural rights in decision-making and redressing processes as a whole of one element

is confirmed in Principle 10 of the 1992 Rio Declaration: States shall facilitate and encourage

public awareness and participation by making information widely available. Effective access to

judicial and administrative proceedings, including redress and remedy, shall be provided46.

Consequently, the Framework Convention does not oblige the Contracting Parties to

extend for their societies the ability to employ the applications of information for

environmental protection purposes. The right of the public to participate in the decision-making

process and access to justice is an integral part and corollary to the right to get information. Also,

public participation is an indispensable part of sustainable development, effective environmental

management, and environmental justice. This statement is confirmed in many documents,

namely the 1992 Rio Declaration that declares that Environmental issues are best handled with

the participation of all concerned citizens, at the relevant level.47.

Although the Framework Convention provides the public access in accordance with

their national legislation and taking into account provisions of existing international agreements

concerning public access to environmental information48, those legislation and agreements

cannot secure the public access and participation. For example, it becomes apparent against the

background of human rights watch organizations statements relating to the problems of

observance of fundamental human rights in all littoral countries of the Caspian Sea, especially

about freedom of speech and movement. Also, it is a fact that only three (Azerbaijan, Kazakhstan

and Turkmenistan) out of five countries are signatories to the Aarhus Convention; only one

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country (Russia) is a signatory of the United Nations Convention on the Law of the Sea. Under

these conditions where the states assumed different international obligations and have different

environmental interior regulations, the situation can cause significant environmental problems

for the enclosed sea where all its parts and components are complex and mutually related to each

other.

The Framework Conventions provisions with respect to public access right and public

participation right are much more restrictive in comparison to analogous conventions, codes

regulating regional sea or inland waters issues. For example, the Code of Conduct on Accidental

Pollution in Trans-boundary Inland Water, which exists in order to promote informed decision-

making by central, regional or local authorities in proceedings concerning accidental pollution of

trans-boundary inland waters prescribes the countries to facilitate participation of the public

likely to be affected in hearings and preliminary inquiries and the making of objections in respect

of proposed decisions, as well as recourse to and standing in administrative and judicial

proceedings49.

The Convention on the Protection of Marine Environment of the Baltic Sea Area

(Helsinki Convention) prescribes what kind of information should be available to the public: a)

permits issued, and the conditions required to be met; b) results of water and effluent sampling

carried out for the purposes of monitoring and assessment, as well as results of checking

compliance with water-quality objectives or permit conditions, and c) water-quality

objectives50. That information would be sufficient for the public to evaluate the degree of

threats to their health, flora and fauna of the marine environment.

Also, the approaches to secure the public related rights can ensure transparency and

broader involvement of the public to protect the marine environment in the Caspian Sea, and

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eventually increase effective realization of the objective of the Framework Convention and other

important environmental acts.

An additional argument that the Framework Convention lacks real possibilities for the

public to take part in the decision-making process is the absence of any provisions for Non-

Governmental Organizations to take part in preparing main documents that are corollaries of the

Framework Convention (for example, the protocols). There is no article obliging the Contacting

States to organize public hearings on preparing domestic legislature or regional agreements that

regulate the Caspian Sea basin.

Based on the information of the environmental group Crude Accountability," the

Framework Convention itself was not prepared with the participation of any environmental

NGO. The Ministries of Environmental Protection of Russia, Kazakhstan, Azerbaijan conceded

that they did not attract environmental organizations to provide commentary on the Convention.

Based on answers of Irans and Turkmenistans environmental NGO, those countries were also

barred from the Convention discussion although at least half a dozen organizations expressed

interest in receiving information about the Convention during the preparation phase51

."

The Framework Convention contains too general obligations. The majority of all

obligations of the states are defined with terminology of taking all appropriate measures." For

example, The Framework Convention states that the Contracting Parties shall:

(a) individually or jointly take all appropriate measures to prevent, reduce and control

pollution of the Caspian Sea.

(b) individually or jointly take all appropriate measures to protect, preserve and restore

the environment of the Caspian Sea52.

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The meaning appropriate has a broad interpretation and can be differently interpreted

by the littoral states. The states have different standards of various pollutions, different

approaches to estimate harms and threats to the marine environment, and different environmental

regulations for sea and rivers that are tributaries to the Caspian Sea. Thus, whereas for one

country some environmental standards or environmental actions can be considered as

appropriate, for another those measures can be viewed as unsuitable.

Also, the International Environmental Law in the Seabed Disputes Chamber in its

Advisory Opinion on Responsibility and Liability for International Seabed Mining interpreted

the meaning necessary and appropriate measures that must be assumed by the Contacting State

order to fulfill its obligation under the UNCLOS. The Chamber concluded that a sponsoring

state must take to ensure that it has acted with all requisite due diligencea state must have

effective laws and supporting administrative regulations in place; simple contractual

arrangements are not sufficient. Those laws and regulations must be regularly enforced by

monitoring and inspection. Moreover, they must be no less effective than international rules,

regulations and procedures, [footnote omitted] primarily those adopted by the Authority53.

Thus, ideally the meaning of appropriate measures that shall be taken by the states

must be uncovered with prescribed timelines or mechanisms to enforce the obligations;

otherwise it would lead to non-fulfillment of the obligations or delaying of their resolution. For

example, the first Protocol (Protocol concerning Regional Preparedness, Response and Co-

operation in Combating Oil Pollution Incidents) that should be adopted right after the conclusion

of the Framework Convention was signed after eight years (August, 2011). The Framework

Convention does not cover all states that can influence the quality of water in the Caspian Sea.

The Framework Convention states that [these laws] shall be applied to the marine environment

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of the Caspian Sea, taking into account its water level fluctuations, and pollution from land based

sources54.

Even though the Framework Convention can be applied to the sea, the reservation of the

article with respect to pollution from land-based sources makes the Framework Convention

applicable to the whole basin of the Caspian Sea. The notion of pollution from land-based

sources implies all likely discharges into the sea, including water, air, solid or immediate

coastal discharges into the sea. Hence, a basin approach should be employed, and the Framework

Conventions scope includes all rivers and those tributaries that eventually flowing to the

Caspian Sea. Based on Table 1, there are three rivers: Kura, Sulak, Terek whose the riparian

countries: Armenia (AM), Georgia (GE), Turkey (TR) are not signatories of the Framework

Convention.

The Kura river system including its tributaries is trans-bordered by Turkey, Armenia,

Georgia, Iran, and Azerbaijan. This river system is polluted by the discharge of poorly treated

or untreated wastewater from the 11 million people living in the catchment area55. According to

the measurements made by Azerbaijan at the Georgian-Azerbaijan border (the river flowing from

Georgia to Azerbaijan), the maximum allowable concentration (MAC) [is] exceeded8-12

times for phenols, 2-3 times for oil products, 8-14 times for metals, and 1-2 times for

sulphates56.

The basin of the Sulak River is shared by Georgia and the Russian Federation. Even

though the river system is in decent environmental and chemical status57

, the increasing

irrigation (that can impact on Caspian Sea level fluctuations) and increasing number of human

settlements with untreated sewage (that can pollute the Caspian Sea) have negative effects on the

basin.

22

The Terek River, whose riparian states are Georgia (upstream country) and Russia

(downstream country), is the main natural asset in the Caucasus area. This river is in decent

environmental and chemical status58

, but irrigation and sewage contamination can be negative

factors for the marine environment of the Caspian Sea in the future.

It should be mentioned that in order to implement Article 7 of the Framework

Convention, the Caspian littoral states signed the Protocol for the Protection of the Caspian Sea

against Pollution from Land-based Sources and Activities ("Moscow Protocol") on December

12, 2012. Besides water emissions originating from land-based points, the scope of the Protocol

(and thus the scope of the Framework of Convention) covers inputs of polluting substances

transported through the atmosphere into the marine environment of the Caspian Sea from land-

based sources and pollution resulting from activities that affect the marine environment and/or

coastal areas of the Caspian Sea, including physical alteration of the natural state of the coastline

and alteration or destruction of the landscape or habitats.59. So, considering the possible

negative air impact, possible losses of fishes or other marine fauna of the Caspian Sea originating

from the rivers that flow into the Caspian Sea (for example, sturgeons), it makes sense to attract

Georgia, Armenia, and Turkey to join to the Framework Convention or its agreements (that are

corollaries of the Framework Convention) as Contracting or Non-Contracting Parties.

As mentioned above, there is still a significant problem with vessel-source pollution

even after adoption of the Framework Convention. One of the reasons for that situation is a lack

of regulation and control of this problem. The Framework Convention requires the Contacting

Parties take all appropriate measures to prevent, reduce and control pollution of the Caspian Sea

from vessels and co-operate in the development of protocols and agreements to the Convention

prescribing agreed measures, procedures and standards to that effect, taking into account relevant

23

international standards. The problem of possible different interpretations of the term

appropriate have been already discussed above, and this is applicable for this case as well.

Another problem is that the adoption of those protocols or agreements controlling pollution from

vessels is not even planned by the Secretariat of the Framework Convention.

Applying relevant international rules, it is also vague because, as mentioned above, the

littoral states have not agreed on the legal status of the Caspian Sea (in case of the sea,

UNCLOSs standards should be applied or customary international law in the case of lake). Also

mentioned above, not all states are signatories of UNCLOS convention or the International

Maritime Organizations conventions that UNCLOS refers. Thus, we need to prescribe the

littoral states to adopt a protocol to prevent, reduce, control and monitor pollution from vessels.

Another problem that can potentially degrade the marine environment of the Caspian Sea

is the necessity to adopt unified standards for all sources of pollution. It is important in case of

pending legal status of the sea or in case of giving the Caspian Sea the status of a sea. The

problem is connected with the jurisdiction of the territory where the sources of pollution can

occur. For example, it is problematic to define a threshold of harm from pollution in neutral

waters (in case of sea scenario) or in the disputed area between Turkmenistan, Azerbaijan and

Iran (in case of the current situation) because there would be no applicable national standards,

and also international standards from other relevant conventions that should be ratified by all

littoral states. Determining the unified standards of all sources of pollution will also be

demanding in case of the application of Trans-boundary Environmental Impact Assessment or

application of polluter pays principle or reference to the obligation to use the resources in

such a way as not to cause harm to the marine environment of the Caspian Sea60. Therefore, that

should be resolved by adopting an adequate protocol.

24

III. Conclusion

One of the main reasons why the Framework Convention does not cover all necessary

problems is that the Framework Convention is a compromise between different countries. That

document was adopted by the governments of new states that did not have sufficient experience

to manage an independent country. Also, those governments that are concerned to improve

economic situation in their countries do not attach adequate importance to sustainable

development that is a necessary condition for sustainable independence of any country.

Increasing popularity of the idea of the sustainable development among people and influential

political groups of the Caspian region can be decisive factors for initiating the adoption of

amendments the Framework Convention. Those above-mentioned proposals and any other

proposals should be discussed with broad public participation and should be adopted only after

public hearings. The Caspian Sea is a unique gift, and our responsibility is to pass this gift on to

our future generations.

25

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caspian sea

Documents

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unique caspian ecosystem

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bird species

rare species of fauna

worlds total inland