BORDER LEGALIZATION UNDER INTERNATIONAL LAW AS A REGIONAL SECURITY FACTOR IN CENTRAL ASIA
Abstract
The rapid changes occurring in today’s world cannot help but have an impact on the traditional perception of the state’s role in international relations. While criticizing the principle of state sovereignty (as the central idea of statehood) and presenting numerous facts testifying to its erosion, contemporary researchers are coming up with alternative conceptions such as “a world without borders,” “the end of geography,” and so on. However, at the current stage of globalization, the border is still one of the most important fundamental principles of the inviolability of a state’s territorial integrity, that is, an indispensable condition of its existence. Despite all the assertions of a “decline in sovereignty,” at the beginning of the 21st century, “thousands are prepared to die for the creation of new state borders.”1
From the perspective of international law, the border, while helping to prevent interstate conflicts, on the one hand, is a factor in their emergence, on the other. As a rule, territorial disputes arise between states over title to a particular territory (or part of it). International law maintains the territorial status quo and strengthens international security; and it is “the most appropriate moral answer to territorial conflicts.”2 In contrast to other methods for determining the border line (historical, geographical, economic, ethnic, etc.) or territorial title, legal regulations establish the boundaries of state power over the specified territory. Borders form an essential part of the structure of rules and institutions that enable separate political communities to coexist.3
An analysis of the current state of interstate practice in Central Asia (CA) shows that in addition to the distribution of shared hydropower resources, settlement of the Afghan crisis, and combating current threats to security, unresolved border and territorial issues are the most urgent problems of international law hindering the creation of the necessary conditions for establishing mutually advantageous cooperation in the region.
In our opinion, the following three main factors can be singled out among the factors promoting delimitation and demarcation of state borders in CA.
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References
A. Hurrell, “International Law and the Making and Unmaking of Boundaries,” in: States, Nations and Bor-ders: Ethics of Making Boundaries, ed. by A. Buchanan,M. Moore, Cambridge University Press, Cambridge, 2003,p. 287.
M.G. Kohen, “International Law is the Most Appro-priate Moral Answer to Territorial Conflicts,” Geopolitics (London), Vol. 6, No. 2, 2001, p. 169.
See: R.Y. Jennings, The Acquisition of Territory in International Law, Manchester University Press, Manchester, 1963, p. 2 (quoted from: A. Hurrell, op. cit., p. 279).
See: N. Polat, Boundary Issues in Central Asia, Transnational Publishers, New York, 2002, p. 46.
International Court of Justice, Reports, 1986, p. 565.
See: Ibid., p. 568.
See: F. Humbatov, “On the Applicability of the Uti Possidetis Juris Principle During Delimitation of the Caspian
Sea among the Littoral States,” Central Asia and the Caucasus, No. 6 (60), 2009.
Ibidem.
B.M. Klimenko, A.A. Pork, Territoria i granitsa SSSR, Mezhdunarodnye otnoshenia, Moscow, 1985, p. 90.
In particular, the Alma-Ata declaration of the Commonwealth of Independent States, available at [http://www.cis.minsk.by/main.aspx?uid=178] and the Charter of the Commonwealth of Independent States of 22 January 1993, available at [http://www.cis.minsk.by/main.aspx?uid=176].
See: Final Act of the Conference on Security and Cooperation in Europe, Helsinki, 1 August, 1975, available at [http://www.ena.lu/].
The total length of the frontier between the Central Asian states and Afghanistan amounts to more than 2,000 km;156 km of which are with Uzbekistan; 744 km with Turkmenistan, and 1,206 with Tajikistan.
Of the Central Asian states, only Turkmenistan has a land border (approx. 1,000 km) with the IRI.
The total length of the border of the Central Asian states with the PRC amounts to 3,150 km; 1,782 km of which are with Kazakhstan, 1,072 with Kyrgyzstan, and 450 km with Tajikistan, Renmin ribao, 26 April, 1996 (quoted from:
. Khojaev, Kitaiskiy factor v Tsentralnoi Azii, Fan, Tashkent, 2007, p. 135; N. Kerimbekova, V. Galitskiy, “On the State Border between Kyrgyzstan and China,” Central Asia and the Caucasus, No. 5 (17), 2002).
It should be noted that many present-day problems relating to international legal registration of the state borders in Central Asia have historical roots. The Big Geopolitical Game between empires has made its contribution to violat-ing the logic of administrative-territorial management of the region and a conflict-prone potential has been introduced (see: A. Prokhorov, K voprosu o sovetsko-kitaiskoi granitse, Moscow, 1975; A. Khojaev, op. cit.; W. Raczka, “Xinjiang and its Central Asian Borderlands,” Central Asian Survey (London), Vol. 17, No. 3, September 1998; F. Tolipov, “Granitsy go-sudarstva i granitsy samoopredeleniia: politika bezopasnosti i politika natsionalizma v Tsentralnoi Azii,” Khukuk. Pravo.Zaw (Tashkent), No. 4 (20), 2000, and others).
In accordance with Union legislation, the borders of the Union republics were defined as the state borders of the U.S.S.R. Consequently, border issues with neighboring states were resolved by the supreme bodies of the U.S.S.R. (see: U.S.S.R.
aw on the State Border (quoted from: B.M. Klimenko, A.A. Pork, op. cit., p. 226).
See: “T. Usubaliev vystupil protiv oppozitsii i za territorialnye ustupki Kitaiu,” Slovo Kyrgyzstana, 16 May, 2002.
An agreement was reached with Kyrgyzstan on 6 May, 1992 and with Tajikistan on 11 March, 1993 (see: Xing Guangcheng, “Security Issues in China’s Relations with Central Asian States,” in: Ethnic Challenges beyond Border: Chi-nese and Russian Perspectives of the Central Asian Conundrum, ed. by Y. Zhang, R. Azizian, Macmillan, London, 1998,p. 208 — quoted from: N. Polat, op.cit., pp. 38-39).
See: SWB FE/1666 A 1/5, 15 April, 1993 (quoted from: N. Polat, op. cit., p. 39).
When emphasizing the importance of regulating the Chinese-Kyrgyz border in the context of Kyrgyzstan’s national security, Deputy of the Zhokorgu Kenesh T. Usubaliev noted that “Kyrgyzstan must have friendly relations with the PRC,which has a population of 1 billion 300 million people and a multi-million army” (Slovo Kyrgyzstana, 16 May, 2002).
This agreement was preceded by the Treaty on the State Border between the two states of 26 April, 1994 and ad-ditional agreements signed in July 1996, September 1997 and July 1998 (see: Kazakhstanskaia pravda, 11 March, 1999).
See: A. Khojaev, op. cit., p. 140.
See: V. Kasymbekova, “Kak uregulirovat territorialnye spory. Tadzhikskiy opyt,” 30 April, 2009, available at [http://
ww.centrasia.ru/newsA.php?st=1241090940].
See: O. Gritsenko, “Tadzhikistan zakonchil tsarskiy spor s Kitaem,” available at [http://www.centrasia.ru/
ewsA.php?st=1294994040]; A. Dakli, “Tadzhikistan ustupaet 1 tys. kv. km Kitaiu,” available at [http://www.centrasia.ru/
ewsA.php?st=1295129040].
In 1998, Kazakhstan and Russia entered an agreement on demarcating the bed of the northern part of the Caspian Sea and signed a memorandum to it in 2002. A similar agreement (2001) and memorandum (2003) were entered between Kazakhstan and Azerbaijan. On 14 May, 2003, Kazakhstan, Azerbaijan, and Russia signed an agreement on the point of intersection of the lines delimiting the contiguous sections of the bed of the Caspian Sea (see: “Text of the Convention on the Legal Status of the Caspian Sea is 70-80% ready—Russian Federation Ministry of Foreign Affairs,” available at [http:/xronika.az/sng/print:page,1,3423-tekst-konvencii-o-pravovom-statuse-kaspijskogo.html]).
See: Iran Wants Equal Caspian Division of Waters, Seabed [http://www.upi.com/Science_News/Resource-Wars/
/10/09/Iran-wants-equal-Caspian-division-of-waters-seabed/UPI-10581255113679/].
The total length of the Kazakhstan state border amounts to approximately 14,000 km; 7,590 km of which are with the RF, 2,376 km with Uzbekistan, 1,782 with China, 1,241 km with Kyrgyzstan, 426 km with Turkmenistan, and 600 km of maritime borders along the Caspian Sea (see: E. Idrisov, “Uztoichivye tranitsy—zalog stabilnosti gosudarstva,” Diplo-maticheskiy kurier (Publication of the Ministry of Foreign Affairs of the Republic of Kazakhstan—Astana), No. 1, 2000,p. 101; “Delimitatsia i demarkatsia gosudarstvennoi granitsy,” available at [http://portal.mfa.kz/portal/page/portal/mfa/ru/
ontent/policy/issues/delimitation]).
Information on delimitation and demarcation of the state border of the Russian Federation, available at [http://www.
osgranitsa.ru/about/international/countries/delimitation].
The total length of the state border of the Republic of Uzbekistan amounts to approximately 7,000 km; 2,376 km with Kazakhstan, 1,878 km with Turkmenistan, 1,283 with Tajikistan, 1,295 with Kyrgyzstan, and 156 km with Afghani-stan. The data regarding the length of the state border line are not final. During delimitation and demarcation, they could undergo certain changes.
The legal regime of the state border between the Republic of Uzbekistan and Afghanistan has been established by the Agreement on Border Issues (1946), the Treaty on the Regime of the Soviet-Afghan State Border (1958), the Treaty on Friendship, Good-Neighborly Relations, and Cooperation (1978), and the Agreement on the Status and Procedure for Op-erating and Maintaining the Road and Rail Bridge over the Amu Darya River (1982), and so on (see: P.A. Makkambaev, Pravovoi rezhim Gosudarstvennoi granitsy Respubliki Uzbekistan i problemy ego sovershenstvovania: Synopsis of thesis for a candidate of law,” University of World Economy and Diplomacy, Tashkent, 1997, pp. 16-17).
See: “Resolution of the Oliy Majlis of the Republic of Uzbekistan on Ratification of the Treaty between the Re-public of Uzbekistan and Turkmenistan on Delimitation of the State Border No. 176-II of 15 December, 2000,” Legislation Code of the Republic of Uzbekistan (Tashkent), No. 11, 2000, p. 167.
See: Agreement between the Republic of Uzbekistan and Turkmenistan on Cooperation in the Protection of the State Border, Arts 1 and 3, Current Archive of the Ministry of Foreign Affairs of the Republic of Uzbekistan.
See: Treaty between the Republic of Uzbekistan and Turkmenistan on Delimitation of the State Border, Art 1,Current Archive of the Ministry of Foreign Affairs of the Republic of Uzbekistan.
See: Treaty between the Republic of Uzbekistan and Turkmenistan on Delimitation of the State Border, Art 4,Current Archive of the Ministry of Foreign Affairs of the Republic of Uzbekistan.
The matter concerns such canals of interstate significance as the main Karshi and the Amu-Bukhara canals. In addition to the border population of Uzbekistan, they are used by certain districts of Turkmenistan.
See: The President of Kazakhstan meets with the President of Uzbekistan (according to the information of President.kz), available at [http://missions.itu.int/~kazaks/rus/archive/0209/n0209a.htm].
See: Treaty on the Uzbek-Tajik State Border comes into force, available at [http://mfa.uz/rus/pressa_i_media_servis/news/250309r_1.mgr].
See: Cooperation between the Republic of Tajikistan and the Republic of Uzbekistan, available at [http://
ww.mfa.tj/index.php?node=article&id=498]).
The Kyrgyz side proposed determining the state border on the basis of the results of the work of the Joint Land Swap Commission of the Governments of the Kirgiz S.S.R. and Uzbek S.S.R. of 1955 and defining the state border that was approved by a Decree of the Presidium of the Supreme Soviet of the Kirgiz S.S.R. of 30 March, 1961. But it should be noted that the corresponding reports by these commissions were not approved by the Presidiums of the Uz.S.S.R. and the U.S.S.R. see: A. Kozhikhov, “Bezopasnost v Tsentralnoi Azii. Ochagi mezhetnicheskogo napriazheniia v Tsentralnoi Azii,” avail-able at [http: www.cvi.kz/text/Safety/Etnic/html]; “Kyrgyzstan i Uzbekistan iz 1 400 km uchastka obshchei granitsy soglas-ovali 290 km,” available at [www.kabar.kz]).
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