In the past month there was rising expectation that the five littoral nations of the Caspian Sea would come close to agreeing on a new legal regime. However, neither the meeting of the deputy foreign ministers from the five Caspian riparian states in Tehran, who held a two-day meeting in Tehran starting on 20 February, nor President Mohammad Khatami's official visit to Moscow from 12-15 March yielded any concrete results. This month, Iran Focus talked to Abbas Maleki, Chairman of the International Institute for Caspian Studies (www.caspianstudies.com), a Tehran-based think tank, to shed light on the position and key considerations of the littoral states, especially Iran, regarding the world's largest inland body of water. Mr. Maleki was the Deputy Foreign Minister for Research and Education, from 1989-1997, during the administration of Akbar Hashemi Rafsanjani and is among the country's top experts on the Caspian Sea.
Iran Focus: Mr. Maleki, in order to refresh the memory of our readers, would you please start by giving a general picture of the various positions of the other littoral states before we move on to a more detailed description of where Iran stands?
Maleki: We will start with a short history of treaties between Iran and Russia. According to the UN's approval in December 1991, all USSR's commitments should transfer to Russia after its disintegration. The Friendship Treaty of 1921 and 1940 Treaty on Trade and Transport in the Caspian Sea indicate that transport and fishing are free in this sea for all Iranian and Russian ships. The third item in these treaties is on the use of the space beyond the Caspian. There are some ambiguities about these two treaties. One is that nothing has been mentioned about the natural environment. Another point is that no difference has been made between warships and other types of ships [i.e., passenger and transport]. And finally the seabed resources have not been argued.
Now we can refer to our country's arguments. Russia believes that the two treaties should still be considered valid and the seabed should be divided between the five countries according to the median line. Russia has acted accordingly, on 6 June 1998 with Kazakhstan, and 12 January 2001 with Azerbaijan. But the Russians are pushing for the surface water to be treated as a condominium, allowing common use. Why? Because of the military benefits of Russia on this issue.
Kazakhstan primarily preferred to determine the legal regime of the Caspian according to the Convention for International Regime of the Seas, approved in 1982, known as Jamaican Convention, which belonged to the closed seas. The solution known as the Doughnut Solution gave an exclusive right on coastal waters to each state. Kazakhstan believed in 12 miles for to be considered as coastal waters of each state, Russia approved of 20 and Turkmenistan 45, and there would be a small region in the middle to be shared. But Kazakhstan currently stresses the division of the sea and would not agree to do otherwise. Due to the specific map of its coastline Kazakhstan's share would be 28.6% of the Caspian's waters, based on the median line.
Another littoral state, Azerbaijan, supports a system of complete division and does not approve of any other system. The question here is whether there can be any sort of guarantee that in case pollutants are poured into the Caspian from Baku and other Azeri cities, they will not reach Iranian waters. Azerbaijan suggests that a convention on natural environment can be prepared. The convention has even been prepared and there is an office in Baku for the Caspian Environment Project (CEP), whose function is under the supervision of World Bank and Global Environment Fund (GEF). The convention approves of a commune system, based on which the sea is a common region. But Turkmenistan and Iran have not signed the convention.
Turkmenistan's view on the issue of the legal regime of the Caspian is somewhere between Iran and Russia. During the recent visit of Boris Shikhmuradov, Mr. Niazov's representative in the Caspian's affairs, the Turkmens agreed with Iran's share of 20%. But they never announced it. Because they thought after Khatami and Putin's meeting Russia would do such a thing, whereas Russia did not.
Iran originally insisted that the new legal regime of the Caspian should be based on the condominium solution. Recently, however, there the Islamic Republic's official position is that it would accept the division of the Caspian Sea, so long as it receives a 20% share, and that both the seabed and surface are divided. Would you elaborate on the evolution of Iran's Caspian policy, and specifically, why does Tehran now agree to a division?
I believe Iran has gone through three five-year periods since the disintegration of the USSR.
In the first period Iran followed an economic approach. This is based on Iran's general view to the northern countries, meaning all the CIS. Iran's approach between 1991 and 1997 indicated that in the Middle Eastern geopolitics, Iran had always been limited to cooperation with the Arab countries or water routes of the Persian Gulf. Therefore the disintegration of the USSR was a gift of God that eliminated all the north and northeastern boundaries and limitations. In the beginning Iran felt as one of the southwest Asian countries and should therefore have more interaction with them. First of all Iran gave a $50 million credit line to each of these countries. Secondly, it introduced Central Asian and Caucasian countries to the UN, the Organisation of the Islamic Conference and finally in an innovative move, joined these countries to ECO. Among different aids given to these countries by Iran, training in customs affairs, insurance, banking, aviation and navigation and establishing branches of Iranian banks in those countries can be mentioned. The importance of their membership with ECO was that it was the first world organisation to accept their membership, besides domestic organisations of the USSR. Mr. Rafsanjani even used personal influence and created a friendly atmosphere with the heads of these countries and a deal for a gas pipeline from Turkmenistan and Europe was signed and they were assisted in the area of mining as well.
In the last year of Rafsanjani's presidency, however, Iran's approach changed into a political-security approach. Those who pushed for this approach in Tehran asked why Iran is helping its own competitor? Who says Iran should help Kazakhstan in the area of oil and gas, which can lead to oil production of 8 million barrels a day in Tengiz, Qarachagnak and the recently explored Kashaghan oil fields by the year 2015? Why did Iran give so much assistance to Kazakhstan's mining sector? Iran believed that cooperation should be based on security, since one of the major threats had been Russia, and this could also cancel any future threat from other countries. Therefore the planned credits were all cancelled and economic cooperation reached its lowest level.
Iran's viewpoint on the preferred legal regime corresponds with the focus of the two approaches listed above. During the first five years after the Soviet Union's disintegration, Iran pushed for the common use of the Caspian by all littoral states. In 1992, the meeting of Caspian's littoral states was held in Tehran and the Organisation for Co-operation between the Caspian Littoral States (OCCLS) was established. Since then, every six months the deputy foreign ministers of these countries have had meetings and once a year the foreign ministers themselves. In 1996, with the presence of Russia's Foreign Minister Primakov, Azeri FM Hassanov, Kazakh FM Tokayev, and Sheikhmoradov from Turkmenistan, three important subjects were approved:
Therefore until 1997 Iran's approach had been completely based on the condominium system. In the political-security approach Iran figured that it did not necessarily need to share the same area with others in the Caspian Sea and as a matter of fact that buffer zone would definitely serve to keep Russia from the lower areas of the sea. Therefore the legal regime proposed by Khatami and his colleagues shifted from a common use one to a system for dividing the sea. There were only certain conditions mentioned in Khatami's speech in the summer of 2000:
You also mentioned a third period of Iran's approach to the Caspian. Would you elaborate on that please?
This new approach started from last Friday, 9 March 2001. Minister of Oil Zanganeh's comments on that day marks the commencement of this period when he said so far Iran had waited for the determination of the legal regime of the Caspian and had not started any explorations, but from now on we would proceed with activities in this field regardless of the Caspian's legal regime.
I believe this period can be referred to as the period of Iran's disregarding the legal regime. Consequently Iran should not expect other countries to wait for the determination of the legal regime. There are several problems caused by this approach:
It should be mentioned that, according to Ali Hashemi's [an Iranian member of parliament who is in the Majles Energy Commission] comments that were printed in a recent issue of the Iranian daily Hamshahri, Iran had already been active in the Caspian and this was no news. Lasmo, Shell and Veba contracts carried out 2-D seismic studies for Iran under one consortium in the Caspian, to select two structures and start exploring. We had another contract with Petro Iran in Alaf oilfield-known in Iran as the Alborz field - which was not followed up.
There is an apparent contradiction between the recent comments of Oil Minister Zanganeh, who announced Iran would not wait for a new legal regime of the Caspian, and the comments of Foreign Minister Kharrazi, who reiterated the condominium solution. Is there a disagreement within the Khatami Administration regarding the Caspian legal regime?
I am not sure if the contradictory comments were based on a disagreement. On 2 March 2001, at the inauguration of the meeting of experts of the Caspian Sea, Kharrazi had referred to collective ownership or condominium, whereas Zanganeh's comments were on the contrary. Whether it indicated a disagreement on the issue or is a part of a more complicated scenario is something I am unaware of.
Prior to the Tehran Summit, analysts expected that the meeting would lead to at least the basics of an agreement on a new legal regime for the Caspian. It did not. Then, many thought that Khatami's talks with Putin would iron out differences and lead to a breakthrough. Why didn't this happen? What are the main obstacles on the way of a new legal regime?
There are several reasons for the littoral states failure to agree:
Despite the improvement in Russia-Iran's relations after Khatami's visit to Russia, the Caspian issue seems to be even more complicated today.
Are Tehran and Moscow getting any closer on their Caspian policy in light of President Khatami's visit?
Before Khatami's visit to Moscow, there were rumours that the Russians had agreed with Iran's 20% share, but this proved not true, maybe because of Zanganeh's comments. The statement signed by Khatami and Putin stressed two points. First, respect for treaties for 1921 and 1940. Second, there should be no further steps taken in order to divide the sea before determining the final legal regime of the Caspian Sea.
But in practice Russia has not acted accordingly. Since it has already recognized its borders with Kazakhstan and Azerbaijan and also they have an oilrig in the north of the Caspian Sea named Astarakhan. I believe Russia's future approach to the issue is to say that just as before when there were only two countries, Iran and the USSR, we will make sure that there will be only two approaches to the issue in the future: one the viewpoint of those countries that had been the members of the USSR and the other the view of Iran.
Putin's representative in the Caspian's affairs Viktor Kalyuzhny, seriously follows the case. During Putin's visit to Azerbaijan and the statement that they signed, it was said that Russia was willing to support [Azeri President] Aliev's succession in return for Azerbaijan agreeing to the formula put forth by the Russians. Therefore Russia and Azerbaijan have the same approach now. Again on 10 March, Kalyuzhny met with the deputy foreign minister of Azerbaijan. And even now, as we are sitting here talking, Kalyuzhny is in Kazakhstan and has reached the same view with this country. Today Mr. Kalyuzhny announced that Russia's object to a submarine pipeline did not represent all under sea pipelines, but only those pipelines that could damage the Caspian's natural environment.
Considering the increasing complication of the arguments on the Caspian, what options should Iran take?
First, Iran should follow the condominium regime. Secondly, it should start exploration and excavation since Iran needs a large amount of investment in excavation of the Caspian resources; however, it should not have mentioned anything about its intention to start projects and should not have showed a change of approach.
As you explained, security issues are paramount in Iranian policymaking towards the Caspian. In fact, one of the main problems Tehran has in regards to the recent agreement between Moscow and Baku is the fact that by allowing for common use of the surface waters, while dividing the seabed, the Russian navy could freely roam the Caspian. You also pointed out that the 1921 and 1940 agreements, which Iran insists should provide the basis for any new legal regime, allows all littoral states' ships to freely navigate that body of water, without distinguishing between naval and passenger ships. How do you explain this contradiction?
The 1921 and 1940 treaties have both advantages and disadvantages. Among their advantages is their long history of 81 years. Both countries later agreed on free access to the sea for all. For instance according to the 1940 treaty, if an Iranian ship is sailing towards Astrakhan, it does not need to have any permission and can proceed to harbour and should only have Russian permission if it intends to cast anchor. The same applies to the Iranian Fishing Company, Shilat. Based on the agreements, Iran has captured 50% of the world's market of caviar.
One of the disadvantages, as you highlighted, is that the treaties do not distinguish between the type of ships. In the 1828 treaty all rights of shipping including warships were taken away from Iran. Therefore, at the time, the 1921 and 1940 treaties were very useful for Iran. If Russian ships sail towards Iran, the latter cannot make any objections, but then Russian warships have never sailed towards Iran.
Another negative aspect is the lack of attention to the natural environment. Again the issue of the seabed can be named among other disadvantages. In these treaties, which apparently did not hold much importance for Iran at the time, Stalin made the withdrawal of Russian forces from Iran conditional to gaining the right of ownership over the northern oil. Iran played down the importance of that request and insisted that there was no oil in the sea to be owned by anybody.
In your opinion would Iran be willing to agree to a share of less than 20% in return for the Russians' keeping their naval power out of the Caspian? Has such an agreement been discussed?
Iran's best option is collective ownership. The next option is division, which should mean the division of everything and not only the seabed. In some meetings Russians have suggested the median line to Iran, which has been rejected by Iran. They have even given an unofficial proposal.
Another option proposed by Moscow is to divide the sea to north and south, with Russian and Kazakhstan in the north, and Iran, Azerbaijan and Turkmenistan in the south. Regarding the northern half, Kazakhstan will have a 28% share because of its shore, Russia 21%. As for the 51% of the southern half, Moscow suggested that it could be divided equally among the three other countries giving a 17% share to each of them. But Azerbaijan does not agree and says it will not accept a share less than the other countries and give some of its share to another country.
Earlier you said that Iran has thus for not accepted taking part of the environmental convention initiated by Azerbaijan. Given that Tehran repeatedly insists that part of its ultimate objective is the protection of the Caspian's environment, which is one of the reasons it allegedly opposes the submarine Trans-Caspian Pipeline (TCP), how do you explain this refusal?
Iran believes that by refusing to sign the convention it can finally persuade the other littoral states to accept the division of the sea to equal shares and eventually the determination of the Caspian's legal regime. But it does not seem to be the right approach. Since the natural environment of the sea is in such bad condition that even a single day's delay in dealing with the matter could be dangerous.
For instance last year about 500 seals died. While the least amount of pollution is caused by Iran, the Islamic Republic has the largest share of people living by the Caspian coast. If about twelve million people live in coastal areas of the sea, Iran's share is 6.5 million of the total number. Therefore Iran has the major role regarding this issue. Then Iran's refusal to sign the convention is the result of a disagreement between Iran's Foreign Affairs Ministry and the Department of the Environment (DOE).
Box: Methods for Dividing the Caspian
From a strictly legal point of view, the new legal regime for that body of water would have to fall under one of three options:
With the consortium approach out of the way, we are left the other methods.
Each state is obviously pushing for its own interests to be best fulfilled. One way to determine the Caspian Sea legal regime is to divide it between the littoral states. According to this theory each littoral state has an exclusive right of ownership in its own division and that area is a part of the soil of that country. But on determining whether the division is in general or only applies to the seabed - i.e., leaving the surface water for communal use - the countries have not reached consensus.
In addition to the above, the main point of contention among the littoral states is on determining the share of each country from the sea. The resources in the Caspian Sea are so varied that the littoral states can by no means disregard it and make all their effort to have maximum share.
With regard to division of the closed seas and lakes, there is no certain international standard and since the international rights of seas do not apply to them the littoral states normally act according to their own judgment and the bilateral or multilateral treaties. This leaves us with the three main opinions on determining share of each littoral state from the Caspian Sea, which are described and illustrated below:
Russia has tried to appease Iran by offering a fourth solution. The Russian proposal is to split the Caspian Sea into a northern and southern section. The northern part, which encompasses 49% of the lake, would concern Russia and Kazakhstan, who are already in accord regarding their shares. The remaining 51%, which falls in the southern half of the Caspian, would be divided into equal 17% shares, according to Moscow's suggestion. Needless to say, Azerbaijan is showing no interest in such a method, which would boost Iran's share at its expense.
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