Bahman Aghai Diba, PhD Int. Law of the Sea

Bdiba@aol.com

The littoral states of the Caspian Sea (The Russian Federation, Islamic Republic of Iran, the Republics of Azerbaijan, Kazakhstan and Turkmenistan) have so far failed to find a commonly acceptable formula for all of them regarding the legal regime of the Caspian Sea.  Russia has succeeded to convince Azerbaijan and Kazakhstan to accept its formula of  “Modified Median Line” (MML).  Iran and Turkmenistan have not accepted that.  It is clear that MML is not able to solve the exsiting problem in an equitable way.  The littoral states of the Caspian Sea must stop putting pressure on Iran and stop misusing the temporary weakness of Iranian regional and global status.

What does MML mean?

The formula of Modified Median Line, as far as the coastal states of the Caspian Sea are concerned, means:

1-                 Dividing the seabed of the Caspian Sea, according to a median or equidistance line (depending on the division between opposite or adjacent countries) from the shorelines of the concerned countries on the basis of the land borders with the sea.  Therefore, longer shores means bigger share of the sea.

2-                 Changing (or modifying) the line of demarcation slightly, according to the position of selected natural elements, such as seabed elevations and man-made elements, such as established installations (the selection of modifying elements and the degree of their relevance can be the subject of a mutual agreement).

3-                 Leaving the superjacent waters free for navigation by all littoral countries of the Caspian Sea, without distinction between military and commercial fleets.

4-                 Leaving the airspace over the Caspian Sea open for aviation activities of the littoral states, without distinction for military or commercial operations.

The effects of using MML formula for defining the legal regime of the Caspian Sea, as far as each country in the Caspian Sea is concerned, will be as follows:

1-                 As far as the Russian Federation is concerned:

A-                Removing the actual problem of a new legal regime of the Caspian sea and therefore, opening the way to concentrate on the issue of turning the oil and gas resources of the Caspian Sea into much needed hard cash.

B-                Proving the leadership of the Russians in the Caspian Sea as the state, which defines who gets what in the Caspian Sea.  This will be a good precedence for the Russians.

C-                The most important of all, leaving the water over the seabed of the Caspian Sea as common area for free navigation.  Taking into consideration that the other countries around the Caspian Sea, including Iran, do not have any considerable naval units or commercial ships to navigate in the Caspian seas, the formula means to give the highly equipped fishing ships of the Russians permission to go all over the Caspian Sea for fishing activities all the year round, while the other states are catching fish with the old dated, and even primitive methods of fishing in the areas near to the shore.  Also, the naval fleet of the Russians in the Caspian Sea that are now equipped with new advanced units can navigate all over the Caspian sea.

D-                Flying all over the Caspian Sea (except may be over the ten mile exclusive economic zone, out a courtesy not a legal obligation).

E-                 The MML gives the Russians the possibility of keeping their maritime boundary with Iran.  Iran does not have a land border with the Russian Federation, and if the Caspian sea is divided into national sectors (which includes the waters) then there will be no maritime bolder too.   As far as Iran is concerned, having a “Buffer Zone” with a great power is a positive point.

F-                 The formula of MML gives the Russians the possibility of preserving their maritime link with Turkmenistan.  Although the republics in the south of the former USSR are apparently independent now, they are still considered as a security and influence parameters by the Russians, and keeping such border links is important for the Russians.

G-                The Russians will get almost 20% of the Caspian Sea seabed.  At the same time, they have already discovered enough reservoirs of oil in their respective 20% of the Caspian Sea.  Before discovering these reservoirs, for the period of ten years the Russians had the same positions as Iran regarding the division of the Caspian Sea.

2-                 As far as the Republic of Azerbaijan is concerned, the MML means:

A-                Azerbaijan gets Almost 21% of the Caspian seabed according to the MML.  The area is one of the places known to have vast oil resources and the Azerbaijan Republic and before that, the Russians were exploiting the resources in the last century.

B-                “Under the MML approach, Azerbaijan would control access to 4 billion tons of reserves, twice Russia’s allotment and more than four times Iran’s share.”(www.eurasianet.org)

C-                 If Iran Agrees with the MML, then even the disputed oil fields of Alborz will be placed in the Azerbaijan’s territory.

D-                If Turkmenistan accepts the MML, then the important oil fields of Sardar/Kapaz will be in the Azerbaijan’s territory.

3-                 As far as Kazakhstan is concerned, it means:

A-                Almost 29.50% of the Caspian seabed will be allotted to Kazakhstan.  This is the biggest share of the Caspian Sea for a country with less than 15 million population.

B-                Taking into consideration the commitment of Kazakhstan for using Baku-Jeyhan pipeline for the export of its oil through the said pipeline, the issue becomes more meaningful.

4-                 As far as Turkmenistan is concerned:

A-                Turkmenistan will get around 17% of the Caspian seabed by MML.

B-                It will lose the disputed oil fields of Sardar/Kapaz to Azerbaijan, which is very important for Turkmenistan.

5-                 As far as Iran is concerned, the MML means:

A.                 Iran will be limited to 13-14% of the seabed of the Caspian Sea.

B.                 The Iranian section in the Caspian Sea is free from any known oil and gas fields so far.

C.                 The Iranian side of the Caspian Sea is very deep (some parts of the southern Caspian sea are 900 meters deep, while in the north, it is only a few meters deep), and any exploration and exploitation of resources in the seabed in this Area is more difficult than the shallow parts of the northern Caspian Sea.

D.                 The Russians ships can come close to the Iranian shores any time.  If one remembers that one of the articles of 1921 treaty of Iran and former USSR (the same treaty which Iran insists, it is the basis of the existing legal regime in the Caspian Sea), gives the right to Russians to intervene in Iran, then, this freedom will mean more than it looks.  Of course, the Iranian governments before and after the revolution (1979) have repeatedly declared that the article 5 of the 1921 treaty is null and void.  Iran has been arguing that the subject of the Article 5 was the White Russians, and the issue was dead.   The Russians have never accepted the Iranian interpretation of that article.  In fact, one of the reasons that Russians keep mentioning that 1921 and 1940 treaties are still valid, although they are actually violating them, is the same point.

It is clear that the situation is not in Iranian favor with the MML.  Iranian authorities in different levels, have called the bilateral treaties of the Russian Federation with Kazakhstan and Azerbaijan, and between Azerbaijan and Kazakhstan with themselves, and even the recent preliminary agreements of Kazakhstan and Turkmenistan for using the same formula, as null and void because they were contrary to the previous agreements of all concerned countries to make decisions regarding the new legal regime of the Caspian sea by consensus (agreement of all five countries) in several occasions.

The Iranian position is that the 1921 and 1940 agreements between Iran and the former USSR are valid until the five countries find a new regime accepted by all of them.   Also, Iran believes those treaties are forming a kind of condominium in the Caspian sea which is a good system, but if the concerned countries decide to go another way and divide the territories, then the whole sea should be divided into 20% sectors for each and that will include the superjacent waters and airspace.  Others do not accept the Iranian suggestions and at the same time, they are putting pressure on Iran to accept the MML. This division is definitely unjust.  It is not the result of exerting legal and legitimate rights of Iran.  It is the result of political situation created by the unwise policies of a government in Iran which is so absorbed in issues related to its survival that has forgot the issues related to the national interests.

The littoral states of the Caspian Sea need a comprehensive treaty based on principles of justice otherwise there will be a root for conflict.  I wish to point out equivocally to the other countries of the Caspian Sea:

Do not misuse your temporary advantage that is based on your relationship with the USA.  Iran may change its government or its policy in one day.  Iran may change its policies or even become an ally of the USA with a single Fatwa of the present Supreme Leader or by the decision of a new government.  People of Iran will not forget who stabbed them in the time of trouble.   Give up the idea of imposing unjust formulas to the country of Iran.  Otherwise, you are sowing wind and you will reap tornados.  Think of an equitable solution that brings a Win-Win situation for all.  According to this formula, a newly independent country like Kazakhstan, with a small population gets almost 30% of the Caspian seabed, and an ancient country like Iran which in fact owned 50% of the Sea for a long time and its people have lived and contributed to the civilization of the area for thousands of years, get 13 % of the Caspian Sea.

In that framework several points should be regarded:

I.                   The delimitation of maritime areas has been done according to several methods. But the main idea in all those methods is the satisfaction of the parties.  The median line and equidistance method are well known methods but no country is obliged to use it exclusively.  The MML is based on the equidistance principle for division of maritime boundaries.  But according to international law of the seas, although equidistance is a major approach used for delimitation of maritime boundaries (such as the territorial sea, continental shelf and exclusive economic or fishing zones), is not the aim, it is in fact a means “in order to achieve an equitable solution”.

R.R. Churchill and A.V. Lowe in their prestigious book “The Law of the Sea” (Manchester University Press, UK, 1985) refer to the following points:

“To delimit the EEZ of opposite and adjacent States.  Article 74(1) of the Law of the Sea Convention provides that such delimitation 'shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution'.  If no such agreement can be reached within a 'reasonable period of time', the States concerned are to resort to the procedures for the settlement of disputes provided by the Convention.  These provisions are the same, mutatis mutandis, as the provisions of the Convention governing delimitation of the continental shelf. ” (P.118)

Also: “The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.” (P.126)

II.                 The historical rights should be regarded.  The case of “historical bays” in the 1982 UNO Convention on the Law of the Sea might be useful for a start.  Also, the arguments regarding the historical rights of Iran should start from the point that following the demise of the USSR, the inheritors of the dead man should divide their own share and Iran must get 50% of the Caspian Sea.

III.              The size of population of littoral countries and the degree of dependence of local population to the Caspian Sea must be taken into consideration.