By Bahman Aghai Diba, PhD Int. Law

Bdiba@Aol.com

Iran wants the Caspian Sea to be a condominium (i.e. a body of water run and controlled commonly by all littoral countries through institutions that they establish), or if this is not acceptable to the other countries bordering the Caspian sea, then it be divided into five 20% sections and in the latter case, the whole seabed, its adjacent water and superjacent airspace will be divided.

What is actually happening in the Caspian Sea is that following the failure of Ashkabat (Turkmenistan) Summit Conference to find a commonly accepted formula for the legal regime of the Caspian Sea, the concerned countries (Russian Federation, Azerbaijan, Turkmenistan, Kazakhstan, and Iran) are seeking limited or bilateral agreements for the problem.  Up to now, the Russian Federation has concluded bilateral agreements with Azerbaijan and Kazakhstan for division of the areas.  Also Kazakhstan has reached similar agreements with Azerbaijan. There are measures undergoing for agreement of Turkmenistan and Kazakhstan. Iran has kept repeating that all these agreements are null and void, because according to earlier agreements, all concerned countries must take decisions unanimously regarding the legal regime of the Caspian Sea.

The formula that has been used by the above-said countries for division of the sea is a Russian built and preferred prescription.  According to this formula, which is called “the Modified Median Line (MML)”, the seabed is divided by equidistance or median line (it is modified in necessary cases because of natural or manmade structures), and the waters and air over the seabed is left free for navigation of the littoral countries.  Taking into consideration that all littoral countries, except the Russian Federation do not have any considerable naval or commercial fleets in the Caspian Sea (most of them are engaged in primitive fishing techniques, while the Russians are plundering the whole sea by the Industrialized distant water fishing ships equipped with latest technology of fishing), it is clear that the MML is a good formula for the Russian Federation. They have their own territory and freely travel to the others’ areas.  While the others hardly know where their territory is and do not travel even in their own section.  On the basis of this formula, less than 14% of the deepest side of the Caspian Sea will be devoted to Iran, and others get 17% (Turkmenistan), 20% (Russian Federation), 20% (Republic of Azerbaijan), and 29% (Kazakhstan) of the Caspian Sea.

Except for Iran, the only country that does not like this formula of MML very much is Turkmenistan.  It is a common mistake to consider that Turkmenistan has the same position as Iran in the case of the Caspian Sea.  In fact, Turkmenistan was one of the first countries that called for division of the Caspian Sea instead of condominium.  The only problem of Turkmenistan is the position of several oil fields (especially Sardar or Kapaz) in the area claimed by Azerbaijan and Turkmenistan.

At the moment, the Russian Federation and other countries of the Caspian Sea that have entered into bilateral arrangements are putting pressure on Iran to accept the MML for division of its sea borders with other Caspian Sea states and do not create concerns for expansion of the foreign investments in the area.

What are the options of Iran in the present situation?

1. Iran does not need the sources of the Caspian Sea immediately. There are many other places in Iran that have more oil and it is easy to get them to market.  On the other hand, the Iranian side of the Caspian Sea is very deep and needs high technology and serious investment for exploration and exploitation.  This is a source of power for Iran.  Iran can wait, while others are in hurry.

2. Iran can make investment in other parts difficult by insisting that any action of the other countries before the agreement of all of them is illegal, null and void.  The investors are like gazelles; they flee away with slightest smell of danger.

3. Some people have suggested in the past, that Iran can refer the case to the international forums and courts.  Most of people when they talk about the international courts, think of The Hague based International Court of Justice (ICJ).  However, ICJ has only competence to look into the cases that “the parties to the dispute” agree to refer to that court.  Their agreement may be made before or after the dispute arises, but its existence is crucial.  At the moment, there is no old or new agreement between the littoral states of the Caspian Sea to refer their dispute to the ICJ.

Other places that a dispute between states may go there are: 

The Security Council of the United Nations (Iran or another country in the Caspian Sea or all of them may refer the case to the UNSC under the pretext that the issue is threatening the international peace and security in the region.  Also the Secretary General of the UN may bring the matter to the attention of SC as a matter that threatens peace and security.  Yet other forms of peaceful settlement of international disputes, such as mediation, good offices, and especially arbitration may be used.

I believe that referring the Caspian issue to any of these will result in negative results for Iran at this juncture.  Why?

The Islamic Republic of Iran has not the necessary prestige in the region and the world.  It is has bad reputation in the international forums.  At the same time, the international forums are not free from influences of the powerful countries and in such a case Iran will be in a position against the Russian Federation and USA and one can imagine the results without much thinking.

1. The best way for Iran is the bilateral activities.  Iran must use its relations with the Russians in a better way.  The Russians are in debt to Iran because for more than one decade they pretended to be following the same policy as Iran in the Caspian Sea, and as soon as they found some oil in their own side of the Caspian Sea, they forgot all agreements and started the MML story. 
   
   Also, Iran is a constant customer for the low level products of the Russian industries.  The Chernobyl type nuclear power plants, Tupolev, Antonov, and other aircraft, are only a pat of sweet transaction for the Russians.  The purchase of nuclear power plants by Iran from the Russian Federation saved hundreds of Russian factories from bankruptcy and revived the dying nuclear industry in the Russia.  They are going to build 4 to 8 new nuclear reactors in Iran after the Bushehr Power Plant according to the plan of strategic cooperation of the two countries.  The Russians must pay for these services in the Caspian Sea.
   
   
2. Iran must try to establish good relations with the Western countries, especially the USA.  This is necessary for several reasons: Some of the regional countries are misusing bad relations of Iran and USA for working against the national interests of Iran.  Azerbaijan is a good example.  Also, if Iran wants to use the policy of getting advantages from the Russians, it is necessary to show them that Iran has other alternatives; otherwise this policy is useless, because they assume that Iranians do not have any other place to go.  This may lead to more negative results, and Russians may ask for more advantages for exporting their obsolete technology to Iran.
   
   
3. Killing time until the situation changes in Iran, the region or the world.