Bahman Aghai Diba, PhD International
Law of the Sea
"I
smell oil, blood and politics" - Alfred Noble on
the Caspian
Sea
The Caspian
Sea, which is a lake, is not subject to any law. The countries surrounding it have not
reached an agreement on the legal regime of the Caspian
Sea. Since the collapse
of the USSR in 1991 the
littoral states (Iran,
Russian Federation,
Kazakhstan,
Azerbaijan and
Turkmenistan) have had
hundreds of meeting in various level and they have not succeeded to reach an
agreement how to administer the Caspian Sea
issues.
The expert meetings for drafting "
the Caspian Sea Convention" have been holding sessions in the littoral states in
a regular manner and sometimes the concerned countries have declared that they
were close to finalize the "Convention on the Caspian Sea". The truth is that the concerned meetings
do not cover the most important issue in the Caspian Sea i.e. the legal regime
of the Caspian Sea. The negotiators have been discussing and
drafting only secondary and less important and administrative articles. The reason is that the legal regime of
the Caspian Sea is not in their level to
discuss.
At the moment, the military and
civilian ships of the littoral states (mainly belonging to the Russian
Federation) cruise in the Caspian Sea without knowing their rights and
obligations, the non-regional states are trying to increase their presence in
the Caspian countries and their naval and commercial fleet in order to be ready
for the future developments, the fishermen are plundering the sources of the
Caspian Sea without attention to the international rules of protecting the
endangered spices, the rival states are competing to get the oil and gas from
their landlocked countries to the high seas, some of the littoral states do not
know when and where they will be able to lay a pipeline in the Caspian sea, the
sources are left untouched due to the conflicts on the oil and gas fields and common areas, while the oil prices
over sixty dollars are adding new fuel to the old conflicts.
Here is what the littoral states
think:
A- Iran: The position of Iran regarding the legal regime of the Caspian Sea was originally a kind of condominium. The idea of condominium was
based on the interpretations from the previous agreements of Iran and the Russians (1921, and 1940 treaties)
when no other country existed in the coastal lines of the Caspian Sea. (1) Later, Iran proposed a
new option without giving up the condominium idea. Iran reduced its insistence on the
condominium only when it was left lonely and the Russians took a new stance
without even showing any regrets for such a drastic change of policy. If
Iran was a powerful county, it could
make the Russians stand responsible and even pay the ramifications of their
change of policy. However,
the new option for Iran was
that if the condominium (a kind of joint management of the Caspian sea affairs)
was not acceptable to the other states, then the whole Caspian Sea must be divided into 20% sections for the five
littoral states. In fact, the new
position was the reaction of Iran to the wasting of Iran's time and energy by the Russian
Federation for more than a decade. (2) What is
recently tabled indirectly and tacitly as the new approach by the Iranian
authorities (3) is that the Caspian Sea must be
divided according to principles of justice, fairness, equality and equity. What is meant from justice and equity by
Iran in the Caspian Sea is
very simple: Iran wants to discard the Russian formula of the
Modified Median Line (MML) as the basis of the division because it does not
bring justice and it proposes new criteria for creating a just and equitable
condition in the Caspian Sea. The division must make note of many other
considerations (4) in addition to the length of the coastal area in the Caspian,
and especially the historical rights of states. This is of course, very close to
the idea of dividing the whole sea into five equal sections.
Another issue, which is new in the
Iranian approach, is secrecy in dealings about the Caspian
Sea. The secrecy in
this field has been so extensive as to exclude the Iranian parliamentarians from
the process of negotiations. The
main reason for such secrecy is that the people of Iran believe that their government has failed to
achieve Iran's rights in the
Caspian Sea due to the lack of international
prestige, bad relations with key states, and corruption. It is widespread belief that the real
ruling circles in Iran have no respect for national
interests and they act only on the basis of the preservation of the ruling
clique. The lack of democracy in
Iran has led to the
distancing of people and government in Iran. Therefore, the government is
trying to follow a secret diplomacy in all cases. The Caspian
Sea had turned into a clear symbol of the Iranian regime's
inefficiency in the conduct of foreign policy and materialization of the
national rights and interests in the international arena. However, the facts in this case are so
obvious that secrecy does not work.
The states in the Caspian Sea region are misusing the opportunity created
by lack of good diplomacy in Iran and ignoring Iran's
rights.
B- The Russian
Federation was
supporting the idea of condominium along with Iran
for more than a decade. They have
registered numerous documents in the United Nations Organization in support of
this policy. However, after one decade the Russians changed their position
overnight. After all, this is a
lawless territory, and they could afford to do so in lieu of the weak and
miserable states like Iran in
the littoral area of the Caspian Sea. Since
then they have been busy imposing the idea called MML (Modified Median line) to
the other states in the Caspian Sea. According to this idea, the seabed of
the Caspian Sea is divided between the
concerned states on the basis of a median line, which is the extension of the
coastal points, and the superjacent waters are left for " free use" of the
states. On the basis of this
formula, agreements have been reached between the Russian Federation, and Kazakhstan, Russian
Federation and Azerbaijan, and Kazakhstan and Azerbaijan. The
Russians are busy exerting pressures on Iran and Turkmenistan to accept the MML. Sometimes they do it by words and some
other times by acting.
The formula of MML (Modified Median
Line), as far as the coastal states of the Caspian Sea are concerned, means:
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. Also, 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 and leaving
the superjacent waters free for navigation by all littoral countries of the
Caspian Sea, without distinction between military and commercial fleets. Also, leaving the airspace over the
Caspian Sea open for navigation 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 the Russian
Federation is concerned
are:
1-
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.
2-
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.
3-
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.
4-
Flying all over the Caspian Sea (except may be over the ten mile exclusive
economic zone, out a courtesy not a legal obligation).
5-
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.
6-
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.
7-
The Russians will get almost 20% of
the Caspian Sea seabed.
As far as the Republic of Azerbaijan is concerned, the MML
means:
- 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.
- "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."
- If Iran Agrees with the MML, then
even the disputed oil fields of Alborz will be placed in the Azerbaijan's
territory.
- If Turkmenistan accepts the MML, and then the
important oil fields of Sardar/Kapaz will be in the Azerbaijan's
territory.
As far as Kazakhstan is
concerned, it means:
- 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.
- Taking into consideration the
commitment of Kazakhstan for using Baku-Jeyhan
pipeline (5) for the export of its oil through the said pipeline, the issue
becomes more meaningful.
As far as Turkmenistan is
concerned:
- Turkmenistan
will get around 17% of the Caspian seabed by MML.
- It will lose the disputed oil
fields of Sardar/Kapaz to Azerbaijan, which is very important for
Turkmenistan.
As far as Iran is
concerned, the MML means:
- Iran will be limited to 13-14% of the seabed of
the Caspian Sea.
- The Iranian section in the
Caspian Sea is free from any known oil and gas
fields so far.
- 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.
- 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, 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 MML does not
work for Iran. 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.
International Law
and MML
In the case of delimitation of
maritime boundaries, the international law has proposed the equidistance as a
basic way but it is not compulsory to use it and at the same time the aim from
using it getting an equitable situation. Therefore, if the MML is not
providing an equitable situation in the Caspian
Sea, there is no need to accept it.
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)
Also, the AALCO (Asian-African Legal
Consultative Organization which was AALCC previously) has made studies regarding
the delimitation of the maritime boundaries (exclusive economic zone and
continental shelf) in 1985-86 (at that time, the late Dr. Mostafa Ranjbaran was
the Deputy Secretary General of the AALCC) during its 24th and
25th sessions at the request of several states, and the conclusion of
the research was that although the equidistance and median line was a widespread
method of limitation, the usage of the method was meant to achieve the just and
equitable division.
It is also noteworthy that the MML
has left many problems in the Caspian Sea as
unsolved. Some of these are:
The common oil and gas
fields.
-
The mutually claimed
fields.
-
The distinction in the military and
commercial navigation.
-
The situation of the navigation for
other countries (except than the littoral states).
-
Over-flight in the Caspian airspace
(for littoral and non-littoral states).
-
Responsibility for
pollution.
-
The legal regime and right of
passage from Volga-Don, and Volga-Baltic waterways for all or some of the
littoral states of the Caspian Sea (the states which were part of the
USSR had share in the burden of
construction of these waterways and hence they may have a legitimate claim about
some of kind of " right of passage" or "easement".
At the same time, Convention for
protection of the Caspian environment, which was signed among the littoral
states of the Caspian Sea (Turkmenistan signed it later) at
11/05/03, but it did not solve the issue of responsibilities. It only says: the
littoral states are committed to take necessary steps individually or
collectively to reduce and control the pollution. It doest not make clear the
responsibility of states, especially Russia which produces 80% of the pollution
in the Caspian sea, for observing all international documents that it has sighed
regarding pollution control especially for the marine pollution by oil
(accidental or unintentional and intention or operational
pollutions).
One of the obstacles for reaching a
meaningful formula in the legal regime of the Caspian Seas
is the autocratic and corrupt government all around the Caspian Sea.
It's like a club of despotic regimes. Corruption and tyranny is a regional
sickness in the Caspian Sea. The Russian
Federation is deeply enslaved by the new Mafia
who is willing to deal everything with hard currencies. Azerbaijan, Kazakhstan and Turkmenistan are
ruled by the remnants of the older Soviet officials. Iran is in the
hand of despotic mullahs.
They are openly undemocratic and corrupt.
Recently the Open Society Institute
has published an interesting report. The report (6) has good points for all oil
exporting states, including Iran but it is addressed to the
Azerbaijan and
Kazakhstan. The reason for choosing them is the good
position of these states in oil and gas reserves and increasing reliance of the
West on them.
Josef E Stiglitz, Noble Prize winner in
economics, has pointed out in the forward to the report: " …the most fundamental
problems that many resource-rich nations face are political. Control over natural resources wealth
provides leaders with little incentive to share power and gives leaders the
means to buy legitimacy rather than earn it through elections…the desire by
government leaders to control wealth generated by natural resources often
discourage the development of democracy and promote violent conflicts and
resistance by those who have not benefited from, the resources and who feel shut
out of centralized, undemocratic political systems."
Also, On January 27 of 2004, the
council of Europe's Parliamentary Assembly (PACE) examined Baku's compliance with the
organization's human rights standard.
HRW [Human Rights Watch] representative urged PACE to express stronger
concern about conditions in Azerbaijan. According to the report of the CE's
website, PACE members termed Azerbaijan's rights record far from
satisfactory. Another potential source of insatiability in Azerbaijan,
according to the same report was a criminal case in the US Federal Court in
which top Azerbaijani leaders have been implicated in corrupt practices
concerning oil and gas deals.
(7)
The Caspian
Sea is not so peaceful as it looks. The region has potential for turning
into the point of confrontation and conflict. The littoral states of the Caspian Sea have not solved their problems and they have
taken steps in line with militarization of the region, while issuing
declarations to the contrary. The
division of the Caspian Sea still remains a
thorny problem in the relations of the littoral states.
The Caspian region will remain an
important place for the world in the foreseeable future (8) and the movement of
the NATO bases towards the Central Asia and Caucasus, along with more reliance on the Caspian oil has
created new attention to the situation of the region.
The Russian formula of MML has not
solved the problems of the Caspian Sea states,
even between those who have used the formula. Iran is demanding the division of the
whole Caspian Sea on the basis of justice and equity, whether in the context of
the principles of the international law, or "body of principles constituting
what is fair and right" in the general practice of the legal affairs. (9)
Iranians believe this helps to establish sustainable political stability and
peace in the situations like the Caspian
Sea. Otherwise the
situation in the Caspian Sea will be what Alfred Noble, founder of the Noble
prizes (contrary to public belief, he made his fortunes from the wooden oil
pipeline that he made from Baku in
Azerbaijan) predicted for the Caspian
region: "I smell oil, blood, and politics."
Notes and references
(1)
For further discussions in this
regards, and also the text of the relevant parts of the 1921 and 1940 treaties,
please refer to: Bahman A Diba, the Law and Politics of the Caspian Sea in the 21st Century, Ibex Pub.
2000. Maryland USA.
(2)
Some experts believe that 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. The size of population of littoral countries
and the degree of dependence of local population to the Caspian Sea must be taken into
consideration.
(3)
Eurasianet
(4)
Regarding the game that the
Russian Federation played in
this field please refer to: Law and Politics of the Caspian
Sea, Ibid. PP 20-33
(5)
The pipeline was inaugurated
recently (2005) with capacity of one million barrels a day. This pipeline is the symbol of
Iran's failure in the pipeline
diplomacy of the Caspian Area.
(6)
Svetlana Tsaliok, Caspian Oil
Windfalls: who will benefit?" Caspian Revenue Watch, Central Eurasia Project,
Open Society Institute, 2003, NY, NY.
(7)
Azerbaijan shrugs off criticism of its human
rights practices: CaspianSea.com
(8)
Matthew Reimer, Caspian Center
(9)
Back Law Dictionary, Bryan A.
Garner, West Group, St. Paul
Minn, 2000. P.
443
* Parts of this article were
published in the Soochow Law Journal, Jan.2005, Vol. II, and No.1.
About the Author: Bahman Aghai Diba is Consultant in
International Law to the World Resources Company in the Washington DC
