A proposal for solving the problem of the legal regime of the Caspian Sea
By Bahman Aghai Diba, PhD International Law of the Sea
Since the collapse of the USSR, The Caspian littoral states are trapped in a cul-de-sac about the legal regime of the Caspian Sea. The failure to define the legal regime of the Caspian Sea is putting a pressure on the political relations of the littoral states. It also creates a potential for conflict and at the same time it is a hurdle for the economic growth of the region.
Caspian Sea from space (NASA, 2003) -- see high resolution
Here is a proposal for dividing the Caspian Sea in a way that almost solves problems of all littoral states and open the way for more activities.
The Caspian Sea has two major sections: the north that is close to the Russia and Kazakhstan. The South that is close to Iran, Turkmenistan and Azerbaijan. The countries in the North have already reached a formula that is proposed by the Russians. The formula is modified median line. The seabed is divided by the median lines and the waters remain for common use.
The countries in the south have failed to reach a compromise mainly due to the fact the Azerbaijan and to a lesser degree Turkmenistan are not ready to accept an equal or even equitable approach for the division of the sea.
Iran is totally against the approaches that leave it with the smallest portion and at the same time Iran is in a position to stop others from acting freely in the region.
Under the median line or the methods based on the length the shorelines in the Caspian Sea, Azerbaijan gets almost 20, Turkmenistan get almost 17 and Iran gets 13 percent of the Caspian. The countries in the north, Russian and Kazakhstan get respectively 20 and 28 percent of the Caspian Sea according to the median lines (in total 48 %). It also leaves 52 % of the Caspian for the three states in the south.
The suggestion is that all three countries in the south get almost 17.30 percent of the Caspian Sea and only the important common sources are dealt with separately. This practice has precedence in the Persian Gulf that common sources are divided according to separate arrangement. Also, the countries of the south, can decide to make these borders both for the water and seabed and therefore, stop the Russians and others from entering their territory. This will cut only a small portion of the others and create a lasting and equitable basis for the legal regime of the Caspian in the south. For reasons that I have explained later in this writing, if the proper solution is not reached, Iran is in no hurry and at the same time in very good position to stop others from benefiting the sources in full. Whatever activities is talking place at the moment in the south is far from the undetermined areas and close to the shores of the littoral states in the south. On the other hand, an imposed formula that disregards the rights of Iranian nation (for any reason, including the bad foreign policy of the Islamic Republic in Iran), will sow the seeds of future conflicts.
The Caspian Sea littoral states have failed to reach a general compromise on the legal regime of the Caspian Sea since the collapse of the USSR. These states have convened many conferences in all levels, including the first summit in 2002 in Ashgabat (Turkmenistan) and second summit in Tehran, 16th of October 2007, and the third summit in Baku (2010) to solve this problem and they have not succeeded. This issue has the potential to turn into a point of confrontation and even conflict, especially with discovery of oil and gas resources and the new importance of the Caspian oil as an alternative to the Persian Gulf oil.
Positions of the littoral states of the Caspian Sea
the Russian Federation is not a super power as it was once, but the Russian leaders are always dreaming of restoring the Russian hegemony in the area that once used to be the Russian domain. As far as the Caspian Sea is concerned, they want to use the whole Caspian Sea for their military and civilian fleet. They are following these policies:
- Division of the Caspian Sea bed (only) on the basis of a modified median line (MML). It means the more coastal area you have, the more area of the Caspian Sea bed you get. According to the MML, Russia, and Azerbaijan get almost twenty percent (each of them), Kazakhstan gets 30 percent, Turkmenistan gets almost 17 percent and Iran gets almost 13 percent of the Caspian Sea-bed. The MML formula leaves the waters of the Caspian Sea for common use of the littoral states.
- Putting pressure on all Caspian states, especially Iran, to accept the MML for division of the Caspian Seabed. The Russians have succeeded to convince Azerbaijan and Kazakhstan in this field. Iran, along with the on and off support of Turkmenistan, has not agreed with it.
- Trying to limit all non-littoral states from having military or civilian presence in the Caspian Sea. The Russians have stationed one of their most important naval concentrations in the Caspian Sea. The civilian fleet of the Russians in the Caspian Sea handles ninety percent of the maritime transportations in the Caspian Sea. The Fishing fleet of the Russians has no rival in the region. The other littoral states have nothing considerable in the Caspian Sea.
- Creating difficulties for the usage of Volga-Don and Volga-Baltic channel for the other littoral and non-littoral states, for keeping the advantages of the Russian fleet, ports and facilities. The Russians have been insisting that the Volga channel is completely an internal waterway. (While the new conditions of the Caspian Sea requires some kind of reconsideration in this regard and make it an international waterway or a waterway under a special regime, such as the Bosporus and Dardanelle.)
- Refraining from providing the other littoral states with larger ships for expansion their military or civilian fleet. For example by refraining from selling ships, or helping them to build naval facilities. The littoral states of the Caspian Sea, except than the Russian Federation, do not have any military of civilian fleet (Iran’s share from the shipping in the Caspian Sea is less than 4 percent.) and the Russians want to keep them that way.
- Forcing the littoral states to use Russian outlets for the export of their oil and gas. The landlocked states of the Caspian Sea need proper outlets for their exports and the Russians try to make them use the Russians facilities. One of the ways to do so is the rejection of building under water pipelines in the Caspian Sea under the pretext that it damages the environment. It is noteworthy that the Russians are responsible for ninety percent of the pollution in the Caspian Sea through thousands of the Russian factories that pour their industrial wastes in the Volga River and eventually the Caspian Sea.
- Formation of a kind of common military force for the Caspian Sea. This force will be almost completely a Russian instrument for patrolling all the Caspian Sea. Other littoral states have hardly enough boats to do low-level police activity in their shorelines.
- Using the opportunity gained by Iran’s isolation to force Iran to accept the MML. Iran is under pressure and the Iranian regime is desperate for its survival. The Russians are well aware that they cannot treat a thoroughly nationalist government in Iran, as they treat the Islamic regime of Iran.
The Republic of Azerbaijan is happy to get twenty percent of the Caspian Sea by the MML. However their policies are:
- Attracting the Western countries, especially the USA into the Caspian Sea. The inclination of Azerbaijan to the Western states, especially the USA is based on the fact that the Azerbaijan Republic, as the second Shiite country in the world (after Iran), is feeling worried about the ideological provocations orchestrated by the Islamic Republic and other Islamic extremist elements. Also, the Azeris need to neutralize the Russian presence, as a force supporting Armenia (which has close relations with Iran and Russian Federation).
- Good relations with Israel as an indication of the inclination to the Western countries. The Azerbaijan Republic is aware that its relations with Israel can play an important role in convincing the West about its intentions.
- Presenting the Baku-Jeyhan pipeline as the best way for oil exports of the Caspian land-locked countries. The Baku-Jeyhan pipeline is now operational and despite the fact that it was not an economical project, the Western support has succeeded to create this pipeline. The Baku-Jeyhan pipeline is the clear sign of the failure of Iran and Russia in the regional pipeline diplomacy. However, the Azeri oil is not enough for using the full capacity of the Baku-Jeyhan pipeline, and Azerbaijan needs to attract the cooperation of the regional countries, especially Kazakhstan to give this pipeline.
- Promoting the proposed Gas Pipeline called Nabucco, as an alternative route for carrying gas from the Caspian area, cutting the monopoly of the Russians in the regional business and creating a “gas” Baku-jeyhan.
- Getting into NATO and leaving the hand of NATO free in the Caspian Sea. Azerbaijan has already suggested the Americans and the NATO to use the Abshoran peninsula as their military bases. There are some news about establishment of the radar posts by the NATO in Azerbaijan and possible use of the Azeri territory for an attack against the Islamic regime of Iran.
- Getting the international support in the case of Nagorno Qarabagh with Armenia. This is the most important issue in the political agenda of the Azeri governments. Azerbaijan is ready to give concessions in the Caspian Sea to the forces that help it in the case of Nagorno Qarabagh. The Republic of Azerbaijan has rejected the suggestions of Iran for meddling in this issue because they do not believe in impartiality of Tehran.
- Exploration and exploitation of the resource in the Caspian Sea with the capital and expertise of the Western countries. Azerbaijan has been exploring the oil resources of the Caspian Sea for the last two hundred years (more seriously in the last fifty years). They need new technology and investment in the oil and gas resources.
- The Azerbaijan Republic has already joined with the Russians in using the MML as the formula for division of the maritime borders with the Russian Federation, as far as the Caspian Seabed is concerned. However, they are interested to make this division wider and to include the waters too.
Kazakhstan is trying to make use of the opportunity created by the access of the country to most of the Caspian Sea. The MML leaves this country with 30% of the Caspian Sea-bed. The Kazakhstan’s fields are actively developed by the Western companies, especially the Americans, interested in non-OPEC, non-Arab, Non-Iranian oil. Kazakhstan has already concluded treaties with the Russians and the Azerbaijan Republic for using the MML as the division criteria of the Caspian Seabed. Iran has proclaimed such treaties as null and void because the littoral states have originally agreed to make decision on the legal regime of the Caspian Sea unanimously.
The government of Turkmenistan is not satisfied with the MML, not because its share according to the MML formula is 17 percent, but due to the fact that the important oil fields claimed by Turkmenistan are given to Azerbaijan by the MML. Turkmenistan once went to the brink of war with Azerbaijan over these oil fields (Kapaz or Sardar oil fields). It was interested to be in the side of Iran against the MML, but it was not ready to tie its destiny to the Islamic regime of Iran. Turkmenistan has already showed that it agrees with the MML and there are only some problems (such as the Kapaz oil fields) that should be hammered out. Also Turkmenistan is waiting for the destiny of Turkmenistan-Afghanistan-Pakistan pipeline.
What is the position of Iran?
The position of Iran is to divide the Caspian Sea according to equity (20% for each). Iranian position about the possible division of the Caspian Sea is not limited to the “seabed” (unlike MML). Iran is asking for a complete division of the whole sea. This kind of division will lead to:
- Restriction of the Russian forces from traveling freely all over the Caspian Sea.
- Stopping the industrialized fishing fleet of the Russians from using the national sections of the other countries
- Disconnection the direct link of the Russians with Iran. The Russian Federation has no land border with Iran at the moment. Following the collapse of the USSR in 1991, the land border of Iran and the Russians was removed. Division of the Caspian Sea into national sectors, as Iran is calling for, will result into removing the water borders with the Russians too.
However, at the moment no body is taking the positions of Iran in the Caspian Sea serious. Due to the troublesome nature of the Iran’s Islamic regime, all countries in the region are pausing to see what is going to happen to the regime of Iran. After all, what is the use of entering into agreement with an unstable regime? Iranian people think that the failure of the Islamic regime of Iran for protecting the Iranian rights in the Caspian sea (as an ancient country which has been living in the southern shores of the Caspian Sea and as a state that has shared this body of water with the Russians for a long time) is the result of the mismanagement of the international relations and the wrong decisions of the Islamic regime in the field of the foreign policy.
It seems the best policy for the Islamic Republic of Iran, as a regime that has not succeeded to safeguard the national interests of Iran in the Caspian Sea, is refraining from entering into any kind of contractual arrangements or agreements that might jeopardize the national interests of Iran in the Caspian Sea in an irreversible way. These are the reasons for the preferred inaction policy:
- Iran does not need its oil and gas resources in the Caspian Sea immediately. There are many places (including the Persian Gulf) that Iran possesses large amounts of oil and gas reserves. These can be exploited much easier as compared to the Iranian side of the Caspian Sea. In fact, the Iranian side of the Caspian Sea is deep (the deepest point is almost a thousand meters deep) and it is difficult to explore and exploit oil and gas reserves here. Any economical activity in this section requires high technology and more investment. It must be noted that although the Caspian Sea is a lake, it has the features of the open sea in many regards like water currents and weather conditions. You to add to this picture the difficulties of getting the facilities to the required points in the face of the non-cooperation of the littoral states and isolation of Iran.
- The nuclear issue of Iran, along with other policies of Iran, has left Iran in a weak situation in front of the Russians. Iran needs the Russians for stopping the adoption and implementation of the UN sanctions. This makes the maneuverability of the already weak policy of Iran more limited.
- It is not a good idea to take the case of the Iranian interests in the Caspian Sea to the international tribunals (such as the UNSC, International Court of Justice, and international arbitrations). Iran has not a proper international prestige, and it has not the support of any country in the world and in the case of the Caspian Sea, the Russians are on the other side too. Referring the case of the Iranian rights to the international forums will not be a solution for Iran at the present conditions. With all littoral states, Russia, the US and the EU on the other side, who is going to vote for the Iranian rights in the Caspian Sea?
- The establishment of the new legal regime will ease the way for the others to do what they want and Iran will be left back due to the lack of expertise and financial resources. The picture is bleaker for Iran if we consider that some of the most important oil and gas fields in the Caspian Sea are common among the littoral states in any kind of division.
- Iran has failed in the pipeline diplomacy so far. The important pipelines are already avoiding Iran. The new legal regime will not change the situation of Iran in the pipeline diplomacy of the region.
Iran is planning to define its Caspian Sea Doctrine. The concerned doctrine has several components which are designed to answer the views of the Iranian government in the various fields starting from the legal regime of the Caspian Sea and extending to the environment, shipping, and flying over, exclusive economic and fishing areas, joint ventures in the economic activities and the security of the region. The key words in the “Iranian Caspian Sea Doctrine” are: “consensus”, “equity” (in the divisions) and at the same time, “keeping the non-littoral states out” of the region.
Mohammad Mehdi Akhunzadeh, the Deputy Iranian Minister of Foreign affairs and also the special envoy of the Iranian president in the Caspian Sea affairs, following the Summit of the Caspian littoral states in Baku Azerbaijan Republic (18 November 2010), which was the third summit of these states (the first one was in Ashgabat 2001, and second one in Tehran 2007), has said that Iran is preparing its Caspian Sea Doctrine.
On the basis of what he has told as the report of the Baku Summit to the Iranian media, and also other reports about the positions of Iran regarding the Caspian Sea, it is possible to conclude that that the main points in such a doctrine are as follows and at the same time, some comments are made about each of them.
- The Caspian Sea is a sea of “peace and friendship”. These words have been repeated by many Iranian officials, including the president and foreign minister, before and after the Baku Summit. This point has in fact two important sides: it is an expression of hope that peace prevails in the Caspian Sea and at the same time, it is indirectly a kind expression of concern that the Caspian Sea has potentials for conflict (1) and if the littoral states cannot find ways to solve their problems from peaceful ways, the possibility of conflict is there. Lack of attention to the fundamental interests of a major power in the region (noting that the other states of the Caspian Sea are increasingly becoming careless about Iran’s positions in the Caspian Sea) can be a cause of problem to peace and stability. This is also a call for refraining from militarization of the Caspian Sea. Although this is an important point, but probably the time to stop it has passed.
- The case of the Caspian Sea is a “Sui generis” (a special case). This is a key issue in the Caspian Sea affairs and it affects all other issues related to this region. The Caspian Sea is a unique case and for the same reason its legal regime and the delimitations and other maritime issues are not subject to the general rules of the international law of the sea. This feature gives the littoral states of the Caspian Sea the ability and the right to find their own formula for the problems of the Caspian Sea. In the same context, some of the littoral states (such as Kazakhstan) have proposed in the past that at the same rules of the international law of the sea to be used in the Caspian Sea. However, the other states are under no obligation to accept this suggestion. The case of the Caspian sea has not been discussed in important international law of the sea occasions ( such as the United Nations conferences on the law of the sea and especially the Third UN Conference on the Law of the Sea which resulted in1982 UN Convention) because of the special and exclusive status of this body of water.
- No legal regime can be defined in the Caspian Sea without agreement of Iran. Noting that some states of the Caspian Sea, led by the Russians, have opted for delimitation of the Caspian Sea-bed by Modified Median Lines (MML) and Iran is basically opposed to this formula (the reason is that the formula gives the smallest share to Iran, among others.)
- The legal regime should be defined on the basis of “equity” as a principle of the International law. Iran’s position regarding the legal regime of the Caspian Sea has gone through several periods. (3) In the first period Iran was supporting the common administration of the Caspian Sea. Later, when confronted with the rejection of this formula by others, Iran started to ask for the 20 percent for each. Yet, in another stage Iran asked for the division on the basis of “equity”. During the last couple of years, Iran has been talking about the "equity", but now, especially before the Baku Summit of 18 November 2010 and after that, it seems Iran means something other than what it was at least implied to mean by this criteria. The new special envoy of the Iranian president for the Caspian Sea, immediately after the conclusion of the meeting of the Caspian Ministers in Tehran (15 November 2010), and a few days before the Third Summit of the Caspian States in Baku (18 November 2010) in response to a question by the official news agency of Iran about the 20 percent share of Iran in the Caspian sea, responded: our aim goes further than this limit. This indicates to a new change in the Iranian policy because up to that date, what was generally understood from the insistence of Iran on the principle of equity in the Caspian Sea was that it may agree to something less than 20 percent, provided that the share of Iran is extended from 13 to couple numbers higher and especially to include some of the places favored by Iran (such as Alborz oil fields that Azerbaijan Republic calls it Aloo). According to the new policy, Iran’s interpretation from the equity is at least 20 percent of the entire Caspian Sea if not more. (4)
- Any decision for the legal regime of the Caspian Sea must be the result of “consensus “among the littoral states. This point is based on the fact that the littoral states should decide the fate of the Caspian Sea and it is necessary that they agree on it. The issue was first mentioned in the earlier agreements of the littoral states but later mentioned in clear words in the final decoration of the Tehran Summit in 2007.
- The non littoral or third states should not interfere in the issues of the Caspian Sea. The point is based on the old Iran-Russian treaties of 1921 and 1940. These treaties, although they are old and not accepted by some of the newly independent countries, still form the backbone of the legal regime of the Caspian Sea until such time that the littoral states find a new regime agreed by all of them for the Caspian Sea. Article 13 of the 1940 “Treaty Regarding Trade and Navigation between the USSR and Iran”, provides that : “ the contracting parties agree that in accordance with the principles set forth by the Treaty of February 1921, between the Russia and Persia, only vessels belonging to the USSR or Iran and likewise to nationals and commercial and transport organizations of either of the contracting parties , sailing under the flag of the USSR or Iran respectively may be found throughout the Caspian Sea.” (5) this point has been emphasized, especially by Iran (mainly due to the concerns that the littoral states may put parts of the Caspian Sea at the disposal of non-littoral states to stage an operation against the present regime of Iran) in all meetings of the littoral states and it was reflected in the final dictation of the Tehran Summit in 2007.
- Security of the Caspian Sea will be provided by the littoral states. The Caspian Littoral states have signed an agreement regarding this issue (Baku 2010) and they are going to conclude more protocols on it later. The main titles of this agreement are: combat against terrorism, combat against organized crimes, combat against smuggling of arms and narcotic drugs, combat against money laundering, human trafficking, illegal fishing and security of shipping and combat against piracy. ( 6)
- Economic cooperation of the littoral states should be expanded through establishment of joint companies among the littoral states. Iran was after this idea since the start of the new era in the history of the Caspian Sea, which was the collapse of the USSR and emergence of the newly independent countries around the Caspian Sea. However, the realization of this idea is far from reality due to the different political orientations of the littoral states and at the same time the policies of Iranian regime which have made the country isolated.
- The environment must be protected against all sources of pollution. Pollution in the Caspian Sea is a major issue. Apart from the unregulated and illegal fishing which has resulted in endangering the Caviar producing species, exploration, exploitation and transportation of the oil and gas in the Caspian Sea have put it to new dangers. The littoral stats have concluded a convention in 2003 (Tehran Convention) to combat the pollution but they have not made much progress. (7) Iran believes laying oil and gas pipelines on the seabed of the Caspian Sea can leave negative impacts in the Caspian Sea and it should be avoided to the extent possible. However, it seems this stance is directly related to the level of participation of Iran in such projects including the new gas pipeline from the Caspian Sea to the EU, called Nabucco (8). Iran has been excluded from many of such projects due to the bad relations with the Western countries and especially on the nuclear program of Iran. (9)
- Determination of a 25 mile exclusive zone for littoral states. This idea has been discussed in many meetings of the Caspian littoral states and different figures have been proposed. According to the 1940 Treaty of Iran and Russia, a ten mile “exclusive fishing zone” was determined in the Caspian Sea for the two sides. In the Baku Summit, the idea of a 25 mile exclusive zone was supported and the concerned states are going to make decisions on it. Iranian officials have talked about a 12 mile being like a territorial sea (10). 1982 law of the Sea convention gives the right to states to claim 12 miles or less for the territorial sea, but here there is no obligation to follow that rule. Also the same officials have refereed to another 12 mile or so as the “exclusive fishing zone”. The idea of exclusive fishing or economic zone in the Law of the Sea convention extends up to 200 miles if possible from geographical point of view. Therefore, it can said the idea of a 12 or 13 miles exclusive fishing zone, is a special feature for the Caspian Sea and in spite of similarity with the expressions used in the 1982 UN Convention on the Law of the sea, this has nothing to do with that.
Notes and sources:
- Refer to http://www.payvand.com/news/10/dec/1061.html
- Please refer to : http://www.payvand.com/news/09/sep/1102.html
- Bahman Aghai Diba, Law and Politics of the Caspian sea, Booksurg, 2006
- Ibid, Law and Politics of the Caspian sea, Booksurg, 2006
- Caspian Sea is Dying, http://www.payvand.com/news/10/nov/1032.html
- Iran and Nabucco http://www.payvand.com/news/09/nov/1240.html
- Iranian special envoy on the Caspian Sea affairs http://wap.trend.az/fa/page1/1786162
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