By Bahman Aghai Diba, PhD International Law of the Sea
Caspian region oil and natural gas infrastructure. August 2013.
(source: U.S. Energy Information Administration)
A review of the last rounds of negotiations between Iran and the other Caspian littoral states, including the deliberations made and decisions adopted in the several summit meetings of the Caspian states, reveal that Iran has failed to persuade the other Caspian states to consider a fair and equitable share for Iran (at least 20 percent) of the Caspian Sea. At the moment none of the other Caspian littoral states is ready to open the way even for a marginal increase of Iran’s perceived share in the Caspian Sea from the 13 percent (based on extension of the land borders of the littoral states to the Caspian Sea by drawing a median line). Under these conditions, it seems that Iran has neglected to make sufficient emphasis on the notion of historical rights and historical background in the Caspian Sea.
Historical rights and historical background have been two of the important notions that have been used constantly in the context of defining the share of countries in the land and sea territories. The Caspian Sea (which is in fact a lake) is not subject to the usual regulations of the law of the sea (as stipulated in important documents such as the 1982 UN Convention on the Law of the Sea), and it has a special legal status (a sui generis). This status gives permission to the littoral states to define the legal regime of the Caspian Sea as they like.
From a historical view (which can be the basis of at least demanding certain legal rights too), what can be more important than the fact that Iran and the Russia were the only two countries around this body of water for a long time?
The officials of some of the newly established countries in the Caspian region claim that the historical documents such as 1921 and 1940 treaties of Iran and Russia are “history” and as such they claim that these documents have lost their credibility. Lack of proper reaction from the Iranian side has created the atmosphere that Iran has also accepted the claims that these documents and the historical background should be sent to the history books and museums of history, instead of being used as basis for claiming rights for Iran in the Caspian Sea beyond the simple extension of the current land border points in the sea.
What is the historical background of the Caspian Sea?
The legal status of the Caspian Sea in the period before the collapse of the USSR was determined by existing treaties between Iran and the USSR. On the basis of the 1921 Treaty of Friendship between Iran and the USSR, the rights denied to Iran according to the 1828 Turkamanchi Treaty regarding the navigation in the Caspian Sea were re-established. According to the Article 11 of the 1921 Treaty, both sides should equally share the privileges of navigation in all parts of the Caspian Sea and there was no restraint placed upon their nationals’ vessels. The text of this article is very clear: ‘Taking into consideration that according to principles stated in Article 8 of this Treaty, the Feb.10, 1828 Turkamanchi Treaty, in which Article 8 denied Iran her rights of navigation in the Caspian Sea, is abrogated; therefore the high contracting parties agree that in pursuit of the conclusion of this treaty , both of them will enjoy equal rights of navigation, under their own flags, in the Caspian Sea’.(1) Also, Articles 12 and 13 of the Mar.25 1940 Treaty on trade and navigation between Iran and the USSR underscore in detail both parties’ equal and shared rights of navigation in the Caspian Sea. In this treaty it is clearly stated that both parties should treat the commercial ships of the other side tantamount to their own (Para. 1-5 of the Article 12).
Some sources in the past, intentionally or otherwise used to draw a line between the borders of Iran and the USSR, starting from a point in Astara Port and ending in Hosseingholi Port. This type of approach was totally erroneous since there was no borderline in the Caspian Sea between Iran and the USSR. The two concerned countries had in no way delimited their sea borders in any legal manner. The USSR tried to stop Iranian vessels from sailing to the north of this hypothetical line only because of issues related to power politics and without any legal justification. Also, in the letters annexed to the 1940 Treaty between Iran and the USSR, the Caspian Sea is repeatedly referred to as ‘the Soviet-Iranian Sea’.
It seems that according to the treaties existing between Iran and the USSR, the Caspian Sea belonged to Iran and the Russians and they could exploit it equally. William Butler, an American expert on the Russian maritime legal issues, in his article published in the American Journal of International Law, has recorded this point. (2) Iran had not any active program for exploration and exploitation of oil and gas resources in the Caspian Sea, while on the Russian side, especially in Azerbaijan, they have been exploiting the oil resources in large scale for the last 50 years and in fact they were taking the Iran’s share for themselves.
Here are some of the actions that the Iranian government can and should take in this regard to safeguard and fulfill the legitimate rights of the people of Iran in the Caspian, in the light of the importance of the historical background:
(1) Text of the article translated from the collection of treaties (No.2. USSR-Iran, 1992) published by the Iranian foreign ministry.
(2) Butler, William E. , The Soviet Union and the Continental Shelf, notes and comments, American Journal of International Law, 1969 , vol. 63 , p.106 . and Butler, William E. , The Soviet Union and The Law of The Sea, The John Hopkins Press, Baltimore and London, 1971 .pp.101-103 .
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