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No agreement on the Caspian Sea

By Bahman Aghai Diba, PhD International Law of the Sea

Caspian Sea Countries:
Azerbaijan, Kazakhstan, Iran, Russia, Turkmenistan

Recently some of the high-ranking officials in the Caspian Sea littoral states (Iran, Russia, Kazakhstan, Azerbaijan and Turkmenistan) have indicated that the draft convention on the legal regime of the Caspian Sea is finalized and it may be ready for approval by the concerned states during their next summit conference. The reality is that the draft prepared after 50 meetings of the littoral states in the level of deputy foreign ministers contains nothing about the most important in the Caspian Sea: the criteria for division of the seabed and waters of the Caspian Sea. Failure of the Caspian states to reach agreement on this issue will most probably open the way for referring the case to international judicial or arbitration forums.

The Caspian Sea states have not found a commonly agreed formula for the legal regime of the Caspian Sea. However, there is a dominant view for adopting the system of modified median line (MML) for division of the Caspian seabed (using the length of shorelines) and living the superjacent waters for common use except for a short national territory. Russia and Kazakhstan had agreed in 1998, and Kazakhstan and Azerbaijan in 2001 and Russia and Azerbaijan in 2003 to use this method. Iran and Turkmenistan were opposed to it, however in 2014 Kazakhstan and Turkmenistan agreed on the same formula. Iran, according to this formula, will get the smallest portion of the Caspian Sea, meaning around 13 percent of the Caspian Sea. For the same reason Iran has been insisting on division of the Caspian on the basis of equity (as a principle of the international law) and it believes, this means giving 20 percent to each. Also, Iran wants to divide the entire Caspian (seabed and waters). At the moment, there are no signs of any change in these positions. At the same time, no other Caspian state has even taken the positions of Iran serious.

Referring the case to international forums needs agreement of the related states. However, some of the littoral states have indicated that they may ask the United Nations Security Council to look into the issue as matter that threatens peace in the region and therefore send the case to the International Court of Justice (ICJ). Despite the fact that Iran and Russia were the only states in the Caspian shores for a very long period of time (having a kind of historical rights), if this happens (the case is referred to international judicial or arbitration forums through agreement or intervention of the UN) Iran will be is a bad situation for the following reasons:

  1. Shared view among the other coastal states for supporting the MML.
  2. Russia as the most powerful regional state and at the same as a global power is opposed to Iranian positions.  MML is basically a Russian formula and it is designed to guarantee the free movement of the Russian military and commercial fleets all over the Caspian Sea, while the other coastal states have no matching presence. Despite close relations of Iranian regime with Russia due to existing and growing hostilities to the West), the interests of Iran and Russia are not the same in the Caspian Sea. (this includes the criteria of division, the extension of division to the waters, transportation lines, and even role of Iran as a potential gas exporter in the region, creating serious competition to the Russian monopoly).
  3. Iranian regime, due to its policies in the region and the world, has deprived itself from the support of important and non-littoral states (especially the Western and Arab states). Even international Islamic formations, such the Organization of Islamic Countries, are not ready to stand by Iran in such issues. Iran will not be able to count on the support of any of its neighbors on this case.
  4. The Islamic Republic in Iran has not a positive record in the international judicial and arbitration forums. Following the case of hostage-taking in the former US Embassy in Tehran, the International Court of Justice condemned Iran for violation of international law. Iran has also disregarded many other decisions of the international forums in the time of the current regime.
  5. Although Iran's positions have certain positive grounds, and in the international scene, some countries with similar or even less legal foundations and evidences have successfully pursued their rights ( look at the case of historical rights pursed by China in the its surroundings) , implementation of Iran's current positions in the Caspian sea's legal regime requires attraction of support from the international community and also establishment of a certain level of international prestige and credibility and participation in the diplomatic maneuvers and political bargains which at the moment, Iran has not or is not able to use such powers and skills.
  6. In an international adjudication or arbitration case that one side is Iran and the other side is the entire regional states of the Caspian Sea (especially Russia) as well as the non-regional countries (especially the US and EU), there is no chance of winning for Iran.

... Payvand News - 09/17/17 ... --

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