Lost at sea
October 29, 1998
Iran's legal position in the Caspian Sea may be summarized as follows: (a) the division of the Caspian into bands of territorial waters in which each state would have exclusive sovereignty over the water, seabed, subsoil and air space, and (b) equitable (no longer necessarily equal) apportionment of the outer seabed and subsoil into national sectors for the purpose of exploitation of oil and gas resources. Iran continues to insist, as before, on the freedom of navigation and fisheries in waters situated outside of a state's territorial waters. Because of the recent flexibility shown in Iran's position, the issue of Caspian's future legal regime appears much closer to resolution that one might expect.
The documents which historically have addressed the issue of Iran's territorial sovereignty in the Caspian consist of the 1723 Treaty of Alliance between Iran and Russia and the August 1962 Iran-Soviet memorandum signed by Iranian foreign minister, Abbas Aram, and Soviet ambassador at Tehran, Nikolai Pegov. In the first document, Iran ceded to Russia the length of the Caspian Sea. The treaties that later in 1725, 1732, 1813, 1828, 1881, 1893, 1921, 1954, and 1957 established the Iran-Russian and Iran-Soviet land boundaries would refer to the Caspian only in terms of where the land boundary in the west ended and the land frontier in the east began. No treaty restored to Iran any part of the Caspian Sea until the Aram-Pegov memorandum in 1962.
In the context of the Cold War and the very real possibility of installation of American nuclear missiles on Iranian territory and directed against the USSR, in the 1962 Aram-Pegov memorandum, Iran undertook not to permit the installation of American missiles on its soil and the USSR recognized the waters below the line from Absheron to Hassan Kiadeh in Southern Caspian as belonging to Iran.
The lack of diligence on the part of historians in reporting the fact of the 1723 Treaty as to the ceding of the Caspian to Russia and the secrecy of the Aram-Pegov memorandum, which has not been made public by Iran or Russia, explain why in years prior to the collapse of the Soviet Union there was no publicly discernible depiction of the Iran-Soviet boundary in the Caspian Sea. This "ambiguity" provided an ersatz legal vacuum for Iran and Russia to exploit; they stated the Caspian had been an Iranian and Soviet sea and therefore in the post-Soviet era the five states -- namely, Iran, Azerbaijan, Russian Federation, Kazakhstan and Turkmenistan, should exploit the resources of the sea equally and equitably.
To buttress their point of view, Iran and Russia paraded three historical documents: the 1921 Irano-Soviet Treaty of Friendship, the 1940 Convention on Commerce and Navigation, and an exchange of diplomatic notes dated March 25, 1940. Taken together, Iran claimed that they evidenced an Iran-Soviet condominium or co-ownership over the Caspian. That view however was not supported by the legally significant facts in evidence.
The 1921 Treaty had provided a framework in which Iran and Soviet Russia would regulate their relations in the post-tsarist era. It did not speak to either party's territorial sovereignty in the Caspian. If anything, Lenin's November 1920 draft decision had stressed the Soviet possession of the whole Caspian Sea, even though the first Soviet envoy to Iran had described the Caspian in June 1918 as one of Iran's most ancient possessions. True to the tsarist tradition of regarding the Caspian as a "Russian Lake," in the 1921 Treaty, Soviet Russia only implied Iran's right to have a navy in the Caspian, while reserving onto itself the primary right to the security of the Caspian.
The 1940 Convention provided for a host of co-equal Iran-Soviet activities in the Caspian Sea, including the freedom to navigate and to cabotage. Each party also reserved a 10 mile-wide area off its coast for exclusive fisheries. However, the Convention made no reference to either party's territorial sovereignty in the Caspian. The Convention however did inform an exchange of diplomatic notes, dated March 25, 1940, in which each party referred to the Caspian Sea as an "Iranian and Soviet sea." The British Foreign Office's gratuitous translation of the note referred to the Caspian as a sea which the parties "hold to belong to Iran and to the Soviet." The text of the note however makes it clear the parties did not intend to create a condominium or to express recognition of a prescriptive form of co-ownership. The note simply referred to the Iran-Soviet character of the sea in the context of regulating third-nationality activities in the Caspian.
The notion of a condominium served the Moscow- and Tehran-centric views of the Caspian regime. In November 1996, Iran, Russia and Turkmenistan signed a declaration stating that the Caspian belonged to all riparian states and its oil resources be exploited equally and equitably with the consent of all states. The political implication was that no one state could exploit the resources of the sea without the consent of the others; this meant Iran, as well as any other state, would have a right to veto any future exploitation of the sea.
The Irano-Russian position proved unrealistic. Azerbaijan had laid claim in its constitution to an unspecified section of the Caspian as its sovereign territory. International oil companies had flocked to Baku to contract for Caspian's offshore promise. Kazakhstan, too, needed little permission to exploit its offshore areas. Finding oil in the areas adjacent to its coast in North Caspian, Russia too soon began to lobby alongside Azerbaijan and Kazakhstan for division of the Caspian seabed and subsoil into national sectors.
In April 1998, Russia and Azerbaijan agreed to divide the seabed adjacent to their coasts into national sectors. Iran exclaimed surprise at the development. In July 1998, Russia and Kazakhstan also agreed to divide their adjacent seabed into national sectors. This time, Iran and Turkmenistan exclaimed even greater surprise. Neither of these agreements is public and in fact the provision of the Russo-Kazakh agreement which provides the criterion for demarcation of the offshore boundary is itself subject of a separate secret protocol.
The present Iranian position described at the top of the essay is in large part the byproduct of Russia's abandonment of its earlier position and Iran's increasing isolation equally in the face of the likely resolution of Azeri- Turkmen disputes in mid-South Caspian.
Iran's position with regard to its territorial sovereignty in the Caspian requires additional developments, independent of the status of international negotiations presently in progress between the riparian states. First, Iran must publish and register with the United Nations the Aram-Pegov memorandum in order to provide the international legitimacy of its rights in the area delimited by the Aram-Pegov line, which in some areas is 80 miles wide.
Second, the area inside the Aram-Pegov line should be legislated by the Iranian parliament as internal Iranian waters subject to its exclusive sovereignty. This would be no less valid than Azerbaijan's unilateral carving out of a sector for itself. Third, Iran must declare the Aram-Pegov line as the starting point or baseline from which Iran's further territorial interests in the Caspian will be measured either unilaterally or by agreement with other Caspian states. Finally, from Absheron and Hassan Kiadeh two straight lines should be drawn seaward to intersect in South Caspian's deepest point, forming a pie-shaped area which Iran should declare as its exclusive economic zone.
It makes no difference to the Caspian's present or future legal regime if this body is viewed as a sea, lake, or a bath tub. Those who border it will have to negotiate its legal regime like any other regime establishing international maritime, lake and fluvial boundaries. No one characterization is capable of resulting automatically in a preordained delimitation. That is why the Caspian's future legal regime will obtain successfully only through negotiations mindful of the juridical equality of the riparian states, equitable apportionment and reasonable utilization of commonly-shared resources, respect for the basin's unique geographical and hydrographical features, and due regard for preexisting special and historical circumstances.
About the author
Guive Mirfendereski is a corporate and international lawyer in private practice in Newton, Massachusetts.
Copyright © 1997 Abadan Publishing Co. All Rights Reserved. May not be duplicated or distributed in any form
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