Bahman Aghai Diba

Bahman Aghai Diba, PhD International Law of the Sea

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.

It seems that under the present conditions, the best policy for the Islamic Republic of Iran is refraining from entering into any kind of treaty for the legal regime of the Caspian Sea, because the conditions are set to impose the worst situation upon Iran. Iran has no reason to hurry about the legal regime of the Caspian Sea.

What are those positions?

Although the USSR is dead and the Russian Federation is not a super power as it was once, 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:

1- 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 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.

2- 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.

3- Excluding 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. They want to exclude the non-littoral states to have no rival. The other littoral states have nothing considerable in the Caspian Sea, except than some old dated boats and the fishermen who work in the way the ancient tribes.

4- 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.)

5- 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.

6- 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.

7- 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.

8- 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:

1- Attracting the Western countries, especially the USA into the Caspian Sea. The inclination of Azerbaijan to the Western states, especially the USA, is not originating from an inherent love. This policy 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).

2- 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.

3- 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.

4- 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.

5- 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.

6- Getting the international support in the case of Nagorno Gharabagh 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 Karabagh. The Republic of Azerbaijan has rejected the suggestions of Iran for meddling in this issue because they do not believe in impartiality of Tehran.

7- 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.

8- 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). The Russian Federation is imposing its formula of MML for the division of the Caspian Sea-bed and leaving the superjacent waters for the common use. 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:

1- Restriction of the Russian forces from traveling freely all over the Caspian Sea.

2- Stopping the industrialized fishing fleet of the Russians from using the national sections of the other countries

3- 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? The successors of this regime may decide to punish or take revenge from those who support it now. 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.

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:

1- 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.

2- 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.

3- 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 the international prestige, the support of any country in the world and 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. In fact, Iran must try to avoid the efforts of the others to take the case to such forums. 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?

4- 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.

5- 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.