The unsettled legal status of the Caspian Sea has put brakes on the construction of undersea pipelines. Last month the third summit of all five littoral countries at the head-of-state level took place in Baku. Not only did Turkmenistan for the first time declare that undersea pipelines could be built without the approval of all littoral states, opening the way for such a pipeline to Azerbaijan. Also, Iran expanded its claim beyond the 20 percent of the Caspian Sea upon which it has heretofore insisted, yet without saying how far beyond or upon what justification. The others in attendance took the new claim as an attempt to sabotage the possibility of any agreement whatsoever.
BACKGROUND: Through the end of 1991, the Caspian Sea’s legal regime was governed mainly by two pre-World War II agreements: a 1921 treaty between the Russian Soviet Federated Socialist Republic (RSFSR), since the USSR was established only in 1922, and Persia, since Iran did not then exist either; and a 1940 treaty signed between the USSR and Iran. None of these pre-World War II treaties established any maritime boundaries. Only a 10-nautical-mile (all miles in this article are nautical miles) coastal-waters zone for fishing was defined; yet it was not even specified as a “fisheries zone.” None of the treaties defined a territorial sea and, still more notably, none referred to rights over offshore resources under the seabed.
The several Soviet republics established an administrative division of the Caspian for certain domestic purposes, but since these were not maritime boundaries per se, the post-Soviet international-law status of that division is questionable. The participant-states of the Commonwealth of Independent States (CIS) agreed in a 20 March 1992 document that they would “guarantee the fulfillment of international obligations arising from treaties and agreements of the former USSR”. However, it was still necessary to negotiate, sign, and ratify the Lisbon Protocol (23 May 1992) to the START I Treaty in order actually to bind Belarus, Kazakhstan, and Ukraine to its terms. No such binding document exists in respect of the post-Soviet Caspian Sea legal regime. It is possible that Russia is theoretically bound by the pre-existing treaties; yet they are clearly inadequate to the present day, for they do not take into account the existence of five littoral states.
Together with an earlier 1935 treaty, the 1940 treaty defined the Caspian Sea as a “Soviet and Iranian sea,” although that is not identical with the “joint use” legal regime suggested by Russia (and supported by Iran) in the early 1990s. For the purpose of instituting a joint-use regime, Russia proposed in a late 1994 draft treaty to establish a 20-mile “zone of influence” for each coastal state along with a general governing board for the whole sea comprising all littoral states. In December 1996, Russia changed its position and called instead for 45-mile exclusive national zones with a joint-use zone in the center of the sea. Iran generally supported the Russian proposals.
IMPLICATIONS: Russia and Kazakhstan signed agreements in July 1998 and May 2002 that delimited their sectors of the Caspian Sea with specific reference to sovereign rights to subsoil resources. The technique used for delimitation was a standard international-legal principle called the “modified median line.” The arrangement has worked so well that Russia and Kazakhstan are even cooperating in the development of three offshore fields that straddled their median line before it was modified. In November 2001 and February 2003, Azerbaijan and Kazakhstan signed agreements invoking the same principle for delimiting the contiguous segments of their respective sectors; then in May 2003, all three countries signed yet another agreement based upon the same principle for delimiting their adjacent sectors, allocating 19 percent each to Russia and Azerbaijan and 29 percent to Kazakhstan.
Following Russia’s 1996 proposal, and after Azerbaijan’s attempt later in the decade to survey the Alov hydrocarbon deposit in its offshore sector that Iran halted through the presence of military force and the threat of its use, Iran changed its position so as to explicitly claim 20 percent of the seabed (and resources under it), based upon a demand for an “equal” (sometimes translated “equitable”) division. According to standard norms of international law, Iran would be entitled to 13 percent of the seabed and subsoil resources, following the trace of the Astara-Hosseingholi line, named for the populated settlements at the northwestern and northeastern extremities of Iran’s Caspian Sea coastline. Days before the Baku summit last month, the new Iranian negotiator stated publicly that Iran’s “aim goes further than this [20%] limit” but without saying how much further. This was the new Iranian position that President Mahmoud Ahmadinejad defended in Baku.
The antagonism of this new position did nothing to ameliorate Teheran’s relations with Moscow, at the first high-level meeting between the two governments’ representatives since Russia declined to transfer the S-300 air defense missiles to Iran after the latter refused to cooperate with authorized international organizations in the verification of its nuclear program. The bilateral talks received only the most summary coverage in the Russian press, where an assistant to the Russian president described them as “completely open.”
As for Turkmenistan, its new position only confirms the evolution of bilateral Azerbaijani-Turkmenistani relations since 2007. That it bodes well for the Nabucco project is suggested by the announcement by the head of BP-Azerbaijan, less than two weeks after the summit, that it will build a new pipeline through Azerbaijan and Georgia into Turkey capable of handling up to 16 billion cubic meters per year (16 bcm/y), the projected full-stage output of the Shah Deniz Two development in Azerbaijan’s offshore, in addition to the 8 bcm/y pipeline already existing. This is large enough to accommodate a certain volume from Turkmenistan, if Azerbaijan continues to diversify its Shah Deniz export destinations.
Iran’s relations with Turkmenistan are also strained, despite the latter’s agreement for increased sales of gas to the former for domestic consumption in the northeast of the country. The Turkmenistani press is one of the last in the former Soviet area that it is possible to read using unreconstructed Sovietological techniques. It is therefore no accident that the official Turkmenistani government photograph of Berdimuhammedov’s meeting with Ahmadinejad shows the latter to significant disadvantage, cringing almost plaintively while the former locks his eyes with a self-assured stare. Moreover, this contrasts strikingly with the smiling and animated expressions worn by Berdimuhammedov and his host, Azerbaijan’s President Ilham Aliyev, in the official Turkmenistani photograph of his being received by the latter in Baku. In Turkmenistan today, the choice of such photographs remains a significant indicator of the nature of relations with foreign states.
CONCLUSIONS: Until this year, two summits of the five littoral countries of the Caspian Sea had taken place at the head-of-state level, one in Ashgabat in 2001 and one in Teheran in 2007. In Baku, a general framework was endorsed for elaborating a (non-energy) security cooperation agreement covering such issues as human trafficking, organized crime, drug trafficking, and terrorism. However, the summit’s real significance lay in the evolution of Turkmenistan’s and Iran’s positions on the stakes in the definition of the Caspian Sea’s international legal status and in the results of the various bilateral meetings in its margins, particularly between the leaders of Azerbaijan and Turkmenistan, and also Russia and Iran.
Whether the Caspian Sea is considered an “international sea,” in which case the 1958 and 1982 Law of the Sea Conventions would apply, each state could claim full jurisdiction within 12 miles of the shoreline and an Exclusive Economic Zone (EEZ) over an additional 200 miles; or whether it is considered an “inland lake,” in which case not only the subsoil resources but also the waters would have to be strictly divided among the littoral states, excluding even the right of innocent passage for vessels unless explicitly specified. In neither case does the specific type of regime (joint-use or otherwise) automatically follow.
The Caspian Sea basin is evolving a unique sui generis regime tailored to its specific situation. The established bilateral and multilateral agreements among Russia, Kazakhstan, and Azerbaijan, as well as the de facto understanding between Kazakhstan and Turkmenistan, are the facts on the ground that subsequent diplomatic developments will rationalize in terms of any future international legal regime.
AUTHOR’S BIO: Dr. Robert M Cutler (http://www.robertcutler.org [1]), educated at the Massachusetts Institute of Technology and the University of Michigan, has researched and taught at universities in the United States, Canada, France, Switzerland, and Russia. Now senior research fellow in the Institute of European, Russian and Eurasian Studies, Carleton University, Canada, he also consults privately in a variety of fields.