January 2003 / No. 21

Legislative

the Caspian Sea Legal Regime

"Iran can declare 12 miles as its territorial water and by doing so secure its preliminary rights."

Determining the Caspian Sea legal regime can be considered the main preoccupation of Iran’s diplomacy during the last decade (since the collapse of the Soviet Union). Conclusion of bilateral agreements by some littoral states and the prospect of possible intervention by trans-regional powers, has exacerbated Iran’s concern.

Dr. Pirouz Mojtahedzadeh, a leading Iranian expert on geopolitics and president of the London-based Eurosevic Institute, elaborating on the Iranian government’s concern over the legal status of the Caspian Sea points out the importance of the Sea for Iran, and the long uncertainties surrounding this border region.

The border regions are always of vital importance for all governments. Meanwhile, the complicated nature of the Caspian Sea and the meddling by various world powers, have contributed to the complexities of this land-locked sea. For instance, the U.S. government attaches great importance to geopolitics of this region in international equations. But it is common knowledge that the American approach towards this region does not reflect the real importance of the Caspian but originates from Washington’s vision of global strategy and its insistence that the Caspian Sea and Persian Gulf are two major sources of world’s future energy supply and by dominating these two regions the U.S. administration could extend its hegemony throughout the world. This is an American assumption and Washington by promoting this idea, tries to exaggerate the importance of the Caspian Sea. In fact, this is an American ploy and we should not be deceived by such manipulation.

In order to have a better understanding of the present situation, we should go through the history and review the events this region has gone through in the past. Iran started demarcation of its international borders during the 19th century and presently nearly all the borderlines of the country have been determined. However, Iran’s borderline in the Caspian Sea and some areas in the Persian Gulf including Kuwait, Iraq and the U.A.E are yet to be marked due to complexities and regional considerations.

In the Caspian Sea we have never had a borderline at all. The reason for undetermined borders in its northern territorial water is that up until 1990 Iran was confronted with a bullying neighbor and it could not exercise sovereignty over the Caspian Sea.

First, the Tsarist Russia as a superpower of that time did not allow Iran to have any presence in the Caspian Sea and exploit its resources and when the Soviet Union came to power, despite the revolutionary slogans of its leaders claiming support and respect for the rights of other people and nations, it trampled upon Iran’s right and sovereignty over the Caspian Sea even more drastically than Tsarist Russia and did not give Iran any breathing space in the region.

In other words, the collapse of the Soviet Union in early 1990 did not only lead to liberation of countries such as Kazakhstan, Turkmenistan, Azerbaijan and Russia from the yoke and tyranny of the Soviet Union, but Iran was also saved from bullying and atrocities of the former superpower.

In fact, Iran shares a common feature with these four countries in the Caspian Sea, but with a major difference: as they were part of the Soviet Union, directly or otherwise exploited the resources of the Caspian Sea but Iran had no share in these resources because it was an independent state and the Soviet Union had no concern for our national interests.

Another historic factor which should be borne in mind is that domination of Tsarist Russia and later the Soviet Union over the Caspian Sea, was a gradual process. If we go back to the Safavid era, we will see that the Caspian Sea was mostly situated within the Iranian border.

Following the death of Peter the Great, the Russians started their southward advance and captured the territories of ancient or federal Iran. The Russian imperial army continued its invasion into the region up to the conclusion of the Turkmanchai and Akhal treaties signed between Iran and Russia in 1827 and 1881 respectively and then the Russian invasion into Iranian territory came to a halt.

Based on these treaties, Iranian and Russian borders on both sides of the Caspian Sea (1827 in the west and 1881 in the east) were established and since then the two borderlines have remained intact. Under such demarcation of Iran’s border with imperial Russia, which remained unchanged during the Soviet era, some 85 percent of the Caspian Sea came under the sovereignty of the northern neighbor and the remaining 15 percent was given to Iran.

Following the creation of the Soviet Union, the new government made new geographical divisions throughout the country and the captured territories were turned to various autonomous regions and republics. The four countries (Russia, Kazakhstan, Turkmenistan and Azerbaijan) used to operate under the Soviet Union as separate and autonomous republics and they became independent upon the collapse of the Soviet Union.

Many say why should Iran pay the price for disintegration of the Soviet Union. But we should know that Iran has paid no price and such arguments are futile because these four republics used to exist and following the collapse of the Soviet Union they have just become independent and no geographical change has taken place.

By underlining such historical facts I want to put an end to some recent unrealistic ideas because such notions could harm our interests and push us to abyss in disputes over the Caspian Sea. Statements such the whole sea or half of the sea belonging to Iran and why should we bear the burden of the collapse of the Soviet Union could cost us very dearly at negotiations over the Caspian Sea legal regime.                        

Another historical reality, which is noteworthy here is that Iranians due to the domineering policies of the northern neighbor have not been very active in the Caspian Sea and our presence in the world’s largest lake in the past, has been restricted to local fishing.

Although, in the Turkmenchai Treaty, which is one of the most capitulating accords in Iran’s history there is some reference to joint navigation by Iran and Russia in the Caspian Sea but Iran was never given a chance to exercise any sovereignty over these waters.

In 1922, Iran and the Soviet Union signed a friendship agreement and the new government, which was formed after the 1917 revolution in Russia decided to compensate for the atrocities carried out by the Tsarist Russia. In this friendship treaty all the subjugating aspects, except the territorial provisions of the Turkmenchai and other agreements, which were previously concluded between Iran and Tzarist Russia were declared null and void. Soviet rulers did not return Iranian territories and what they did was merely a formality. They also included the article concerning joint navigation, which was stipulated in Turkmanchai Treaty in the 1921 friendship pact. According to the said article, the two sides are entitled to joint but not equal exploitation of navigation and shipping facilities of the Caspian Sea. In the 1921 agreement nothing more is mentioned about exploitation of the Caspian Sea resources.

In 1940 another agreement was signed between Iran and the Soviet Union concerning navigation in the Caspian and the abovementioned sentence was once again reiterated in this new agreement. The reason was that the Second World War was gaining new dimension and Germany had turned its attention east and to the Soviet Union. Fearing a possible German invasion of Soviet territory, the rulers of Moscow decided to bring the whole sea under the Soviet control.

This agreement gave the Soviet Union full control of the Caspian Sea. Because in the agreement it was stated that both sides have joint right to shipping in this sea and this was indeed meaningless because Iran did not even have a boat in the sea. Therefore the Soviet Union took control of the entire sea and at that time only Soviet warships cruised at the Iranian part of the sea.

With respect to the above, contrary to the understanding of those who believed the 1940 agreement has provided Iran with enormous legal rights, the joint navigation right stipulated in the agreement was a cover for further violation of Iran’s right and Soviet domination of the Caspian Sea. There was nothing new in the agreement, which could uphold our claims to the sea.

With disintegration of the Soviet Union and discontinuation of its hegemonic policies, we are in a position to regain our rights, the rights that nature has bestowed upon us.

The first step Iran must take to reclaim its rights is to reinforce its geographical position. Despite various measures adopted by Iran’s dominating northern neighbor to prevent our presence in the Caspian Sea, existing agreements recognize Iran as a Caspian Sea littoral state. Under the present circumstances Iran must explore the legal concept of those phrases, which recognize Iran as a littoral state. Only by stressing the common interest and spirit of friendship we can have peaceful coexistence in the region.

There are people who might have wishful thinking and might want to promote unrealistic and improper insinuations about the Caspian Sea. We can also make baseless claims and say that the whole Caspian Sea belongs to Iran but the reality is something else. Iran could maximize its interest in the Caspian Sea because in the existing agreement common utilization of shipping and navigation facilities is stipulated. Iran should pursue collective exploitation and all party cooperation, which is not a wishful approach and to some extent the Iranian government has moved in this direction.

We should not talk about percentage. In the past, without knowing that joint ownership and division of the sea on the basis of some percentage are two different and contradictory approaches, we brought up the idea of sharing the sea on percentage basis. We should realize that when we talk about percentage, then the idea of joint ownership becomes irrelevant. Both we and the Russians have made mistakes because we both have spoken of joint ownership and at the same time made suggestions about dividing the sea on a percentage basis. Due to this ambiguous approach, the question of sovereignty over the Caspian Sea and its legal regime remains unsettled.

However, I disagree with those who believe that our rights in the Caspian Sea have been compromised. This approach is emotional in nature and we should deal with this issue in a scientific and rational manner. I declare that so far Iran’s rights in the Caspian Sea have not been trampled upon.

We have inalienable rights over the Caspian Sea and no one can deprive us from our rights. Still we have time and with prudence and wisdom we can achieve our objectives. Thus, our first alternative could be joint ownership of the sea. But here again, we should be careful because joint ownership alone cannot help us to achieve our objectives and we should look into this mechanism more thoroughly.

There are various forms of joint ownership but even if we accept full common ownership and all five littoral states agree on joint ownership of the sea as a whole, then we should remember that none of the countries bordering the Caspian Sea can set up its land and sea border along the shore of the sea. This is a very dangerous and unacceptable solution. Any country with its territory stretching along seashore must have exclusive territorial water and part of the sea should form its coastal water and airspace.

Even under full joint ownership regime, the offshore border of each littoral state upon agreement should be set up within the sea, say 10 km or more from the shore. Iran has not declared any exclusive territorial water for itself in the Caspian Sea, something that should have been done before. Iran must declare its territorial water and air space immediately and without taking into consideration the interests of other littoral states. Turkmenistan has officially done the same by declaring its territorial water 12 miles from the seashore and no one made any objection to this declaration because Turkmenistan was entitled to do so. The government of Turkmenistan later announced its exclusive 200-mile economic zone in the Caspian Sea, which conforms with international law.

All five littoral states around the Caspian Sea have the right to follow the initiative adopted by Turkmenistan and thus, the territorial water of each state would be divided among the countries bordering the Caspian Sea.

We should notice that such a policy is not in conflict with the principle of joint ownership. We did not pay attention to this reality and thought that declaration of territorial water would be contrary to the principle of joint ownership. This is not the case at all, because even in full joint ownership mechanism, the borderline cannot be set up at the seashore. My first recommendation is for Iran to announce its territorial water and air space over the Caspian Sea as soon as possible. Iran can declare 12 miles as its territorial water and by doing so secure its preliminary rights. I believe that soon after announcing the extent of its coastal waters, Iran should declare its 200- mile exclusive economic zone and secure its maximum possible share of the Caspian Sea. We should negotiate with the other littoral states on this basis, which would definitely boost our position and argument.