The Coming of Conflict to the Caspian Sea Mehrdad Haghayeghi
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RUSSIA’S REGIONAL ROLE: CONFLICT OR COOPERATION The Coming of Conflict to the Caspian Sea Mehrdad Haghayeghi Military conflict in the Caspian HE presidents of the five states surrounding the TCaspian Sea, Azerbaijan, Iran, Kazakhstan, Russia, basin would have costly and Turkmenistan, held their first summit meeting in Turkmenistan on April 23–24, 2002. The talks ended economic consequences. without any progress in settling the dispute about the legal status of the sea. In fact, the meeting emphasized the growing tension and frustration about the differences among the five states on how to divide the resources of the Caspian. As Turkmenistan’s president, Saparmurad Niyazov, summed up the situation, “The Caspian Sea is smelling of Blood and each of us must realize it. It is not an easy thing to have a dispute over an oil field.”1 Nevertheless, Azerbaijan and, to some extent, Kazakhstan have continued their offshore explorations of the shelf despite repeated warnings by the neighbor- ing states—most notably Iran and Turkmenistan—to halt activities beyond their territorial waters. In the sum- mer of 2001 there was a confrontation between the Ira- nian navy and Azeri survey vessels. The littoral states have gradually built up their forces in the region, an ominous development considering that it comes at a time when the Caspian region’s oil development is entering a period of relative profitability. Most oil and gas industry observers have so far downplayed the prospects for a military conflict over the hydrocarbon resources of the Caspian. However, it is not a question of if but when such a conflict will oc- cur. Although it is unlikely that such a conflict would be protracted and large-scale, even a limited confronta- tion between two or more littoral states would be enough to slow or halt offshore exploration and cause investor MEHRDAD HAGHAYEGHI is a professor of political science at South- flight. Either of these developments would have major west Missouri State University. regional economic consequences. As will be discussed Problems of Post-Communism, vol. 50, no. 3, May/June 2003, pp. 32–41. © 2003 M.E. Sharpe, Inc. All rights reserved. 32 Problems of Post-Communism May/June 2003 ISSN 1075–8216 / 2003 $9.50 + 0.00. below, any conflict would most likely involve the states ary, limiting Iran’s jurisdiction to a small southern por- with overlapping claims to disputed fields. tion of the sea. Taken as a whole, the pre-1991 treaties between Iran and Russia clearly fall short of providing a solid legal One Sea, Five Claimants foundation for the division of Caspian Sea resources. The five states that border the Caspian Sea have been Instead, they emphasize three interrelated principles. unable to find a solution that allows them all to exploit First, and perhaps most frequently stressed, is the prin- the sea’s resources. The disputes between them remain ciple of the sea’s exclusivity. The Soviets held that the unresolved because of the inadequate legal framework, Caspian was, in essence, a closed sea, which was taken poor delimitation, overlapping claims of ownership, and to mean that only Iran and the Soviet Union were al- a preference for bilateral approaches. lowed to conduct commercial and military activities there.7 Second, the treaties concentrated on fishing rights Deficient Legal Framework. Before the collapse of the within the designated 10-mile zone, but no provision Soviet Union in 1991, the only legal framework appli- for the precise demarcation of the coastlines was ever cable to the status of the Caspian Sea was based on a drafted. Finally, the principle of military and commer- series of treaties between Iran (Persia) and Russia (the cial navigational use of the sea appeared in almost all Soviet Union) in 1813, 1828, 1921, 1935, 1940, and the treaties between the two parties.8 1956. However, none of these treaties has any mean- Aside from the applicability of the pre-1991 bilat- ingful provisions for the division of the sea’s resources.2 eral treaties in determining the present legal fate of the Most of the pertinent references to the Caspian are re- Caspian and its mineral resources, the most relevant and lated to navigation and fishing rights. Article 5 of the comprehensive body of international law—the 1982 1813 Treaty of Gulistan, for instance, barred Iran from United Nations Convention on the Laws of the Sea having a naval presence in the sea, reserving the right (UNCLOS)—fails to provide an adequate framework exclusively to Russia. Similarly, Article 8 of the 1828 for settling the dispute. Although one of the main foun- Treaty of Turkmanchai renewed the restriction but dations of the law is based on the principle of delimita- granted Iran the right of commercial navigation. tion of the sea territory between neighboring countries The October Revolution of 1917 somewhat improved located across from or next to each other, it gives pri- Russo-Iranian relations by invalidating the Caspian-re- macy to equity and proportionality in dividing any body lated provisions of the 1813 and 1828 treaties. In 1921, of water rather than a strict application of the notion of a new Treaty of Friendship granted equal rights of free equidistance. Given the Caspian’s unique layout and the navigation to both parties.3 In 1935, another treaty en- decidedly uneven distribution of its hydrocarbon re- titled “Establishment, Commerce, and Navigation” sources, devising a median line that would encompass granted the two countries fishing rights within their ter- the principles of equity and proportionality verges on ritorial waters, measuring 10 miles from the shore.4 Five the impossible. A delimitation that approximates the years later, the Treaty of Trade and Navigation outlined UNCLOS principle of equity and proportionality is a detailed set of provisions addressing fishing and com- shown in Table 1. The lop-sidedness of this distribu- mercial shipping. The treaty upheld the 1935 territo- tion, based on the length of the coastlines and a modi- rial-waters fishing provision of 10 miles from the fied equidistance line, compelled Iran and, until recently, coastline, but again did not address boundary issues or Russia to vehemently object to the principle of national seabed mining rights. delimitation. Even with the discovery of oil and the subsequent UNCLOS only covers bodies of water that have out- exploration of the Caspian Sea near the Azerbaijan coast lets to other seas or oceans. Even under its provision of in the 1940s, the two parties did not initiate a delimita- “enclosed or semi-enclosed waters,” it clearly does not tion treaty to address the question of seabed resources.5 apply to the Caspian, since no narrow outlets connect It was not until 1956 and the Treaty of Settlement of the sea to other bodies of water.9 Moreover, none of the Frontier and Financial Questions that the issue of de- newly independent republics bordering the Caspian are limiting the Caspian was marginally addressed, but this signatories to UNCLOS. Russia and Iran joined the agreement only established a land boundary on both treaty in 1997 and 1998, respectively, but from a strictly sides of the sea between the Soviet Union and Iran.6 legal point of view it does not have binding jurisdiction The treaty made the Iranian ports of Astara in the west on the current Caspian dispute. Finally, the law clearly and Gaz (Hosseingholi) in the east the national bound- lacks international legitimacy because a number of key Haghayeghi The Coming of Conflict to the Caspian Sea 33 Table 1 the Caspian based on the condominium principle. How- ever, strong lobbying by the oil industry forced the Rus- Caglett Delimitation of the Caspian Sea sian government to gradually move toward a Country Territory (sq. m.) Percentage compromise approach. The new Russian proposal called for “two zones in the Caspian: one of exclusive national Azerbaijan 21,999.0 20.7 Iran 15,470.7 14.6 jurisdiction, measuring 45 nautical miles from the shores Kazakhstan 31,706.9 29.9 of the countries bordering the Caspian, and the other a Russia 16,560.0 15.6 common-possession zone situated beyond the limits of Turkmenistan 20,397.8 19.2 Total 106134.4 100.0 the national zones.” Four littoral states—not Azerbaijan—essentially accepted the proposal, but their Source: Brice M. Caglett, “Ownership of Seabed and Subsoil Resources in the Caspian Sea Under the Rules of International Law,” Caspian acceptance was never made official. Crossroads 1, no. 3 (fall 1995), available at www.usazerbaijancouncil By February 1998, Russia had completely reversed .org/caspiancrossroads. its earlier position by calling for national delimitation of the Caspian Sea, thus leaving Iran as the sole sup- states, including the United States, did not ratify it. porter of the condominium approach, which, in fact, Washington’s objection involved a provision of the law has rarely been adopted under international law. The that prohibited deep-sea mining.10 only known case involves the Gulf of Fonseca, shared by El Salvador, Nicaragua, and Honduras, all of which Irreconcilable Differences. The deficiencies of the pre- were part of the Spanish Empire before its dissolution 1991 Russo-Iranian treaties and the UNCLOS legal in 1821. The International Court of Justice granted each framework in addressing the Caspian dispute have not state a three-mile exclusive territorial zone with the re- deterred the littoral states from dividing into two groups. mainder kept in common. Azerbaijan, Kazakhstan, and Turkmenistan have Iran’s growing isolation after 1998 forced it to seek adopted the UNCLOS stance on delimitation, whereas compromises on a number of issues. Regarding the Iran and Russia call for joint exploitation of the Caspian Caspian, Teheran now embraced the delimitation prin- and adherence to the pre-independence legal treaties ciple supported by the other littoral states and called until a new regime is put into place.