The Legal Regime of the Caspian Sea Following Russian Military Aggression-Farshad Kashani

Farshad Kashani - International law expert and legal affairs analyst

2024/03/16

It has been two years since Russia began its military aggression against Ukraine in March 2022, and the Caspian Sea has been both directly and indirectly affected by this conflict.

The Caspian Sea is one of the world's most important sources of energy, second only to the oil and gas resources of the Persian Gulf. This energy comes from the gas and oil reserves of the coastal countries surrounding the Caspian Sea. The Caspian Sea is shared among five coastal countries, including Iran and Russia, which are among the largest holders of natural gas.

However, exporting this gas is currently hindered by serious problems, which have been further complicated by Russia's military attack on Ukraine. As a body of water surrounded by land, this lake is not subject to the regulations of the 1982 United Nations Convention on the Law of the Sea, which governs the legal regime of open waters, due to its sui generis or unique character.

Following the dissolution of the Union of Soviet Socialist Republics and the formation of new republics, the Caspian Sea, previously shared between Iran and the USSR, became the responsibility of three new littoral states. As a result, a new legal regime was required to meet the needs of all five states.

After numerous rounds of negotiations spanning over twenty-seven years, the Convention on the Legal Status of the Caspian Sea was finally achieved in August 2018.

The Caspian Sea treaty was signed by the Presidents of the five littoral states. If this landmark treaty comes into force, it will establish a new legal order.

The Convention is the result of 21 years of difficult negotiations aimed at creating a unique legal regime that would reflect the characteristics of the Sea and the diverse interests of its littoral states in the post-Soviet era.

If the Caspian Convention is implemented, it is likely to have a significant impact on the geopolitical landscape of the Caspian region. The new Caspian legal regime's submarine oil and gas pipelines are a crucial element. This was a point of contention throughout the negotiations.

 Azerbaijan, Kazakhstan, and Turkmenistan sought the right to lay submarine pipelines on the bed of the Caspian Sea to transport their oil and gas to European markets. However, Russia and Iran believed that the construction of such pipelines should be approved by all littoral states, ostensibly due to environmental concerns. It is important to note that this is a complex issue with differing perspectives.

However, the opposition of Russia and Iran was primarily due to their objection to the Trans-Caspian Pipeline project. This project proposes the construction of a submarine pipeline on the Caspian seabed, connecting Turkmen gas fields to the Azeri shores for the purpose of exporting Turkmen gas to the European market.

Among the five Caspian littoral states, Iran - one of the two states prior to the dissolution of the Soviet Union - has a unique geographic coastal situation that puts the country at a significant legal disadvantage when drawing its baseline and dividing the Caspian according to the equitable rule.

Iran's refusal to formally join the Convention on the Legal Regime of the Caspian Sea and prevent its enforcement may suggest a desire to benefit from Article 1 of the Convention, which would allow them to draw their baseline and formalize the convention as an internationally binding treaty. Therefore, establishing a fair baseline for Iran in the Caspian Sea is crucial not only for Iran but also for all littoral states and the success of the new convention.

Until 25th December 1991, the Caspian Sea was jointly governed by Iran and the Soviet Union, which later became the Russian Federation. Iran did not contribute to the emergence of the new political situation, namely the collapse of the USSR and the creation of three new states. However, it has suffered from the consequences and is now compelled to share the sea with the three new states.

Russia, Kazakhstan, Turkmenistan, and the Republic of Azerbaijan have a geographical advantage due to their coastline, which gives them a larger share of this water zone than Iran, one of the two historical countries bordering the sea. Drawing the maritime baseline in the Caspian Sea is a crucial step towards completing the legal regime that is an integral part of the Convention. It is also the first step in determining the territorial waters and fishery zones.

 The determination of aspects such as territorial waters, contiguous zone, exclusive economic zone, fishery zone, common maritime space or international waters is not possible before the maritime baseline is drawn, as the law of the sea is based on maritime zones of the coastal countries. No changes in content have been made. Therefore, the legal importance of the Convention for the Energy Sector remains unclear until there is an agreement among littoral states regarding baselines. The text has been edited to adhere to the desired characteristics of objectivity, comprehensibility and logical structure, conventional structure, clear and objective language, format, formal register, balanced writing, precise word choice, and grammatical correctness.

All five coastal states have ratified the Convention, except for Iran. This is the reason why the Convention is not in force and is not listed under the UN Treaties Section.

The shape of the Iranian coast in the Caspian Sea is concave, which puts Iran at a disadvantage in dividing the sea into national and common maritime zones compared to other coastal states.

According to Article 1 of the Convention on the Legal Status of the Caspian Sea, Iran has been granted special privileges to draw the baseline to partially compensate for these complications.

The Convention on the Legal Status of the Caspian Sea does not establish states' baselines, national areas, or the limits of the common maritime zone. Instead, it defers these matters to future negotiations and agreements. Until such agreements are in place, it is not possible to determine these boundaries

Iran's refusal to formally join the Caspian Sea Convention and prevent its entry into force may be a strategic move to benefit from Article I of the Convention, which would allow them to draw their baseline and then formalize the convention, making it an internationally binding treaty. Therefore, it is crucial to establish a fair baseline for Iran in the Caspian Sea, not only for the country but also for all littoral states and the exploitation of gas and oil resources through new Caspian pipelines.

 Prior to the military attack on Ukraine on March 5, 2022, the foreign minister of Russia had been urging Iran to join the Caspian Sea Convention.  This would allow Moscow to potentially support Tehran in achieving what Iran considers to be a fair baseline. However, since Russia was sanctioned due to the attack, it no longer appears to be interested in the Caspian Sea Convention becoming a UN treaty.

In July 2022, a meeting of the leaders of the Caspian littoral countries was held in Turkmenistan, four months after Russian military aggression. Surprisingly, there was no mention of the need to speed up the entry into force of the Caspian Convention. It appeared as though the meeting was held to discuss a different issue altogether, rather than the legal regime of the Caspian Sea.

Russia is not interested in other Caspian Sea countries replacing its gas in Europe. This stance could complicate the implementation of the Caspian Sea Convention.

Legal risks will remain high and oil and gas contracts will be unstable until the Convention is in force. Currently, the situation appears to be favorable from Russia's perspective.