We criticize the issue of minus 28.0 (-28.0) in determining the Base Line in Caspian Sea Convention Legal Issues
Dr. Maysam Araee Daronkola, the director of the International Institute of Khazar Sea Studies (IIKSS) in an interview with The Iran-newspaper: we criticize the issue of minus 28.0 (-28.0) in determining the Base Line in Caspian Sea Convention.
International Institute of Khazar Sea Studies (IIKSS) – Nowadays, the Caspian Sea convention is one of the subjects and excuses of critics and opponents of the state and the system to flaunt on social networks by claiming that authorities have refrained from protecting the territorial integrity of the country. But this group is not the only critic of the Caspian Sea Convention, but some prominent experts in this field have also opposed this. Experts that consider that this claim, based on Iran's 50 percent share of the Caspian Sea, is popular, are concerned about the undesirable effect of what is accepted in Caspian Sea Convention on the outcome of the forthcoming negotiations, given that these negotiations about delimitation are scheduled to be held in the future. Dr. Maysam Araee Daronkola, the director of the International Institute of Khazar Sea Studies (IIKSS) is one of these critics. We talked with him about these criticisms and concerns.
Before signing the Caspian Sea Convention, some experts, including yourself, made a statement that the current situation is not a good condition for signing the Convention. Did this mean that the same convention with the same coordinates could have been signed in better conditions, or changing the conditions could lead to preparing text that would benefit us more?
We critics have two critiques in total. That is, if the provisions of the Convention were technically and legally without defects, we would not again consider the current conditions favorable for signing it. But if in our opinion, there were technical and legal defects, this would have caused us to demand more caution about finalizing and signing it.
Our position does not mean that the same convention would be ideal, for example, for 10 years. But if there were not technical and legal defects, then it would not be appropriate to sign.
What exactly causes your criticism about the final signing date of the convention?
It was certain that the outcome of the convention is away from thinking based on Iran's 50 percent share of the Caspian Sea. Therefore, it was necessary for the community to be reformed and prepared.
It has been emphasized that the issue of delimitation in the convention is not specified and is scheduled to be discussed in other negotiations. Therefore, the concern about the propagation of unrealistic demands on Iran's share of the Caspian Sea will continue. Is there a legal basis for demand such as a 50 percent share?
Unfortunately, not, but let me explain that we have never extracted oil and gas from the seabed of the Caspian Sea. We have not invested in this field, as well as we have not achieved mines and good recoverable reserves. On the other hand, if extraction took place, this extraction in the Caspian Sea would be very expensive for us and it would be difficult for us to deliver it to external customers. Perhaps for this reason we have not been so persistent in using resources in the subsoil of the Caspian Sea. Therefore, the argument that we used Caspian Sea 50% - 50% during the Soviet Union is completely wrong.
But in this regard, some point to the Contracts of 1940 and 1921...
In those contracts, it was emphasized that the two countries, Iran and the Soviet Union, can use Caspian Sea jointly for shipping. It is certain that maritime shipping is different from the usage of resources in the subsoil; they are as different as night and day.
For this reason, there was a suspicion that the word of “common” that written in contracts means a 50 percent share. If we look at the maps of that time, we see that more than 80% of the length of the coast was in the hands of the Soviet Union. Therefore, this claim based on 50 percent share, is completely mental. Unfortunately, before the revolution, the statesmen thought that they are able to contribute to national interests of Iran through silence about this mental claim. Even at some times, they encouraged media firms to produce content about this claim to have, in their own words, the upper hand in their bargaining. But we see that that policy did not actually have a favorable outcome, and now the society is amazed, upset and dissatisfied in dealing with the reality.
What was the benefit of ratification of the convention prior to the final negotiations about delimitation? Would it not be better if the signing of the convention was delayed until this issue was also clarified?
In my opinion, it is not very accurate to say that the discussion of the delimitation of the Caspian Sea has not been done at all. In the section of the definition of terms at the beginning of the convention it is said: "Base Line" – the line consisting of normal and straight Base Lines and "Normal Base Lines" – the line of the multi-year mean level of the Caspian Sea measured at minus 28.0 meters mark of the 1977 Baltic Sea Level Datum from the zero-point of the Kronstadt sea-gauge, running through the continental or insular part of the territory of a Caspian littoral State as marked on large-scale charts officially recognized by that State. What is said is considered as a basis. Determining this basis means that hereinafter, there is no need for any lawyer to express your opinion and the only geographers should determine these Base Lines. In my opinion, those who have negotiated do not yet know what the outcome of their agreements within the framework of the map is. The makers of the map of country and we criticize the issue of minus number 28.0 (-28.0).
In your opinion, what number this should be?
The ideal number for Iran was minus 26.0 and the 2 meters would make a huge difference. If we want to calculate the length and width of the Caspian Sea on our own coast, this difference equals the size of the province of Mazandaran. On the other hand, we see that the three countries of the Caspian Sea - Turkmenistan, Russia, and Kazakhstan have done delimitation according to their own accord, and their opinion was to extend the formula of the same agreement to the entire Caspian Sea. In international procedures also, when a state wants to specify a limit, it cannot act outside the accepted customs of the region. The country of Azerbaijan strongly emphasized on the Median Line. Even the gas resources of the seabed of the Caspian Sea have led Turkmenistan to have a more radical approach to the bisector line and to not believe in the Median Line.
How will be the status of the tripartite agreement between the northern countries of the Caspian Sea with the approval of the Convention on Caspian Sea status?
As a rule, this agreement should be abandoned, of course, they based their agreement on minus 27.0 (-27.0) meters from the high sea. Understanding the difference between these numbers is related to the level of water and requires the knowledge of the geology and geography which I think have not been considered in the negotiations leading to the convention. Interestingly, when we refer to the average water balance in the last 100 years, it has been only one year in which the average water balance has reached minus 28.0 (-28.0), in the remaining years the average was minus 27.0 (-27.0), and in some years it was minus 26.0 (-26.0).
Another issue that has been addressed in the convention is that countries do not need to agree on pipelines under the sea...
In this convention, the parties have agreed to this issue. But a protocol has been signed, according to which if countries oppose to pipe laying on the seabed in terms of environmental issues, would be prevented from it. Of course, it is hard to prove this objection, and the five countries themselves are the reference authority for its investigation. But ultimately the issue is that the building of a pipeline from the seabed of the Caspian Sea is strategically highly harmful to Iran. Because if Europe will depend on Turkmenistan and Azerbaijan's gas, NATO will enter the region. The same thing happened in the Persian Gulf.
But according to the convention, the presence of foreign military forces except the Caspian states has been banned.
When the issue of energy security is raised, someone does not look at your law or convention. It looks at its own military equipment. This is what happened in the Persian Gulf and Sea of Oman, and foreign forces are deployed at the closest distance from our territorial waters.
However, part of the Persian Gulf is subject to the definition of international waters and related international laws. While the Caspian Sea is a closed sea.
Just now that I am talking to you, the Americans are transferring military equipment from Baku to the port in Kazakhstan, and in response to our protest, they name it as “pass”, not as “presence”. In addition, some military ships are also moving under the coverage. It means that, the ship appears to be a logistical or commercial ship, but it transfers military equipment. It remains to be said that these days, war issues are not so much related to maritime issues, but are more related to air and missile issues, and non-parties to the convention have base in Turkmenistan or Kazakhstan and conduct military activities. Let's not forget that the spy plane that we targeted in Natanz began flying from Nakhchivan.
The fact that countries allow another country to establish a base, is based on the territorial sovereignty of each country, and we can finally reflect our protest against such events in our bilateral relations with that country.
Yes, they have this territorial right, but our point is not to create a new pretext for the presence of foreign forces in the Caspian region. This is something we must take seriously. We had a deal with Iraq around Arvandroud, but one day we opened our eyes and saw that Saddam has attacked Iran.
Anyway, my question is, what is the superiority of existence of this convention over its nonexistence?
It is like a debtor who gives a check to its creditor.
But, on the contrary, we also receive the document and, in your opinion, receive a check. This is a two-way procedure.
What do we receive? Unfortunately, we have not received any rights from them. But we give them legal obligations and we must be accountable for these obligations.
Do you think these criticisms are not like criticisms that were once raised by Delvapasan?
Not so. In the issue of BARJAM (Joint Comprehensive Plan of Action), a very broad spectrum of people agreed with it. But in this issue, the body of society, including all the spectrum and wing were against it.
But the basis for the opposition is based on a false claim that you yourself have also explained that it is false…
Yes, but regardless of that popular position, the text of the convention is faced with legal criticisms, including that text was set in Russian.
On Esfand 96, the parties ordered the text to be translated into English and translated...
Legally, translation and regulation are two completely different categories. The question is, what language is the original version in? Sometimes there is a dispute over a word, because each party wants to gain more benefit from single text. This is a formal problem in the convention.
Finally, the version that is signed is considered as a hard copy or mother's version.
Naturally this is so. But if it was made in neutral language – English, it would naturally have fewer consequences. In the International Law, we divide the seas into two categories: enclosed sea or semi-enclosed sea. Interestingly, these words have not equivalent in French or Persian. Right now it is not clear that the Caspian Sea includes which one of these interpretations. This is a formal problem. When you enter into content discussions, there may be more critical issues. Now, the critics look at the Majlis, that, in accordance with article 77 of the Constitution, is obliged to investigate, approve or reject international treaties.
But it is said that the convention has been approved by the Supreme Authorities and with the approval of the Majlis ...
We did not get such a view in our meetings. Many in Majlis also discuss the number that is determined for the Base Line.
Author - Maysam Araee Daronkola - member of the faculty of the University Payame Noor and the director of the International Institute of Khazar Sea Studies (IIKSS), PhD of public international law
Translator: Mohsen Hamidi - expert on Central Asia and Caucasus, translator of Russian language and member of the Scientific Council of the International Institute of Khazar Sea Studies (IIKSS)
Source: newspaper “Iran”