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Where Iran must draw the line

By Kaveh L Afrasiabi, PhD (Akaveh1@aol.com), Asia Times, 31 October 2002

(This article is based on the author's presentation at a symposium on the modern boundaries of Iran, University of London, October 9, 2002. It first appeared on Payvand.com, and is reprinted here with permission.)

What are, or should be, Iran's boundaries in the Caspian Sea? This is, of course, a hotly contested question pitting Iran against her Caspian neighbors. In fact, this question has been the subject of protracted negotiation since 1992, when officials of the Caspian littoral states - Russia, Azerbaijan, Kazakhstan, Iran and Turkmenistan - gathered in Tehran for the first time to tackle the outstanding issues of the so-called Caspian legal regime.

A full decade later, none of these negotiations, including by the use of summitry, as in the Turkmen capital Ashghabat in April this year, has borne fruit, and the immediate prospect for any breakthrough in the deadlock still seems remote barring any unforeseen consequences from the upcoming meeting of the Caspian working group, set up by the littoral states in 1996, which is due to take place in Azerbaijan's Baku in November.

For Iran, the Baku meeting will be especially testing for its delegates, who are under fire at home for their perceived inaction and diplomatic failures, particularly because of the recent inking of bilateral agreements between Russia and Kazakhstan and Russia and Azerbaijan. These agreements have been denounced by Tehran as invalid and contrary to the terms of 1921 and 1940 Iran-Soviet Union agreements. But domestic heat on Iran's Caspian negotiators may, unfortunately, force them to sign on to a sub-optimal deal for the sake of appeasing their critics, including majlis (parliament) deputies, some of whom are about to question Foreign Minister Kamal Kharrazi.

Certainly, to a degree, the Foreign Ministry needs to show evidence of tangible progress on the Caspian Sea, but this should not come at the expense of Iran's long-term interests. Any short-term agreement, say on the size and scope of the territorial waters of the littoral states, or on the national sectors in the Caspian Sea - and on that issue, Russia's recent proposal to extend the present 10 nautical miles to 15 miles is gaining currency - is bound to have several intended and unintended ramifications on Iran's overall Caspian policy.

This aside, there is a real need right now for a more vigorous attempt to re-conceptualize the issue of Caspian boundaries and to insert Iran's policies and positions within the framework of the international law. Otherwise the risk of competing approaches without an underlining theoretical-legal framework runs high, not to mention the political fallout of ad hoc rationalizations and hasty conclusions.

One could ask, why does Iran so adamantly insist on the singular aspect of a legal regime as opposed to two or more such regimes? After all, are there not several examples of accords on lakes, such as Lake Constance in Switzerland, where five separate agreements have been signed utilizing different principles and methods of division? This question goes to the heart of Iran's Caspian strategy, namely the insistence on a comprehensive approach. But, the trouble with this approach is that its proponents fail to see the advantages of a gradual or sequential approach. As envisioned, that approach would incrementally settle issues within an overall perspective hinging on the final resolution of the preliminary agreements on subsequent agreements - not unlike the Iran-Qatar continental shelf boundary agreement, which delegates the final resolution of the maritime question to related agreements between Iran and other Persian Gulf states, eg Bahrain.

The advantage of a sequential approach becomes evident once one takes into consideration the need to arrive at two or more legal regimes for the Caspian Sea, each delineating a separate agreement among the five states on issues ranging from fishing to exclusive economic zones, navigation, mineral agreements (for the Caspian high sea) and the environment. Thus, for example, Iran could well sign an agreement with her Caspian neighbors on the scope of the territorial waters for an exclusive fishing/economic zone, and then use the boundaries of this zone as the perimeters of a soft border.

A soft border could embrace three definitions. First, it could be an impermeable maritime boundary whereby each country has full sovereignty per issue, such as fishing. Issue sovereignty is somewhat different from territorial sovereignty, and in light of the existing arrangements, per the terms of the 1940 accord for free navigation in the sea, what is required is a wholesale change in one's approach to the very idea of sovereignty, indeed, an important prerequisite for progress in the light of the damning condemnations of Iran's diplomacy by the critics, at home and abroad, accusing its Caspian policymakers of compromising the country's territorial sovereignty.

What these critics neglect to consider is none other than the complex nature of boundary issues in the Caspian Sea and the need to devise a whole new notion of Iran's boundary complex in the Caspian. What this complex includes are three or conceivably more maritime boundaries, drawn on the basis of groups of issues, each with different coordinates and delimitations, rules of interaction, and the like. This brings us to the second definition of soft border or boundary, that is, the relevance to what inescapably looms on the horizon - shared production of disputed oil fields between Iran and Azerbaijan and Iran and Turkmenistan.

Indeed, what is the relationship between maritime boundaries and shared sovereignty over Caspian sea resources? The answer, from the prism of our analytical framework, is that in such a scenario Iran would like fixed maritime boundaries but partially merged, or soft, boundaries dealing with particular issues.

As for the third connotation of the term soft boundaries, it can be legitimately invoked with respect to the present structure of condominiums (joint sovereignty) put in place, albeit in an implicit fashion, by the 1921 and 1940 accords. To elaborate, the condominium structure, inferred from (a) the accords' provision for joint usage of the sea by Iran and the then Soviet Union for navigation purposes, and (b) exclusive fishing zone beyond which there would be condominium, requires a sense of where Iran's boundaries are or should be conceived. Using the notion of a soft border allows us to consider the option of regarding Iran's boundaries as far as Russia's and other coastal states' coastlines, logically speaking, from the prism of the present navigation regime.

On the whole, there appears to be, based on the foregoing, the need for three separate issue-oriented legal regimes in the Caspian Sea, delineating the parameters of Iran's current negotiation tactics and strategy. These are: a regime for fishing, another regime for the economic zone, and a third one for partial or limited condominium.

This means that Iran must reject Russia's recent proposal to merge the fishing and the economic zones into one, while exploring the idea of (limited) condominium. For now, at least, the condominium approach should continue to have the upper hand in the light of its legal utility vis-a-vis the recent slew of unilateral and bilateral agreements by Iran's neighbors side-stepping Iran's interests. This is a utility firmly rooted in the viability of the 1921 and 1940 agreements precluding any division of the sea without consent of all parties involved.