BACKGROUND: Before 1992, the Caspian Sea was regulated by treaties that were signed by Persia and the RSFSR in 1921, and between Iran and the USSR in 1935 and 1940, that latter defined the Caspian as a "Soviet and Iranian sea." None of these treaties established any maritime boundary or referred to any division of rights to exploit resources in the continental shelf. In the early 1990s, Russia proposed that the Caspian be considered an "inland lake" under the Law of the Sea Treaty. Conforming to this idea, a Russian draft treaty from late 1994 provided for each coastal state to have a 20-mile "zone of influence" and for a condominium-like (i.e., joint-rule) governing board to be established. Only Iran consistently supported this idea. Azerbaijan and Kazakhstan consistently opposed it, while Turkmenistan waffled back and forth.

Russia changed its position in December 1996, when it called for a 45-nautical mile exclusive national zone, beyond which a joint-use zone in the center of the Caspian would be regulated by an interstate committee to license exploration. Russia also called for a joint corporation of the littoral states to exploit the resources, joint navigation rights, as well as joint management of fisheries and environmental protection. Iran implicitly supported this position. Azerbaijan rejected it. Kazakhstan continued to support Azerbaijan's insistence on national sectors, but agreed that cooperation on the environment, fishing, and navigation would be beneficial.

In 1998, the Russian and Kazakhstani presidents signed an agreement in principle on the delimitation of their respective sectors. However, negotiators were never able put this agreement into mutually acceptable treaty language. This failure has until now remained inexplicable to observers, partly because the content of the memorandum of agreement was never authoritatively reported. Since then, development in the de facto Russian and Kazakhstani sectors has taken place following a "modified median line" principle. This involves drawing a line equidistant from the closest mainland points of each of the two countries.

IMPLICATIONS: According to one knowledgeable diplomat from the region, Russia had proposed in 1998 to delimit the two countries' sectors using the thalweg, which is the median line of the deepest channel between them. The thalweg is customarily used for delimiting rivers. However, in the case of the Caspian Sea, the earth's rotation causes seawater to erode the seabed, shifting the thalweg to Russia's advantage over time. This would account for the failure of the bilateral 1998 agreement to be translated into treaty language. It would certainly account for Kazakhstan's suspicion and hostility over Russia's intentions. Under international precedent, only two methods are available for delimitation between adjacent littoral states other than the modified median line. These are the drawing of lines perpendicular to the general direction of the coast, and the bisection of an angle formed by the coastline of the two states.

In the Caspian instance, the results of these delimitation methods are nearly identical to the median-line (equidistance) method. It is significant that Russia has altered its negotiating position with Kazakhstan bilaterally, to a modified median line. The "modified median line" principle is the one that an international court would probably adopt for demarcating national sectors in the Caspian Sea. Small adjustments in this equidistance line are permitted to account for de facto boundaries, as well as for such practical reasons as to avoid administrative difficulties attendant upon splitting a single oil field between two states. Such adjustments would not significantly alter the median-line apportionment, which, in the Caspian instance, itself satisfies a standard proportionality test.

Urnov's recent statements suggest that Russia now favors adopting the modified median line as a general principle for demarcating all national sectors in the Caspian Sea. He emphasizes that this does not involve drawing international boundaries but rather "sea-bed delineation for the purpose of subsoil use." His various démarches may thus signal a qualitatively new development in the stalled negotiations over the legal regime of the Caspian Sea. In this respect it may be significant that just last week, Iran's Foreign Ministry issued a statement changing its position from the demand for an "equal" division of the sea to one for an "equitable" division.

CONCLUSIONS: Russia still insists on joint use of the waters of the Caspian. This makes sense given, for example, migration patterns of fish. Undoubtedly a factor in making recent progress possible on the Russian side, and potentially on the Kazakhstani side, are two large energy strikes made over the last several months. One of these is in the North Kashagan offshore field, in what is definitely the Russian sector, while the other is in the East Kashagan field, in what is definitely the Kazakhstani sector. Kazakhstan is able now to feel that it will not be "left out" of any of the goods.

Russia also insists upon the institution of a sound ecological regime before any pipelines are built under the sea. The several thousand seals recently killed in the Kazakhstani sector, apparently as a result of a pollution leak, would undoubtedly have agreed. Probably also casting their votes for this proposal, would be the famous sturgeon of the region whose number has plummeted, although for them illegal poaching for caviar has undoubtedly been a bigger short-term problem than ecological degradation.

AUTHOR BIO: Dr. Robert M. Cutler is Research Fellow, Institute of European and Russian Studies, Carleton University, Canada. He has specialized in interdisciplinary Eurasian affairs for twenty years. At present he focuses on ethnic conflict and energy issues in the greater Caspian/Black Sea basin, and analyzes organizational designs of security structures proposed for various regions within "OSCE Europe." http://www.robertcutler.org

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