Abstract: On 12 August 2018, a presidential summit of the Caspian littoral countries will be held in Astana, Kazakhstan. The convention on the legal status of the Caspian Sea is highly likely to be signed by all the five littorals at the summit. However, there are significant issues still on dispute relating to the Caspian Sea. One of them is the construction of trans-Caspian pipelines carrying hydrocarbons from east to west, specifically the Trans-Caspian Pipeline (TCP) project, which is intended to transport natural gas from Turkmenistan to Europe. Considering the fact that not only Turkmenistan’s economy is at its bottom since their independence and is need of urgent revenue, but also EU tries to find ways to save itself from Russian energy dominance; TCP appears to be a perfect solution for both. However, Russia and Iran would most probably try to impose some provisions on agreements to be signed in the summit to have the right to block TCP forever. This paper suggests Azerbaijan, Kazakhstan and Turkmenistan stand firm against Russia and Iran, and act together to find ways to realise the TCP project in accordance with international law.
This article is about what can be done to realise the Trans Caspian Pipeline (TCP) Project in spite of Russia and Iran’s disproportionate counter efforts. TCP is a subsea pipeline project which is proposed to be constructed on the Caspian Sea between Turkmenistan and Azerbaijan in order to export Turkmen gas to Turkey and European Union (EU). This article is the second piece of a series dealing with essential issues on the dispute for the expected Caspian convention which is agreed to be held on 12 August 2018 in Astana, Kazakhstan. It was concluded in the first article (Stokes, 2018) that from presidents to citizens, from diplomats to lawmakers, and from journalists to scholars it is everyone’s responsibility to prevent power politics from beating the rule of law behind the closed doors and helping Turkmenistan to implement the Trans-Caspian Pipeline project. Purpose of this article is to fulfil this responsibility academically and suggest steps to be taken. The first article tried to prove that Russia and Iran have cynical plans for the upcoming convention in terms of TCP. According to the findings of the research, Russia, together with Iran, plans to restrict Turkmenistan build the TCP with the disguise of environmental concerns. So, contrary to common optimistic expectations, the long-expected legal status convention will be exploited to block not only the TCP but also possible pipeline projects in future between Azerbaijan-Turkmenistan-Kazakhstan. To achieve this aim, Russia and Iran would, at first, refrain from mentioning a clear condition that a pipeline across Caspian can be built only with the consent of all littoral states. They will do so probably to avoid from Turkmen public reaction especially, and form a delusive optimistic atmosphere for the upcoming convention. However, instead of a clear statement in the text of the main convention, they would impose provisions in the Environmental Impact Assessment (EIA) protocol to the Tehran Convention which covertly states that subsea pipelines across Caspian can only be built upon the approval of EIAs by all the affected littoral countries. So, they would retain their chances to block the pipeline by simply disapproving its EIA. If the convention is signed as the way they wanted they would forever have this right legally and would not need to use power politics in the Caspian anymore for this particular reason. Their recent naval force replacement to the Mediterranean from the Caspian Flotilla, which they often use in the Caspian as a power policy tool, might well be an indication that they see the signing of the convention is guaranteed. In the first article, the significance of TCP for Turkmenistan, the EU, transit countries (Azerbaijan, Georgia, Turkey), the US, and Western energy companies have also been tried to be stated thoroughly. Lastly, it’s also been explained that building a subsea pipeline across is the unquestionable right of Turkmenistan, no matter what the legal status of the Caspian is. So, it would seem that the TCP is a viable option for all of the parties above. Now, the question is how it could be realised.
We believe that it is not too late for it to be realised. Below is the summary of the results of this research looking for suggestions for Turkmenistan along with Azerbaijan and Kazakhstan, and also for the EU. They could be far from complete but might well be the starting points of a more comprehensive to-do list. They are mainly reached by reviewing the historical background of inter-state relations among Caspian littorals, especially regarding the Caspian legal status problem. Then, legal aspects of pipeline construction are reviewed to make sure that suggestions are in full compliance with international law. In addition, military reaction possibilities of Russia and Iran to these suggestions are evaluated.
So, in order the TCP project to be implemented:
a. Azerbaijan, Kazakhstan, and Turkmenistan must act together. At the summit, they should not accept the EIA protocol as long as it contains provisions giving Russia and Iran chances to block TCP. Instead, they should seek for a multilateral solution to the pipeline problem according to international law, and if they can’t agree on a solution with Russia and Iran, apply to the appropriate judicial organisation to solve the Caspian legal status problem. Meanwhile, they must swiftly empower their militaries to deter possible Russian aggression, sign military assistance agreements among themselves and with EU (PESCO) and NATO. At the time they feel ready, they should not wait for Russia and Iran’s approval anymore; make an agreement to build the TCP and start the construction in accordance with United Nations Convention on the Law of the Sea (UNCLOS) and Energy Charter Treaty (ECT). And lastly, they should not act pragmatically anymore; to protect their unity, they must abide by international law to solve current (i.e. delimitation of Azeri-Turkmen sea border) and future problems among themselves.
b. To enhance its own energy security by TCP, EU must give robust support to the construction of TCP in diplomatic, financial, technical, legal, and as the last resort military fields.
In the rest of the article, we are going to elaborate on these suggestions. The first section of the paper emphasises the importance of acting together against Russia and Iran. Section II suggests stopping pragmatic manner and firmly abiding by international law. Section III reveals that, by UNCLOS and ECT, TCP can be built without the approval of any other littorals. Section IV offers to Turkmenistan, Azerbaijan, and Kazakhstan to swiftly empower their militaries for deterrence purposes. Section V tells about in which ways EU could support the construction of TCP. Section VI mentions the two additional alternatives to facilitate the project. And finally, Section VII concludes that building the Trans-Caspian Pipeline is still possible if all the players act together.
- Azerbaijan, Kazakhstan and Turkmenistan Must Act Together
When Azerbaijan, Kazakhstan and Turkmenistan acted together they succeeded to change Russia’s stance, so they should do it again. Right after the Soviet Union dissolved in 1991, “the long and fruitless legal debate of the 1990s regarded the main question, which was whether the Soviet–Iranian treaties provide for the status of the Caspian Sea as a lake or a sea in the legal sense, and thus which of the international set of principles—characteristic for an international lake or a sea—should be applicable for the future status of the Caspian Sea. This issue, however, was completely disregarded in the later practice of the coastal states” (Janusz-Pawletta, 2015). One of the reasons behind this disregard could be that if the sea was divided according to either sea or lake laws, pipelines between the Turkic Caspian States could be constructed without Russia and Iran’s consent. Indeed, at the end of the 1990s, Azerbaijan, Kazakhstan and Turkmenistan had started to implement hydrocarbon projects bypassing Russia. In June 1997, Azerbaijan and Kazakhstan signed a bilateral agreement in order to facilitate the exploitation and development of the Caspian Sea resources. This was followed by another deal between Kazakhstan and Turkmenistan regarding the division of the sea along median lines. Before these agreements, Russia along with Iran was supporting condominium principle that is the national sovereignty over a small amount of water adjacent to the coast and common use of the bigger mid-part of the sea (with the seabed). But, when Turkic Caspian states agreed in between each other, Russia was forced to change its strict policy of condominium and made border agreements with Kazakhstan and Azerbaijan where the issues of sea and lake was not addressed. So, when they acted together, it paid off.
They should not make further bilateral agreements with Russia and Iran just in their expenses. Russia and Iran’s biggest trick is to break their cohesion by making bilateral agreements with them one by one. Instead, since that it is the most profitable method to carry gas reserves and that Europeans are more reliable customers than current ones (Russia, Iran, and China), they should make a tripartite agreement to build trans-Caspian pipelines (Turkmenbashi-Baku and Aktau-Baku) to carry their hydrocarbon products to Europe.
2. They must not Act Pragmatically anymore, but Abide by International Law
As Azerbaijan, Turkmenistan, and Kazakhstan experienced the benefits of acting together, they also saw the downsides of acting pragmatically in the expense for international law. Forcing Russia to cease its insistence on condominium principle was a victory gained by acting together. However, Russia effectively reduced the effects of that victory. With bilateral agreements signed between Russia-Azerbaijan and Russia-Kazakhstan, the balance has been tipped away from the dichotomy of UNCLOS international public law setting towards former Soviet Union-style bilateral inter-governmental frameworks (Sinuraya, 2001). Azerbaijan and Kazakhstan acted together, however not in accordance with international law, but pragmatically in a rush to extract their off-shore reserves. Russia took advantage of this rush using different tactics with the possible accompaniment of Iran.
Kazakhstan signed a bilateral agreement with Russia in 1998 dividing up their adjacent sectors in the North Caspian according to (Modified) Median Line principle based on the Soviet-era borders (UN, 1998).
Azerbaijan signed a similar agreement with Russia in January 2001. Putin also signed an economic agreement with Aliyev, an oil deal between LUKoil and SOCAR (Saivetz, 2001). Meanwhile, Russian Caspian Flotilla was at sea, conducting exercises. The Iranian news agency IRNA cited a source at the Iranian Foreign Ministry as stating: “Iran believes that there is no threat in the Caspian Sea to justify the war games and military presence…” (Freedman, 2003).
However, just two months later, in March 2001, when Iranian President Khatemi visited Moscow, Russian Prime Minister Yengeny Primakov called it as the most significant event in the history of relations between Tehran and Moscow. During his visit, Putin announced the resumption of arms sales to Iran, Khatemi was awarded an honorary degree in philosophy from Moscow State University, and invited to tour Russia’s contribution to International Space Station. Furthermore, Russia then was the primary military equipment exporter and nuclear capacity builder for Iran against US objections.
In July 2001, Azerbaijan signed a contract with BP for the exploration of Alov-Araz-Sharg oil field which Iran was also claiming. Iran sent its warships and fighter jets to the region, BP’s exploration vessel immediately ceased operation, and Azerbaijan stepped back. Russia only criticised Iran’s behaviour, did nothing with the Caspian Flotilla.
In addition to that, during the summit of Ashgabat on 23-24 April 2002, Turkmenistan President described the Azeri-Turkmen disagreement on an off-shore oil field dramatically by (Abilov, 2017).
The day after the summit, on 25 April 2002, Putin visited Caspian Flotilla, made a speech with a message to littorals of Caspian Sea, and declared the decision that Russian military would conduct an exercise in the Caspian Sea. There is an interesting evaluation in (Haghayeghi, 2003) article: “Putin’s visit to the Caspian Flotilla was apparently planned before the summit and several versions of his speech to naval personnel were prepared. According to Vladimir Kyroedov, the chief of Russian Navy, the summit’s negative outcome led to a decision to choose the speech with an ominous implicit message to Russia’s neighbours.”
In May 2002, Kazakhstan adopted the protocol of the agreement signed in 1998. Kazakhstan’s Caspian oil would be transferred through Russia by Caspian Pipeline Consortium, a joint company consisting of Kazakh, Russian, and Western energy companies.
After that, in August 2002, Russia held a naval exercise in Caspian with the participation of Azerbaijan and Kazakhstan. According to an unconfirmed report from RIA Novosti stated that Russia denied Iran’s request to join the exercises, citing a 1924 treaty barring all military vessels other than those belonging to the Soviet Forces (Haghayeghi, 2003).
In this context, after being threatened by both Iran and Turkmenistan, in September 2002, Azerbaijan adopted the protocol of the principle agreement signed in January 2001 with Russia.
Both Haghayeghi and Freedman argue that the main concern of Russia while conducting exercises was the ongoing dispute among Iran, Azerbaijan, and Turkmenistan as well as Iran’s unilateral decision to claim 20% of the sea.
However, I doubt that the concern behind Russia’s gunboat diplomacy was Iran. In my opinion, it was with Azerbaijan and Kazakhstan. After all those happened, as stated above, there was no decline in Russia-Iran relations, their strong partnership lasted. But, fearing from Iran, Azerbaijan and Kazakhstan put ink on agreements that would benefit Russia the most.
The bilateral agreements give sovereign rights to littoral states in their respective sections on seabed only, but they left the surface and sea body for common use. Azerbaijan and Kazakhstan probably accepted those agreements to exploit their off-shore deposits. However, according to international law, those deposits were already Azerbaijan’s and Kazakhstan’s rights. With the bilateral agreements, they gained nothing more, but they gave Russia the grounds to strategically control the Caspian, since they left the surface and sea body for common use.
With these agreements Russia secured its interests to
- freely move its Caspian Flotilla (the strongest in Caspian) over the sea (thus ensuring the right to project power),
- freely fish anywhere in the sea (with the biggest fleet in Caspian),
- (by leaving the surface and sea body in common use) gain grounds to veto any Caspian pipeline project
- which economically threatens its transit monopoly position especially for the states on the eastern side of Caspian and its supplier monopoly position for Europe,
- (and more importantly) which strategically weakens its ability to cut all the gas and oil flow to Europe coming from Central Asia.
3. They should not wait for Russia and Iran’s Approval anymore
Actually, due to their respective geographic positions, the legal definition of Caspian as a sea or as a lake brings no obstacle to lay pipelines both between Azerbaijan-Turkmenistan and Kazakhstan-Turkmenistan.
If the Caspian is defined as a sea, then United Nations Convention on the Law of the Sea (UNCLOS) and High Seas Conventions will be applied. There will be internal waters, territorial waters, contiguous zones, and exclusive economic zones (EEZ) for each country. Delimitation of the sea will be done by defined methods in UNCLOS. In this term, pipelines would not even pass through Russia’s or Iran’s waters of sovereignty, even not through their EEZs. So they will not have a say for the TCP or a pipeline between Kazakhstan-Azerbaijan.
If the Caspian is defined as a lake, delimitation will be done by either median line method or equal area method. This time each country will have absolute sovereignty in its section. There will be no innocent passage. Again no matter what delimitation method is chosen, pipelines will not pass through Russia’s or Iran’s waters of sovereignty. So they will not have a say, either.
Furthermore, unnecessary impediment of subsea pipelines is clearly against international law, namely UNCLOS and Energy Charter Treaty.
However, during the early 1990s, Russia and Iran were insisting that Caspian is a lake and must be used in common, as a condominium. According to that principle, Caspian will not be divided, instead shared by means of a common company. Taking into consideration that hydrocarbon resources are rich in every section but Iran’s, and sturgeon stocks which are the primary source of valuable caviar is abundant in every section but Russia and Kazakhstan’s; Russia and Iran were trying to maximize their benefits with condominium principle.
In 1997–1998, Russia, awakened by the realisation that it had been left behind in opportunities of oil transportation when Azerbaijan, Kazakhstan and Turkmenistan began to realise projects bypassing the federation, was compelled to reject the condominium principle which left Iran without a single ally. When Azerbaijan’s adamant refusal to accept shared ownership was added to it, Iran also stopped defending condominium principle (Zimnitskaya & von Geldern, 2011).
Then Russia started making bilateral and trilateral sharing agreements with Kazakhstan and Azerbaijan, so condominium principle had not been regarded as an issue afterwards.
If the legal status of Caspian had been condominium, then the consent from all the littorals would be needed to lay pipelines. However, it’s entirely out of scope as a sharing principle for now.
However, for the current situation, Russia and Iran still want to have the right to veto any pipeline in the sea no matter from which section it passes through. This right could only be in condominium principle which is void. So, Russia and Iran try to achieve the veto right in a covert manner which (Stokes, 2018) had dealt with.
4. They must swiftly empower their militaries
Azerbaijan, Turkmenistan, and Kazakhstan must be ready for the worst case, and to deter any threat, they must empower their militaries as soon as possible. If the rule of law had a validity in the region, I would simply offer to apply for dispute resolution mechanisms of UNCLOS (United Nations Convention on the Law of the Sea); but it’s going to be excessive naiveté expecting Russia and Iran’s current regimes to obey the rule of law for Turkic Caspian states’ rights while they even don’t respect their own citizens’. When we have a look at World Justice Project’s “2017-2018 Rule of Law Index”, we see Russia in 89th place out of 113 countries with 0.47 points out of 1. Iran is not much different; it’s 80th with 0.48 points (Rule of Law Index, 2018). So, they need to be ready for the worst case. Almost everyone in “Near Abroad” fears from what happens to Ukraine, Georgia, and Moldova would also happen to them. They have the credit for that fear.
However, to the best of my knowledge, I don’t think Russia would go further than a show of force in this case. First of all, Russia and Iran are both in hot-war on several fronts (Ukraine, Georgia, Moldova, Syria, Yemen and Iraq). Their economies are shrinking. Especially Iran has serious economic problems there occurred unrest in Iran last December due to these problems. They have little energy to conduct a comprehensive operation in Central Asia.
Furthermore, they know that if they had an intervention on a nation of Turkic states, it would cause all Turkic countries, including Turkey, come together which the latest thing Russia would want is. In the same point of view, any such intervention would adversely affect Russian policy in Syria which is in line with Turkey at the time. They could just make a show of force which should not be afraid Turkic Caspian states at all.
Nonetheless, military readiness along with military partnership agreements is key factors that would deter enemies best.
5. EU Should Provide Robust Support
The EU must use all aspects of soft and hard power to support Azerbaijan, Kazakhstan, and Turkmenistan diplomatically, financially, technically (e.g. helping for obtaining an environmental assessment report by an internationally trusted independent company), legally (e.g. by helping filing claims to relevant international courts), and, as a last resort, militarily (i.e. by triggering NATO, using PESCO, providing equipment [even shipbuilding capacity] and training to these countries. It should further try to obtain US, UK, and other non-EU Western countries’ support for the purposes above.
6. Indirect Alternatives should be evaluated
Furthermore, two more indirect alternative courses of action might also be evaluated to facilitate the construction of TCP mainly by leaving Russia alone on the opposer camp. These three might well be topics for further researches:
a. Getting Iran’s Support:
The first alternative is that Azerbaijan and Turkmenistan to make delimitation agreements with Iran as Northern Caspian states did before on the condition that Iran to support their position for the TCP. Lobbying on EU for Iran’s attachment to the Southern Gas Corridor project and on US for the nuclear sanctions could also be pondered. That option aims to get Iran’s support and leave Russia alone in the opposer camp.
b. Getting Armenia’s Support:
The second alternative is that TCP could be done as a joint pipeline project. Like TAPI, the pipeline from Turkmenistan to India through Afghanistan and Pakistan, once called as “pipeline for peace”, TCP could also carry Turkmen gas to Europe with a joint pipeline through Azerbaijan, Nagarno-Karabakh, Armenia, Nahcivan, and Turkey as a pipeline for peace, regarding with Nagarno-Karabakh conflict. This might be a remedy for the problems of the region. This alternative also serves to leave Russia alone by getting Armenia’s support, and reverse Azerbaijan’s disadvantageous situation considering the fact that Russia is using Nagarno-Karabakh issue to press on Azerbaijan to prevent her from supporting Trans-Caspian pipeline (Geopolitica, 2013). EU could also use Armenia’s interest in relations with the EU to convince it to allow this project. This course of action also serves as a soother for the concern in the West that closer collaboration with Georgia and Azerbaijan will isolate Armenia and tempt it to strengthen ties with Russia and Iran (Lanskoy, 1999). A pipeline passing through Nagarno-Karabakh and Armenia might be a remedy for the problems of the region. All the countries that the pipeline would pass through deeply need revenue. It’s a win-win deal. A pipeline going through this route also would be shorter than the current South Caucasus route and thus more profitable for both exporter and importers, too. Azerbaijan would also benefit from the pipeline by lowering its military expenditures. Many more benefits can be added to it. Finally, OSCE and France (a leading member of both EU and OSCE) might involve in negotiations of the countries.
There will be the Caspian Presidential Summit in Astana in 12 August 2018. The main event in the summit is the signing of convention about the legal regime of Caspian Sea and other related agreements. In the mass media of Caspian countries, the convention is reflected as the solution to almost three decades-long disputes on the Caspian. However, as revealed in the first article of this series (Stokes, 2018), it would not be regarding the Trans-Caspian Pipeline (TCP) project.
Russia, along with Iran is very close to save the deal, and to get the right of blocking any pipeline project, needless to say the TCP which seems to be the optimal solution for Turkmenistan’s customer diversification and EU’s supplier diversification troubles, and will bring many benefits to every country on the route from Caspian to Europe. For this project, Russia and Iran plan to impose provisions on the Environmental Impact Assessment (EIA) protocol to Tehran Convention (Framework Convention for the Protection of the Maritime Environment of the Caspian Sea) to oblige the consent of all littorals for the EIAs of any project like TCP. This issue was elaborated in detail in (Stokes, 2018). So, it’s almost sure that TCP would be blocked if the Caspian Convention along with the EIA protocol is signed.
Now, the issue is how TCP could be realised. Reviewing the legacy of Trans Caspian Pipeline problem, the place of pipeline construction in accordance with international law, and military reaction possibilities of Russia and Iran, we reached some points which could be suggested to Turkmenistan, Azerbaijan, Kazakhstan, and the EU. They are far from being complete solutions, but they could well be the starting points for a comprehensive course of action.
So, in order the TCP project to be implemented; first of all, Turkmenistan, Azerbaijan, and Kazakhstan must act together. The parliaments of these countries should never sign the EIA protocol that would block the TCP. If negotiations do not yield results, they should consult to appropriate dispute resolution mechanisms (e.g. International Tribunal for the Law of the Sea). Although it’s not likely, in case it is needed, they should be ready to deter military reactions of Russia. To do this, they must swiftly empower their armies as long as they sign military partnership agreements with the EU (PESCO) and NATO. In order to leave Russia alone in the opposer camp, some alternatives could also be thought of to get support from Iran and Armenia by giving them shares from the revenue generated with the project.
While researching for the article, I was delighted by the rigorous efforts of Muhammad Tahir from Radio Free Europe, Radio Liberty to make wrong things right in Central Asia. Although he strenuously works for a better Central Asia, which could not be done without a great deal of hope; even he desperately said in one of his podcasts, that TCP is not possible, because Turkmenistan can’t afford to get into conflict with Russia. Though his pessimistic view seems to be deterministically right, I believe that if Turkmenistan acts together with Azerbaijan, Kazakhstan, and the EU, TCP is quite possible.
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- It is sometimes referred as Trans-Caspian Gas Pipeline. ↑
- Abilov also holds the same view: “Analysts suggested that Azerbaijan accepted the Russian proposal as a result of the dispute between Iran and Azerbaijan: “At the informal August summit of CIS heads of state in Sochi, the presidents of Azerbaijan and Kazakhstan sought Russia’s support in the face of Iran’s demands. Reportedly, Putin stated that there had been a border between Soviet and Iranian territories in the Caspian Sea and that the Soviet successor states—Russia, Azerbaijan, Kazakhstan and Turkmenistan—had inherited that border with Iran.”” ↑
- Note that the least appropriate section of the sea for fishing is the Russian’s. And, Caspian Sea contains 90% of world’s sturgeon stocks which is the primary source of a valuable food, caviar. It’s worth in 2016 about $1600/kg. (ISNA, 2018) ↑
- In 2008, Russia stopped very close to Baku-Supsa oil pipeline, but continued capturing territories belonging to Georgia afterwards. Now, about 10 kilometers of the pipeline is in Russian-controlled territory giving them the capability to cut the line exporting to Europe. And in fact, Russia is just 30 miles away from Baku-Tbilisi-Ceyhan and Baku-Tbilisi-Erzurum pipelines. It will not be difficult to cut those lines too, if needed. ↑
- e.g. launching cruise missiles to targets in Syria from warships in the Caspian Sea. ↑
- EU has provided an indirect support by its recent proposal for the amendment of EU Gas Directive. ↑
- The EU has put the TCGP on its List of Projects of Common Interest, making it eligible for preferential consideration for support from EU funding agencies and European banks. ↑
- As EU officials stated this is also in EU’s agenda. ↑