The Iran-Iraq war

The Iran-Iraq war Legal implications

S.H. Amin

At the time of writing (March 1982) an immediate solution to the 18month-old Gulf war seems out of the question, as does a conclusive Irq’s ma*objectiveintheGulfwar settlement to the centuries-old Iran-Iraq boundary dispute. * Any shifts whichbegmlnwpkmberlll8o in the territory gained or lost during the war will be painstakingly slow. In WaSZIfBaf&MWltOfttWIrWl-l~ spite of Iran’s resistance, Iraq continues to occupy Iranian territory, in . lmmdmeqandinpartiwtara order to pressurize Iran not only to submit to Arab sovereignty over the reassedon of lraq’s sowe@Hy Shatt-al-Arab and the three Iranian-occupied islands in the Gulf, but also overtheentirebodyoftheShatt-dto refrain from ‘exporting’ its revolution across the Iran-Iraq frontier. Arab watenwy. At the time of Apart from the political threat from post-Shah Iran, the major cause of writklg(MarchlQ82)theGutfwar conflict between Iran and Iraq is the dispute over the 300-mile frontier in haskstedforl8tmnthsandthe Kurdistan, Khuzistan and the Shatt-al-Arab. This frontier has been Iraqisstill ~~~~~ dispute for more than four centuries. The of Kurdistan subject to international 0ftheIranianprcMnce and the II+alIh pwt of boundary is complicated by the conflict over the Shatt-al-Arab waterway, -(CdEXlMhllmdl which is both a natural borderline for Khuzistan province and a strategiby Ads) in Khlsistan (called cally vital means of access for the cities on both sides of the frontier.Z The . -byArabs),=~=part Shatt-al-Arab is the most important single dispute between Iran and Iraq oftheeastbankoftheShatt-aland it affects, both politically and legally, all issues of concern between Arab.Apartfrumttlesegsinqthe the two states. Iraqisseemtohavefdedtoachiive Apart from this crucial issue, there is the Iraqi claim of sovereignty to eithertheirmilitaryortheirpolitid parts of the Iranian coastline of the Persian Gulf (called Arabian Gulf objectives. This article analyses by Arabs). Iraq, referring to the Iranian province of Khuzistan as theseobje&ives~plscesthemin ‘Arabistan’, has periodically claimed jurisdiction over this province, thehisto&dcontextofIran-lraq including a good deal of the coastline north of the Gulf. Iraqi maps of the ~~~~~ region usually show Khuzistan separately from either Iranian or Iraqi legdcontextofthslhiiUnited NationsconferenceontheLawof territories. Other issues of concern are the delimitation of offshore the Sea. boundaries in the Gulf between the two states; ie limits of territorial seas, the exclusive fishing zone and the continental shelf.

Thehn4raqlYolmmesonboth land and water are msettkd.

Keywords: Law of ihe sea; Iran; Iraq

Dr S.H. Arnin is Senior Lecturer in Law at the Glasgow College of Technology, The Shatt-al-Arab Cowcaddens Road, Glasgow G4 OBA, The word “shatt’ in Arabic means shore, coast or bank. ‘Shatt-al-Arab’ UK (Tel: 041332 7090). means literally ‘Shores of the Arabs’ and implies the firm dry land higher *For a full account of the Gulf war and its implications see C. Wright, ‘Implications of the Iraq-Iran War’, Foreign Affairs, Vol58, No 2, 1990181, pp 272-303; MR. BrettCrowther, ‘Iran and Iraq at war: The effect continued on page 194

up the beach. The Shatt-al-Arab (called Arvand Rud by Iran) is the name given to the confluence of the Tigris and Euphrates rivers before they disgorge into the Gulf (see Figure 1). It is made up of a delta in the Gulf stretching between Al-Qumah and the Gulf. The total length of the Shatt-al-Arab is 130 miles (209 kilometres). Its average width is about 400

The Iran-Iraq war

I

\

RAG’

‘._

1.

KUWAIT

Figure 1. The Shatt-al

Arab

basin

(from Arab sources).

continued from page 193 on development’, The Round Tab/e, No 281, January 1981, pp 49-69; S.H. Amin The international and Legal Problems of the Gulf, MENAS, London, 1981, pp 12-16, 3940, 5144, 65-93; E. Ghareeb, ‘Iraq: in H. Gulf power’, emergent Amirsadadeghi, The Securityof the Persian Gulf, Groom Helm, London, 1981. 2lt must also be noted that the Iran-Iraq dispute is not confined to the traditional boundary dispute but fits into a very large and complex pattern of major power rivalry in the region.

194

j

-

metres but at some points in the estuary the river is more than one kilometre wide. The average depth of the Shatt-al-Arab between Fao and Basrah is about seven metres. It runs from the Karmet Ali confluence to the mouth of the estuary at the city of Fao (south of the port of Basrah) on the Gulf. The major part of the discharge of the Euphrates and Tigris is absorbed in enormous lakes and swamps through the tidal influence of the Gulf. Only a part discharges through the Shatt-al-Arab to the Gulf, while much is evaporated from the lakes and swamps. Apart from the Tigris and Euphrates, other rivers (eg Swaib and Karun) converge into the Shatt. The Shatt-al-Arab is a wide navigable river upon which are the important ports of Basrah (Iraq) and Khorramshahr (Iran). The navigable channel in the Shatt-al-Arab used to be only about 9 feet deep, but in recent years continuous dredging of the Shatt-al-Arab by Iraq has provided a navigable channel of 22% feet at low water. The most navigable part of the Shatt-al-Arab is its southern section, while its northern, shallower, section is used mainly for internal navigation. The utilization of the Shatt-al-Arab has been disputed between Iran and the other powers concerned (first the Ottomans, then the British Empire and later Iraq) for almost five centuries. In 1508 Shah Ismael Safavid of Iran conquered Iraq from the Turks, although Baghdad was freed in 15 14. The first border treaty between the Ottoman Empire and Iran was concluded in 1520, and this treaty recognized Iran’s territorial rights in areas which are now parts of Turkey and Iraq. Indeed, Baghdad remained under Iranian control until 1534. Following many wars between the Safavid Iran and the Ottoman state, other peace and border treaties were signed, the most significant of which was the Treaty of Zihab in MARINE POLICY July 1982

The Iran-Iraq war

1639, by which the Ottomans recovered what is now the Republic of Iraq from Iran and annexed it to the Ottoman Empire. This position was later confirmed in another treaty between the two states in 1746.3 The Second Treaty of Erzerum in 1847 allocated the whole of Shatt-alArab to the Ottoman Empire.4 This treaty was negotiated through the mediation of the British and Russian Empires. It provided that the borderline was on the eastern bank of the Shatt-al-Arab up to the sea, but acknowledged Iran’s right of free navigation in the Shatt-al-Arab’s waters from its mouth in the Gulf up to the point where the two countries’ land borders met. This was confirmed by several subsequent diplomatic including the Teheran Protocol of 1911.5 The instruments, Constantinople Delimitation Protocol of 19136 between Iran and the Ottoman Empire adjusted the borderline of the Shatt-al-Arab and placed anchorage at the port of Mohammarah (now known as Khorramshahr) in Iranian territory. Thus the borderline in this area passed in the middle of the Shatt-al-Arab in front of the wharf and port of Khorramshahr (for some four miles) and then went back to run along the eastern bank of the Shatt-al-Arab until the sea. British-Ottoman-Iranian 3These treaties are well-documented in Persian literature, but for a recent summary of the events in the English language, see A.M. Farid, ed, Oil and Secutiry in me Arabian Gulf, Croom Helm, London, 1981, pp 143-145. 4For the text of the treaty see Leaque of Nations Official Journal, i935, pp 237-46, 234.201-206. SFor the text of the Teheran protocol, see ibid, p 234. 6For the text of the Constantinople protocol, seeibid, pp 261-296. ‘J.C. Hurewitz. Diolomacv in the Near and Middle East, bol’ 1 revised edition (Yale University Press, New Haven, CT, 1975) and Vol 11 old edition (Macmillan, London, 1956). *Sir H. Mance, lntemational Rivers and Canal Transpofl, Oxford Unversity Press, Oxford, UK, 1944, pp 78-79. 9For early accounts of the dispute see M. Khaddurf, Independent Iraq: A Study in Iraqi Politics Since 1932, Oxford University Press, Oxford, UK, 1951, pp 246-246. For a comprehensive and comparatively recent account of the dispute see K. al-lzzi, The Shatt-al-Arab River Dispute in Terms of Law, Ministry of Information, Baghdad, 1972, pp i-150. %.H.-Amin, op tit, Ref 1, p 71. “For a full studv of the eadv oolitical development of Iraq see P.W. l&and, Iraq: A Study in Political Development, J. Cape, London, 1937. ‘*For a full account of effects of independence on such treaties see the International Law Association, The Effectof IndeDendence on Treaties. Stevens. London, 1965, pp 352,36X367. 13D.P. O’Connell. ‘Indeoendence and succession to treaties’, Briiish Yearbook of international Law, Vol38, Oxford University Press, Oxford, UK, 1962, pp 84,153.

MARINE POLICY July 1982

controversy

From the early 19th century, the British Empire’s commercial and strategic interests involved it deeply in Iraq and the Gulf. The British and Ottoman Empires formally defined their respective spheres of influence in the Gulf region in July 1913.’ As far as the Shatt-al-Arab was concerned, the right of the British Empire to buoy, light and police this waterway was recognized by the Ottoman Empire within agreements signed in 1913.8 The Frontier Commission of 1913-14, composed of representatives of the British, Ottoman and Russian Empires and Iran, again confirmed that the border in the Shatt-al-Arab should run to the eastern low water.9 British interests then came to dominate events in the region. During the first world war, the British occupied the Iraqi ports of Fao and Basrah, and maintained their supply lines for the Mesopotamian campaign through the Shatt-al-Arab. Following the first world war, Iraq was separated from the Ottoman Empire and was designated a British Mandated Territory in April 1920. Again, during the Anglo-Iranian oil dispute in 1951, the British warship Mauritius entered the Shatt-al-Arab, having sailed through Iran’s territorial and internal waters. lo Iraq’s succession

to treaties

After the establishment of the British-dominated Kingdom of Iraq,” it was assumed that Iraq, as the successor to the Ottoman Empire, was entitled to exercise sovereign rights over the whole of the Shatt-al-Arab. It is generally accepted that boundary treaties, being prime examples of ‘dispositive treaties’, survive changes of sovereignty. ‘ZThis applies to the treaties and other diplomatic instruments previously in force between Iran and the British or Ottoman Empires as regards the Shatt-al-Arab. D.P. O’Connel, writing in 1962, referred to the Shatt-al-Arab as a classical case of the succession to river treaties’. It was taken for granted, he noted, that Iraq had succeeded to the Ottoman Empire, so the Kingdom of Iraq should duly inherit the latter’s sovereign rights over the Shatt-al-Arab. *3 However, Iran objected to this practice and insisted on a new demarcation of her border with Iraq in the Shatt-al-Arab. For a number of years the UK, Iran and Iraq conducted negotiations with the purpose 195

The Iran-Iraq

war

IdFor the text, see op tit, Ref 4, pp 196 197. ‘5A.J. Toynbee, ‘The Irani-Iraqi frontier dispute’, Survey of International Affairs, Oxford University Press, Oxford, UK, 1937, p 797. ‘6League of Nations Official Journal, 1953, pp11~117,118-123. 17Such as tribal migration across the border and the status of Iranian nationals in Iraq. IsLeague of Nations Treaty Series (1938); also see international Legal Material, Vol8, 1969, p 478.

of concluding a convention establishing a tripartite conservancy board. Since the nature of the negotiations and the progress made was not satisfactory, Iraq raised the question of her frontier with Iran before the Council of the League of Nations, 29 November 1934.14 The appeal took the form of a request under Article ll(2) of the Covenant of the League of Nations. Apart from the Shatt-al-Arab, the territorial dispute included the alleged erection of Iranian police posts on Iraqi territory; the ownership of a parcel of land which was contested between Iran and Iraq; and the disposal of the water of the Gunjan Cham river. While Iraq claimed de @re control over the whole body of the Shatt-al-Arab, Iran requested that the border should run down the centre of the Shatt-alArab. The government of Iraq argued for its jurisdiction over the whole body of the Shatt-al-Arab on the grounds of treaty rights, as well as equity. The Iraqi plea for equity was not unlike Belgium’s plea with regard to the control of the estuary of the Scheldt. In both cases, the scope of equity was limited by the existence of diplomatic instruments which, if they were valid, would override the claims of equity. l5 Regarding treaty rights, Iraq is the successor of the Ottoman Empire. Therefore, the latter’s rights over the Shatt-al-Arab, as confirmed in the Treaty of Erzerum (1847), the Teheran Protocol (1911) and the Constantinople Protocol (1913), should be assigned to Iraq. Iran regarded these diplomatic instruments as ‘non-existent’, claiming that they were not based on joint consent. l6 Regarding equity, it is well established that concepts such as justice, equity, and similar moral values are universally recognized in the world’s major legal systems. Equity, therefore, should be considered as part of ‘the general principles recognised by civilised nations’ in the terms of Article 38 of the Statute of the International Court of Justice. Yet international judicial practice shows a marked reluctance to apply such general principles of law. Iraq, however, justified her claim to the Shattal-Arab with particular reference to equity. Iraq argued that the Shatt-alArab constitutes Iraq’s only access to the sea, while Iran has a coastline of about 2000 kilometres. The Iraqi representative stated, before the League Council, that Iraq’s only port was Basrah, 100 kilometres from the mouth, whereas Iran possessed a deep-water harbour in the Khur Musa/Bandar Shapur (now Bandar Khomeini), only 50 kilometres east of the Shatt-al-Arab (between Fao and Umm Qasr). Therefore, he argued, Iraq’s claim for jurisdiction was justified on the basis of equity. Iran’s representative countered that there were other states similar to Iraq and that such reasoning on the part of Iraq could not justify her claim of sovereignty over the whole course of the river to the sea. Since the hearing before the Council of the League of Nations ended with no result, the case was removed, at the request of Iraq, from the agenda of the Council. The League recommended that the conflict be solved by direct negotiations. The 1937 treaty When relations between Iran and Iraq had improved, following the solution of other problems, l7 they signed a boundary treaty on 4 July 1937. la This provided the frontier between the two states, as well as the regime of the Shatt-al-Arab. The Shatt-al-Arab treaty was an essential preliminary to the signature in July 1937 of the four-power ‘Oriental Entente’ (the ‘Sa’dabad Pact’) between Iran, Iraq, Turkey and MARINE POLICY July 1982

The Iran-Iraq war

191tis desirable at this stage to outline the major rules for the demarcation of river boundaries which will be frequently referred to in this article. The rules of demarcation of river boundaries are the median line and the thalweg. The medium line is the line running through the middle of the river. This rule is applicable to non-navigable rivers as well as to highways, fisheries and civil boundaries defined along rivers. The thalweg has been defined in 1908 within a treaty between Great Britain and the USA as ‘the main channel of the river’ (see UK Treaty Series). In other words, the thalweg is the track taken by boats in their course down the stream. Thalweg, therefore, is the most suitable channel for downstream navigation at the normal lowest water levels. It follows that as a boundary area the thalweg cannot be fixed once and for all and remains subject to change owing to natural causes (see standard works on public international law, eg P. Annios, The Continental Shelf and Public International Law, H.P. De Swart, The Hague, 1953, pp 94-95). 20Atticles 5 and 4(a) of the treaty and Article 2 of the protocol.

MARINE POLICY July 1982

Afghanistan (which was, inter aliu, the first grouping of non-white states which bound the signatories to aid one another in the League of Nations). As regards the frontier, Article 1 of the Shatt-al-Arab treaty recognized both the 1913 delimitation protocol between Iran and the Ottoman Empire, and the minutes of the 1914 meetings of the Commission on Frontier Delimitation. Article 2 dealt more specifically with the geographical points of the boundary line. The frontier followed basically the lines set out in 1913-14, with the proviso that, at the extreme point of the island of Chateit, the frontier should run perpendicularly from the low-water mark to the ‘thalweg’ of the Shatt-al-Arab, a term which was not defined in the 1937 Treaty. 19The frontier should follow the thalweg as far as a point opposite Jetty No 1 at Abadan. From this point, it should return to the low-water mark and follow the frontier line indicated in the 1914 minutes. Both Article 1 and 2, taken together, modified at certain points the 1913 Protocol in favour of the application of the thalweg principle. Accordingly, the Iraqi border was set at the low-water mark on the Iranian side of the river except for a distance of about seven kilometres opposite Abadan and Khorramshahr, where it was in midchannel. In other words, the 1937 treaty confirmed Iraq’s control over the Shatt-al-Arab except for an area opposite Khorramshahr (confirmed in 1913) and a further part of the Shatt-al-Arab opposite Abadan (recognized in 1937). The treaty also adopted provisions regarding the legal regime at Shattal-Arab. The river was to be open on equal terms to the trading vessels of all states, but for the passage of vessels of war it was only open to Iran and Iraq. Article 4 of the treaty confirmed that the fact that the frontier would sometimes follow the low-water mark, and sometimes the thalweg, should not in any way affect the two contracting parties’ rights along the whole length of the Shatt-al-Arab. Article 5 of the treaty called for a convention to deal with the maintenance and improvement of navigability in the Shatt-al-Arab and with other questions concerning navigation; such as dredging, pilotage, collection of dues, health measures and measures for preventing smuggling. This was the most important aspect of the treaty. Iran asserted that Article 5 should provide for the management of the river by both Iran and Iraq on equal footing. Iraq disagreed, asserting exclusive right. Consequently, the proposed convention was never formally adopted. The draft convention envisaged an advisory commission to ensure the maximum uniformity of administration and regulations by Iran and Iraq in their respective territories. The commission was to consist of one Iraqi and one Iranian, with a chairman, chosen by Iran and Iraq, who was to be a national of that third state which had the greatest tonnage of commercial sea-going shipping on the river, ie Great Britain. 1937-49 Period The 1937 treaty came into force in 1938 when Iran and Iraq formed a joint commission on fixing border pillars. The commission stopped work in 1940. During the period 1940-69, Iran questioned the validity of the 1937 treaty and attempted to negotiate a new agreement. According to Iran, the government of Iraq did not fulfil the obligations required by the 1937 treaty. After the Iraqi revolution of 1958, Iran became increasingly concerned with Iraq’s challenge to the Shatt-al-Arab and the Gulf. In a news conference in early 1959, President Qasim of Iraq suggested that a disputed strip of five kilometres of the Shatt-al-Arab, previously granted 197

The Iran-Iraq

war

to Iran under the 1937 treaty, should be restored to Iraq. It was in response to Iraqi threats that Iran extended its territorial sea to 12 nautical miles on 10 April 1959. Abbas Aram, Iran’s Foreign Minister, made a statement to the Majlis on the Shatt-al-Arab on 10 December 1959. He charged that Iraq, contrary to the provisions of the treaty and the attached protocol, had, for 22 years, collected dues unilaterally and had expended them in a manner prejudicial to the interests of Iran. The government of Iraq had undertaken, in the treaty of 1937, to ‘keep, through annual communication, the Imperial Iranian Government informed of the work executed, the dues collected, the expenses made and of all other measures undertaken’.20 Iran’s Ambassador to the United Nations stated that no such communication had ever been made.21 In 1959, the Revolutionary Government of Iraq denounced the 1937 treaty on the grounds that in 1937 (a year after the coup d’e’tut of General Bakr Sidqi) Iraq had concluded it under pressure. Such a statement by Iraq is in line with the Iranian position in 1969, claiming that the 1937 treaty had not been based on joint consent. Iraq regarded the Shatt-al-Arab as ‘an integral part of Iraqi territory’ and as an ‘indivisible part of Iraq’s internal jurisdiction’.** On this assumption, Iraq continued to control the piloting of vessels to the Iranian ports of Abadan and Khorramshahr. The Port of Basrah Authority promulgated rules and regulations relative to the control of river traffic, to navigation licences, and to port duties. The port authorities warned the ships using the Shatt-al-Arab to abide by Iraqi laws and Iraqi instructions. In the early 1960s Iraq repeatedly challenged free access to oil tankers to Iran’s major oil refinery on Abadan Island deep in the Shatt-al-Arab. Early in 1961, the Iraqi-managed Basrah Port Authority refused to pilot any tankers from the Gulf to Abadan, and the Iraqi berthing masters refused to help them anchor at the Abadan refinery. This resulted in a cessation of the movement of oil tankers to Abadan for a period ?f several weeks. The resultant sharp reduction in refinery operations forced Iran, after two months, to yield to the Iraqi terms. The situation worsened in 1963 when the Bath came to power in Iraq. In 1969 Iraq decided to enforce its ‘territorial’ right in the Shatt-alArab according to the provision of the 1937 treaty. When in April 1969 Iraq required Iranian ships to pay entry tolls to the Basrah Port Authority, Iran refused to comply with this request, and this resulted in a unilateral arbrogation of the 1937 treaty by Iran.

Abrogation of the 1937 treaty by Iran

Wee the letter of the Ambassador and Permanent Representative of Iran to the United Nations, International Legal Material, 1969, p 489. *%aqi letter to the Security Council of the United Nations, op tit, Ref 21, p 467. Foreign Affairs, First *Winistry of Diplomatic Department, Iran, Some Information on Iraq, 135511976, p 166. In the absence of treaty provisions, international law provides for the division of the navigable river along the thalweg line (see Ref 19).

In July 1968 the Ba’th party staged a bloodless government coup in Iraq, as a result of which relations between Iran and Iraq worsened. On 15 April 1969, the Under-Secretary of Iraq’s Ministry of Foreign Affairs summoned Iran’s Ambassador to Baghdad, demanding the withdrawal of all ships under the Iranian flag from the Shatt-al-Arab. Four days after this ultimatum, Iran’s Under-Secretary of Foreign Affairs made a statement in the Iranian senate, announcing the abrogation of the 1937 treaty with Iraq on the Shatt-al-Arab. Iran’s Ministry of Foreign Affairs then confirmed the abrogation in its announcement of 27 April 1969, although it expressed Iran’s desire for a new treaty, based on the principles of international law. *3 In the absence of treaty provisions, international law provides for the division of a navigable river along the thalweg line. The main reasons for the abrogation of the 1937 treaty were political

MARINE POLICY July 1982

The Iran-Iraq

Wraq’s inland catch totals 14.6 million tons per annum whereas its marine catch is about 21.8 million tons per annum. The Euphrates and Tigris rivers, with their complex associated network of lakes, marshes and ponds totalling approximately 20000 kmz, have recently produced about 15000 tons of fish annually, a considerable decline upon the catches of the early 1940s. Recent investigations by the Food and Agriculture Organisation of the United Nations (FAO) into fisheries of Iraq made the following conclusions (S.E. El-Zarka, Fishew Resources Potential of the Arabian Penirkula and the Gulf, FAO, Rome, September 1978). First. that indioenous fish species in the Euphrates, Tig& and their tributaries have been subjected to such intensive fishing that their stocks are approaching depletion and accordingly give a low annual yield. Second, the marshes at the lower reaches of the Tigris and Euphrates, covering approximately 11000 km2 are highly - _ fertile; major lakes, such as take Hammar, can add-a further 9000 km2 of hiahlv oroductive fisherv resources. The prop& utilization and exploitation of these water masses might eventually lead to an annual production of between 80000 and 100000 tons of fish. Third, reservoirs and lakes located in the southern part of Iraq offer another important fishery resource. Intensive fish culture appears to offer notable potential in Iraq. According to the FAO study, yields from such activities could be very high. Currently, the area utilized for aquaculture does not exceed the 128 hectares owned by the government and private sector, and their contribution to the fisheries is insiqnificant. The eventual exoansion of intensive fish culture operations to, say, 20000 hectares in the next ten vears. with an average yield of 500 kilogrammes per hectare per annum, could produce some 10000 tons of fish of high commercial value. WSee Ref 19 for a definition of the thalweg and median-line principles.

MARINE POLICY July 1982

war

and strategic. Only a few days before the abrogation, Iraq had summoned Iran’s Ambassador and threatened not to allow the navigation of any ship which was destined for Iranian ports through the Shatt-al-Arab. To this ultimatum was added, according to Iranian sources, the assertion that Iraq would carry this out by force whenever necessary. Despite the relocation of the port facilities of Abadan at Bandar Mahshahr, the Shatt-al-Arab continued to be of great strategic and economic significance to Iran. Khuzistan’s oil fields, its Dez Project, and its refining, tanker-loading and petrochemical complexes in Abadan were all within reach of Iraqi artillery or planes. The sovereignty of Iraq over the whole of the Shatt-al-Arab meant that the Iranian navy depended on Iraqi goodwill for an outlet to the Gulf. Furthermore, the scheduled withdrawal of the British from the Gulf was an additional cause for concern. The economic interests of Iran would obviously be better served if she could exercise sovereign rights in sectors of the Shatt-al-Arab adjacent to her territory. These economic interests are twofold: collecting dues and charges from vessels using the Shatt-al-Arab and income from fisheries. In this context regard should be paid to the significant fishing interests of Iraq in the Shatt-al-Arab.24 It is undeniable that the increasing economic significance of the Shatt for both Iran and Iraq contributed to the gravity of the boundary dispute.

Iran’s arguments Iran’s first basis for abrogating the 1937 treaty was the inequality of the parties to the treaty caused by alleged British pressure on Iran. Iran claimed that the 1937 treaty, concluded when Iraq was still under British mandate, had been agreed to under pressure and that Iran was too weak to do anything but accept. However, British records at the Public Record Office indicate that no British pressure had been exerted on either Iran or Iraq at the time. Nevertheless, the British Empire had too many important economic and security interests in the Shatt-al-Arab to remain entirely disinterested. The extent of British economic interests is seen in the fact that over 98% of the port traffic at Abadan was provided by the loading of British-owned oil from Iran. The security interest of the British derived primarily from the United Kingdom-Iraq Alliance Treaty (1922), according to which the Great Britain undertook to assist Iraq in the event of war. Great Britain also had the right to maintain an air force and military bases in Iraqi territory to service and protect her communications in the area. Second, Iran argued on the basis of the doctrine of rebus sic stantibus (fundamental change of circumstances) that the 1937 treaty was invalid under international law. The doctrine implies that in the event of a change in the conditions existing at the time of signing an agreement, it is open to either of the contracting parties to renounce the agreement. The third point argued by Iran to justify the abrogation was the failure of the treaty to apply either the thalweg or median line principles.25 These principles provide that a frontier river should be divided into two sectors between neighbouring states. However, one should consider the counter-argument that the Shatt-al-Arab could not be divided equally between the two states, because the thalweg did not follow the midstream line but crossed from one bank to the other and was, moreover, constantly shifting. The fourth legal point was that the government of Iran had not agreed

The Iran-Iraq

war

to extend the treaty when the convention required by Article 5 was not formally adopted. Lastly, Iran argued that Iraq could not enforce the treaty because she had been in a material breach of agreement. Iran asserted that, contrary to the provisions of Article 4 and 5 of the treaty and Article 2 of the attached protocol on joint administration, Iraq had monopolized the administration of the Shatt-al-Arab. The principle of mutuality as enunciated in civil law states that a party which is itself in breach of contract may not enforce the same contract. Iraq’s arguments The following arguments can be put forward against Iran’s abrogation of the 1937 treaty. First, the 1937 treaty did not provide any basis for its being terminated, or for its being expired upon the occurrence of certain incidents or the expiration of a certain period. Second, had Iraq violated 26AlexanderMelamid,writingin 1968 (A. the terms of the treaty, Iran would have recourse to internationally Melamid, ‘The Shatt-al-Arab boundary acceptable procedures for peaceful settlement of disputes according to dispute’, The Middle East Journal, 1966, p Article 33 of the United Nations Charter. Lastly, the termination of the 356) proposed the establishment of a ‘binational, muWurpo% Shatt-al-Arab 1937 treaty could not affect the actual Iran-Iraq boundary line and the Authority’ in order to regulate navigation b oundary line would remain the same in the absence of any other and distribute the dues. He suggested that mutually agreed boundaries, because the termination of a treaty should the Shalt-al-Arab Authority be organized along the lines ofthe USTennessee Valley not affect the legal status or rights and obligations derived from its Authority. Another alternative could be the transformation of the existing Basrah Port Authority into a wider bi-national organiza-

execution.

left in no doubt that Iraq’s case is just and will be able to vindicate itself in any international legal forum’ (K. al-lzzi, op tit, Ref 9, pp 61-63). See also J.I. al-Rawy, al al-dowaliyah va hodud al-lraqiyah mashkilat al-hodud al-lraqiyah-al-lraniyah, unpublished doctoral thesis, Cairo University, Faculty of Law, 1970; Hamid Javad al-Khatib, al-hodud al-lraqiyah-al-lraniyah val vaze al-qanuni Ii Shatt-al-Arab, dissertation, unpublished masters Baghdad University, Faculty of Law and Political Science, 1972. For an early published Arab treatise see Abdol Hossein al-Qatifi, ‘ba zo al-javanb al-qanuniyah Ii mohaualat-i Iran inhah-i moahadat al hadud al-ma quda bainal va bain al-Iraq Senate 1937’, Journal of Faculty of Law of Baghdad University, Vol 1.1969. 4n the meantime the USA (as indicated by US Under-Secretary Elliot Richardson’s

scientists.28

26

The response to the unilateral abrogation of the 1937 treaty by Iran was tion. The Iraqis, however, did not consider predictably one of outrage in the Arab world. The acting permanent such a proposal appropriate. representative of Iraq to the United Nations addressed a letter to the 27R.K. Ramazani, The Persian Gulf: Iran’s Security Council on 29 April 1969. He stated that Iran’s action Role, University Press of Virginia, VA, USA, 1972, p 42. constituted ‘a clear violation of the rules of international law’, and ‘a clear *sFor instance, Khalid al-lzzi of Baghdad contravention’ of Paragraphs 3 and 4 of Article 2 of the United Nations has concluded that all Iran’s political and Charter. He further argued that the effect of a boundary treaty could not legal arguments ‘are but pretext to cover her territorial ambitions’.H.M.Jain of the be extensive in time,, but must take place once and for a11.27These University of Allahabad (India) in his forearguments were also advanced by individual Arab lawyers and political word wrote - ‘After reading this work, I am zran

and lraq

in the

1970~

In 1971, when Iran occupied the three islands of Abu Muss, Greater and esser Tunbs, Iraq broke off diplomatic relations with Iran and Great Britain. Together with other radical Arab states, Iraq also complained to the Security Council of the United Nations.29 During the Security Council’s debate, Talib El-Shibib of Iraq alleged that Great Britain had bequeathed to Iran its previous colonial role in the Gulf region. The Security Council adjourned its consideration of the matter sine die, as states friendly to Iran and Iraq were attempting a discussion to resolve the conflict.30 Hence some states, notably Turkey and Jordan, continued their good offices to solve the dispute. Between 1970 and 1973, Iraq was internally unstable and internationally isolated and had to take a number of initiatives aimed at internal and regional stability. On the internal front, the Kurds were promised a measure of autonomy in March visitto Iran in lg70) s”P~rted the idea that 1970. Externally, Iraq signed a 15year agreement with the USSR in 1972 the US-backed Shah of Iran should act as and resumed diplomatic relations with Iran in 1973.31 However, in 1974, the guardian of Gulf security. The USA invoked the Nixon doctrine of reliance on military tensions on the Iran-Iraq border led to Iraq protesting again to regional allies to defend regional security. the Security Council against Iran’s alleged invasion. WN Chronicle, 1971. Talib El-Shibib of Iraq stated at the Security Council that in February 31H. Amirsadeghi, ed, The Security of the 1974 an Iranian armoured unit had launched a ‘treacherous attack’ Persian Gulf, Croom Helm, London, 1981.

200

L

MARINE POLICY July 1982

The Iran-Iraq war

against the Iraqi border posts at Al-Darazi and Al-Suder. Some 44 Iraqi soldiers had been killed. He continued: ‘The aggression committed against Iraq is but another step taken in pursuit of Iran’s aggressive policy of expansionism and fulfihnent of the grandiose dream of domination and empire, of seeing the Arab Gulf transformed into a Persian lake . . . The expansion of the Iranian navy now under way was designed to patrol the seas as far as India, and Iran claimed the right to stop and inspect ships 50 miles off the Iranian coast . . .‘32 Fereydoun Hoveyda of Iran claimed that in February 1974 Iraqi armed elements, using light and heavy weaponry, artillery, tanks and armoured carriers had shelled Iranian frontier posts at the Zaluab heights, Kanisakhat, Reza Abad, Jazman and the Kenjan-Cham Dam. The Iranian armed forces had returned fire and forced the intruders to withdraw. Iran did not agree with the Iraqi contention that the dispute should be submitted to the International Court of Justice. The Security Council, in Resolution No 348, called for mutual negotiations. The United Nations mediation led to a ceasefire in March 1974 which gave a temporary respite until August 1974 when further clashes occurred on the border. Subsequently Iranian and Iraqi delegations met in Istanbul in 1974, but to no avail. This meeting was followed by unsuccessful discussions between the two states’ Ministers of Foreign Affairs, first in New York (October 1974) and later in Istanbul (January 1975).33 Meanwhile, the regular tension between the two states’ navies within the Shatt-al-Arab continued to pose the threat of an outbreak of formal hostilities. Heavy fighting between the Iraqi Army and the Iranian-backed Kurdish rebels took place throughout 1974 and early 1975. Iran was confronted with the choice of escalating further aid to the Kurds (and therefore entering into a direct or indirect war against Iraq) or withdrawing its support from the Kurds. Following mediation by King Hussein of Jordan, President Sadat and President Boumedienne of Algeria, Iran adopted the latter course and pulled back from the border fighting with Iraq in early January 1975. The 1975 treaty

34JN Chronicle, 1971. 33lran, op cif, Fief 23. ‘Iran’s search for 34R.K. Rarnazani, co-operation’, Middle East regional Journal, No 30, 1976, p 177; see also Abbas Kelidar, Iraq: The Search for Stability, Conflict Studies, London, 1975, p 15.

MARINE POLICY July 1982

Mohammed Reza Pahlavi, the late Shah of Iran, and Saddam Hussein al-Tikriti, Iraq’s Revolutionary Command Council Vice-President, attended an OPEC summit in Algiers in March 1975. By then, convergence of various factors had produced some scope for a harmonization of interests between Iran and Iraq. These included Iran’s willingness to pressurize Israel towards a more conciliatory attitude in the Arab-Israeli peace negotiations. This was essential for Iran to widen the circle of supporters for its own policies within the Arab Middle East. This Iranian determination coincided with Iraq’s desire to break out of its own selfimposed isolation within the Arab world. Again, the emerging Iraqi disappointments with the USSR and informal overtures towards the USA fitted Iran’s campaign to neutralize Soviet influence in the region and to strengthen the forces of moderation. As R.K. Ramazani concludes, the paramount considerations underlying the 1975 Iran-Iraq rapprochement were (a) concern about greater consideration of domestic power and (b) greater need for unity within 0PEC.s4 Thanks to the good offices of late President Boumedienne of Algeria, the Shah and Saddam Hussein met twice and issued a joint communiquC on 6 March 1975 which announced the 1913-14 diplomatic instruments as the basis for the definitive land boundary, and the thalweg line as the

201

The Iran-Iraq war

for defining the river frontier. Following this resolution, on 15 March 1975 the Iranian and Iraqi Ministers of Foreign Affairs, in the presence of Algeria’s Foreign Secretary, met in Teheran and signed a protocol which comprised the principles agreed upon by Iran and Iraq. After two other joint ministerial meetings on 19-20 April 1975 in Baghdad and N-20 May 1975 in Algiers, Iran and Iraq signed a treaty and three appended protocols concerning international borders and good neighbouring relations on 13 June 1975. Furthermore, Iran and Iraq signed five protocols, two of which concerned navigation in the Shatt-alArab and the utilization of other frontier rivers, 26 December 1975. All these documents, after being ratified by both countries’ legislatures, were exchanged in Teheran in 1976. The treaty and its three appended protocols of 13 June 1975 are highly significant.35 The treaty adopts the 1913 Delimitation Protocols between Iran and the Ottoman Empire, as well as the minutes of the 1913-14 Frontier Commission, as the basis for defining the land boundary between Iran and Iraq. As regards the water border, the treaty adopted the thalweg principle. The borderline at the Shatt-al-Arab was, therefore, to follow the median line of the main channel, navigable when the water level is at its lowest navigation level, beginning from the point where the territorial borderline is projected at the Shatt-al-Arab through to the sea. Protocol I deals with measures to be taken against the movement of ‘subversive elements’ into either of the two countries. Protocols II and III are concerned with a new demarcation of land borders and water borders respectively. The new demarcation of the Shatt-al-Arab was agreed upon in Article 2 of the treaty and was to proceed in accordance with the provisions of Protocol III which indicated the specific points of the boundary line between the territorial waters of each state. In effect, the Iraqi border moved from the Iranian side of the Shatt-al-Arab and applied the thalweg principle as a boundary line between the two states. The boundary line in the Shatt-al-Arab therefore runs from the El Kheiane channel to the estuary of the river. As regards the land boundary, the 1975 Treaty gave Iran some 200 square miles of border to the north. Accordingly, some 670 disputed areas were delineated between 1975 and 1978. Following the 1975 Treaty, a Common Bureau of Coordination was established for navigation in the Shatt-al-Arab which was administered jointly and equally by Iran and Iraq. The Common Bureau issued certain regulations in 1975 to regulate the arrival, movement and departure of vessels; marine services, safety, sanitary, and anti-pollution measures; and pilots, penalties and jurisdiction. The Algiers treaty ushered in a welcome period of entente for the three major Gulf states: Iran, Iraq and Saudi Arabia. Following the Shah’s visit to Saudi Arabia in April 1975, President Boumedienne of Algeria, of the Iran-Iraq Treaty, visited Saudi Arabia to consolidate the 35For details see the Iraqi publications: architect Selections from the Iraqi-Iranian Dispute, Arab-Iranian rapprochement and to work for further harmonization of 1981; and The Iraq-Iran ComYict,Du Monde relations in the Gulf.s6 Arabe, Paris, 1981. In April 1975, following Iran’s premier Hovayda’s visit to Iraq, 36The Iran-Iraq accord resulted in attacks on both states by the United Arab Emirates, Saddam Hussein began an official visit to Iran. In January 1977 Iraq’s which claimed that the two countries were Foreign Minister visited Iran. Consequently the two states signed six moving towards an organ&d domination agreements in July 1977 covering trade and cultural relations; at the expense of other coastal states. Iraq bilateral was also attacked by some radical Arab freedom of movement by Iranians in visiting Shi’it holy places in Iraq; states, such as Syria and the People’s agriculture and fishing; railway systems linkages; and coordination of Democratic Republic of Yemen, for ‘selling activities concerning the movement of ‘subversive elements’. out’ Arab land. basis

MARINE POLICY July 1982

The Iran-Iraq war

Abrogation of the 1975 treaty by Iraq After the Iranian Revolution, Shahpur Bakhtiar, the Shah’s last Prime Minister, announced that Iran no longer wished to play the role of Gulf policeman. This was received with much interest by Iraqi authorities looking to establish Iraq as the major Gulf power. On 13 February 1979, Iraq sent a memorandum to Mehdi Bazargan, Iran’s first revolutionary Prime Minister, expressing Iraq’s desire to establish ‘the strongest brotherly relations’ with Iran. The message read: ‘The Iraqi Government views with much satisfaction the statements of Ayatalloh al-Khomeini, the famous religious leader, and the leading personalities in the Iranian Popular Movement about the relations with Arabs, and their attitude toward the Zionist usurper. It considers these statements as expressing the conscience of the free Iranian people who should stand at the side of the brotherly Arab people in its just struggle against oppressive Zionism, and the imperialism which supports it . . .‘3’ In early 1979, Iraq demanded a ‘voluntary’ amendment to the 1975 Iran-Iraq Treaty on the grounds that it was unfair and underrated Iraq’s interests. Furthermore, Iraq accused Iran of violating the terms of the Algiers treaty. As reflected in a letter written by Saadoon Hammadi, Iraq’s Foreign Minister, addressed to the Secretary-General of the United Nations, Iraq alleged that ‘Iran took advantage of the Protocol on the demarcation of the Shatt-al-Arab while procrastinating on discharging its obligations under the protocol on the demarcation of the land frontiers’. Iraq also complained of Iran’s interference in Iraq’s internal affairs and claimed that Iranian territory was being used ‘as a base for threatening national integrity of Iraq’. The letter also alleged that the new Iranian regime by its declarations and actions affirmed that it no longer considered itself bound by the Algiers treaty. Consequently, Saadoon Hammadi declared, ‘the legal relationship governing the Iraqi-Iranian boundaries, and especially in the Shatt-al-Arab, should go back to its status before 6 March 1975 and this river shall again be as it had always been throughout history, an Iraqi river subject to control and sovereignty of Iraq’. 3s It is well known that, being internally weak, Iraq made concessions in 1975 to reach a compromise solution. Until 1972, Iranian artillery units and logistical back-up had operated inside Iraqi Kurdistan in support of the Kurdish rebels. The Iraqi army also suffered considerable losses in the Arab-Israeli war of 1973. Obviously after the fall of the Shah and the disintegration of the Iranian regular army, Iraq found itself in a position to demand a better deal than the Algiers treaty. The proposed amendment of the treaty, inter alia, concerned the withdrawal of Iranian forces from Zain al-Qaws and Saif Saad along the countries’ disputed border to the Diali Province in Iraq.

3’0~ cit. Ref 35. War the text of this letter see Iraq. Selections from the Iraqi-Iranian Dispot& 1981. DD 99-l 02. It must not be forMten that l&l is the only member of OPECwhich cannot export oil without crossing foreign territory. The Iraqis also feel threatened, not only by Israel and Iran, but by US aircraft operating from NATO bases in Crete and Turkey.

MARINE POLICY July 1982

War In mid-September 1980, Iraqi Forces seized a disputed area (ml25 square miles) from Iran. The Iranians confirmed the seizure but claimed they had regained parts of the territory seized. On 17 September 1980, the Iraqi government officially abrogated the 1975 treaty and claimed exclusive sovereignty over the entire Shatt-al-Arab. In an emergency session of the Iraqi National Assembly, Saddam Hussein, the Iraqi President, announced that vessels using the estuary and the waterway should fly the Iraqi flag and take on only Iraqi pilots. The Iraqi President

203

The Iran-Iraq

war

-Ibid. 40The Times, 2 December 1981. 41BretbCrowther. op tit, Fief 1.

204

stated: ‘. . . I hereby announce before you that the Accord of March 6, 1975 is terminated on our part too. Therefore, the legal relationship in the Shatt-al-Arab must return to what it was prior to March 6 1975. This river must recover its Iraqi Arab identity as it had been throughout history in name and in reality, with all the disposal rights emanating from full sovereignty over the river’.39 Iran, having closed its airspace, declared the border area a ‘war zone’ and closed the Shatt-al-Arab estuary. Iran ordered the merchant vessels found in the Shatt to leave the area as soon as possible. Nevertheless, more than 70 ships were either stranded in the Shatt-al-Arab or were reported to have been damaged by mortar and shell-fire. Iranian warships intercepted and machine-gunned those ships flying the Iraqi flag, including those registered in the UK, Singapore and Kuwait. To date, the United Nations has failed to secure the release of the trapped ships in the Shatt-al-Arab and it was reported in June 1981 that the ships have become part of a wider settlement. The British Court of Appeal in ‘the Wenjiung’ decided that the date of frustration of a charter-party relative to a vessel trapped in the Shatt-al-Arab was 24 November 1980.40 The implications of Iraq’s claim to exclusive sovereignty over the Shatt-al-Arab are far-reaching. Iraq would have territorial rights in the waters and airspace of the Shatt-al-Arab. It follows that Iraq would be able to exercise national jurisdiction and demand that all vessels using the waterways should fly the Iraqi flag and conform to orders of the Iraqi authorities. Since December 1980, Iraq has continued its occupation of certain areas in the Iranian provinces of Kurdistan, Khuzistan and part of the Iranian territory close to the Gulf, while Iran has fought fiercely to push the Iraqis back (see Figure 2). Iraq initially insisted that its aims were restricted to adjusting the Iran-Iraq land and offshore boundaries, but in November 1980 Saddam Hussein claimed ‘territorial rights’ which did not exist before the war. In particular, Iraq argues on the basis of ‘an economic unity between the two banks of the Shatt-al-Arab which belong to the same agricultural and climatic family’. Iraq also justifies its territorial claim on the basis of its common language, customs, traditions, art and literature with the Arab inhabitants in the occupied territories. At the time of writing, the war has continued for more than 18 months and no peace proposal has been accepted. The war has immobilised the entire economy of southern Iran and has had a devastating impact on the Iraqi economy. In April 1981, Behzad Nabavi, Iran’s Minister of Executive Affairs, stated that Iran had suffered losses of more than f7113 million during the previous six months of war. In addition to oil revenue losses, Iran lost about 50% of its port capacity. As Brett-Crowther has observed, the war will also have long-term adverse effects on the social and political development of the entire region.41 To date, mediation attempts by the United Nations, the Islamic: Conference Organisation and the Non-Aligned Movement (as well as attempts by the Palestinian Liberation Organisation, Pakistan, Algeria, Turkey and others) have failed. In October 1980, Iraq was reported to have asked Turkey to mediate after the Iranians staged a successful counterattack which resulted in a military deadlock. Regardless of its military and territorial gains, Iraq has obviously failed to achieve its political objective of forcing Iran to acknowledge Iraq’s sovereignty to the whole of the Shatt-al-Arab. MARINE POLICY July 1982

The Iran-Iraq //

/////

war

//

Khorromshahr

5 miles

Shalt al A&b\

Iron

‘Dezful

raq

occupied

m

1

Shotf al An

Fwre 2. The occupied Iranian territory (as of March 1982). Since an Iranian offensive in late March 1982 which liberated almost 3000 square kilometres of occupied Iranian territory, the war has shifted in Iran’s favour. Iranian authorities, however, have repeatedly declared that Iranian forces would not move into Iraqi territory. Peace proposals Olaf Palme, the former Swedish Prime Minister, was appointed as the United Nations mediator in the Iran-Iraq war in November 1980. He has since frequently visited both Iran and Iraq, but the warring countries have expressed doubts about the possible success of the United Nations mission. During a peace trip to the two countries in July 1981, Pahne outlined a plan for an honourable and durable settlement preserving both Iraq and Iran’s legitimate national rights. The proposals put forward by the United Nations were not disclosed, but they were expected to be similar to those of the Non-Aligned Movement and the Islamic Conference Organisation. The Non-Aligned delegation proposed a return to the border as established by the Algiers treaty of 1975 and a pledge by both states not to send fresh forces into the region. The ceasefire, once accepted, would be supervised by a Non-Aligned MARINE POLICY July 1982

205

The Iran-Iraq

war

Committee. Under these proposals, Iraq should withdraw from substantial parts of occupied Iranian territory, although the Iraqi government would not necessarily have to rescind its abrogation of the Algiers treaty. The peace formula of the Islamic Conference Organisation in July 1981 proposed the establishment of three ceasefire commissions to examine the problems raised by the conflict. The first commission would cover the ceasefire, withdrawal of troops and identification of boundaries. The second would provide military supervision and peacekeeping forces. The third commission would be established to investigate the responsibilities for the conflict. Now that the Gulf war has become a local skirmish that does not endanger the oil supply, the outside world has more or less forgotten about it. Diplomatically, the war has been used by the USA to reassert its predominance in the Gulf. Israel and Saudi Arabia, for different reasons, consider the war as beneficial to their own national interests. The USSR has maintained a neutral stance and is mindful that the Gulf war should not lead to a confrontation with the USA. This reality contrasts with the US-inspired rumours of a possible invasion of the Gulf by the USSR crossing Afghanistan and Iranian frontiers which provided the rationale for the US proclamation to defend the Gulf States. Robert Fisk has suggested that in order to contain the Soviet aggression, the USA would form a front line against the USSR somewhere on the Iran-Iraq frontier - the very battlefront of the present war.42 This seems very unlikely, but one has to be mindful of the fact that the USSR has disputed the validity of Iran’s unilateral abrogation of the Iran-USSR Treaty of 1926 which give the USSR the right to intervene in Iran. At present, the USA and the USSR have in fact reached a tacit agreement to disregard the Iran-Iraq conflict for the time being as neither power feels in a position to influence events there. This should give an opportunity to regional and Third World organizations to arrange a peaceful settlement between the two countries.

Iran-Iraq

territorial sea boundary

Territorial sea of Iran and Iraq

42TheTimes, 26 November 1981.

In any negotiations to determine the boundaries of the marine and sub-marine areas in the Gulf, the lack of uniformity between different states in the breadth of their territorial seas is of special importance. Because the continental shelf, in current legal terms, begins from the outer limit of the seabed and subsoil of the territorial sea, the extension of the territorial sea affects the division of the continental shelf between adjacent or opposite states considerably. The breadth of the territorial sea also affects the delimitation of the contiguous zone, exclusive fishing zone and exclusive economic zone (EEZ). This means that when the breadth of the territorial sea of two opposite or adjacent states is different, the state whose territorial sea has the shorter breadth will be apportioned less marine and sub-marine areas. That is, if the equidistance principle alone is applied. Therefore, disputes over the determination of marine and sub-marine areas give rise to questions concerning the limits of the territorial sea of any two states involved. Professor Francois at the International Law Commission made it clear that ‘it would be impossible to fix a boundary between two continental shelves unless agreements were forthcoming as to the demarcation of MARINE POLICY July 1982

The Iran-Iraq

war

territorial waters’.43 While this attitude may often prove irrelevant to coastal states bordering open seas, its validity cannot be questioned with respect to such semi-enclosed seas as the Gulf. Iranian legislation Iran has passed three items of legislation defining the breadth of her territorial sea. The law of 19 July 1934 on the delimitation of Iran’s territorial sea and zone of maritime control, defined the territorial sea of Iran as extending to six miles from the low-water mark.44 A contiguous zone of six miles for security and defence purposes was also provided beyond the territorial sea. The law of 19 June 1955 concerning the continental shelf of Iran confirmed the enforcement of the six-mile limit to the territorial sea. This ‘six plus six’ formula was amended by a draft law submitted to the Senate on 20 December 1958 and was finally passed on 12 April 1959. 45 The law received the royal assent and was brought into force on 2 May 1959. Article 3 of the law extended the territorial sea of Iran to 12 miles. It further provided that the baselines of the Iranian territorial sea will be determined by the government ‘with due regard to the established rules of public international law’. Despite the silence of the 1959 law on the question, it is assumed that the provisions of the 1934 law regarding the baselines of the territorial sea remain in force. As provided in Article 1 of the 1934 law, the low-water line is the baseline for Iran’s territorial sea. The provisions of Article 3(2) of the 1934 law, which adopt a straight baseline for certain bays and islands, are also assumed to be in force. The baseline for Iran’s territorial sea, the Iranian low-water line, was mapped accurately to determine the boundaries between onshore and offshore oil agreements granted by Iran.d6 The 1959 Iranian law on the territorial sea was challenged by Great Britain because of the latter’s protectorate relationship with the Arab @P. Anninos, The Continental Shelf and Emirates.47 The British note of protest, dated 12 October 1959, was Public International Law, H.P. De Swan The Hague, 1953, p 93. addressed to Iran’s Minister of Foreign Affairs. The note, referring to the “Iran, The Official Gazette, 133411955, 1ranian law of 12 April 1959, stated that the British government could not The Law of Khordad 28.1334, on the Contirecognize unilateral claims to a breadth of territorial sea greater than nental Shelf, Article H. 45lran, The Official Gazette, 1338/1959. three miles as valid under intematioanl law. It was also stated that the znitt$$ garivardin 22~ ‘a On the British government did not regard the Iranian unilateral extension of her sea as binding upon British shipping or aircraft.48 46Danishvar and Perret, ‘Identification de territorial limites lis eaux territorials lraniennes du The Iranian government, countering the British protest, stated that Gulf Persique’, paper given at the Iran regarded the 1Zmile extension of the territorial sea as essential for Conference on Petroleum and the Sea, national security. From 1820 the presence of British warships in Iran’s Monte Carlo, May 1965. 47Amin, op tit, Ref 1. territorial waters and the extension of military operations by Great @Thevalidity of the unilateral extension of B ri‘t ain towards the Iranian islands and ports had challenged the the territorial sea to 12 miles was also at that time debated by some international sovereignty of Iran in the Gulf.49 lawyers. It was argued that a unilateral extension of the limits of the territorial sea was not internationally valid, unless it was recognized by the other states concerned (A.H. Dean, ‘The Geneva Conference on the Law of the Sea’, American Journal of InternationalLaw, Vol52,1958, p 610; A.H. Dean, The Second Conference on the

reruteual Sea, Am&CanJouma’of km-

national Law, Vol54,1960, p 760). 49F. Adamiyat, A Legal and Diplomatic Study of the British-Iranian Controversy, Praeger, New York, 1955, pp 81-l 02. Wnited Nations Legislative Series (UNLS), ST/LEG/Ser. B/15, 1970, pp 89 90.

MARINE POLICY July 1982

Iraqi

legislation

Article 2 of the Iraqi law of 1958 extended the territorial sea of Iraq to 12 miles measured from the low-water line of the Iraqi coast.50 Article 3 provided that in cases where the territorial sea of another state overlapped with the Iraqi territorial sea, the limits between the two territorial seas should be determined by agreement with the state concerned in accordance with the recognized rules of international law or such understanding as may be reached between the two states. Iraq has not yet settled her offshore boundaries with Iran and Kuwait. However, in 1968, following an Iranian-Kuwaiti joint communique on this issue, Iraq further emphasized her adherence to the rules and principles of 207

The Iran-Iraq war

international law with respect to the delimitation of offshore boundaries. Iraq specified that she would not recognize the proposed Iran-Kuwait offshore boundary of 1968, since it encroached upon Iraq’s territorial

waters and continental shelf.5’ The Gulf states and the 12-mile limit In 1959, within a ‘Report on the Resolution of the First United Nations Conference on the Law of the Sea’, the Council of the League of Arab States recommended to its members a movement towards a 12-mile territorial sea.52 In the Gulf region, Iran, Saudi Arabia and Iraq had already extended the breadth of their territorial seas to 12 miles. Other Gulf states did not then take an interest in the recommendation, apparently because of the British influence in the Gulf protectorates. The aim of the Arab League recommendation was to achieve a 12-mile territorial sea in the Strait of Tiran and the Gulf of Aqaba as a security measure during the Arab-Israeli conflict. Later, significant economic interests caused the extension to 12 miles of the traditional three-mile limit of the territorial sea by more Arab states in the Gulf - Kuwait in 1967, Sharjah in 1970 and Oman in 1972. At present 12 miles may be regarded as the general Gulf standard. In 1960, Iraq and Saudi Arabia were among the ‘eighteen-power’ developing states at the Second United Nations Conference on the Law of the Sea which proposed to fix the breadth of the territorial sea at 12 was rejected by 39 votes to 36, with 13 abstentions. Sllbid, 1976, p 25. Coastal states have the miles. This proposal right to exercise sovereignty over their Iraq and Saudi Arabia voted against the joint proposal of Canada and the territorial sea subject to the rights of USA of a ‘six plus six’ formula while Iran abstained.53 innocent passage and the jurisdiction of In 1934 Iran was the first Gulf state to extend its territorial sea to six flag states. The width of the territorial sea, which by definition extends beyond internal miles. Iraq in 1958 and Iran in 1959 extended their territorial seas to 12 waters, is one of the most controversial miles. As a result of Oman’s extension of its territorial sea in 1972,54 the issues in international law. States claim Strait of Hormuz is now contained within the territorial waters of Iran and territorial seas ranging from three to 200 miles. However, in the semi-enclosed Gulf Oman. The contemporary rules of international law provide that the none of the littoral states claim any extension of the territorial sea does not change the legal status of interterritorial sea beyond 12 miles. (Amin, op national straits. Hence, the Strait of Hormuz should be subject to the cit. Ref 1). 52k.W. t&Donald, The League of Arab regime of ‘transit passage’ as incorporated in the latest Draft Convention Stares. 1965. Princeton Universitv Press, Law of the Sea prepared by the Third United Nations Conference on the Appenbix G, 6p 963-964. _ III) in August 1980.5s 53The legal controversy over the breadth of Law of the Sea (UNCLOS the territorial sea has arisen because of the conflict of interests between different states. The nature of the national interests involved is obvious in the event of any extension by the coastal states of the Gulf of their territorial sea. The early oil concessions in the region - such as D’Arcy (Iran, 1901), IPC (Iraq, 1925) and ALDC 1933) -made no reference to (Iran, territorial waters, and only from 1933 were territorial waters included in oil concessions. From the mid-1930s, when technological advances made the exploitation of the mineral resources of the sub-marine areas a reality, the coastal states in the Gulf extended their territorial seas (UN Dot AC. 1 /L 1 O/8 April 1960). %T/LEG/Ser. B/16,1974, p 23. 55For details See Amin, op tit, Ref 1, and International Legal Materials, 1980. 56UN Dot 1958 UNCLOS, Official Records, Vol VI, 8th Meeting, 12 March 1958, para 23. 570~cir,Ref 55.

208

The Gulfs legal status The Gulf’s legal status was recognized as being the same as that of the open seas by the Gulf states within the Continental Shelf Proclamations of 1948. The Proclamations, it was specified, were not to be interpreted as affecting the freedom of fishing, shipping and overflight within and above the continental shelf limits in the Gulf. In the First United Nations Conference on the Law of the Sea (1958), Iran, as well as some other states, pointed out that the status of the oceans and open seas should be distinguished from that of the enclosed or semi-enclosed seas.s6 The concept of ‘enclosed or semi-enclosed seas’ has been incorporated in the Draft Convention.57 The Gulf falls within the definition of the term ‘enclosed or semienclosed sea’ defined in Article 122 of the Draft Convention. However, the Gulf states are divided with respect to the legal status of the Gulf. Iran and Oman, strategically placed at the entrance of the Gulf, advocate a territorial appropriation of the entire waters of the Gulf. Some Iranians have even declared the Gulf a ‘closed or inland sea’ or analagous to one. MARINE POLICY July 1982

The Iran-Iraq war

=UN Dot A/CONF. 62/C2/L.71 Add 22.21 August 1974. 59The Iranians seized several foreign ships during 1989431, including a ship operating in disputed waters between Iran and Kuwait. In late March 1981, Iran’s Navy Panamanian-registered, seized a American-owned survey ship, Western Sea, which was operating for exploration purposes within the disputed area. Iran kept the ship and her crew of 19 under seizure, and demanded an apology from Kuwait, which, according to the Iranian version, had authorized the ship to enter Iran’s waters illegally. Owned by the Wester Geophysical Company of Texas, the Western Sea had been chartered by Kuwait’s National Oil Company. The captured ship and her crew were freed by Iran in May 1981. The Irat-+ Kuwait offshore boundary is complicated because of the disputed Iran-Iraq boundaries.

MARINE POLICY July 1982

On the other hand, all the other Gulf states favour the traditional status of the Gulf, which guarantees high-sea status of the waters beyond the territorial sea and the navigation rights of the international community within the Gulf. Being confined to 38 miles of coastline on the Gulf, Iraq put forward a territorial claim to two Kuwaiti islands (Warba and Bubyan) near the Iraqi port of Urn Qasr. Iraq, more than any other Gulf state, advocates the regime of ‘transit passage’ in order to guarantee free navigation through the Strait of Hormuz. Between March 1979 and November 1980, Iran periodically threatened to block the access to the Strait of Hormuz. During the Iran-Iraq war in 1980, Iran closed the Strait to the Iraqi vessels and Iraq had to stop all shipments out of the Gulf. Iraq, which exports some 2.8 million barrels of oil a day, was unsuccessful in exporting any of its oil through Mediterranean outlets, and had to suspend its oil export contracts because of force mujeure. To export its oil by pipelines to the Mediterranean, Iraq had to depend on the goodwill of Syria, Lebanon and Turkey - traditional enemies. Jordan gave the Iraqis use of the Port of Aqaba, on the Red Sea, as a substitute for the Iraqi port of Basrah. Apart from these strategic considerations, Iraq’s maritime policy is Iraq’s fisheries would be the worst affected by economic interests. affected by a territorial appropriation of the Gulf. At present Iraq’s total catch is 26100 tons compared with Iran’s 20000 tons. Iraq therefore submitted a draft Article 5 to UNCLOS III defining the term ‘semienclosed sea which constitutes part of the high sea’ as ‘an inland sea, surrounded by more than one State, and connected with other parts of the high seas by a narrow outlet’.58 Freedom of navigation according to the Iraqi draft Articles 4 and 6, should be maintained in ‘semi-enclosed seas which constitute part of the high seas’ even where the establishment of a 12-mile territorial sea has the effect of enclosing areas previously considered as part of the high sea. These provisions have directly affected the Strait of Hormuz. Having extended their territorial sea to 12 miles, Iran and Oman claim the entire water of the Strait of Hormuz (less than 24 miles wide) as territorial seas. Almost all the oil produced in the Gulf region is exported in tankers which have to traverse the Strait of Hormuz. It should be pointed out that if the three islands of Abu Muss, Greater and Lesser Tunbs are recognized as Iran’s territory, the Iranian territorial sea will embrace most of the normal shipping routes up and down the Gulf. Any strict controls on traffic by Iran and Oman within their ‘territorial sea’ limits in the Strait of Hormuz will present a serious hazard to navigation. This possibility was highlighted during the early stages of the Iran-Iraq war in September 1980. Iran designated its 12-mile territorial sea within the Strait as the ‘war zone’.59 Of course, if the UNCLOS Draft Convention is successful, the Strait of Hormuz will be under the regime of ‘international straits’ and subject to the right of ‘transit passage’, and nof territorial sea. The question is whether a revolutionary regime such as Iran’s will submit to these provisions. In April 1980, threatened by military action from both the USA and Iraq, Iran again considered the option of closing the Strait to international shipping, regardless of the legal position of such an action. Later, in September 1980, Iran actually suspended any passage through her 12-mile territorial sea limit in the northern section of the Strait. However, on 1 October 1980, the late Mohammed-Ah Rajai, the Iranian Prime Minister, issued a statement indicating that Iran was committed to

209

The Iran-Iraq

war

GoAmin, op cif, pp 51-62. Under the Shah, Iran favoured a national appropriation of the Gulf by the coastal states. Mass’ud Ansari, the Iranian representative at the United Nations Sea-Bed Committee, defined ‘marginal seas’ as true microcosms, necessitating different regimes and thus justifying certain unilateral appropriations of marginal seas. He stated that the intrusion into these types of seas by fishing fleets from distant fishing states would create an abnormal situation which would seriously disturb the economy of the coastal region. Similarly, the late Iranian Minister of Foreign Affairs, Abbas Ali Khal’atbar-y, introducing a bill on an exclusive fishing zone to the Majlis (29 October 1973) stated that failure to adopt provisions on this issue had resulted in abuse of the situation by the industrialized states. In addition to the reasons mentioned one must not overlook the above. significant strategic interests sought by Iran under the Shah in advocating the apportionment of the entire waters of the Gulf among the littoral states. This policy has consistently been followed by Iran since the British withdrawal from the Gulf in 1971. The Gulf’s security was highlighted during the 1979-80 Soviet-US rivalry in the Arabian Sea. Iran and Kuwait maintained that the Gulf’s security had to be guaranteed exclusively by the littoral states, thus preventing the region from becoming an area for conflict between the major powers. hIWhereas the Shatt-al-Arab can be regarded as a natural frontier between Iran and Iraq, the demarcation of the two countries’ offshore boundaries in the Gulf cannot be determined solely by any natural feature. In other words, the distinction should be drawn between ‘frontier’ and ‘boundary’. Whereas a frontier is a geographical phenomenon (eg river or mountains), boundaries are legal and political phenomena which should be demarcated on the basis of international agreements. 64JN Dot A/CONF.62MIP.lO/Rev.l, 28 April 1979, Articles 33(2) (The Contiguous Zone), 57 (EEZ), 76 (The Continental Shelf).

210

guaranteeing the freedom of passage of all non-hostile ships through the Strait. The statement specifically acknowledged international law and customs concerning freedom of passage through international straits. It is clear that this statement ws merely made to deny reports suggesting Iran’s intention to close the Strait. Despite this, on 9 October 1980, Abol Hassan Bani-Sadr, the former President of Iran, in an interview published in Le Monde, stated that Iran would not hesitate to close the Strait if other countries entered the war against Iran. Furthermore, on 15 October 1980, the Commander of Iran’s navy publicly announced that Iran was prepared to mine the Strait in case any of the Arab states entered the war against Iran. Although none of the Gulf states made any comment, the USA declared that if the Iranian threat were carried out, American Air Force helicopters would take immediate action to remove the mines. However, the Anglo-American naval presence in the Arabian Sea forced the Gulfs lanes to stay open to international shipping.60 Regional

approach

The territorial apportionment of the Gulf has basically been justified on economic grounds. All of Iran’s oil is shipped through the Gulf. Iran also receives well over half her imports via the same route. Equally, all other Gulf states are heavily dependent on the Gulf for their development and prosperity. These economic interests, added to geographical, geological, strategic and historical reasons, call for the establishment of a special regime constituting an exception to the general rule of the freedom of the high seas. The first comprehensive attempt to organize security coordination between the Gulf states was the Conference of Gulf Foreign Ministers held in Mascat (Oman) in November 1976. The three major Gulf powers - Iran, Iraq and Saudi Arabia - endorsed in principle the idea of a conference in 1976 on defence. A six-point agenda was drawn up to serve as terms of reference for the summit. The six points were: (1) how to keep foreign fleets out of the Gulf, (2) military cooperation to guarantee free navigation in the Gulf, (3) ways to relieve existing disputes of interregional character, (4) guaranteeing the territorial integrity of the Gulf states, (5) agreement not to provide military bases to outside powers, and (6) discussion of the territorial division of the waters of the Gulf among the littoral states. The Arab states and Iran failed to agree on any formula for ensuring Gulf security. Consequently, after trying for 10 years, Iran gave up the search for a joint regional defence pact. However, the Gulf Co-operation Council (based in Riyadh, Saudi Arabia) was eventually formed in 1981 to group together the conservative Gulf states for communal aid and protection. The Council is composed of the six conservative Arab states of Saudi Arabia, Kuwait, Oman, Bahrain, Qatar and the United Arab Emirates. However, it excludes Iran and Iraq. g

aselines for territorial seas

The Shatt-al-Arab extends five kilometres into the Gulf. Hence its b oundarie+l have an important effect on the delimitation of the territorial sea. According to the Draft Convention prepared in August 1980 by UNCLOS III, the baseline for measuring the breadth of the t erritorial sea is also the baseline for determining the breadth of the contiguous zone, the exclusive economic zone, and, in future, the continental shelf.62 MARINE POLICY July 1982

The Iran-Iraq war

Article 13 of the Geneva Convention on the Territorial Sea and the Contiguous Zone (1958), which has been incorporated in Article 9 of the Draft Convention, provides for the automatic ‘closure’ of rivers. ‘Closure’ signifies that the baseline from which the breadth of the territorial sea is measured would be a straight line across the mouth of the river, between points on the low-tide line of its banks. The only specific proviso noted is that the river must flow directly into the sea, ie not through a bay or estuary. A straight baseline should meet three specific qualifications, as established by the International Court of justice in the Anglo-Norwegian Fisheries Case. 63 First, it must not depart to any appreciable extent from the general direction of the coast. Second, it must enclose sea areas which are sufficiently closely lined to the land to be subject to the regime of internal waters. Finally, in drawing a straight baseline, all economic interests peculiar to a region and evidenced by long usage must be taken into account.64 Neither the armed conflict nor the political situation in Khuzistan 63/nternational Cow? of Justice RepoHs, should affect the Iran-Iraq boundary defined in 1975. The abrogation of Judgment of 18 December 1951. not valid under international Y=or a thorough examination of the the 1975 treaty by use of force is certainly objective criteria for straight baselines in law. The 1975 treaty adopts the 1913 Delimitation Protocol between Iran the light of Norwegian example, see Robert and the Ottoman Empire, coupled with the minutes of the 1913-14 Hodgson, and Lewis Alexander, Towards Frontier Commission, as the basis for defining the land boundary an Objective Analysis of Special CircumLaw of the Sea Institute, between stances, Iraq and Iran. These diplomatic instruments are inconsistent University of Rhode Island, RI, 1972, p 23. with any Iraqi claim to sovereignty over Khuzistan and/or part of the In addition to the legal implications of the coastline north of the Gulf. According to proposals by the Non-Aligned Shatt-al-Arab for defining the Iran-Iraq territorial sea boundary, mention should be Movement, Iraq has to return to the 1975 treaty which adopted the made of a territorial claim by Iraq over thalweg line in the Shatt-al-Arab as the border between Iran and Iraq. Khuzistan, which is located south-east of the 1975 treaty contains clauses for its own amendment and Iraq and is bounded on the north and east Furthermore, by mountains of the Zagros chain which the would have to be the main point of reference in any negotiations.

Iraqis claim as a ‘natural boundary’ between Iran and the ‘Arab homeland’. This south-west Iranian province was formerly known as Arabistan, and a sizeable percentage of Khuzistan’s population is Arab, most of whom are Sunni (Shafi’it). This religious difference from Persian communities (who are Shi’a) reinforces ethnic ideological conflict. From 1979 Iraq has been actively involved in supporting the separatist Iranian Arabs of Khuzistan. Originally, Iraq’s objective when it launched the Gulf war in September 1980 was to capture the entire province of Khuzistan. The Iraqis have called for Khuzistan’s ‘autonomy’ but it is not clear whether or not they visualize this under Iraqi overlordship. In spite of Iraq’s ‘liberation’ of the Arab-populated Iranian territory during the Gulf war, the Iranian Arabs did not welcome the Iraqis. 651t is hard to accept that a state has territorial jurisdiction throughout its contiguous zone. It is true that under the Geneva Convention contiguous zone is considered as part of the high seas. Nevertheless, it is significant that Iran, advocating a zonal approach for pollution control, passed the Act concerning Protection of the Sea and Frontier Rivers against Pollution by Oil on 3 February 1976. This extended Iran’s jurisdiction for anti-pollution purposes up to the outer limit of the Iranian continental shelf.

MARINE POLICY July 1982

Exclusive fishing zone boundary Limits of contiguous

fishing zones

Article 7 of the Iranian act of 12 April 1958 which extended Iran’s territorial waters to 12 miles specified that ‘fishing and other rights of Iran beyond the limits of its territorial sea’ should remain unaffected. In October 1973 Iran fixed its exclusive fishing zone at the outer limit of Iran’s continental shelf in the Gulf, and at 50 miles from the basepoints of the territorial sea in the Gulf of Oman. The Iranian pronouncement of 22 May 1977 extended the country’s exclusive zone in the Gulf of Oman up to the limits of a median line every point of which was equidistant to the basepoints of the territorial waters of Iran on one side and of Oman on the other. Iraq claims an unfixed limit of ‘contiguous zone’ beyond the territorial waters.65 As far as the delimitation of the exclusive fishing zone is concerned the Draft Convention on the Law of the Sea prescribes the same rules and methods as those for the delimitation of the continental shelf.

Continental Definition

shelf boundary

of continental

shelf in the Gulf

The Gulf lacks both the isobath criterion and the quality of ‘substantial fall-off to a greater depth, suggested as the two main geological characteristics of the continental shelf. However, the denial of the continental 211

The Iran-Iraq war

shelf in the Gulf is unacceptable since the most important criterion is the geological association of the continental shelf with the continental territory, and not the depth or the ‘fall-off criterion. Continental shelf rights exist because the continental shelf is the natural prolongation of the coastal state’s land territory. This point, although missing in the Geneva Convention on the Continental Shelf of 195866 is confirmed by the International Law Commission (ILC),67 the judgment of the International Court of Justice in the North Sea Continental Shelf Cases,68 and the Draft Convention on the Law of the Sea.69 The developing doctrine of the EEZ in contemporary international law takes precedence over the doctrine of the continental shelf as far as semi-enclosed seas such as the Persian Gulf are concerned. It is, however, helpful to examine the status of the sub-marine areas of the Gulf under the doctrine of the continental shelf. The view of non-existence of a continental shelf in the Gulf cannot be supported, not only because of the crucial point of natural prolongation prevailing in the law of the sea, but also for the following reasons. First, in reply to the geological argument for the non-existence of a continental shelf in the Gulf because of its lack of isobath and ‘fall off criteria, reference should be made to the views published in Scientific Considerations Relating to the Continental Shelf. 7oThis makes it clear that an area such as the Persian Gulf forms part of the continental shelf. In addition, the regime of the continental shelf does not necessarily follow the physical dimensions so far as the isobath is concerned. 6WN Dot A/CONF. 13/l 58. For a detailed Second, in the view of the ILC in 1950, there was no doubt that the right account of the Iranian and other Gulf of coastal states to exercise control and jurisdiction over their adjacent legislation on marine pollution see S.H. areas should not be dependent on the existence of a Amin, ‘The Gulf states and the control of sub-marine marine pollution: regional arrangements continental shelf (as understood in geology). The report of the and national legislation’, Uoyds Maritime Commission to the United Nations General Assembly stated that the and Commercial Law Quarterly, February Commission had considered that protection of the resources of the sub1982, pp 104-118. 671nternational Law Commission, Year- marine areas outside territorial seas, the depth of which permitted book, 1956, p 298. exploitation, should be independent of the concept of the continental Vntemational Court of Justice Reports, shelf.‘1 Therefore, the characteristics of the sub-marine areas of the 1969, p 3. %/CONF. 62MIP. lO/Rev. 3, 22 Persian Gulf make no difference as far as the law of the continental shelf September 1980. is concerned. 70tJN Dot A/Conf. 13/l. 58. Third, as regards states practice, Iran and Oman have specifically VVCN. 4/l 7,17 March 1950. TzMadjmu’ch-i Qavanin, /ranian Official followed the legal regime of the continental shelf in their claims over the Gazette. No 1334. DP 79-91. For Enalish sub-marine areas of the high seas of the Gulf. Iran’s act of 19 June 1955, text se6 UNLS, &ional legislation and the continental shelf theory, asserted Iranian rights over the treaties relating to the territorial sea, the following contiwous zone, the continental shelf and continental shelf of Iran.72 The act referred to Iran’s continental shelf cons&vation of ihe living resources of the both in the Persian Gulf - where the existence of a continental shelf in sea. UN, New York, NY, 1971, cm366-367. sense was questionable - and in the Gulf of Oman which Iran finally signed the c&vent&n with some the geological reservations designed to ensure her own undoubtedly contained a continental shelf. The Iranian legislation, interpretation of ‘special circumstances’, ignoring the geological arguments, referred to the continental shelf but has failed to ratify it so far. Also the and confirmed that the Persian termfulut-i qarreh had the same Omani decree of 17 Julv 1972, explicitlv doctrine relies on the definition df the continental meaning as the term ‘continental shelf in English andplateau continental shelf as it is provided in Article 1 of the in French. However, the Iranian delegation to the First United Nations convention. Article 4 of the decree defines on the Law of the Sea in 1958 unsuccessfully argued for the continental shelf of the Sultanate as the Conference seabed and natural resources upon and changing the term ‘continental shelf to some other appropriate term that beneath the seabed adjacent to the coast of would cover such disputed areas as the Gulf under the provisions of the Oman, but outside the territorial sea, to a Geneva Convention on the Continental Shelf ( 1958).73 c:epth of 200 metres or to such greater depth as admit of the exploitation of the Fourth, the seabed and subsoil of the Gulf falls within the legal natural resources. of ‘continental shelf as established under customary law. 73lran’s Ministry of Foreign Affairs, definition Furthermore, the Gulf sub-marine areas also fall within the conventional Archives on the 1958 UNCLOS.

212

MARINE POLICY July 1982

The Iran-Iraq 74The Norwegian Trough, however, does not constitute a true shelf edge, but is merely a deep qorqe in the continental shelf. From the g&l&ical point of view, the underground of the North Sea is part of the continental platform on which the European continent and the British Isles rest. Therefore, the entire bed of the North Sea outside the territorial waters plainly forms a single continental shelf in both the legal and the geological senses. The entire submarine area of the North Sea is now apportioned among the littoral states. Even more significantly, the term ‘continental shelf’ has been used in all offshore delimitation agreements among the coastal states concerned in reference to the submarine areas of the North Sea (for details on the legal regime of the North Sea, see M.M. Sibthorp, ed, The North Sea: Europa Challenge and Opporfunity, Publications, London, 1975, p 85). The Baltic Sea is also a shallow sea, 95% of which has a depth of less than 200 metres. The sub-marine areas of the Baltic Sea are regarded as representing the continental shelf as defined in Article One of the Geneva Convention on the Continental Shelf (1958). Article One of the Declaration of 23 October 1968 issued bv the German Democratic Republic, the Polish People’s Republic and the USSR. declares that the s&face and subsoil oi the Baltic Sea constitutes a continuous continental shelf which is subject to delimitation among the respective Baltic states. The sub-marine areas of the Baltic were accordingly delimitated among the Baltic states by mutual agreements. As early as 1942, the UK and Venezuela divided the sub-marine areas beneath the high seas of the Gulf of Paria between themselves. In all, three reasons have been adduced to justify this partition of the seabed. The first was that the sovereignty of the coastal state extends over the shallow soil and subsoil of sea since these areas are the extension of land territory. Second, in accordance with the theory of terra nullis, effective occupation implies the acquisition of property. Third, the Gulf of Paria is so shallow that its coastal states are justified in claiming it for themselves as national waters including the subsoil underneath subject to the surface rights of third parties. In 1945 the Truman Proclamation justified unilateral extension of the US jurisdiction and control over the continental shelf adjacent to its coasts on three basic grounds. The most important reason was that the ‘continental shelf may be regarded as an extension of the mainland of the coastal nation, and thus naturally appurtentant to it’. This geographical phenomenon was supported by the fact that the continental shelf resources ‘frequently form a seaward extension of a pad or deposit lying within the territory’ of the coastal states. The second reason was that ‘the effectiveness of measures to utilize or conserve these resources would be contingent upon co-operation and continued on page 2 14

MARINE POLICY July 1982

war

definition of the continental shelf as adopted in the Geneva Convention on the Continental Shelf (1958). Article 1 of the convention, omitting the vital criterion of natural prolongation, provides two superficial criteria for the legal concept of the continental shelf - the depth of 200 metres and exploitability. The sub-marine areas of the Gulf enjoy both the criteria adopted by Article 1 of the Convention and the criterion of natural prolongation. Lastly, all similar areas to the sub-marine areas of the Persian Gulf like the North Sea, the Baltic Sea and the Hudson Sea - are considered as continental shelf. The water depth in these seas does not exceed 200 metres except in a few cases such as the Norwegian Trough in the North Sea.74 The Saudi Arabian royal pronouncement of 28 May 1949 dealing with the subsoil and seabed of areas of the Gulf outside territorial waters was basically justified on a concept of contiguity, which was not precisely defined.75 The proclamations of the rulers of Bahrain, Qatar, Kuwait, Abu Dhabi, Dubai, Sharjah, Ajman, Umm al-Qaiwain and Ras alKhaimah were all based upon the same concept of contiguity without further explanation. ‘6 Claims over contiguous territories have a long history in states practice. However, it is doubtful in international law whether territorial acquisition is justified solely on the basis of contiguity. It is argued that contiguity is an aspect of possession, not the basis of title independent of possession.77 Whatever the validity of the doctrine of contiguity as is definitive regards onshore acquisition may be, its enforcement concerning claims to extend continental shelf regions and fishing zones. This was supported by the International Court of Justice’s ruling in the North Sea Continental Shelf Cases. 7a The formulation of the Saudi Arabian pronouncement was similar to the Truman proclamation .79 It was justified on the grounds of selfprotection and because the exercise of jurisdiction over the shelf resources was ‘reasonable and just’. It also went on to affirm that the effectiveness of measures to utilize or conserve these resources would be contingent upon cooperation and protection from the shore. Saudi Arabia, Kuwait and Qatar have also specifically referred to international practice on this issue within their proclamations dealing with the subsoil and seabed of areas of the Persian Gulf outside territorial waters. Saudi Arabia and all nine Arab Emirates avoided the use of the term ‘continental shelf’. This was apparently the result of arguments over the existence or non-existence of a continental shelf in the Gulf. Iran and Oman were the only two Gulf states which specifically referred to the term ‘continental shelf’ in their shelf proclamations. The Iranian draft legislation of 1949, which was finally passed into law on 19 June 1955, was designed to conform to the concept of the ‘continental shelf. While other coastal states of the Persian Gulf avoided the use of the term ‘continental shelf’ in their 1949 proclamations, Iran asserted its rights to the sub-marine areas of the high seas of the Persian Gulf and the Gulf of Oman with particular reference to the English and French terms ‘continental shelf and ‘plateau continental’. It is suggested that the reference to the ‘continental shelf’ in this law might have been relevant to Iran’s previous claim over the Bahrain islands. Thus the legal doctrine of the continental shelf, which justifies the right of coastal states on the basis of natural prolongation, would have been deemed to assert Iran’s claim over sub-marine areas adjacent to Bahrain.

213

The Iran-Iraq

war

The Omani decree of 17 July 1972 was, however, more in line with the local definition of the continental shelf. Article 4 of the decree specifically defined the Sultanate’s continental shelf as the seabed adjacent to the coast of Oman to a depth of 200 metres or to such greater depth as may admit of the exploitation of the natural resources. Oman is the only Gulf state which has adopted an objective criterion such as 200 metres isobath, plus the dynamic criterion of exploitability test, as to the limits of its continental shelf. Oman, though not a party to the Geneva Convention on the Continental Shelf has obviously stuck to the criteria provided by Article 1 of this convention. This is very important, especially as Oman’s continental shelf in the Gulf of Oman and the Arabian Sea is sometimes deeper than 200 metres.*O

Delimitation

continued

from page 2 13

protection from the shore’. Finally, referring to security reasons, the proclamation stated that ‘self-protection compels a coastal nation to keep close watch over activities off its shores’. ‘WN Dot. ST/LE/SER P/l (1951). pp 1330. Vbid. 77R.V. Jennings, The Acquisition of Territory in international Law, Manchester University Press, Manchester, UK, 1963, p 74. Vnternational Court of Justice Reports, 1969, pp 30 and 159. %ee Ref. 74. %.A. al-Awadhi, of Kuwait University, states that by omission of the term ‘continental shelf’ it was not intended to avoid the legal basis of the continental shelf. She argues that this was simply because the Gulf Emirates were in a protectorate relationship with the Great Britain-Venezuela treaty of 1942. This argument, however, breaks down on two points. First. not only the British-protected Gulf States but also-the Kingdom of Saudi Arabia avoided the term ‘continental shelf’. Second, Great Britain has itself referred to the term ‘continental shelf’ both in domestic legislation and in international agreements since 1942. 81League of Nations Series 190, 1938, pp 267-268. 8ZH.M. Albaharna, The Legal Status of rhe Arabian Gulf States, Manchester University Press, Manchester, UK, 1968, ~~292-298.

of the continental shelf

As long as the Iran-Iraq dispute over the Shatt-al-Arab and the Iranianoccupied territory is unsettled, the actual boundary line dividing the continental shelves and the EEZs of the two states will remain undefined. The major disagreement concerns the status of the areas near the mouth of the Shatt-al-Arab. The Iran-Iraq treaty of 24 July 1937, which is still in force, provided that any unsettled dispute should be submitted to the Permanent Court of International Justice, unless such a dispute (a) had arisen prior to the treaty, (b) was by international law reserved to exclusive competence of the parties, or (c) was concerned with the territorial status of one of the parties.s1 The boundary dispute over the continental shelf between Iran and Iraq should, therefore, be submitted to the International Court of Justice.

Outline of the dispute The National Iranian Oil Company (NIOC) announced in April 1963 that two areas of the continental shelf adjacent to the Iranian mainland were open for bidding. This pronouncement met with an Iraqi protest. Iraq, in a process dated 1 May 1963, claimed most of the aforementioned areas as ‘exclusively Iraqi Territorial waters’. The Iranian pronouncement defined the concession areas of the Iran Pan-American Oil Company, together with an additional area of 380 square miles, as Area 1, District 1. This was claimed to constitute an infringement of the Iraqi territorial sea at the head of the Gulf. The protest emphasized that the parties concerned had to ascertain the ownership of these areas before seeking to grant or acquire any oil exploration concession in them.s2 Despite its protest at the Iranian pronouncement, Iraq was not invited to several meetings held by Iran, Saudi Arabia and Kuwait in Copenhagen, London, Teheran and Kuwait regarding the delimitation of the Gulf continental shelf. Iran and Iraq reached an understanding that joint exploration of oil resources located in the disputed offshore areas would be in the interests of both states. The representative of Iraq joined the Iran-Saudi ArabiaKuwait meeting held in Geneva in October 1963 at which all four states agreed to settle their offshore boundary disputes. In November 1963, an Iranian delegation visited Iraq, where it held discussions on offshore boundaries. The two states, it was announced, agreed on a basis for joint exploration of oil in the disputed areas, whereby the interests of both MARINE POLICY July 1982

The Iran-Iraq

war

parties would be observed. No agreement to this effect, however, was ever signed.83 Following an Iran-Kuwait joint communiquC on 13 January 1968, the Iraqi Ministry of Foreign Affairs issued a ‘Statement Concerning the Sovereignty over Iraq’s Rights in the Area, and the Interjacence of her Territorial Waters and Continental Shelf with those of the Neighbouring States’, Iraq maintained her full sovereignty over Iraq’s territorial waters, and the air-space above it, her continental shelf and the subsoil thereof. Iraq also affirmed that all works and installations already undertaken, or which might be undertaken in the said area were subject to Iraqi sovereignty. The communiquC emphasized Iraq’s full adherence to the rules and principles of international law .a4 Arguments

S3in March 1967, following a state visit by President Aref of Iraq to Teheran, it was agreed that the demarcation of the continental shelves of Iran and Iraq would be worked out by a joint committee. Unfortunately, the joint committee made no progress in this area. s4See The North Sea Continental Shelf opinion separate of Judge Cases, Ammoun, International Law Repotts, 41, 1970, p 136. *sFor the text of the arbitration award see Myron Nordquist, S. Houston Law, and Kenneth R. Simmonds, New Directions in the Law of the Sea, Vol VIII, Ocean Publications, London, 1980, p 283. For a legal discussion see M.D. Blecher, ‘Equitable delimitation of continental shelf: the State Immunity Act of the United Kingdom’, American Journal of International Law, Vol73,1979, pp 60-l 84.

MARINE POLICY July 1982

for ‘special circumstances’

It has been suggested that the offshore boundary between Iran and Iraq resembles the North Sea dispute dealt with in 1969 by the International Court of Justice. This comparison is apparently made on the grounds of the length and outline of the Iraqi coast. Like Belgium and the Federal Republic of Germany, Iraq’s continental shelf is narrow. Furthermore, Iraq has a sharply curved irregular coastline. It is obvious that if the median line principle is strictly applied in determining the Iran-IraqKuwait boundary, the continental shelf of Iraq will be very small. It was suggested in the North Sea Continental Shelf Cases that the general configuration and length of the coastline are factors to be taken into account in the course of delimitation. Iraq has a sea coast of only 60 kilometres. Among the Gulf states, Iraq is the most geographically disadvantaged. Bahrain, Qatar, Kuwait and the United Arab Emirates (UAE) are totally shelf-locked. Iran is shelf-locked in the Persian Gulf but has a narrow area of continental shelf in the Gulf of Oman. Least disadvantaged is Saudi Arabia, which has a continental shelf in the Red Sea, a small part of which is deeper than 200 metres. Oman is the only geographically advantaged state in the Gulf region. However, the legal grounds upon which Iraq may claim a larger portion of the continental shelf are not evident. Unlike the Federal Republic of Germany, which argued on equitable grounds against the equidistance principle, Iraq has repeatedly declared her adherence to the equidistance principle. Of particular significance is the Iraqi declaration of 9 April 1958, which automatically considered that the equidistance principle would govern the delimitation of her continental shelf in the absence of an agreement or of special circumstances justifying another boundary.84 There is a possibility that Iraq may argue for more areas of the continental shelf on the ground of the legal equality of states. This legal doctrine, better termed the ‘equal capacity for rights’ doctrine, means that no state has a right to a special position, except after an evaluation of relevant factual data. Iraq may accordingly claim an ‘equal capacity’ for continental shelf rights. Iraq, as already discussed, advanced a similar argument before the League of Nations Council in support of her claim over the Shatt-al-Arab. But such arguments were considered irrelevant by the Court of Arbitration in the Anglo-French Continental Shelf Case (1977).85

Similarly, the ‘socialist’ argument that the legal definition of boundaries should be based on consideration of economics is generally considered of little legal importance as far as continental shelf

The Iran-Iraq

war

delimitation is concerned. Economic considerations are relevant to the demarcation of fishing zones only when they are established by long usage. This is not the case in continental shelf delimitation, since continental shelf rights are based on the principle of natural prolongation of land territory. Such extrajudicial arguments as economic considerations are accepted as moral pronouncements, but not as legally significant. Finally, Iraq may argue for a larger share of the Gulfs continental shelf on security grounds. In the Anglo-French Cases, claims by both the Great Britain and French concerning their security, defence and navigational interests were considered relevant by the Court of Arbitration. The Court, however, stated that in the case of the Channel Islands, security interests should not have a decisive influence on continental shelf delimitation. The reasons given were twofold. First, the British and French claims concerning security interests counter-balanced each other. Second, the English Channel was a major route of international maritime navigation, serving ports outside the territories of both parties. Furthermore, the Court stated that security and defence interests may support and strengthen but they cannot negate any conclusions that are already indicated by the geographical, political and legal circumstances of the region. Delimitation

on equidistance

basis

The conclusion drawn by the International Court of Justice in the North Shelf Cases, as well as the provisions adopted in the Draft Convention, confirm the principle of natural prolongation as the basis of continental shelf entitlement. In accordance with this basic concept, as the International Court of Justice concluded, the process of delimitation of continental shelves is essentially one of drawing a boundary line between areas which already appertain to one or other of the states affected.s6 That is to say, by virtue of the principle of natural prolongation there is no undivided sub-marine area between Iran and Iraq to be shared out. To draw a continental shelf boundary line does not mean to award an equitable share to adjacent states, but merely to identify the boundary line between areas which already appertain to either Iran or Iraq. The established principle of natural prolongation requires that the continental shelf of any state must be the prolongation of its own land territory and must not encroach upon what is natural prolongation of the territory of another state.87 Iraq has declared her adherence to the ‘equidistance principle’. Iran also, in principle, favours a strict application of the equidistant line for determining her offshore boundaries with Iraq. However, the Court of Arbitration in the Anglo-French Continental Shelf Case did not accept that there was a presumption in favour of the ‘equidistance principle’, to be rebutted by a state desirous of proving the existence of ‘special circumstances’. The role of the ‘special circumstances’ clause in conjunction with ‘equidistance principle’ is to express a general norm that the determination should be determined on equitable principles.** It was held in the Anglo-French Continental Shelf Case where the parties were on the same continental shelf, the ‘special circumstances’ should be used for the purpose of mitigating the inequity that would be produced if a line of strict equidistance was used. Most importantly, the court decided that equity required that the Channel Islands should be

Sea Continental

S61nternationalCourt of Justice Reports, 1969, Paragraph 20. 871bid, p 47. s8Nordquist et a/, op tit, Fief 65.

216

MARINE POLICY July 1982

The Iran-Iraq war

accorded a limited continental shelf (only 12 miles); so that France could have continental shelf rights beyond them to mid-Channel.8g UNCLOS

III Draft Convention

Under Article 83 of the August 1980 UNCLOS Draft Convention the significance of median or equidistance has been reduced as far as the delimitation of continental shelf between opposite or adjacent states is concerned. The Anglo-French Case rejects any assumption in favour of the rule. This will be also supported if the wording of the 1980 version of the Draft Convention is compared with the wording of the previous versions. The prescribed delimitation rule in the 1977 ICNT version is ‘agreement in accordance with equitable principles, employing, where appropriate the median line, and taking account of all the relevant circumstances’. By contrast the 1980 version provides that the delimitation should be affected by ‘agreement in conformity with international law’. The emphasis is clearly on general principles of international law deliberately making no reference to any specific method of delimitation in the first place. In addition, unlike the 1977 version, the 1980 text does not refer to Article 83(l) at all. It is in fact only an elaboration that Article 83(l) further mentions that delimitation agreements shall be ‘in accordance with equitable principles, employing the median line, where appropriate, and taking account of all circumstances. . .‘. It is however, difficult to ascertain what significance or emphasis should be given to the replacement of the phrase ‘where appropriate’. Three issues seem important in the present version of the Draft Convention: (a) the significance of the equidistance principle is played down; (b) the ‘relevant circumstances’ are now better defined as ‘all circumstances prevailing in the area concerned’; and (c) contrary to the previous versions, provisional agreements recommended in Article 83(3) for a transitional period pending agreement on delimitation are not necessary to conform with any of the legal principles prescribed by Article 83.

Conclusion

Vbid.

MARINE POLICY July 1982

Under the principles of international law both Iran and Iraq are obliged to refrain from the use of force and settle their disputes by peaceful settlements. Since the demarcation of land and offshore boundaries is ostensibly the main cause of conflict, the two states should resort to the Algiers treaty of 1975. This treaty applies the thalweg rule for the boundary line in the Shatt-al-Arab and defines the land boundaries between Iran and Iraq in conformity with previous treaties. If Iran and Iraq settle their dispute over the Shatt-al-Arab and the occupied Iranian territory, it is hoped that they will be more amenable to defining their offshore boundary in the Gulf by mutual agreement. Both the conventional and customary rules of international law requires states to enter meaningful negotiations aimed at mutual agreement as regards any dispute over their boundaries. In the absence of agreement, and against a background of armed conflict, Iran and Iraq are obliged under the provisions of the 1937 treaty on ‘Peaceful Settlement of Disputes’ to submit their dispute to the International Court of Justice. It seems that the navigational, economic and security interests of Iraq may justify a modification of, but not a departure from, the application of the equidistance principle in delimiting the Iran-Iraq marine and fisheries’

217

The Iran-Iraq war

boundaries. overriding beyond its diplomacy that based arbitration

218

However, geographical and geological dimensions being the factors, Iraq may not be allocated any continental shelf area very limited adjacent continental shelf. It may well be that and negotiation will bring a much more satisfactory result than purely on legal grounds as decided by international judicial or courts.

MARINE POLICY July 1982