Hands off the tonban, please
A compromise over the disputed Persian Gulf islands?
By Guive Mirfendereski
January 10, 1998
It was rumored at the end of December that Iran and the United Arab Emirates were about to embark on talks on the status of the Persian Gulf islands of Little Tonb, Great Tonb, and Abu Musa. In early January, there were reports in the Arab press that Iran may compromise and offer up Little Tonb to the UAE.
The Arab governments have urged the islands issue be referred to the International Court of Justice; Iran has maintained that the issue ought to be resolved by negotiations. Of the various forms of dispute resolution mechanisms in international relations, bilateral negotiation offers the parties maximum control over the process and content. Third party methods, such as mediation, arbitration, and adjudication simply place the disposition of one's claim in the hands of a party who may be influenced by factors such as its own interest in the outcome of the case, its own reading of the history, its national sentiment, or and politically expedient consideration.
The international court's decisions are supposed to be binding on the parties to the dispute; the court itself cannot enforce the decision. That is the job of the U.N. Security Council. It is conceivable, however, for example, in the case of Iran, one of its friends veto any resolution which intended to enforce the court's unfavorable judgment. These friends include Russia, which has island disputes of its own with Japan, and China with island disputes of its own, and France, which traditionally has recognized Iran's claim to the Tonbs and Abu Musa. However, from a public relations point of view alone, it would be next to impossible to buck an unfavorable ruling by the court, lest one be branded as an outlaw country.
The rumored surrender of Little Tonb to the UAE (Ras al-Khaimah) presumably would not because of the UAE having a superior legal claim to the island. The giveaway would be touted as "island for peace." Amorphous promises of peace, brotherly relations, and security offer no valuable consideration whatsoever. Historically, a territorial form of appeasement eventually leads to bolder claims by the other side, especially where the disputed territories such as these islands share the same geographical, ethnic and legal histories. The logic that underwrites one concession is often the bedrock of another claim, serving also as precedent.
The placing of any of the Tonbs in the hands of the UAE (Ras al-Khaimah) would not at all be in the strategic interests of Iran. Consider the stationing of U.S. or Iraqi installation on any island that oversees the sea lanes of communication extending south and north of the Tonbs. Lest be forgotten, the UAE is an ally of the U.S. and, prior to the Persian Gulf War, Ras al-Khaimah had been Iraq's only viable ally among the emirates, a relationship which was and continues to be inspired by their mutually shared enmity for Iran.
Once territory is given up, it is very unlikely that Iran could get it back or have it returned, even if the other side is in inexcusable violation of their side of the agreement. The legal and political, and military difficulties that Iran would encounter then would be formidable. Can any government in Iran survive a "Cuba Syndrome?" Should the Iranian military experts be looking into a "Bay of Snakes" contingency plan to remove the threat or adverse foreign presence on Little Tonb?
One hopes that the rumor about giving up Little Tonb is just that, a rumor, a baseless one at that. However, if there are any negotiations planned or going on, one may conceive of an overall Iran-UAE agreement along the following interrelated points as an integrated and wholesome package deal:
IRAN WITHDRAWS CLAIM TO ABU MUSA
Within the framework of the 1971 Iran-Sharjah Memorandum of Understanding, Iran and the UAE (Sharjah) shall amend article 1 of the Memorandum whereby (a) Iran withdraws its claim to Abu Musa, (b) Iran recognizes UAE sovereignty over Abu Musa, and (c) Iran and UAE reaffirm the validity of all the other provisions of the Memorandum. This preserves the working relations between Iran and UAE as to the island, respects the Memorandum as a binding international instrument, and provides for UAE sovereignty over the island, a definite political gain.
NO THIRD PARTY MILITARY PRESENCE ON ABU MUSA
The UAE and Iran shall agree that the security of the island shall be the joint responsibility of the two countries. Further, no third party military troops, installations or visits shall be permitted to the island and its territorial waters without the prior mutual consent of Iran and UAE (Sharjah).
UAE RECOGNIZES IRANIAN SOVEREIGNTY OVER TONBS
The UAE (Ras al-Khaimah) shall recognize unconditionally Iran's sovereignty over Little Tonb and Great Tonb.
SHARING OF OIL REVENUES FROM TONBS
In the event of development of oil or gas resources on or near the Tonbs by Iran, Iran and the UAE shall share the proceeds thereof on the basis of an agreed upon formula. The decision to explore, exploit, develop, or produce Tonbs' resources shall be at the unconditional and complete discretion of Iran.
THE TONBS AND IRAN-UAE CONTINENTAL SHELF BOUNDARY
The UAE will agree that the Tonbs shall be given the same legal effect as was given to Khark Island in the 1969 Iran-Saudi continental shelf agreement. This means that Iran's baseline from which the shelf boundary will be measured shall begin at a midpoint between the Iranian coast and the Tonbs.
SIRRI & ABU MUSA: IRAN-UAE CONTINENTAL SHELF BOUNDARY
Because Sirri and Abu Musa islands are located practically in the middle of the Persian Gulf, it would make sense for the parties to agree also that, in connection with the delimitation of the shelf boundary between Iran and UAE, these islands be given the same legal effect as the islands of Farsi and Arabi in the 1969 Iran-Saudi continental shelf agreement. While in international law, islands are entitled to their own share of the continental shelf, in this case it would be a cleaner exercise if neither Abu Musa (UAE) nor Sirri (Iran) were accorded continental shelf allotments; instead their territorial seas should be extended to 24 nautical miles, with the continental shelf boundary adjusted to accommodate these extensions.
FREEDOM OF NAVIGATION
Iran and the UAE shall agree that neither party shall interfere with or impede passage of the other's ships to destinations under the latter's jurisdiction, such as Iranian vessels bound for Sirri and parts of Abu Musa through UAE's epicontinental waters and, where applicable, airspace.
With respect to oil, gas, or other offshore mineral resource which is located at on both sides of the continental shelf or territorial sea boundaries, the parties shall agree not to exploit said resource in a manner harmful to the geological integrity of said resource, including directional drilling. The parties shall unitize their efforts at exploitation and production of said resource on the basis of relevant financial and geographical considerations.
BIND UAE EMIRATES AND SUCCESSORS
Unlike Iran, the UAE is a complicated political entity. While the presidency of the UAE speaks for the whole union, the constituent emirates of Sharjah and Ras al-Khaimah have their own ideas about Abu Musa and the Tonbs, respectively. An Iran-UAE islands agreement, if any, must receive the written and unconditional assent of each of the individual UAE emirates to the agreement.
THIRD PARTY GUARANTEES
The Gulf Cooperation Council and the United Nations must guarantee any Iran- UAE islands agreement. This is desired to minimize the recurrence of irredentist claims on the islands by one side or the other, and discourage the parties from breaching its provisions. Iran's own experience in the Persian Gulf shows that negotiations hardly ever lead to permanent solutions. One case in point is the much trumpeted accord reached between Iran and Iraq in 1975 after decades of bickering. Another case is the 1971 Iran-Sharjah Memorandum of Understanding over Abu Musa. At the time, the understanding had the blessing of the then ruler of Sharjah, whose deputy himself was on hand to welcome the Iranian troops on the island on November 30, 1971. Later, however, a relative, assisted allegedly by Iraq and Ras al-Khaimah, assassinated the sheikh of Sharjah because among other things he had "sold out" to Iran.
About the author
Guive Mirfendereski (Guive@aol.com) is an international legal consultant, business lawyer, and Persian Gulf specialist. In 1992-94 he served as legal consultant to the World Bank's private sector development program in Rwanda and also as legal advisor to the government of Sierra Leone in privatization and legal reform projects. In 1988-1991, he served as a corporate lawyer at the firm of Gaston & Snow in Boston. His professorial appointments have included adjunct professor of international law at Tufts University's Fletcher School of Law and Diplomacy (1994-1996) and at Brandeis University's Graduate School of International Economics & Finance (1995-present). A cum laude graduate of Georgetown University, he holds a J.D. from Boston College Law School, and a Ph.D., M.A.L.D. and M.A. from The Fletcher School. Among his recent writings are "The Ownership of the Tonb Islands: A Legal Analysis," in H. Amirahmadi, ed., Small Islands, Big Politics (St. Martin's Press, 1996) and "The Toponymy of the Tonb Islands," in Iranian Studies (1996). His 1985 doctoral dissertation, entitled "The Tamb Islands Controversy, 1887-1971: A Case Study in Claims to Territory in International Law" was the first of its kind and survives as a seminal reference work on the legal history of the Tonbs. (Back to article)