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Is the Complaint Filed with UN against Iran by Kuwait and Saudi Arabia Valid?

Monday, August 1, 2016

Ali Omidi
Associate Professor of International Relations & Professor of International Law;
University of Isfahan, Iran

Kuwait’s official news agency, KUNA, reported on July 27, 2016 that Saudi Arabia and Kuwait have filed a lawsuit with the United Nations against Iran in which they have accused the Islamic Republic of “marine transgressions” against the two countries’ marine zones. The complaint has been sent to the office of the UN Secretary General Ban Ki-moon on Tuesday, July 26.

The text of the complaint says that Iran has used its military boats in frequent cases of transgression into the Divided Submerged Area between Saudi Arabia and Kuwait. The two countries have noted in their complaint that “the last incident of these infringements was committed by one vessel and two armed speedboats displaying the Iranian flag. Each boat had three armed individuals on board, as this infringement took place at 13:35 on Wednesday, 20 April 2016, while another infringement of an Iranian Hendijan 1401 vessel took place at 07:32 on Thursday, 21 April 2016.” The text also reads that “these two vessels and two boats approached the al-Dorra well No. 3 (D3) in the al-Dorra field.”

The complaint, however, has not specified if “al-Dorra” field refers to the Arash gas field, which is also claimed by Iran, or the al-Dorra oil field, which is situated in Kuwait’s waters, because in their official maps, Kuwaiti officials introduce Arash gas field as al-Dorra. While expressing their deep dissatisfaction over this issue, both Saudi Arabia and Kuwait have called for a halt to what they described as Iran's “transgressions,” followed by negotiations to determine their maritime borders with Iran. The complaining countries have also noted that the governments of “Saudi Arabia and Kuwait did not receive any response from the government of the Islamic Republic of Iran despite their repeated call for negotiations to determine these borders.” The Islamic Republic of Iran has so far shown no reaction to this complaint.

Negotiations between Iran and Kuwait to determine the two countries’ maritime border dates back to the early 1960s, that is, when the National Iranian Oil Company released a statement about offshore oil discoveries in the Persian Gulf. While objecting to the statement, the government of Kuwait claimed that Iran's actions amounted to violation of its territorial and offshore sovereignty. In other words, Kuwaiti officials believed that the region agreed on by the government of Kuwait and the Shell company on January 15, 1961, overlapped with the region agreed on by the National Iranian Oil Company and the Iran-Italian Petroleum Company (SIRIP). This issue provided grounds for negotiations between the two sides on issues related to their maritime and offshore borders. Practical steps were then taken in a meeting between the two sides’ representatives, but these negotiations have so far (up to 2016) failed to bear fruit due to a host of political and legal factors.

Kuwait has protested to the baseline determined by Iran and, in general, to the Act on the Marine Areas of Iran in the Persian Gulf and the Oman Sea (1993). On August 29, 1996, Kuwait’s representative at the United Nations circulated a letter in which he protested to totality of Iran's marine act without pointing out specific articles. In his letter, the Kuwaiti diplomat had written that Iran's marine areas act was in violation of the principles of international law of the sea, especially the 1982 UN Convention on the Law of the Sea. The baseline set by Iran was among issues to which they objected while the baseline had been approved by the Iranian cabinet on July 21, 1973, and in spite of the fact that it had been published internationally, no objection had been raised to it at the time of its release.

Another issue, which was taken into account by both countries when determining their baseline, was the role and impact of the two sides’ islands, including the Kharg island on Iran's side and Failaka or Qurain islands on the side of Kuwait. At first, Kuwaiti officials insisted that the two countries’ islands should play a role in setting the baseline with the Iranian side accepting the full effect of the Kharg island and Fasht ol Mova ebb tide prominence on Iran's side, and Failaka islands and ebb tide prominence of Ra's al Yahi on Kuwait’s side as the main points for determining the baseline. However, later on, the Kuwaiti side changed its mind. If the two countries accept each other’s baseline – with Iran’s baseline crossing the Kharg island and Fasht ol Mova ebb tide prominence while Kuwait’s baseline crossing Failaka islands and ebb tide prominence of Ra's al Yahi – in that case, the beginning of the two countries’ border would approximately fall close to the marine border line between Kuwait and Saudi Arabia in the Divided Zone (previously Neutral Zone) from 28 41 49 northern latitude and 48 41 18 eastern longitude to 28 56 06 northern latitude and 49 26 42 eastern longitude. Also in that case, Arash (al-Dorra) gas field would certainly fall within Iran’s sovereign territory.

Therefore, due to the following reasons, the complaint lodged against Iran by Kuwait and Saudi Arabia cannot be sustained.

Firstly, marine borders of Iran, Kuwait and Saudi Arabia in the former Neutral Zone have not been determined in an official way that would satisfy all the three countries, as a result of which there is no way to make claims about Iran’s transgression into marine borders of the other two countries. By the way, if the main target of the complaint by Kuwait and Saudi Arabia is the Arash gas field, this issue has basically nothing to do with Saudi Arabia.

Secondly, according to articles 6 and 7 of the 1982 UN Convention on the Law of the Sea, taking into account islands and indented coastlines when determining the baseline has been considered as an inalienable right of coastal countries while Kuwait and Saudi Arabia expect Iran to give up this right or draw its baseline according to their demand in a way that it would not include the Arash gas field. However, geometrical lines cannot be arbitrarily modified.

Thirdly, even assuming that the impossible claim raised by Kuwait and Saudi Arabia about their ownership of the Arash gas field is correct, this area would certainly fall among exclusive economic zones, and according to Article 54 of the 1982 UN Convention on the Law of the Sea, other countries have the right to free shipping, flying over this zone, conducting military drills, and construction of military facilities in addition to running undersea cables and oil pipelines through this zone. At the same time, ships belonging or run by third states can freely cross that zone and Iranian ships are no exception to this general rule. On the other hand, if the complaint lodged by Kuwait and Saudi Arabia is aimed at al-Dorra oil field, this region is not located within the limits of their territorial waters.

Fourthly, Iran has not approved the 1982 UN Convention on the Law of the Sea so far, as a result of which, it cannot be used as a legal document against the Islamic Republic. Of course, even the contents of the convention make no ground to justify anti-Iran allegations raised by Kuwait and Saudi Arabia.

Fifthly, in order to prove its marine claims, Iran has no choice, but to take symbolic political and practical measures, and sending military boats into the marine zone disputed by Iran is an example of those measures.

Key WordsComplaint, File, UN, Iran, Kuwait, Saudi Arabia, Marine Transgressions, Military Boats, Al-Dorra Field, Divided Submerged Area, Arash Gas Field, Persian Gulf, Oman Sea, Kharg Island, Failaka and Qurain Islands, Neutral Zone, UN Convention, Law of Sea, Omidi

More By Ali Omidi:

*What Options Tehran Has in the Face of US Seizure of $2bn of Iranian Bonds?: http://www.iranreview.org/content/Documents/What-Options-Tehran-Has-in-the-Face-of-US-Seizure-of-2bn-of-Iranian-Bonds-.htm

*What if Obama Fails to Veto Congress Rejection of JCPOA?: http://www.iranreview.org/content/Documents/What-if-Obama-Fails-to-Veto-Congress-Rejection-of-JCPOA-.htm

*Iran-US Relations Following Nuclear Deal: Thermidor or Normal: http://www.iranreview.org/content/Documents/Iran-US-Relations-Following-Nuclear-Deal-Thermidor-or-Normal.htm

*Photo Credit: Press TV, IranOilGas Network

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