Introduction

Introduction This book is about the three Gulf1 islands of Abu Musa, Greater Tunb and Lesser Tunb, and the public international law aspects of the dispute between the Is- lamic Republic of Iran and the United Arab Emirates over whose claim of sovereignty to the islands is superior. Although the controversy over ownership of the three islands has often been framed by the disputing parties, as well as some analysts and commentators, as if the historical and legal considerations relevant to resolving the claims over one of the islands are equally applicable to the other two, this is not entirely accurate. In particular, the history of Abu Musa, and the features of that history, including possession, assertions of ownership and acts of administration taken with respect to the island which are relevant to assessing the claims of title asserted by the two parties, differ in certain significant ways from the relevant history of the two Tunbs islands. These distinctions are most evident in the period prior to the late nineteenth century, when it first became clear that ownership of all three islands was contested, but they also sporadically appeared thereafter. These differences will be noted where relevant and taken into account in analyzing the respective claims by the parties in the chapters which follow. Other than the historical differences which preceded the outbreak of the dispute over title to Abu Musa, as compared to the Tunbs, another distinguish- ing factor in analyzing the rights of the parties over that island as compared to the Tunbs is that, during a moment of particular tension in the dispute in November 1971, the parties entered into an agreement, designated a “Memo- randum of Understanding” (mou), setting out certain jurisdictional and other rights allocated to each of them on and in relation to the island of Abu Musa. Through the mou, Iranian forces were allowed to occupy positions on the island, thus sharing de facto control and possession of the island with the Emiratis who had until then held sole possession under the protection of the British government. In line with Iran’s arguments, asserted over a period of around eighty years prior to that time, to the effect that Abu Musa (and the Tunbs) were its sovereign territory, the landing of Iranian forces was a circum- stance the Shah of Iran made clear he was prepared to achieve with or without an agreement. Although by pragmatic design it did not address or resolve the matter of sovereignty over the island (the document states that neither party 1 Alternatively called the Persian Gulf or the Arabian Gulf by the States located on its littoral. As discussed above, this book shall refer to that body of water as simply the “Gulf”. © koninklijke brill nv, leiden, ��8 | doi �0.��63/9789004�36�96_00� <UN> 2 Introduction would “give up its claim to Abu Musa or recognize the other’s claim”2), this document, entered into through the British government acting as intermedi- ary, and its status under international law, by necessity affects the legal analysis over each side’s sovereign territorial claims to that island. This is in contrast to the two Tunbs, where no such agreement was ever signed and need not, therefore, be taken into consideration. In the absence of agreement, however, Iran made good its threat and seized those two islands by force on the same day that its military had arrived on Abu Musa under the mou. The Iranian action taken on the Tunbs marks another significant dis- tinction in the legal and historical background of the dispute over those two islands as compared to Abu Musa. Even as between the Greater and Lesser Tunbs, there are certain historical differences which, albeit not as pronounced as the differences between those two islands (collectively) and Abu Musa, must be taken into account in evalu- ating the claims of ownership asserted over each of them. Most prominent among these differences is that the Lesser Tunb was never permanently inhab- ited or put to any significant or recorded use by any party prior to the dispute arising in the late nineteenth century (nor apparently thereafter), while there is evidence that the Greater Tunb was used on a seasonal basis by coastal communities from at least the seventeenth century, and that beginning around the mid to the late nineteenth century a very few number of people may have considered the island to be their permanent home. Taken as a whole, the territorial dispute over the three small and incon- spicuous islands, which are all located close to the Strait of Hormuz, has been largely ignored by the international community for many years and, as compared to certain other unresolved disputes over sovereignty to islands, such as the South China Sea islands, the Senkaku/Diaoyu islands or the Falklands/ Malvinas islands, has not, in recent decades, often generated comments of particular concern from political sources or appeared in the press as a point of international confrontation outside of government officials and publications of the countries directly (or indirectly, such as other countries of the Gulf littoral) involved in the dispute itself. This relative lack of political or media attention in recent years, however, is in contrast to the long, acrimonious and occasionally violent nature of the dispute, and the historical interest or involvement in its origin and evolution by powers and States other than the two sovereign contenders. This has made the conflict during the course of its 2 The text of the mou and related documents is reproduced in Patricia L. Toye, ed., The Lower Gulf Islands: Abu Musa And The Tunbs Dispute (Slough, England: Archive Editions, 1993), Vol. 6, 488–504. For a full discussion of the mou and its legal implications, see chapter 9. <UN>.

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