Foreign Policy magazine has a blog which has just published an article calling me a “gadfly” and saying I am “missing the point”. The point being a highly contentious statement by former Bahraini government legal adviser Kaiyan Kaikobad that the maritime boundary drawn by the UK MOD has become part of international law by usage.
Actually, I hadn’t missed this point at all. Kaikobad’s view is quoted in the LA Times, and I spent rather a lot of time explaining to the journalist writing the artcle what was wrong with his argument. Whether the LA Times carried any of my points I do not know.
The Foreign Policy blog article follows, with the rejoinder I have sent them:
Obviously, the seizure of 15 British marines and sailors and the Iranians’ use of them as pawns in a propaganda game is a deadly serious business. Yet there’s also plenty of farce amid the danger:
The Iranians also blundered in diplomatic talks by giving the British their own compass reference for the place where they said the 14 men and one woman had been seized. When Britain plotted these on a map and pointed out that the spot was in Iraq’s maritime area, the Iranians came up with a new set of coordinates, putting the seizure in their own waters.
Whoops. Turns out, though, that the border issue isn’t as black and white as either side claims. King’s College of London’s Richard Schofield, an expert on the Iran-Iraq border, explained in a telephone interview that although “basically, there is a boundary” nowadays along the Shatt al-Arab, that’s not the case further out in the Persian Gulf where the British sailors and marines were taken prisoner. Below is the map presented by the UK Ministry of Defense (MoD):
That’s what lends the claims of gadfly Craig Murray, former British ambassador to Uzbekistan, a whiff of plausibility. Murray, who also headed the Maritime Section of the Foreign and Commonwealth Office from 1989 to 1992, writes on his website that “there is no agreed maritime boundary between Iraq and Iran in the Persian Gulf,” a milder version of his earlier argument that the boundary used by the MoD “is a fake with no legal force.”
Murray is missing the point. True, as Schofield says, “the boundary that [the MoD] showed further south was a little disingenuous, because it doesn’t have the same legal force or weighting, by any means, as the Iran-Iraq boundary.” Explains Schofield, “It’s more just a provisional indication of what Iraq’s territorial water claims might be.” But what’s good for the goose is good for the gander; if there’s no clear border, then Iran doesn’t have a case, either. And as Kaiyan Kaikobad, an associate professor of international law at Durham University, observes in the LA Times, “If you can show that over a reasonably long period of time, that this was the line that both countries actually agreed on, there’s lots of rules in international law that allow that line to become not only a de facto line, but a de jure line.” So the MoD could be right after all.
Rather than seizing the opportunity to chalk the whole thing up to a misunderstanding about maritime law, though, the Iranians keep digging themselves into a deeper diplomatic hole, and the British are happy to hand them the shovel. It’s clear from the Iranian actions that this isn’t really about territorial waters, in any case. After all, the Iranians could have politely notified the British Navy that their boat was in the wrong spot, and the two sides could have worked it out like gentlemen. Instead, we get an absurd hostage situation and a diplomatic crisis. So what’s it about? http://blog.foreignpolicy.com/node/4230
I have replied:
I am rather unable to understand why you should be so gratuitously rude about me in your blog, first calling me a “gadfly”, then saying that I am “missing the point”.
Firstly, I am not missing the point at all – that neither Britan, Iraq nor Iran has a plain case is precisely my point. You give the impression that I support Iranian claims and actions, which I most certainly do not.
Secondly, I am unsure why you should choose to take the view that Kaiiyan Kaikobad’s view is more valid than the practically identical views of Richard Schofield and I
There are major problems with Kaikobad’s view that state practice can result in a de jure as well as a de facto line.
Firstly, there are no judgements that enshrine that view in the area of maritime boundaries since the UN Convention on the Law of the Sea entered into force.
Secondly UNCLOS provides that, in the absence of an agreed boundary, neither side should attempt to enforce territorial water claims beyond a median line. It is very plain that this is for the purpose of conflict avoidance, and does not prejudice either state’s rights in the eventual resolution of the boundary dispute.
So Kaikobad’s view that working accommodation does bring de jure permanent solution is incompatible with UNCLOS, which is becoming generally accepted as enshrining customary international law in this area.
Thirdly, the wisdom of UNCLOS in this regard is demonstrated if you consider the ramifications of Kaikobad’s view. If going along with a working arrangement would lead to its acceptance as de jure, then the only way a state could maintain a quite legitimate claim would be by the exercise of force to show it did not go along. Kaikobad’s view is a recipe for conflict. If you think about it logically, if Kaikobad’s view were true, then the Iranians would have to initiate some sort of military action or lose their claim. Is that desirable?
Kaikobad is an interesting man of strong views, but not an entirely definitive authority.
Look, it is a free country and you are perfectly entitled to publish about me what you like. But to disagree with a point is not to miss it, and I hope this convinces you that was an unfair characterisation.