We really do seem to have turned the media tide on this one. The maritime law experts now feel it is safe to pop out of the woodwork and make plain there is no clear boundary, and the politicos are waking up to the fact that the disputed boundary gives you the diplomatic solution.

From Reuters today:

By Luke Baker

Tue Apr 3, 10:10 AM ET

LONDON (Reuters) – Shifting sands and a poorly defined maritime border could give Britain and Iran enough room to save face in their 12-day stand-off over a group of detained British sailors and marines, border experts say.

Because the maritime boundaries off the Shatt al-Arab waterway, drawn up in 1975 but not updated since, are open to a certain degree of interpretation, Britain and Iran could “agree to disagree” over exactly who crossed into whose territory.

British Prime Minister Tony Blair said on Tuesday the next 48 hours could prove critical as both the British and Iranian governments have sought to moderate their positions after several days of heightened tension.

“It’s certainly not an irresolvable dispute,” said Martin Pratt, the director of the International Boundaries Research Unit at Britain’s Durham University.

“The fact that the coastline is constantly shifting means more issues would need to be taken into consideration than if the coastlines were more stable and there was agreement on exactly where the baselines along the coast were.”

Both the Iranian and British governments appear to have softened their stances in the past 24 hours, with each highlighting their desire to reach a negotiated solution.

Pratt said that suggested both realized they couldn’t afford to be too insistent about an issue that comes down to who says where exactly an incident occurred on a disputed boundary.

“You can’t be dogmatic about a maritime boundary that hasn’t been properly agreed,” he said.

Maritime lawyers said they expected British and Iranian officials to be able to sort out the wording of any agreement themselves, without turning to an outside arbiter such as the United Nations, which has handled maritime disputes in the past.

On Monday, Ali Larijani, the secretary of Iran’s Supreme National Security Council, called for a “delegation” to determine whether the British sailors were in Iran or not, but didn’t define what sort of delegation.

“I think there’s plenty of scope in the uncertainty of the situation to be able to craft some kind of solution,” said Richard Harvey, the head of admiralty and casualty practice at law firm Reed, Smith, Richards, Butler.

“It strikes me that a) there is a lot of scope for disagreement and therefore b) quite a lot of scope for agreement.”

Ends

I know from my FCO moles that we are now adopting this line in the diplomacy. As long as they can stop Blair saying anything else stupid for a couple of days, I do think we can hope to see the captives home before too long.

It is amazing that it is only four days since I was denounced quite widely as a “Traitor” and “Scum” (and several still worse things – see the Harry’s Place blog. Or don’t – its nauseating) for saying what now everyone is coming to accept as the truth. There is no clear boundary in these waters. We were stupid to pretend, for propaganda and spin, that there is.

It appears that the British navy may have issued two conflicting sets of coordinates for the location of the Iranian-British maritime incident. LFCM have submitted a Freedom of Information query to try and get to the bottom of it.

Go here to read more

Translated from the German:

In today’s printed version of the Sueddeutsche Zeitung, Prof Khan of the University for the Federal Armed Forces in Munich confirms Craig Murrays statement:

“In their presentation, the British have effectively drawn a fictitious line in their attempt to prove where exactly the soldiers were when taken captive instead of showing a clear border. They couldn’t have done the latter in any case as the border between Iran and Iraq around Shatt el-Arab is not clearly identifiable.”

Firstly, many thanks to the Mail on Sunday for being the first bit of the mainstream media ready to give a fair hearing to what I have been saying, and to try and understand the situation rather than just belt out propaganda.

At a working level, Whitehall is trying to get reality back into the British position, though this may get stomped on again by the spin doctors. One of my many friends within the FCO has seen minutes between officials discussing “Craig Murray’s points” on the border question and whether admitting the border is unclear could be a path to getting our people back (Freedom of Information request for that minuting, anyone?).

The Observer today gives the first hint that the MOD may be looking to backtrack on its unsustainable border claims:

“But the Ministry of Defence hinted for the first time it may have made mistakes surrounding the incident. An inquiry has been commissioned to explore ‘navigational’ issues around the kidnapping and aspects of maritime law.”

Iran snubs UK olive branch

Terry Jones makes the legitimate point that we should look at the mote in our own eye. Nor can we just point at the Americans. Baha Musa was undoubtedly no terrorist; yet this father was also undoubtedly beaten to death by Briitish soldiers when in British detention in Iraq. Nobody was convicted. He was by no means the only one.

Two wrongs do not make a right; nor was that the fault of any of those held captive in Iran. I pray that the Iranians treat them very well indeed – even better let them go immediately.

But the truth is that, thanks to Blair and Bush, we have no right any more to lecture any other country on universal rights and treatment of captives.

No hoods. No electric shocks. No beatings. These Iranians clearly are a very uncivilised bunch

Terry Jones

Saturday March 31, 2007

The Guardian

I share the outrage expressed in the British press over the treatment of our naval personnel accused by Iran of illegally entering their waters. It is a disgrace. We would never dream of treating captives like this – allowing them to smoke cigarettes, for example, even though it has been proven that smoking kills. And as for compelling poor servicewoman Faye Turney to wear a black headscarf, and then allowing the picture to be posted around the world – have the Iranians no concept of civilised behaviour? For God’s sake, what’s wrong with putting a bag over her head? That’s what we do with the Muslims we capture: we put bags over their heads, so it’s hard to breathe. Then it’s perfectly acceptable to take photographs of them and circulate them to the press because the captives can’t be recognised and humiliated in the way these unfortunate British service people are.

It is also unacceptable that these British captives should be made to talk on television and say things that they may regret later. If the Iranians put duct tape over their mouths, like we do to our captives, they wouldn’t be able to talk at all. Of course they’d probably find it even harder to breathe – especially with a bag over their head – but at least they wouldn’t be humiliated.

And what’s all this about allowing the captives to write letters home saying they are all right? It’s time the Iranians fell into line with the rest of the civilised world: they should allow their captives the privacy of solitary confinement. That’s one of the many privileges the US grants to its captives in Guant’namo Bay.

The true mark of a civilised country is that it doesn’t rush into charging people whom it has arbitrarily arrested in places it’s just invaded. The inmates of Guant’namo, for example, have been enjoying all the privacy they want for almost five years, and the first inmate has only just been charged. What a contrast to the disgraceful Iranian rush to parade their captives before the cameras!

What’s more, it is clear that the Iranians are not giving their British prisoners any decent physical exercise. The US military make sure that their Iraqi captives enjoy PT. This takes the form of exciting “stress positions”, which the captives are expected to hold for hours on end so as to improve their stomach and calf muscles. A common exercise is where they are made to stand on the balls of their feet and then squat so that their thighs are parallel to the ground. This creates intense pain and, finally, muscle failure. It’s all good healthy fun and has the bonus that the captives will confess to anything to get out of it.

And this brings me to my final point. It is clear from her TV appearance that servicewoman Turney has been put under pressure. The newspapers have persuaded behavioural psychologists to examine the footage and they all conclude that she is “unhappy and stressed”.

What is so appalling is the underhand way in which the Iranians have got her “unhappy and stressed”. She shows no signs of electrocution or burn marks and there are no signs of beating on her face. This is unacceptable. If captives are to be put under duress, such as by forcing them into compromising sexual positions, or having electric shocks to their genitals, they should be photographed, as they were in Abu Ghraib. The photographs should then be circulated around the civilised world so that everyone can see exactly what has been going on.

As Stephen Glover pointed out in the Daily Mail, perhaps it would not be right to bomb Iran in retaliation for the humiliation of our servicemen, but clearly the Iranian people must be made to suffer – whether by beefing up sanctions, as the Mail suggests, or simply by getting President Bush to hurry up and invade, as he intends to anyway, and bring democracy and western values to the country, as he has in Iraq.

‘ Terry Jones is a film director, actor and Python

www.terry-jones.net

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.

There is no agreed maritime boundary between Iraq and Iran in the Persian Gulf. Until the current mad propaganda exercise of the last week, nobody would have found that in the least a controversial statement.

Let me quote, for example, from that well known far left source Stars and Stripes magazine, October 24 2006.

‘Bumping into the Iranians can’t be helped in the northern Persian Gulf, where the lines between Iraqi and Iranian territorial water are blurred, officials said.

“No maritime border has been agreed upon by the two countries,” Lockwood said.’

That is Royal Australian Navy Commodore Peter Lockwood. He is the Commander of the Combined Task Force in the Northern Persian Gulf.

I might even know something about it myself, having been Head of the Maritime Section of the Foreign and Commonwealth Office from 1989 to 1992, and having been personally responsible in the Embargo Surveillance Centre for getting individual real time clearance for the Royal Navy to board specific vessels in these waters.

As I feared, Blair adopted the stupid and confrontational approach of publishing maps ignoring the boundary dispute, thus claiming a very blurred situation is crystal clear and the Iranians totally in the wrong. This has in turn notched the Iranians up another twist in their own spiral of intransigence and stupidity.

Both the British and the Iranian governments are milking this for maximum propaganda value and playing to their respective galleries. Neither has any real care at all for either the British captives or the thousands who could die in Iran and Basra if this gets out of hand.

Tony Blair’s contempt for Middle Eastern lives has already been adequately demonstrated in Iraq and Lebanon. His lack of genuine concern for British servicemen demonstrated by his steadfast refusal to meet even one parent of a dead British serviceman or woman, killed in the wars he created. He is confronting an Iranian leadership with an equal lust for glory and lack of human concern.

It is essential now for both sides to back down. No solution is possible if either side continues to insist that the other is completely in the wrong and they are completely in the right. And the first step towards finding a peaceful way out, is to acknowledge the self-evident truth that maritime boundaries are disputed and problematic in this area.

Both sides can therefore accept that the other acted in good faith with regard to their view of where the boundary was. They can also accept that boats move about and all the coordinates given by either party were also in good faith. The captives should be immediately released and, to international acclamation, Iran and Iraq, which now are good neighbours, should appoint a joint panel of judges to arbitrate a maritime boundary and settle this boundary dispute.

That is the way out. For the British to insist on their little red border line, or the Iranians on their GPS coordinates, plainly indicates a greater desire to score propaganda points in the run up to a war in which a lot of people will die, than to resolve the dispute and free the captives. The international community needs to put heavy pressure on both Britain and Iran to stop this mad confrontation.

The British people must break out of the jingoism created by their laudable concern for their servicemen and woman, and realise that this is just a small part of the madness of our policy of continual war in the Middle East. That is what we have to stop.

The British Government has published a map showing the coordinates of the incident, well within an Iran/Iraq maritime border. The mainstream media and even the blogosphere has bought this hook, line and sinker.

But there are two colossal problems.

A) The Iran/Iraq maritime boundary shown on the British government map does not exist. It has been drawn up by the British Government. Only Iraq and Iran can agree their bilateral boundary, and they never have done this in the Gulf, only inside the Shatt because there it is the land border too. This published boundary is a fake with no legal force.

B) Accepting the British coordinates for the position of both HMS Cornwall and the incident, both were closer to Iranian land than Iraqi land. Go on, print out the map and measure it. Which underlines the point that the British produced border is not a reliable one.

None of which changes the fact that the Iranians, having made their point, should have handed back the captives immediately. I pray they do so before this thing spirals out of control. But by producing a fake map of the Iran/Iraq boundary, notably unfavourable to Iran, we can only harden the Iranian position.

My two earlier posts have caused quite a stir, so here are some further observations.

Sadly, but perhaps predictably, both the British and Iranian governments are now acting like idiots.

Tony Blair has let it be known that he is “utterly confident” that the British personnel were in Iraqi waters. He has of course never been known for his expertise in the Law of the Sea. But let us contrast this political certainty with the actual knowledge of the Royal Navy Commander of the operation on which the captives were taken.

Before the spin doctors could get to him, Commodore Lambert said:

“There is absolutely no doubt in my mind that they were in Iraqi territorial waters. Equally, the Iranians may well claim that they were in their territorial waters. The extent and definition of territorial waters in this part of the world is very complicated”.

That is precisely right. The boundary between Iran and Iraq in the northern Persian Gulf has never been fixed. (Within the Shatt-al-Arab itself a line was fixed, but was to be updated every ten years because the waterway shifts, according to the treaty. As it has not been updated in over twenty years, whether it is still valid is a moot point. But it appears this incident occurred well south of the Shatt anyway.) This is a perfectly legitimate dispute. The existence of this dispute will clearly be indicated on HMS Cornwall’s charts, which are in front of Commodore Lambert, but not of Mr Blair.

Until a boundary is agreed, you could only be certain that the personnel were in Iraqi territorial waters if they were within twelve miles of the coast and, at the same time, more than twelve miles from any island, spit, bar or sandbank claimed by Iran (or Kuwait).

That is very hard to judge as the British government refuse to give out the coordinates where the men were captured. If they really are utterly certain, I find that incomprehensible. Everyone knows the Gulf is teeming with British vessels and personnel, so the position of units a few days ago can hardly be valuable intelligence.

Until a boundary is set, it is not easy to posit where it should be. It has to be done by negotiation or arbitration. I have participated in these negotiations, for example on the boundary between the Channel Islands and France.

With a dead straight coastline with no islands, and a dead straight border between two countries hitting the coast at a right angle, you could have a straight maritime border between the two running out from the coast at a right angle. This never happens.

In practice, you agree a series of triangulation points on both coastlines and do a geometric triangulation exercise to find a line running out from the coast. Coasts of course can be very odd shapes. Draw an imaginary coast and border on a bit of paper and try it yourself. You will soon see why the rules permit you to take into account the general trend of the coastline, and even the angle of the land border. Those are not problems of geometry but old fashioned horse trading.

First, of course, both sides will argue about which triangulation points on the coast to accept. You are allowed, for example, to draw a line across a bay entrance and use that as the coast, but there is plenty of room for the other side to argue over where that line is drawn.

That is only the start. For territorial seas (but not the 200 mile exclusive economic zone) uninhabited rocks and sandbanks count. Again huge room for argument here – the ownership of a useless sandbank is not necessarily a settled thing. Sticking your triangulation point on a sandbank twelve miles out can make a huge difference.

Then it really gets complex. What if the sandbank only appears at low tide? What if it is dry all day, but only at certain times of the year? What if it is prone to move about a bit?

You haggle like mad over this. “You can’t have that sandbank unless we have this one plus this spit.” You also then get into weighting. “That bit of land is only around half the time, so we’ll give it one third weighting” – in other words we will allow 33.3% more sea than you would get if it didn’t exist and we just used a point on the coast.

Massive volumes have been written on the prinicples behind these negotiations, but they tend to ignore the fact that ultimately it has to come down to political negotiating skills between a vast range of justifiable possible agreements. That is why we just can’t know where the boundary is between Iran and Iraq in this area, which has enough sandbanks to keep me happy thinking about it for centuries. If either side needs a negotiator…

Anyway, the UK was plainly wrong to be ultra provocative in disputed waters. They would be allowed to enter Iranian territorial seas in hot pursuit of terrorists, pirates or slavers, but not to carry out other military operations.

The Iranians had a right to detain the men if they were in seas legitimately claimed as territorial by Iran. Indeed, it is arguable that if a government makes a claim of sovereignty it rather has to enforce it, possession being nine parts of international law. But now the Iranian government is being very foolish, and itself acting illegally, by not releasing the men having made its point.

The story leaked by Russian intelligence claiming knowledge of US plans to attack Iran on 6 April has had great publicity in Iran, if very little here. Personally I doubt it is true. But it seems to me a definite risk that the Iranians will decide to keep the marines against that contingency.

That would be very unfortunate. The Iranian government, by continuing to hold the British personnel, are foolishly providing new impetus to Bush and Blair, whose attempts to bang the war drum against Iran have so far met profound public scepticism. We don’t need any more oil wars.

If Blair actually sought the release of our people, rather than anti-Iranian propaganda, he would stop making stupid macho noises and give an assurance that we intend to resolve not only this problem but all disagreements with Iran by peaceful means, and give specific reassurance that no attack is imminent.

But if the Iranian government wait for Blair to behave well, the marines will rot for ever. They should let the men (and woman) go now, with lots of signs of friendship, thus further wrongfooting Bush and Blair.

I explained that in international law the Iranian government were not out of order in detaining foreign military personnel in waters to which they have a legitimate claim. For the Royal Navy to be interdicting shipping within the twelve mile limit of territorial seas in a region they know full well is subject to maritime boundary dispute, is unneccessarily provocative. This is especially true as apparently they were not looking for weapons but for smuggled vehicles attempting to evade car duty. What has the evasion of Iranian or Iraqi taxes go to do with the Royal Navy? The ridiculous illogic of the Blair mess gets us further into trouble.

Incidentally, they would under international law have been allowed to enter Iranian territorial waters if in “Hot pursuit” of terrorists, slavers or pirates. But they weren’t doing any of those things.

Having said all that, the Iranian authorities, their point made, should now hand the men back immediately. Plainly they were not engaged in piracy or in hostilities against Iran. The Iranians can feel content that they have demonstrated the ability to exercise effective sovereignty over the waters they claim.

Any further detention of the men would now be unlawful and bellicose. One of the great problems facing those of us striving hard to prevent a further disastrous war, this time on Iran, is that the Iranian government is indeed full of theocratic nutters.