The Iran-UAE Gulf Islands Dispute

The Iran-UAE Gulf Islands Dispute
Queen Mary Studies in

International Law
Edited by
Malgosia Fitzmaurice
Sarah Singer
volume 29
The titles published in this series are listed at brill.com/qmil

The Iran-UAE Gulf Islands
Dispute
A Journey through International Law,
History and Politics
By
Charles L.O. Buderi

Luciana T. Ricart
leiden | boston
Library of Congress Cataloging-in-Publication Data
Names: Buderi, Charles L.O., author. | Ricart, Luciana Teresa, author.

Title: The Iran-UAE Gulf islands dispute : a journey through international
law, history and politics / by Charles L.O. Buderi, Luciana T. Ricart.
Description: Leiden ; Boston : Brill Nijhoff, 2018. | Series: Queen Mary
studies in international law ; volume 29 | Includes bibliographical
references and index.
Identifiers: LCCN 2018001125 (print) | LCCN 2018004970 (ebook) | ISBN
9789004236196 (E-Book) | ISBN 9789004236189 (hardback : alk. paper)
Subjects: LCSH: Abu Musa--International status. | Tunb Islands--International
status. | Islands--Law and legislation. | Persian Gulf Region--Politics
and government. | Iran--Foreign relations--United Arab Emirates. | United
Arab Emirates.--Foreign relations--Iran.
Classification: LCC KZ3881.A28 (ebook) | LCC KZ3881.A28 B83 2018 (print) |
DDC 341.4/2--dc23
LC record available at https://lccn.loc.gov/2018001125
Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface.
issn 1877-4822
isbn 978-90-04-23618-9 (hardback)
isbn 978-90-04-23619-6 (e-book)
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Contents
Foreword xv
Preface xviii
Acknowledgements and a Note on Archival Research xxi
A Brief Note about Nomenclature – “The Gulf” xxv
List of Figures xxxii
Introduction 1
The Islands – “A Pile of Rock”? 5
Lesser Tunb 6
Greater Tunb 7
Abu Musa 11
Fundamental Legal Questions 15
1 Origins and Nature of the Dispute 19

Status and Extent of Independence of the Qawásim Rulers in
Lengeh 38
Relevance of the Qawásim Reign in Lengeh to the Disputed
Islands 51
2 The Gulf Islands Dispute in Historical Perspective 70

The Islands in Antiquity 72
The Islands during the Sixteenth through the Eighteenth
Centuries 78
Evidence of Possession or Ownership of the Islands 85
Claims of Ownership of the Islands 86
Use of the Islands 87
Control of the Persian Littoral and the Gulf Waters 87
Reliance on Historical Assumptions and Conjecture – from Antiquity
to the Eighteenth Century 88
The Emergence of “Critical Dates” in the Nineteenth and
Twentieth Centuries 93
The Events of the Nineteenth Century Prior to 1887 96
The Tunbs 97
Abu Musa 99
The Events of 1887 101
The Persian Position 108
The Qawásim/British Position 110
viii Contents
The Events of 1904 115

The Events of (and Preceding) 1971 123
uae Protests since 1971 144
Iran’s Reply 147
3 Modes of Acquisition and Effective Control of Territory 150

General Rules under International Law 150
Accretion 153
Cession 153
Occupation 154
Subjugation or Conquest 159
Acquisitive Prescription 161
Historical Consolidation of Title 166
Geographical Considerations and the Doctrine of Contiguity 170
Establishing Effective Control over Territory 172
The Concept of Effectivités 173
The Relationship between Effectivités and Title to Territory 176
Subsequent Conduct 177
Other Relevant Concepts 178
Recognition, Acquiescence and Estoppel 178
The Critical Date 182
Intertemporal Law 186
Uti Possidetis Juris and Its Relation to the Right of
Self-determination 188
4 The Pre-Sixteenth Century Period and the Existence of Historic Rights

of Ownership 191
Iranian Claims of Historic Rights of Ownership 191
Challenges in Establishing the Iranian Claims 199
Ancient or Historic Title over Territory under International Law 203
Continuous Display of Authority 203
Insufficiency of Presumptive Evidence 212
Admissibility of Evidence and Unsubstantiated Assertions 221
Nature of Sovereign Functions 223
Loss of Ancient Title/Failure to Maintain Title 224
Consequence of Loss of Ancient Title 228
Analysis of Iran’s Claim of Ancient or Historic Title 229
Initial Observations 232
Absence of Direct Evidence 234
Inference, Indirect Evidence, Conjecture and Speculation 238
Conclusions 260
Contents ix
5 The Kingdom of Hormuz, Its Conquest by Portugal in 1515 and Portugal’s

Defeat at the Hands of Persia and Britain in 1622 265
Were the Three Islands Territories of the Kingdom of Hormuz? 268
In Conquering Hormuz, did Portugal Acquire Sovereignty over the
Islands? 283
The Kingdom of Hormuz as a Persian “Vassal” 284
Status of Hormuz’s Territorial Possessions after Its
Conquest by Portugal 293
Persian “Cession” of Hormuz to Portugal 297
Portuguese “Occupation” of the Islands 299
Did Portugal Subsequently Cede the Islands to Persia? 299
Did Persia Acquire Possession of the Islands through Conquest in
1622? 302
Were the Kingdom of Hormuz or Portugal Sovereign over the Islands
by Virtue of Geographical Considerations? 305
Conclusions 315
6 The Early Seventeenth Century to the End of the Eighteenth Century:

Were the Islands Still Terra Nullius? 317
Recorded Sightings and Visits to the Islands 319
Lack of Persian Sea Power 325
Theories Underlying Persian Claims of Sovereignty 332
Asserted Incorporation of the Islands into the Province of
Fars and the Raising of Taxes from the Islands 336
“Contiguity” or Other Geographical Considerations 345
Persian Acquisition of Title through Acts of the Qawásim 351
Conclusions 365
7 The Seeds of Conflict: 1800 until 1887 – Effective Occupation 367

Raising of the Persian Flag at the Island of Sirri in 1887 367
Theoretical Framework for Asserting Acquisition of Title by
Occupation 373
Grounds for a Persian Claim of Occupation from 1800–1887 374
Absence of Evidence of a Direct Persian Occupation 380
Persian Occupation through the Lengeh Qawásim 380
Persian “Ratification” of an Effective Occupation Carried out
by the Lengeh-Qawásim 394
Grounds for a Qawásim Claim of Occupation from 1800–1887 395
Applicable Legal Doctrines 395
Effective Occupation 395
Special Conditions of the Region 396
x Contents
Evidentiary Framework – Abu Musa 399

Claims of Ownership and Disputes over Use and Access 399
Building Infrastructure 403
Investigating Crime 404
Exiling of the Ex-Ruler 404
Recognition of Qawásim Title 405
The Hennell Line and Other Considerations 406
Legal Analysis – Abu Musa 408
Intention and Will to Act as Sovereign 410
Display of Sovereign Authority 414
Private Acts Carried out with the Authority of the Ruler 416
Activities or Functions of the State 418
Division of Ownership of Islands between Sharjah and
Ras Al Khaimah 422
Conclusions – Abu Musa 425
Evidentiary Framework – The Tunbs 425
Claims of Ownership and Disputes over Use and Access 427
Key Documentary Evidence 432
Legal Analysis – The Tunbs 438
Intention and Will to Act as Sovereign 438
Display of Sovereign Authority 442
Independent Ownership of Greater Tunb by the Qawásim
Rulers of Lengeh 445
No Basis for Finding Effective Occupation of Greater Tunb by
Rulers of Lengeh 448
Did Qawásim Rulers of Lengeh Hold Partial Ownership of
Greater Tunb? 449
Conclusions – Greater Tunb 451
The Lesser Tunb 455
Geographical Considerations 457
Conclusions – Lesser Tunb 459
8 The Period 1887–1971: The Possible “Critical Dates” in the Sovereignty

Dispute 462
The Principle of the “Critical Date” 463
Protest and Acquiescence 465
Relevant Events Leading to the Possible Critical Dates 469
The Events of 1887/8: Factual Background 471
The Events of 1887/8: Is This the Critical Date of the Dispute? 479
Abu Musa 479
The Tunbs 482
Contents xi
The “Flag Incident” of 1903/4: Factual Background 490

The “Flag Incident” of 1903/4: Is This the Critical Date of the
Dispute? 502
Events Following the Critical Dates 509
The Wönckhaus Affair (1906–1914) 510
Requested Mining Concession on the Lesser Tunb (1908) 518
Construction of a Lighthouse on Greater Tunb (1913) 521
Red Oxide Concession on Abu Musa Granted by the Ruler
of Sharjah (1922) 525
Visit of Persian Customs Launch to Abu Musa (1925) and the
Detention of an Arab Dhow Approaching Greater Tunb by
Iranian Customs (1928) 527
The 1928 “Status Quo Agreement” and the Anglo-Iranian Treaty
Negotiations (1929–1935) 529
Various Visits by Iranian Authorities to Greater Tunb
(1933, 1934 and 1935) 533
Red-Oxide Concession over Abu Musa (1934/5) 536
Withdrawal of the Flag of Ras Al Khaimah at Greater Tunb by
Order of the Ruler (1934/5) 539
Iranian Concession for Mineral Exploration in the Area Around
the Islands (1939) 542
Visits of hms Nearchus to Greater Tunb (1942) 544
Increasing Assertiveness by Iran (Post-Second
World War) 545
Iranian Intention to Establish Administrative Offices on the
Islands (1948) 546
Planting of Iranian Flag on Lesser Tunb (1949) 547
Visit of Iranian Naval Vessel to Abu Musa (1951) 547
Tripartite Discussions (1954–55) 548
Unconfirmed Reports of Iranian Encroachment on the
Islands (1956) 551
Iranian Military Incursions (1961–71) 552
Conclusions 553
9 The mou Related to Abu Musa, the Seizure of the Tunbs by Iran on
30 November 1971 and Subsequent Events up to the Present 555
Relevant Historical Developments 556
British Withdrawal from the Gulf 556
Negotiations Leading to the mou and the Seizure of the
Tunbs 572
uae Protests 606
xii Contents
General Responses of the Islamic Republic of Iran 621

Attempts at Bilateral Negotiations 624
Legal Analysis – The Seizure of the Tunbs by Iran 625
No Recognition or Acquiescence by Third States Generally 628
No Acquiescence by Ras Al Khaimah or the uae 630
Conclusions on the Tunbs 633
Legal Analysis – Abu Musa, Its Rightful Sovereign and the Legal
Status and Effects of the mou 634
Sovereign Ownership of Abu Musa Post-mou 635
Legal Status of the mou under International Law 636
(a) Initial Considerations – The Vienna Convention on the Law
of Treaties 636
(b) Was Sharjah a State or Did It Otherwise Possess Treaty-Making
Capacity in November 1971? 639
(c) Sharjah’s Status as a State Prior to the 1892 Exclusive
Agreement 641
(d) Sharjah’s Status Following the Conclusion of the Exclusive
Agreement 642
(e) The Impact of the Exclusive Agreement on Sharjah’s Treaty-
Making Capacity 652
(f) Did the Parties Intend to Create Legal Relations? 656
(g) Conclusion 665
Succession of the uae to the International Treaties of
Sharjah 665
The Case of “Protectorates” 667
Newly Independent States 669
Application of the Principles of State Succession to the mou 672
Conclusions on the mou’s Binding Nature and uae
Succession 678
Is the mou Null and Void Ab Initio for Having Been Procured by the
Threat of Force? 678
Background and Overview 678
Article 51 or 52? 686
Illegality of the Threat to Use Force 689
Evidence of Iranian Coercion and Threats to Use Force 689
Causal Link between the Threats of Force and the Conclusion of
the mou 691
Existence of Quid Pro Quo Benefits 696
Loss of the Right to Invoke Invalidity 700
Contents xiii
Interpretative Analysis of the mou, Asserted Breach and

Consequences 708
(a) Scope and Meaning of the Rights and Obligations Arising out of
the mou 708
(b) The Iranian “Proviso” and Its Legal Effect 725
(c) Conduct of Iran on Abu Musa 731
(d) Acquisitive Prescription 732
(e) Nature of the Territorial Regime Established by the mou 734
Unilateral Termination of the mou in the Absence of Breach 737
Breach of the mou by Iran and Its Consequences 740
Loss of Right to Terminate or Suspend 744
Procedural Requirements 745
Potential Role of the United Nations 748
The Security Council 748
The General Assembly 751
10 Evidentiary Value of Maps in Sovereignty Disputes over

Territory 759
Evidentiary Value of Maps under International Law 762
International Case Law 766
Seventeenth and Eighteenth Century Maps Produced by the Dutch
East India Company – An Early Window on the Islands 788
Maps Relied on by Iran and Scholars Supporting Iran’s Claims of
Sovereignty 794
Maps of the Eighteenth Century 796
Maps of the Nineteenth Century 802
Maps of the Twentieth Century 840
Assessment of the Evidentiary Value of the Maps Presented by Iran
and Its Supporters 847
Bibliography 861
Books and Chapters in Books 861
Articles 869
Other Sources 872
Cases 873
Treaties 875
National Archives 875
Index 878
Foreword
by Tullio Treves
Attentive observers of United Nations affairs will recall the repeated occa-
sions since 1971 on which the United Arab Emirates, in taking the floor at the
General Assembly, lament “the continued occupation since 1971 by the I slamic
Republic of Iran of three islands belonging to the United Arab Emirates –
Greater Tunb, Lesser Tunb and Abu Musa”. They underline that this is an issue
to which the uae and other States of the region “attach great importance”,
underline the illegality of the occupation and protest against measures taken
by Iran on the Islands. Notes of protest are often sent and distributed by the
uae to the un members, and so are responses by Iran. Still, no real action is
taken by the un and the status quo continues undisturbed. Seen from the un
perspective, this is a semi-dormant issue.
However, seen from the international lawyer’s perspective, the question of
the sovereignty over the three islands presents all the characteristics of an in-
ternational dispute. Indeed, it is a long standing dispute whose origin – whose
critical date – according to this book dates back to 1887/88 or 1903 and cer-
tainly, in its present form dates back to 1971. So it is a more than century old
dispute or at least almost a half a century old dispute, with roots, as the authors
explain, extending back centuries longer.
This thick and intensely researched book is an attempt to present the
dispute in light of the centuries-long history of the islands. History is an im-
portant factor of the work. Innumerable hours have been spent by the authors
and their collaborators in archives in many parts of the world. Nonetheless, the
attention of the authors is always focussed on the legal aspects of the dispute.
Every fact is analysed in order to assess the relevance it may have in a legal
discussion such as that which might be held before the International Court of
Justice or an international arbitral tribunal.
Thus, the book belongs to a literary genre different from international law
monographs on a specific subject or even from books concerning a specific
case. It may be seen as similar to a memorial submitted to an international
court or tribunal, a memorial, however, whose authors are well aware that in
a dispute the principle of equality of the parties applies so that all arguments
must be fairly presented and discussed in light of relevant international case
law and scholarly debates. This is indeed the case in the present book. Only
experienced international lawyers with a deep knowledge of the region, of its
xvi Foreword
history, politics and legal problems could engage in this work. The two authors
meet these requirements.
There are many sections of the book that are worth signalling to the atten-
tion of the reader. I will limit myself to mention one which – perhaps more
than others – has the advantage of being legally important, of showing results
of research on documents hitherto unavailable, and of illuminating fascinat-
ing personalities of the political and diplomatic scene of the 20th century
active during the years immediately preceding the end of the British presence
east of Suez, the formation of the United Arab Emirates, and the last years
of power of the Shah of Iran before the Islamic revolution. The section I am
recommending to the attention of the reader is the one concerning the negoti-
ations leading to the 1971 Memorandum of Understanding (mou) concerning
the island of Abu Musa, one of the key documents, perhaps the key document,
of the dispute. The pages concerning this subject not only are very useful for
the interpretation of the mou and for the discussions concerning its validity,
but also shed light on a subject not mentioned in the mou, namely the legal
status of Greater and Lesser Tunb. It must be stressed that some insights derive
from documents of the British Foreign Office obtained by the authors, for the
purpose of the research for the book, as late as 2016 invoking the British Free-
dom of Information Act 2000.
The discussion of the events leading to the mou show the complex in-
teraction between Iran, a regional power wanting to take advantage of the
imminent withdrawal of the United Kingdom’s forces from the region, the
United Kingdom, keen to ensure the stability of the region, mostly by foster-
ing the formation of the United Arab Emirates, and of the Emirates, especially
Sharjah and Ras Al Khaimah, whose Rulers were confronted with the need to
take painful decisions which were imposed on them by Britain which negoti-
ated with Iran. The figures of the Shah of Iran, of the two Rulers of Sharjah
and Ras Al Khaimah and of the British negotiator Sir William Luce emerge in-
directly from the pages and show that in diplomacy and statesmanship of the
time personalities counted. It is interesting to note that among the factors that
played a role in the negotiation conducive to the conclusion of the mou, the
need of Iran and of the Rulers not to lose face was of great importance and
understood by the parties involved. Even more interesting is the less visible but
certainly very relevant role played by oil interests as important deposits were
supposed to exist – as in fact they were proven to exist – in the maritime zones
of the islands. The part played by the interested oil companies would require
further research to complete the history – although probably less important
from the point of view of the legal questions which interest the authors.
Foreword xvii
The readers who will profit most from this book are of course public inter-
national lawyers, especially those with an interest in the Gulf region and on
territorial and law of treaties matters. Young lawyers interested in becoming
practicing lawyers before international courts and tribunals have much to learn
from this book as regards international legal argumentation and research on
complex international cases. Non-lawyers with an interest in political history
of the region as well as of the British colonial policy will also gain important
insights.
Preface
by Charles L.O. Buderi
The dispute between Iran and the United Arab Emirates (UAE) over the three
Gulf islands of Abu Musa, Greater Tunb and Lesser Tunb first came to my at-
tention while studying Middle East politics at the University of California,
Berkeley in the mid 1970s. This was only a few years after the dispute had taken
on a new and more serious dimension when Iran, on the 30th of November
1971, used military force to seize the two Tunbs islands from the Emirate of
Ras Al Khaimah and took partial control over Abu Musa under a contro-
versial agreement signed with the Emirate of Sharjah which some have
contended was secured through the threat of military force. These two
southern Gulf emirates were among the seven emirates which were about to
join together to form the United Arab Emirates. Indeed, the formal establish-
ment of the new State occurred days later on the 2nd of December 1971. Thus,
the UAE, which disputed Iran’s claims over the islands, was literally born bur-
dened with a serious and challenging dispute over territorial sovereignty with
its far more powerful neighbor across the Gulf.
When, almost thirty years later, I began frequently travelling to the Gulf
in connection with my law practice and observing its regional politics from
a closer vantage point, my interest in the still unresolved islands dispute was
rekindled. This led to discussions and ultimately to a query from an acquain-
tance in which I was asked which side of the dispute – Iran or the uae – had
a better claim to the islands under international law. I set about studying this
question and found that, although quite a lot had been written about the his-
tory and politics of the dispute, most of these works reflected a clear partisan
bias and few of them dealt exhaustively with the international law questions
which lie at the heart of the dispute.
This state of affairs represented something of an opportunity by which I
thought it might be possible to make a modest contribution to international
law scholarship while at the same time delving into the historical and political
aspects of a dispute which is still very much unresolved. The idea of writing
such a work as a comprehensive book on the international law aspects of the
dispute was then encouraged by Professor Malgosia Fitzmaurice of Queen
Mary, University of London, who eventually brought the idea to Brill Nijhoff for
publication as part of the Queen Mary Studies in International Law. My colleague
and co-author, Luciana Ricart, joined me in undertaking this effort.
Preface xix
As it developed, the book’s historical and international law aspects were

very closely linked, indeed interdependent. In analyzing and applying interna-
tional law doctrine on the acquisition of title to territory, historical evidence of
course plays a crucial role. And while the assertions of title claimed by the uae
over the islands stretch back to the eighteenth century (an historical period in
which some documented records are accessible), the claims put forward by
Iran extended much further into ancient history. This made our work, in which
we aimed to test the assertions of both parties and their respective supporters
to the fullest extent possible, that much more challenging.
In the end, we decided to structure the book with several introductory chap-
ters which review the general history of the islands and the surrounding areas
of the Gulf, the origins and nature of the dispute and key historical moments
of confrontation over the islands’ possession and control, and which then sum-
marize the applicable international law doctrines related to the acquisition of
territory which are discussed throughout the book. Following these chapters,
we proceed with a series of chapters which trace in more detail the history of
the three islands and, to the extent relevant to that history, the surrounding
region, from antiquity until the present day, and bring that history to bear in
determining the legal status of the islands during each historical period ana-
lyzed. This analysis includes an evaluation of whether either of the sovereign
contenders in fact could today demonstrate through credible evidence that
they (or their predecessors) established ownership of any of the islands dur-
ing these historical periods under the applicable international law doctrines
governing the acquisition of territory. A final chapter addresses the question
of maps and their evidentiary value in determining territorial ownership. This
last chapter was, we believed, necessary in light of the many historical maps
which both sides of the dispute, but particularly Iran, have pointed to as vindi-
cation of their claims over the islands. As will be demonstrated, while the avail-
able map evidence is extensive and stretches back to the seventeenth century,
its probative value is questionable.
Although we will not try to summarize our findings over several hundred
pages in this Preface, we will reveal that through the end of the eighteenth cen-
tury our conclusions, based on the evidence we have seen, are that the three
islands remained as terra nullius (that is, territory not under the sovereignty of
any State) despite their use by various coastal communities. It was, therefore,
only in the nineteenth century that evidence of an effective occupation of the
islands first appears, and while there is little dispute that the related assertions
of possession and control were carried out by people under the leadership of
the current ruling families of Sharjah and Ras Al Khaimah (the “Qawásim”), it
xx Preface
is a question of considerable legal interest whether, for various historical and

legal reasons, those assertions were attributable to (and may be claimed by)
Iran or the two Emirates. We reach conclusions on that and other aspects of
the dispute in the course of the following chapters.
A final note must be made about the events of November 1971 alluded to at
the beginning of this Preface. Those events represented a turning point in the
dispute in several respects. Most obviously, physical possession of the islands
changed hands, from the Emirates which had controlled them for perhaps a
century and a half, to Iran (fully in the case of the two Tunbs and partially in
the case of Abu Musa). The physical control which Iran then secured over the
islands placed it in an obviously advantageous position and gave it an opportu-
nity, which it has pursued, to establish military installations and infrastructure
and generally develop the islands, thus entrenching its presence and de facto
control without regard to the islands’ legal status and the existence of the dis-
pute over their ownership. Indeed, Iran now all but refuses to acknowledge in
public statements the existence of a dispute over sovereignty to the islands.
Secondly, this change of physical possession resulted from the use of force
(in the case of the Tunbs) and, arguably, from the threat of force (in the case of
Abu Musa), a circumstance which, in terms of international law, must be seen
as having aggravated the dispute and raised its profile to one which might
threaten international peace and security. Finally, with respect to Abu Musa,
the landing of Iranian troops and their assumption of control over roughly
half the island in November 1971 was based on a signed agreement (labelled a
“Memorandum of Understanding”, or mou), albeit one whose validity under
international law was sometimes contested as having resulted from the threat
of force. However it is viewed, the mou raises a number of complicated legal
issues which place consideration of the status of Abu Musa significantly apart
from that of the Tunbs.
The importance of the events of November 1971, and the legal complexities
arising out of the mou, which are analyzed in chapter 9, have thus required
significant attention in this work and perhaps are of most immediate interest
in today’s world.
Acknowledgements and a Note on
Archival Research
The writing of this book, which more than anything is a product of the authors’
academic and professional interest in public international law, involved areas
of research and learning which extended beyond the knowledge and abilities
of both of us. This was particularly the case as, with any study of a complex
and long-standing dispute over territorial sovereignty, an analysis of a broad
range of historical events was required. In the case of the dispute over the three
Gulf islands, because of the various historical arguments which have been sug-
gested as supporting the grounds of title in favor of one or the other of the
parties, the historical period and events involved in such an analysis is exceed-
ingly broad.
To assist our efforts in locating relevant and original historical material
which was beyond our practical ability to access for geographical or linguistic
reasons, we were assisted by a number of scholars who undertook extensive
research in the archives of various countries which were direct participants in
those historical events, including the Dutch National Archives, the Ottoman
Archives in Istanbul, the Iranian National Archives in Tehran, the Portuguese
National Archives, the French State Archives and the British National Archives
in Kew, London. We would like to express our gratitude and give our sincere
thanks to those scholars, chief among them Gijs Boink of the Dutch National
Archives, Ismail Keskin, who meticulously researched the Ottoman Archives
in Istanbul, Inês Gomes, who conducted research in the Portuguese National
Archives and Chloé Rouveyrolles, who conducted research in the French State
Archives. The documentary evidence obtained through this work has proven
to be invaluable in the preparation of this book.
The study of the British archives was carried out by the authors directly.
This undertaking was conducted both through the study and analysis of a
six-volume series edited by Patricia L. Toye which contains British archives
dealing specifically with the three islands subject of this book1 from the early
nineteenth century until the middle of the twentieth century, and through the
gathering of further British Foreign Office files on the islands (ranging from
1 Patricia L. Toye, ed., The Lower Gulf Islands: Abu Musa and the Tunbs (Slough, England:
Archive Editions, 1993).
xxii Acknowledgements and a Note on Archival Research
1968 until 1974) housed at the British National Archives in Kew, London. The
latter material had not been opened to the public at the time the six-volume
compilation on the islands was published, and for some of the Foreign Office
files that were still classified as confidential the authors filed a freedom of
information request in 2014 with the National Archives by which certain of
these remaining files were opened to the public.
While the evidence obtained through any archival research must be care-
fully evaluated, it should be noted that Iran and a number of scholars who
have written in favor of the Iranian claim of sovereignty over the islands
have been highly (although selectively) critical of the documentary evidence
contained in the British archives, particularly as it relates to certain events
which occurred at the end of the nineteenth century and the beginning of
the twentieth century which are highly relevant to the dispute.2 This criticism
suggests that the British government manufactured or produced false evidence
and false histories showing that the islands belonged to its “protected” client,
the Qawásim Sheikhdoms of Sharjah and Ras Al Khaimah, rather than to Per-
sia, in an effort to wrest control of the islands from Persia as part of a strategic
design to maintain hegemony in the Gulf, rein in Persian power and contain
the threat posed by Britain’s European adversaries.3
In any legal analysis, the evaluation and reliability of evidence must be as-
sessed as objectively as possible. That has been the approach observed by the
authors in the case of the British archival documents reviewed for this work,
many of which were confidential and internal communications which have
only fairly recently been released to the public (and in the case of certain doc-
uments reviewed, only as a result of the freedom of information act request
made to the National Archives by the authors which is referred to above).
While the criticisms alluded to above have been taken into account, it is dif-
ficult to consider confidential documentation which was not publicly avail-
able and which was in many cases corroborated by a chain of other historical
documents as forming part of a design by the British government to deceive
historians or others as to the ownership of the islands. If anything, such inter-
nal documentation might now reveal the existence of such a design if it had
existed. There is no evidence of that which the authors have found.
Moreover, far from uniformly supporting the claims put forward by the
Qawásim, British archival documents dating from the late eighteenth and early
nineteenth centuries reflect a measure of doubt among various British officials
2 These events, and the related evidence, are examined in detail in chapters 7 and 8.
3 See, e.g., Hooshang Amirahmadi ed., Small Islands, Big Politics. the Tonbs and Abu Musa in the
Persian Gulf (New York: St. Martin’s Press, 1996).
Acknowledgements and a Note on Archival Research xxiii
as to the islands’ ownership. Indeed, throughout the research conducted for

this work, and notwithstanding the critical lens through which any archival
material must be viewed, the authors have found the British archives to be an
invaluable source of historical information. This was evidently the conclusion
reached by the International Court of Justice in the Maritime and Territorial
Delimitation Questions Between Qatar and Bahrain case, which placed sig-
nificant reliance on British colonial-era documents and decisions.4 The same
approach was taken by the arbitral tribunal in the Dubai/Sharjah arbitration.5
Although both of the disputing parties in those two cases were former British-
protected entities (unlike the dispute over the islands in which only one side
was under British protection, leading the other side – Iran – to contest the
neutrality of British records), these precedents indicate that British archival
materials would very likely be considered as highly relevant evidence in assess-
ing which party is sovereign over the islands if the case were ever to come to
adjudication before the icj or an arbitral tribunal.
Beyond the archival research which was conducted in connection with
the writing of the book, and the many writers, both living and dead, whose
research and analysis we drew upon to guide us through the many centuries
of history which are relevant to the dispute over the three islands, we also ben-
efitted from the views and guidance of a number of other scholars who we
contacted with questions about discrete historical events. We would like to
give our thanks and appreciation to several of those scholars as well, including
Dr. Nima Mersadi Tabari of The City Law School, City, University of London,
Professor Mohammad Bagher Vosoughi of the History Department of Tehran
University, Dr. Shahnaz Nadjmabadi of the Asien-Orient-Institut of Eberhard-
Karls-Universität, and Dr. Willem Floor, author of numerous books about Gulf
history. In addition, Professor Tullio Treves provided invaluable insight and
commentary on numerous aspects of international law which are discussed in
this work. Needless to say, any errors or omissions in the work are our own, as
are the interpretation of historical events and the conclusions we reach.
We would also like to extend our thanks and appreciation to other col-
leagues and friends who gave us help and encouragement over the time
we spent writing the book. We are grateful to Amnah Al Zawawi, Astrid
Benoit-Cattin, Nana Bonsu, Agathe Boureau, Holly Dawson, Dr. Walid

El-Nabal, Angela G
askin, Souad Hawchar, Loujaine Kahaleh, Thomas Laurer,
4 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bah-
rain), icj Reports 2001, 40.
5 Dubai-Sharjah Border Arbitration (Dubai/Sharjah), Award of October 19, 1981, ilr 91 (1993)
543.
xxiv Acknowledgements and a Note on Archival Research
Fatima Malik, Dr. Panos Merkouris, Negar Mortazavi, Ryan Osegueda, Nilay
Ozlu, Irene Petrelli, Alexander Roney, Manu Sanan, Grace Taylor and Angus
Thompson. A special note of thanks and gratitude must also be extended to
our law firm, Curtis, Mallet-Prevost, Colt & Mosle llp, and its management,
which unfailingly supported us through the years in which we labored on this
work, a period which was far longer than any of us expected.
Finally, we would like to extend our profound gratitude to Professor Mal-
gosia Fitzmaurice of Queen Mary, University of London. This book would
not have been written without her support, guidance, encouragement and
patience. We equally thank Ingeborg van der Laan from Brill for her unending
support in turning this project into a reality.
A Brief Note about Nomenclature – “The Gulf”
Any discussion involving the body of water lying between the Arabian Penin-
sula and Iran is bound to provoke strong opinions from certain quarters as to
its correct name. The Arab countries uniformly refer to that expanse of sea as
the Arabian Gulf on the basis that, beginning with the expansion of Islam in
the seventh century, Arab communities came to populate and dominate activi-
ties in and around the Gulf area. The uae legal scholar Mohamed Abdullah Al
Roken describes this historical phenomenon as follows:
The Arabian Gulf, all its waters, islands and coasts, became a purely Arab
“lake” with the Islamic conquests in the seventh century ad. Even in the
periods following the decline of the early Islamic Caliphate, local powers,
especially in Oman, maintained control and sovereignty over the region
as a whole.1
Historical support for the view that Persian maritime “pretensions” in the Gulf
were “derisory” and that much of the Persian coast was, until the latter part
of the nineteenth century, largely ruled by “independent Arab principalities”
out of reach of any centralized Persian control is widespread in both original
and secondary sources. Niebuhr wrote in the late eighteenth century that: “It
is ridiculous in our geographers, to represent a part of Arabia as subject to the
Kings of Persia; when, so far from this, the Persian monarchs have never been
masters of the seacoast of their own dominions, but have patiently suffered it
to remain in the possession of the Arabians.”2 A similar view was expressed in a
report prepared by Tido Frederik van Kniphausen for the Governor-General of
the Dutch East India Company, Jacob Mossel, in 1756: “It is well known to each
and everyone that the north side of this Gulf is part of the Persian Empire, and
the south inhabited by Arabs. But because the Persians have never been in-
clined to seafaring, all places in the north that are in any way – be it by a small
source or river – capable of harbouring any ships, are inhabited by c olonies
1 Mohamed Abdullah Al Roken, “Dimensions of the UAE-Iran Dispute over Three Islands”,
United Arab Emirates: A New Perspective, eds. Ibrahim Al Abed and Peter Hellyer (London:
Trident Press, 2001), 179.
2 Carsten Niebuhr, Niebuhr’s Travels Through Arabia and Other Countries in the East, trans.
Robert Heron (Edinburgh: Printed for R. Morison and Son, 1792), Vol. 2, 110–112.
xxvi A Brief Note about Nomenclature – “The Gulf”
of Arabs, who busy themselves with shipping, diving for pearls or fishing.”3 A
similarly dismissive view of Persian maritime capabilities was expressed by
Curzon in his seminal work Persia and the Persian Question, published in 1892,
who wrote that notwithstanding the “maritime ambitions of Nadir Shah” in
the eighteenth century, the only physical evidence of this expensive undertak-
ing “were the rude ribs of an unfinished vessel, which were visible on the beach
at Bushire in the early part of the present century.”4 He went on:
It is scarcely less difficult to discover the traces or existence of a Persian

Navy. Brave and victorious as the Persians have shown themselves at
different epochs on land, no one has ever ventured so far to belie the
national character as to insinuate that they have betrayed the smallest
proficiency at sea. It would be difficult, and perhaps impossible, in the
history of the world to find a country possessing two considerable sea-
boards, and a dmirably situated for trade, which has so absolutely ignored
its advantages in both respects, and which has never in modern times
either produced a navigator, or manned a merchant fleet, or fought a
naval battle.5
Historical and legal arguments are also pointed to by Iran in support of the
proposition that this body of water can only legitimately be referred to as the
Persian Gulf. Indeed, use of the name Persian Gulf is widespread and has en-
joyed long-standing recognition. In the same volume of work quoted above, for
example, while he describes the Gulf littoral as largely inhabited and ruled by
Arabs, Niebuhr still refers to it as the Persian Gulf.
The first time that the term “Persikos kolpos” (i.e., Persian Gulf) was used
in a written source was reportedly around 500 b.c. by the Greek geographer
Hecataeus, whereas Herodotus in the fifth century b.c. referred to what is now
the Red Sea as “the Arabian Gulf” and the name “Erytrean Sea” appeared to
3 na 1.11.01.01 rec. no. 461, Fol 1, containing Tido Frederik van Kniphausen’s Report of 1756
(translation by G.G.J. Boink, on file with authors). Ibid., Fol. 1v (“Their [i.e., the Arabs]
places and houses are wretched, because they judge the dry and infertile ground on
which they live as not worthy of better ones, which is not a bad policy, seeing as they
have nothing to lose, which enables them, in case Persian dukes or regents bother them
with contributions and king’s services [like taxes and conscription] to leave their places
to board their ships with wife and children, and to move to the adjacent islands, until the
time they think they can return to their former places without being bothered.”).
4 George N. Curzon, Persia and the Persian Question (London: Longmans, Green & Co,
1892), Vol. 2, 388, 392.
5 Ibid.
A Brief Note about Nomenclature – “The Gulf” xxvii
include the wider region comprising the Persian Gulf, Red Sea, Arabian Sea,
and the Gulf of Oman.6 The earliest Islamic text on Indian Ocean seafaring
used the Arabic term “Bahr Fars” (Sea of Fars) for the Gulf and the term later
came into general use.7 At the beginning of the sixteenth century, the Portu-
guese voyagers took the widely used Persian Gulf (“Sino Persico”) to refer to the
Gulf.8 Cartographical evidence also suggests that the designation Persian Gulf
has been recognized by other European States since the very first mapping of
the Gulf began.9 However, after the expulsion of the Portuguese, the Ottoman
Turks started to call the Gulf, from 1546 onwards and up to 1712, the “Gulf of
Basrah”, the “Gulf of Qatif” or the “Gulf of Arabia”, and European cartographers
started using different combinations of names which referred to the Persian
or Ottoman designation of the Gulf.10 From 1712 onwards, the English cartog-
raphers Christopher Brown and Samuel Thornton used the name Persian Gulf
and the other names began to disappear.11
The use of the name Persian Gulf extends today to the Cartographic Section
of the United Nations, which also uses that name as the official and interna-
tionally recognized designation for that body of water. In fact, as explained by
Sultan Bin Muhammad Al-Qasimi in his thesis entitled “Power Struggles and
Trade in the Gulf 1620–1820”: “Arabs had always called it the Persian Gulf until
the Persians began citing the usage of the term ‘Persian’ as a justification for
Iranian power politics in the region in the 1950s.”12 The Iranian insistence on
6 Lawrence G. Potter, “Introduction”, in The Persian Gulf in History, ed. Lawrence G. Potter
(New York: Palgrave Macmillan, 2010), 15–16; C. Edmund Bosworth, “The Nomenclature of
the Persian Gulf”, in The Persian Gulf States: A General Survey, ed. Alvin J. Cottrell (Balti-
more and London: John Hopkins University Press, 1980), xviii.
7 Potter, “Introduction”, 15–16; Bosworth, “Nomenclature of the Persian Gulf”, xxii, xxviii.
8 See, e.g. Dames, Book of Duarte Barbosa; Potter, “Introduction”, 16; Bosworth, “Nomencla-
ture of the Persian Gulf”, 28–29.
9 Potter, “Introduction”, 16; Bosworth, “Nomenclature of the Persian Gulf”, xxviii–xxx.
10 These various combinations, as reflected by Al-Qasimi in his thesis were: “(i) Mare Elcatif
i Sinus Persicus, (ii) Mare Elcatif / Sinus Arabicus, (iii) Mare Elcatif, (iv) Sinus Arabicus,
(v) The Sea Elcatif / Arabian Gulfe, (vi) Golfe De Balsera / Mer D’Elcatif, (vii) Golfe de
Balsera D’Elcatif / Golfe De Persia, (viii) Gulph of Balsera / Sea of Elcatif or the Gulf of
Persia, (ix) Golfo Di Bassora [or] D’Elcatif [or] Sinus Persicus, (x) Sino Persico [or] Golfo
di Bassora [or] d’Elcatif, (xi) Golfo di Bassora, (xii) Persian Gulf.” Sultan Bin Muhammad
Al-Qasimi, “Power Struggles and Trade in the Gulf 1620–1820” (PhD diss., Durham Univer-
sity, 1999), 18–19.
11 Ibid., 19.
12 Al-Qasimi, “Power Struggles and Trade”, 17. Potter also explains with respect to the use of
“Arabian Gulf” by Arab States: “The rise of pan-Arabism in the post-World War ii period
and the sharpening of political tensions between Iran and Arab states have led to an
xxviii A Brief Note about Nomenclature – “The Gulf”
using that designation is thus well founded, and its government’s stubborn in-
flexibility on that question may be understandable, even if it has led it to take
somewhat extreme actions in defense of that nomenclature. This has been the
case, for example, in the Iranian government’s announcement that it would
ban commercial aircraft from overflying its territory if the route maps appear-
ing on the in-flight passenger monitors refer to the “Arabian Gulf”13 or threaten
legal action against the internet company Google in 2012 when it came to the
Iranian government’s attention that Google Maps, possibly in an effort to avoid
using a name which would offend either Iran or the Arab countries, did not in
fact give any name to the Gulf, leaving it instead as an unnamed expanse of
water.14 In diplomatic fora, Iran also raises its vehement disagreement with the
use of “Arabian Gulf” to describe that body of water. This was the statement of
the representative of Iran before the un Security Council during the debate
over Iran’s actions in seizing the Tunbs islands and landing forces on Abu Musa
in November 1971:
This use of the expression “Arabian Gulf” warrants an immediate pre-

liminary observation. This is not the first time that this expression has
been imported into the United Nations. At first sight one might think that
the name by which an international waterway is described has no more
than an academic interest. But in this case this is not so. We are here
dealing with a sea which, as everyone knows, has from the most ancient
times been called the Persian Gulf. To call it something else is to distort
nfortunate lexical struggle over the proper name of the Gulf…. A campaign to replace
u
the term ‘Persian Gulf’ with ‘Arabian Gulf’ or ‘Arab Gulf’ was carried out by President
Gamal Abdel Nasser of Egypt starting in the 1950s in his bid to promote pan-Arabism
and oppose Iranian hegemony in the region…. ‘By 1968 … all Arab states, including the
Gulf Emirates passed laws and issued decrees making the use of the term “Arabian Gulf”
compulsory in all communications with the outside world’.” Potter, “Introduction”, 15–16.
13 Andrew Hammond, “Iran Threatens Airline Ban over ‘Arabian Gulf’”, The Independent,
February 23, 2010. Accessed May 4, 2017. http://www.independent.co.uk/news/world/
middle-east/iran-threatens-airline-ban-over-arabian-gulf-1907401.html.
14 On May 17, 2012, the Iranian Foreign Ministry issued a statement in which it threatened
to bring legal proceedings against Google if it did not place the name “Persian Gulf” on
its maps. See Zahra Hosseinian, “Iran threatens to sue Google over dropping Persian
Gulf”, Reuters Africa, May 17, 2012. Accessed May 10, 2017. http://af.reuters.com/article/
worldNews/idAFBRE84G19I20120517. No legal action was, as far as the authors are aware,
actually commenced. However, we note that nowadays a search on Google Maps reveals that
the name of the Gulf appears as “Persian Gulf” and upon zooming into the area, it appears
as “Persian Gulf (Arabian Gulf).” Google Maps. Accessed May 10, 2017. https://www.google
.com/maps/@25.652907,55.9806889,7z?hl=en-US.
A Brief Note about Nomenclature – “The Gulf” xxix
fundamental truths. This misrepresentation of facts demonstrates a spir-

it of distortion that characterizes the speeches [in defense of Arab rights
to the islands] which we have just heard. It is symbolic of a deliberate
attempt to alter historic reality and betrays a wish to attribute to the area
an Arab character not justified by the facts.15
While nomenclature may be important for historical and national sensibili-

ties, and may under particular circumstances have certain legal consequences,
for purposes of this work and for analyzing the historical and legal merits of
the dispute between Iran and the uae over the three islands, it is not relevant
whether the body of water surrounding the islands is referred to as the Persian
Gulf or the Arabian Gulf. None of the asserted or theoretical arguments
supporting or refuting the territorial claims of either of the parties under inter-
national law depends on or is affected by whose preferred name for the Gulf is
used or acknowledged as having greater historical or legal merit. As Lawrence
Potter has remarked: “In reconstructing the history of the region, it is not fruit-
ful to engage in polemics such as whether the proper name should be the Per-
sian Gulf or the Arabian Gulf”, especially as the “Gulf region has always been a
mixed one ethnically, linguistically, and religiously and should not be consid-
ered a mere annex of either the Iranian or Arab world.”16 For those reasons, this
book takes what the authors consider to be a neutral and dispassionate stance
and will use the term the “Gulf”, except, of course, when quoting another text
which refers to some other designation. The map that appears in Figures 0.1
and 0.2 also takes this neutral stance on the name of the Gulf and shows the
location of the three islands in dispute within the wider geography of southern
Iran and the Arabian Peninsula.17
15 Security Council Official Records, 26th year, 1610th Meeting, December 9, 1971, un Doc. S/
PV.1610, 17.
16 Potter, “Introduction”, 14.
17 Map of the Arabian Peninsula in The Times Concise Atlas of the World, 11th ed. (London:
The Times, 2000).
xxx A Brief Note about Nomenclature – “The Gulf”
Figure 0.1 Map of the Arabian Peninsula. (The Times Concise Atlas of the World, 11th Edition,
2000).
A Brief Note about Nomenclature – “The Gulf” xxxi
Greater Tunb
Lesser
Tunb
Abu Musa
Figure 0.2 Close-up image of “Map of the Arabian Peninsula”. (The Times Concise Atlas of the
World, 11th Edition, 2000).
List of Figures
0.1 Map of the Arabian Peninsula (Reprinted by Permission of HarperCollins

Publishers Ltd © The Times Concise Atlas of the World, 11th Edition, 2000) xxx
0.2 Close-up image of “Map of the Arabian Peninsula” (Reprinted by Permission
of HarperCollins Publishers Ltd © The Times Concise Atlas of the World, 11th
Edition, 2000) xxxi
2.1 Close-up image of “Map of Persian Gulf (Gerrit de Haan)”. Manuscript, 1761
(© Dutch National Archives) 84
10.1 Chart of the Persian Gulf. Manuscript, 1646 (© Badische Landesbibliothek) 790
10.2 Close-up image of “Chart of the Persian Gulf”. Manuscript, 1646 (with original
toponyms) (© Badische Landesbibliothek) 791
10.3 Close-up image of “Chart of the Persian Gulf”. Manuscript, 1646
(with transcriptions of the most important toponyms) (© Badische
Landesbibliothek) 791
10.4 “The Persian Gulf”. Manuscript, c. 1650–1700 (© Bibliothèque Nationale de
France) 791
10.5 Close-up image of “The Persian Gulf”. Manuscript, c. 1650–1700
(with original toponyms) (© Bibliothèque Nationale de France) 792
10.6 Close-up image of “The Persian Gulf”. Manuscript, c. 1650–1700
(with transcriptions of the most important toponyms) (© Bibliothèque
Nationale de France) 792
10.7 Chart of the Coast of Persia (Johannes Vingboons, after Hendrik Martens
Bloem). Manuscript, 1646/1665–1670 (© Austrian National Library) 793
10.8 Close-up image of “Map of Persian Gulf (Gerrit de Haan)”. Manuscript, 1761
(© Dutch National Archives) 794
10.9 Carte du Golphe Persique, 1764 (© David Rumsey Map Collection) 798
10.10 Close-up image of “Carte du Golphe Persique, 1764” (© David Rumsey Map
Collection) 799
10.11 A new map of the Empire of Persia from Monsr. D’Anville, First Geographer
to the most Christian King, with several additions and emendations, 1794
(© David Rumsey Map Collection) 800
10.12 Close-up image of “A new map of the Empire of Persia from Monsr. D’Anville,
First Geographer to the most Christian King, with several additions and
emendations, 1794” (© David Rumsey Map Collection) 801
10.13 Close-up image of “Map of the Countries lying between the Euphrates and
Indus on the East and West, and the Oxus and Terek and Indian Ocean on the
North and South. By John Macdonald Kinneir”, 1813 (© David Rumsey Map
Collection) 804
List of Figures xxxiii
Indus on the East and West, and the Oxus and Terek and Indian Ocean on
the North and South. By John Macdonald Kinneir”, published in 1832 by
A. Arrowsmith (© The British Library Board) 805
Indus on the East and West, and the Oxus and Terek and Indian Ocean on the
North and South. By John Macdonald Kinneir”, lithographed by Order of the
Supreme Government of India at the Surveyor General’s Office in 1856
(© The British Library Board) 806
10.16 Close-up image of “Map of Persia with a part of Cabul and adjacent countries”,
A. Arrowsmith, 1828 (© David Rumsey Map Collection) 808
10.17 “Chart of the Gulf of Persia”. Constructed from the Trigonometrical Surveys
Made by Order of The Honble. the Court of Directors of the United English East
India Company; by George Barnes Brucks, Commander H.C. Marine. 1830
10.18 Close-up image of “Chart of the Gulf of Persia (George Barnes Brucks, 1830)”
10.19 Close-up image of 1834 Map of “Central Asia; comprising Bokhara, Cabool,
Persia, the River Indus, & countries eastward of it”, constructed principally from
the original M.S. surveys of Lieut. Alex. Burnes and printed by J. Arrowsmith
10.20 Another close-up image of 1834 Map of “Central Asia; comprising Bokhara,
Cabool, Persia, the River Indus, & countries eastward of it”, constructed prin-
cipally from the original M.S. surveys of Lieut. Alex. Burnes and printed by
J. Arrowsmith (© David Rumsey Map Collection) 813
10.21 Close-up image of “Asia. Persian Gulf. Compiled by Commr. C.G. Constable and
Lieut. A.W. Stiffe, 1860” (© The British Library Board) 816
10.22 Close-up image of Map entitled “Persia compiled principally from original
authorities” by Captain (Local Major) O.B.C.ST. John, (Royal Engineers) by order
of H.M. Secretary of State for India, 1876 (© The British Library Board) 817
10.23 Close-up image of Map entitled “Persia, Afghanistan and Ballochestan” by
Edward Weller, 1882 (© David Rumsey Map Collection) 818
10.24 Close-up image of “Map of Persia and Afghanistan by Keith Johnston, F.R.S.E.”,
included in Alexander Keith Johnston, Royal Atlas of Modern Geography
(Edinburgh: W. & A.K. Johnston, 1879) (© David Rumsey Map Collection) 820
10.25 Close-up image of “Map of Persia. Compiled in the Intelligence Division, War
Office. 1886. Revised 1891” (© The British Library Board) 822
10.26 Close-up image of Sheet No. 5 of Map of Persia (in Six Sheets) compiled in
the Simla Drawing Office, Survey of India (1897)” (© The British Library
Board) 823
xxxiv List of Figures
10.27 Close-up image of “Map of Persia, Afghanistan and Baluchistan” in Persia and
the Persian Question by the Hon. George Nathaniel Curzon, M.P. (© The British
Library Board) 826
10.28 Close-up image of “Persien nach seinem neuesten Zustande in das Oestliche
und Westliche Reich eingetheilt und entworfen von C.G. Reichard” (Weimar,
1804) (© Harvard Map Collection) 827
10.29 Close-up image of “Charte von Persien (Prag, 1811)” (© Harvard Map
Collection) 828
10.30 Map of Persia (Drawn & engraved for Thomson’s New General Atlas, 1817)
10.31 Close-up image of “Map of Persia (Drawn & engraved for Thomson’s New
General Atlas, 1817)” (© David Rumsey Map Collection) 831
10.32 Close-up image of “Map of Persia. By Sidney Hall. London, published by Long-
man, Rees, Orme, Brown & Green, Paternoster Row, August 1828” (© David
Rumsey Map Collection) 831
10.33 Close-up image of “Map of Persia and Part of the Ottoman Empire by G. Long,
M.A., 1831” (© David Rumsey Map Collection) 832
10.34 Close-up image of Map “The Eastern Part of the Ancient Persian Empire”, by
G. Long, M.A., 1831, published in 1853 under the Society for the Diffusion of
Useful Knowledge (© Harvard Map Collection) 834
10.35 Close-up image of Map “The Eastern Part of the Ancient Persian Empire”, by
G. Long, M.A., 1831, published in 1831 by Baldwin & Gradock and appearing in
“Maps of the Society for the Diffusion of Useful Knowledge”, 1844 (© David
Rumsey Map Collection) 835
10.36 Close-up image of Map entitled “Persia and Afghanistan by Keith Johnston,
F.R.S.E.”, 1880 (© Harvard Map Collection) 837
10.37 Close-up image of “Map of Persia Drawn and Engraved by J. Rapkin” (1851)
10.38 Close-up image of “Map of Persia and Afghanistan Published by
A. &. C. Black (1854)” (© David Rumsey Map Collection) 839
10.39 Close-up image of “Map of Persia, Afghanistan and Beluchistan” (1885)
(© Harvard Map Collection) 841
10.40 Close-up image of “Map of Iran, Afghanistan, West Pakistan”, in World Atlas
(Moscow, 1967) (© David Rumsey Map Collection) 842
10.41 Close-up image of “Map of Iran (Persia), Afghanistan and Baluchistan” (C.S.
Hammond & Co., 1948) (© David Rumsey Map Collection) 845
10.42 Close-up image of “Map of Iran, Afghanistan, Pakistan (West)” in Atlante Inter-
nazionale, 8th Edition (Milan: Touring Club Italiano, 1968) (Map Plate No. 92)
(© Touring Club Italiano/ The British Library Board) 847
List of Figures xxxv
10.43 Close-up image of “Map of Arabiyah, Misr El Bahri” in Atlante Internazionale,

8th Edition (Milan: Touring Club Italiano, 1968) (Map Plate No. 91) (© Touring
Club Italiano/ The British Library Board) 848
10.44 Close-up image of “Map of Persia, Afghanistan and Baluchistan compiled under
the supervision of Hon. G. Curzon, M.P. by W.J. Turner F.R.G.S., 1891, Intelligence
Division w.o. No. 855 (1892)” (© The British Library Board) 853
10.45 Close-up image of “Map of Persia, Compiled from the Map of Persia, in 6
Sheets, by the Intelligence Branch, War Office. [Accompanying Aitchison’s
“Treaties, etc. relating to India.” Third edition], 1893” (© The British Library
Board) 856
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 sov-
ereignty 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 own-
ership 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 cer-
tain 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 10.1163/9789004236196_002

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 com-
pared 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 par-
ticular 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.
Introduction 3
existence at times appear to be much more than a localized territorial dispute,

and has also tended to confuse the purely legal issues involved with the politics
around them. As described in some detail below, those politics have at times
been fraught and tense.
Indeed, the perceived meddling or peripheral involvement of outside
powers in the competing claims over ownership of the islands is a hallmark
of the dispute, and was fully present when, towards the latter part of the nine-
teenth century, it first arose as a sovereignty dispute between the respective
polities (the Imperial Persian Empire and the Sheikhdoms of Sharjah and
Ras Al Khaimah under the leadership of the sheikhs of the Qasimi family) to
which Iran and the uae would become successor States. The outcome of that
initial confrontation was, with the intervention of the British government, to
maintain possession of the islands under the Qasimi Rulers and their tribal
followers (the “Qawásim”), but it led to almost a century of protests and strug-
gle in which both sides continued to dispute the other side’s claims. Persian
protests against the British defense and protection of Qawásim rights over the
islands, which Persia considered to be illegitimate and politically motivated,
were most prominent. This century of tension culminated with the events of
November 1971, a further critical moment in the history of the dispute, when
(again with the direct involvement of the British government, but this time
within the context of the imminent departure of British forces from the Gulf)
the jurisdiction of Abu Musa was, through the mou, divided between the par-
ties, without resolving the matter of sovereignty, while the two Tunbs islands
came under Iranian control through its unilateral use of force.
Since the events of November 1971, the parties directly involved – Iran
and the uae – have maintained a relatively consistent historical and legal
narrative through their respective formal statements. For the uae, its narra-
tive maintains that the islands form an “integral” part of its sovereign terri-
tory, having been possessed and controlled since the eighteenth century by
successive Qawásim rulers of Sharjah and Ras Al Khaimah. Thus, these rul-
ers independently possessed and, along with their subjects, used the islands
over a period of more than one hundred years before any claim was ever made
to the islands by Persia. Persia’s claim, unofficially expressed for the first time
in 1887/8, had no historical or legal foundation and was asserted purely as an
act of territorial expansion and aggression at a time when Persia was seeking
to increase its power and influence in the Gulf. The occupation of the Tunbs
islands by Iran in 1971 was therefore illegal and an act of aggression in viola-
tion of the un Charter. As for Abu Musa, the mou must either be considered
invalid because it was secured under duress and the threat of force, thus mak-
ing Iran’s presence on the island illegal altogether, or even if that document
4 Introduction
constitutes a valid international agreement, it does not affect uae sovereignty

over Abu Musa, which was specifically reserved notwithstanding the limited
grant to Iran of the right to hold “jurisdiction” over part of the island. The uae
has also strongly asserted that even if the mou constitutes a valid international
agreement, Iran has flagrantly and repeatedly violated its terms, for which Iran
must bear international responsibility.
For Iran, the islands have been part of its sovereign territory from “time
immemorial”, and any activities the Qawásim may have carried out on the is-
lands during the nineteenth century or before were purely administrative in
nature and done at the behest of the Persian government, to whom the Qa-
wásim leaders who carried out such administrative duties were legally subser-
vient. Further, the defense of alleged Qawásim ownership rights over the is-
lands asserted by the British government during the nineteenth and twentieth
centuries had no legal basis, having been fabricated as part of its political agen-
da in defending British hegemony in the Gulf during that period. Iran’s seizure
of the Tunbs in November 1971 was therefore a legal exercise of its sovereign
rights to restore possession of its own territory, while the mou was a valid
international agreement which granted the uae a limited right to retain partial
“jurisdiction” over Abu Musa (with the remainder of the island falling under
Iran’s jurisdiction), but did not sacrifice in any way Iran’s sovereignty over the
island since the document reserves its rights in that respect.
The circumstances of the history of the dispute over the islands and the
seeming impossibility of reconciling the public positions of the two compet-
ing States set the stage for this book. As a study on territorial sovereignty under
international law, the work seeks to address, following a chronological se-
quence, the diverse legal issues which would be relevant to the dispute if it
were to be submitted for resolution by an international arbitral tribunal or by
the International Court of Justice applying international law. To address these
and other relevant legal questions in as comprehensive and dispassionate a
manner as possible, the authors have endeavored to access as much of the re-
corded history as is reasonably available and to go beyond the original sources
of historical information which, in tracing the history, use and possession of
the islands, have been used or referred to in previous scholarly work on the sov-
ereignty dispute over the islands. This undertaking has been aided by a num-
ber of archivists and researchers who, along with the authors, have sought out
clues and evidence in the national archives of those regional or foreign actors
which played an important role in the history of the Lower Gulf in and around
the area where the three islands are located. These have allowed the authors to
access both State and, particularly in the case of the Dutch and British, trading
company archives stretching from the beginning of the seventeenth century
through much of the twentieth century, providing some crucial evidence and
Introduction 5
information on the questions concerning the heart of this work and assist-
ing the authors in establishing the relevant history of the three islands. This
research forms an important part of the documentary evidence used in deter-
mining and analyzing the historically relevant events and the relative strength
of the asserted claims of the two parties.
The Islands – “A Pile of Rock”?
Against the repetition of argumentation which is consistently used by the

parties to frame the dispute, the subject of the dispute – that is, the islands
themselves, their use and physical characteristics – have become somewhat
obscured. In fact, historically the islands served various discernible economic
or social purposes or had some practical use for the sea faring people of the
region, whether as a safe harbor in rough seas, a refuge to which to escape when
hostilities on the mainland became too threatening, a location from which to
carry out activities central to their livelihoods, including fishing or pearling,
or as a place to transport animals for springtime grazing. A lighthouse was
placed on the Greater Tunb by the British in 1913 for general use by Gulf mari-
ners. And when the Persian government began to impose greater restrictions
on the use of Persian ports as trading stations, an idea was floated by the Brit-
ish to establish a Gulf trading port on Abu Musa. This idea was, however, never
acted upon. None of these historical uses, however, can be described as having
as great an intrinsic significance as that emanating, in the modern era, from
their geographical location astride the bottlenecked shipping lanes through
which a significant percentage of the world’s seaborne crude oil and natural
gas shipments pass (for example, in 2012 some 35% of all seaborne-traded oil,
or almost 20% of oil traded worldwide, passed through the Strait of Hormuz).3
While this strategic aspect of the islands’ importance cannot be overlooked,
and may explain certain actions taken most particularly by Iran in relation to
the islands,4 it has little to do with either the origin of the dispute over their
3 u.s. Energy Information Administration, “Strait of Hormuz is chokepoint for 20% of world’s
oil”, dated 5 September 2012. Accessed March 23, 2017. https://www.eia.gov/todayinenergy/
detail.php?id=7830, reporting that “The Strait of Hormuz … is the world’s most important
oil chokepoint due to its daily oil flow of about 17 million bbl/d in 2011, roughly 35% of all
seaborne traded oil and almost 20% of oil traded worldwide.”
4 A March 1968 internal and confidential note from the Arabian Department of the British
Foreign Office mentioned the islands’ strategic significance as being the “primary interest”
of Iran in recovering the Tunbs: “The Iranian claim to the two Tunb Islands is of long stand-
ing, but they have recently been stressing that their primary interest lies in their strategic
situation dominating the Straits of Hormuz at the entrance to the Persian Gulf, and the
6 Introduction
ownership or the considerations involved in determining which State should

be regarded as the rightful sovereign of these three small specks of land under
international law. Rather, the emergence of the countries on the Gulf littoral
as among the world’s most important energy producers and exporters has only
served, particularly in view of the serious geopolitical conflicts which have
affected the area over the past fifty years, to enhance the perceived strategic
importance of the islands and therefore to make the resolution of the dispute
over their legal ownership, already inherently complicated and intractable,
that much more difficult to achieve. However viewed, the perceived impor-
tance of the islands appears to have clearly eclipsed the description given to
the island of Abu Musa by the American lawyer of the Ruler of Sharjah in 1971,
when the latter – confronted by Iran’s threat to seize the island by force if he
did not accede in signing the mou – asked the former what he would do “if you
were in my place.” To this, the lawyer replied that “Abu Musa itself was nothing
but a pile of rock” and that so long as Sharjah’s claim of sovereignty was not
sacrificed, he would agree to share jurisdictional control of the island, along
with “the oil around it”, with Iran.5
That dismissive description aside, the following paragraphs seek to paint
a broad picture of each of the three islands, largely by relating a number of
eyewitness accounts and anecdotal descriptions made by various persons
throughout the ages, as well through certain historical events which shed light
on their nature and characteristics.
Lesser Tunb
The smallest of the islands, Lesser Tunb, which is located between longitudes
55-8′ and 55-9′ E and latitudes 26-14′ and 26-15′ N,6 has a surface area of just
2 km2. The island, which is roughly triangular in shape, is approximately 45
kilometers from the Iranian coastal city of Bandar-e Lengeh “(Lengeh)” and
80 kilometers from Ras Al Khaimah. The Lesser Tunb has historically been
uninhabited, appears to remain so today and, as discerned from the rare
importance of their not falling into hostile Arab hands when British forces leave the Gulf.
H.M.G. have consistently supported the sovereignty of successive Arab Rulers over the Is-
lands.” fco 8/55, 98.
5 Northcutt Ely, “Recollections of the Persian Gulf” (December 5, 1985). Accessed November 19,
2015. http://www.redlandsfortnightly.org/papers/persgulf.htm.
6 Ahmad Jalinusi and Vahid Karari Arayee, “The three Islands: (Abu Musa, the Greater & Lesser
Tunb Islands) Integral parts of Iran”, The Iranian Journal of International Affairs 30(4) (2007):
1–23, 2; hc Deb 9 June 2009, Vol. 493, cols. 225WH-232WH. Accessed January 15, 2016. http://
www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090609/hallindx/90609-x
.htm.
Introduction 7
archival reference or other anecdotal account, seldom visited during the pe-
riod most relevant to this dispute except reportedly when used for shelter by
fishermen, pearl divers or other mariners caught in rough seas. An 1818 descrip-
tion of the island had only this to say about it: “An island rather less than the
Great Tomb, appears at first in hummocks, is barren, and, like the Great Tomb,
uninhabited. Being rocky at the west end, it is to be approached with caution.
Its situation is about five miles W.1/2 S of the Great Tomb.”7 An 1836 report by
the hydrographer to the British East India Company noted that the island was
“barren” and “seems to be clear of danger.”8 In the same vein, the first edition
of the Persian Gulf Pilot published in 1864 stated that the island, “called often
by the natives, only Nabiyu”, “is barren and uninhabited, has no water, and lies
W. by S. from the great Tunb, the channel being 7 miles wide, with soundings
of 35 fathoms.”9 The Gazetteer of the Persian Gulf, Oman and Central Arabia, by
J.G. Lorimer, published in 1908, said this about the Lesser Tunb:
An island in the Persian Gulf, 8 miles west of the island of Tunb. It is

of triangular shape, 1 mile long from north-west to south-east, and ¾
of a mile broad at the south end. A dark-coloured hill which stands on
its north point is 116 feet high. The island is uninhabited and destitute
of water, but there is a good deal of vegetation of a salsolaceous kind.
Nabiyu Tunb is a favourite breeding place of sea birds. The ownership is
presumably determined by that of Tunb.10
Greater Tunb
The island of Greater Tunb has a surface area of 10.3 km2, with sources of fresh
water which have been sufficient to sustain small settled or seasonal popula-
tions residing there. As for other geographical specifics, the island is circular
shaped and located between longitudes 55-16′ and 55-9′ E and latitudes 26-15′
and 26-19′ N, situated approximately 27 kilometers southwest of Iran’s Qeshm
7 Toye, Lower Gulf Islands, Vol. 1, 5, containing extracts from “Brief Notes containing Histori-
cal and other information connected with the Province of Oman, Muskat, and the adjoin-
ing country, the islands of Bahrain, Ormus, Kishm and Karrack and other ports and places
in the Persian Gulf, by Captain K. Taylor, Assistant Political Agent in Turkish Arabia, 1818.”
8 Toye, Lower Gulf Islands, Vol. 1, 14, containing excerpt from “James Horsburgh, The Persian
Gulf and the Arabian Side of the Persian Gulf, 1836, W.H. Allen and Company (London).”
9 The Persian Gulf Pilot 1870–1932 (Cambridge: Archive Editions, 1989), Vol. 1 (1870), 170.
10 Toye, Lower Gulf Islands, Vol. 2, 632, containing “Extracts from the Gazetteer of the Persian
Gulf, Oman and Central Arabia by J.G. Lorimer on Abu Musa, Sir Abu Nu’air, Sharjah, Sirri,
Tunb and Nabiyu Tunb, 1908.”
8 Introduction
island, 50 kilometers from Lengeh and 70 kilometers from Ras Al Khaimah.11

One of the earliest recorded visits to Greater Tunb was by the Dutch explorer,
Cornelis Cornelisz Roobacker, who led an expedition to the Gulf in 1645–1646
and which called Greater Tunb Slangen Eijlandt, or “Snake Island”, a clear in-
dication of the nature of the island’s predominant, and apparently hostile, in-
habitants at that time, if not its general appeal as a location for disembarka-
tion. Thus, in describing the island in his journal entry of 3 July 1645, Roobacker
states that it has fresh drinking water but that it “is impossible to be collected
because of the manifold occurrence of snakes.”12 A later entry in the journal of
the Dutch ships in the Gulf noted on August 5, 1645 – most probably in rela-
tion to Greater Tunb13 – that: “[I]n the morning our commander’s sloop rowed
to land to see if there was any water or wood to be had but found that it was a
rocky island where there was nothing to be had for us. Around noon the sloop
returned; some of our soldiers said that they had seen people and also cows.”14
The French explorer Jean de Thévenot, writing about an expedition he led
to the region in 1667, noted that “When the Portuguese ran Muscat [until 1650]
they came every year with a few galliots to the Tombo island to receive tributes
11 Ahmad Jalinusi and Vahid Karari Arayee, “The three Islands: (Abu Musa, the Greater
& Lesser Tunb Islands) Integral parts of Iran”, The Iranian Journal of International Af-
fairs 30(4) (2007): 1–23, 2; hc Deb 9 June 2009, Vol. 493, cols. 225WH-232WH. Accessed
January 15, 2016. http://www.publications.parliament.uk/pa/cm200809/cmhansrd/
cm090609/hallindx/90609-x.htm.
12 na 1.10.30 (Geleynssen de Jongh) rec.no. 280A, Journal or daily register of the voyage
undertaken by the ships Delfshaven and the Schelvis to Basra on the river Euphrates, by
Cornelis Cornelisz Roobacker (June 28th – October 5th 1645) (translation by G.G.J. Boink,
on file with authors).
13 As indicated by G.G.J. Boink: “A strange by-product of the expedition to Basra of 1645 and
other expeditions into the Gulf organized by Wollebrand Geleynssen de Jongh was the
giving of Dutch names by the exploration teams to several islands in the Gulf. Most of
these names did not stick, a few survived on later Dutch maps … [T]he naming and plac-
ing on the map of the islands to the southwest of Qeshm posed quite a problem for the
cartographers. The number of islands changes from map to map, as do their locations.
With the toponyms leapfrogging to and fro, it is impossible to give a structured overview
of which island was given what name. Added to that, errors were made in copying the
names.” G.G.J. Boink, Report on the Occurrence of Information about the Islands of Greater
Tunb, Lesser Tunbs and Abu Musa in the Holdings of the Dutch National Archives (Nation-
aal Archief ) at The Hague, June 2014 (on file with authors), 9.
14 na 1.10.30 (voc) rec. no. 280A (Geleynssen de Jongh) [rggc], Journal register of the voy-
age undertaken by the ships Delfshaven and Schelvis from Bandar Abbas to Basra, June
28-October 5, 1645. See also Boink, Report on Islands (on file with authors), 8.
Introduction 9
brought to them from people of every harbor around those seas.”15 De Thévenot
added an interesting comment about Greater Tunb which he stated had been
told to him by Manuel Mendez, a representative of the Portuguese King in
the Gulf:
Manuel Mendez, who has been around those seas for a long time since
he was still very young and traveled a lot for many years in those coun-
tries, brought to my attention that if someone would build a fortress on
this island and if war boats would sail around, the fortress owner could
easily ask for a tribute from any boats sailing around because one neces-
sarily has to pass along the island coasts from one side or the other. The
island goes towards the South West, has 15 or 20 wells of good water but
there is one specific well where the water is excellent and there is a good
harbour.16
Despite this potential use, it was never so used. An early nineteenth century
description of the island declared that it “is well stocked with antelopes, and
there is good water on it. A banian tree stands in about the centre of the south-
ern side. The anchorage is pretty good to the south-east and west, but on the
northern part a spit runs off about three quarters of a mile, otherwise that part
is steep.”17 However, no mention of the island’s ownership is made nor whether
anyone in particular tended to use the island or control its use.
The 1864 edition of The Persian Gulf Pilot also noted the use of Greater Tunb
as a place to graze animals by indicating that “at times a few cattle are brought
over from the main for pasture, the island being covered with coarse grass and
shrubs” and adding that “[t]here are some wild antelopes on the island.”18 A
letter written in 1888, reporting comments of the Ruler of Sharjah concerning
Greater Tunb to the British Political Resident in the Gulf, indicates that little
seemed to have changed on the island in the intervening 243 years since the
visit of the Dutch in 1645:
15 Jean de Thévenot, Suite du Voyage de Levant, Part 2 (Paris: Kessinger Legacy Reprints,
1674), 354 (our translation from French).
16 Ibid. (our translation from French).
17 Toye, Lower Gulf Islands, Vol. 1, 10, containing a reproduction of “Account of Captain
G.B. Brucks (c. 1830), from ‘Memoir descriptive of the Navigation of the Gulf of Persia’, first
published c. 1830, Selections from the Records of the Bombay Government, no. xxiv, New
Series, 1856.”
18 The Persian Gulf Pilot, Vol. 1, 169.
10 Introduction
As regards the Island of “Tamb” he says there are no inhabitants in it, and
no village and no fisherman paying any taxes. The ground is open, and
when there is a fall of rain, grass grows there, and under permission of the
Kawasem [Qawásim] Chiefs of Oman, their friends are allowed to take
their cattle to the island, and they cut grass for their use.19
In his description of the island published in 1908, Lorimer provides this

description of Greater Tunb:
It is roughly circular in outline, but flattened on the south side; in diam-

eter it measures about 2 ¼ miles. The island is 165 feet in height at the
highest point, level and of a brown colour; it is very barren and sandy, but
there is some growth of coarse grass and shrubs, and a well on the south
side, near which there is large banyan tree, yields a small quantity of
indifferent water. The best anchorage is off the south coast.
Tunb belongs to the Shaikh of Sharjah, and is connected with the
Ras Al Khaimah District of his principality; of the six huts which at pres-
ent exist on the island one belongs to the Shaikh’s representative, who
is in charge of a Sharjah flag and flag-staff, two are occupied by Bani Yas
families originally from Dibai, and one is inhabited by a family of Per-
sians from Lingeh who have lived on the island for many years as employ-
ees of the Sharjah Shaikh. At times the population has been temporarily
increased by immigration from Bu Musa and Sirri, due to tribal differ-
ences at those places. The permanent inhabitants live by pearl diving and
fishing, by their flocks and herds, and by one small date grove; they are
extremely poor. About 20 horses annually are sent from the mainland to
graze here.20
A British report of September 1929 noted that Greater Tunb had a small settled
population, most of whom, however, left the island in the summer months:
The population of [the island] of Tamb … varies with the season. In win-
ter the population of Tamb is estimated to be 25 Arab and 4 Persian men,
exclusive of families. The Persians include the sheikh’s servant, who is
19 Toye, Lower Gulf Islands, Vol. 2, 12, containing “Translated purport of a letter from the
Residency Agent, Shargah, to the Political Resident, Persian Gulf, No. 3”, dated January 18,
1888.
20 Toye, Lower Gulf Islands, Vol. 2, 625–632, containing “Extracts from the Gazetteer of the
Persian Gulf, Oman and Central Arabia by J.G. Lorimer on Abu Musa, Sir Abu Nu’air,
Sharjah, Sirri, Tunb and Nabiyu Tunb.”
Introduction 11
entrusted with the task of hauling up the sheikh’s flag, and 2 employed as
water carriers for the lighthouse staff. In the summer the Persians remain
on the island, but all the Arabs leave for the pearl fisheries. Their wives
and families go to Khasab or Bakha on the Arab coast.21
In August 1971, just prior to Britain’s departure of forces from the Gulf, the Brit-
ish government reported that Greater Tunb had a population of approximately
150 persons.22
Abu Musa
Abu Musa is roughly circular or rhombus in shape with a maximum diameter

of 5 kilometers and a low-lying elevation which rises to over 100 meters at its
highest point, known in Arabic as Jebel Halwa (or Halva in Persian). The island,
which has a surface area of 12 km2 and sources of fresh water, is situated 60
kilometers north of the uae’s Gulf coast and 67 kilometers from Lengeh on
the Iranian coast, between longitudes 55-01′ and 55-04′ E and latitudes 25-51′
N.23 The 1890 edition of The Persian Gulf Pilot contained this description of
Abu Musa:
The island, is generally visited by the Shaikh of Sharja in the hot season,
and also by fishing boats from Sharja. The Shaikh has planted date palms,
and keeps horses here, and a number are bred on the island. About 50
Arabs look after the horses, and also some sheep and goats. Wells have
been sunk, and good water can be obtained.24
Upon inquiries by the British Political Resident in Bushire as to the status of

the island in May 1902, the Sharjah Residency Agent reported in reply to a
question about what else was taking place on the island that:
21 Ibid., Vol. 4, 240–241, containing a letter from Lieutenant-Colonel Barrett (Political

Resident in the Persian Gulf and His Majesty’s Consul-General for Fars) to Sir R. Clive
(Tehran), dated September 25, 1929.
22 fo 1016/913.
23 Ahmad Jalinusi and Vahid Karari Arayee, “The three Islands: (Abu Musa, the Greater
& Lesser Tunb Islands) Integral parts of Iran”, The Iranian Journal of International
Affairs 30(4) (2007): 1–23, 2; hc Deb 9 June 2009, Vol. 493, cols. 225WH-232WH. Accessed
January 15, 2016. http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm09
0609/hallindx/90609-x.htm.
24 The Persian Gulf Pilot, Vol. 3, 234.
12 Introduction
In winter some persons from Khan and Sharjah go to Bu Musa for the
purpose of fishing and grazing their flocks of cattle. These people return
to their homes when the pearling season sets in, & all that remain on the
island are 3 men who look after the date groves of Sheikh Salem bin Sul-
tan, & graze the cattle belonging to some persons. No officer is stationed
at Bu Musa on behalf of the Chief of Sharjah.25
A few years later (1908), Lorimer provided a more elaborate description of Abu
Musa:
In English formerly called “Bomosa.” An island in the Persian Gulf, a

few miles nearer to the town of Shārjah in Trucial ‘Oman than to that of
Lingeh in Persia and situated slightly to the west of a line joining those
places. In shape it is nearly rectangular and lies with its corners ap-
proximately to the cardinal points; its extent is about 3 miles diagonally
between opposite corners. The island is low and consists of great sweeps
of sandy plain covered with tussocks of dry grass but without trees; it car-
ries however some isolated hills of dark, volcanic appearance, and a sug-
ar-loaf peak, somewhat to the north of the centre, attains a height of 360
feet. Bu Musa is surrounded by fairly deep water and is a common place
of refuge for native boats in bad weather. There is good drinking water in
about 20 wells, also a plantation of about 150 date trees which is said to
belong to the Shaikh of Shārjah. The permanent population consists of
above 20 households of Sūdān from the village of Khān in Shārjah, all of
whom are fishermen and live in huts and mud houses. They are reported
to own 4 camels, 60 donkeys, 40 cattle, 200 sheep and goats, 7 pearling
boats and 5 fishing boats; and their provisions are obtained from Lingeh.
There is also a shifting population of persons from the Sharjah coast who
come to fish, or bring animals for grazing on the island; but of late years
their numbers have been fewer than formerly in consequence of failure
of pasturage due to want of rain. Some 10 or 15 donkeys are kept on the
island by the employees of a Persian contractor of Lingeh who has ob-
tained from Salim-bin-Sultan, the uncle of the Shaikh of Shārjah, a con-
cession to work deposits of red oxide of iron that exist on the island. The
concessionaire pays $250 a year to the Shaikh”s uncle by way of royalty;
his Persian workmen (men, women and children) sometimes number
100 souls; and the amount of oxide removed annually is said to average
40,000 bags. The island of Bu Musa belongs to the Shaikh of Shārjah who
25 Ibid., Vol. 2, 333–334.

Introduction 13
frequently visits it in the hot weather. There are several herds of wild
gazelle on the island.26
Around twenty years after Lorimer’s description, the British government had
reported that the “population of Abu Musa is 50 Arabs, 2 Persians and 3 Balu-
chis, but in summer the Persians and Baluchis remain on the island, but all the
Arabs except two – left as guards – depart for the pearl banks.”27 By 1971, just
prior to the British government’s departure of forces from the Gulf, it reported
that Abu Musa had a population of approximately 820 persons.28
The island, and the seas around it, have held a number of natural resources
which have attracted the attention of both private companies and govern-
ments. As noted by Lorimer, Abu Musa has been a source of red oxide, which,
in a display of territorial sovereignty, was the subject of several mining conces-
sions granted by the Ruler of Sharjah in 1898, 1923, 1935 and 1953. The circum-
stances of these grants are significant to this work, particularly as they provide
an interesting evidentiary window on the activities occurring on Abu Musa
during the late nineteenth and early twentieth centuries.29
An early (and unsuccessful) attempt to acquire a concession to mine red
oxide on the island was made by the hopeful concessionaires Messrs. A. and
T.J. Malcolm through a letter directed to the British Resident in the Gulf dated
May 11, 1898.30 The British Government of India advised the Resident to re-
spond to this request positively, although making it clear that the British gov-
ernment could not show any “favoritism” towards any particular individual,
and to let the local Shaikhs know that the British Resident would “be ready
to help them with advice in respect to any proposals made to them for trad-
ing privileges” in order to “protect the Chiefs from unscrupulous traders.”31
However, just a month earlier in April 1898 the acting Ruler of Sharjah (it be-
ing reported that the Ruler himself was absent on a pilgrimage to Mecca) had
already signed an agreement under which he leased “all the red oxide mines
situated on the Bu Musa island” to three individuals for an indefinite period of
time (“for such a period of time as they may wish to hold the mines provided
26 Toye, Lower Gulf Islands, Vol. 2, 625–626.

27 Ibid., Vol. 4, 240–241, containing a letter from Lieutenant-Colonel Barrett (Political
Resident in the Persian Gulf and His Majesty’s Consul-General for Fars) to Sir R. Clive
(Tehran), dated September 25, 1929.
28 fo 1016/913.
29 A more complete discussion of this matter is set out in chapter 8.
30 Toye, Lower Gulf Islands, Vol. 2, 273, containing a letter from Messrs. A. and T.J. Malcolm to
Captain F.B. Prideaux, First Assistant Resident in charge, Bushire, dated May 11, 1898.
31 Ibid.
14 Introduction
that they should pay me 250 French Dollars per annum”32). This contract, writ-
ten in Arabic and English, was endorsed by the Ruler upon his return and min-
ing operations proceeded under this arrangement until 1907.
There is no record of any protest by Persia over the 1898 agreement, nor,
however, any record that the Persian government was aware of it, although
soon after the acquisition of the lease by the three partners in April 1898, they
gave a share to one Nakhoda Ali-ben-Ahmed Saleh, a Persian subject of Bandar
Abbas who was also a British subject after having performed service for the
British government for a number of years.33 Moreover, the events surrounding
what may be described as the “Wönckhaus Affair”, an Anglo-German dispute
which took place from 1906 until 1914, indicate that the 1898 lease likely had
come to the attention of the Persian Government, if not when signed then not
long afterwards.34
The origin of the Wönckhaus Affair was a contract of June 1906 entered into
by one of the three partners of the red oxide concession agreement signed in
1898, Hassan bin Ali Samaiyeh (a resident of Lengeh who claimed British citi-
zenship), with a German citizen, Robert Wönckhaus, also resident in Lengeh
at that time.35 Under this agreement, Hassan Samaiyeh agreed, on behalf of
himself and his partners, to sell and deliver to Wönckhaus the entirety of the
red oxide production from Abu Musa for a period of 4 years and “not to sell or
dispose of otherwise any quantity of Bu Musa [oxide] during the term of this
contract.”36 Further, Wönckhaus was granted the right “whenever this contract
comes to an end” to renew the contract “at the same price and conditions or
at any rate at the price of other serious buyer.”37 As will be seen in chapter 8,
for the purposes of the sovereignty dispute over the islands, in particular Abu
Musa, the exchanges between the British and German governments to attempt
to resolve this commercial dispute are of particular relevance. These exchang-
es included substantial legal briefs on the topic and at one point the discussion
of the possibility of submitting the dispute to international arbitration, which
presumably would have required adjudication of the validity of the original
32 Ibid., Vol. 2, 329, and Vol. 3, 22, containing Reprint of Agreement.

33 Ibid., Vol. 3, 47, containing the instrument by which Nakhoda Ali-ben-Ahmed Saleh
became a partner.
34 See chapter 8 for further details on the possible knowledge of the Persian Government of
the granting of the red oxide concession in Abu Musa.
36 Ibid., Vol. 3, 24, containing a copy of the “Contract between Mr. Hasan C. Semey, Lingah,
owner and holder of the Bu Musa Concession, and Mr. Robert Wönckhaus, Lingah”, dated
June 1st, 1906. Ibid., Vol. 3, 18, explaining that Mr. Wönckhaus did not have a power of at-
torney from both his junior partners.
37 Toye, Lower Gulf Islands, Vol. 3, 24.
Introduction 15
concession granted by the Ruler of Sharjah and, therefore, a determination of

whether he was the lawful sovereign of the island of Abu Musa.
The waters around Abu Musa also contained oil deposits. Offshore, at a dis-
tance of approximately 20 kilometers east of Abu Musa, lies the Mubarak oil
field, which was originally developed under a 40-year concession agreement
signed by the Ruler of Sharjah and a u.s. oil company, Buttes Gas and Oil Com-
pany, on 29 December 1969. The concession area granted under the agreement
was defined as “all the territorial waters of the mainland of Sharjah within the
jurisdiction of the Ruler, all islands within the jurisdiction of the Ruler and the
territorial waters of the said islands and all the area of the sea bed and subsoil
lying beneath the waters of the Arabian Gulf contiguous to the said territorial
waters over which the Ruler exercises jurisdiction and control.”38 That agree-
ment was, under the Iran-Sharjah mou, retained by Sharjah with, however, the
concession revenues divided equally between Sharjah and Iran.39 The field was
largely depleted by 2009, when the concession agreement was terminated.40
Fundamental Legal Questions
Understanding the historical circumstances in which the dispute over own-

ership of the islands arose is of course of primary importance in determin-
ing to which party they rightfully belong. In the case of the three islands, it is
also important to understand that historical context in order to distinguish
whether claims made by either or both of the parties are grounded more upon
speculative (or inaccurate) historical assumptions or political objectives than
sound legal reasoning. Quite apart from the political context or considerations
which have existed around the dispute over sovereignty to the three islands
since their ownership was first contested in the late nineteenth century, there
are a series of critical legal questions which must be addressed in determining
their sovereign owner. These questions, which will be discussed in the chapters
38 Concession Agreement dated 29 December 1969 between Ruler of Sharjah & Buttes Gas
& Oil Company, & Clayco Petroleum Corporation, Barrows Library, Supplement 44.
39 Paragraph 4 of the mou provided that “Exploitation of the petroleum resources of Abu
Musa and of the seabed and subsoil beneath its territorial sea will be conducted by Buttes
Gas and Oil Company under the existing agreement which must be acceptable to Iran.
Half of the governmental oil revenues hereafter attributable to the said exploitation shall
be paid directly by the company to Iran and half to Sharjah.” Toye, Lower Gulf Islands,
Vol. 6, 490. See chapter 9.
40 Sky Petroleum Reports on Events Related to Mubarek Field: Buttes provides notice of ter-
mination of Mubarek Field Participation Agreement, January 7, 2010. Accessed December
3, 2015. http://www.businesswire.com/news/home/20100107007085/en/Sky-Petroleum
-Reports-Events-Related-Mubarek-Field.
16 Introduction
which follow in historical sequence beginning with the period prior to the
sixteenth century, include the following:
• Could a successful argument be made by Iran under international law that

its sovereignty over the islands is based on an acquisition of title by Persian
empires “in antiquity” and Iran’s enjoyment today of such ancient histori-
cal rights? Whether or not it is even possible to determine whether Persian
empires may have acquired and held such a title, is such a determination
relevant to the claims asserted by the parties in the nineteenth century or
thereafter?
• Whether Persian empires did or did not acquire such a title, did the King-
dom of Hormuz (a nominally independent trading principality established
on the island of the same name, located at the entrance of the Strait of Hor-
muz, which dominated Gulf trade from the fourteenth century until its fi-
nal submission to Portugal in 1515) or any power or State other than Persia
(or the Qawásim) ever subsequently acquire title to the islands prior to the
nineteenth century, and if so (given that no party other than Iran and the
uae claims ownership of the islands today), what was the disposition of that
title (whether transferred through treaty, abandoned, lapsed or lost through
prescription)? In the particular historical circumstances which are relevant
to the islands, this question is most pertinent to an argument which has at
times been advanced to the effect that the Kingdom of Hormuz held owner-
ship over the islands (either independently or as a vassal of the Persian em-
pire), and that this ownership was first lost to Portugal upon its conquest of
that kingdom, and then subsequently transferred to Persia, either upon Per-
sia’s defeat of the Portuguese at Hormuz in 1622 or upon the formal cession
of the islands to Persia in a treaty signed between Portugal and Persia in 1625.
• If it didn’t already hold title through ancient historical rights or through a
transfer secured by conquest or treaty with Portugal, did Persia otherwise
claim or acquire title to the islands at some point prior to asserting its claim
or suggesting its ownership of the islands in 1887/8? In connection with
this question, what is the significance under international law of (i) the
map evidence which Iran has pointed to as establishing its control over the
islands prior to 1887 and (ii) the inclusion of the islands within the geo-
graphic scope of any official Persian administrative department at a time
before Persia had ever exercised effective control of the islands?
• Could, alternatively, a successful argument be made by the uae under
international law that the Qawásim, in the form of the Sheikhdoms of
Sharjah and Ras Al Khaimah, claimed or acquired title to the islands at some
point prior to 1887, whether through effective control of unclaimed territory
(terra nullius), acquiescence, prescription or otherwise?
Introduction 17
• If the Qawásim did not already hold effective title in 1887, did they acquire
title at any point thereafter and prior to 1971 through effective control of
territory, prescription, acquiescence or some other mode of territorial
acquisition?
• Is there any merit, whether as a factual or legal matter, to the argument that
the administration of the islands by the Qawásim during the nineteenth
century was performed subject to and under the control of the Persian gov-
ernment, and if so, what is the legal effect on title to the islands which fol-
lows from such a determination?
• Did the events of November 1971, including the Iranian seizure of the Tunbs
and the signing of the mou concerning Abu Musa, affect title over any of
the islands, and, regarding the mou, what is its legal effect and how is that
document to be interpreted?
• Has the uae, at any point after November 1971, acquiesced to Iran’s seizure
of the Tunbs and/or effective control of Abu Musa, resulting in Iran acquir-
ing title to any of the islands through acquiescence or prescription?
• On the basis of all of the above, what is the “critical date” for determining
when the dispute between the two parties first arose, what were the rights
of the two parties on that date and has anything happened since then to
change the analysis of which party holds valid title over the islands?
While the legal questions arising from the historical circumstances of the
dispute involve numerous considerations, there is one discrete evidentiary
assumption which shows through. A report prepared in 1756 for the Dutch East
India Company asserted that two of the three islands which are the subject of
this book – Greater Tunb and Lesser Tunb – “belong[ed]” to an Arab tribe (the
“Marzoukis” or “Marazik”), although they were uninhabited and their purpose
was only to “serve them as a retreat in troubled times.”41 Almost two hundred
and fifty years before this remark was made, another European traveller, the
Portuguese Duarte Barbosa, who accompanied Alfonso D’Alboquerque on
one of his several voyages of conquest into the Gulf at the beginning of the
sixteenth century and was reportedly a cousin of Magellan, had apparently
identified the Greater Tunb island as pertaining to the Kingdom of Hormuz.42
41 na 1.11.01.01 rec. no. 461, Fol 3v, “Description of the coasts of the Persian Gulf and its inhabit-
ants”, addressed to Jacob Mossel, Governor-General of the Dutch East Indies [18th century]
(Tido Frederik van Kniphausen’s Report of 1756) (translation by G.G.J. Boink, on file with
authors). This report is further discussed in chapters 1 and 6.
42 Barbosa referred to the island as “Fomon”, but this was an apparent reference to Greater Tunb.
See Mansel L. Dames, ed., The Book of Duarte Barbosa, An Account of the Countries Bordering
on the Indian Ocean and their Inhabitants. Written by Duarte Barbosa and Completed about the
Year 1518 a.d. (London: Hakluyt Society, 1918), Vol. 1, 80–81.
18 Introduction
These scattered and somewhat legally unreliable references, centuries apart,

are two of the few documented pre-nineteenth-century references to any of
the islands which purport to assign ownership to any party. From the dearth of
references to the claimed or purported owner of the islands in archival or his-
torical documentation pre-dating the nineteenth century (as opposed to other
nearby islands in the southern Gulf area – such as Qishm, Hormuz, Larak and
Henjam islands – which are discussed more frequently and in greater detail),
it does not appear that the islands were of significant interest to any poten-
tial territorial claimants or occupiers prior to the nineteenth century except
those coastal dwellers who, according to various contemporaneous sources,
used them for grazing their animals or in relation to sea borne activities, such
as pearling or fishing. But the identity of these persons, and where in the Gulf
they came from or to whom they owed allegiance, has not been definitively
established, making it difficult to draw firm evidentiary or legal conclusions as
to the significance of these historical facts. Indeed, prior to the nineteenth cen-
tury, no evidence can be found of any formal claim to any of the islands ever
having been documented despite their having been identified and visited by
a number of parties, and despite the constant flow of vessels from numerous
regional and foreign parties past them over the centuries. From the research
the authors and a small team of academics have conducted in the archives of
various of the involved parties, it would appear that such clear documentary
evidence of pre-nineteenth-century claim or ownership does not likely exist.
For those reasons, it is difficult not to conclude that none of the three
islands was, well into the nineteenth century, considered of any significant
value by any party other than those coastal dwellers mentioned above. This
remark by Captain Kennet, a British officer who, in 1822, had been assigned the
duty of searching for a location to place a permanent cantonment for British
troops near the entrance to the Gulf, and after visiting Greater Tunb dismissed
it as a possibility, is an apt reflection of this conclusion:
The next place I visited was a small island called the great Tumb, about
30 or 40 miles south-west from Salak; it is about 3 miles in length and 2
in breadth; there is a large place in it open to the westward which would
be a most eligible spot for a cantonment, but the want of good water will
never allow it to be made a permanent station, there was only one well
which was very bad and brackish.43
43 Toye, Lower Gulf Islands, Vol. 1, 229, containing a letter of Captain Kennet, dated January 28,
1822.
chapter 1
Origins and Nature of the Dispute
In chapter 2 of this work, we will set out an overview of the history of the is-
lands and the Gulf region around them, highlighting the aspects of that history
which are most directly relevant to the territorial dispute between Iran and the
uae. In this chapter, certain parts of that history, and the background to the
fundamental legal questions they raise, will be summarized in order to lay a
foundation for the more substantive historical and legal discussion to follow.
In that regard, a useful point of departure is a description of the general cir-
cumstances prevailing in the Gulf in and around the three islands during the
closing decades of the nineteenth century when, as revealed in chapter 7, the
dispute first arose, and a brief synopsis of the relevant historical events leading
to that point.
On the Persian side of the Gulf, a resurgent Persian government, undertak-
ing what one modern scholar has described as an “unprecedented outburst
of … political activity in the Persian Gulf”,1 was in the process of seeking to re-
establish central government control over its littoral, large tracts of which had
been subject to a significant measure of largely unwanted (from the Persian
perspective) but irresistible local control by various, and occasionally mutually
adverse, Arab tribal groups or more organized State-like entities for extended
periods of time. In the southern Gulf area in the general vicinity of the three
islands, these were, most prominently, Oman under the Al Bu Sa’id dynasty,
which had established a presence in and around the port of Bandar Abbas
since the late 1790s, and the Qawásim of Sharjah and Ras Al Khaimah, which
had established a presence in and around the nearby port of Bandar-e Lengeh
(“Lengeh”) since the mid-eighteenth century, although the precise date of Qa-
wásim settlement in Lengeh is, as an historical matter, subject to some debate.
Even prior to the demise of the powerful Nadir Shah at the hands of assas-
sins in 1747, coastal areas of the northern, or Persian, side of the Gulf had been
ruled in a largely autonomous manner by various Arab tribes (or “principali-
ties”), which had co-existed within an array of interacting powers, authorities
and sources of influence and control. Following his death, this situation, if
anything, deteriorated. Other than the semi-independent Arab p rincipalities
established along the breadth of the Persian littoral, this mix of powers
1 Willem Floor, The Persian Gulf: The Rise and Fall of Bandar-e Lengeh, the Distribution Center
for the Arabian Coast, 1750–1930 (Washington dc: Mage Publishers, 2010), 50.

20 chapter 1
i ncluded central and regional Persian authorities (the latter of which at times
exercised a measure of territorial and political control independent of or even
hostile to the central Persian government), other regional powers from and
beyond the Arabian side of the Gulf whose influence at times stretched to in-
clude Arab communities settled on the Persian littoral (including, by the nine-
teenth century, Oman, the Ottoman Empire and the Wahhabi forces emanat-
ing from Arabia) and various European governments and their state-organized
trading companies, which first came on the scene in the sixteenth century.
The ambitions (focused largely on benefitting from East-West trade) and naval
strength of these imperial powers brought them to dominate Gulf waters to a
significant extent and, to a degree, its coastal communities and their activities.
This somewhat fluid political landscape, as it existed in the mid-eighteenth
century, has been succinctly described by one scholar as follows:
The shores and islands of both sides [of the Gulf] were dominated by
local Arab families who asserted their territorial pretensions and supple-
mented their fishing, pearling, and trading profits by occasional acts of
brigandage or piracy against their fellows and their inland neighbors.
They owed allegiance, often merely nominal, to inland rulers such as the
Imam of Muscat and Oman on the Arabian side and the Khan of Lar in
Iran, the latter in turn holding his authority as beglerbegi from the shah
when the latter was strong enough to assert overall suzerainty. From
early Safavid times this pattern had been augmented by the presence of
European colonial and commercial powers who vied with each other to
obtain favorable concessions from the local rulers and their overlords
and at times outdid their “pirate” competitors in seizing territory and
intimidating neighbors.2
A British government report, written by its political agent at Qishm in 1821,

revealed the continuation of the semi-independence of these small Arab com-
munities settled on the Persian coast into the nineteenth century: “The whole
of the Persian shore of the Gulf is in the possession of different Arab tribes,
and though they may have little differences and quarrels among themselves,
they would cordially unite to repel any attack the Persians might make to ac-
cept or subdue any one of them.”3 While the Arab communities settled on
2 John R. Perry, Karim Khan Zand, A History of Iran, 1747–1779 (Chicago: University of Chicago
Press, 1979), 150.
Archive Editions, 1993), Vol. 1, 297, containing a letter of Dr Jukes, dated August 24, 1821.
Origins and Nature of the Dispute 21
the Persian coast did what was needed to survive within this competitive and
ever-threatening environment, including pledging “allegiance” to more power-
ful overlords, in reality these overlords, and the Shah himself, did not exercise
real authority over them: “Even the petty rulers of the mainland ports, who
were vulnerable to his punitive campaigns, accorded him at best a marginal
compliance interrupted by outbreaks of defiance.”4 Curzon, writing in 1892,
was somewhat more emphatic in his description of the lack of Persian govern-
mental influence on the Gulf littoral and the lack of Persian maritime acumen
in general:
In the Persian Gulf it [navigation] was entirely in the hands of the Arab
tribes, who had crossed over from the Arabian mainland, and colonised
the entire maritime border of Iran. They were as venturesome as the Per-
sians were timid; from the eighth to the sixteenth century they retained
the trade of the seas, and their merchant fleets penetrated to India, to
Ceylon, to the Malay Peninsula, and to China; even to this very day the
native navigation of the Gulf is in their hands … So utterly deficient were
the Persians in any naval capacities, that when Shah Abbas wanted to
possess himself of the mercantile emporium of Ormuz, only a few miles
from the mainland, then held by the Portuguese, he was compelled
to invoke the aid of the British, to undertake the maritime part of the
engagement.5
European travellers to the Gulf in the seventeenth and eighteenth centuries

had also noted the phenomenon of Arab communities settling on the Persian
coast and exercising there a significant degree of autonomy from the Persian
authorities. In describing his travels through the Gulf in 1674, the Frenchman
Abbé Carré, sent by the French East India Company (Compagnie Française des
Indes Orientales) to give a diary account of activities in the “East Indies”, wrote
that the trip from Kung, a town on the Persian side of the Gulf coast at its south-
ern end, to Basra at the far north end of the Gulf, was perilous both by land and
sea. At sea various Arab groups “were all engaged in civil war with one another,
and had armed more than eight hundred large dhows, which controlled all the
sea from the Persian Gulf to Basra.”6 On land, wrote Carré, he would have been
4 Perry, Karim Khan Zand, 151.

5 George Nathaniel Curzon, Persia and the Persian Question (London: Longmans, Green & Co,
1892), Vol. 2, 390.
6 Sir Charles Fawcett and Sir Richard Burn, eds., The Travels of the Abbé Carré in India and the
Near East, 1672 to 1674. Translated from the Manuscript Journal of His Travels in the India Office
by Lady Fawcett (London: HakluytSociety, 1947), Vol. 3, 824.
22 chapter 1
obliged to pass through numerous Arab communities along the Persian side of
the Gulf coast, all of which “deride the power of the Shah of Persia, recognizing
only the authority of their sheikhs.”7 The Persian governor of Bandar Abbas
(a southern Gulf port town which itself was to become practically ungovern-
able by the Persian authorities during much of the eighteenth and nineteenth
centuries, when the governance of the town and its surrounding littoral and is-
lands (most prominently Qishm island) was leased by the Persian government,
first to an Arab tribe (the Bani Ma’in) in 1770 and, upon their defeat by the Al Bu
Sa’id dynasty of Oman in the late 1790s, to the Omanis until 1868) related to Car-
ré that he was powerless to intervene in a dispute Carré had become involved
in with a group of nearby coastal Arabs formally within his jurisdiction because
“he could do nothing against these people, as they were rebellious and would
never recognize any authority. Nor had they submitted to two or three gover-
nors sent against them to collect some dues from that part of the country.”8
A report, attributed to Tido van Kniphausen and Jan van der Hulst, and writ-
ten in 1756 for the Dutch East India Company, also found that the Persian litto-
ral of the Gulf coast was inhabited primarily by Arabs who lived independently
from the control of the Persian government:
[B]ecause since ancient times the Persians did not have the least disposi-
tion or inclination towards navigation we find that all those places of the
northern [Persian]9 littoral [of the Gulf], which, be it because of their
natural situation, be it because of a brook or small river that runs into
the sea, are capable of receiving vessels, are inhabited by Arab colonies.
These live from navigation, pearl diving or fishing … Their settlements
and houses are also miserable … This is not a bad policy on their part,
because having to lose nothing ashore they are able to leave their set-
tlements as soon as the Persian nobles and officials are bothering them
with [tax] quotas and other royal servitudes. They, accompanied only by
their wives and children, get into their boats and go to the nearest island
until the time they think they may live in peace again in their previous
settlements.10
7 Ibid.
8 Ibid.,Vol. 1, 111.
9 The Persian side of the Gulf is often referred to as the “northern” side while the side of the
Gulf on the Arabian Peninsula is often referred to as the “southern” side.
10 Willem Floor, The Persian Gulf: The Rise of the Gulf Arabs. The Politics of Trade on the
Persian Littoral, 1747–1792 (Washington, d.c.: Mage Publishers, 2007), 24–25.
Around 1772, not long after the van Kniphausen report was written, the German
traveller Carsten Niebuhr (who joined the expedition to Arabia sent by
Frederick v of Denmark) made similar observations about the predominant
influence of Arab tribes throughout the Persian side of the Gulf and their
independence from Persia:
Our geographers are wrong, as I have elsewhere remarked, in represent-

ing a part of Arabia as subject to the Monarchs of Persia. So far is it from
being so, that, on the contrary, the Arabs possess all the sea-coast of the
Persian empire, from the mouths of the Euphrates, nearly to those of the
Indus.
These settlements upon the coast of Persia belong not, indeed to
Arabia properly so called. But, since they are independent of Persia, and
use the same language, and exhibit the same manners, as the native in-
habitants of Arabia, I shall here subjoin a brief account of them.
It is impossible to ascertain the period at which the Arabians formed
their settlements upon this coast. Tradition affirms, that they have been
established here for many centuries. From a variety of hints in ancient
history, it may be presumed, that the Arabian colonies occupied their
present situation in the time of the first kings of Persia.
…
They prize liberty as highly as do their brethren in the desert. Almost
every town has its own Sheikh, who receives hardly any revenue from his
subjects … [and] … [i]f the principal inhabitants happen to be dissatis-
fied with the reigning Sheikh, they depose him, and choose another out
of the same family.
…
Their dwellings are so paltry, that an enemy would not take the pains
to demolish them. And as from this circumstance, these people have
nothing to lose upon the continent, they always betake themselves to
their boats at the approach of an enemy, and be concealed in some isle in
the Gulph till he have retreated.11
Anthropologists, historians and other scholars of Gulf history have also widely
recognized that the Persian coast was, since the Sassanian period beginning in
24 chapter 1
the third century, inhabited by Arab communities.12 While there is disagree-

ment over the extent, impact and timing of this migration of people from the
Arabian peninsula to the shores of Persia prior to the eighteenth century, it
has been noted that from the early to the middle of the eighteenth century it
is “possible to recognize a systematic settlement of Arab tribes on the Iranian
coast between Kangan and Bandar Lingeh.”13 Lawrence Potter explains this de-
velopment as the result of the “decades-long political struggle” following the
death of Nadir Shah in 1747 during which “there was no strong central govern-
ment, and the southern ports were largely autonomous or controlled by Arabs
from the other side of the Gulf.”14 The eighteenth century Arab expansion and
settlement on the Persian littoral of the Gulf also coincided with upheavals in
Persia, including the decline and ultimate demise of the Safavid Empire, the
defining moment of which was the fall and sack of Isfahan to the Afghans in
1722, and subsequent periods of Persian instability or governmental weakness,
such as that following the assassination of Nadir Shah in 1747.
Throughout much of this period, and particularly until the late nineteenth
century, Persia manifested a particular inability to control its coastal areas
on the Gulf in any consistent and direct manner, thus ceding or leaving the
way open for significant elements of that control and administration to be
taken over by the Arab sea faring powers which, supported by their maritime
strength and motivated by their desire to enhance their economic fortunes de-
rived from seaborne trade and other economic undertakings, such as pearling
and fishing, had succeeded in establishing themselves in those coastal areas.
Although circumstances were subject to much detail and nuance, as the Per-
sian State was more preoccupied with territorial threats, including those from
Russia, the Afghans and ill-defined borders with the Ottoman Empire, as well
as suffering from internal weakness and instability during much of the eigh-
teenth century, its leaders “were not particularly interested in the Gulf or able
to assert themselves there.”15 Another key factor in the lack of Persian govern-
ment control of its Gulf littoral (or Gulf islands) lay in its lack of any signifi-
cant naval forces, a condition which, with one brief but unsuccessful attempt
12 See, e.g., Shahnaz Razieh Nadjmabadi, “The Arab Presence on the Iranian Coast of the
Persian Gulf”, in The Persian Gulf in History, ed. Lawrence Potter (New York: Palgrave
Macmillan, 2010), 131.
13 Ibid.
14 Lawrence G. Potter, “The Consolidation of Iran’s Frontier on the Persian Gulf in the
Nineteenth Century”, in War and Peace in Qajar Persia, ed. Roxane Farmanfarmaian (Lon-
don: Routledge, 2008), 125.
15 Ibid.
during the reign of Nadir Shah, had curiously (given its lengthy coastline) pre-
vailed for centuries and would continue until the twentieth century.
The period of relatively organized and methodical Arab expansion to the
Persian littoral of the Gulf – settlement by Arab groups on the Persian coast
and relations by and among populations all around the Gulf having existed
since pre-Islamic times – by Oman and various Arab tribes up and down the
Gulf had occurred in the midst of the long period of European naval and po-
litical hegemony in the Gulf. This European interference in and domination
of Gulf affairs, generated principally by a desire to control or reap the ben-
efits of East-West trade, began with the arrival and conquest of the Kingdom
of Hormuz by the Portuguese under the command of Alfonso D’Alboquerque
at the commencement of the sixteenth century (1515). By the time of its con-
quest, the Arab-origin rulers of the Kingdom of Hormuz had reigned over and
benefitted from much of the trade passing through the Gulf from the tiny is-
land of the same name situated just off the Persian coast at the Strait of Hor-
muz (and in close proximity to the three disputed islands) for several hundred
years, possibly since the fourteenth century. Although Portugal maintained the
Kingdom of Hormuz in name, as well as its King as titular ruler, he sacrificed
the Kingdom’s independence by swearing obedience to the King of Portugal
and his governors and by commanding “his people to fly the Portuguese flag
from the loftiest pinnacle of his palace.”16 With its conquest, Portugal became
the undisputed and dominant naval power of the Gulf waters, particularly its
southern region, monopolizing the trade routes through its naval superiority
and collecting customs revenues and tributes through its control of trading
emporia (primarily Hormuz, Muscat and Bahrain).
Persia, which had not been able to subject Hormuz to its absolute rule over
several centuries but which had reportedly managed to exact the payment of
tribute from the King of Hormuz for some years prior to the conquest of the
Kingdom by Portugal, sought to continue this practice following the imposition
of Portuguese rule. Alfonso D’Alboquerque rejected this suggestion outright
with the following emphatic and menacing message conveyed to Shah Ismail
through the King of Hormuz, making clear that he, Alfonso D’Alboquerque, on
behalf of the King of Portugal, considered the Portuguese to be conquerors of
the territories previously held by the Kingdom of Hormuz:
Alfonso Dalboquerque replied, that he might tell the king that his king-
dom of Hormuz belonged to the King of Portugal, gained by his fleet
16 Alfonso de Albuquerque, The Commentaries of the Great Alfonso Dalboquerque, Trans-

lated from the Portuguese Edition of 1774 (Cambridge: Cambridge University Press, 2010),
Vol. 4, 146.
26 chapter 1
and his men, and that he might know of a certainty that if any tribute
should be paid to any other king, except the king D. Manoel, his lord,
he would take the government of the kingdom and give it to someone
who would not be afraid of the Xeque Ismael. He then sent to the ships
for cannon-balls, guns, matchlocks, and grenades, and told him to say
to the king that he might send all these to the captain of the Xeque Is-
mael, for that was the sort of money wherewith the King of Portugal had
ordered his captain to pay the tribute of that kingdom that was under
his mastery and command; he, for his part, would promise him, that as
soon as the fortress was completed, he would enter the Persian straits and
render tributary to the King of Portugal, his master, all the places which
the Xeque Ismael held on that shore, and when he got there they might
demand the tribute due from the King of Ormuz; for he would pay it to
them in very good money.17
The Portuguese presence in the Gulf was to last until 1750, but its decline in
power and influence began much earlier and dramatically with their defeat
and expulsion from Hormuz by the combined forces of Persia and Britain in
1622 under the terms of a treaty hastily entered into and executed by Persia
and the naval forces of the British East India Company. With the defeat of the
Portuguese, Persia conquered and immediately took under its control the is-
lands of Hormuz and Kishm. The Portuguese retrenched to their fortresses at
and around Muscat on the Arabian side of the Gulf, but with the loss of Muscat
to the forces of the Omani Ya’ariba dynasty in 1650, and with it Portugal’s last
significant territorial possession in the Gulf, the nature of Portugal’s presence
in and control of Gulf affairs declined irreversibly, being left with nothing but
a relatively small customs house it managed to establish on the Persian coast
at the port of Kung in 1625, and the influence it exercised (and damage it could
inflict on the vessels of competitors) through its occasional naval visits to the
Gulf. The decline of Portuguese power was followed by periods of domination
of Gulf waters by the Dutch (whose continuous presence in the Gulf can be
traced from around 1623 to 176618) and the British, whose overwhelming domi-
nation of the Gulf began in earnest at the beginning of the nineteenth century,
although its efforts to establish a dominant naval presence in order to control
trade through the Gulf stretched back to the early seventeenth century, and
formally continued until 1971.
17 Ibid., Vol. 1, 145.

18 Willem Floor, “Dutch Relations with the Persian Gulf,” in The Persian Gulf in History, ed.
Lawrence G. Potter (London: Palgrave Macmillan, 2010), 251.
As Persia experienced a period of fracture, partition and central government

weakness during the eighteenth century and European trading powers exer-
cised continuing domination of Gulf waters and, to an extent, its littoral, Arab
expansion towards the Persian coast intensified and became more established
in various instances. In the southern Gulf area, in close proximity to the three
islands in dispute, there were several important cases in point. For purposes
of this study, the most prominent and relevant example of this historical phe-
nomenon was the settlement in the port town of Lengeh and its surroundings
by the Qasimi sheikhs and their tribal followers, whose principal seat of power
was then, as now, on the Arab littoral of the Gulf, in and around the present-
day uae Emirates of Sharjah and Ras Al Khaimah.19 Hawley notes that follow-
ing Nadir Shah’s assassination in 1747, a “pandemonium of indecisive warfare
among petty chiefs” took place, and in “this general political atmosphere the
Qasimi shaikh of Ras al Khaimah made his first appearance on the Persian
scene.”20 Wilson adds that the Qawásim “became increasingly aggressive after
the death of Nadir Shah in 1747, when, as we have seen, Persian influence in the
Gulf began to decline. They then directed their energy to exploiting the nearer
parts of the Persian coast, and to promoting or opposing the policy of their
neighbour, the Imam of Oman, as their interests of the moment dictated.”21
Some scholars have gone as far as describing the Qawásim as leaders of
a “state centered around Sharjah and Ras Al Khaimah at its height (c.1750s–
1860s)” which, “in terms of their economic, military, political and d emographic
resources”, was more like a mature state than other smaller tribes around
the Gulf.22 Others have noted that the “Qasimi shaikhs were the aristocracy
of the lower Gulf, having been situated there by their own account since the
19 As described in further detail below, the Qawásim became established as the rulers of the
areas around present-day Sharjah and Ras Al Khaimah (two of the seven Emirates making
up the United Arab Emirates), coming to prominence in regional affairs during the be-
ginning of the eighteenth century and later extending their presence and authority over
areas on the Persian littoral, including most importantly around the Persian coastal town
of Lengeh, from around the middle of the eighteenth century until (almost uninterrupt-
edly) the late nineteenth century, as well as the Gulf islands of Sirri, Abu Musa, Greater
Tunb and Lesser Tunb. The Qawásim proved to be extremely talented at seafaring, and
from their various areas of control and influence in and around the Gulf, they engaged in
trade, fishing, pearling and other seaborne activities.
20 Donald Hawley, The Trucial States, 92.
21 Sir Arnold T. Wilson, The Persian Gulf, 201.
22 James Onley and Sulayman Khalaf, “Shaikhly Authority in the Pre-oil Gulf: An Historical-
Anthropological Study”, History and Anthropology 17(3) (2006): 189–208, 191.
28 chapter 1
bbasid Empire” and who were “major merchants of the sea trade.”23 J.B. Kelly
A
describes the Qawásim as a confederacy whose power lay in its maritime
strength: “‘Qawásim’ was a term loosely applied to denote the tribes subject to
the authority of the Qasimi shaikhs of Sharjah and Ras al-Khaima, but it ap-
plied more strictly to the shaikhly family itself.”24 Similarly, Sultan Al-Qasimi,
the current Ruler of Sharjah, explains that the Qawásim “included many mem-
bers of other tribes inhabiting Sir who acknowledged the authority of the
Qasimi chief of Ras al-Khaimah.”25 Malcolm Yapp, who describes the political
structure of the Gulf in 1800 as “recently formed”, asserts that the Qawásim,
having risen to power “following the decline of Omani influence in the first
half of the eighteenth century”, then “offered a major challenge to Muscati
maritime preeminence.”26 Expanding upon this description, Al Qasimi writes
that the Qawásim and their tribal confederation “were engaged in commercial
enterprises, in the cultivation of extensive groves of date palms, and in the
pursuit of a lucrative pearl fishery…. Their fleet of large boats visited the ports
of India, Yemen, Africa, Sind, Cutch, Muscat and also Basra”, sea-borne trade
being “practically the only source of livelihood in their arid lands.”27 Trade with
India was particularly vital “because it was from there that they could acquire
the two most important commodities, food for themselves and wood for their
23 William O. Beeman, “Gulf Society: An Anthropological View of the Khalijis – Their Evolu-
tion and Way of Life”, in The Persian Gulf in History, ed. Lawrence Potter (London: Palgrave
Macmillan, 2010), 151. Donald Hawley adds that “Qawásim is the family name of the rulers
of Sharjah and Ras al Khaimah, who claim to be Sherifs descended from the family of the
Prophet Muhammad. Their name may have come from Shaikh Qasim, the grandfather of
Shaikh Rashid ibn Mattar, who was the first sufficiently eminent member of the family to
be mentioned in British records. The Qawásim are a branch of the Hawala Arabs, who for
many centuries occupied both shores of the Gulf.” Hawley, The Trucial States, 91. Lorimer
describes the Qawásim as “the family (or small tribe) to which the ruling Shaikh of Shar-
jah and his relations belong: they claim to be Shurafa descended from the family of the
prophet Muhammad.” Lorimer, Gazetteer of the Persian Gulf, Vol. 9, 1547.
24 J.B. Kelly, Britain and the Persian Gulf 1795–1880 (Oxford: Oxford University Press, 1968), 17.
Wilson echoes this by noting that “the term Qawásim refers to the subjects and followers
of the Qasimi shaikh of the district of Sharja, to whatever tribe they might belong, whose
head-quarters at this time was the coastal settlement of Ras al Khaima.” Sir Arnold T.
Wilson, The Persian Gulf, 200, note 1.
25 Sultan Muhammad Al-Qasimi, The Myth of Arab Piracy in the Gulf, 2nd. ed. (London:
Routledge, 1986), 26–27.
26 Malcom Yapp, “The Nineteenth and Twentieth Centuries”, in The Persian Gulf States, A
General Survey, ed. Alvin. J Cottrell (Baltimore: John Hopkins University Press 1980), 45.
27 Al-Qasimi, Myth of Arab Piracy, 13, 31.
ships.”28 Al Qasimi estimates that the Qawásim fleet at the end of the eigh-
teenth century “consisted of 63 large and 669 small ships, with a complement
of 18,760 men.”29 Sir David Seton, the British Resident in Muscat at the begin-
ning of the nineteenth century, wrote in 1807 that the Qawásim had a fleet of
some 500 vessels and 20,000 men.30
Whether the Qawásim polity constituted a “State” or not, from 1806 the
Qawásim sheikhs entered into a series of agreements, or treaties, with the Brit-
ish government on behalf of the Qawásim rulers and their “dependencies”,
giving a form of international recognition to the Qawásim entity and lending
some credence to the assertion that it constituted a subject of international
law. This recognition “helped to empower” the Qawásim and other coastal
tribes which entered into similar treaties “to dominate the independent rulers
and tribal leaders of the interior, whom the British had not recognized”, but it
also made the Qawásim (and the other tribal treaty partners of the British) ac-
countable for the actions of those “unrecognized” tribes.31
The first several of these treaties (the circumstances of their signing shall
be discussed in more detail in chapter 7), it should be added, signed by the
Qawásim chief in 1806 and 1820, followed serious confrontations between the
Qawásim and British fleets, and while they may have conferred on the Qawásim
a certain State-like character, in their terms they can only be understood as im-
posing a peace on the Qawásim whose ultimate purpose was to allow British
shipping to operate at will in traditional Qawásim areas of the Gulf and there-
by dominate Gulf trade. Thus, the 1806 treaty provided, among other terms,
that there would be peace between the British East India Company and the
Qawásim “dependents and subjects on the shores of Arabia and Persia”, that
the Qawásim “shall respect the flag and property of the Honourable East India
Company, and their subjects wherever and in whatever it may be”, that any in-
fringement of that condition would require payment by the Qawásim of 30,000
dollars, and that the Qawásim would “assist and protect” any British vessel and
property which may arrive on the shores of the Qawásim coast.32
28 Ibid., 31.
29 Ibid.
30 Cited in Al-Qasimi, Myth of Arab Piracy, 26.
31 Onley and Khalaf, “Shaikhly Authority in the Pre-oil Gulf”, 202–203.
32 C.U. Aitchison, A Collection of Treaties, Engagements, and Sanads Relating to India and
Neighbouring Countries (Calcutta: Office of the Superintendent of Government Printing,
1892), Vol. 10, 121–122, containing “Agreement between Sheikh Abdulla bin Croosh, on the
part of Sheikh-ul Mus Sheikh Ameer Sultan bin Suggur, bin Kashid, Joasmee, and Captain
David Seton, on the part of the Honourable East India Company. In Bunder Abbass, this
sixth day of February 1806.”
30 chapter 1
The two treaties signed in 1820 (an initial surrender of arms and a subse-
quent treaty of peace) followed several years of naval confrontations and, in
December 1819, a major naval and land action by the British fleet supported by
Omani troops, which reportedly killed scores of Qawásim tribal members and
destroyed numerous Qawásim vessels and land-based fortifications and other
infrastructure in Qawásim towns on both sides of the Gulf, including Lengeh.
The following narrative of part of the action taken against the town of Ras Al
Khaimah (the first target of the British assault), from a British officer who was
present, gives a sense of the ferocity of the battle:
The ships of war having approached nearer the town, in conjunction

with our batteries, opened a most vigorous fire on the morning of the
5th. Shells were thrown with evident effect. Towards the close of the day’s
work a Joasim spy was brought in prisoner; he informed us that the en-
emy had suffered great loss, nearly ninety killed besides wounded. The
Sheikh’s brother had lost his leg by cannon-shot…. About one, a dark ob-
ject, like a large black dog, was seen creeping along on all fours, several
similar objects following. The advance pickets were instantly cut down,
all was hurry, shout and bustle. The trenches were filling with a large par-
ty of Arabs, engaged in a close contest with our men, who were speared
and stabbed in a twinkling. Already the Arabs had succeeded in drag-
ging away a howitzer in triumph. The alarm spread like wildfire through
the trenches. A part of the 65th Foot, under Major Warren, instantly
advanced in double quick time, attacked the assailants, drove them out
of the trenches, and recaptured the howitzer. A desperate conflict en-
sued: the Arabs fought like furies, but they were soon bayoneted; nearly
all of them, ninety in number, were found lying in the trenches…. The
cannonade was recommenced at an early hour the next morning, and
as the progress of the breach became hourly more apparent and prac-
ticable, the necessary arrangement were made to assault the works. On
receiving the announcement, great satisfaction was expressed by the
force, for though a severe struggle was expected, success was deemed cer-
tain, and much plunder was anticipated … Hassan bin Rahma, Chief of
Ras-ul-khymah, with nearly one thousand followers, surrendered himself
in person. He stated that during the siege, while he was holding a council,
a shell from our batteries burst into the room, and instantly exploding,
killed and wounded about one hundred of his fighting men, and created
infinite consternation throughout the garrison.33
33 Charles Rathbone Low, History of the Indian Navy (1613–1863) (London: R. Bentley and Son,
1877), Vol. 1, 355–358.
Lorimer described the object of this action in terms of staunching Qawásim

“piracy”: “[I]t was clearly indicated that the main purpose of the expedition
was the exemplary punishment of the Qawásim of Ras-al-Khaimah and the
annihilation of their power, by the capture of the town and the destruction of
all their piratical craft as well as of every object of naval or military use which
might be found there; and similar measures were to be applied to Rams and
other guilty [sic] ports subordinate to Ras-al-Khaimah, and to places on the
Persian coast of which the piratical character might be established.”34 Malcolm
Yapp addresses the contentious issue of “piracy” by noting that “[t]he prosper-
ity of the people of the Gulf depended upon trade and the pearl fisheries” and
that “[i]n the early nineteenth century, persistent maritime warfare threatened
to ruin both.”35 Under these circumstances, says Yapp, “a more convincing ex-
planation [for such maritime violence] is that which relates the outburst of
maritime warfare to the competition of the Arab ports for a larger share of the
trade then engrossed by Muscat, the efforts of Muscat to extend its power over
a greater area of the Gulf, and the efforts of all concerned to dominate the pearl
fisheries.”36 Sultan Al-Qasimi posits a very different explanation:
The indigenous people of the Gulf were normal people with normal
human ambitions. Although poor, they were skillful. They were people
practising normal human activities, in particular trade, in which they
had been involved for millennia. The only abnormal factor was the in-
troduction of a foreign people whose aim was to dominate and exploit.
The intruders were the forces of British imperialism, who knew very well
and often testified that the indigenous people of the Gulf were only inter-
ested in the peaceful pursuits of pearl diving and trade.
Advocates of British imperialism have managed to propagate the no-
tion that towards the end of the eighteenth century and during the first
two decades of the nineteenth the Arabs of the Gulf, particularly the
Qawásim, were zealously involved in a great scheme of piracy against in-
ternational trade….
Supporters of this argument want us to believe that the Arabs of the
Gulf were saved from this nefarious occupation by the benevolent efforts
of the British East India Company, whose intervention in the Gulf was for
the sole purpose of preserving law and order…
34 John G. Lorimer, Gazetteer of the Persian Gulf, Oman and Central Arabia (Cambridge:
rchive Edition, 1986), Vol. 2, 664.
A
35 Yapp, “Nineteenth and Twentieth Centuries”, 47.
36 Ibid., 48.
32 chapter 1
In my view, however, the East India Company was determined to

increase its share of the trade of the Gulf by all possible means.37
Whatever the merits of the opposing views involved in that debate, and al-
though the British couched the confrontation with the Qawásim in terms of
combatting “piracy”, there can be no doubt that the outcome of the British
action against the Qawásim in 1809 and 1819, and the resulting treaties signed
by the Qawásim in 1820, were significant instruments of conquest and sur-
render whose principal result was to establish British power and domination
over the Qawásim in the area. Thus, the first of those agreements required the
Qawásim to surrender to the British all “towers, guns and vessels” except those
vessels “which are for the pearl fishery and fishing boats”, while for their part
the British agreed not to enter Qawásim towns “to lay them waste.”38 The sec-
ond of the 1820 treaties, the “General Treaty with the Arab Tribes of the Persian
Gulf”, prohibited “plunder and piracy by land and sea”, including the carrying
of slaves, forbidding any attacks on anyone from any nation unless part of an
“acknowledged war”, which, it might be noted, was defined as one which is
“proclaimed, avowed, and ordered by government against government” (thus
recognizing the Qawásim as a “government” capable of declaring war).39 The
treaty also required Qawásim vessels to fly a specific ensign and carry a register,
which they would have to produce for inspection to any British or other vessel
they were to meet.40
This short digression into the initial treaty relations between the Qawásim
and the British relates to events which occurred after the establishment of the
Qawásim presence on the Persian coast, centered at the port of Lengeh. The
timing and, more importantly, the nature of that presence, including the nature
of the relationship which developed between the Qawásim rulers in Lengeh
and the Persian government, are – for reasons explained below – important
historical considerations which touch directly upon the dispute between Iran
and the uae over the three disputed islands.
How the Qawásim came to be established in Lengeh during the mid eigh-
teenth century – and exactly when that occurred – is a matter of some debate.
Original archival sources provide little help in this regard, although writings
37 Al-Qasimi, Myth of Arab Piracy, xiv–xv.

38 Aitchison, A Collection of Treaties, Vol. 10, 122–123, containing “Translation of the Prelimi-
nary Treaty with Sultan bin Suggur – 1820.”
39 Ibid., Vol. 10, 127–129, containing “Translation of the General Treaty with the Arab Tribes
of the Persian Gulf – 1820.”
40 Ibid.
dating from the seventeenth century affirm that the town or, more accurately,
village was even then largely inhabited by Arabs (although not identified as Qa-
wásim). Writing in 1674, Abbé Carré noted that Lengeh was “a large Arab village
situated on the seashore” approximately “two leagues from Kung.”41 Academic
authorities trace the initial period of Qawásim sway in Lengeh from around
1720 (when, reportedly, a Qawásim leader participated with the Yarubi dynasty
of Oman in attacking and seizing large tracts of the Persian coast in the vicinity
of Bandar Abbas and Qishm island, whereupon the Qawásim began to settle,
or infiltrate, the area adjacent to Lengeh42), while others contend that it began
in earnest later in the eighteenth century, following the assassination of Nadir
Shah in 1747, which was a “time of chaotic conditions” throughout Persia, and
particularly in the Gulf area which was left to its own devices.43 Van Kniphau-
sen, writing in 1756, identified the residents of Lengeh as belonging to the
Marazik Arab tribe (which formed part of the Qawásim federation),44 while
Niebuhr, who travelled throughout the Gulf in 1761, wrote that the Qawásim
(who he describes as the Arabs of “Dsjulfar” or “Ser”) “possessed” Lengeh, and
that the inhabitants of the village “recognized” the Sheikh of the Qawásim as
“sovereign.”45 A straightforward explanation by a more contemporary source,
albeit lacking in detail, is provided by Kelly:
In the confusion that followed the death of Nadir Shah of Persia in 1747,
the Qawásim seized Lingah on the Persian coast and obtained a foothold
on the nearby island of Qishm. The subsequent rise to power of Karim
Khan in southern Persia resulted in their being expelled from these
places in 1765, but on Karim Khan’s death in 1779 they returned and
re-established themselves at Lingah.46
Several other sources provide accounts which, while varying in certain details,
are consistent in maintaining the general historical sequence which brought
41 Carré, Travels of Abbé Carré, Vol. 3, 824.

42 Thomas R. Mattair, The Three Occupied uae Islands: The Tunbs and Abu Musa (Abu Dhabi:
Emirates Center for Strategic Studies and Research, 2005), 34–35.
43 Nadjmabadi, “Arab Presence on the Iranian Coast”, 133.
44 na 1.11.01.01 rec. no. 461, Fol 3v, “Description of the coasts of the Persian Gulf and its in-
habitants”, addressed to Jacob Mossel, Governor-General of the Dutch East Indies [18th
century] (Tido Frederik van Kniphausen’s Report of 1756) (translation by G.G.J. Boink, on
file with authors). See also Mattair, Three Occupied uae Islands, 36–37.
45 Carsten Niebuhr, Description de L’Arabie d’après les Observations et Recherches Faites Dans
Le Pays Même (1773) (Copenhague: Chez Nicolas Möller 1773), 272.
46 Kelly, Britain and the Persian Gulf, 19.
34 chapter 1
the Qawásim to prominence in and around Lengeh. Essentially, these accounts

are consistent in asserting that the established and long-standing Qawásim
presence on the Persian coast arose out of the events following the death of
Nadir Shah, when central government control broke down in Persia and rival-
ries between various Persian and Arab figures and centers of power established
on the Persian littoral, each vying for authority, resulted in the formation of
alliances, including between Persian and Arab groups. In the case of the Qa-
wásim, it formed an alliance with the forces of Mullah Ali Shah, governor of the
Persian port of Bandar Abbas, who had also been commander of Nadir Shah’s
doomed fleet and who had sought to establish his independent authority in
and around the port and on the island of Qishm in the face of challenges from
both Persian and Arab rivals in the 1750s. Out of this alliance, which brought
Qawásim forces into the fray in Persian coastal areas, the Qawásim were even-
tually able to establish themselves in the nearby port of Lengeh:
As the war dragged on, a branch of the Qasemis managed to establish

itself at Lengeh, Laft, Shenas and Qeshm Island. Karim Khan Zand (1757–79)
was tolerant towards the autonomous Arab tribes on the northern coasts,
actually seeking their assistance in his struggle for power. His lean-
ing towards these Arab tribes, meanwhile, helped the Qasemis of both
shores to achieve prominence in the late eighteenth and early nineteenth
centuries.47
Regarding these same events, Al-Qasimi writes that “[i]n the chaos that fol-
lowed the assassination of Nadir Shah in 1747, the major actors on the Persian
coast were, first, Nasir Khan, the hereditary ruler of the region of Lar adjacent
to the Gulf, who had ambitions to be the major figure in the area, and second,
Mulla Ali Shah, a naval commander of the now non-existent navy of Nadir
Shah, who took the opportunity after the latter’s fall to seize Bandar Abbas.
Mullah Ali Shah knew that Shaikh Rashid b. Matar, the hereditary chief of the
Qawásim, could be tempted to help him establish his power. In 1751 an alliance
was born between the two.”48 In the fighting which followed, the “net result
was a victory for the Qawásim who were able to continue to maintain their
stronghold in Qishm and Linga.”49 Willem Floor, while acknowledging that “it
is not precisely known which Qavasem Sheikhs held sway over Lengeh, and
47 Pirouz Mojtahed-Zahed, Security and Territoriality in the Persian Gulf (1999; reprint,
L ondon: Routledge-Curzon, 2003), 170.
48 Al-Qasimi, Myth of Arab Piracy, 26.
49 Ibid.
when as the data are sparse and sometimes unclear”, traces the beginning of
Qawásim authority in Lengeh to the same general period (the 1760s) and oth-
erwise provides a similar explanation (formation of the alliance between the
Qawásim and Mullah Ali Shah in the multiparty “succession wars” following
the death of Nadir Shah) for the establishment of the Qawásim in Lengeh:
The impact of the succession war in Iran also was felt in the littoral, for
the various local chiefs sided with one or the other side of the warring
factions. This led to the outbreak of local conflicts such as that between
Naser Khan, the governor of Lar, and Mullah Ali Shah, his nominal sub-
ordinate, the deputy governor of Bandar Abbas. The latter’s position was
in turn challenged by partisans of the governor of Lar, the Banu Ma’in,
who were in turn supported by the Imam of Masqat, while the deputy-
governor of Bandar Abbas therefore received support from the Qavasem
of Jolfar and Lengeh, who were opponents of the Imam of Masqat.50
Although hard evidentiary details revealing the precise timing of the estab-
lishment of the Qawásim presence in and around Lengeh are not in abun-
dance, it is therefore clear that by the late eighteenth century the Qawásim
had established a position of authority in Lengeh, thus controlling areas
on both sides of the Gulf.51 While many of the historical accounts related
50 Floor, Rise and Fall of Bandar-E Lengeh, 34. See also Mattair, Three Occupied uae Islands,
36 (“After the death of Nadir Shah in 1747, Persian authority along the Persian coast col-
lapsed. Competition for authority was waged between Mulla Ali Shah, who was the Arab
commander of much of Nadir Shah’s remaining fleet and also the governor of Bandar
Abbas, and the Arab tribe of the Banu Ma’in, who were neither Huwala nor part of the
Qawásim federation. From 1751 to 1759, the Qawásim leader Rahma bin Matar supported
Mulla Ali Shah, his father-in-law, frequently helping to defend his positions at Bandar
Abbas, Hormuz and Qishm against challenges from the Banu Ma’in and the Persian Gov-
ernor in Lar, Nasir Khan … At about this time, the Qawásim and the loyal tribe of the
Marazik also took control of the trading port of Lingeh on the Persian coast.”).
51 In his autobiography, Easa Saleh Al-Gurg, a prominent Emirati citizen whose ancestors
had migrated to Lengeh from Dubai many generations before his birth in 1927 (just after
the family had returned to Dubai), describes the “contact between the two shores of the
Gulf” among the Arab residents: “[A] tradition had been built up over the years that on
Fridays during the winter-time when there was no pearling, members of the family, their
friends and retainers together with people from Sharjah and Ras al-Khaimah, would cross
the Gulf in a flotilla of boats, rowed by their sailors. They would arrive in Lingah in time
for Friday prayers, after which they would be entertained by my family and other friends;
then, when the evening prayer was concluded, they would return to the Arabian shore,
reaching their homes about midnight. This crossing and recrossing of the Gulf showed,
36 chapter 1
to the settlement of the Qawásim in Lengeh refer to the weakness of the

Persian government and its inability to control its Gulf littoral over a long
historical period, including during the period when the Qawásim became
established there, these explanations don’t shed light on why it is that the
Qawásim were interested in expanding their settled presence to that area
of the Persian side of the Gulf. Although there are no first hand accounts
from the mid eighteenth century which purport to fully explain their mo-
tivations, when considering the activities which were carried out by the
Qawásim after they became established in Lengeh these motivations appear
obvious.
The life blood of the economy of the Qawásim and their tribal followers
for generations had been, to a large extent, focused on the sea (pearling, fish-
ing and, above all, trading throughout the Gulf and as far afield as India and
Africa), as well as the cultivation of date palms and some animal husbandry.
These activities are largely the same as those which were developed by the
Qawásim in Lengeh. The opportunity to expand the scope of the commercial
activities which the Qawásim and their dependent tribesmen were already
involved in, rather than expansion for the sake of territorial conquest, en-
gagement in warfare or “piracy” or any other nefarious reason, must therefore
reasonably be seen as the most crucial motivation for Qawásim settlement on
the Persian littoral for that is what they in fact did there. Although in justify-
ing their attacking and destroying Qawásim vessels during the late eighteenth
and early nineteenth centuries, the British came to characterize the Qawásim
as “pirates”,52 they also acknowledged that the Qawásim fleet was made up of
pearling and fishing boats operating out of both sides of the Gulf. In describing
the evolution of Qawásim commercial activities in Lengeh towards the middle
of the nineteenth century, Lewis Pelly, the British Political Resident in the Per-
sian Gulf, noted that the port’s commercial importance was based principally
on its policy of not charging customs duties for the importation and exporta-
tion of goods (a sort of free port) and its usefulness in serving as a distribution
center for trade with the Arabian side of the Gulf, rather than inland trade with
Persia:
I think, how closely in contact the two sides, the Arabian and the Persian, always were.”
Easa Saleh Al-Gurg, The Wells of Memory (London: John Murray Publishers, 1998), 5.
52 David Seton, the British resident in Muscat, wrote in 1805 that Lengeh was one of “two
ports on the Persian mainland … belonging to the Joassims [Qawásim] who furnish boats
and men for their piratical enterprises,” cited in Al-Qasimi, Myth of Arab Piracy, 64–65.
The produce of the district consists of dates and some barley and wheat,
sufficient for home consumption. The Sheikh of Lingah is an Arab, and
claims to be a descendant of a family that emigrated to the Persian Gulf
at the period when the Arabs were at the height of their power at Bagh-
dad. He is, I believe, related to the Rasulkhymah Chief on the opposite
coast. No import or export duty is due in Lingah, and it is probably to
this fact, and to that of geographical position having preserved the port
from governmental interference, that its hitherto prosperity is due …
It appears from this statement, as well as from the conversation of the
merchants, that the little commercial importance of this place is due
to its being conveniently situated as a point of agency for trade coming
from India and seeking a market along the Arabian coast of the Gulf….
[A]nd its statistics show that the bulk of its trade is with the maritime
Arab ports, goods being reshipped thither in small coasting craft, accord-
ing to demand and opportunity.53
Pelly also noted that “eight or ten boats are engaged at Lingah for the pearl-
fishery” and that “[t]here may be some 150 native craft of all sizes belonging
to the people of the place.”54 Willem Floor has compiled trade statistics which
demonstrate that “despite the sack of Lengeh in 1819” by the British, the port
emerged as one of the strongest ports on the Persian littoral, that “Lengeh
had become the distribution port for the Arab coast by the 1830s” and that
by the 1850s Lengeh had “started to become the pearl clearing house for the
Persian Gulf.”55 Thus, from the small village whose inhabitants, Niebuhr noted
in 1761, were limited to exporting “wood for fuel and charcoal”,56 Lengeh had
developed reasonable economic prosperity following the settlement of the
Qawásim there.
The conduct of the Qawásim in Lengeh from the late eighteenth century to
the middle of the nineteenth century thus clearly indicates that their principal
reason for having settled there in the first place was fundamentally economic
opportunity, that is, the prospect of expanding the scope of their customary
commercial and sea borne activities to the Persian side of the Gulf and thus
protecting their livelihoods and expanding their sources of income which
were invariably tied to the sea. A somewhat similar explanation is provided by
53 Lewis Pelly, Visit to Lingah, Kishm, and Bunder Abbass (read before the Royal Geographical
Society of London on June 27, 1864) (W. Clowes and Sons (undated)), 1–2.
54 Ibid., 2.
55 Floor, Rise and Fall of Bandar-E Lengeh, 44, 82.
56 Niebuhr, Description De L’Arabie, 272.
38 chapter 1
William Beeman, citing the anthropologist Louise Sweet, who writes about a
“post-Safavid Gulf society based on the unique combination of political orga-
nization, control of the pearling industry, and seafaring skills” which allowed
it to seek “to control all merchant shipping moving through the Persian Gulf”:
This is nowhere more in evidence than in the rise and dominance of the
Qawásim in the Gulf region. …Whatever label one places on these famil-
ial political organizations, their organization and economic activity was
uniform throughout the region, forming what most modern anthropolo-
gists would recognize as an integrated culture.57
But several questions germane to the Qawásim presence in Lengeh, which are
also part of the larger debate over ownership of the islands, remain. First, how
independent from Persia were the Qawásim leaders in their activities and con-
trol of Lengeh and the immediately surrounding area? Second, and most im-
portantly for purposes of this work, how was the Qawásim presence in Lengeh,
whatever motivated it and in whatever form it may have been exercised, rel-
evant to the dispute between the Qawásim and Persia over ownership of the
three islands?
Status and Extent of Independence of the Qawásim Rulers

in Lengeh
Notwithstanding their acknowledged establishment in and around Lengeh,

the question remains whether, or to what extent, the Qawásim c ontrolled the
town and were able to act and carry out their commercial and governance ac-
tivities there independently of the Persian State. On this question, documen-
tary and scholarly evidence suggests a nuanced answer. First, although the
Qawásim may have firmly established themselves in the town and along its
nearby coastline during a time of hostilities in which they were a significant
actor, it is questionable that they held a level of control over Lengeh and its
environs tantamount to full sovereignty throughout the entire course of their
long tenure during the eighteenth and nineteenth centuries (until 1887). On
the contrary, the maintenance of a modicum of sovereignty over the town by
Persia was recognized, including by the British in connection with their attacks
against the Qawásim in Lengeh in 1809 and 1819. For instance, prior to the 1809
attack against the port and the razing of the town and the Qawásim “pirate”
57 Beeman, “Gulf Society”, 150.

vessels found there, the British gave an instruction to its naval and military
commanders to:
…destroy the maritime equipment of the pirates on that side of the Gulph,
wherever you may ascertain them to exist, taking care to proceed in all
such cases with the utmost practicable respect towards the undisputed
right of His Majesty the King of Persia, the present ally of our Sovereign,
and to cause it to be well explained to such of his officers as the course of
events may lead you into communication with that the British Govern-
ment have no other object than to free (trade from) the obstructions and
heavy losses to which it is now, and has so long continued, exposed from
the predatory attacks from the Joasmee [i.e., the Qawásim] and other
pirates, without the slightest intention to occupy any part of the territory
or to molest or annoy so much as one of His Majesty’s loyal subjects.58
Similar communications were sent to the Persian government prior to the 1819
attack on Lengeh, and in the wake of that attack and destruction of a num-
ber of Qawásim vessels, the Persian government was reported to have lodged a
complaint against the British government on behalf of the owners of several of
those whose vessels were destroyed, seeking compensation.59
Although there seems little doubt that a level of Persian sovereignty, or per-
ception of sovereignty, over Lengeh was thus maintained throughout portions
of the Qawásim presence and local rule of the port, at the same time, given the
relative level of freedom and independence the Qawásim enjoyed in running
their own affairs and those related to the administration of the town, and the
unwillingness or inability of the Persian central or regional government to ex-
ercise consistent, or at times any, direct control over the Qawásim in relation to
those matters, it can hardly be said that the Persian governments was effective-
ly in control to any significant extent. In other words, the prevailing circum-
stances reflected a relatively stable but at times uneasy coexistence between
the parties, or a state of semi-independence for the Qawásim. A few examples
will demonstrate the extent to which Lengeh was considered a Qawásim town
and was governed by the Qawásim with a significant measure of independence
from the Persian government. We know, for instance, that Niebuhr came to the
conclusion that the Qawásim “possessed” Lengeh in 1774 and that the people
there recognized the sheikh of the Qawásim as their “sovereign.”60 The position
58 Quoted in Lorimer, Gazetteer of the Persian Gulf, Vol. 4, 1930.

59 Ibid., 1933.
60 Niebuhr, Description de L’Arabie, 272.
40 chapter 1
of “sheikh” was recognized as the holder of “political control” of the town.61 In

1805, the British political resident in the Gulf referred to Lengeh as one of the
“two ports on the Persian mainland … belonging to the Joassims.”62 We also
know that, despite the deference it showed towards the Persian government
prior to its attacks against the Qawásim in Lengeh in 1809 and 1819, in carrying
out those punitive raids the British not only identified Lengeh as a port of the
Qawásim, but also burned it to the ground to punish them, which is hardly an
indication that the town was under the effective control of the Persian govern-
ment. This is a description given by a British officer of the action taken in 1809:
From Ras-al Khymah the Expedition proceeded to Linjah, a flourishing

port of the Joasmis, on the Persian coast, near the island of Kishm, and
probably containing at that time nearly ten thousand inhabitants. From
this place the people fled into the mountains on the approach of the
squadron, taking all their moveables with them. On the 17th of November
Linjah was occupied without resistance, and burned to the ground, and
the vessels, amounting to twenty, nine of them being large war dhows,
were destroyed.63
Furthermore, the treaty entered into between the Qawásim and the British in
1806, which also followed a confrontation between Qawásim and British forces,
called for peace between the British East India Company and the Qawásim de-
pendents and subjects “on the shores of Arabia and Persia”, thus recognizing the
Qawásim control of Lengeh (the only place on the Persian mainland at which
the Qawásim were then present) and the responsibility of the Qawásim leader
for controlling activities occurring in Lengeh.64 In 1863 and 1864, Lewis Pelly
noted that Lengeh was “administered” by its own Qawásim sheikh, and that,
unlike in “Persian circles of villages”, it was the sheikh who was in charge of
handling civil and criminal affairs. Lorimer describes Lengeh, as of 1874, as “a
tribally administered Arab principality”.65 Title deeds for property were issued
by the sheikh and in the Arabic language.66 The Qawásim also conducted their
61 Thomas Ricks, Notables, Merchants, and Shaykhs of Southern Iran and its Ports, Politics and
Trade in the Persian Gulf, ad 1729–1789 (Piscataway, n.j.: Gorgias Press, 2012), 60–61; see
also Niebuhr, Description de L’Arabie, 269–270.
62 Cited in Al-Qasimi, Myth of Arab Piracy, 64–65.
63 Low, History of the Indian Navy, 330–331.
64 The 1806 treaty is reprinted in Aitchison, A Collection of Treaties, Vol. 10, 121–122.
65 Lorimer, Gazetteer of the Persian Gulf, Vol. 4, 2063.
66 Al-Gurg, Wells of Memory, 3.
commercial affairs largely independently of the Persian government, thus,

at least for a time, establishing Lengeh as a sort of “free port” where, unlike
Persian-run ports, no customs duties were owed on imports or exports of prod-
ucts.67 As Pelly remarked, towns such as Lengeh were “interfered with by the
central Government very much in proportion to their several means of resis-
tance”, and in the case of Lengeh, it was due to the lack of import or export
duties and to its “geographical position having preserved the port from gov-
ernmental interference, that its hitherto prosperity is due.”68 Thus, the level
of “resistance” exerted by the Qawásim was evidently quite high while the cor-
responding level of Persian government “interference” was accordingly quite
minimal.
Perhaps the most telling sign that Lengeh was, to a large extent, effectively
ruled by the Qawásim to the exclusion of the Persian government was, para-
doxically, the manner and lengths to which the government had to go to fi-
nally establish its control of the town in 1887. This episode, which as we shall
discuss below and in subsequent chapters, was also a defining moment in the
dispute over ownership of the islands, was carried out through the arrival and
establishment in Lengeh of a garrison of several hundred Persian soldiers, the
capture and imprisonment of the Qawásim sheikh of Lengeh following a brief
struggle in which, reportedly, several persons lost their lives, the confiscation
of property owned by the sheikh and the Qasimi family in Lengeh, and the
erection of the Persian flag over the Qawásim fort, or castle, built on the edge
of the town. The nature of these actions does not suggest that the Persian gov-
ernment had enjoyed a great deal of effective control over the town previously,
and clearly signalled that it considered it necessary to take aggressive measures
to ensure the establishment and maintenance of its control. Indeed, shortly
after this action, the Persian government demanded that the sheikh’s brother,
who had taken refuge in Ras Al Khaimah, also be handed over, and that failure
to do so would result in a military action by Persia against Ras Al Khaimah to
secure his delivery.69 The Persian government threat was presumably due to its
67 Lewis Pelly, “Remarks on the Tribes, Trade, and Resources around the shore line of the
Persian Gulf”, in Transactions of the Bombay Geographical Society (Bombay: Education
Society’s Press, Byculla, 1865), 42; see also Pelly, Visit to Lingah, Kishm, and Bunder Abbass.
68 Pelly, “Remarks on the Tribes”, 238. See also Pelly, Visit to Lingah, Kishm, and Bunder
Abbass.
Archive Editions, 1993), Vol. 1, 730, containing “Letter from British Residency Agent,
Sharjah, to British Political Resident, Persian Gulf, dated October 15, 1887.”
42 chapter 1
concern that the Qawásim might attempt to re-establish their control over the
town at a future date.
Neither step (delivering the sheikh’s brother or the attack against Ras Al
Khaimah) was ever taken, and interestingly, several years later, in July 1898, the
apparent Persian concern was borne out when a Qawásim leader, along with
numerous armed followers, stormed and took over the Qawásim hereditary
castle in Lengeh, leading to an incident in which both the British and Ottoman
governments, for different reasons, became involved. The Qawásim attempt
to re-establish themselves in Lengeh, which will be discussed in greater detail
in the next chapter, was unsuccessful. But that it was made at all, and, from
reports, was received calmly and with sympathy by many of the town’s popu-
lation, is an indication that the hold over Lengeh by the Persian government
remained somewhat unstable, while the Q awásim connection with the town
remained alive.70
Although the Persian government’s effective control over Lengeh was clearly
tenuous and indirect prior to 1887, and even for some years thereafter, it can-
not be said that the Persian government was entirely absent from the town or
had somehow sacrificed its claim of sovereignty over it during the century or
century and a half when the Qawásim administered affairs or governed there.
The evidence of this is equally unambiguous, although subject to some nu-
ance. For example, in his 1863 account of Lengeh referred to above, even while
maintaining that the Qawásim sheikh administered the town without “govern-
ment interference”, Pelly also suggested that the town and villages around it
were, for the purposes of collection and payment of taxes, “farmed” by the Qa-
wásim sheikh who would, under this arrangement, pay “a lump sum of revenue
per annum” to the Persian provincial government.71 The system of tax farming
applied in Persia, and presumably that referred to by Pelly, was described by
Curzon as follows:
Here, however, we are faced with a truly Persian phenomenon. The sys-
tem which I have sketched, though anomalous and intricate, yet rests
upon a simple and intelligible principle, namely, a fixed contribution to
70 A report from the Ottoman Governor of Basra about this incident, which was based on an
account from the Ottoman deputy consul in Lengeh, noted that despite the siege of the
Qawásim castle and the forced ouster of the Iranian soldiers defending it, there was “no
change to public order.” I.HUS 66–49 (Collection of the Sultan’s Will).
71 Lewis Pelly, “Remarks on the Tribes, Trade, and Resources around the shore line of the
Persian Gulf”, in Transactions of the Bombay Geographical Society (Bombay: Education
Society’s Press, Byculla, 1865), 42.
the revenue, based upon the wealth-producing capacity of the soil, and
levied upon those whose business it is to pay it. In practice, however, the
system is wholly abandoned; it would not dovetail with the larger sys-
tem of organised peculation upon which Persian government and soci-
ety alike subsist, and would not provide those opportunities for extensive
mudakhil which are so dear to the official mind. Accordingly, so far from
the taxes being levied from the individual taxpayer by the revenue of-
ficers, we find that they are raised in lump sums from villages, towns, or
districts, the taxes being, in fact, farmed out by the Government for a
fixed money payment, and the allocation in subordinate areas being left
to the arbitrary decision of local governors, chiefs, or headmen.72
Some scholars have argued that the Qawásim presence in Lengeh was purely
contractual in nature,73 encompassing not only this tax farming arrangement,
but also other obligations tying the Qawásim sheikhs to the Persian State:
For the payment of a lease, the shuyukh [i.e., the sheikhs] received the
right to collect duties from the population on all sources of income (such
as pearl fishery, agriculture, cattle breeding, and fishery), to determine
the amount of taxes, and to freely dispose of the tax revenue. In return
they committed themselves to protecting the population of the coastal
region against attacks from outside and regularly paid taxes (maliat) to
the Iranian state. To be able to contract this tenancy, the shuyukh had
to become Iranian citizens. With the conclusion of the contract, the
shuyukh were declared the avowed “subjects” of the Iranian state and de-
fined themselves as … standing in the service of the Iranian state[]. After
the termination of the contract, the shuyukh were permitted to remain
in Iran.74
Although such an all-encompassing contractual lease arrangement may have

been an organized and rational basis on which to have founded the Q awásim
presence in Lengeh, there is no documented evidence which the authors have
been able to locate which suggests that any arrangement which may have been
in effect between the Qawásim and the Persian government – written or un-
written – actually took that form or included any of those terms and condi-
tions other than those related to tax farming which were described by Curzon
72 Curzon, Persia and the Persian Question, Vol. 2, 471–472.

73 See, e.g., Nadjmabadi, “Arab Presence on the Iranian Coast”, 133–134.
74 Ibid.
44 chapter 1
and referenced by Pelly. Nor does the evidence suggest that the establishment
of the Qawásim in Lengeh was consensual on the part of the Persian govern-
ment and that it would have been likely that it was subject to a mutually agreed
contract in which, moreover, the Persian government was in a position to lay
down rigid conditions under which the Qawásim were permitted to remain.
On the contrary, the evidence suggests that the Qawásim presence was the
result of a combination of historical factors, mainly the opportunity the Arab
tribes had to expand their economic, political and social activities to the Persian
side of the Gulf, and the weakness of the Persian government and its resulting
inability to impede this process of expansion. Moreover, the existence of such
a lease contract would be inconsistent with the historical evidence related to
the demise of the Qawásim in Lengeh. In deposing the Qawásim, the Persian
government used force rather than terminating or referencing any contractual
arrangement which may have been in effect (which is the means by which Per-
sia terminated the formal lease which had been in effect with Oman over the
nearby port of Bandar Abbas). Indeed, no lease agreement was ever mentioned
or alluded to in the context of Persia’s expulsion of the Qawásim from the town
and its surrounding area in 1887, or indeed in any other context as far as the
authors have been able to determine. This is in contrast to the circumstances
which occurred in relation to the expulsion in 1868 of the Omanis from the
nearby coastal areas and islands around the port of Bandar Abbas (the islands
being Kishm, Larak, Hormuz and Hengam), where a lease agreement with the
Persian government dating from the 1790s, which was renewed in 1855, had
been in effect and was repeatedly used and referenced by all sides in their deal-
ings with each other and in the context of the ultimate termination of the lease
and bringing to an end the Omani presence on the Persian mainland.
An understanding of the historical background of the Persian-Omani
lease is therefore useful in explaining why it is difficult to conclude that the
all-encompassing lease arrangement described above actually existed in con-
nection with the Qawásim presence in Lengeh. Oman (under the Al Bu Sa’id
dynasty which had been founded in 1744 and whose merchant and war fleet
by the end of the century “was the largest in the Gulf after the British”75) com-
menced assaults on the Persian coast around 1794, not against Persian forces
but rather against an Arab tribe, the Bani Ma’in, which had itself established a
presence on Kishm island and the surrounding coastal area, including the port
of Bandar Abbas, in the 1770s. The port itself was held by the Bani Ma’in under
a species of lease agreement with the Persian government under which the
75 Potter, “Consolidation of Iran’s Frontier”, 129.

Bani Ma’in paid a yearly amount, or “tribute”, to the Persian government in ex-
change for being left to govern, collect taxes and customs duties and undertake
other acts of administration in the “leased” area without undue interference by
the Persian government. In other words, this arrangement was the sort of lease
arrangement which has been suggested was also in effect with the Qawásim in
connection with Lengeh.
Why the Persian government would have agreed to lease, or turn over, part
of its coastal territory to an organized tribe such as the Bani Ma’in in this way
has several explanations. These reasons included, most significantly, Persia’s
practical inability to control these areas due to the weakness of its central gov-
ernment and its preoccupation with “internal conflicts”,76 its lack of naval as-
sets and the contrasting maritime and naval strength of the Arab communities
which gave them the ability to hold sway over and protect coastal areas and
islands, and mutual economic incentives. As Nadjmabadi notes, “the favorable
situation of the Iranian commercial ports and the possibility of collecting du-
ties, and thus obtaining high income, lured the Arab tribes to settle there.”77
For its part, the Persian government may not have been in a position in any
case to control these areas and thus reap these commercial benefits for itself
but it could at least, from the receipt of lease payments, obtain some economic
gain derived from the area of its Gulf littoral covered by the lease. At the same
time, this arrangement allowed Persia, at least theoretically, to maintain a sem-
blance of sovereign authority over the lease area.
The attacks launched by Oman in 1794 resulted in the defeat of the Bani
Ma’in and eventually the establishment of Oman’s rule over Kishm island, the
surrounding islands (but not the Tunbs or Abu Musa, which do not appear to
have been of any interest to either the Bani Ma’in or the Omanis) and the port
of Bandar Abbas, as well as a stretch of coastline extending in both directions
from the port town. Evidence from the early nineteenth century supports the
assertion that, although the Imam’s forces initially established themselves on
the Persian littoral and in the several above-mentioned islands through battle
and conquest against the Bani Ma’in, Oman then governed most or all of this
territory (although arguably not the island of Kishm itself – see below) not as
an uncontested and conquering sovereign but as a leaseholder under terms
similar to those which the Bani Ma’in had held with the government of Persia,
with that lease having been, in effect, transferred to Oman. While the existence
and general nature of the lease arrangement between Persia and, initially, the
Bani Ma’in and subsequently Oman do not seem to be much in doubt as an
76 Nadjmabadi, “Arab Presence on the Iranian Coast”, 132–133.

77 Ibid.
46 chapter 1
historical matter, the precise terms of the original arrangement assumed by

Oman are unknown as an authentic text has not been found by historians or
researchers.
Although the original lease agreement itself may have been lost in the pas-
sage of time, that Oman governed under some agreed lease arrangement with
the Persian government from the time it assumed control of Bandar Abbas is
relatively clear as a half century later (in 1855), while Oman’s power waned and
Persia’s power began to grow, the Persian government successfully insisted on
amending those terms to enhance and clarify Persia’s sovereign authority over
the territory subject to the arrangement, something that, as mentioned, may
have been subject to doubt under the original terms. It accomplished this by
specifically providing in the renegotiated agreement that, among other mat-
ters, the territories to be governed by Oman under the lease would be subject
to its governance for a specific and limited period (of 20 years), that those ter-
ritories belong to “the exalted government” of Persia, that the Omani chief of
Bandar Abbas should be “a dependent of the Persian Government” and “must
obey the Governor-General of Fars”, and that the Persian flag should at all
times be flown.78
This was a significant change from what would appear to have been the orig-
inal terms as in 1798 the Imam of Muscat, Say’id Sultan, had believed himself at
liberty, notwithstanding the terms of agreement with Persia and over its objec-
tions, to treat the territories subject to the agreement as disposable to a foreign
power by offering Great Britain the right to establish a fort at Bandar Abbas:
In the port of Bandar Abbas (Gombroon), whenever the English shall be

disposed to establish a factory, making it as a fort, I have no objection to
their fortifying the same and mounting guns thereon as many as they list
and to forty or fifty English gentlemen residing there, with seven or eight
hundred English sepoys.79
The entitlement Oman considered itself to have in disposing of this leased

territory was repeated more than twenty years later when, in 1821, it offered
78 Toye, Lower Gulf Islands, Vol. 1, 391–393, containing Translated Purport of an Order from
His Royal Highness Tamasp Mirza Moayed El-Dowlah. The annual sum required to be
paid by the Imam of Muscat and Oman under the lease was set at sixteen thousand to-
mans, while the area covered was defined as “Bundar Abbas, the islands of Kishm and
Hormuz, and the districts of Ossein, Tazyan, Shemie, Minah, Khamser, and Biyahan and
all their dependencies.” Ibid.
79 Ibid., Vol. 1, 299.
Britain the right to establish a military outpost on Kishm island over the objec-
tions of Persia. In reply to these objections, the British took the view, albeit self-
serving, that although the islands, including Kishm, were “held upon payment
of a stipulated rent or tribute” by Oman to Persia, this payment was “a matter
of courtesy rather than right” as “all these dominions were wrested from the
Persians” and therefore “the present King of Persia … has no more claim upon
Kishm than he has to Egypt or Syria, countries which the monarchs of Persia
conquered but could not retain.”80
The legal basis for this particular assertion can only be considered highly
doubtful if, as the British accepted, Oman had consented to hold the terri-
tories in exchange for the payment of a “stipulated rent or tribute” to Persia.
Indeed, the Omani government did not contest that the port of Bandar Abbas
was not subject to its sovereignty as it was held under a lease, but it did con-
tinue to assert that the territorial scope of that lease did not extend to Kishm
island and certain other areas on the Persian coast under its de facto control.
Its position in this regard was ultimately defeated in the renegotiation of the
1855 lease, which specifically identified Kishm island, as well as all other areas
governed by Oman on the Persian coast, as belonging to Persia and subject
to its control.81 In the end, the Omani presence on the Persian coast, which
commenced with acts of conquest and eventually came to be governed by a
formal agreement with the Persian government akin to a lease which specifi-
cally recognized Persian sovereignty, was (despite the twenty-year term of the
1855 agreement) terminated unilaterally by Persia in 1868 upon the change of
leadership in Muscat as the lease terms only allowed continuation of the lease
to the ex-Sultan and his “heirs” (which the new Sultan was not), not to “collat-
eral relations of the ex-Sultan.”82 A last attempt by Oman to extend the lease
through negotiations undertaken in 1869 failed, and Oman’s presence and role
in the governance and administration of territories on the Persian coast came
to an end.83
The Bani Ma’in and Omani presence and rule on the Persian mainland and
various islands, which overlapped to a significant extent with the period of
the Qawásim presence in nearby Lengeh (mid-late eighteenth century un-
til the late nineteenth century), demonstrates that where a lease agreement
was in existence and governed the relationship between the mainland power
80 Quoted in Willem Floor, The Persian Gulf, Bandar Abbas, The Natural Trade Gateway of
Southeast Iran (Washington: Mage Publishers, 2011), 70.
81 Floor, Bandar Abbas, 85.
83 Floor, Bandar Abbas, 96–97.
48 chapter 1
(Persia) and the Arab leaseholder (whether the Bani Ma’in tribe or the Al Bu
Sa’id dynasty of Oman), its terms, including the territorial scope of the lease,
were known or documented and to an extent formed the basis of the relation-
ship between the parties. That no such lease agreement has, in the historical
records reviewed by the authors, been identified or referred to, either by the
Persian government or the Qawásim (or indeed by the British, who at the time
of the Qawásim expulsion from Lengeh were in a position to know whether
their protectorate’s relationship with Persia was governed by a legal docu-
ment) leads to the reasonable conclusion that it may never have existed. This
is particularly the case considering the ample documentation which exists in
relation to the Omani lease and the role the lease terms played in the dealings
between the parties.
Rather than being founded on a contractual basis, as was the case with
Oman, the independence of the Qawásim presence in Lengeh appeared to be
maintained by exercising a significant measure of pragmatism in regulating
their political relations with the Persian government. Thus, it is not surprising
that the ruling Qawásim sheikhs eventually did become Persian “subjects” or
“citizens” and held official Persian government titles. This is clear not only from
Persian sources, but also may be established through British and Qawásim doc-
umentary records. Thus, on September 27, 1887, the British political resident
in the Persian Gulf wrote: “Now the Joasimee Shaikhs domiciled on the Per-
sian coast have acquired the status of subjects of Persia, and those who have
governed Lingah have been subordinate to the Persian authorities, and in fact
Persian officials qua Lingah.”84 The Qawásim of the opposite coast also recog-
nized this status of their Lengeh cousins.85 Despite being considered Persian
84 Toye, Lower Gulf Islands, Vol. 1, 723, containing a Communication from Col. Ross to the
Secretary to the Government of India, Foreign Department, dated September 27, 1887.
85 See, e.g., ibid., Vol. 1, 738. containing a translated purport of a letter from Hamaid bin
Abdullah, chief of Ras Al Khaimah, to the Political Resident, Persian Gulf, dated Novem-
ber 21, 1887 in which the Ruler of Ras Al Khaimah wrote the following to the British Resi-
dent to seek his assistance in recovering Qawásim property which had been seized by the
Persian government when it deposed the Qawásim Ruler of Lengeh: “It is not hidden from
you and I beg to inform you about the township of Lingah, that, as you already know, our
Joasimee cousins have been the rulers of this place, in which they have lived from the
time of our fathers and grandfathers, and we are with them at one, and we have at this
place landed property, date plantations, houses and ware-houses, and property which
has descended to us as heritage from our family, and over which we have our control.
This year, it is not unknown to you what has happened to Shaikh Kadhib bin Rashid,
Ruler of Lingah; the Malik-et-Tujar seized him and conveyed him to Bushire, without
any crime, while he was engaged in conducting the affairs of the Government (Persian)
subjects, the Qawásim leaders in Lengeh clearly retained greater loyalty to

their kinsmen on the Arab coast, a fact that the Persian government itself was
under no illusions about. For example, in 1805, the Persian ambassador made
this revealing statement when asked by the British representative whether the
sheikh of Lengeh was “under the protection of the Persian government”:
He at that time answered they were subjects of Persia, but this allegiance
was very precarious in general, and entirely depended on the state the
country was in at the time, and he did not suppose there would be any
objection to our prosecuting them, if they had acted in any manner de-
serving of it.86
A similar observation was made by Captain Seton, the British resident in the
Gulf, about the loyalties of the chief of the Qawásim in Lengeh in 1805:
Shaik Gadeef of Lingua on the Persian side of the Gulph is a Joassim by

birth, uncle to Sultan ben Sugger of Rasul Khemeh on the Arabian shore,
and a Wahabee by religion and pays tribute to Sahood, the present leader
of that rising sect; but living on the coast of Persia he calls himself, when
it suits his purpose, a Persian subject, tho’ he obeys no order but what
pleases him.87
The use, significance and limits of such “protection” or “citizenship” were dem-
onstrated by an incident which occurred in Lengeh in 1898. A Qawásim leader
who was ostensibly also a Persian subject, along with a large group of armed
followers, attempted to reestablish himself in a position of authority in Lengeh
by seizing the family’s hereditary castle in the town through force of arms.
When confronted by the Persian military, he requested the assistance of the
Ottoman government by claiming that he was also under the Ottoman state’s
“protection”. In response to this request, and due to the significant number of
Ottoman citizens which the Porte believed were resident in the town (many
and rendering his services to the Shah’s Government, and I don’t know the reason of this
(arrest). I trust you will kindly explain to us the manner in which to get our property at
Lingah; we fear that if we demand it from the person (Deputy Governor), who is at the
place, we might be prevented from it, while we are unable to give it up, except the British
Government prevent us from it; which will be a different thing. I hope you will do us jus-
tice in the matter, and that you will kindly send us a full reply.” (emphasis added).
86 Al-Qasimi, Myth of Arab Piracy, 56 containing a Letter from Captain D. Seton to W. Bruce,
dated June 30, 1805.
87 Quoted in Kelly, Britain and the Persian Gulf, 106, n. 4.
50 chapter 1
of whom apparently also claimed Persian citizenship), the Ottoman Sultan

ordered the dispatch of a warship to Lengeh “in order to show the strength
of the Ottoman state as well as to protect the Ottoman citizens there.”88 The
warship in fact duly arrived at Lengeh (although no action was taken), leading
the Shah of Iran to demand its withdrawal and the Persian foreign ministry to
register a protest with the Ottoman foreign ministry which complained that:
“An Ottoman warship in Lengeh is posing a bad example and excuse for the
other states which would like to send ships to Lengeh, especially as there is
only one Ottoman citizen there.”89 This episode becomes even more curious
when recalling that the Qawásim were (as a result of having signed the “Exclu-
sive Agreements” with the British in 1892, pledging, among other things, not to
conduct relations with any foreign power other than the British), also under
the protection of the British government at this time.90
Clearly, the expressions of loyalty and allegiance to adverse regional and
foreign powers by the Arab tribes, including the Qawásim, had to be viewed in
the difficult and threatening conditions which prevailed in the eighteenth and
nineteenth century Gulf, as well as in the context of Arab custom and society.
This fluid dynamic has been explained by James Onley and Sulayman Khalaf
in the following way:
Hitherto, historians have explained the Gulf Arab rulers’ ever-changing

alliances solely in terms of the rulers’ self-interest and shrewd prag-
matism. As yet, no historical explanation has viewed intraregional
relations through the lens of Arabian political culture. Yet the tribute
system upon which these relations were based was in fact regulated by
the Arabian custom of protection-seeking. The norms and obligations
of the protector-protégé relationship provided the rulers with an effective
88 beo 1191-88297-3 (15.Belge), Communication from the Ottoman Minister of Foreign Affairs
to the Ottoman Grand Vizier, dated September 7, 1898 (translation by Ismail Keskin on file
with authors).
89 beo 1206-90401-2 (16.Belge), Communication from the Ottoman Minister of Foreign
Affairs to the Ottoman Grand Vizier, dated October 4, 1898 (translation by Ismail Keskin
90 The phenomenon of dual loyalties was, at an earlier period, observed by the British gov-
ernment in its dealings with other Arab chiefs. For instance, in a British government
Note dealing with “Turkish Jurisdiction in the Islands and Waters of the Persian Gulf, and
on the Arab Littoral”, dated March 21, 1879, it was remarked that “[i]t appeared that the
Sheikh [of Odeid] possessed both a Turkish flag and the Arab trucial flag, and that he used
the one or the other as occasion required.” OR/L/PS/18/B126, containing “Turkish Jurisdic-
tion in the Islands and Waters of the Persian Gulf, and on the Arab Littoral.”
s urvival strategy in the face of Arabia’s ever-shifting power dynamics. The

rulers used these norms and obligations in a variety of ways to legitimate
and regulate their political relations with regional powers and, in time,
with the British Government as well.91
The conclusions which may be derived from the historical evidence which
is available are therefore that the Qawásim conducted their commercial af-
fairs in Lengeh and governed or administered the town in a semi-independent
manner and ordinarily without the interference of the Persian government.
However, the Persian government was not altogether removed from Lengeh’s
affairs, and in fact appear to have expected the Qawásim to perform revenue
collection at and around Lengeh and its villages, most likely through a farming
arrangement, and possibly other administrative duties, on its behalf, although
the nature of any such administrative duties are not clearly indicated in any
historical documentation. The practical ability of the Persian government
to interfere in Lengeh’s affairs on a peaceful and routine basis was, however,
very limited, as demonstrated by its need to resort to force when it finally
determined to bring the Qawásim rule to an end. Finally, the existence of an
all-encompassing contractual document which defined and regulated the
Qawásim presence in Lengeh is subject to doubt, as no documentary evidence
of such a lease contract has been uncovered and the historical circumstanc-
es of the Persian government’s relationship with the Qawásim, including the
manner of their expulsion from Lengeh, reveals no indication or mention of
any such contractual arrangement from any side.
Relevance of the Qawásim Reign in Lengeh to the Disputed Islands
The critical importance of understanding the background and history of the

Qawásim presence in Lengeh derives from several interrelated matters. Most
importantly, there is an historical assertion which has been made by Iran or
those defending its claim of sovereignty over the disputed islands that while
the administration of all three of the islands was, during the nineteenth cen-
tury, and possibly as early as the eighteenth century, indeed carried out by
Qawásim leaders, it was those Qawásim leaders resident in Lengeh who per-
formed this role (not those who ruled on the Arab coast), and they did so in
their capacity as Persian subjects and government officials. This argument
maintains that, contrary to the Qawásim and British version of events (which
91 Onley and Khalaf, “Shaikhly Authority in the Pre-oil Gulf”, 201.

52 chapter 1
holds that the islands had been Qawásim territory prior to their arrival on the
Persian coast in the eighteenth century and remained as such up to and be-
yond their ouster from Lengeh in 1887), the islands were not Qawásim-owned
territory at all, but simply administered by the Lengeh-based Qawásim on be-
half of and at the instruction of the Persian government, which had held title
to the islands from antiquity. Support for the argument that this state of affairs
remained in effect up to the time of the Qawásim expulsion from Lengeh in
1887 is centered around three additional assertions: (i) that the islands were
formally part of the Lengeh administrative district established by the Persian
government, and therefore were considered “dependencies” of that town prior
to (and after) 1887; (ii) that in their role as Persian officials, the Lengeh-based
Qawásim collected taxes from those persons using or living on the islands and
remitted those tax collections to the Persian government for some nine years
prior to 1887; and (iii) that the Lengeh-based Qawásim also performed other
administrative duties on or in connection with the islands on behalf of the
Persian government prior to 1887.
Thus, in accordance with this argument, when the Persian government
ousted the Qawásim leaders in Lengeh in 1887 and no longer could or wished
to call on them to perform tax collection or other administrative duties in con-
nection with the islands, it was natural that the Persian government should
at the same time seek to establish direct Persian government control over
the islands. It asserts that it was in this context that its reported intention
to plant the Persian flag on the Greater Tunb in 1887 and Abu Musa in 1888
must be understood (see below). It was, therefore, legally groundless and
politically motivated for the British government to have opposed the extension
of direct Persian government control to the islands at that time, including the
intended planting of the Persian flag, on the grounds, or pretext, that they were
Qawásim-owned territory.
As may be appreciated from this series of arguments and positions, the role
and status of the Qawásim leaders in Lengeh, both generally and in connec-
tion with the islands specifically, are crucial elements of Iran’s claim. They also
are, in a negative sense, key elements of the claim of the uae, for its claim
over the islands involves disproving the narrative and arguments advanced
by Iran in this regard and, instead, establishing that Qawásim ownership and
administration of the islands predated, was independent of or outweighed the
connections of certain members of the Qasimi family – those established in
Lengeh – to Persia and its government.
While those questions will be addressed in further chapters, for purposes
of this summary it should be noted that as Persia took measures to elimi-
nate the semi-independent Arab principalities on its Gulf littoral, including
the Qawásim in Lengeh, during the second half of the nineteenth century, it
also sought to consolidate its borders and to reap greater benefits from the in-
creased trade (and increased customs and tax revenues)92 conducted through
the Gulf ports, including Lengeh. This process of political and economic
consolidation in the Gulf not only clashed with the interests of the Qawásim
leaders of Sharjah, Ras Al Khaimah and Lengeh for obvious reasons as they
witnessed the erosion of their influence on the Persian side of the Gulf, along
with the seizure of their property in Lengeh, it also raised suspicions in a more
general sense within the British government, which at the time was at the ze-
nith of its power in the Gulf and looked with some concern at Persia’s assertive
policies there. This was particularly the case as the British wished “to prevent
Persia from coming under undue Russian influence, which would present a
threat to British India.”93
The events which occurred in and around Lengeh during the last several
months of 1887 and the first several months of 1888, as the Persian government
imprisoned the Qawásim leader of the town and brought it under its direct
control, seized the Qasimi family property and at the same time asserted terri-
torial rights over various Gulf islands it contended had historically belonged to
the Persian State, including the two Tunbs and Abu Musa, along with the island
of Sirri, play a central role in the genesis of the dispute over the three still con-
tested islands which are the subject of this book. The timing of these events,
for many reasons, must be considered the first critical date in the history of the
dispute because they were the first time Persian and Qawásim claims over the
islands came into direct conflict with each other.94 Those events, therefore,
merit a brief account in this summary.
As recounted in a telegram, dated 20 September 1887, from the British rep-
resentative in the Gulf (variably referred to as the Political Resident, the Gulf
Resident or the British Resident in the Gulf) to the British Foreign Secretary, a
few days after Persian forces had arrived in Lengeh to take control of the town,
and had taken the Qawásim sheikh who had been in charge as prisoner, a rep-
resentative of the Persian government had “proceeded from Lingah in native
vessel on 18th with an armed party and two small cannon to erect flagstaff
on island of Sirri and hoist Persian flag … Here [should read ‘Hear’] it is also
92 Floor, Rise and Fall of Bandar-E Lengeh, 47–54.

93 Potter, “The Consolidation of Iran’s Frontier”, 129.
94 See chapter 8 for an analysis of 1887/1888 as one of the possible critical dates in the sover-
eignty dispute over, in particular, the Tunbs.
54 chapter 1
intended to hoist Persian flag on Tomb Islands.”95 No mention of Abu Musa

island was made.
It is uncontested that Sirri and the Tunbs, as well as Abu Musa, had been up
to this time, and for an extended period of time previously (possibly exceeding
a hundred years), under the de facto control of the Qawásim sheikhs, who ad-
ministered them and regulated access to them. As noted above, however, there
were disagreements among the parties directly concerned (Persia, the British,
the Qawásim, and to an extent, the Ottoman government) as to whether this
administration or control was exercised primarily by the Qawásim rulers of
Sharjah and Ras Al Khaimah, or their cousins in Lengeh (or all of them in com-
mon), and notwithstanding such administrative duties, to whom sovereign
ownership of the islands belonged. As described above, and as discussed in
more detail in chapter 6, Persia argued that it was the Lengeh-based Qawásim
rulers who exclusively held sway over Sirri, and it eventually extended this ar-
gument to assert that these rulers had been in charge of all of the islands, on
the basis that they were considered dependencies of Lengeh. Furthermore, Per-
sia also argued that those rulers – who, as mentioned above, they considered to
be Persian subjects, and indeed Persian officials, and thus under the ultimate
control of the Persian government – had exercised specific tax collection and
other administrative duties on the islands on behalf of Persia during the pre-
ceding nine years, evidence of which, they contended, could be seen in tax
records and other documents which they initially agreed to provide to the Brit-
ish to substantiate their claims. These circumstances, argued Persian officials,
made it evident that Sirri and the Tunbs islands (Abu Musa not having been
originally mentioned) were “dependencies” of Lengeh and thus subject to the
sovereignty of Persia.
The following explanation of its assertion of ownership of Sirri (on which
a Persian flag had been hoisted and guards stationed in September 1887) was
provided by Persia to Britain in March 1888 in reply to a written request in
which the British government had taken the view that the island belonged to
the Qawásim of Sharjah:96
95 Toye, Lower Gulf Islands, Vol. 1, 722, containing Telegram, dated September 26, 1887.
96 Ibid., Vol. 2, 22, containing a letter from Her Britannic Majesty’s Legation, Teheran, to the
Persian Ministry for Foreign Affairs, dated March 6, 1888 (“Some time ago the Persian flag
was hoisted on the Island of Siri in the Persian Gulf. Her Majesty’s Legation would be glad
to know on what grounds the Persian Government have annexed an island which is the
property of the Joasimee [Qawásim] Chiefs who are under British protection, and who
have applied to the British authorities in the matter.”).
[A]ccording to the rules of all settled and prosperous Powers, the stron-
gest proof of the ownership of a Power to a place is the occupation there-
of by that Power; and this proof does not stand in need of any other proof
… And ever since Lingah has had its dependence on the Persian Gov-
ernment and has had its governors sent from the Court of Persia, it has
always been usual to take taxes from the said island. Further, the ports of
the Persian Gulf and their dependencies are designated as the ports of
Fars … From olden times it was not deemed necessary to set up a flagstaff
at any of the ports of the Persian Gulf. It is now some time that, having
deemed it necessary, they have set up flag-staves in all the ports; and they
have also done the same at the Island of Siri, which is a dependency of
Lingah.97
The British replied to this explanation by noting, among other matters, that
“[p]ossession, if of long standing and undisputed, doubtless carries con-
siderable weight; but this argument would scarcely govern in the present
circumstances”98 as Persia’s seizure of Sirri had just occurred a few months
previously. The British also asserted that the Qawásim rulers of Sharjah and
Ras Al Khaimah “have had traditional rights over the island of Siri which were
never disputed and generally recognized. The hoisting of the Persian flag al-
tered the existing status; and it is on this ground that it was requested that
reasons should be shown for this alteration.”99 On this basis, the British posited
that any “jurisdiction” which may have been exercised by the Lengeh-based
Qawásim rulers over the island of Sirri was in their capacity as Qawásim rul-
ers and at the direction of their kinsmen, the Qawásim rulers of Sharjah and
Ras Al Khaimah, and could not therefore be considered to represent a grant of
ownership or sovereignty of the island to Persia, even if the Qawásim rulers of
Lengeh had simultaneously exercised certain other administrative functions
in Lengeh itself at the behest of the Persian government.
Certain of the general arguments set out by Persia to defend its seizure of
Sirri (in particular the argument that the island was a “dependency” of Lengeh
and administered by the Qawásim rulers of Lengeh who were Persian subjects
and under the direction of the Persian government, thus conferring Persian
sovereignty) were also eventually relied upon by Persia to defend its claim to
97 Ibid., Vol. 2, 26, containing a letter from the Persian Ministry for Foreign Affairs to Her
Britannic Majesty’s Legation at Tehran, dated March 10, 1888.
98 Ibid., Vol. 2, 27, containing a letter from Her Britannic Majesty’s Legation, Tehran to the
Persian Ministry for Foreign Affairs, dated March 19, 1888.
99 Ibid.
56 chapter 1
the Tunbs and Abu Musa. These claims began to emerge in indirect and vague
communications made by the Persian government between October 1887 and
April 1888.100 Among other arguments raised, it was noted that Persian owner-
ship of the islands was alluded to in the 1870 edition of The Persian Gulf Pilot,
a navigational survey prepared by the Hydrographic Office of the British Ad-
miralty, which stated that the chief of Lengeh “pays a tribute to the Persian
government, [and] has authority over all the places on the coast … with the
islands Seri [Sirri], Nabiyu Furur, Furur, Tumb [Greater Tunb], Nabiyu Tumb
[Lesser Tunb], and Bu Musa [Abu Musa].”101
The Qawásim rulers of Sharjah and Ras Al Khaimah disputed the Persian
pretentions of sovereignty over the islands, arguing on the contrary that their
ownership of the islands had been recognized and acknowledged for many
years, including by their Lengeh-based cousins. They pointed to a number of
letters written between 1872 and 1884 in which their ownership and author-
ity to control the islands had been repeatedly confirmed by a succession of
Qawásim rulers of Lengeh.102 While the rulers governing in Lengeh may have
used the islands or carried out some administrative tasks there, they did so
on behalf of and subject to the direction of the chiefs of Sharjah and Ras Al
Khaimah, whose ownership and ultimate control had never been contested
by Persia or anyone else up to that point. The performance of such acts by the
Lengeh Qawásim rulers could not, according to the Qawásim leaders in Shar-
jah and Ras Al Khaimah, detract from or replace their ownership rights over
the islands.
The British, in supporting the Qawásim rights over the islands, noted that
the extracts from The Persian Gulf Pilot cited by the Persian government were
included in “a nautical not a political compilation and statements in it about
status of various places cannot be considered authoritative.”103 It was also
contended that, in describing the islands (particularly Abu Musa) as under
the control of the Qawásim chief of Lengeh, it was simply in error. And they
also dismissed the documentary evidence put forth by the Persian government
allegedly supporting Persian authority over the islands. In particular, they n
oted
100 See chapter 8.

101 The Persian Gulf Pilot, 1870–1932 (Cambridge: Archive Editions, 1989), Vol. 1, 172. Toye,
Lower Gulf Islands, Vol. 2, 30–35, containing “Exchange of correspondence between Hajji
Ahmed Khan and the inhabitants of Tunbs and Sirri islands”, dated April 1888, in which
General Hajji Ahmed Khan refers to passages of The Persian Gulf Pilot which, in his opin-
ion, probe the Persian claim to the islands.
102 Toye, Lower Gulf Islands, Vol. 2, 13. See chapter 7.
103 Toye, Lower Gulf Islands, Vol. 2, 28, containing a letter from Colonel Ross to Sir Drummond
Wolff, Minister Plenipotentiary to Teheran, dated April 28, 1888.
that the Persian official in charge of the alleged taxation records, which pur-
portedly established that the Lengeh Qawásim sheikh had collected taxes from
the islands on behalf of the Persian government over a period of nine years,
had stated in response to British requests that no such records actually existed:
It has constantly been alleged on the part of the Persian Government that
Persian possession has been quite independent of the Joasmees, who
have held authority on the Persian coast; and that it has been exercised
independently of them, but there has been no proof of these allegations.
Thus the Amin-es-Sultan informed Her Majesty’s Chargé d’Affaires in De-
cember 1887 that Sirri and Tamb had paid taxes to the Persian Govern-
ment for nine years previously, and that documents in support of Persian
claims were at Bushire. Yet the then Resident Colonel Ross was at once in-
formed by the Malik-ut-Tujjar, who was Governor of Bushire at the time,
that he had no such documents. The proofs of the former dependence of
Sirri on Persian authority which were asked for by Her Majesty’s Legation
in March 1888, have also not been given.104
With regard to the remaining documentary evidence relied upon by Persia, con-
sisting of five brief messages written in 1884 from the Lengeh sheikh to the Gov-
ernor of Bushire asserting that he had performed some activity on or related
to the islands on behalf of the Persian government, the British considered that
those documents “do not bear out the Persian claim, and I do not think weight
can be attached to the statements.”105 This sheikh, it was noted, was not him-
self a Qawásim tribal member, having been a servant of the previous Qawásim
ruler whom he had murdered in 1879, then usurping his position. According
to the British, he then “appears to have commenced to interfere unduly in the
islands in question, drawing forth remonstrances from the Joasimi S haikh of
Ras-el-Khymah.”106 Moreover, the brief letters in question were all somewhat
suspiciously written within a short time of each other in the year 1884.
Whatever the validity of the evidence then relied upon by Persia to support
its seizure of Sirri, the reports of Persia’s having hoisted its flag over Sirri in
September 1887 and its rumored intention to do the same at Greater and Lesser
Tunb and annex them caused a great deal of alarm to the Sharjah and Ras Al
104 Ibid., Vol. 2, 196–197, containing a memorandum from British Political Resident, Persian
Gulf, dated May 31, 1895.
105 Ibid., Vol. 2, 3, containing a note from the British Political Resident in the Persian Gulf to
the British Chargé d’Affaires at Tehran, dated January 23, 1888.
106 Ibid.
58 chapter 1
Khaimah rulers, who considered these islands as their own property. The Brit-
ish dispatched a vessel (the Ranger) to the islands a few days after learning of
the Persian expedition to Sirri, which observed that the Persian flag was found
flying on Sirri but not on the Tunbs.107 In fact, by this time no specific claim
had actually been made to the Tunbs by Persia, nor any specific action taken.
What had occurred in relation to the Tunbs was the spreading of a rumour
around Lengeh that Persia intended to hoist a flag on those islands as well.
Given Persia’s explanation, after its landing party arrived at Sirri and planted
the Persian flag there, that “the strongest proof of the ownership of a Power
to a place is the occupation thereof by that Power”,108 and the fact that at that
time Persia clearly had not yet similarly occupied either of the Tunbs or Abu
Musa, it may be doubtful that its initial ambition went further than securing
the ownership of Sirri.109 Whatever the case, Persia made no attempt to seize
possession of any of the three islands during the events of 1887 and 1888, with
their control remaining in the hands of the Qawásim, under British protection.
In successfully defending the Qawásim possession and ownership of the
Tunbs and Abu Musa against Persian attempts to seize control throughout the
last part of the nineteenth and much of the twentieth centuries, the British
government formed the view that Qawásim ownership of the islands predated
the arrival and settlement on the shores of the Persian mainland of certain
members of the extended Qasimi family, and was exercised independently of
the Persian government even as the ruling Qawásim sheikhs in Lengeh “gradu-
ally came under the power of the Persian Government”:
About 1750, a portion of the Jowasimi tribe crossed the Gulf to aid the
Persian Governor of Bandar Abbas and Ormuz against the then Shah,
when they took possession of Lingah, opposite the island of Kishm, and
other places on the Persian coast. Lingah they continued to hold until
the deposition by Persia of the last Arab Sheikh of Lingah in 1887. But
for a number of years before that date, while Lingah up to about 1882
remained a tribally administered Arab principality, the ruling Sheikhs
had gradually come under the power of the Persian Government, having
finally acknowledged themselves Persian subjects, paying to the Persian
Governor-General of Fars such tribute as he could exact from them, and
governing Lingah as Persian officials.
107 Ibid., Vol. 1, 722, containing a telegram from the Political Resident in the Persian Gulf,
Bushire to the Foreign Secretary, Simla, dated October 1, 1887 (“Ranger visited Islands Sirri
and Tomb. Persian flag flying on former, not yet on latter.”).
Britannic Majesty’s Legation at Teheran, dated March 10, 1898.
109 See chapter 8.
…
There is nothing to show that those Arabs [i.e., the Qawásim], having
obtained a footing on the Persian coast, thence derived authority over
outlying islands. Probability suggests rather that they carried with them to
their new settlement a position in the islands which they already possessed.
The fact that a section of these Arab intruders later acquired the status of
Persian subjects, and held their authority on the Persian coast in subor-
dination to the Persian Government as local Chiefs or Governors, cannot
affect any original rights the Jowasimi tribes on the Arab and the Jowa-
simi tribes on the Persian littoral may have had in common; an intimate
connection appears to have been maintained between the two sections
of the tribe, and the islands remained their common property and did not
become Persian territory…110
At the same time as it was taking measures to establish direct control of its
Gulf littoral and various Gulf islands at the end of the nineteenth century, the
Persian government took other steps which signalled its intention to assert
greater authority over the Gulf. These steps included the establishment of a
new administrative department, reporting directly to the central government
in Tehran, given the title of the Persian Governorship of the Gulf Ports. This de-
partment was given the authority, exercised in the first instance by a member
of the Persian royal family,111 of administering important Persian coastal towns
and islands, which included the collection of customs revenues and taxes gen-
erated at those locations.
A further step was an attempt in August 1887, although it proved to be
awkwardly executed and wholly unsuccessful, to persuade various Arab rul-
ers of the opposite coast (including the Qawásim rulers of Sharjah and
Ras Al Khaimah) to accept Persian suzerainty or “protection” under a written
treaty,112 apparently with the intention of undermining or replacing the B ritish
110 Confidential India Office report, dated 24 August 1928, citing communications from the
Political Resident of December 1898. Toye, Lower Gulf Islands, Vol. 4, 124, 130 (emphasis
added).
112 The then Ruler of Dubai, Sheikh Rashid bin Maktoum, recorded that the proposed terms
of this treaty included the following: “(1) Renewal of the friendly relations with the Per-
sian Government in the name of the Malik, (2) Every one who shall take refuge under your
protection, and there are claims against him, the same [person] must be surrendered. The
extradition [of absconders] shall be reciprocal. (3) You should not forbid the readings
about Hussain during the days of ‘Ashura. (4) There shall reside on behalf of the Persian
Government an Agent in Oman to be received and treated in the same way as the Agent of
the British Government. (5) If there shall be claims on your part against Persian subjects
60 chapter 1
in this role.113 Reports indicate that the Persians had “proposed that the Chief
should withdraw from the ‘circle’ of the ‘Christians’ and come under the Per-
sian Government.”114 Other reports indicated that the Persian government had
begun to circulate rumours that it had taken on itself “the responsibility of
keeping order in the Persian Gulf” and that “the British maritime supremacy in
the Gulf is about to cede to that of Persia.”115 The British understood this effort
to have been undertaken “at the instigation of Russia.”116 Indeed, the Persian
government announced to the Arab rulers in early 1888 that “the British had
no rights whatsoever in the Gulf, and, at the request of the Government of
Persia, a Russian man-of-war would shortly come to the Gulf.”117 The British
were then at the pinnacle of their supremacy in the Gulf, and obviously looked
with suspicion at Persia’s attempts (with or without Russian “instigation”) to
extend its authority over Gulf waters, as well as over islands which were then
also claimed and used by the Qawásim, with whom the British had enjoyed ex-
tensive and close treaty relations since 1820. These treaties and the unwritten
arrangements which they had generated had allowed the British to achieve a
position of unmatched supremacy in controlling Gulf affairs. The notion that
the Persian government envisioned establishing treaty relations of their own
with the Arab rulers was unthinkable to the British government. In reporting
the Persian effort, the Political Resident in the Gulf wrote this:
[residing in Oman], who on a demand being made should refuse to pay up the claim, then
the Chief of the place where the man may be residing should not recover it himself, but,
on refusal being made, the matter shall be referred to the Persian Government Agent, who
will take notice of the case in the same way as it is arranged with the British Government.”
Reproduced in Toye, Lower Gulf Islands, Vol. 1, 733. According to Lorimer, this was “[a]n
absurd but apparently serious attempt … by Persian officials in 1887–1888 to establish a
footing in Trucial Oman” [present-day uae] in which a former Persian deputy governor
of Bushehr, Haji Ahmad Khan, “proposed the establishment of close relations between
the Shaikhs and the Persian Government with a view to the exclusion of British influence
from Trucial Oman.” Lorimer, Gazetteer of the Persian Gulf, Vol. 2, 737.
113 Toye, Lower Gulf Islands, Vol. 1, 722, containing a telegram from the British Political Resi-
dent in the Persian Gulf to the British Foreign Secretary, dated September 30, 1887, report-
ing that “Persian General Haji Ahmed made political proposal when recently on Pirate
Coast (sic). Tenor understood to be that Chiefs should renounce British connection and
place themselves under Persia.”
114 Ibid., Vol. 1, 724.
115 Ibid., Vol. 1, 728.
116 Ibid., Vol. 1, 722.
117 Ibid., Vol. 2, 21, containing a letter from Her Majesty’s Chargé d’Affaires, Tehran to Her
Majesty’s Secretary of State for Foreign Affairs, dated February 27, 1888.
When it is considered how well known in these parts is our paramount

position in relation to the Arab Chiefdoms of Oman, and the sacrifices of
various kinds by which this position was attained and is still maintained,
and when one considers how seriously the success of the insidious in-
trigues of the Persians would sap our authority and lower our prestige,
I cannot but regard the proceedings of Haji Ahmad [the Persian General
who proposed the signing of the treaties] as wholly unjustifiable, and
such as any Government, in similar circumstances, would justly com-
plain of and resent. The very fact of such an attempt being made is to
a certain appreciable extent detrimental to British prestige, and when
taken in connection with other more or less palpable slights, the effect is
not to be disregarded.
I need scarcely explain that although Haji Ahmad’s proposals fall short
of what was rumoured, namely, substitution of Persian for British su-
premacy, the presence of a Persian Government Agent and conclusion
of a treaty between the trucial chiefs and Persia would alter our relations
with those Chiefs materially. Our management and control to be effec-
tual must be undivided, and with any foreign Power interfering there the
task would soon become impossible.118
Other than the threat to British supremacy in the Gulf which these efforts of
the Persian government represented, they also raised awareness within the
British government that its control over the Arab Gulf States, including the
Qawásim Sheikhdoms of Sharjah and Ras Al Khaimah, was not dependent on
any written treaty:
[T]he control and supervision we exercise over the trucial chiefs is not
in virtue of any treaty or convention. The Chiefs are bound to the British
merely to keep the peace on sea, but, from natural and inevitable deduced
positions, these Chiefdoms have come to regard England as their para-
mount superior power, to whose decisions they are, in accordance with
unwritten law, the growth of time and usage, bound to bow, and to which
Government in return they look for protection of their independence.119
118 Ibid., Vol. 1, 733 containing the Note from Col. E.C. Ross, Political Resident in the Persian
Gulf to A Nicolson, Her Britannic Majesty’s Chargé d’Affaires at Tehran, dated October 30,
1887.
119 Ibid.
62 chapter 1
Lorimer states that the British had, immediately after the first of the two visits
the Persians made to the Arab coast to coax the Arab rulers to accept Persian
“protection”, sought to cure its own lack of written agreements with those rul-
ers by obtaining a written assurance from each of the various rulers involved
(including the rulers of Sharjah and Ras Al Khaimah) that he would on no
account correspond or enter into an agreement with any government except
the British, and that he would not allow the agent of any other government to
“reside in his dominions.”120 The treaty relations between Britain and the Qa-
wásim rulers were to become more formalized, and domineering, a few years
later when, in 1892, Britain and the Qawásim rulers, along with other rulers
of the Arab coast, signed the so-called “protectorate” arrangements, formally
known as the “Exclusive Agreements.” Under these agreements, the rulers for-
malized their promise not to conduct affairs with any foreign power other than
Britain, nor to allow the establishment by any foreign power of a residence
in their territory.121 Although Britain had other reasons for seeking to tie the
Arab rulers exclusively to it, including attempts by the Ottomans and France
to extend their influence over the Arab coast by establishing closer relations
with the tribal rulers and thus supplant British supremacy, there can be little
doubt that chief among the motivations for imposing the Exclusive Agree-
ments was the threat posed by Persian assertiveness.
That Persian efforts in the late nineteenth century to assert greater author-
ity over its Gulf littoral which it had previously not directly controlled (as well
as a number of Gulf islands, including the three islands in dispute) and in so
doing to confront British power in the Gulf were carried out while Persia court-
ed Britain’s European rivals, most particularly Russia, with promises of special
rights in accessing Persia and the Gulf, heightened British suspicions or fears
that these manoeuvrings could ultimately threaten British interests, including
trade and its Indian empire. For example, it was noted by the British in April
1888 that Persia was attempting to “promote Russian influence in the Persian
Gulf to the extent of ceding an island to Russia as a coaling station”122 and, just
prior to that, in the winter of 1887–1888, a Russian officer conducted a tour of
the Gulf, causing “some excitement in Persian circles by openly discussing the
anti-British policy of his country, and an alleged arrangement between Russia

121 Toye, Lower Gulf Islands, Vol. 2, 137, containing “Protectorate Treaties of 1892.” This treaty
was signed between the British Resident in the Persian Gulf and the Chiefs of Abu Dhabi,
Sharjah, Dubai, Ajman, Umm Al Qaiwain and Ras Al Khaimah.
122 Toye, Lower Gulf Islands, Vol. 2, 22, containing a telegram from Her Britannic Majesty’s
Minister, Tehran to His Excellency the Viceroy, dated April 19, 1888.
and Persia to make common cause against Britain in the Persian Gulf.”123 At
around the same time, Russia was expanding its control in Central Asia to-
wards the frontier with British India (“an event which brought Russia and
Britain within measurable distance of war”124). An international dynamic was,
therefore, looming around the fringes of the legal dispute over sovereignty to
the islands from its beginning.
The British were not the only larger power interested, or entangled, in the
dispute during the late nineteenth and early twentieth centuries. The Ottoman
Empire, prior to its demise, was also attentive to convulsions affecting claims
and assertions of ownership over the islands. Thus, in response to Persia’s as-
sertions of sovereignty, the Ottoman government undertook an investigation
of its own into their rightful ownership at the beginning of the twentieth cen-
tury, concluding, as the British government had, that the islands belonged to
the rulers of the “Oman coast.” Indeed, the Ottoman government went so far
as to consider the mobilization of a naval squadron in 1904 to intervene on be-
half of the Arab Qawásim claimants, who the Ottomans considered – perhaps
fancifully – to be their subjects and whose territorial possessions, including
the islands, they therefore considered to be part of the domains of the Glorious
Empire. This occurred at the end of that year, and after an attempt by customs
agents acting for Persia to assert authority over the islands of Greater Tunb and
Abu Musa by removing the Arab banner and planting the Persian flag there,
when the Ottoman Chief of Staff requested Sultan Abdulhamid ii to authorize
the sending of warships to the islands because “the protection of these islands,
which are part of the Empire, depends on it.”125
The planting of the Persian flag on the islands by customs agents presum-
ably acting pursuant to the instructions of the central Persian government in
1904, an incident discussed in detail in several following chapters, merits a
brief note in this summary as it again highlights the peripheral involvement
of foreign parties in the dispute. Those customs agents, who were of Belgian
nationality and who were appointed to manage Persia’s customs administra-
tion in 1898, had assumed their responsibilities in connection with the grant of
foreign loans extended by European powers to the Persian government which
were guaranteed through an assignment of Persia’s customs revenues.126 Their
work involved amending Persia’s customs tariffs and policies applicable along

124 Ibid., 288.
125 Y.MTV 268–216, Report of the Ottoman Chief of Staff, Serasker Riza, to Sultan Abdulha-
mid ii, dated November 10, 1904 (translation by Ismail Keskin on file with authors).
126 See, e.g., Floor, Rise and Fall of Bandar-E Lengeh, 124.
64 chapter 1
the Gulf littoral, and carrying out the collection of increased customs reve-
nues. Whether the planting of the Persian flag on the islands by these Belgian
agents was instigated by the Persian government or by the agents themselves
as a means of seeking to expand the scope of potential customs receipts, or
for some other reason, is not entirely clear. But the foreign footprint on the at-
tempt was not lost on the British government, which after successfully obliging
Persia to remove the flags, concluded that the entire episode had been “pre-
cipitated” by Russia to confront Britain’s preeminence in the Gulf.127
At around the same time, the interest of certain European powers in the
dispute over the islands manifested itself and led, among other events, to the
dispute becoming intertwined in the rivalry between Great Britain and Ger-
many prior to the First World War. In April 1898, the Ruler of Sharjah had en-
tered into a concession agreement for the mining of red oxide on the island of
Abu Musa with several local individuals acting as a consortium.128 Some years
later, in June 1906, one of those individuals, acting under apparent authority of
the others, signed an agreement with a German firm active in the Gulf, Robert
Wönckhaus and Co., under which the firm was granted the right to purchase
the entire output of the red oxide mines on the island for four years, with a pos-
sibility of subsequent and indefinite renewal.129 Thus began a dispute which
was to escalate into an international incident between Britain and Germany.
The British government, fearful that this undertaking had a political motive,
encouraged and pressured the Ruler of Sharjah to contest the legal grounds of
the agreement and then to cancel the original concession altogether, so as to
ensure that the German firm would be excluded from operating on the island.
The British Resident in the Gulf recognized that “the Germans know quite well
that the sheikh cancelled the concession with the approval, if not at the in-
stigation, of the representative of His Britannic Majesty”, and that “the object
in view in getting the concession cancelled by the sheikh was political; it was
to prevent Germany, through Wönckhaus, from getting a monopoly and foot-
hold in the island of Abu Musa, which might have been pushed and developed
127 Toye, Lower Gulf Islands, Vol. 2, 484–485, containing a Telegram from Sir A. Hardinge (Brit-
ish Minister in Persia) to the Marquess of Lansdowne (British Foreign Secretary), dated
May 24, 1904.
128 Ibid., Vol. 2, 329–337.
129 Ibid., Vol. 3, 24, containing a copy of the Contract between Mr. Hasan C. Semey, Lingah,
owner and holder of the Bu Musa Concession, and Mr. Robert Wönckhaus, Lingah, dated
June 1st, 1906. See also ibid., Vol. 3, 3–4. See chapter 8 for a more detailed description of the
Wönckhaus Affair, as the Anglo-German dispute originating in the 1906 contract came to
be known.
into a political occupation.”130 In one incident, the German staff was forcibly
prevented from landing on the island with shots being fired in the air, as a
British agent watched, and in another incident instructions were issued by the
British government “to see that no German flag is hoisted at any time” over
the shelters of the workers hired by the German firm.131 An occupation of the
island by Germany through a “vested interest” of its citizens could, feared the
English, also permit the establishment by Germany of a coaling station on
the island to serve German maritime or naval requirements. Interestingly, the
dispute took on a life of its own throughout quite a few years, even surviving
the First World War, and with suggestions made by Germany prior to the war
that it be resolved by the “Permanent Tribunal in The Hague”. This possibility
never occurred, but lengthy and detailed legal briefs were prepared by both
sides in which each, in support of their respective legal arguments, recognized
the sovereign rights of the Ruler of Sharjah over the island of Abu Musa.132
During the 1930s, there were reports that the dispute over the three islands
between Persia and its Qawásim Arab neighbors, Sharjah and Ras Al Khaimah,
might be raised by the Persian government before the League of Nations, along
with Persia’s claim to the much larger and populated island of Bahrain. This
never came about, but it again placed a spotlight on the wider ramifications
of the dispute, and created enough of a concern to the British – in their capac-
ity as treaty partners of Sharjah, Ras Al Khaimah and Bahrain (around which
most of the concern centered) under its protectorate arrangements with each
of these parties133– that significant attention and planning was devoted to
the best course of action for the British government to take if a referral to the
League were to be made. Anticipating that Persia might imminently raise the
matter at a session of the League Assembly scheduled for the early fall of 1934,
requiring an immediate response from the British Government, the Secretary
of State for India suggested a short “counter-statement” along the lines of this
succinct description of the dispute over the three islands:
130 Toye, Lower Gulf Islands, Vol. 3, 223, containing the Minutes of a meeting, dated February
4, 1910, with the British Resident in the Gulf.
131 Ibid., Vol. 3, 221.
132 See, e.g., ibid., Vol. 3, 44–56 containing a Letter from Baron von Stumm to Sir Edward
Grey attaching Complaint of the German Firm R. Wönckhaus and Co. (with enclosures)
against the Sheikh of Shargah, dated December 31, 1907.
133 Other than the 1892 Exclusive Agreements signed in March 1892 by the British with the
Rulers of Abu Dhabi, Sharjah, Dubai, Ajman, Umm Al Qaiwain and Ras Al Khaimah, the
arrangement with Bahrain, entered into also in March 1892 contained identical provi-
sions. Treaty Between Great Britain and the Chief of Bahrain, March 1892, 176 c.t.s. 467.
66 chapter 1
If the Persian claims to Tamb and Abu Musa should also have been re-
ferred to, he suggests that it would suffice to state that while the history
of these barren islands prior to 1750 is obscure, since that date authority
over them, and such effective occupation as has existed, has had its origin
in the Jowasimi Arabs of the Trucial Coast of Arabia, that their represen-
tative, the Sheikh of Ras-el-Khaimah and the Sheikh of Shargah on that
coast, who respectively exercise authority over these islands, are inde-
pendent rulers in special treaty relations with His Majesty’s Government,
and that the Persian claim, which appears to have first been put forward
so recently as 1887, has been repudiated by His Majesty’s Government
acting on their behalf.134
Interestingly, while the British government considered the Persian claims un-
sound, and for that reason welcomed the opportunity, on behalf of the Sheikh-
doms, to put them to rest before the Permanent Court (which was one of the
potential consequences of submitting the dispute to the Assembly or the
Council of the League of Nations),135 it also considered whether, “if the totally
unexpected happened and the court gave a decision in Persia’s favour”, it would
be possible to refuse to comply with an adverse ruling:
In that event Sir Samuel Hoare cannot see that His Majesty’s Government
would have any alternative but to refuse to implement the decision, hav-
ing regard alike to their strategic and other interests, their obligation of
honour and justice to the sheikh, and finally their own reputation for
faith and loyalty throughout the Middle East.136
This view was, however, not adopted by the Foreign Office, which considered
that it would result in the British Government assuming an attitude “wholly
134 Toye, Lower Gulf Islands, Vol. 5, 195, containing a Confidential India Office Memorandum
to the Foreign Office, dated September 10, 1934.
135 Ibid., Vol. 5, 201, containing the Confidential Foreign Office note, dated November 6, 1934,
which stated that “If the Persian Government agree to a reference to the Permanent
Court, the opinion of the Law Officers gives every reason for believing that the result will
be to put an end to the Persian claim once and for all. If, on the other hand, the Persian
Government refused a reference to the court which His Majesty’s Government had ac-
cepted, Persia would have placed herself in the wrong, and it might fairly be assumed that
the Council would decline to deal further with the case.”
136 Ibid., Vol. 5, 196, containing a Confidential Memorandum from the India Office to the
Foreign Office, dated September 10, 1934.
contrary to the policy which they have followed in regard to the League since
its inception, and would seriously prejudice their position as a member of the
Council in future.”137
Years later, in November and December 1971, the conflict over the islands
also found its way to the United Nations Security Council after Iran exercised
military force to occupy the two Tunbs islands while, pursuant to the Memoran-
dum of Understanding (mou) between Iran and Sharjah (briefly described on
the first page of this work’s Introduction), Iranian forces took up positions on
Abu Musa. This occurred upon the (almost to the day) formal and previously
announced British withdrawal of forces from the Gulf (and the simultaneous
termination of the 1892 Exclusive Agreements and the formal establishment of
the uae as a State). After many years of disputed ownership, the conflict had
come before the world’s highest international body. Once again, the dispute
was also the scene of a larger political confrontation as the Security Council
debate was brought and principally supported by the leaders of several left-
leaning Arab States, namely, Iraq, Algeria, Libya and Yemen, against what they
described as an infringement of Arab sovereignty by Iran, supported by British
colonial policies.138 Although no action was taken by the Security Council to
“allow the workings of quiet diplomacy”139 to take place (which have hardly
occurred and never been successful), the dispute had made it onto the agenda
of potential “threats to international peace and security”, the highest category
of circumstances dealt with in the United Nations Charter.
The un’s “principal judicial organ”,140 the International Court of Justice
(the “icj”), has also been frequently mentioned in connection with the dis-
pute over the Gulf islands. In his remarks during the December 1971 Security
Council debate, the uae representative, Adnan Pachachi, had intimated that
the dispute could have been resolved by the International Court of Justice
rather than “the unilateral use of force” by Iran,141 and in later years, and con-
sistently since 1994, the uae, whether directly in declarations made before the
United Nations G eneral Assembly or through declarations issued by the Gulf
137 Ibid., Vol. 5, 200–201, containing a Confidential Foreign Office note, dated November 6,
1934.
138 Security Council Official Records, Twenty-Sixth Year, 1610th Meeting, December 9, 1971,
un Doc. S/PV.1610, 18.
139 Ibid., paras. 281–282.
140 United Nations Charter, Article 96.
141 un Doc. S/PV.1610, para. 272.
68 chapter 1
Cooperation Council (“gcc”)142 or the League of Arab States,143 has repeatedly

offered to refer the dispute to the International Court of Justice for final resolu-
tion in accordance with international law.144 Iran has never taken up the offer
of submitting the dispute to international arbitration or adjudication, instead
offering only to engage in bilateral negotiations with the uae to resolve any
“misunderstandings” arising between the two States, most specifically with re-
spect to Abu Musa and the implementation of the mou.145
142 The Closing Statement of the Twenty First Session of the gcc Supreme Council, 4–5
Shawwal 1422 ah /30–31 December 2000 ad. Accessed January 10, 2016. https://www.gcc
-sg.org/eng/index0334.html?action=Sec-Show&ID=123.
143 See, e.g., Letter dated 16 April 2009 from the Permanent Observer of the League of Arab
States to the United Nations addressed to the President of the Security Council, un Doc.
S/2009/212.
144 The following statement on the dispute over the islands made by the Minister for Foreign
Affairs of the uae at the 63rd Session of the un General Assembly held on September 27,
2008 is fairly typical of the uae’s offer to refer the matter to the icj: “Iran’s ongoing oc-
cupation since 1971 of the United Arab Emirates’ three islands of Abu Musa and Greater
and Lesser Tunb is an issue of central importance to us. From this rostrum, I would like
to reiterate our firm position demanding the full restoration of our full sovereignty over
the three occupied islands and their territorial waters, airspace, continental shelf and
exclusive economic zone. The islands are part and parcel of our national sovereignty. We
reiterate that all actions and measures, whether military or administrative, undertaken
by Iran since its occupation of the three islands are null and void. Iran’s actions have no
legal effect. We therefore renew our call to the international community to urge Iran to re-
spond positively to the sincere appeals of the United Arab Emirates, the Gulf Cooperation
Council and the League of Arab States by agreeing to resolve the issue through committed
and serious direct negotiations or by referring the dispute to the International Court of
Justice.” General Assembly, 63th Session, 13th plenary session, September 27, 2008, un
Doc. A/63/PV. 13, 32.
145 See, e.g., Letter dated February 28, 2014 from the Permanent Representative of the Islam-
ic Republic of Iran to the United Nations addressed to the Secretary-General, un Doc.
S/2014/143 (“The Islamic Republic of Iran … reiterates its consistent and principled posi-
tion that it does not recognize the existence of any dispute between the Islamic Republic
of Iran and the United Arab Emirates, the three islands having been an inseparable part
of Iranian territory. Thus, as has been regularly reiterated, the territorial integrity and sov-
ereignty of the Islamic Republic of Iran over the said islands are not negotiable. Nonethe-
less, and to show its utmost respect for the principle of good-neighbourliness, the Islamic
Republic of Iran has always expressed its readiness to talk with the United Arab Emirates
bilaterally with a view to continuing to strengthen bilateral relations and removing any
misunderstanding that may exist between the two countries.”).
As mentioned in the Introduction, since the events of November 1971, the

parties directly involved in the dispute over sovereignty to the islands have
largely maintained a consistent historical narrative through their respective
formal statements. The factual accuracy of those positions and the legal sub-
stance of their respective arguments will be analyzed in the chapters which
follow, beginning with an expanded discussion in chapter 2 of the key histori-
cal events which have occurred in relation to the islands.
chapter 2
The Gulf Islands Dispute in Historical Perspective
An analysis of disputed territorial sovereignty often depends to a significant

extent on a careful review of the history of the territory in question to determine
whether that history reveals the existence of the crucial elements involved in
establishing sovereign rights under applicable international law principles by
one State or the other. The particular challenge this exercise poses in connec-
tion with the islands is made more difficult by several key factors. The first is
the dramatic, complex and intricate history of the areas directly around and
within close proximity to the islands. That history has witnessed, over the last
seven centuries alone, the emergence of several regional and foreign States
(other than the two claimant States, Iran and the uae) as predominant and
controlling powers – particularly seaborne powers – for significant periods of
time. These powers have included the Kingdom of Hormuz (14th–16th cen-
tury), the Portuguese (16th–7th century), the Dutch (17th–18th century), the
British (18th–20th century) and the various Imamate dynasties of Oman (18th
and 19th centuries). Other powers, such as the Ottoman Empire and the Wah-
habi forces emanating from the Arabian peninsula, also played important roles
in influencing certain events in the southern Gulf region at various historical
moments.
While there is some anecdotal historical evidence that the Greater Tunb
island was considered to belong within the possessions of the first above men-
tioned of these powers – the Kingdom of Hormuz1– there is no direct evidence
based on primary sources that this trade-based kingdom or any of the other
States which came to exercise a great deal of control over the southern Gulf
waters ever exercised any effective control or made a specific claim to owner-
ship of that or the other two islands in dispute. Indeed, as a general statement,
it is accurate to conclude that, based on available historical records, none of
1 Mansel L. Dames, ed., The Book of Duarte Barbosa, An Account of the Countries Bordering on
the Indian Ocean and their Inhabitants. Written by Duarte Barbosa and Completed about the
Year 1518 a.d. (London: Hakluyt Society, 1918), Vol. 1, 68–69, 74. See chapter 5 for a detailed his-
torical and legal analysis of the role of the Kingdom of Hormuz vis-à-vis the islands subject of
this book.

The Gulf Islands Dispute in Historical Perspective 71
such States appears to have ever taken any specific interest in establishing or
determining ownership rights over any of the three islands other than possibly
the British at the end of the nineteenth century and until 1971, and then prin-
cipally in support of the Qawásim claims but not in any sense of establishing
British territorial possession itself.
Thus, other than Iran and the uae, there are no other claimants or parties
whose connection with or asserted rights in the islands must be considered.
This of course makes the legal analysis over sovereignty to the islands less
complicated as no claims of other contenders, or previous contenders, and the
legal effect of those claims (or abandonment of claims), must be dealt with
or considered in connection with the claims put forward by the two current
claimants. At the same time, direct evidence of ownership, supported by pri-
mary sources, by either of these two claimants is difficult to find prior to the
middle of the nineteenth century, that is, close to the time when the dispute
was to arise. Therefore, determining and tracing ownership rights which sig-
nificantly pre-dated the crystallization of the dispute requires some reliance
on the mass of indirect evidence that can only be derived from the complex
events which occurred before then and which, again, subjects the analysis to
the vicissitudes of that detailed history.
These circumstances have by necessity led the authors to delve into
peripheral historical events to search for clues which are relevant to determin-
ing the islands’ sovereign owners. That being said, we have to the extent possible
also taken to heart the s entiment reflected in an instruction given in a Resolu-
tion of the highest authority of the Dutch East India Company in 1743 in which,
after having received a lengthy report concerning events occurring in the Per-
sian empire, he admonished the Company’s officials (“servants”) in Persia to
eliminate frivolous histories in their future reports and to be more concise:
On proposition of the sir Governor General, after returning to the ac-

tual subject of this extraordinary meeting, viz the notes made by the
sir ordinary councillor and describer Maurits van Aerden on the advice
received from Persia, and so continuing the extraordinary amount that
the servants [in Persia] wrote relating to the Persian Empire, their letter
alone being written on an excessive number of 28 sheets, which is 128
pages manuscript, which easily could have been comprised to a sixth of
that length, if they only would have considered to refrain from writing
down a length of dawdle-ish and contradictory histories, which did not
even prove to be worth to be read; concluding that the servants will be
ordered to adopt a more concise and shorter style of writing, refraining
72 chapter 2
t hemselves from including the unnecessary and only making clear men-
tion of those things that are really of concern to the Company.2
With this admonition in mind, this chapter sets out a general historical survey
of the three disputed islands and the Gulf region in the vicinity of the islands,
focusing on historical periods or specific historical events which are or have
been described by various scholars as most relevant to the debate over their
sovereign ownership. The historical matters surveyed in this chapter will be
reviewed and analyzed in greater detail in chapters 4 through 9 as the history
of the islands and the dispute over their ownership is recounted chronologi-
cally through the ages.
The Islands in Antiquity
Academic works of great scholarship and meticulous research have explored

and analyzed the history of the Gulf region and its surrounding areas from early
historical times. Such scholarly works have looked at the Gulf’s ancient history
and society from many different perspectives, including from the archaeologi-
cal, anthropological, cultural, religious, economic, geographic, military and,
of course, political standpoint. These academic works, whether derived from
fragments of texts which were themselves written in ancient times or other
historical clues and data, such as archaeological excavations, reveal numerous,
discrete and often historically important pieces of information about the re-
gion which may be seen as somehow relevant to determining the history of
the specific Gulf islands which are the subject of this book, and in that regard,
germane to determining the evolution of their ownership over centuries and
until the present day.
With respect to the historical period beginning with the early Persian
empires of Cyrus the Great and Darius i in the fifth century b.c., there is no
dearth of contemporary scholarly works which refer to and interpret original
sources of information related to that period. Indeed, the scholarship (both
ancient and contemporary) which has been produced in relation to the south-
ern Gulf region beginning with that period is of such a magnitude that some
scholars have been tempted to refer to or rely on it in reaching conclusions
as to the particular circumstances and ownership or control of the three
2 na 1.04.02 (voc) rec. no. 774 fols 109–110 [rggc], Resolutions of the Governor General and
Council of the Dutch East India Company, dated September 16, 1743 (translation by G.G.J.
Boink, on file with authors).
disputed islands at that time, even if, as is the case, the islands themselves are
almost never specifically mentioned or identified. The voluminous historical
treatment of the Gulf during those and subsequent periods is due in part to its
geographical role as an important transit route for trade as it was “astride the
main trade routes between Europe and the Indies and the Far East, [which]
has ensured its political and commercial importance since ancient times”.3
This geographical location meant that the islands were never far from events –
often recorded in one way or another – which have shaped the world and the
course of history. One such scholarly work notes that:
[The Gulf has] a place in the written history of mankind older than that
of any other inland sea; its story can be traced, though not continuously,
from the very earliest historic times; its central position on one of the
main highways between East and West has from the dawn of civilization
invested it with particular importance: it was the scene of great events,
which determined the trend of development of the human race.4
Although it has been stated that “in comparison with the Mediterranean and
the Black Sea”, the “evidence of history of the Persian Gulf in the pre-Islamic
period” is “rather meager”,5 it is also noted that information gleaned from
archaeological excavations has, particularly on the southern (Arabian) coast of
the Gulf, revealed many aspects of ancient life around the Gulf which gives us
clues as to the identity, activities and movements of populations and empires
in that area in antiquity. One contemporary scholar describes the intensity and
advances in the archaeological research conducted around the Gulf and on its
islands as follows:
Our knowledge of the Arabian littoral and its offshore islands (Failaka,
Bahrain, and the Abu Dhabi islands) is infinitely greater than that of its
Persian counterpart. In spite of the fact that archaeological research in
Iran has a much longer history than it does in eastern Arabia, the vast
majority of surveys and excavations have been conducted in continen-
tal Iran rather than along the coast. Little survey or excavation has been
3 Roger M. Savory, “The Ancient Period”, in The Persian Gulf States, A General Survey, ed
Alvin J. Cottrell (Baltimore: John Hopkins University Press, 1980), 3.
4 Sir Arnold T. Wilson, The Persian Gulf, An Historical Sketch from the Earliest Times to the Begin-
ning of the Twentieth Century (London: George Allen & Unwin Ltd, 1928), 1.
5 Touraj Daryaee, “The Persian Gulf in Late Antiquity: The Sassanian Era (200–700 c.e.),” in The
Persian Gulf in History, ed. Lawrence G. Potter (New York: Palgrave Macmillan, 2009), 57.
74 chapter 2
conducted on the Iranian coast and offshore islands, with the exception
of Tul-e Peytul (ancient Liyan), near modern Bushehr, … , Kharq Island
… , Siraf … , and Kish Island, where a limited survey and soundings were
carried out in the mid 1970s. We have some notices in Greek and Latin
sources on this coast and on some of the major islands (e.g., Qishm), but
these, although interesting, are of limited value. In contrast, archaeologi-
cal excavations in Kuwait, eastern Saudi Arabia, Bahrain, Qatar, the uae,
and Oman, which began with the opening of a few tombs on Bahrain in
1879, have gathered in intensity during the past fifty years, particularly in
the last two decades.6
The gathering and study of data from the Gulf is not a recent phenomenon, but
itself began in ancient times, and that the three islands themselves were known
from antiquity cannot be doubted, even if little attention was paid to them. For
example, it has been recounted that expeditions launched from Babylon by
Alexander beginning in 325 b.c. for the purpose of exploring the Gulf coast
collected “an enormous amount of geographical, ethnographic, and botanical
data, which was excerpted by later writers like Eratosthenes, Theophrastus,
Strabo, Pliny, and Arrian, who have given us a description of the southern coast
of Iran, detailed descriptions of the flora of Tylos (Bahrain); a list of names of
tribes and towns in eastern Arabia; and the first detailed account of pearling in
the Persian Gulf.”7 Indeed, in 326 b.c., a year or so before these voyages began,
Alexander’s fleet must have passed directly by the Greater and Lesser Tunbs
on its voyage from India. Writing in the Second Century b.c., Arrian recounts
the description of the fleet’s passage through the Gulf set out in the journal of
Alexander’s Admiral, Nearchus, which names numerous points within close
proximity to those two islands (although not identifying either of them) as the
fleet made its way into the Gulf and up along its coastline: After rounding Cape
Jask and heading through the Strait of Hormuz, they anchored:
[O]ff a barren coast, whence they described a headland projecting far

out to the sea … about a day’s sail distant. Persons acquainted with those
regions asserted that this cape belonged to Arabia, and was called Maketa
[Ras Musandam], whence cinnamon and other products were exported
to the Assyrians… Continuing past Neoptana they anchored at the mouth
of the river Anamis (Minab) in a country called Harmozeia, then, as now,
6 Daniel T. Potts, “The Archaeology and Early History of the Persian Gulf,” in The Persian Gulf
in History, ed. Lawrence G. Potter (New York: Palgrave Macmillan, 2009), 27.
7 Ibid., 39.
‘a hospitable region rich in every production except only the olive’… The
fleet now passed a desolate rocky island called Organa (Hormuz) and
anchored at ‘one of considerable size and inhabited, called Oarakta
(Qishm), which produced vines, palm trees and corn’. Pursuing their
course along this island, they anchored at a place where another island
(identified with Hanjam) was visible at a distance of about 40 stadia [ap-
proximately 4.5 miles], which they learned was sacred to Poseidon or
Neptune, and after a further course attained the limits of the coast of
Karmania at Kataia (probably Qais [Kish]), a desert island and very flat
said to be sacred to Hermes and Aphrodite. The course now lay along the
coast of Persis, and after passing a desert island called Kaikander (Hinda-
rabi) they came to another inhabited island, where Nearchus notices
‘there is here a fishery for pearl as there is in the Indian Sea.’8
George Rawlinson, writing in 1900 about this voyage, recounted that Nearchus
noted in his logbook “each island, and anchorage, and seaboard village” all the
way to the Tigris.9 Long before the era of Alexander, during the reign of Darius
i (521 b.c. – 486 b.c.), Greek geographers, including Hecataeus, considered and
recorded the Gulf’s geographical parameters and features. It is interesting that
in so doing the term Persian Gulf was used to refer to the Gulf, apparently the
first time such a reference was made (it having apparently been referred to as
the Lower Sea in prior times), in evident recognition of the presence of the Per-
sian Achaemenid Empire throughout southeastern Arabia and Oman at that
time, thus covering locations on both coasts of the Gulf.10 Whether that Per-
sian Empire actually controlled the Gulf waters themselves, however, or just
its coastal areas is debated by historians. For example, Wilson states that early
writers, including Strabo, concluded that the Persians “were in constant ap-
prehension, not without reason, of their maritime provinces being laid waste
by some foreign fleet” and for that reason made the entrance to their princi-
pal navigable river, the Karun, inaccessible by obstructing it with “masses of
stone”.11 Savory, quoting Arrian, agrees that as a seminomadic people from the
steppes of Central Asia, “it is quite true that the Iranians were, to begin with,
‘unskilled in maritime affairs’.”12 However, he also notes that:
8 Sir A.T. Wilson, The Persian Gulf, An Historical Sketch from the Earliest Times to the Begin-
ning of the Twentieth Century (Oxford: Clarendon Press, 1928), 40–41.
9 Savory, “Ancient Period”, 9.
10 Potts, “Archaeology and Early History of the Persian Gulf”, 38.
11 Wilson, Persian Gulf, 35.
12 Savory, “Ancient Period”, 5.
76 chapter 2
[In] 547 b.c., when Cyrus the Great defeated Croesus, King of Lydia, at
Sardis, he reached the eastern shore of the Aegean Sea and found himself
facing the sea power of Greece and Egypt. The Achaemenid monarch re-
alized that he needed an immediate fleet, both to maintain his hold on
his newly won territories in Asia Minor, where there were numerous and
powerful Greek colonies that could be supplied and reinforced from the
Greek mainland as long as Greece retained command of the sea, and also
to make possible the future expansion of the Achaemenid empire either
on the Greek mainland or in the direction of Egypt. The problem was
solved when Cyrus enlisted the services of the Phoenicians, wooing them
with semi-independent status and light taxation [and that] [w]ithout
building a single ship, “Persia bore undisputed sway in the Levant during
the whole period of her existence as an empire”.13
Nevertheless, Savory also notes that “it remains true as a generalization that,
until very recent times, Iran has been primarily a land power whose excursions
into naval operations have been infrequent and unsuccessful”.14 With respect
to Persia’s purported inability to control the Gulf waters, Potter notes the “harsh
consensus” reflected in Curzon’s famous denunciation of Persian maritime
capabilities,15 adding that “[i]t was not until the Safavid period [in the eigh-
teenth century] that Iranian governments sought a naval arm in the Gulf, and
not until the time of Reza Shah [in the twentieth century] that they began to ac-
quire it in earnest.”16 Another author, noting that “there is very little evidence of
a Sasanian navy” states that, in relation to the Sasanian empire (200–700 a.d.):
The control over the Persian Gulf by the Persians [from the 3rd century
a.d.] should not be seen as only a state-sponsored program. One must be
13 Ibid., quoting Sir Henry Rawlinson, The Five Great Monarchies (London, 1879), 3:194,
quoted in Hasan, A History of Persian Navigation, 17.
14 Ibid.
15 Lawrence G. Potter, “Introduction”, in The Persian Gulf in History, ed. Lawrence G. Potter
(New York: Palgrave Macmillan, 2009), 14, quoting George Nathaniel Curzon, Persia and
the Persian Question (London: Longmans, Green & Co, 1892), Vol. 2, 388 (“Brave and victo-
rious as the Persians have shown themselves at different epochs on land, no one has ever
ventured so far to belie the national character as to insinuate that they have betrayed the
smallest proficiency at sea. It would be difficult, and perhaps impossible, in the history of
the world to find a country possessing two considerable seaboards, and admirably situ-
ated for trade, which has so absolutely ignored its advantages in both respects, and which
has never in modern times either produced a navigator, or manned a merchant fleet, or
fought a naval battle.”).
16 Potter, “Introduction”, 15.
mindful of the military and naval technology that hindered Sasanian con-
trol of the seas. We should not confuse the modern use of naval tactics as
those employed by the British in the eighteenth century with premodern
traditions of seamanship. The state only went so far as to facilitate trade
and provide as much security as it was capable of, which on the seas was
not much. It was really the merchants alone who took it upon themselves
to control the markets.17
The location of the islands and the intense maritime traffic and human activity
around them from antiquity makes it undoubted that they were identified and
visited from early historical times. One can speculate, with greater or lesser
degrees of certainty, about who made such sightings, when they occurred and
whether any use or claim to the islands was involved. For example, the archae-
ological remains of a significant Nestorian monastery were recently discovered
on Sir Bani Yas island off the coast of Abu Dhabi, similar in dimensions to an-
other Nestorian center whose archaeological remains were previously found
on Kharg island, a more northerly Gulf island.18 The author of this report
notes “[t]hat there were bishoprics and other Christian centres on the islands
[which] is clear enough and the size of the Sir Bani Yas monastery and that at
Kharg show that they were both significant places among Nestorian centres.”19
The author also notes a reference in an ancient text to a 4th century Nestorian
monastery located on another Gulf island, identified as simply a “black island”,
which, the author notes, could refer to “Abu Musa, where the same term [i.e.,
black island] could as well apply.”20 However, he stresses that there has been
“a lack of field work” on other Gulf islands, including Abu Musa, which would
allow reliable conclusions on the possible establishment of Christian centers
there in antiquity to be reached. Other examples of speculative references to
the islands in antiquity are noted by the scholar Guive Mirfendereski in his
study “The Toponymy of the Tonb Islands”.21
For purposes of this work, what one takes away from the vast scholarship
related to the Gulf in antiquity is twofold. First, while searching for clues as to
the possession or ownership of the three islands during these many centuries
17 Daryaee, “Persian Gulf in Late Antiquity”, 64–65.

18 G.R.D. King, “A Nestorian monastic settlement on the island of Sir Bani Yas, Abu Dhabi:
a preliminary report”, Bulletin of the School of Oriental and African Studies, University of
London 60 (2) (1997): 221–235.
19 Ibid, 234.
20 Ibid.
21 See Guive Mirfendereski, “The Toponymy of the Tonb Islands”, Iranian Studies 29 (3–4),
(1996): 297–320.
78 chapter 2
is certainly possible and there are a number of fragments of information which

suggest who may have controlled them, or the sea area around them, at some
time or another in ancient or medieval history, it is ultimately an unforgiving
exercise which leads, if anything, to speculative assumptions. As discussed in
more detail in chapter 4, “the literary sources used for the pre-Islamic period”
were either written retrospectively,22 often hundreds of years later, or were the
Greek and Latin sources, principally, in the case of the Gulf, Herodotus and
Arrian, while otherwise and “above all, the findings of archaeology” are used to
reach historical conclusions.23
Another author notes that “[t]he very early history of the Persian Gulf and
of the regions round its shores is largely conjectural and hypothetical” and that
“[o]ur knowledge of it is based mainly on mythology, on deductions from an-
cient historical records that have come down to us, such as the Old Testament,
cuneiform tablets … and the deductions of anthropologists”.24 While the very
early history of the Gulf region in general may be conjectural and hypothetical,
the very early history, and indeed the later history up to the beginning of the
sixteenth century, of the specific islands in dispute is practically non-existent
(other than references which have at best the most tenuous connection with
the islands themselves).25
This leads to the second general observation which comes from the study of
the scholarship on the Gulf region in ancient times, which is that, ultimately,
it is unlikely to be of great use for resolving the very specific question at the
heart of this work. As reviewed in chapters 3 and 4, international courts and
tribunals have been extremely reluctant to base decisions concerning claims
of sovereignty on ancient sources or the speculative assumptions derived from
them, favoring instead evidence of actual possession of the disputed territory
by the contesting states. As a practical matter, such evidence is usually found
in relation to more recent events and within documentary sources of more
recent provenance.
The Islands during the Sixteenth through the Eighteenth Centuries
An obviously critical aspect of this study has been the historical evidence
of exactly who and under what authority or government, used, possessed,
22 Ibid., 57–58.
23 David Morgan, Medieval Persia, 1040–1797 (London: Routledge, 1988), 8.
25 See chapter 4.
controlled or otherwise claimed or abandoned, ownership of the islands at dif-

ferent times in their history. This is particularly relevant for the period prior
to the mid to latter part of the nineteenth century, when the circumstances of
control and use of the islands becomes more clear through existing documen-
tary evidence. While events and historical documentation and assumptions
dating from antiquity and the Middle Ages have only the most tenuous con-
nection with the three disputed islands, those dating from the beginning of the
sixteenth century to the end of the eighteenth century fare only slightly better.
Thus, this evidence is mostly indirect and to a significant extent peripheral to
the islands themselves. In that sense, it generally provides only a glimpse of the
physical attributes of the islands and the uses to which they were put by often
unidentified coastal communities, or at most general commentary from which
general assumptions may be drawn.
Portuguese, French and Italian officials, merchants and travelers recorded
the existence of the islands, generally as they passed by them on the way to
somewhere else, but in some cases with more relevant detail. For example, the
Book of Duarte Barbosa, a Portuguese voyager (who was said to be “a brother-in-
law of Magellan, and perhaps also a cousin”26) whose precise role or position is
little known other than that he was in the service of the Portuguese King and
accompanied early Portuguese expeditions (including at least one of those of
Alfonso De Albuquerque, the conqueror of Hormuz – initially in 1507 and deci-
sively in 1515) to the Gulf from around 1500 until 1516 or 1517, recorded that the
island of Fomon/Tomon (i.e., Greater Tunb) was one of “scattered many isles
pertaining to the King of Ormus and under his governance”.27 This reference is
one of the first written records purporting to assign ownership or sovereignty
over any of the three islands to a particular authority rather than simply noting
its physical existence in passing. The Kingdom of Hormuz to which Barbosa
refers shall, as we will see further in chapter 5, play a role in tracing the owner-
ship and sovereignty of the islands, particularly Greater Tunb and Lesser Tunb.
Subsequently, the diary of the Frenchman Abbé Carré, who was sent to I ndia
and the Near East between 1672 and 1674 by the French East India Company
“not only to watch over the conduct and motions of the English and Dutch, but
26 F.H. Guillemard, The Life of Ferdinand Magellan and the First Circumnavigation of the
Globe, 1480–1521 (1891), cited in Edward Grey ed., The Travels of Pietro Della Valle in India.
From the Old English Translation of 1664 by G. Havers (London: Printed for the Hakluyt
Society, 1892), Vol. 1, 2.
27 Mansel L. Dames ed., The Book of Duarte Barbosa: An Account of the Countries Bordering
on the Indian Ocean and Their Inhabitants, written by Duarte Barbosa and Completed about
the Year 1518 a.d. (London: Hakluyt Society, 1918), Vol. 1, 79–80.
80 chapter 2
also to observe his own countrymen” and to enter “into every particular which
he considered meriting his notice, and his Journal does certainly contain
many very curious circumstances, with a great deal of interesting intelligence”,
recorded having spent the night of 13 September 1672 onboard a Portuguese
ship anchored between the islands of Greater Tunb and Lesser Tunb.28
No further details, however, were given about the islands themselves, presum-
ably because there was little to note.
The arrival of the Dutch East India Company (voc) in the Gulf in the early
seventeenth century, whose captains and officers charted the Gulf waters
and kept relatively meticulous logs of activities to report back to their supe-
riors in Batavia or Holland, does mark the beginning of an enhanced level of
documentary record-keeping about the Gulf region which, through archival
sources available today, may be used to explore and research the history of the
islands. For example, we learn from a journal entry of the voyage of the ships
Delfshaven and Schelvis undertaken by the Dutch captain Cornelis Cornelisz
Roobacker in 1645 that, on the afternoon of July 3rd of that year after sailing
past the western end of Qeshm island:
[The crew] saw directly in front of us two small islands. One (the small-
est) named Nabuzon [i.e., Tamb Nabiyu, or Lesser Tunb], the other (fairly
big) named Thom [i.e., Greater Tunb], where – as our pilot has it – there is
good water, but which is impossible to be collected because of the mani-
fold occurrence of snakes. Thus we named this island Slangen E iland [i.e.,
Snake Island]. This island is not very high. After this, we sailed between
Thom and Qeshm.29
About a month later, the same ships passed the islands again and this time
a group of the crew ventured to row ashore to search for water and wood.
The ships’ log recorded that while ashore the crew “had seen people and also
cows.”30
28 In the original text, the author refers to the two islands as Pulor and Elfanem, but the loca-
tion he indicated, being southeast of Kung (i.e., Congo) would have rather placed the ves-
sel between the two islands below the southwest point of Qishm island, that is, Greater
Tunb and Lesser Tunb. Sir Charles Fawcett and Sir Richard Burn, eds., The Travels of the
Abbé Carré in India and the Near East, 1672 to 1674. Translated from the Manuscript Journal
of His Travels in the India Office by Lady Fawcett (London: Hakluyt Society, 1947), Vol. 1, 125.
29 na 1.10.30 (voc) rec. no. 280A (Geleynssen de Jongh) [rggc], Journal register of the voy-
age undertaken by the ships Delfshaven and Schelvis from Bandar Abbas to Basra, June
28–October 5, 1645 (translation by G.G.J. Boink, on file with authors).
30 Ibid.
While there is undoubted historical interest in these particular observations,

their relevance to the legal question of which State – Iran or the uae – has a
superior right of sovereignty over these two islands is limited and inferential,
being merely derivative of indirect or even negative conclusions which may be
drawn from the observations made. That is to say, while it is clearly relevant
as a piece of a much larger evidentiary puzzle if one could be assembled, as
no mention is made of who these “people” were, what language they spoke or
who ruled over them, in and of itself it is not particularly helpful in reaching
any broader and firm legal findings as to who or what group or power then pos-
sessed or claimed the islands (if anyone) and less so in determining which of
the current claimants is the rightful sovereign of the island.
In that respect it is curious, yet highly relevant, that while the southern Gulf
waters and the area immediately around the islands, covering a relatively small
geographical space, was an area of intense and continuing rivalry and conflict
involving multiple parties, particularly with the arrival of the Portuguese and
the establishment of Portuguese trade and maritime domination of the Gulf –
centered around the island of Hormuz – at the beginning of the sixteenth
century, little mention of the islands is specifically made in the fairly exten-
sive historical documentation arising out of these continuous conflicts until
the nineteenth century. Malcolm Yapp describes the confluence and conflict
of interests and power in the Gulf – albeit in relation to the nineteenth and
twentieth centuries – as the relationship between three concentric circles of
peoples and states made up of “an inner ring representing the peoples of the
Gulf coasts”, “an intermediate ring made up of what it is convenient to term
the regional powers – those countries whose rulers possessed or claimed to
influence the shores of the Gulf”, which would include the Wahhabi forces em-
anating from the Arabian Peninsula, and the Persian and Ottoman Empires,
and “an outer ring comprising those powers whose international interests em-
braced, regularly or intermittently, the Persian Gulf.”31 This last category would
most notably include, from the sixteenth century through the eighteenth cen-
tury, the Portuguese, the Dutch and the British. As described by Yapp, “the ec-
centric movement of these circles and of the orbits of the powers within them
produce a complex, fluctuating relationship”.32 A variety of such States and
peoples creating a similar “complex, fluctuating relationship” also existed in
the Gulf prior to the nineteenth century.
31 Malcolm Yapp, “The Nineteenth and Twentieth Centuries” in The Persian Gulf States, A
General Survey, ed Alvin J. Cottrell (Baltimore: John Hopkins University Press, 1980), 41.
32 Ibid.
82 chapter 2
In the absence of clear documentary evidence about the history of the

islands themselves and which of the various small or large powers or groups
(if any) active in the region, particularly in the vicinity immediately around
the islands, actually possessed or claimed ownership of them prior to the early
nineteenth century, when the picture starts to become more clear, scholars,
government officials and other observers and commentators dealing with the
dispute have often relied on indirect historical evidence to reach conclusions
about which party they presume to have controlled or possessed the islands at
those times. More often than not, the conclusions reached are based on his-
torical evidence related to the general achievement of power and authority
by that party throughout the Lower Gulf at the relevant moments in history.
Threading certain of these historical facts together to arrive at conclusions as
to the identity of the islands’ possible owner and possessor prior to the nine-
teenth century requires making certain speculative assumptions which are
not, from an evidentiary point of view, wholly reliable nor stand up to rigor-
ous legal scrutiny. This is particularly the case as the eccentric movement of the
various orbits of power present in the Gulf prior to the onset of the nineteenth
century was at times erratic and unstable, from which clear or reasonably
definitive conclusions about the possession, control and claims over certain
Gulf islands, including the three at issue, are difficult to reach. In short, factual
and – more critically – legal conclusions derived from such evidence must be
treated with caution.
The relative obscurity of the islands through most of the eighteenth century
was reflected in a 1928 British government memorandum on the status of the
islands in response to a small convulsion of the dispute over their ownership
between Persia and the Arab Qawásim rulers of Sharjah and Ras Al Khaimah
which then possessed them under the effective treaty protection of the B ritish.
In that report, the authors (the India Office) stated that “the history of the
islands prior to 1750 is obscure”, and that “[i]t has proved impossible to trace
any reference to the history of the islands in the 17th and 18th centuries.”33
While there may not have been any documented history of the islands during
the seventeenth and eighteenth centuries available to the India Office, some
references to the islands showing that they had been identified and visited fre-
quently by that time do exist, including the sixteenth and seventeenth century
references contained in the writings of Barbosa, de Thévenot, Carré and Roo-
backer cited above. Indeed, commentaries and writings of Portuguese, French
and Italian naval officers, travelers and explorers dating from the earliest part
33 Toye, Lower Gulf Islands, Vol. 4, 123–130, containing “India Office, Status of the Islands of
Tamb, Little Tamb, Abu Musa and Sirri”, dated August 24, 1928.
of the sixteenth century and log books of Dutch sea captains and others, in-
cluding Roobacker, from the seventeenth century clearly identified the islands
and give a general insight, albeit limited, into their circumstances at the time.
In the case of the Dutch East India Company, the identification of the
islands and the plotting of their locations and conditions was undertaken in
order to establish safe routes of passage in sailing with commercial goods be-
tween Bandar Abbas and Basra. An instruction given to the crew of the two
Dutch East India Company vessels – Delfshaven and Schelvis – which were to
set out on the company’s maiden voyage from Bandar Abbas to Basra on 28
June 1645 (and which visited Greater Tunb as described above) bears this out:
You sirs, especially the captains and mates, are seriously commanded to
do the utmost to gather knowledge of the passage [from Bandar Abbas] to
Basra, to pay attention to the grounds, currents, depths, droughts, coves,
harbours and everything that is concerned [with a safe passage], and to
make maps and notes of these, which you will deliver to the Commander
or Chief [at Bandar Abbas] on your return there. You’ll also have to keep
your journals and daily registers of everything that happens, without be-
ing negligent. Also to take good care during the voyage that the yachts,
the sailors and the goods they carry, will not be endangered by rocks and
sands, and that no use of fire will lead to accidents. You will gauge the
depths several times a day and chart your findings in the aforementioned
maps, like you will do with everything that you will encounter, all this to
beget a better foundation for later voyages that may follow yours if trade
[in Basra] will flourish.34
An artistic example of the sort of map-making which resulted from these and
other Dutch voyages, and the cartographical evidence that the islands’ exis-
tence was well-known at that time, can be seen in Figure 2.1, containing a 1761
map of the southern Gulf (with the Persian mainland towards the top of the
image and the Arabian coast at the bottom right-hand) prepared by the Dutch
East India Company, clearly showing Abu Musa (“Bomosa”), Greater Tunb
34 na 1.04.02 (voc) rec. no. 1153 fols, 804–807, Copy instruction for Dirck Sarcerius at the
island of Laraq with the ships Delfshaven and Schelvis et cetera going to Basra, dated June
28, 1645, fol. 806v (translation by G.G.J. Boink, on file with authors). A similar instruction
was given a year later, in May 1646 to the Chief of the Dutch ships Delshaven and Pauw.
na 1.10.30 (Geleynssen de Jongh) rec. no. 2801, Instruction by Wollebrand Geleynssen de
Jongh for Jan de Conincq as chief of the ships Delfshaven and the Pauw going from Bandar
Abbas to further the cause of trade, dated May 9, 1646, fol. 3v (translation by G.G.J. Boink,
84 chapter 2
Figure 2.1 Close-up image of “Map of Persian Gulf (Gerrit de Haan)”. Manuscript 1761
(“Groot Tombo”) and Lesser Tunb (“Kleyn Tombo”), albeit inaccurately sized
and in clumsy and non-realistic proximity to each other (Figure 2.1).35
While it is now possible to locate limited documentation specifically ref-
erencing the islands in archival or other historical material dating from at
least the early sixteenth century, there is little contemporaneous evidence to
indicate that the islands were claimed, fought over or disputed prior to the
nineteenth century. This was the case even while control of the waters around
the islands and the littorals of the adjacent coasts were the scene of intense ri-
valry and conflict involving both local and regional rulers or powers, including
35 Dutch National Archives, “na 4.velh Rec. No. 156.2.14”. Accessed September 8, 2015.
http://www.gahetna.nl/collectie/archief/inventaris/gahetnascan/eadid/4.VELH/invent
arisnr/156.2.14/afbeelding/NL-HaNA_4.VELH_156.2.14. For a further analysis of the Dutch
maps, see chapter 10.
the K
ingdom of Hormuz, various coastal Arab tribes, the Omani dynasties, suc-
cessive Persian Empires, the Ottoman Empire and others, as well as European
powers, most prominently the Portuguese, Dutch and English. Recalling the
language used by the icj in The Minquiers and Ecrehos Case (France/United
Kingdom), putting the historical continuum and at times lawlessness in which
these multiple actors took part into a legal framework which would suggest or
assign ownership of the islands to one power or another during this extended
period would require the collection and analysis of evidence more directly re-
lated to the possession of the islands themselves.36 Rather than s uggesting that
any particular party possessed or owned any of the three islands, the themes
and conclusions which emerge from this period more strongly suggest that
through the eighteenth century none of the islands had an identifiable claim-
ant or owner.
Evidence of Possession or Ownership of the Islands

Prior to the beginning of the nineteenth century, there are only a few and
scattered written records, of unclear reliability and evidentiary value, which
specifically assign ownership of any of the islands to any authority, power or
state. One of these records appears in the Book of Duarte Barbosa, a Portuguese
adventurer who, as noted above, accompanied Albuquerque on one of his
voyages of conquest of the Kingdom of Hormuz in 1507 and 1515. In that book,
the author asserted that Greater Tunb – referred to in the book as “Fomon” –
belonged to the Kingdom of Hormuz:
The actual island on which stands the city of Ormus is between the coasts
of Arabia and Persia, at the mouth of the Persian Sea, and within this sea
are scattered many isles pertaining to the same King of Ormus and under
his governance, the which are as follows:
First, Queixime, a large and fertile island, whence come to Ormus
much fresh fruit and herbs; and there are large villages therein.
Then after this there is another called Andra, another Bascarde, and
others, Laracoar, Fomon and Firol.37
36 “What is of decisive importance, in the opinion of the Court, is not indirect presump-
tions deduced from events in the Middle Ages, but the evidence which relates directly
to the possession of the Ecrehos and Minquiers groups.” The Minquiers and Ecrehos Case,
(France/United Kingdom),icj Reports 1953, 57.
37 Dames, The Book of Duarte Barbosa, Vol. 1, 79–80. The island of “Fomon” is assumed to be
a reference to Tomon, or Tunb.
86 chapter 2
This assertion is not supported by any further documentary evidence, nor is

there any written evidence that the authorities of the Kingdom of Hormuz
themselves specifically claimed ownership over that island or either of the
Lesser Tunb or Abu Musa. There is, however, historical evidence that the King-
dom of Hormuz controlled the waters of the southern Gulf and certain of its
islands, stretching from the island of Hormuz to Bahrain, from the late thir-
teenth or early fourteenth century until 1515, when the Portuguese conquered
the kingdom and brought it and its dominions under the complete suzerainty
and control of Portugal. Another Portuguese traveler, Pedro Teixeira, who vis-
ited Hormuz in 1604 and obtained access to the royal library, claimed to have
translated a copy of the Chronicles of the Kings of Hormuz written by Turan
Shah, a reigning King of Hormuz during the mid fourteenth century. This
Chronicle, the translation of which was published by Teixeira in Antwerp in
1610, repeated in general language the assertion that the Kings of Hormuz “be-
came the rulers of all the islands in this Strait [of Hormuz], and all the coun-
try along the coast of Arabia as far as Lassa and Catiffa, and also others on
the shore of Persia, by which they formed a very great, rich and prosperous
kingdom; principally because the trade of Cays [Kish, which had previously
acted as a trade emporium in the Gulf] passed entirely to the island that is
now called Hormuz; wherefore Cays was utterly ruined, both in buildings and
in wealth, so that it is now totally deserted, after having been the chief place of
those parts.”38 The evidentiary value of these references and the legal conclu-
sions to be derived from them, if any, are discussed in chapter 5.
Claims of Ownership of the Islands

Prior to the beginning of the nineteenth century, there is no documentary evi-
dence of any formal claim specifically to any of the three islands by any party,
nor any protest by any party against the possession or use of the islands by any
other party. None of the European States which were active in or sought to
control the Gulf in one form or another laid claim to any of the three islands,
including the Portuguese, Dutch, English or French. Nor did the Ottomans
make any claim to the islands, although they did assert in the nineteenth and
twentieth centuries that the Qawásim were the rightful owners of the islands
and that, as “subjects” of the Ottoman Empire, their lands, including the
islands, formed part of the domains of the Empire itself. There is no documen-
tary evidence which can be said to establish in any sense that the Persian Em-
pire, prior to the end of the nineteenth century, specifically claimed the islands
38 Pedro Teixeira, The Travels of Pedro Teixeira; with his “Kings of Harmuz” and Extracts from
His “Kings of Persia”, trans. William F. Sinclair (London: Hakluyt Society, 1902), 265.
as their own. While there is some evidence which suggests that the Qawásim
considered the islands as their property as early as the mid or latter part of the
eighteenth century, there is no contemporaneous evidence of a claim of such
ownership prior to the nineteenth century.
Use of the Islands

As described above, prior to the nineteenth century there is certain evidence
that Greater Tunb and Abu Musa were used for various purposes by persons
living on the Gulf littoral. This included grazing of animals brought to the is-
lands from the mainland in the springtime or as something of an offshore shel-
ter used for fishing and pearling by coastal communities who largely belonged
to Arab tribes settled on both sides of the Gulf. Connecting these activities to
a specific group or tribe of persons, however, is problematic as there does not
appear to be any available evidence clearly identifying them.
Control of the Persian Littoral and the Gulf Waters

For several centuries prior to the onset of the nineteenth century, much of
the Persian littoral was inhabited and governed primarily by Arabs who lived
largely independently from the control of the Persian Government, as a report
attributed to Tido van Kniphausen and Jan van der Hulst written in 1756 for
the Dutch East India Company confirmed.39 This report is consistent with the
report of the German traveller, Carsten Niebuhr (who joined the expedition to
Arabia sent by the King of Denmark), compiled around the same time (1772).
Niebuhr also made similar observations about the independence of Arab com-
munities residing on the Persian side of the Gulf, stating that it was those com-
munities, rather than the Persian government, which “possessed” the entirety
of the Persian littoral of the Gulf, and adding that “they always betake them-
selves to their boats at the approach of an enemy, and be concealed in some
39 Willem Floor, The Persian Gulf: The Rise of the Gulf Arabs. The Politics of Trade on the Per-
sian Littoral, 1747–1792 (Washington, d.c.: Mage Publishers, 2007), 24–25 (“[B]ecause since
ancient times the Persians did not have the least disposition or inclination towards navi-
gation we find that all those places of the northern [Persian] littoral [of the Gulf], which,
be it because of their natural situation, be it because of a brook or small river that runs
into the sea, are capable of receiving vessels, are inhabited by Arab colonies. These live
from navigation, pearl diving or fishing… Their settlements and houses are also miser-
able… This is not a bad policy on their part, because having to lose nothing ashore they
are able to leave their settlements as soon as the Persian nobles and officials are bothering
them with [tax] quotas and other royal servitudes. They, accompanied only by their wives
and children, get into their boats and go to the nearest island until the time they think
they may live in peace again in their previous settlements.”).
88 chapter 2
isle in the Gulph till he have retreated.”40 He added that the towns of Kong and
Lengeh, among others on the Persian coast, recognized the Qawásim ruler of
“Seer”, Rashid bin Mattar, as “sovereign”, and that in addition to “possessing”
those towns, he also possessed a “portion of Qeshm island”.41
Although – as will be further developed in chapter 6 – evidence such as
the van Kniphausen and Niebuhr accounts constitute significant and direct
evidence that Gulf islands in near proximity to Lengeh (which included the
disputed islands) did not belong to Persia during the mid eighteenth century
nor were under its control, that does not necessarily mean that this evidence
establishes in a positive sense that those islands belonged to anyone else at that
time, including the Qawásim. Thus, while evidence of Qawásim settlement and
control of Lengeh on the Persian coast constitutes inferential evidence that the
Qawásim may have also possessed the Tunbs and Abu Musa (being islands situ-
ated directly between areas on the Arabian and Persian coasts that they con-
trolled), this evidence is not direct support for that proposition. Other evidence,
such as that related to the growing maritime strength of the Qawásim in the
mid-eighteenth century and their involvement in trade and other sea-related
economic activities in and around the southern Gulf waters in close proximity
to the islands, including pearling and fishing, is also inferential evidence that
possession of the islands may have also been held by the Qawásim at that time,
but cannot be considered compelling direct evidence for that proposition.
Reliance on Historical Assumptions and Conjecture – from

Antiquity to the Eighteenth Century
This is a convenient point to note that, to a certain extent, both of the sovereign
claimants and their supporters have relied on inferential evidence and assump-
tions derived from pre-nineteenth century historical events to bolster aspects
of their respective narratives in support of their claims over the islands rather
than basing those aspects of their narratives on discernible and more direct
evidence of their effective control and possession of the islands themselves.
The most conspicuous examples of this interpretive approach have come from
a number of those academics and commentators generally supporting Iran’s
claims to the islands who view the existence and power of the various ancient
Persian empires straddling the Gulf as strong evidence in and of itself that the
41 Ibid., 100, 116. See also, Niebuhr, Description de L’Arabie, 266, 272.
islands must be assumed to have historically been under virtually continuous

Persian sovereignty even if, with the arrival of European colonial powers at
the beginning of the sixteenth century, some period of dispossession of the
islands may have sporadically occurred. These scholars generally draw on the
historical circumstances of successive Persian empires around the periphery
of the Gulf to justify an assumption that Persia must have considered itself
to be sovereign over the islands and claimed them within its domains even if
they were not specifically mentioned in relevant historical documents. Thus,
the arguments put forth by these scholars do not typically assert any direct evi-
dence of Persian claims to or actual control or possession of the islands during
such periods of history, but rather point to indirect or inferential evidence. An
example of this reasoning includes the following:
The political and military domination of Iran over the Persian Gulf in
successive periods also supports the necessary conclusion that in ancient
and medieval times the Tonbs would have had to belong to Iran. The Ach-
aemenid Empire (550–330 b.c.) in the Persian Gulf consisted of the 14th
satrapy (administrative division), which included “the islands of the (Per-
sian Gulf), where the king sends those whom he banishes.”
…
The likelihood of the appurtenance of the Tonbs to Iran appears even
stronger at the times when the Iranian dominion extended to the lower
coast of the eastern Persian Gulf thereby placing the Tonbs at least theo-
retically in the penumbra of Iranian sovereignty. The political and com-
mercial domination of Iran over the Persian Gulf in the Seleucid (312–150
b.c.), Parthian (238 b.c.-224 a.d.) and Sassanid (a.d. 224–641) periods
points to the conclusion that in pre-Islamic times the Tonbs most likely
belonged to Iran. Upon the conclusion of the Sassanid period, the control
of the Tonbs in all likelihood may have remained with the Ibn Karkar
clan of the Bani Salimah section of the Malik ibn Fahm branch of the
Azd tribe of Oman, to whom the Sassanid kings of Iran had entrusted the
control of the area adjacent to the Strait of Hormuz.42
Another scholar claims that Iran’s “historical title” to Abu Musa may be broadly
assumed, offering the following explanation:
42 Guive Mirfendereski, “The Ownership of the Tonb Islands: A Legal Analysis”, in Small Is-
lands, Big Politics, The Tonbs and Abu Musa in the Gulf, ed. Hooshang Amirahmadi (New
York, St. Martin’s Press, Macmillan 1996), 120–121.
90 chapter 2
In the Iranian consciousness, Abu Musa Island has belonged to Iran by

virtue of her longstanding and substantial historical title to it. Under-
standably, a country as ancient as Iran whose core territorial character
was formed more than two thousand five hundred years ago cannot be
expected to produce a certificate of title, bill of sale, or a grant document
for every inch of its present-day territory. By the same token, one can
hardly expect that a territorial sovereign be made to account for a part
of its territory by means of producing documentation to show uninter-
rupted and continuous chain of custody or title.43
While it is acknowledged that available historical records do not specifically

state that Persian dynasties or empires controlled and used Abu Musa and the
Tunbs during this lengthy period of time, nor identify the islands by name,
this historical narrative asserts that Persian control can be assumed given its
domination of the adjacent coastal areas. One contemporary writer explains
this as follows:
Iran’s claim to the historical title can be traced to antiquity, although the
names of Tumb or Abu Musa do not appear in the works of the classical
historian. These islands were too small and relatively insignificant to be
specifically named in the vastness of the Iranian Empire from the sixth
century bc to the seventh century ad.44
Another Iranian writer states the following with regard to Abu Musa:
[T]here appears to be no explicit mention in the pre-eighteenth centu-

ry annals of the Persian Gulf about the appurtenance of Abu Musa to a
particular territorial sovereignty. A barren island devoid of potable water
and far flung from the major shipping lanes, it hardly would have mer-
ited any early description by local historians and geographers or, later, by
European surveyors.
The absence of an explicit mention however cannot be tantamount to
the denial of its existence. Much like in the hard sciences, in which the
existence of a phenomenon or element is proved without direct reliance
43 Davoud H. Bavand, “The Legal Basis of Iran’s Sovereignty over Abu Musa Island,” in Small
Islands, Big Politics, The Tonbs and Abu Musa in the Gulf, ed. Hooshang Amirahmadi (New
York, St. Martin’s Press, Macmillan 1996), 78.
44 Farhang Mehr, A Colonial Legacy, The Dispute Over the Islands of Abu Musa, and the Great-
er and Lesser Tumbs (Lanham, Maryland: University Press of America, 1997), 143.
on the human sensory faculties, in this endeavor, too, recourse to the oth-
er methods of detection is necessary to determine the territorial status of
Abu Musa in the period prior to 1788, when the first-ever explicit refer-
ence to the island’s territorial status surfaces – placing it squarely within
Iran’s territorial sovereignty.
The examination of the political circumstances of the Persian Gulf in
successive historical periods leads to the conclusion that the island, bar-
ring the production of evidence to the contrary, would have been in all
likelihood a part of Iranian territory. This conclusion is based upon two
interrelated considerations: (i) the territorial extent of the Iranian state
in the Persian Gulf which, for the most part, also included coastal sites on
the Arabian peninsula bordering the Persian Gulf and the Sea of Oman,
and (ii) the Iranian political, commercial, and military domination in the
Persian Gulf.45
In similar fashion, another legal scholar states the following with regard to the
Tunbs:
The challenge here to a jurist and historian is to examine records cov-

ering tens of centuries of Persian Gulf history in order to unearth evi-
dence about the connection of the Tonbs to either claimant. A modest
endeavor in this vein has resulted in spotting a few direct pieces of evi-
dence regarding the status of the Tonbs. The bulk of the findings, how-
ever, consists of indirect evidence along with all the necessary inference
and conjecture which flow from it. The paucity of reference to the Tonbs
in pre-nineteenth century material is no doubt owed to the Tonbs being
among those islands in the Persian Gulf, which, to paraphrase a tenth
century geographer, are numerous but desolate, unknown, and small,
and therefore unworthy of mention.46
The narrative which claims an ancient Persian historical title over the islands,
dating back millennia, forms a cornerstone of one of the principal arguments
which Iran has alluded to in advancing a claim of sovereignty over the islands.
This argument will be critically reviewed and analysed in chapter 4.
Construction of an historical narrative supporting a presumed attachment
to the islands based on speculation or inference derived from general histori-
cal events is not limited to those advocating the Iranian claim over the islands.
45 Bavand, “Legal Basis”, 78–79.

46 Mirfendereski, “Ownership of the Tonb Island”, 120.
92 chapter 2
Some of those who have supported the uae claim have also adopted certain
conclusions which, unsupported by direct evidence, are based largely on infer-
ence derived from historical circumstances. These circumstances do not stretch
into antiquity, but rather are principally confined to the eighteenth century. An
example of this is reflected in the assertion that the Arab rulers of Sharjah and
Ras Al Khaimah, the Qawásim, on whose behalf the uae asserts ownership of
the islands, must have possessed and claimed ownership of the islands as an
independent power as early as the mid 1700s. This conclusion, which does not
appear to have contemporaneous documentary evidence to directly support
it, is reached on the basis of general historical circumstances. Roughly, these
are that the Qawásim were indisputably seafaring people involved in activities,
including pearling, fishing and sea-borne trading, who not only established a
level of independent control on both sides of the Gulf directly around the is-
lands beginning in the mid to late eighteenth century but due to the activities
they were engaged in would also have had a genuine reason for desiring to use
and control the islands during that time. Moreover, at the time the Qawásim
emerged as a distinguishable and independent regional force in the southern
Gulf, the Persian Empire was in disarray and had no naval capability. It is also
undisputed that the Qawásim possessed or administered the islands at a later
time, that is during the early to mid nineteenth century.
Based partly on a logical interpretation of these historical facts, it is often as-
sumed by deduction that the organized Qawásim presence and possession of
the islands must have begun as soon as the early to mid eighteenth century and
prior to their expansion and settlement on the Persian coast. Indeed, such an
assumption was made by the British during the late nineteenth century after
ownership of the islands first began appearing as a disputed matter between
the Qawásim and Persia. A Memorandum written by the British Political Resi-
dent, Persian Gulf (F.A. Wilson), in 1895 concluded with the following:
The conclusion from these historical facts is certainly not that the Joas-
mees [Qawásim] having obtained a footing on the Persian coast, thence
derived an authority over outlying islands, but rather that they carried
with them to their new settlement a possession in the islands which they
already possessed; and the fact that a section of these Arab intruders
later acquired the status of Persian subjects, and held their authority on
the coast in subordination to the Persian Government as local Chiefs or
Governors, cannot affect any original rights the tribes may have held in
common.47
47 Toye, Lower Gulf Islands, Vol. 2, 197, containing Memorandum from F.A. Wilson, Political
Resident, Persian Gulf, dated May 31, 1895.
This assertion and others made by the British supporting a conclusion that
Qawásim ownership of the islands must have begun around the early to mid
eighteenth century, and prior to their establishment of authority on the Per-
sian coast, are also supported by assertions made, and some documentary
evidence produced by the Qawásim themselves, dating from the nineteenth
century. Much of this evidence, however, consists of testimonials of Qawásim
leaders in which they make such assertions. While these may be fair and
reasonable assumptions for postulating possible Qawásim ownership of the
islands during this period of the eighteenth century, and may in fact be abso-
lutely true (indeed, the British believed that the Qawásim possession of the
islands dated from about 1750), it is important to note that no contemporane-
ous written record which directly establishes that the Qawásim possession of
the islands began that early appears to exist. Indeed, precious little contempo-
raneous evidence has been found dating from prior to the nineteenth century
which directly establishes that any identifiable party claimed ownership of the
islands or established effective control over them at or prior to that time.
The existence and content of pre-nineteenth century evidence concerning
the islands, and the legal significance which may be derived from that largely
inferential evidence, will be discussed in greater detail in the chapters which
follow, but for purposes of the summary of historical facts undertaken in this
chapter it bears repeating that in evaluating the evidence which directly af-
fects the legal entitlement of the parties to sovereignty over the islands, the
authors have been mindful of the admonition of the International Court of
Justice in The Minquiers and Ecrehos Case (France/United Kingdom) that:
What is of decisive importance, in the opinion of the Court, is not in-

direct presumptions deduced from events in the Middle Ages, but the
evidence which relates directly to the possession of the Ecrehos and Min-
quiers groups.48
The Emergence of “Critical Dates” in the Nineteenth and Twentieth

Centuries
Closely connected to the search for historical evidence which establishes

who made claims or otherwise exercised effective control over the islands,
and when, is the issue of the critical date, that is the date on which the dis-
pute over sovereignty to the islands may be said to have first “crystallized” as
48 The Minquiers and Ecrehos Case 47.

94 chapter 2
a s overeignty dispute between the competing parties, as well as the respective

and actual ties between those parties and the islands at that time. The notion
and importance of the critical date in a territorial sovereignty dispute was ex-
plained by Sir Gerald Fitzmaurice as “[t]he date after which the actions of the
parties … cannot affect their legal positions or rights as they then stood.”49
Thus, the rights of the parties are deemed to have been frozen on the criti-
cal date. As further explained by Fitzmaurice when pleading for the United
Kingdom in the Minquiers and Ecrehos case, “the whole point, the whole raison
d’être, of the critical date rule is, in effect, that time is deemed to stop at that
date. Nothing that happens afterwards can operate to change the situation as it
then existed. Whatever that situation was, it is deemed in law still to exist; and
the rights of the parties are governed by it.”50
The need to determine a critical date arises given the fact that territorial dis-
putes entail a series of events occurring over a considerable period of time,51
sometimes amounting to several centuries, which may, as compared with the
time when the dispute first arose, result in altering the connection, ties and
other factors by which the sovereign rights of the parties to that territory are
themselves otherwise determined. Actions taken by any of the parties after
the critical date “deliberately for the purpose of improving its legal position”52
are, under this rule, therefore to be excluded from consideration in determin-
ing sovereign rights over the territory in question. This would be the case, for
example, where the party in de facto but illegal possession of the territory seeks
to consolidate its possession and control through the development of infra-
structure or population transfer. Thus, those acts occurring after the critical
date will not be taken into account in determining title to territory and a State
cannot improve its legal position by performing any of these acts after the criti-
cal date.53 Acts occurring after the critical date have exceptionally been taken
into account by international tribunals when these “have the peculiar feature
of being the continuation of activities previously undertaken by the States
49 Sir Gerald Fitzmaurice, “The Law and Procedure of the International Court of Justice,
1951–54: Points of Substantive Law, Part ii”, British Yearbook of International Law 32
(1955–6): 20–96, 20.
50 The Minquiers and Ecrehos Case (France/United Kingdom), Oral Argument of Mr. Fitzmau-
rice (u.k.), icj Pleadings, Vol. ii, 64.
51 Marcelo Kohen and Mamadou Hébié, “Territory, Acquisition” in Max Planck Encyclopedia
of Public International Law, Online ed., ed. Rüdiger Wolfrum, para. 50.
52 Robert Y. Jennings, The Acquisition of Territory in International Law (Manchester:
Manchester University Press, 1963), 33.
53 Kohen and Hébié, “Territory, Acquisition”, paras. 50–51.
Parties to the dispute, and do not improve the legal position of any of the par-
ties to the dispute”.54
The relevance of ascertaining the critical date is not only to distinguish
which events and respective connections of the parties with the disputed ter-
ritory are to be considered for the purpose of establishing sovereign rights, but
also to determine the applicable law at the time the territorial dispute arose
and establish the effects of the acts purporting to create title to that territory.
This is the concept of intertemporal law, which, again according to Fitzmau-
rice, can be described as “an established principle of international law that …
the situation in question must be appraised, and the treaty interpreted, in the
light of the rules of international law as they existed at the time, and not as
they exist today.”55 There is a further aspect of the intertemporal law principle
by which “rights, in order to be valid today, must be kept up in accordance
with the changing requirements of the law.”56 These two aspects of the prin-
ciple were articulated by Max Huber in the Island of Palmas case.57 Thus, in
relation to title to territory, the concept of intertemporal law translates into
applying the conditions set down by international law to assess a valid ac-
quisition of title to territory at the time (e.g., a title acquired by conquest in
the nineteenth century would have been valid under international law) but
54 Ibid., para. 51; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia),
Judgment, i.c.j. Reports 2002, 682, para. 135 (“The Court further observes that it cannot
take into consideration acts having taken place after the date on which the dispute be-
tween the Parties crystallized unless such acts are a normal continuation of prior acts and
are not undertaken for the purpose of improving the legal position of the Party which
relies on them”); Minquiers and Ecrehos Case 59 (“But in view of the special circumstances
of the present case, subsequent acts should also be considered by the Court, unless the
measure in question was taken with a view to improving the legal position of the Party
concerned”).
1951–54. General Principles and Sources of Law”, British Yearbook of International Law 30
(1953): 1–70, 5.
56 Ibid.
57 Island of Palmas Case (Netherlands/United States of America), Award of April 4, 1928, riaa
2 (1928) 829, 831 (“As regards the question which of different legal systems prevailing at
successive periods is to be applied in a particular case (the so-called intertemporal law), a
distinction must be made between the creation of rights and the existence of rights. The
same principle which subjects the act creative of a right to the law in force at the time the
right arises, demands that the existence of the right, in other words its continued mani-
festation, shall follow the conditions required by the evolution of law.”).
96 chapter 2
the maintenance of that title must conform to present requirements under

international law.58
With the entrenchment of British power and dominance in the Gulf at the
end of the eighteenth and beginning of the nineteenth centuries, detailed gov-
ernmental, diplomatic and other notes, assessments, reports and correspon-
dence referring to the islands began to be written, recorded and preserved
in a relatively rigorous manner. This documentation, much of it classified as
confidential at the time of its writing, is now largely available to the public.
While such documentation provides by far the most voluminous and thorough
record of the islands’ history, it is not the only source of information avail-
able. During this same period, an assortment of geographers, traders, travellers
and scholars also recorded their observations, some of which relate directly or
indirectly to the islands. All of these sources, along with bureaucratic and dip-
lomatic reports, notes and correspondence of both the Persian and Ottoman
governments concerning Gulf affairs, which are also accessible today (albeit
such access can be difficult and time-consuming), and documents generated
by or in relation to the Qawásim rulers, adds to the post-eighteenth century
corpus of documentary evidence related to the islands which sheds light on
their history and ownership.
From this body of evidence, certain periods or specific events occurring
during the nineteenth and twentieth centuries which shed light on the status
and circumstances of the islands and the parties’ connections to them, as well
as possible critical dates, stand out. The broad contours of these periods and
events are summarized below.
The Events of the Nineteenth Century Prior to 1887
The relevant historical events, and the legal significance of those events, which
occurred in relation to the islands during the pre-1887 period of the nineteenth
century are the subject of chapter 7. This period is clearly critical in evaluat-
ing the respective claims of the parties because, as noted above, prior to this
period there is scant evidence of any claim, possession or connections with
the islands by any party sufficient to establish ownership. These circumstances
would appear to have left the islands in a status of terra nullius at the beginning
of the nineteenth century. As the nineteenth century emerged, however, the
58 Kohen and Hébié, “Territory, Acquisition”, para. 54; Fitzmaurice, “General Principles and
Sources of Law”, 5.
historical evidence begins to reveal the exercise of acts of sovereign authority

taken on or in relation to the islands which were potentially sufficient to es-
tablish a claim of effective occupation. The general nature and history of these
acts are summarized below.
The Tunbs
In 1801, a British official named David Seton who was stationed in the southern
Gulf and undertook a tour of the area as part of his official duties wrote in his
journal that a pearl fishery was operated on Greater Tunb by the people of the
Qawásim capital, Julfar (Ras Al Khaimah) from the months of May through
October.59 He added that the island had “good anchorage, plenty of fresh
Water and fish and is capable of cultivation”.60 While this single piece of evi-
dence certainly suggests that the Qawásim rulers of the Arab coast had close
connections with Greater Tunb and may have already established some level
of sovereign authority on the island by the very beginning of the nineteenth
century, other evidence from the early part of the century (of the little direct
evidence which exists) paints a more ambiguous picture. For example, reports
dating from the same time that the Imam of Muscat often hunted antelopes
on Greater Tunb and “thinks of moving his port from Angam [Henjam Island]
to this on account of its more convenient size and Water”, and that “French pri-
vateers” operating in the Gulf “generally anchor under it”,61 and a report from
1822 that British officials had visited the island to determine its suitability as
a base for its Gulf detachment all suggest that the island was not under the
undisputed control of any party in particular and could, therefore, be resorted
to by anyone with the ability and desire to use it. Indeed, although the British
did not consider the island suitable for their Gulf base, an 1838 report by a Brit-
ish naval officer, Lieutenant Whitelock, which referred to the Tunbs islands as
“uninhabited”, noted that Greater Tunb was “much resorted to” by the British
officers stationed at Qeshm island for the purpose of hunting antelopes.62
In the 1860s and 1870s, this ambiguous scene began to change. Documentary
evidence dating from this period, and into the early 1880s, records a series of
disputes over who could use and control access to the islands. In the context
of these disputes, claims of ownership to the Tunbs (and in particular Greater
59 Al-Qasimi, Journals of David Seton, 20.

60 Ibid., 19.
61 Ibid., 20.
62 Lieutenant Whitelock, “Descriptive Sketch of the Islands and Coast situated at the En-
trance of the Persian Gulf”, The Journal of the Royal Geographic Society of London 8 (1838),
170–184, 181.
98 chapter 2
Tunb) were made and disagreements aired over their rightful owner. These dis-
putes arose at times between different branches of the Qasimi family (those of
the Arab coast and those of Lengeh) and at other times between the Qawásim
of the Arab coast and other Arab rulers. This evidence, which is reviewed
and evaluated in detail in chapter 7, may be summarized chronologically as
follows:
(a) In 1864, the Qawásim Ruler of Sharjah and Ras Al Khaimah claimed long-
standing ownership of Greater Tunb (as well as Abu Musa) in a commu-
nication sent to the British Resident in the Gulf to seek his assistance in
preventing people from Dubai from taking their horses and sheep to Abu
Musa for grazing (“… Tamb, Bu Musa and Sir belong to me from the time
of my forefathers [and] nobody went there without my permission.”).
The communication added that if this practice did not cease, it would
lead to “disturbances” and that “I will not give up my rights to it, neither
will I allow anyone to interfere with it without my permission.”
(b) In 1871, following the separation of Sharjah and Ras Al Khaimah, the
Qawásim Ruler of the latter Sheikhdom claimed the Tunbs as his territory
in a letter written to the British, again warning that people from other
coastal Arab tribes would not be permitted to bring their animals to the
islands for grazing.
(c) In an exchange of letters in 1872, the Qawásim Ruler of Ras Al Khaimah
protested to the Qawásim Ruler of Lengeh that people under the lat-
ter’s authority had attempted to use Greater Tunb to graze their animals
without permission, and in reply the Ruler of Lengeh apologized and ac-
knowledged that the island belonged to the Ruler of Ras Al Khaimah.
(d) In a flurry of correspondence in February and March 1873 involving the
Qawásim Ruler of Ras Al Khaimah, the local native agents of the British
in Lengeh and the Arab coast, and the British, again arising out of a dis-
pute over access to Greater Tunb for the purpose of using it as pasturage
for horses and other animals, a variety of positions were articulated as to
the ownership of Greater Tunb. The Ruler of Ras Al Khaimah repeated in
several of these back-and-forth communications his claim of ownership
of the island and his right to control access to it, while the native agent in
Lengeh reported to the British that the Qawásim Ruler of Lengeh had told
him that the island was “attached to Lengeh”, a view which was then re-
peated by the native agent on the Arab coast in a subsequent correspon-
dence. As for the British, their part in these communications was limited
to reminding the Ruler of Ras Al Khaimah of his commitment under the
1853 Treaty of Peace in Perpetuity63 to avoid “disturbances at sea” (which

included disturbances on any island) and to seeking “further reports” on
the matter of “whom the Tumb Island is supposed to belong”.
(e) In 1877, the Ruler of Ras Al Khaimah once again wrote to the Ruler of
Lengeh, asking the latter to prohibit tribesmen under his authority from
using Greater Tunb for pasturage. The Ruler of Lengeh replied by ac-
knowledging that the island belonged to the Ruler of Ras Al Khaimah
and that access to or use of the island was subject to his “consent”.64
(f) In reply to a request of the British Resident in 1879 to compile “a com-
plete list of the dependencies of each Trucial Chief”, the native agent on
the Arab coast listed Greater Tunb as being owned by the Ruler of Ras
Al Khaimah. He added, however, that the island was “also owned by the
Chief of Lingah in part as he is also of the tribe of the Joasmees”.65
(g) In 1884, after the Ruler of Lengeh had planted date offsets on Greater
Tunb without permission, the Ruler of Ras Al Khaimah uprooted the
plants and sent a letter of protest to both the Ruler of Lengeh and the
native agent of the British at Lengeh. The Ruler of Lengeh replied to this
protest by apologizing and acknowledging in writing that the island be-
longed to the Ruler of Ras Al Khaimah. He also committed to prohibiting
the tribesmen from Lengeh who were under his authority from using the
island to graze their animals.66
Abu Musa
The sequence of documented evidence in relation to the claim or ownership of
Abu Musa also begins with the 1864 letter referenced above from the Qawásim
Ruler of Sharjah and Ras Al Khaimah to the British Resident in the Gulf. In that
letter, which in fact was primarily concerned with the Qawásim claim of owner-
ship of Abu Musa, although in it the Ruler also noted his ownership of Greater
Tunb and Sir, the Qawásim Ruler warned the British that “disturbances” would
63 Under the Treaty of Peace in Perpetuity of 1853, signed between the British and various
Arab rulers, including the Qawásim Ruler of Sharjah and Ras Al Khaimah, the rulers
agreed to a “complete cessation of hostilities at sea between our respective subjects and
dependents” and granted the British government the role of “watching over” the “peace
now concluded” and taking “steps to ensure at all time the due observance” of the treaty.
The full text of the 1853 Treaty is found at Toye, Lower Gulf Islands, Vol. 1, 290–291.
65 Ibid., Vol. 1, 664.
66 See Abdullah, A Modern History, 237; see also Toye, Lower Gulf Islands, Vol. 2, 13.
100 chapter 2
break out if the Ruler of Dubai did not stop his subjects from using the island
for grazing their horses and sheep. The Qawásim ownership of Abu Musa, the
Ruler maintained, dated “from the time of my forefathers”. As the Ruler had
begun his leadership of the Qawásim in 1803, such a claim, if accurate, would
trace the Qawásim ownership well back into the eighteenth century.
Other documented instances during the pre-1887 period of the nineteenth
century involving claims of ownership of Abu Musa, or the use or defense of
the island which were reflective of claims or established rights of ownership,
include the following:
(a) In correspondence dated December 1871 arising out of a dispute over the
use of the island by other Arab tribes, including those from Dubai, the
Qawásim ruler of Ras Al Khaimah advised the British Resident in the Gulf
that Abu Musa had belonged to the Qawásim for generations and that
they would not permit people from other neighboring tribes “from the
Omani coast” to bring their animals there for grazing.
(b) Arising out of this same dispute, several communications were sent by
the British agent on the Arab coast to the British Resident in December
1871 supporting the Qawásim claim over Abu Musa, and in particular not-
ing that it “has been customary from old times for the Chief of Shargah to
send his cattle to that island” and that the Chief of Dubai has been told
on two occasions “to keep away from that Island.”67
(c) In the Spring of 1872, the Ruler of Sharjah wrote to the British Resident
again asking for his assistance in preventing “the people of other Ports”
from sending their animals to graze on Abu Musa, noting that “I fear dis-
turbances may take place on that Island which may extend to the Sea”.68
When people from two other Arab Sheikhdoms, Ajman and Umm Al
Qaiwain, then proceeded to send several boatloads of animals to the is-
land, the Ruler of Sharjah launched a number of boats with “articles of
warfare” to defend the island. This confrontation ended peacefully when
the Ruler of Sharjah agreed to allow the other tribes to use the island that
Spring.
(d) In 1874, armed men at Abu Musa under the authority of the Ruler of Shar-
jah fired upon a vessel from Dubai which was attempting to land on the
island, wounding several persons.
(e) In 1875, the Ruler of Sharjah again notified the British that he would not
allow the people from other Sheikhdoms to use the island, to which the

68 Ibid., Vol. 1, 584.
British responded by advising the neighboring Arab tribes not to enter

the island.69
(f) In reply to a request of the British Resident in 1879 to compile “a complete
list of the dependencies of each Trucial Chief”, the native agent on the
Arab coast listed Abu Musa as being owned by the Ruler of Sharjah.
(g) Reports from the early 1880s document the construction of small build-
ings (including a house for the Ruler), the maintenance of horses along
with their keepers, the sinking of wells and the planting of date groves on
Abu Musa by the Ruler of Sharjah.70
(h) In November 1882, a report documented the burglary of the Ruler’s house
on Abu Musa by three persons, which led the Ruler to order an investiga-
tion by an “expert from Rasul Khymah”. The report also noted that ser-
vants of the Ruler lived on the island and that houses of fishermen were
also found there.71
(i) In 1883, the Ruler of Sharjah was deposed by his nephew and allowed to
live in virtual exile on Abu Musa, which he referred to as “an island de-
pendent on Shargah”. In various written correspondence to the British in
1884 dealing with the deposed Ruler, his successor documented Sharjah’s
rights and ownership of the island, noting that as “I have already said…
Bu Musa is our island and a dependency of Shargah” and that “I cannot
dispense with the Island of Bu Musa as it is of great use to me.”72 For in-
stance, in one communication he granted his uncle the freedom to live on
Abu Musa, but conditioned his continuing presence on the island on his
agreement to live there “in peace” and without creating “disturbances”. In
recognition of Sharjah’s rights to the island, the Rulers of Dubai and Ras
Al Khaimah had agreed to serve as “guarantors” of this agreement.73
The Events of 1887
The relative obscurity in which the islands had existed throughout most of
their recorded history changed in the late nineteenth century when their geo-
graphical location became highly significant as they formed something of a
front line between the emerging and increasingly assertive modern State of
69 Ibid., Vol. 1, 651.

70 Ibid., Vol. 1, 674.
71 Ibid., Vol. 1, 711–713.
72 Ibid., Vol. 3, 125, 128.
73 Ibid., Vol. 3, 128.
102 chapter 2
Persia as a regional power seeking to recover effective control of the northern

Gulf coast littoral and to expand its influence in the Gulf generally, and the
already entrenched authority of the British. The colonial power and sway of
the British government in the Gulf – grounded in a series of treaty relations
with most of the principal rulers of the Arab side of the Gulf (including the
Qawásim) which began in 1806 as well as in commercial agreements with Per-
sia giving the British a preferential status in trading relations, all backed up
by the power of the Royal Fleet – was at this time at its zenith. Added to this
confrontational scene was the lingering, although far less formidable, presence
of the Ottoman Empire which (perhaps fancifully) considered the Qawásim
(including those settled on the Persian side of the Gulf) to be Ottoman citizens
and which occasionally took steps to look after those citizens through a minor
consulate established in Lengeh.
Indeed, Ottoman records demonstrate that these ties of citizenship were
not only on occasion acknowledged by the Qawásim, but in rare instances
were enthusiastically claimed, and that, in certain respects the Ottomans may
have held some degree of sway within certain Arab communities on the Persian
side of the Gulf at the end of the nineteenth and beginning of the twentieth
centuries. And despite British treaty control established with the Qawásim
rulers, including the exclusive protectorate arrangements which were to be en-
tered into in 1892, there are historical indications that the Qawásim may have –
at times – continued to request the protection of the Porte.74 Thus, whether on
the Persian or Arab side of the Gulf, the level and nature of the loyalties, influ-
ences and control during the nineteenth and early twentieth centuries of those
powers asserting authority were subject to much interpretation and nuance.
Nevertheless, the Persian efforts to re-establish direct control of its Gulf
coast during the decade of the 1880s were unmistakable and largely success-
ful. A key event in this unfolding series of events during the late nineteenth
century was the re-establishment and imposition of direct rule by Persia, after
more than a century of almost continuous local and semi-independent Qa-
wásim control, of the port town of Lengeh in 1887.75 After taking direct control
of Lengeh (and imprisoning the Qawásim ruler of the town) and planting a
Persian flag on the island of Sirri (which had also been under the possession
of the Qawásim up to that date), the Persian government soon made informal
claims of ownership to the Tunbs islands (although not accompanied by any
acts of occupation or displays of sovereignty) and, in early 1888, suggested that
74 See chapter 1, text accompanying notes 88–89.

75 The circumstances of Qawásim expansion from the Arab coast to Lengeh and surround-
ing areas is described in chapter 1 and in chapter 6.
its sovereignty also extended to the island of Abu Musa (although this sugges-
tion was not formally communicated to the British or the Qawásim Rulers at
the time76). These somewhat ambiguous claims, which appear to have been
the first time the Persian government had ever formally or informally asserted
sovereignty over any of the three islands (or Sirri), were strongly rebuffed by
the Qawásim and the British. For example, in connection with Sirri, the British
recorded at that time that any claim of Persia could not overcome the superior
claim of the Qawásim which was based on “ancient and previously recognized
rights on that island” which they also described as “hereditary rights”.77
While Persia may have considered the two Tunbs islands and Abu Musa78
as logical targets for the expansion of its territorial ambitions because of their
strategic importance, geographical proximity to the Persian mainland and
Persia’s ancient – albeit centuries-long interrupted – presence and influence
in and around the Gulf, the British resisted this expansion. The British posi-
tion was stated in official documents to be based on its conclusion that the
claim to the islands by the Arab Qawásim Sheikhdoms of Sharjah and Ras Al
Khaimah was legally superior. It had reached this conclusion on the grounds
that, according to British records, the Qawásim had used, possessed and con-
sidered the islands as their own for more than a hundred and fifty years, while
no records could be found evidencing any effective control or possession of the
islands, or indeed any claim to them, by Persia pre-dating its claims of 1887.79
Subsequent studies carried out by the British – in response to the continuing
cycle of confrontation and claim over the islands’ ownership asserted by Persia
during the succeeding decades – also reached similar conclusions. Thus, a 1928
India Office memorandum concluded that any Persian claim to the islands
was unsupported and contrary to the effective occupation of the islands by the
Qawásim Arabs:
As regards the merits of that claim, the historical summary above shows
that the history of the islands prior to 1750 is obscure; that since that date
such authority and such effective occupation as there has been has had
76 See chapter 8 for an analysis of this issue.

77 Toye, Lower Gulf Islands, Vol. 2, 3, containing “Communication from Col. Ross, British
Political Resident in the Persian Gulf, to A Nicholson, British Chargé d’Affaires at Tehran,
dated January 23, 1888.”
78 See chapter 8 for a more detailed explanation of the alleged informal claim of Persia to
Abu Musa in 1888 and its formal claim to the island in 1904.
79 fco 8/52, containing “Talking Points” on the topic “Persian Gulf Median Line. The Owner-
ship of Certain Islands in the Persian Gulf”, undated, 25.
104 chapter 2
its source in the Jowasimi [Qawásim] Arabs, who between 1750 and 1820
exercised in the Gulf a maritime control uncontested by Persia…. Finally,
de facto possession resting with the Jowasimi Arabs of the Trucial Coast,
it would appear to be for Persia, in the absence of evidence at any stage of
effective Persian occupation or of acknowledgment by the Trucial Arabs
of Persian overlordship in the islands, to prove the case for alteration of
the status quo.80
While the British position contesting the claims of Persia to the islands at the
end of the nineteenth century was thus formally expressed to be a result of
Britain’s view of the historical and legal realities, the British position in defense
of the Qawásim rights over the islands was also, whether by design or coinci-
dentally, consistent with Britain’s own perceived political and strategic interests
at that time. Beginning in 1806, Britain had established colonial alliances and
regional control in the Gulf through, among other measures, a series of treaty
relationships with the various Arab Rulers in the southern Gulf area, including
the Qawásim rulers. Its alliances with and control over the various Sheikhdoms
of the Arab coast were considered to be an important part of maintaining Brit-
ish authority throughout the Gulf. This control, first established through the
might of the British fleet, including in harrowing sea and land battles against
the Qawásim in 1809, 1816–1817 and 1819–1820,81 was formally established in
a series of treaties signed between Britain and various of the Gulf’s Arab rul-
ers, which included, amongst others, those signed in 1820 (“General Treaty
with the Arab Tribes of the Persian Gulf”), in 1847 (“Engagement entered into
by Sheikh Sultan bin Suggur, Chief of Ras-ool-Kheimah and Shargah, for the
abolition of the African slave trade in his ports”), in 1853 (“Treaty of Peace in
perpetuity agreed upon by the Chiefs of the Arabian Coast in behalf of them-
selves, their heirs and successors, under the mediation of the Resident in the
Persian Gulf”) and in 1892 (the 1892 “Exclusive Agreements” or “Protectorate
Treaties”).82 Under these various treaties, the role of Britain, whether as the
keeper of the peace at sea or as “protecting Power” (a euphemism for Britain’s
exclusive right to control all political and diplomatic relationships of a Sheikh-
dom with the outside world, presumably in exchange for the protection of the
80 Toye, Lower Gulf Islands, Vol. 4, 130, containing “India Office, Status of the Islands of Tamb,
Little Tamb, Abu Musa and Sirri” by J.G. Laithwaite, dated August 24, 1928.
81 Charles Rathbone Low, History of the Indian Navy (1613–1863) (London: Richard Bentley
and Son, 1877).
82 For the text of these treaties, see Toye, Lower Gulf Islands, Vol. 1, 217–293 and Vol. 2, 137.
British government from external threats, although this quid pro quo was not
specifically stated in the treaty), was paramount.
As Persia became more assertive and cohesive as a State in the late nine-
teenth century, and began to re-assert its control of the Persian side of the Gulf
littoral,83 claim Gulf islands and, arguably, seek to establish protectorate rela-
tions of its own with the Arab rulers of the opposite side of the Gulf, it also be-
gan to establish stronger ties with various European powers which were hostile
to Britain, among them Germany and Russia. It was reported in April 1888, for
example, that Persia was seeking to “promote Russian influence in the Persian
Gulf to the extent of ceding an island to Russia as a coaling station.”84 Britain
viewed these developments with concern as maintaining its influence and au-
thority in the Gulf – particularly against potential threats from its E uropean
rivals – was seen as crucial to the defense of the British Empire as a whole,
most particularly in connection with the security of India and the British trade
routes connecting different parts of the Empire which ran through or depend-
ed on the Gulf. In this context, it can easily be seen that supporting the rights
of Britain’s Qawásim allies to the three islands fit well with a British policy
focused on safeguarding its own interests and authority in the Gulf.
Clearly adding to the British concern over the fate of these three islands were
the Persian designs on other Gulf islands which it proceeded to either seize
or otherwise claim. Thus, not only did Persia, soon after it had r e-established
control of Lengeh in 1887, plant its flag and claim ownership over the island
of Sirri (over the objections and to the consternation of the British and the
Qawásim rulers), but it also laid claim to the much larger and populated island
of Bahrain.85
Although it post-dates the 1887 events, Britain’s concern over its position in
the Gulf during the late nineteenth century was clearly reflected in a House
of Lords debate of May 5, 1903 in which Lord Lamington was noted as stating
that:
83 During the mid to late nineteenth century, Persia established effective control over much
of its littoral on the Gulf and the Gulf of Oman, taking Bushehr in 1850, Tis in 1865, Bandar
Abbas in 1868, Gwatar in 1871, Chabahar in 1872, Jask in 1886, Kangan in 1880, Lengeh in
1887 and, finally, consolidating its control over Qeshm Island between 1867 and 1911.
84 Toye, Lower Gulf Islands, Vol. 2, 22, containing a telegram from Her Britannic Majesty’s
Minister, Tehran to His Excellency the Viceroy, dated April 19, 1888.
85 Persia continued to claim this island until its claim was abandoned by the Shah following
a u.n.-sponsored fact-finding mission in 1970 finding that the island’s population desired
independence. See Mattair, Three Occupied uae Islands, 117–118; Husain M. Al Baharna,
The Arabian Gulf States. Their Legal and Political Status and their International Problems
(Beirut: Libraire Du Liban, 1975), 167–195.
106 chapter 2
[F]or a hundred years Great Britain was supreme in the Persian Gulf, and
we and our British Indian subjects were alone the real traders there. Our
position in the Persian Gulf had been maintained by the expenditure of
large sums of money, stated to be millions, and also at a great cost of life.
His contention was that the Administration of India had held that the
security of the Persian Gulf was necessary for the proper defence of the
Indian Empire. Unluckily, while we maintained that position, we also al-
lowed the Turkish suzerainty to survive, and supported the pretensions
of Persia against other States, and particularly the State of Muscat. Only
a year ago the noble lord the Under Secretary for Foreign Affairs declared
that it would be impossible for us to abandon what we looked upon as
our rights and position, not only in the Persian Gulf, but also in those
provinces of Persia which bordered on the Indian Empire. They should
next consider what had been done in the last 15 years, and in that period
they had to remember the question of the Russian loan [to Persia] and
Russia’s action with regard to the railways… These matters and the ques-
tion of the roads, surely, raised a question as to their trade with Persia. It
was said that Russia must have an outlet in the southern sea, but Russia
had no trade whatsoever in Southern Persia. The only object which she
could have would be to form a naval base, and the only object of a naval
base would be to threaten our trade with India. He believed that if they
allowed any Power to come down into the Persian Gulf they would in-
flict a great injury on India, and enable that Power to strike them on the
flank. They must not forget that they were now dealing with an impor-
tant strategical position between this country, India, Australia, and South
Africa.86
Responding to these views, the Marquis of Landsdowne, the Secretary of

State for Foreign Affairs, set out British policy in the Gulf (the “Landsdowne
Declaration”):
But there is no doubt that in the Gulf, as in other parts of Persia, we are
feeling very keenly the competition of other Powers. That, I am afraid, is
our fate not only in Persian waters; nor can we expect, because we have
been in the development of commerce throughout the world the pio-
neers of that form of civilization, that we shall always be able to maintain
the position of superiority which we at first enjoyed. The noble lord asked
86 Toye, Lower Gulf Islands, Vol. 2, 395–396, containing “The Landsdowne Declaration of
British policy towards the Persian Gulf, May 1903.”
me for a statement of our policy with regard to the Persian Gulf. I think
I can give him one in a few simple words. It seems to me that our policy
should be directed in the first place to protect and promote British trade
in those waters. In the next place I do not think that he suggests, or that
we should suggest, that those efforts should be directed towards the ex-
clusion of the legitimate trade of other Powers. In the third place – I say it
without hesitation – we should regard the establishment of a naval base
or of a fortified port in the Persian Gulf by any other Power as a very grave
menace to British interests, and we should certainly resist it with all the
means at our disposal.87
The geographical location of the islands thus suddenly placed them in a posi-
tion where, due to events occurring towards the end of the nineteenth (and
beginning of the twentieth) centuries, claims to their ownership – and his-
torical and legal justifications supporting those claims – became relevant and
began to be articulated and recorded for the first time. This standoff, often
contentious and heated, including numerous threats, assertions, or attempted
assertions, of authority, protests and counter-protests, between Persia/Iran,88
and its desire to possess the islands, and the determined intention of the Qa-
wásim, with active British backing, encouragement and protection, to retain
possession and ownership of them was to continue well past the middle of the
twentieth century and up to the time of the British departure from the Gulf at
the end of November 1971.89
It is in light of these circumstances that the response of the government
of Persia in 1887 to the general position of the Qawásim (and the British) that
Sirri, as well as the Tunbs and Abu Musa, were subject to their ownership must
be seen. In any case, that response, and the position taken by the Qawásim in
reply, was highly significant and sheds light on the evidentiary and legal ques-
tions the case involves.
87 Ibid., 399–400.
88 The change of name from Persia to Iran can be traced to a 1935 circular sent by the Persian
Ministry for Foreign Affairs to all foreign embassies in Tehran in which the Ministry re-
quested that the name “Iran” be used instead of “Persia”. Since then, the name Iran began
to appear in official correspondence and news reports. Later, in 1959, another Foreign
Ministry circular made the use of either Iran or Persia optional but by and large the name
Iran was widely adopted to refer to the country. See Ehsan Yarshater, “Persia or Iran, Per-
sian or Farsi”, Iranian Studies 22(1) (1989). With the success of the Islamic revolution of
1977 and the overthrow of the Pahlavi dynasty, the country formally adopted the name of
the Islamic Republic of Iran.
89 See, generally, chapters 7 and 8.
108 chapter 2
The Persian Position

In essence, although the Persian government did not deny that certain Qa-
wásim leaders (who they identified as those settled in Lengeh) had exercised
an administrative role in controlling the islands for a significant period of time
prior to 1887, it asserted that the ownership of the islands was, and had always
been, held by Persia, and that they had never been brought under Qawásim
ownership or possession. The administrative role carried out on the islands
by the Lengeh Qawásim was, according to the Persian government, purely on
behalf of the Persian State. This conclusion was, it asserted, supported by the
fact that the Lengeh Qawásim had been for over a century effectively Persian
subjects who ruled, both in Lengeh and on the islands, as “vassals” or suzerains
of Persia and subject to its ultimate control. Not only were the Qawásim lead-
ers of Lengeh appointed to govern the town (and its “dependent” islands) by
Persian overlords, but they also paid “tribute” to Persia, generally answered to
Persian authorities and, since 1878, had in fact collected “taxes” in connection
with the use of the islands by third parties and paid those revenues over to
Persia. Thus, any local governance or “administration” the Lengeh Qawásim
rulers exercised over the islands had to be considered as an extension of the
authority of the Persian state itself. Furthermore, Persia asserted that the ex-
tended and senior Qawásim rulers of Sharjah and Ras Al Khaimah, who they
described as distant and largely unconnected to their Lengeh cousins after
their having been settled for so many years on the Persian side of the Gulf, had
no role in the administration of the islands, and certainly could not claim to
be their owner.
To further support its position, the Persian authorities also asserted that the
British themselves had, prior to the events of 1887, recognized Persian owner-
ship of the islands, both in the form of maps in which the islands appeared in
the colors of Persia – including one prepared by the Intelligence Division of
the British War Office in 1886 – and in navigational guides and other reports
which described the islands as either belonging to Persia or under the control
of the Qawásim leaders of Lengeh, not their Sharjah and Ras Al Khaimah cous-
ins. In later years, Persia pointed to other evidence to support its claim that the
islands had been under the control of the Lengeh Qawásim rulers, rather than
their cousins on the other side of the Gulf, and that it was untrue that the rulers
of Sharjah or Ras Al Khaimah had much interest or involvement in the islands
at all. For example, they argued that a restriction on navigation imposed by the
British in 1835 to promote “peace at sea”, which prevented, in theory, Qawásim
war vessels of the Arab coast from crossing a geographical line roughly drawn
down the middle of the Gulf (referred to as the “Hennell Line” after the British
officer who established it), effectively cutting off access to the islands by such
vessels from Sharjah and Ras Al Khaimah, was not opposed by their Qawásim
Rulers, thus signaling their disinterest in having access to those islands.
Against this background, Persia argued that the position taken by the British
in 1887 in support of the claimed ownership of the islands by Sharjah and Ras
Al Khaimah was nothing more than a pragmatic and self-interested maneuver
to justify curtailing the expansion of Persian control to the islands at a time
when Britain was fearful of losing its predominance in the Gulf to a resurgent
Persia and certain European states – particularly Russia and Germany – with
whom Persia had established close ties and which were hostile to British inter-
ests. To these historical arguments, Persia added other historical dimensions
to its claim of sovereignty over the islands. For example, it argued that its sov-
ereignty over the islands in fact dated from antiquity and must be assumed in
light of Persia’s claimed domination of both sides of the Gulf littoral during
ancient times. Given its historic title, it was not, claimed Persia, necessary to
point to any specific evidence of Persian use and possession of these small and
inconsequential islands in order to establish its rightful ownership.90
Thus, in summary, the Persian viewpoint held that ownership of the islands
was incontestably Persian and that the only involvement of the Qawásim in
relation to the islands was, through those Qawásim rulers settled in Lengeh, as
local administrators on behalf of the Persian government. As for the Qawásim,
far from constituting a unified and independent body politic, the Qawásim of
the opposite shores of the Gulf had become deeply divided and estranged dur-
ing the nineteenth century, with the Qawásim leaders established in Lengeh
having, by 1887, few remaining ties with their Sharjah and Ras Al Khaimah-
based cousins and being for all practical purposes “Persianized”, including in
their national loyalty, which was, as Persian subjects, to Persia. According to
the Persian arguments, the role the Lengeh-based Qawásim had in running
90 See, e.g., Toye, Lower Gulf Islands, Vol. 2, 26, containing “Memorandum from the Persian
Ministry for Foreign Affairs to Her Britannic Majesty’s Legation at Tehran”, dated March
10, 1888, where the Persian Ministry for Foreign Affairs, responding to British protests over
the occupation by Persia of Sirri in 1887 stated with respect to the islands in the Gulf: “I
beg say that, according to the rules of all the settled and prosperous Powers, the strongest
proof of the ownership of a Power to a place is the occupation thereof by that Power; and
this proof does not stand in need of any other proof… Since this proof from its extreme
conclusiveness does not require any other proof, I do not at present trouble you with
other proofs which are numerous. Then, since the dependency of a place on the Persian
Government is so evident and plain, its treatment in any way and at any time by the
Persian officials, and their proceedings therein, cannot be made a matter of question by
anybody; and the Government will have no necessity to produce new proofs regarding
their ownership of the same.”
110 chapter 2
the affairs of that town and its surrounding area and “dependent islands” (in-
cluding the three disputed islands, as well as Sirri) was not independent of the
Persian government, but rather was subject to its control and instructions. Fur-
thermore, as asserted by Persia at the time, it was this Lengeh-based branch of
the Qawásim which in fact exclusively administered and governed the islands
up to 1887, and they did so, as Persian subjects, on behalf of their overlords, the
Persian state. This administration included the raising and payment of taxes
to the Persian government derived from activities carried out on the islands,
as well as controlling access to the islands and resolving disputes arising in
connection with the islands. Finally, the Persian narrative implicitly held that
any administrative role performed on the islands by the Lengeh Qawásim only
began after the arrival of the Qawásim in Lengeh, and that the Qawásim had
no control over or possession of the islands before that time. Their role in ad-
ministering the islands was thus purely derivative of their status as vassals, or
subjects, of the Persian State. The practical and legal consequences of this, ac-
cording to the Persian government arguments made at that time, was that the
islands had actually formed part of the Persian state prior to 1887 and should,
therefore, have come under its direct control at the same time (that is, in 1887)
as Persia divested the Qawásim of their semi-autonomous role in Lengeh.
The Qawásim/British Position

For its part, the Qawásim Rulers of Sharjah and Ras Al Khaimah, supported by
the British, countered these arguments with a list of historical assertions and
counter-assertions of their own. It was thus maintained that all three of the
islands, as well as the island of Sirri, were historically used by and belonged to
the Qawásim rulers, and that their ownership could be traced to a time prior
to the establishment of Qawásim governance of Lengeh and the settlement of
certain Qasimi family members there in the eighteenth century. The following
letter of protest, sent by the Ruler of Sharjah to the British Political Resident
in the Gulf, Colonel Ross, on 16 October 1887 in response to Persia’s claim to
Sirri, reflects the insistence with which the Qawásim rejected that claim, or any
other claim Persia might have to the Tunbs or Abu Musa:
I have the honour to inform Your Excellency that the Island of Sirri, as is
known to you, is a dependency of the El-Kowasim tribe and that when
our cousins and other relatives were on the Persian mainland, and Lingah
was in their hands, there was no difference between us, our affairs and
our property were one and the same. Now you have heard of the proceed-
ings of the Persians, and what they have done at Lingah. After that we
learned that the Persians sent to Sirri erected a flagstaff there, and we had
no knowledge of this until after the event. This has done us a grievous
wrong, and since the affairs of the sea are referrible, first to God and then
to you, it has become incumbent on us to report the matter to your Excel-
lency. Our earnest hope and extreme desire is that you will exert yourself
to annul this proceeding and cause the removal of the flagstaff. In like
manner, according to reports we have received from Lingah, it is said that
the Malik intends to put up a flagstaff on the Island of Tomb, and you are
aware that those Islands belong to the El-Kowasim, in the same way as do
the Islands of Seer-bu-Na’eer, Sirri, and Bu-Musa. We beg therefore you
will take effective measures to prevent this happening, and to frustrate
their design of hoisting their flag on Tomb. For we, the E l-Kowasim, will
not consent to this so long as we are in existence, and it is certain distur-
bances will occur on the sea if the British Government are indifferent to
these matters.91
The Qawásim also maintained that the islands of Abu Musa and the Tunbs, as
well as Sirri, were under the ultimate control of the senior rulers of the family
based in Sharjah and Ras Al Khaimah, not their Lengeh-based cousins who
only accessed or used the islands with their permission. In any case, it was
argued that to the extent that the Lengeh Qawásim rulers may have at times
exercised an administrative role over any of the islands, they did so at the
direction of those senior Qawásim rulers, not at the behest or with the permis-
sion of the Persian government. The various inter-tribal letters and other pre-
1887 nineteenth century documents regarding the islands which are referred to
above served, from the Qawásim point of view, as powerful and documented
evidence that the Qawásim were already regarded as the rightful owners of the
islands when Persia’s late nineteenth century claims were first made, that they
had never relinquished this ownership, and that it was the Qawásim rulers of
the Arab coast (and not their Lengeh cousins) who held ultimate authority
over the islands’ use. It has also been argued that there is no independent his-
torical evidence of any Persian claim to the islands (or protest against their
control by the Qawásim) prior to 1887, at which time the control of the islands
by the Qawásim Arabs was well-established, nor any evidence of any control
of or presence on the islands by Persia at any time in history prior to its making
a claim in 1887.
91 Toye, Lower Gulf Islands, Vol. 1, 732, containing “Translated purport of a letter from Sakar
Bin Khalid, Chief of Shargah, to Colonel E.C. Ross, Political Resident in the Persian Gulf
and Her Majesty’s Consul-General for Fars”, dated October 16, 1887.
112 chapter 2
To counter one of the more specific claims of Persia – that its effective
control and ownership of the islands is supported by its having charged the
Lengeh Q awásim with the responsibility of collecting taxes from the islands
over a nine-year period immediately prior to 1887 – it was noted that British
officials had specifically asked the Persian government for evidence of such
payments. Not only, according to British records, was no evidence offered, but
according to a British report at the time, the Persian official in charge of the
relevant tax records acknowledged that no such evidence existed.92 As for the
map evidence showing the islands in the colors of Persia which Persia pointed
to in order to bolster its claim to the islands, most particularly the British War
Office map of 1886, the British government acknowledged the existence of this
map and that it had colored the three islands in the color of the Persian main-
land. However, it emphatically stated that the map did not, insofar as the own-
ership of the islands was concerned, reflect the British position, pointing to
documentary evidence both before and after its issuance which reflected the
British government’s view that the islands belonged to the Qawásim and that
Persia had never laid claim to any of them prior to 1887. It later described the
coloring of the islands in the colors of the Persian mainland as a “regrettable
mistake”93 and it was noted that the map itself had been given to the Shah
in the context of discussions over the Perso-Afghan border, not in connection
with the islands. Indeed, the Shah himself had noted the inconsistency be-
tween the coloring of the map and the position of the British government on
ownership of the islands, and was therefore under no illusions that the map
somehow reflected the established British viewpoint. It was also noted that the
British-produced map could not be considered persuasive evidence against
the Qawásim Arabs, who had no part in its preparation nor were apparently
aware of its existence, and had never accepted or acknowledged its validity,
but on the contrary, had consistently argued a position contrary to the map’s
identification of the islands in the same color as Persian territory. The eviden-
tiary value of these and other maps in the sovereignty dispute over the three
islands will be discussed in depth in chapter 10.
92 Ibid., Vol. 1, 737, containing Telegram from Political Resident in the Persian Gulf, Bushire
to Foreign Secretary, Calcutta, dated December 12, 1887 (“I have made inquiry of Malik
[tax collector of the Governor of the Gulf Ports] as to what documents he possesses
relative to Persian claims to Sirri: he declares he has none and that he telegraphed
Amin-es-Sultan three days ago excusing himself from discussing the question with me.”).
93 Toye, Lower Gulf Islands, Vol. 4, 129, containing “Status of the Islands of Tamb, Little Tamb,
Abu Musa, and Sirri,” confidential India Office Memorandum, dated August 24, 1928.
Thus, in summary, the Qawásim – and the British – disputed the Persian
narrative and the historical assumptions on which it was based. Instead, they
asserted that the islands were owned by the Qawásim and had been under the
effective control of their rulers on the Arab coast (rather than their Lengeh-
based cousins) since before the establishment of Qawásim governance of
Lengeh in the eighteenth century. For this reason, the Qawásim – again with
British concurrence – also asserted that their ownership and control of the
islands could in no event be viewed as somehow derivative of their presence
in Lengeh or the status as Persian subjects which their Lengeh – based rela-
tives eventually obtained. Thus, it was argued that although some members
of the Qasimi family who settled in Lengeh had (for reasons of convenience
or protection) subsequently become Persian “subjects” at some point in time,
this did not somehow serve to transfer ownership of the islands from the Qa-
wásim to Persia. Finally, the Qawásim/British argument asserted that even if
the Lengeh-based Qawásim rulers did at times have some administrative role
in relation to the islands, particularly the two Tunbs which are located closer
to the Persian mainland than the Arab coast, this role was exercised by them at
the direction or with the approval of the Qawásim rulers of Sharjah and Ras Al
Khaimah, not at the direction of the Persian government or otherwise in their
capacity as Persian subjects or officials.
In a wider historical perspective, it has also been argued that Persian claims
to the islands were at odds with the historical realities of recognized sea power
in the Gulf. In this regard, it has been noted that Persia’s presence in or around
the Gulf littoral had been diminished for hundreds of years and that, more sig-
nificantly, it lacked a navy capable of controlling the Gulf waters or its islands.
This contrasted with the circumstances of the Qawásim, who were recognized
since the eighteenth century as a significant sea power whose people lived off
trade, pearling, fishing and other activities dependent on the Gulf waters and
who possessed significant fleets of vessels operating in the southern Gulf area.
In this historical context, it was argued that the claims made out by the Qa-
wásim were objectively consistent and credible, while those of Persia were not
obviously consistent with historical realities.
The Qawásim position on these multi-layered disagreements was largely
adopted by the British in resisting Persian attempts made in 1887 and the
years following to expand its control over the three islands. Largely as a re-
sult of Britain’s support and founded on its treaty relations with the Rulers of
Sharjah and Ras Al Khaimah, the islands remained under effective Qawásim
possession and control until 1971. These treaty relations were, in fact, sig-
nificantly expanded just a few years after the events of 1887/8 when, in 1892,
114 chapter 2
Britain signed with each of the southern Gulf rulers (including the Qawásim)
Exclusive Agreements, or protectorate treaties, under which the rulers agreed
that they would not “enter into any agreement or correspondence with any
Power other than the British government”, nor allow “without the assent of the
British Government … the residence within [his] territory of the Agent of any
other government”, nor “cede, sell, mortgage or otherwise give for occupation
any part of my territory save to the British Government.”94
****
In conclusion, while it is widely acknowledged that for some significant p eriod

of time prior to 1887 the Qawásim had used, possessed and exercised some
form of organized control over the islands, as well as the nearby island of Sirri,
the competing positions of the parties leave a number of questions to be an-
swered. Among these questions are (i) is there any evidence of Persian claim,
ownership or possession of any of the islands prior to 1887? (ii) notwithstand-
ing such evidence or lack of evidence, when did the Qawásim possession and
control of the islands begin and was such possession tantamount to owner-
ship? (iii) which branch of the extended Qasimi family – the rulers of Lengeh
or the rulers of Sharjah and Ras Al Khaimah – held effective control of each of
the islands? and (iv) did the Qawásim rulers of Lengeh at some point perform
activities on or in relation to the islands at the direction of the Persian govern-
ment? These questions, and the legal consequences which arise from the an-
swers to which the available evidence points (for instance, whether the status
of the Lengeh-based Qawásim as Persian subjects or “vassals” may, upon those
Qawásim performing acts of administration on the islands, have served to
somehow transfer or fold the ownership of the islands into the Persian sphere
of sovereignty) are matters which have all been in dispute since 1887.
However these questions may be answered or resolved, what appears clear
is that the events of 1887 marked the first time that the dispute over sovereignty
to the islands began to “crystallize” as a dispute between the parties (the signal
that these events may mark the critical date in the dispute), and in that respect
those events, and the respective connections of the parties with the islands
at that time, are highly relevant. Nevertheless, while the evidence establishes
that during the course of these events Persia expressed the assumed view that
the islands (and most particularly the Tunbs) belonged under its sovereignty,
94 Toye, Lower Gulf Islands, Vol. 2, 137, containing “Protectorate Treaties of 1892”. This treaty
Sharjah, Dubai, Ajman, UmmAl Qaiwain and Ras Al Khaimah.
it did not make a formal claim of sovereignty or take any steps to assert its sov-
ereignty at that time, as it had done with the island of Sirri.
The Events of 1904
Following a period of some sixteen years after the events of 1887/8, during
which there is little evidence of any significant or direct confrontation over
ownership of the islands, a series of incidents occurred which involved several
noteworthy details which make up part of the historical matrix of the dispute.
These events are also worth mentioning as part of this historical review because
they touch upon and reflect some of its curiosities and nuances. In short, the
events in question began with the visit to the islands in March 1904 of a Persian
coast guard vessel named the “Muzafferi” which was carrying a Belgian cus-
toms agent named Monsieur Dambrain who, along with other Belgian customs
experts, had been engaged to manage and oversee, and presumably improve,
revenue collection of the State’s customs dues along its coastline. This had
occurred in connection with Persian loans secured in the European markets
at the end of the nineteenth century for purposes of financing the construc-
tion of public infrastructure, for which the Persian government had pledged
its customs revenues as a guarantee.95 Persian soldiers acting under the orders
of Monsieur Dambrain proceeded to lower the Arab flags which were planted
on the islands of Abu Musa and Greater Tunb and dismantle their flagstaffs,
replacing them with new flagstaffs, raising the Persian flag and placing customs
guards on the islands as an apparent assertion of the Persian claim of owner-
ship. A contemporaneous diplomatic dispatch from the Ottoman consul at the
Persian port town of Lengeh reporting the incident to the Ottoman embassy in
Tehran gave the following description of these events in relation to Abu Musa:
According to intelligence received, the Belgian customs director of Ban-

dar Bushehr, Monsieur Dambrain, was taken by an Iranian vessel called
the Muzafferi on the 14th of this month [14 Muharram, or 31 March 1904] to
Bumusa island [Abu Musa island] and there planted the Iranian flag and
left 4 soldiers on the island to protect the flag, and he then returned to Ban-
dar Bushehr. The reason for this person’s action is to prove that this island
is under Iranian sovereignty. Yet, in reality, the island is part of Oman96
which is part of the well-protected domains of the Great Empire [the
95 John G. Lorimer, Gazetteer of the Persian Gulf, Oman and Central Arabia (Cambridge:
rchive Edition, 1986), Vol. 1, 306–307.
A
96 The area of present-day Oman and the uae was often referred to as simply “Oman”.
116 chapter 2
Ottoman Empire] and is owned by Sheikh Saggur bin Khalid [then ruler
of Sharjah], and the island, which is opposite the Iranian coast, close to
[missing word], has 100 residents in total who are all Omani people, hous-
es and date trees. Sheikh Saggur has not yet taken any action in response
to these events, but it is possible that he has reported them to the English
consul at Bushehr. England considers herself as the protector of Oman
and it is not clear what it may do now. Because of that I saw it as necessary
to report these events as there is a risk of an aggression against a part of
the well-protected domains [i.e., the domains of the Ottoman Empire].97
The British were informed of Monsieur Dambrain’s visit to the islands and im-
mediately took action. In a meeting between the head of the British legation
at Tehran and Monsieur Dambrain’s superior, Monsieur Naus, in May 1904, the
British noted that they were “prepared to send a ship to the islands in question
in order to vindicate the rights of the Sheikh of Shargah”.98 In reply, the Brit-
ish were advised by M. Naus that he had “been ordered a few months ago by
Mushir-ed-Dowleh to establish Persian authority over the islands of Tamb, Sir-
ri, and Abumusa”, but that “M. Dambrain had … no business to remove the Arab
flag” and that “he had not been told to do so by the Persian Government”.99
Monsieur Naus further reported details of Monsieur Dambrain’s islands visit,
noting that “[a]s regards Tamb and Abumusa, M. Dambrain stated that he had
found the Arab flag flying and had removed it, notwithstanding the protests of
a caretaker who professed to represent the Sheikh of Shargah, and had hoisted
the Persian flag, not, so far as my recollection goes, on the same flagstaff, but
on an adjacent spot.”100 The British representative had “very little doubt” that
Persia’s actions towards the islands was precipitated by “the Russian Legation”
which had undoubtedly advised the Persian government that, in light of the
"recent cruise in the Persian Gulf"of the Viceroy of India, “to anticipate, while
there was yet time, any seizure as a possible result of it, on our part, of islands
or other strategic points in those waters.”101
97 dh.tmik.m 176/37 8.sayfa, Purport of the translation of a letter received by Tehran Em-
bassy from previous Deputy Consul of Lengeh, Consul Muhammed bin Abdoulhace,
dated April 7, 1904 (translation by Ismail Keskin on file with authors).
98 Toye, Lower Gulf Islands, Vol. 2, 484–485, containing a Telegram from Sir A. Hardinge (Brit-
ish Minister in Persia) to the Marquess of Lansdowne (British Foreign Secretary), dated
May 24, 1904.
99 Ibid.
100 Ibid.
101 Ibid.
The acts carried out under the orders of Monsieur Dambrain and the events
which followed, sometimes referred to as the 1904 flag incident, resulted in a
serious diplomatic incident in which the British government (as was indeed
predicted by the Ottoman consul at Lengeh) proceeded to intervene on behalf
of the Qawásim. At the insistence of the Qawásim Ruler of Sharjah that the
islands were Qawásim property, the British insisted to no initial effect that Per-
sia remove its flags and customs guards from the two islands where they had
been planted (Abu Musa and Greater Tunb) and threatened military action to
defend the islands from what they described as Persian aggression. The Per-
sian government replied that the islands were part of Persia’s sovereign terri-
tory and, in language reminiscent of the arguments advanced by Persia in 1887,
had merely been administered on its behalf by the branch of the Qawásim
rulers who had been settled on the Persian coast around the town of Lengeh
for several generations and who, according to the Persian government, were
Persian subjects and held formal government positions. Proof of this ultimate
Persian control, it was again contended, was to be found in documentary re-
cords, including tax records showing that these Lengeh-based rulers had for
some years collected and paid over taxes to Persia connected to the islands
and performed other administrative duties on the islands at the behest of the
Persian government.
It was reported by the British Residency Agent at Lengeh that, when the Per-
sian customs official was told by local Arab merchants that the Ruler of Sharjah
who owned the island would “send men” to remove the flags, he replied that if
the ruler did that the Persians would send a warship, the Persepolis, “to punish
them”, and that if the British attempted to take steps on the matter in defence
of the rulers’ ownership rights, “we will place the Russian Government to con-
front them”.102 The involvement of Russia in the whole affair was also noted by
the Ottoman government, which claimed in a note from the Basra Governor
and Deputy Commander to the Ministry of Interior on 20 October 1904 that it
had been “revealed that the flag planting issue was the result of an incitement
by the tax collecting Belgian company and Russia which wants to reduce the
influence of the Indian Government (of Great Britain) in that area.”103
102 Toye, Lower Gulf Islands, Vol. 2, 435–436, containing “Note from the British Residency
Agent, Lingeh, to the British Political Resident Persian Gulf, dated April 4, 1904.”
103 dh.şfr. 334/18 and 335/16 (Ministry of Interior-Encrypted File), Letter from Basra Gov-
ernor and Basra Deputy Commander to the Ministry of Interior, dated October 20, 1904
(translation by Ismail Keskin on file with authors).
118 chapter 2
The Qawásim rulers reacted with alarm to these events, asking the British
to intervene on their behalf to protect their rights to the islands of Abu Musa
and the Tunbs which, they insisted, belonged to them and not Persia.104 After
several weeks of tension and diplomatic exchanges b etween the Persian and
British governments, the incident ended with Persia removing its flags under
an arrangement which it later claimed amounted to a formal agreement by
both Persia and Britain not to re-hoist either the Persian or Arab flag over any
of the islands or take any other sovereign acts in relation to the islands until
agreement had been reached on the question of ownership (and which Persia
therefore dubbed the status quo agreement). The British, however, acting on
behalf of the Qawásim rulers, not only denied these exchanges amounted to
an agreement at all, but, as they resulted in the voluntary removal by Persia of
its flags from the islands, the British later claimed that act amounted to a legal
relinquishment by Persia of any rights it may have held over the islands and its
acquiescence to the Arab claim of ownership.
The evidence of any such status quo agreement will be reviewed in de-
tail in chapter 8, but for present purposes it may be noted that there is no
evidence that the British agreed, implicitly or explicitly, not to re-hoist the
Qawásim Arab flag over the islands in return for the voluntary lowering of
the Persian flag. If the British had agreed to anything, it was only that they
acknowledged the existence of the Persian claim. This was reflected in a re-
port sent by Sir A
rthur Hardinge, the British Minister in Tehran, to the British
Foreign Secretary on May 24, 1904, in which he noted that in a meeting with
Mushir-ed-Dowleh at the Persian Foreign Office he had been shown a telegram
sent to Monsieur Dambrain informing him “that the question of sovereignty
over Tamb and Abumusa was a disputed one, and ordering him with the least
104 The Ruler of Sharjah wrote to the Political Resident on April 5, 1904 and account of the
contents of this letter is contained in a report of the Political Resident to the Secretary to
the Government of India, dated April 15, 1904: “I have now received a letter of 5th April
from the Chief of Shargah, in which he says that he had first heard from Ras el Kheima
people that a Persian Govt steamer had called at the island of Tamb, handed down the
Joasmi flag which was flying there and hoisted the Persian flag. The Chief says that he
cannot tolerate this action of the Persians: that the British Govt aware of the fact that the
islands of Tanb, Bu Moosa and Siri (meaning the island of Sir Abu Nair) belong to him
and that as he is one of those enjoying treaty relations with the British Govt, he hopes
they will be so good as to take the necessary steps to [preserve] such interference with his
territory. The Chief does not mention anything about the Bu Moosa island, but probably
the information regarding the Persian action there had not reached him when he wrote
to me.” Toye, Lower Gulf Islands, Vol. 2, 444–445.
possible delay to remove the Persian flag from those islands.”105 In the same
report, Hardinge also noted that “The Mushir-ed-Dowleh observed in this con-
nection that the Persian Government considered it had a claim to these two
islands, and reserved its right to discuss that claim with me.”106 No mention
of an obligation by the Qawásim, or the British, to refrain from re-hoisting the
Arab flag (which in itself would constitute a reestablishment of the status quo)
was made.
The Arab flag was then duly re-hoisted over the islands less than a week
after the removal of the Persian flags, leading sometime later to a persistent
protest by Persia that the status quo agreement (a non-existent agreement in
the view of the British) had been violated. In the midst of this incident, the Ot-
toman government learned of these goings-on and undertook, through its me-
ticulous yet slow-moving bureaucracy, an investigation of its own on the legal
ownership of the islands on the orders of the Sultan, Abdulhamid ii, himself.
The Ottoman government concluded as a result of this investigation not only
that Persia had no valid rights over the islands and that the Qawásim rulers
were their legitimate owners, but that these rulers and their tribesmen had
for many years considered themselves Ottoman subjects, bringing the islands
within the “protected domains” of the Ottoman Empire.107 Indeed, the Otto-
man Chief of Staff requested Sultan Abdulhamid ii to authorize the sending
of warships to the islands because “the protection of these islands, which are
part of the Empire, depends on [it].”108 Despite this call from within high levels
105 Toye, Lower Gulf Islands, Vol. 2, 484–485, containing Report from Sir A. Hardinge to the
Marquess of Landsdowne, dated May 24, 1904.
106 Ibid.
107 beo 2447–183518 (Sultan’s Office), English summary of translation of document from
the Grandvizier’s Office to the Ministry of the Maritime Affairs, dated November 13, 1904
(translation by Ismail Keskin on file with authors). This indicates that, according to the
reports of two Ottoman boats sent to the islands in order to gather information about the
flag incident on behalf of the Ottoman Empire, “There are no flags of any states anymore
on those islands. There is no Iranian flag nor the flag of any other foreign states, but there
are flags that are peculiar to the Arab tribes.” See also, dh.tmik. m 176/37, English sum-
mary translation of document from the Commission of the Acceleration of the Bureau-
cracy to the Grandvizier, dated November 7, 1904 (translation by Ismail Keskin on file with
authors), indicating that the “mentioned islands are essentially part of the Glorious Lands
[of the Ottoman Empire] yet the situation at the moment requires the necessity of the
inquiry upon the documents that will prove the ownership of the islands in the archives
of the relevant ministries.”
108 y.mtv 268-16, Report of the Ottoman Chief of Staff, Serasker Riza, to Sultan Abdulhamid
ii, dated November 10, 1904 (translation by Ismail Keskin on file with authors).
120 chapter 2
of the Ottoman government to defend the islands against the encroachment of

Persia through naval intervention, no action was to result from this finding. It is
unclear if this was due to the matter having become moot upon the removal of
the Persian flags, or whether some other factor dictated the Ottoman restraint,
such as its practical inability to mobilize sufficient naval assets in the Gulf for
that purpose or its unwillingness or inability to interfere with Britain’s exercise
of control over the southern Gulf and the Qawásim sheikhdoms.
Whether the arrangement reached between Britain and Persia constituted a
status quo agreement or not, it is clear that the confrontation arising out of the
flag incident of 1904 marked a point at which a dispute between the Qawásim
and Persia over ownership of the islands unambiguously existed. In contrast
to the events of 1887, during which Persia’s claims of sovereignty to the Tunbs
and, more particularly Abu Musa, were merely suggested or expressed in as-
sumed or ambiguous terms, in 1904 Persia took clear steps to assert sovereignty
and possession over the islands. That this was the purpose of planting its flag
and posting guards on the islands cannot be doubted. Nor can it be doubted
that as a result of these events the dispute over sovereignty to all three of the
islands had fully matured, or crystallized.
To complete the picture as to the significance of the events surrounding the
1904 flag incident, it is important also to mention that in later years Persia,
and several scholars supporting its claims of ownership over the islands, as-
serted another interpretation of those events. This argument traced the chain
of events leading to the flag incident back to June 1903, when, it is asserted,
at the urging of the British government (and as part of a British strategy to
consolidate its own control and influence in the Gulf), the Arab (Qawásim)
flag was first hoisted at the islands of Abu Musa and Greater Tunb. The Persian
argument further asserts that the hoisting of these flags constituted a viola-
tion of Persian sovereignty over the islands, which (contrary to the evidence
noted above) had already been acknowledged by the British during the events
of 1887. The Persian acts taken in March 1904 of lowering the Arab banners
and hoisting the Persian flag instead was, according to this version of events, a
justified measure in response to the raising of the Arab flags in 1903 which was
required to protect Persia’s sovereignty over the islands. In this context, the de-
scription of the arrangement reached by the Persian and British governments
in 1904 as a status quo agreement (that is, re-establishing the situation which
existed prior to the raising of the Arab flags in 1903 when no party’s flag flew
over the islands), which was to remain in effect until the dispute over own-
ership was resolved, must be understood. In accordance with this argument,
the breach of this status quo agreement by Britain in 1904, when it had the
Arab flags re-hoisted, in fact marks the date on which Persia first “lost control”
of the islands, only recovering them in November 1971.
The factual evidence and legal arguments related to this version of events
are reviewed in detail in chapter 8. For present purposes, however, it should
be noted that the historical assertions contained in this version appear to be
inconsistent with several key pieces of evidence. First, as reviewed above, the
evidence related to the events of 1887 does not indicate that Persia was “unop-
posed” in asserting its sovereignty over Abu Musa and the Tunbs in 1887. On
the contrary, not only did it not take any concrete steps to assert its owner-
ship or possession of those islands at that time, but it was made clear to the
Persian government by the British and the Qawásim that they considered the
islands to belong to the Qawásim. Second, there is evidence that the hoisting
of the Arab flags in June 1903, which was indeed the first time they had been
raised over the islands, came about precisely in order to protect against a po-
tential aggression by Persia to seize the islands. The background of this matter
begins in January 1903 when Lieutenant-Colonel Kemball, the British Political
Resident in the Gulf, wrote to the foreign department to advise that “due to the
shortsighted policy of the Belgian Customs Administration”, trade was being
diverted away from Lengeh and to the Arab coast, principally Dubai.109 As a
result, some of the merchants of Lengeh “were endeavouring to arrange with
the Bombay and Persia Steam Navigation Company for steamers to make the
island of Abu Musa a port of call, apparently for the purpose of facilitating
their pearl business”.110 The letter added:
My reason for mentioning this matter now, is that I consider it to be

within the range of possibility that if steamers call at Abu Musa, the
Persians may proceed to claim this island as Persian, in the same way as
they asserted their claim to the island of Sirri, where the Persian flag has
been hoisted. Abu Musa, which is situated a short distance to the east of
Sirri, undoubtedly belongs to the Joasmi Sheikh of Shargah and is visited
during the Winter by people from Khan and Shargah for the purpose of
fishing and grazing cattle. During the pearling season these people leave
the island and the Residency Agent reports that during this season only
three men remain on the island for the purpose of looking after the date
109 Toye, Lower Gulf Islands, Vol. 2, 344, containing a copy of a confidential letter dated 12
January 1903 from Lieutenant-Colonel Kemball to the Secretary to the Government of
India in the Foreign Department, Calcutta.
110 Ibid., 345.
122 chapter 2
trees belonging to Sheikh Salem the uncle of the Chief of Shargah. The
Joasmis do not fly a flag on the island and it is a question for consider-
ation whether I should not advise the Chief of Shargah to keep his flag
flying on the island as a sign of ownership.
In light of these circumstances, the British proceeded to advise the Ruler of

Sharjah to raise the Arab flag over the island of Abu Musa, noting that “[t]he
island is in no way dependent on the Persian Government, and the Govern-
ment of India agree that it is desirable to take precautions to meet the advance
of claims similar to those put forward in the case of the island of Sirri. I am
therefore to request that, if the Chief of Shargah is willing to take action, you
will arrange for him to hoist his flag at Abu Musa.”111 A similar recommenda-
tion was made with respect to the island of Greater Tunb, although the British
political resident considered it to be “of little or no commercial importance,
and its strategic value is I believe never likely to be of any account”.112 There
were also lingering questions raised by the British as to whether it was the Qa-
wásim of the Arab coast or those of Lengeh who held ownership rights over
that island, and if it were the latter, whether Persia might claim the island on
the basis that the Lengeh Qawásim had become Persian subjects. But in light
of the various pre-1887 correspondence in which a chain of Lengeh Qawásim
leaders had admitted the ownership rights of the Qawásim rulers of the Arab
coast, and after ascertaining that the Qawásim chief of Sharjah considered the
island as the property of the “Joasmis of the Arab Coast” and “would be greatly
concerned if the Persians were to seize the island”, and moreover that “Persia
has never asserted sovereignty over it”, the recommendation that the Arab flag
be hoisted over Greater Tunb was also made.113 The flags were reported to have
been raised immediately following these recommendations, and on the 6th of
June, 1903, a British sailing vessel, the hms Lawrence, visited the islands and
confirmed that the Arab flag was flying on both of them.114
To these considerations, which indicate the inaccuracy of a version of events
in which the British did not oppose the Persian assertion of ownership of the
111 Ibid., 349, containing correspondence from the Secretary to the Government of India to
Lieutenant - Colonel Kemball, dated 10 March 1903.
112 Ibid., 365, containing letter from Lieutenant-Colonel Kemball to the Secretary to the Gov-
ernment of India, dated 30 April 1903.
113 Ibid., 365–366.
114 Ibid., 368–369, containing letter from the Captain of the hms Lawrence, Lieutenant Com-
mander C.R. Roswell, to the political resident in the Gulf, dated 8 June 1903.
islands in 1887, only to undertake a takeover of the islands in 1903, may be add-
ed other inconsistent positions later articulated by the Iranian government.
These include, for example, the stated view of the Shah of Iran who openly
claimed in 1970 that the islands should have been handed over to Iran in 1887
but that the British had decided at the time to keep them in the hands of the
Qawásim Arabs – their “Trucial” allies – as part of a British design to maintain
power and control in the Gulf.115
The Events of (and Preceding) 1971
Following the flag incident of 1904, the dispute over ownership of the islands
remained a consistent point of contention between the Persian government
and the Qawásim rulers, under the protection of the British government,
with evidence of the dispute appearing, albeit at occasionally long intervals,
throughout the period of Britain’s twentieth century colonial predominance
over Gulf affairs, the two world wars and the process of decolonization and
independence of the various Gulf countries. Throughout this extended period,
which dramatically ended in November 1971, the Qawásim retained possession
and control of the three islands notwithstanding the persistent attempts by
the Persian government to encroach upon or otherwise treat the three islands
as its own territory. These attempts, at times taking the form of diplomatic pro-
tests and at other times expressed through physically assertive measures, were
successfully resisted by the Qawásim, with the active support of the British
government. A list of such documented incidents,116 which gives a flavor of the
nature and extent of the Persian efforts, includes the following:
(i) The lodging of protests by the Persian government to the British

government in 1912 and 1913 against the construction of a lighthouse
on Greater Tunb by the British after they had received the consent
of the Ruler of Sharjah in his asserted capacity as the island’s sov-
ereign. The protest lodged by Persia in 1912 claimed that “the island
properly belonged to Persia”, to which the British lodged a counter-
protest stating that it was “beyond doubt” that the island belonged
to the Qawásim.
115 See chapter 9.

116 A more detailed description of these incidents is set out in chapter 8.
124 chapter 2
(ii) The lodging of a protest in 1923 by the Persian government against

the granting of a concession by the Ruler of Sharjah to a British
company for the mining of red oxide on Abu Musa in 1922. In this
protest, Persia communicated to Britain its position that both Abu
Musa and Greater Tunb were under Persian sovereignty, to which
Britain replied that such a claim was “completely inadmissible” giv-
en the sovereignty of Sharjah over both islands.117
(iii) The visit to Abu Musa by a Persian customs launch in 1925 to in-
spect mining operations on the island, an act which was protested
against by the British government on behalf of the Ruler of Sharjah.
(iv) The detention in 1928 of a Dubai-registered vessel in the territorial
waters of Greater Tunb by an Iranian customs launch and the con-
fiscation of its cargo as contraband, an act which was strongly pro-
tested against by the British government on behalf of the Ruler of
Ras Al Khaimah. In reply, Persia again claimed ownership over both
Greater Tunb and Abu Musa, to which the British responded by re-
iterating the ownership over the islands by the Qawásim of Sharjah
and Ras Al Khaimah.
(v) In the context of negotiations which began in 1928 and stretched
until 1934 over a general commerce and navigation treaty between
Britain and Persia (Anglo Persian General Treaty), during which the
British government sought to reach agreement over ownership of
the three islands and Sirri (an initial proposal would have recog-
nized ownership of Abu Musa and the Tunbs by the Qawásim rulers
while ownership of Sirri would have been “relinquished” to Persia),
the Persian government maintained its claim to all of these islands.
The Persian prime minister was said to have attributed the eventual
breakdown of these negotiations to the British refusal to “surren-
der” Abu Musa and the Tunbs to Persia.
(vi) An Iranian naval visit to Greater Tunb in 1933 to inspect the light-
house, which was met by a strong protest by the British government
on behalf of the Ruler of Ras Al Khaimah, stating that the Ruler
was the sovereign owner of the island. The Persian government
117 It should be noted that Ras Al Khaimah was united with Sharjah from 1900 until 1921,
with all three islands falling under Sharjah’s possession and control during that period.
After the dissolution of the union, the Tunbs were placed under the ownership of Ras Al
Khaimah, with Abu Musa remaining under the possession of Sharjah. See chapter 8.
responded by asserting that both of the Tunbs were under the de

jure (and confusingly de facto) ownership of Persia.
(vii) The visit to Greater Tunb in 1934 by the director of Iranian customs,
who questioned the representative of the Ruler of Ras Al Khaimah
on the island and asserted Iranian ownership.
(viii) Iranian naval visits to Greater Tunb on two occasions in 1934, both
of which were met with strong British protests on behalf of the
Ruler of Ras Al Khaimah which, among other matters, asserted the
Ruler’s ownership of the island, called the Iranian incursions in-
compatible with the Covenant of the League of Nations and threat-
ened the use of force “if Persian ships of war refused to leave these
Islands”.
(ix) The lodging of a protest by the Iranian government in 1935 against
the signing of a concession agreement by the Ruler of Sharjah with
a British company covering mining operations on the island of Abu
Musa, which was met with a reply by the British government reaf-
firming Sharjah’s ownership and adding that “[a]s the Iranian Gov-
ernment are aware, His Majesty’s Government have never in the
past admitted the Iranian claims to this island nor recognised that
Iran has any rights in respect to it.”
(x) The granting by the Persian government in 1939 of a contract with
a Dutch company for mineral exploration in areas which appeared
to have included Abu Musa and the Tunbs, to which the British
government advised the Dutch government that extension of the
concession to such areas was beyond the authority of the Iranian
government, but which attracted no formal protest to the Iranian
government.
(xi) An approach to the British government by the Iranian government
in 1948 seeking to establish “small administrative offices” on Great-
er Tunb and Abu Musa for the purpose of controlling smuggling,
to which the British replied that it could not “agree to the Persian
Government taking over territory belonging to Arab rulers”, which
in turn led to a protest by the Iranian government in which it re-
asserted its claim to the islands.
(xii) The hoisting of the Persian flag on Lesser Tunb in 1949, which was
removed by a British naval officer sent to inspect Greater and Less-
er Tunb in light of rumors that Iran intended to establish customs
houses there.
126 chapter 2
(xiii) An Iranian naval visit to Abu Musa in 1951, with naval officers enter-
ing the island’s village and questioning local residents, to which the
British lodged a protest note to the Iranian government.
(xiv) The issuance of a series of letters from the Iranian government to
the British government in 1954 asserting Iran’s ownership of the is-
lands, which led to ultimately unsuccessful negotiations stretching
into 1955 in which a number of possible solutions to the dispute
over the three islands, as well as the contested ownership of Bah-
rain and Sirri, were discussed.
(xv) Various military incursions by Iranian forces on the islands between
1961 and 1971, including the landing of a helicopter on Greater Tunb
in 1961 and the cruising of patrol vessels in the territorial waters of
Greater Tunb on various occasions between 1968 and 1971. The pres-
ence of these Iranian vessels prompted the British government to
order overflights of the area, which in turn led to an Iranian protest
in which it served “notice” on Britain that its ships were under or-
ders to fire on the British planes.
The timing of the last of these incidents coincided with the period (1968–1971)
during which Britain and Iran were engaged in renewed negotiations over
the fate of the islands. These negotiations, which are described in detail in
chapter 9, were most prominently marked by the 1968 announcement by Brit-
ain of its planned departure of forces from the Gulf by the end of 1971, and the
expectation that upon Britain’s departure the various southern Gulf Sheikh-
doms, including among them Sharjah and Ras Al Khaimah, would seek to form
a union as a newly-independent State, as well as the intensified determination
of Iran to obtain possession of the islands once Britain’s protective shield was
removed.
The culminating events of these negotiations occurred at the end of Novem-
ber 1971, on almost precisely the same day as the formal departure of British
forces from the Gulf and the termination of its 1892 Protectorate Treaties with
the Gulf emirates which were to comprise the uae was to take place.118 Thus,
on 30 November 1971 Iran resorted to the actual use of force to seize two of the
islands (the Greater and Lesser Tunbs) unilaterally from the Emirate of Ras Al
Khaimah, and on Abu Musa Iranian forces arrived peacefully and occupied
roughly half of the island – leaving the other half to Sharjah – under the terms
of a Memorandum of Understanding (“mou”) agreed with the Ruler of Sharjah
118 On the Protectorate Treaties with the Emirates and their clauses, see chapter 9.
under the auspices of the British government. Under the mou, each of the
two parties was granted “full jurisdiction” (but conspicuously not “sovereign-
ty”) over a portion of the island, while neither party recognized the s overeign
claim of the other over any part of the island nor relinquished its own claim.
This was set out in the mou’s introductory language, which provided that
“Neither Iran nor Sharjah will give up its claim to Abu Musa nor recognize the
other’s claim.”119 There was considerable pressure brought to bear on the Ruler
of Sharjah to sign this document, both by the British, who were motivated by
diverse considerations, not the least of which was to depart the Gulf without
leaving any territorial conflicts unresolved, and by the Shah of Iran, who open-
ly stated that his country would resort to force to take possession of the island
if the mou were not signed.120
The events leading up to the seizure of the Tunbs and the signing of the mou
over Abu Musa are of course a crucial part of the political and legal context of
the dispute. A number of points are critical. First, the cold war alignment of
States had deeply affected the Gulf region, including the attitude of Britain
and the United States towards the role Iran should play in preserving stabil-
ity in the area. Northcutt Ely, an American who was the lawyer of the Ruler of
Sharjah, was witness to the diplomatic events leading up to the departure of
Britain from the Gulf and the negotiations which took place between Iran and
Britain, along with the Sheikhdom of Sharjah, during that time over the future
of the islands. He described this geopolitical reality as follows:
The British and American governments, I was to discover, although they

considered the Shah’s claim [to the islands] to be preposterous, were not
of a mind to do anything effective to help Sharjah. On one of my visits to
Tehran I had a long conversation with the American Ambassador, Doug-
las MacArthur ii, the son of the general. He gave me a lecture on geopoli-
tics, supplemented by a display of maps. The thrust was that when the
British left the Gulf in a few months, there would be a power vacuum. The
United States was not going to step into Great Britain’s shoes as police-
men of the Gulf. Our government expected that Iran would do so. It was
119 All the documents constituting the mou are published in Patricia L. Toye, ed., The Lower
Gulf Islands: Abu Musa And The Tunbs Dispute (Slough, England: Archive Editions, 1993),
Vol. 6, 488–504, and in Hooshang Amirahmadi, ed., Small Islands, Big Politics. The Tonbs
and Abu Musa in the Gulf (New York: St. Martin’s Press, 1996), 162–175. See chapter 9.
120 See chapter 9 for quotes of the various statements by the Shah and the analysis of the
possible effects of those statements on the validity of the mou.
128 chapter 2
essential to American interests that the Shah be supported in every way

possible, to avoid the Gulf being swallowed by the Russians. The Soviets
had already extended their influence to Iraq at the Gulf’s upper end. On
the far side of the Arabian peninsula, the Russians had taken over the
abandoned British base at Aden, which commanded the entrance to the
Red Sea. Controlling both the Red Sea and the Persian Gulf, the Russians
would then have Saudi Arabia in pincers. Saudi Arabia’s oil was essential
to the West. There was no power other than Iran that could stand be-
tween the Soviets and the Gulf. Abu Musa, situated near the Gulf mouth,
was important strategically. In the wrong hands, it could be like a cork
in the neck of a bottle. Better to have it in the hands of the Shah, even
if he had no right to it, than occupied by communist Arab insurgents.
The Ambassador did not have to point out the bottom line: Sharjah was
expendable. I received the same story from cabinet-level officials of the
Foreign and Commonwealth Office in London. An added twist was the
disclosure that the British had gotten rid of Shaikh Khalid’s [the then
Ruler of Sharjah] predecessor, not because he was wicked, but because of
the discovery that he had given Nasser of Egypt permission to station his
representatives in Sharjah, and Naser was notoriously pro-Russian, anti-
British. The British had refused permission to the Egyptian plane carrying
Nasser’s people to land, and had packed off the offending Ruler to Egypt
the next day.121
Next, the Iranian insistence on securing possession of the islands became even
more assertive as the date of the planned British departure loomed closer. The
Shah of Iran began to use bellicose language in referring to the islands and
Iran’s rights to them. In September 1971, he was quoted as saying that “we need
them (the islands); we shall have them. No power on earth will stop us.”122 In
various internal reports, the British Foreign Office also noted that, both private-
ly and publicly, the Shah had said he would take the islands and that they had
no reason to disbelieve him.123 The Rulers of Sharjah and Ras Al Khaimah were
fully aware of Iran’s intentions in this respect.124 The underlying m
otivation for
121 Northcutt Ely, “Recollections of the Persian Gulf” (December 5, 1985). Accessed Novem-
ber 19, 2015. http://www.redlandsfortnightly.org/papers/persgulf.htm.
122 Quoted in Peter Hellyer, “The Evolution of uae Foreign Policy”, in United Arab Emirates. A
New Perspective, ed. Ibrahim Al Abed and Peter Hellyer (London: Trident Press, 2001), 170.
123 See, e.g., fo 1016/917, 893.
124 Sheikh Khaled bin Mohammed Al Qasimi, then Ruler of Sharjah, explained the circum-
stances leading up to the time of the British departure as follows, “I had spent about two
Iran’s insistence on securing the islands had also become evidently and out-
wardly strategic. In a confidential note of March 1968, the Arabian Department
of the British Foreign Office described this strategic thinking with respect to
the Tunbs:
The Iranian claim to the two Tunb Islands is of long standing, but they
have recently been stressing that their primary interest lies in their stra-
tegic situation dominating the Straits of Hormuz at the entrance to the
Persian Gulf, and the importance of their not falling into hostile Arab
hands when British forces leave the Gulf.125
A similar view was reported to have been expressed by the Iranian ambassa-
dor in London, Abbas Aram, in June 1967 in response to a British suggestion
to submit the dispute over the islands to binding international arbitration:
“Aram told Frank Benchley [the head of the Arabian Department at the British
Foreign Office] a few weeks ago that Iran’s interest in the islands was entirely
strategic: the Iranians could not allow them to fall into the hands of a potential
enemy. They would not bind themselves to accept the outcome of any interna-
tional process for disposing of the dispute, such as international arbitration, in
case the decision went against Iran.”126 In an internal assessment of the Iranian
position made by the British government in May 1968, these same strategic
objectives were emphasized:
The Shah regards it as a part of his role to redress the humiliations in-
flicted on his country during what he calls Persia’s periods of weakness.
He considers that it was only the British presence in the Gulf in support
of the Trucial Rulers which prevented Iranian recovery of the Tunbs and
Abu Musa in 1887 at the same time as Qawásim authority on the Iranian
mainland was abolished and Sirri occupied. He believes that in the past
years collecting documents proving that the island is Arab territory, and that it belongs to
Sharjah. I had asked a team of jurists to prepare legal documents and papers. These were
presented to the Iranian Government. However, the logic of force and threat allowed no
room for reason and legitimate proofs. Several factors contributed to the delicacy of the
situation, combining to form significant pressure: Britain had threatened not to maintain
the status quo on the island; Iran insisted that the island was Iranian, and that they would
seize it by force; unfavorable economic conditions placed Sharjah in an awkward situa-
tion and weakened its position, severely affecting its manoeuvrability; other powers came
to support Iran.” in Al Roken, “Dimensions of the UAE-Iran Dispute,” 193–194.
125 fco 8/55.
126 fco 8/53.
130 chapter 2
we have not considered the problem in the light of political consider-

ations, but have simply stood pat on the legal case of our clients, the Rul-
ers. He has rationalized his intention to regain the Tunbs by arguing that
the islands are necessary to him to ensure the security of maritime traffic
in the Gulf.127
While pressure from Iran to take over the islands increased, the British posi-
tion in the Gulf and its interest in the dispute became far more ambivalent
and pragmatic than it had been when it was confronted with the dispute at
the end of the nineteenth century. Then, as indeed throughout the twentieth
century up to that point, it forcefully defended the ownership rights of the
Qawásim rulers to the islands and assertively challenged Persia’s legal claims.
At the same time, maintaining its own interests and influence in the Gulf,
which it had for many years accomplished partially through its alliances with
and control over the Arab Gulf Sheikhdoms, including those of the Qawásim
rulers, was regarded by Britain as an almost existential necessity for the British
Empire. And it viewed Persia with deep suspicion and as a potential threat.
By the mid to late 1960’s, preparing for its inevitable departure from the Gulf
and the termination of its protectorate treaties, the British perspective on the
islands had radically changed. This can be seen in a Foreign Office note pre-
pared in connection with the granting of an oil concession by the Ruler of Ras
Al Khaimah to a us oil company in 1964 which encompassed the area around
the Tunbs, and which discussed whether Iran would react negatively in light
of its claims to the islands. In that note, the Foreign Office described Britain’s
interests as follows:
We have no interest in the islands. We have no great interest in Ras Al

Khaimah itself. The oil companies now in question are American: their
fortunes do not worry us. We have an obvious interest in avoiding, where
possible, friction with our ally Iran in an area in which she has a di-
rect interest and about the stability of which she is, not unreasonably,
sensitive.128
Another internal assessment of British interests in an agreed resolution of the

dispute over the islands, written in 1968, focused on seeking to ensure stability
127 fco 8/56, Memorandum from the Arabian and Eastern Department of the Foreign Office
entitled “The Persian Gulf Islands”, dated May 21, 1968, 84–85.
128 fo 371/174709, Memorandum by T.F. Benchley entitled “Iranian Claim to the two Tunb
Islands”, dated March 6, 1964, 13–14.
in the Gulf and the promotion of British commercial interests, and finding a
formula for avoiding a confrontation between Iran and the Arabs:
Our objective is stability in the area to ensure security for our invest-
ments and commercial interests, and to prevent Soviet penetration. The
greatest danger to stability is an Arab/Iranian confrontation, whether be-
fore or after our departure. It is therefore greatly to our interest to bring
about a settlement of the questions in dispute, as the basis for a system
of security in the Gulf. Otherwise we may in effect be forced into a po-
litical choice between our economic interests in Iran and those in Arab
territory, the latter collectively being the larger. The difficulty we face is
disposing of three sovereign, though protected, States’ property in the
face of demands in all cases by a fourth State [i.e., Iran] whose claims are
held untenable by all except the claimant.129
The British dilemma in devising and carrying out a strategy for dealing with the
dispute over the islands in a way which appeared to accommodate both Iran
and the concerned Sheikhdoms, for the overriding purpose of protecting Brit-
ish interests, intensified as the date for its departure from the Gulf neared. A
series of recently-declassified correspondence between the British embassy in
Tehran and the Foreign and Commonwealth Office in August and September
1971 illustrates this dilemma in stark terms. Essentially, the British had become
increasingly apprehensive and convinced that the Shah’s threat to “seize the
islands by force if no peaceful settlement of their claim is arranged” was to be
taken seriously.130 Such an eventuality would threaten British interests in vari-
ous ways. Among others, the British feared that such a military confrontation
would destabilize the Gulf by pitting Iran against the Arabs and threatening
the establishment or survival of the uae itself. In one such correspondence, it
was noted that:
Iran refuses to support the formal coalescence of the individual shaikh-

doms into a Union before the Islands problem is settled and has made it
clear that she is ready, if necessary, to obstruct all efforts to achieve the
formal establishment of a Union that includes the two states (Sharjah
and Ras al Khaimah) which own the islands, because Iran claims that a
129 fco 8/56, Memorandum from Sir Paul Gore-Booth to Sir Dennis Wright, dated May 30,
1968, 49.
130 fo 1016/913, Background Paper No. 3 of the Guidance and Information Policy Department
of the fco entitled “The Gulf Islands Claimed by Iran”, dated August 4, 1971, 509, para. 2.
132 chapter 2
settlement will be more difficult to achieve with a Union than with the
two states individually.131
In another correspondence, it was noted that, if a resolution of the dispute

was not achieved, “the Shah could, and probably would, start as he has threat-
ened by sabotaging the Union that we have worked so hard to create… Dubai
at least might succumb to Iranian pressure to leave the Union. The Ruler of
Sharjah might find his head more firmly on the block if he tried to keep Abu
Musa than if he surrendered it. If the Shah could not kill the Union at birth,
he could probably prevent its survival.”132 In light of the hardening position of
Iran, the British feared they would be forced to choose between the Iranian
position (which would “amount to a complete abandonment, for reasons of
demonstrable expediency, of the legal and historical view we are known to
have maintained for over eighty years” and which would “impair our standing
in the Gulf, seriously reduce the chances of our exercising political influence
there in the future, and possibly damage in material ways our interests there
and in the wider Arab world”133), the Arab position (which would lead to Iran’s
exercising what the British referred to as “the stick”, amounting, among other
actions, to “sabotaging the Union”, punishing Britain politically by withdrawing
from cento and refusing “overflying rights for the raf”, a “ban on further arms
contracts”, and a “veto on any new contracts with Britain in the public sector
and on any new British investment”, including in the oil sector) or a neutral
position, which would “gain us little credit with either side; it could jeopardize
our good relations with both.”134
Ultimately, the British government sought to achieve the best of all worlds
by striving for a negotiated settlement which would satisfy both sides, and
which it hoped would avoid its incurring the wrath of the Shah’s “stick” and
instead result in its being rewarded with the Shah’s “carrot”. This “carrot” was
131 Ibid., para. 5.

132 fo 1016/914, Memorandum from P. Ramsbotham (British Ambassador in Tehran) to fco
(Sir Alec Douglas-Home) entitled “Britain, Iran and ‘the Islands’: the Carrot and the Stick”,
dated September 9, 1971.
133 fo 1016/913, Background Paper No. 3 of the Guidance and Information Policy Department
of the fco entitled “The Gulf Islands Claimed by Iran”, dated August 4, 1971, 509, para. 4.
134 fo 1016/913, Background Paper No. 3 of the Guidance and Information Policy Depart-
ment of the fco entitled “The Gulf Islands Claimed by Iran”, dated August 4, 1971, 509;
fo 1016/914, Memorandum from P. Ramsbotham (British Ambassador in Tehran) to fco
described in a September 1971 British government note as encompassing a va-

riety of political and commercial favors which the Shah’s government would
be prepared to grant to Britain and its business interests. On the political and
diplomatic front, Iran would – if it “gains possession of the Islands in the Hor-
muz Strait which she regards as vital to her security, because the Persian Gulf
remains her lifeline” – be prepared to cooperate with Britain in maintaining
peace and security in the Gulf and good relations with its Arab neighbors and
in countering the “Soviet attempts to acquire naval and other facilities” in the
Gulf and the Indian Ocean.135 In the commercial field, where “the real carrot is
to be found”, the Shah was described as prepared “to place much of his defense
expenditure with us”, as well as increasing Britain’s share of Iran’s public sector
projects and oil sector participation. To sum it up, the note stated that:
The carrot then could be a potential doubling, say, of our export figures
… a secure supply of oil for a long term, valuable cooperation in the field
of defence, (and a large measure of dependence on the uk for military
equipment), and a close political cooperation of particular value in the
Persian Gulf area and the Indian Ocean.136
Thus, in handling the dispute over the islands, British interests had become fo-
cused primarily upon achieving something of a “balance” between Iran and the
concerned Emirates by which it hoped to safeguard its commercial interests in
both Iran and the Arab countries, accommodate the sensitivities of its “ally”
Iran and promote security in the Gulf, all the while seeking to maintain British
prestige. Security was, to a large extent, concerned with maritime transport
through the Strait of Hormuz, which it viewed as requiring a strong Iranian
presence in the Gulf and a resolution of the dispute over the islands which
would be satisfactory to all parties, and with respect to the very establishment
and survival of the “Union” of individual shaikhdoms into a federated uae,
without which Gulf security would be jeopardized. Moreover, Britain wished
to achieve these objectives before its official departure from the Gulf, and in a
manner which allowed it to make a “dignified exit”.137 As stated by the British
representative to the un Security Council when debating the hostilities which
135 fo 1016/914, Memorandum from P. Ramsbotham (British Ambassador in Tehran) to fco

136 Ibid.
137 This expression was used in Ely, “Recollections of the Persian Gulf”.
134 chapter 2
arose over the seizure of the islands by Iran almost simultaneously with the
departure of British forces from the Gulf in November 1971:
From the time that the original decision was taken [to depart the Gulf],
and indeed for many years before that, the primary concern of the British
Government has been to ensure that the stability which our presence in
the area had helped to preserve for nearly 150 years would continue after
our departure. As we saw it, there were two important prerequisites if
this aim was to be achieved: … secondly, that we should help to the best
of our ability to promote the settlement of outstanding territorial differ-
ences in the area. The majority of those differences concerned conflicting
claims by the Arab States and Iran to certain islands.138
In pursuing a mutually satisfactory political resolution, Britain’s previous and

emphatic defense of the claims of Sharjah and Ras Al Khaimah to the islands
on the basis that they were legally superior to the Iranian claim played little
role, or indeed no role at all. Instead, the British developed several alternative
proposals for consideration by the parties, all of which were based on political
expediency. A confidential paper prepared by the Foreign Office in May 1968 for
purposes of discussions with the Shah summarized various potential options:
(i) purchase of the islands by Iran; (ii) disposing of ownership of the islands as
part of an “overall package” agreed between Iran and all of the Arab Gulf States
which would draw a “median line” for the whole Gulf, the Iranian side of which
would grant to Iran ownership of all oil resources and islands (including both
of the Tunbs) located therein, and the Arab side of which would do essentially
the same, bringing Abu Musa under the ownership of Sharjah/uae; (iii) a more
limited “median line” which would not deal with the areas of the Gulf between
Iran and Iraq and Kuwait, and which would have the same result on the owner-
ship of the islands (the Tunbs to Iran and Abu Musa to Sharjah/uae); (iv) an
even more limited “median line” only dealing with the areas between Iran, the
Trucial Sheikhdoms and Qatar (again, the same result on ownership of the is-
lands); (v) surrender of all three islands to Iran in exchange for the surrender
of any claim by Iran to the island of Bahrain; (vi) purchase of the Tunbs by Iran
and retention of Abu Musa by Sharjah; (vii) permanent demilitarization of the
islands, with Sharjah and Ras Al Khaimah retaining ownership; (viii) establish-
ment of a “condominium” for each of the islands in which the parties would
138 Security Council Official Records, Twenty-Sixth Year, 1610th Meeting, December 9, 1971,
un Doc. S/PV.1610, 19, para. 223.
share ownership;139 (ix) lease to Iran of an area on one or more of the islands

on which it could establish military bases; (x) third party dispute resolution,
including through arbitration or the International Court of Justice; and (xi) re-
course to the un Security Council or General Assembly under Chapter vi of
the un Charter.140
In the event, the objective of finding a political resolution of the dispute
which was satisfactory to all parties – an effort over which the British govern-
ment labored intensively for several years prior to its departure from the Gulf
in November 1971 – was elusive and the results were decidedly mixed. In Au-
gust 1971, the Luce/Afshar proposals had emerged. These had resulted from a
bilateral negotiation between Britain (represented by Sir William Luce) and
Iran (represented by H.E. Mr. Amir Afshar) and contemplated the arrival of
Iranian forces on the islands during 1971 “at a date to be agreed”, the discrete
withdrawal of the Rulers’ forces and officials from the islands, and the lowering
of their flags, after a period of twelve months, an agreement by the Rulers and
Iran not to “initiate public statements” mentioning the question of sovereignty
over the islands for a period of eighteen months, the signing of a declaration
by the rulers of all of the other sheikhdoms participating in the uae that they
would refrain from doing anything “directed at the alteration of the arrange-
ments”, and the provision of annual aid and financial assistance from Iran to
Sharjah and Ras Al Khaimah. The Shah was quoted as saying that if, follow-
ing the period of eighteen months, the Rulers of Sharjah and Ras Al Khaimah
wished to assert claims of sovereignty, “it would not worry him – nor affect the
aid arrangements”.141
139 Interestingly, the idea of creating a condominium on each of the islands was dismissed
by the British in 1968 “as a probable non-starter”. In considering that idea in 1968, the
Foreign Office had noted that “[e]ven if a condominium were to be formally agreed, its
subsequent administration would seem bound to accentuate rather than relieve tensions
in the area.” fco 8/56, The Iranian Claim to the Tunb Islands and Abu Musa, with refer-
ence also to Siri and Bahrain: Possible Solutions, dated May 21, 1968.
140 fco 8/56, The Iranian Claim to the Tunb Islands and Abu Musa, with reference also to Siri
and Bahrain: Possible Solutions, dated May 21, 1968. Under Chapter vi of the un Charter,
a Member State may request the Security Council to exercise a series of functions in order
to achieve a pacific settlement of “any dispute, the continuance of which is likely to en-
danger the maintenance of international peace and security”. u.n. Charter (1945), Art. 33.
See generally, Benedetto Conforti, The Law and Practice of the United Nations, 3rd rev. ed.
(Leiden/Boston: Martinus Nijhoff Publishers, 2005). See also chapter 10.
141 fo1016/913, Telegram from Ramsbotham (Audience with the Shah), dated September 7,
1971.
136 chapter 2
The following dispatch from the British Embassy in Tehran to the British
Foreign Secretary, Sir Alec Douglas-Home, dated September 9, 1971, reflects the
nature of the Iranian position and the prospects, as gauged by the British, that
the Arab Rulers would accept such a proposal:
As I write, Sir William Luce is visiting the Persian Gulf states to try to per-
suade the Rulers of Sharjah and Ras al-Khaimah to accept a settlement
that will give the Islands of Abu Musa and the Greater and Lesser Tunbs
to Iran. The elements of the proposed settlement have been worked out
in detail between Sir William and the Iranian Ambassador in London,
and Her Majesty’s Government have accepted these, provided they are
accepted by the Rulers – a prospect which Sir William has assessed at
odds less than evens. The consequences for relations between the United
Kingdom and Iran may be critical.
It is the publicly declared Iranian position that the Islands were taken
from Iran by Britain eighty years ago and that, on her withdrawal from
the Gulf, Britain should hand them back to Iran. In private, the Iranians
may appreciate our difficulties in complying with this myth, but their
press – inspired and controlled – continues to proclaim that Iran has no
dispute with the Arabs about the Islands, but only with Britain. The Shah
has declared publicly, (though recently he has left the field to quiet diplo-
macy) that he will exercise his sovereignty and reoccupy the Islands by
force if he does not get them peacefully…
The Shah also repeated, in stronger terms than before, and expanded
upon, his threat to “attack and destroy” the Union of Arab Emirates.142
Reflecting the language of this dispatch, Luce sought to secure the agreement
of the Rulers of Sharjah and Ras Al Khaimah to these arrangements by empha-
sizing that their rejection would result in Iran taking the islands by force and
the Shah taking measures to prevent the formation of the uae. As reported by
Luce, the Rulers’ “choice lay between acceptance of at least these basic princi-
ples, or total loss of the islands through seizure by Iran, and the forfeiting of all
financial aid from Iran.”143 The Ruler of Ras Al Khaimah, Sheikh Saqr, rejected
the proposals out of hand, stating that “the Iranians had no right whatever to
[the Tunbs] and were merely talking the language of superior power”, and that
142 fo 1016/914, Memorandum entitled “Britain, Iran and ‘the Islands’: the Carrot and the
Stick” from P. Ramsbotham (British Ambassador in Tehran) to fco (Sir Alec Douglas-
Home), dated September 9, 1971.
143 fo 1016/913, Confidential telegram (following from Luce), dated September 8, 1971.
“he was being asked to sell the Tunbs for a mere 14 million pounds”. He added
that “it would be better if Iran took the islands and paid nothing.”144 The Ruler
of Sharjah, Sheikh Khalid, took another approach and made a counter-proposal
under which Iranian forces could, for payment of rent, occupy a “delimited
area” on Abu Musa in which they could fly their flag and exercise jurisdiction,
without, however, taking sovereignty or otherwise disturbing Sharjah’s rights
over the island. This counter-proposal, without the requirement that Iran pay
rent for its occupation of Abu Musa, which Luce had persuaded Sheikh Khalid
would “close the door to any further negotiation”, was then conveyed to the
Shah by Luce in early October. In connection with this meeting, the British
foreign secretary instructed Luce to inform Iran that if an agreement could be
reached with respect to Abu Musa, Britain would acquiesce to Iran’s seizure of
the Tunbs after Britain’s withdrawal from the Gulf:
We have always considered that, while we might bring about a solution

that involved the sacrifice of the Tunbs, even without the agreement of
the Ruler, e.g., by withdrawing protection, we should not impose a so-
lution in respect of Abu Musa also. This is because Abu Musa falls on
the Arab side of the southern Gulf median line; the Iranian claim to Abu
Musa is even weaker in law than it is to the Tunbs …145
The Shah’s response to these modified proposals was mildly positive, a lthough
he continued to maintain the right to evict Sharjah’s police and administration
from Abu Musa “after a very short period” (and before the establishment of
the uae) and he also insisted on including a requirement that “the individu-
al Rulers participating in the intended Union would state in writing that the
Union would not be concerned with Sharjah’s claim to Abu Musa and that
this was a matter solely for the Ruler of Sharjah.”146 In the face of British argu-
ments, the first point was dropped from the proposed agreement, although the
Shah indicated that Iran would not allow Sharjah’s police and administration
“to remain forever” (“… one day, whenever it was, they would be sent quietly
back to Sharjah.”).147 As for the pledge to be made by the other rulers of the
uae, although this was broached with them by Luce on his subsequent trip
to the Gulf, there is no evidence that any of those rulers agreed to sign such a
144 defe 24/576, Telegram from Luce dated September 15, 1971.
145 defe 24/756, Secret Note from [Foreign Secretary Douglas-Home] to the Prime Minister,
dated 25 September 1971.
146 fo 1016/915, Telegram from fco to Tehran, dated October 9, 1971, 747.
147 Ibid.
138 chapter 2
document.148 Other arrangements for the island were also agreed by the Shah,
including most significantly the equal division of the revenues derived from
the exploitation of oil resources from the island’s territorial sea, which were
already under exploration through a concession agreement signed between
Sharjah and an American oil company, and a financial assistance package. It
was also agreed that, as part of the final arrangements, neither side would rec-
ognize the claim of sovereignty of the other. With regard to the Tunbs, the Shah
insisted that, in exchange for the concessions he was prepared to accept over
Abu Musa, they “had to go to Iran”, but that it would be prepared to offer an
aid agreement and 49% of the revenues derived from any oil discoveries in the
islands’ territorial waters.149
In putting these proposals to the Ruler of Ras Al Khaimah, Luce sought
to persuade him that as difficult as the “surrender” of the Tunbs would be, it
would “promote the wider interests of the area” and bring needed financial
assistance to Ras Al Khaimah.150 It was, Luce added, also the only way that the
Shah would agree on the compromise over Abu Musa. The Ruler was unmoved
by these arguments, calling the proposal over the Tunbs “not a settlement but
simply a surrender”, and adding that “the Tunbs belonged to Ras al Khaimah
and he was not going to have himself described as the Ruler who gave them
away … for a few million pounds of Iranian aid.”151
In his discussions with the Ruler of Sharjah, Sheikh Khalid, which were pro-
tracted and extended until mid November 1971, Luce emphasized time and
again that the “choice which faced Shaikh Khalid was between having a settle-
ment based on the present proposals or losing his island”, and that “if there
was no peaceful solution to the problem, Iran would seize Abu Musa and Shar-
jah would lose everything”, including “the island, the oil and the prospect of
Iranian financial aid – would the people of Sharjah thank the Ruler for that?”152
Northcutt Ely, the Ruler of Sharjah’s American lawyer who was present at
the Ruler’s final and difficult deliberations on whether to accept the mou re-
lated what he told the Ruler about the reality of the situation facing him:
148 See, e.g., fo 1016/916, Record of Conversation at the Ruler’s Palace, Abu Dhabi, on Thurs-
day October 28, 1971, dated October 29, 1971, 848, para. 1.
149 fo 1016/916, Record of Conversation at the Ruler’s Palace, Ras Al Khaimah, Saturday 30
October 1971.
150 Ibid.
151 Ibid.
152 Record of Conversation at the Ruler’s Palace, Sharjah, 30 October 1971, fo 1016/916.
The Ruler finally asked me: “Mr. Ely, not as my lawyer, but as my friend,
what would you do if you were in my place?” I said I would settle; that
Abu Musa itself was nothing but a pile of rock. What was important was
the oil around it. If the Shah would agree to a fair division of the oil rev-
enues with Sharjah, without demanding that Sharjah cede sovereignty,
the Ruler would be in a position to make his country prosperous. If he
refused, he would lose the island to Iran’s overwhelming force. Neither
the United States nor Great Britain would intervene. There was no likeli-
hood that any Arab country would fight Iran. He and his people would
die proud, but poor.153
Eventually, Britain achieved the signing of an agreement between Iran and

Sharjah over Abu Musa, embodied in a document entitled Memorandum of
Understanding. The mou, a document whose terms are set out on a single
page, was formalized through an exchange of letters between Iran and Sharjah
through the British government, the last of which was dated November 26th,
1971. Under the mou, Iranian forces were allowed to land and take up positions
on the island, with each of Iran and Sharjah being granted what is described
in the document as “full jurisdiction” over their respective designated areas of
the island’s territory. The one-page mou also provided for the equal division of
oil revenues from Abu Musa or the subsoil beneath its territorial sea, the grant
of equal fishing rights of the parties’ nationals in the island’s territorial sea and
a financial assistance agreement from Iran to Sharjah. Significantly, the mou
also included a provision which established that, although both parties would
be granted “full jurisdiction” over part of the island, neither party “will give up
its claim to Abu Musa nor recognise the other’s claim”, thus leaving unresolved
which State was sovereign and allowing both sides to continue to assert their
own sovereignty over the island notwithstanding their sharing of control of
the island.
This reservation of rights was of course expedient, and allowed a face-saving
resolution of the immediate confrontation, but perhaps predictably, the mou
and its legality under international law – in light of the circumstances under
which it was agreed – was to become a source of controversy itself. Moreover,
and independently of the legality of the mou, around 1992 the uae began al-
leging that Iran was increasingly overstepping its rights under the mou and
establishing control over uae access to the island and significantly r estricting
153 Ely, “Recollections of the Persian Gulf”.

140 chapter 2
the ability of the uae to supply its residents on the island, provide building
materials or otherwise develop its designated territory on the island. To pro-
tests by the uae that these restrictions violated the mou and uae sovereignty,
Iran has typically replied that it was willing to discuss any “misunderstand-
ings” between the two parties “with regard to the implementation of the 1971
[mou]”154 although, other than a series of fruitless talks held in 1992 and 1995,
and another attempt in 1999 which never genuinely began as the parties could
not agree on the talks’ agenda, no such discussions ever occurred.155 Indeed,
by 2012, Iran had begun eliminating any mention of the mou in its diplomatic
exchanges concerning the island, leaving its position on the legal effectiveness
of the mou in some doubt and making the legal status of the mou even more
unclear.156
Returning to the events of November 1971, it was only a few days after the
mou was finalized that, on 30 November, Iranian military forces carried out
the Shah’s threat and seized Greater Tunb and Lesser Tunb in a quick and
bloody operation against the opposition of a small detachment of police of-
ficers from the Emirate of Ras Al Khaimah and, simultaneously, arrived on Abu
Musa as arranged under the mou. The Ruler of Ras Al Khaimah immediately
described Iran’s actions as an aggression and a unilateral use of force contrary
to the Charter of the United Nations, and issued a communication to the Unit-
ed Nations, which was transmitted by the Government of Iraq:
This morning Tuesday the 30th November 1971, Iranian troops have in-
vaded the two islands of Tunb and thus violated the brotherly rights of
neighbourliness and transgressed against our historical and national
rights. The small garrison stationed for the defence of the islands and
composed of six policemen valiantly resisted the invasion; four of them
154 See, e.g., Letter dated July 30, 2004 from the Permanent Representative of the Islamic
Republic of Iran to the President of the Security Council of the United Nations, un Doc.
S/2004/617; Letter dated March 16, 2005 from the Chargé d’Affaires a.i. of the Permanent
Mission of the Islamic Republic of Iran to the Secretary-General of the United Nations,
un Doc. S/2005/189; Letter dated April 19, 2012 from the Chargé d’Affaires a.i. of the Per-
manent Mission of the Islamic Republic of Iran to the United Nations addressed to the
President of the Security Council, un Doc. S/2012/241.
155 Mohamed Abdullah Al Roken, “Dimensions of the UAE-Iran Dispute over Three Islands”,
in United Arab Emirates. A New Perspective, ed. Ibrahim Al Abed and Peter Hellyer (Lon-
don: Trident Press, 2001), 196.
156 See, e.g., Letter dated February 28, 2014 from the Permanent Representative of the Islamic
Republic of Iran to the United Nations addressed to the Secretary-General, un Doc.
S/2014/143.
were killed and the other two injured. The two islands of Tunb are and
have always been, since ancient times, an indivisible part of the territory
of Ras Al-Khaima, and their occupation by Iran is a blatant aggression
not only against Ras Al-Khaima alone, but against all the Arab people
in all their countries. We call upon you to take immediate and effective
measures to repulse the aggressors and to unite in support of Arab rights.
We appeal to you to shoulder your full national responsibilities before
God and history. We request you to submit the call to the United Nations,
the Security Council and the Council of the League of Arab States. Await-
ing your speedy reply, we wish you success.157
On the 1st of December 1971, the day after the seizure of the Tunbs and the ar-
rival of Iranian troops on Abu Musa, the protectorate treaties between Britain
and the seven emirates, including Sharjah and Ras Al Khaimah, which were to
make up the newly-established State of the United Arab Emirates, were termi-
nated by mutual agreement of each of the parties concerned. The following
day, the 2nd of December, six of those seven emirates (less Ras Al Khaimah)
promulgated their constitution and declared their independence, with the
highest body of the uae (the Supreme Council) issuing a statement condemn-
ing Iran’s use of force. Thus, the new State was born literally in the midst of this
territorial crisis. Indeed, Ras Al Khaimah conditioned its joining the federation
on the new State setting “in motion effective measures to defend, by all kinds
of means, the islands which have been seized, and the State should adopt and
consider this matter as a cornerstone of its policy.”158 The President of the
newly-established uae, Sheikh Zayed, wrote to the Ruler of Ras Al Khaimah
shortly thereafter stating that the issue of the Tunbs was of utmost concern to
the federation and urging the Ruler to join the new State, a step which he was
formally to take at the beginning of February 1972.159
The Iranian military actions taken in connection with the islands in Novem-
ber 1971 were brought to the un Security Council for debate under Chapter vi
of the un Charter on December 9, 1971 at the initiative of several Arab states,
including Iraq, Algeria, Yemen and Libya.160 Upon its acceptance as a member
157 Letter dated 7 December 1971 from the Permanent Representative of Iraq to the United
Nations addressed to the Secretary-General, un Doc. S/10434.
158 Quoted in Thomas R. Mattair, The Three Occupied uae Islands: The Tunbs and Abu Musa
(Abu Dhabi: Emirates Center for Strategic Studies and Research, 2005), 126.
159 Mattair, Three Occupied uae Islands, 128.
160 Letter dated 3 December 1971 from the Representatives of Algeria, Iraq, the Libyan Arab
Republic and the People’s Democratic Republic of Yemen to the President of the Security
Council, un Doc. S/10409.
142 chapter 2
of the un on December 9, 1971, the uae was invited to participate in that de-
bate, where it argued forcefully that Iran’s actions had constituted a unilateral
use of force and a violation of the un Charter:
This morning in the General Assembly when I spoke on the occasion of

the admission of the United Arab Emirates to membership of the Unit-
ed Nations, I expressed the deep regret felt by the people of the country
which I have the honour to represent and its Government at the action
taken by Iran in forcibly occupying the Arab islands in the Gulf. I said that
we were looking forward to a relationship of friendship and cooperation
with Iran, a neighbour with which we have had long historical and deep
cultural and spiritual ties. The action of the Iranian Government in using
force to settle a territorial dispute arising out of a claim which in our view
is untenable both historically and juridically is not only contrary to the
Charter of the United Nations, but is incompatible with the traditional
friendship that has bound the Arab and the Iranian peoples. I also stated
that the Iranian Government will realize before long that it is far more
important for it to maintain good relations with its neighbours than it is
to take possession of these Arab islands… The representative of Iran, who
is sitting next to me, and whom I had the pleasure of meeting in London
some months ago, has repeated that these islands are Iranian but has not
in our view produced any convincing evidence to prove that claim. And I
am sure that if Iran felt it had strong juridical and historical grounds for
claiming these Islands it would not have hesitated to have recourse to the
International Court of Justice or perhaps to arbitration or to negotiation
with an independent State after its emergence, or even to the United Na-
tions itself. Instead, they insisted on one method of solving this problem,
and that is the unilateral use of force before the emergence of the United
Arab Emirates.161
For its part, Iran steadfastly defended its actions, describing them as an “ex-
ercise of [its] sovereign rights” over territory which “has always been Iranian
territory and, let there be no mistake about it, it will always remain Iranian
territory.”162 In contrast to Britain’s emphatic support for the territorial rights
of Sharjah and Ras Al Khaimah over the islands for almost a hundred years,
PV.1610, 18, paras. 266–272.
162 Ibid., para. 210.
in his remarks addressed to the Security Council during the debate the Brit-
ish representative made no statement whatsoever regarding the legal rights
of the parties to the islands. Indeed, with respect to the Tunbs, he suggested
a sort of neutral defense of Iran’s actions by stating without elaboration that
“[b]oth islands lie near the Iranian shore and have long been claimed by Iran.”
Instead of discussing the issues in connection with international law or territo-
rial rights, he praised the efforts of his government to reach “agreed solutions”,
and the “striking of a balance between the conflicting claims of neighbouring
States, and the taking into account of realities” which would, he stated, “rep-
resent a reasonable and acceptable basis for the future security of the area”.163
He added that “[t]he alternative could well have been disorder and lasting
animosity.”164
Following the debate, no Security Council action was taken so that “the
workings of quiet diplomacy” might take place and “bring about results which
public debate at this stage would fail to achieve.”165 This suggestion, proposed
by the representative of Somalia and adopted without objection by the Secu-
rity Council, also set out the following proviso:
Naturally, should these third-party efforts fail, the Council could, at the
request of the complainants, or by exercising its own discretion should
the situation so demand, resume consideration of the complaint. The
intervening period will enable the Council to study carefully the facts of
the situation as presented to us this afternoon by the representatives.166
Although the uae has taken procedural measures to maintain the dispute as
an item on the Security Council agenda and has repeatedly raised the dispute
over sovereignty of the islands at annual meetings of the un General Assembly
(sporadically up to 1995 and at every such annual meeting since 1996) and in
other fora, including the League of Arab States, the Gulf Cooperation Coun-
cil, and various inter-State and ministerial meetings such as the gcc-eu Joint
Council, neither party has sought formally to reinitiate debate or consideration
of the matter at the Security Council under Chapter vi of the Charter. Despite
the UAE’s repeated calls for Iran to submit the dispute to binding international
arbitration or to the International Court of Justice, it has consistently declined
to even discuss such a possibility.
163 Ibid., para. 230.

164 Ibid.
165 Ibid., paras. 275–281.
166 Ibid., para. 281.
144 chapter 2
The nature and tone of the diplomatic discourse between Iran and the uae
over the islands since 1971 has fundamentally changed very little. A survey of
statements made by each government over the decades since November 1971
– which is summarized in chapter 9 – bears this out, and provides a useful win-
dow into the respective actions the parties have taken in connection with the
islands since that time, as well as the legal positions the two States might be
expected to take if the dispute were ever to be submitted to judicial or arbitral
resolution. To close this chapter, a brief synopsis of the positions taken by the
parties through these diplomatic statements will be set out.
uae Protests since 1971
Having been divested of de facto control of the islands (entirely, in the case
of the Tunbs, and partially in the case of Abu Musa on the basis of the mou)
as a result of the actions taken by Iran in November 1971, a condition which
persists to this day, it is not surprising that since then it has been the uae
which has consistently initiated the diplomatic protests and other exchanges
which have occurred between the parties in relation to the dispute. In these
protests and other communications, the uae has repeatedly (i) asserted the
uae’s sovereignty over the three islands and demanded their return; (ii) char-
acterized the seizure of the islands by Iran as a violation of international law
and, in particular, the un Charter’s prohibition on the threat or use of force;
(iii) called the presence of Iran on the islands an “illegal occupation” by which
Iran seeks to forcibly annex them; (iv) insisted that Iran’s actions in relation
to the islands, including the establishment of civilian infrastructure, “do not
confer any legal rights” on Iran; and (v) sought a resolution of the dispute over
sovereignty through some agreeable dispute resolution process, in particular
through “meaningful negotiations” or by referral of the dispute to the Interna-
tional Court of Justice.
Many of the protests in which the uae has raised these points have grouped
the three islands together, without distinguishing the legal circumstances over
the outright seizure of the Tunbs by Iranian forces from the circumstances
which occurred in relation to Abu Musa, where Iranian forces arrived and oc-
cupied an area of the island on the basis of the mou. Characterizing the sei-
zure and “occupation” of all three islands as a violation of international law in
this way reflects the view that the mou was an invalid instrument, presumably
on the grounds that it was secured under duress, and that therefore the pres-
ence of Iranian forces on Abu Musa is itself illegal. A number of more recent
diplomatic protests lodged by the uae (particularly since 2008) have, however,
addressed the matter of the mou and Abu Musa as a separate and distinguish-
able dispute from that over the Tunbs. In these protests, the uae has recog-
nized that the mou “is still in force”, and rather than asserting that Iran’s very
presence on the island constitutes a violation of international law and uae
sovereignty, demands that, until the dispute over sovereignty is resolved, Iran
conduct itself on the island in compliance with the mou’s terms, including
refraining from “interference in the exercise by the United Arab Emirates of
its jurisdiction over the part of the island of Abu Musa allocated to it under
the 1971 memorandum of understanding.”167 Such statements, when viewed
against earlier statements characterizing the presence of Iran on Abu Musa as
itself an illegal occupation, create some ambiguity over the uae’s position on
the mou, and whether, in the uae’s opinion, it is essentially a valid interna-
tional agreement which Iran has breached or whether it was invalid ab initio
because it was secured under the threat of force.
Whatever the uae’s position on this last point might be, dozens of state-
ments making the various points of protest referenced above have been issued
by the uae since the events of 30 November 1971. These have been made in var-
ious fora and in connection with various events. Other than its initial protest
made before the un Security Council during the debate of 9 December 1971,
and other similar protests – claiming sovereignty over the islands and calling
for their restoration to the uae – lodged with the un in 1972, 1974 and 1980,168
a relatively consistent pattern of protests by the uae began in the 1990s.
These protests and continuing assertions of uae sovereignty over the islands
have typically been lodged in the following circumstances: (i) in the formal
167 Letter dated April 21, 2014 from the Permanent Representative of the United Arab Emir-
ates to the United Nations addressed to the Secretary-General, un Doc. S/2012/234.
168 In 1980, the uae wrote to the u.n. Secretary General in reaction to a letter from Iran set-
ting out its position on the islands, reaffirming the uae’s position. In that letter, dated 6
August 1980, from the Minister of State for Foreign Affairs of the United Arab Emirates to
the Secretary-General, un Doc. A/35/399 and S/14111, Annex, the uae stated that “Since
its independence on 2 December 1971, the United Arab Emirates has pursued a sensible
and prudent course of action in seeking legitimate political means for the settlement of
its problems with neighbouring States… Unfortunately, the letter of the Iranian Minister
for Foreign Affairs leaves no scope for this course of action, since it attempts to cover the
military occupation of those islands by the Shah’s forces towards the end of 1971 with the
cloak of legitimacy… Consequently, the Government of the United Arab Emirates finds
itself obliged to re-emphasize its firm attachment to those islands, which form an integral
part of the territory of our State whose sovereign rights thereover are indisputable and
unimpeachable, and to reaffirm its readiness to furnish substantive proof to that effect.”.
146 chapter 2
s tatement of the uae before the un General Assembly at its annual meeting;169
(ii) in an annual request made to the un Secretary General that the dispute
over the islands remain as a matter of which the un Security Council is seized;
(iii) in notes verbales and other forms of protest transmitted to the Iranian
government, and also lodged with the un, in which the uae formally protests
specific acts of presumed sovereignty taken by Iran on one or another of the
islands;170 and (iv) in formal statements regularly issued on behalf of the uae
169 An example of such a statement is that made by the uae at the u.n. General Assembly
meeting of 1995, which included the following language, focusing on what it described as
Iran’s illegal use of force in occupying the islands and re-emphasizing that this occupa-
tion and Iran’s attempted imposition of a fait accompli by creating “facts on the ground”
of the islands would not change their legal status: “I should like to comment on the state-
ment made by the representative of the Islamic Republic of Iran regarding the Iranian
occupation of three Arab islands – Greater Tunb, Lesser Tunb and Abu Moussa– which
were part of the United Arab Emirates but were occupied by the Islamic Republic of Iran
in 1971. My delegation regrets Iran’s repeated refusal of all the Emirates’ peace initiatives
which called upon the parties to resort to bilateral negotiations or to have recourse to the
International Court of Justice in order to settle the dispute. Since the very beginning of
Iran’s occupation of the three islands, the United Arab Emirates has continued to voice
its rejection of that occupation and to call for putting an end to it in the interests of good-
neighbourliness and confidence-building between the two countries, in consonance
with the decisions and resolutions of the Organization of the Islamic Conference, the
principles of the United Nations Charter and the rules of international law. Despite this
peaceful approach, the Islamic Republic of Iran persists in adopting measures that aim at
entrenching its military and civilian occupation of the three islands. More disappointing
still is Iran’s persistence in trying to divert all efforts towards side issues that have nothing
whatsoever to do with the issue of putting an end to its occupation. The aim, of course,
is to impose a fait accompli policy that flies in the face of the international community,
which does not accept the occupation of the territory of others by force. By the same
token we should like to reaffirm that, under the established rules of international law,
Iran’s occupation of the three islands does not in any way change their legal status and, no
matter how long it may last, it will not give the occupying power any jurisdiction or confer
upon it any sovereignty. The facts on the ground and the constants of history which are
amply documented under our hand rebut the illegal claims of the Iranian Government.”
See General Assembly, 50th Session, 19th Plenary Session, October 4, 1995, un Doc. A/50/
PV.19, 21.
170 A very recent example of the continuing diplomatic back-and-forth between Iran and the
uae, which arose out of an incident reported in the Iranian press in late 2014 in which the
Iranian flag was reportedly hoisted over the area of Abu Musa subject to the full jurisdic-
tion of the uae under the mou and the swift protest against this act which was raised
by the government of the uae before the United Nations Secretary General, further il-
lustrates the dead-lock reached by the parties in relation to the dispute. According to the
by the Gulf Cooperation Council (gcc), the League of Arab States and other
regional Arab groupings. In addition to these protests and other statements,
the uae has pursued the issuance of declarations by other States or multilat-
eral groupings reflecting their support for the position that the dispute over
sovereignty to the islands should be resolved either through direct negotia-
tions between the parties or by referring the matter to the icj. Thus, for ex-
ample, the annual joint ministerial meeting between the European Union and
the gcc has routinely issued such a statement as part of its agreed meeting
communique.171
Iran’s Reply
In responding to the uae’s continuous stream of protests lodged with the un

since the events of November 1971, Iran has articulated its position on the dis-
pute over the islands in a succinct and fairly consistent manner. The principal
points asserted by Iran in its responses are: (i) the islands have “been through-
out history an integral part of Iran”;172 (ii) the only time in history that Iranian
sovereignty and administration of the islands were “temporarily interrupted”
was “during the period that the British colonial Power occupied the islands
uae note of protest, the raising of the flag constituted an illegal act and it again called on
Iran to resolve the dispute over sovereignty to all three of the islands through negotiations
or, failing that approach, through the International Court of Justice. (See letter dated 14
July 2014 from the Permanent Representative of the United Arab Emirates to the United
Nations addressed to the Secretary-General, u.n. Doc S/2014/496). Iran predictably re-
sponded to this protest by rejecting even the existence of a dispute over sovereignty to the
islands, failing to reference the mou and calling the uae protest an “interference in
the internal affairs of Iran”. See letter dated 25 July 2014 from the Chargé d’Affaires a.i. of
the Permanent Representative of the Islamic Republic of Iran to the United Nations ad-
dressed to the Secretary-General, S/2014/549.
171 See, e.g., European Union (eu)-Gulf Cooperation Council (gcc) Joint Council and Minis-
terial Meeting, Co-Chair’s Statement, 23rd gcc-eu Joint Council and Ministerial Meeting,
Manama, June 30, 2013 (“The Ministers reiterated their concern at the lack of progress to-
wards resolving the dispute between the United Arab Emirates and the Islamic Republic
of Iran over the three islands of Abu Musa, Lesser Tunb and Greater Tunb. They reiterated
their support for a peaceful settlement of this dispute in accordance with international
law, either through direct negotiations between the parties or by referring the matter to
the International Court of Justice.”).
172 Annex to Letter dated 6 June 1980 from the Deputy Permanent Representative of Iran to
the United Nations addressed to the Secretary-General, un Doc. S/13987.
148 chapter 2
by force”,173 referring to the period from 1887 (or 1904) until November 1971;
(iii) Iran’s seizure of the Tunbs in 1971 was “nothing but reassertion of Iran’s
sovereignty over part of her territories”174 following Britain’s withdrawal of
forces from the Gulf, and thus was an exercise of Iran’s “rightful authority over
the islands”;175 (iv) Iran’s presence on Abu Musa since 1971 has always been
“in accordance with”176 the mou, an agreement which was must be consid-
ered valid as it was “met with the approval and satisfaction of Sharjah”;177 (v)
neither the circumstances related to the Tunbs nor those related to Abu Musa
may therefore be described as a “military occupation”178 or a violation of inter-
national law; (vi) Iran is prepared to “resolve any misunderstandings between
Iran and the United Arab Emirates [concerning Abu Musa] through bilateral
dialogue and negotiations on the basis of the existing agreements”, that is the
mou;179 and (vii) as the islands “belong to Iran”, it is unwilling “to discuss or
compromise a part of her territory with another country”.180 Notwithstand-
ing Iran’s repeated willingness over the course of many years to discuss with
the uae any “misunderstandings” over the implementation of the mou,181
173 Letter dated 26 November 1980 from the Chargé d’Affaires of the Permanent Mission of
Iran to the United Nations addressed to the Secretary-General, un Doc. S/14274.
174 Annex to Letter dated 6 June 1980 from the Deputy Permanent Representative of Iran to
the United Nations addressed to the Secretary-General, un Doc. S/13987.
175 Letter dated 7 August 1972 from the representative of Iran to the President of the Security
176 Letter dated 1 October 1996 from the Permanent Representative of the Islamic Republic of
Iran to the United Nations addressed to the Secretary-General, un Doc. S/1996/818.
177 un Doc. S/PV, 1610, para. 208.
178 Letter dated 7 August 1972 from the representative of Iran to the President of the Security
179 Letter dated 1 October 1996 from the Permanent Representative of the Islamic Republic of
Iran to the United Nations addressed to the Secretary-General, un Doc. S/1996/818.
180 Letter dated 26 November 1980 from the Chargé d’Affaires of the Permanent Mission of
Iran to the United Nations addressed to the Secretary-General, un Doc. S/14274.
181 See, e.g., letter dated 8 June 2006 from the Permanent Representative of the Islamic
Republic of Iran to the United Nations addressed to the Secretary-General, un Doc.
S/2006/381 (“I have the honour to state that the Islamic Republic of Iran categorically
rejects the baseless claims of the United Arab Emirates regarding the Iranian islands of
Abu-Musa, the Greater Tunb and the Lesser Tunb and reiterates that these islands are in-
tegral and eternal parts of Iranian territory and the contents of the annex of the said letter
regarding these Iranian islands are totally baseless and void of any legal value. The Islamic
Republic of Iran continues to believe that continuation of positive and constructive ne-
gotiations between the Iranian Government and the relevant officials of the United Arab
Emirates will lead to the expansion of bilateral relations between the two countries in
references to that document began to be phased out of Iranian diplomatic ex-

changes in 2012, leaving it unclear whether Iran has actively decided to shun
and treat the mou as ineffective. This is a topic dealt with in chapter 9.
The written statements in which Iran has made the various points refer-
enced above are almost invariably in direct response to protests and other
statements by the uae which have been lodged with the un, and as such the
Iranian statements are themselves typically directed to and lodged with the
un.182
The legal and factual viability of the parties’ respective positions are ana-
lyzed in chapters 4 through 9.
various fields and will help to remove any misunderstanding between the two countries
with regard to the implementation of the 1971 memorandum of understanding between
the Islamic Republic of Iran and Sharja about the Iranian island of Abu-Musa.”).
182 See chapter 9 for a general summary and discussion of the protests and diplomatic state-
ments issued by the uae and Iran following the events of November 1971.
chapter 3
Modes of Acquisition and Effective Control

of Territory
As may be appreciated from the historical review of the sovereignty dispute

over the disputed islands, a key component of determining which State is
the legal sovereign of any disputed territory (including these islands) lies in
analyzing the evidence of possession and control over that territory under the
modes of acquisition of territory under international law. Thus, this chapter
will provide a short survey of the modes of acquisition of territory under
international law and the main concepts that are relevant to resolving ter-
ritorial disputes, including the concepts of the “critical date”, “intertemporal
law” and “effectivités”, among others. Given that international law relating to
territory has been the subject of extensive treatment in the literature and in
international arbitral and judicial decisions, the aim of this chapter is only to
survey this wide-ranging literature with a view to facilitating the analysis of the
territorial dispute between Iran and the uae over the islands set out in other
chapters of this book. The concepts dealt with in this chapter will then be ap-
plied, where relevant, to the various historical events and evidence of posses-
sion of the islands in subsequent chapters.
General Rules under International Law
Territory is one of the constituent elements of a State under international law

and State territory as such is defined as that “portion of the globe which is
subjected to the sovereignty of a State.”1 Thus, when discussing the “modes
of acquisition of territory” under international law, what is really at issue “is
not merely territory in the physical sense but State sovereignty in respect of
territory.”2
Five modes of acquisition of territory have been traditionally identified
under international law, mostly derived by analogy from Roman Law rules
1 Robert Jennings and Arthur Watts, Oppenheim’s International Law, 9th ed. (Oxford: Oxford
University Press, 1996), 563.
2 Robert Jennings, The Acquisition of Territory in International Law (Manchester: Manchester

Modes of Acquisition and Effective Control of Territory 151
relating to the acquisition of land by private parties.3 These five modes are
cession, effective occupation, accretion, conquest or subjugation and prescrip-
tion.4 Since the beginning of the twentieth century, the increasing limits set
by international law on the rights of States to go to war resulted in conquest
no longer being a valid mode of acquiring sovereignty over territory in inter-
national law.5 Nevertheless, the study of conquest as a method of acquiring
territory is still relevant to modern international law given that, by virtue of
the principle of intertemporal law, the law that must be applied to analyze an
event is the law contemporary with the facts and not the law at the time the
dispute falls to be adjudicated.
While the study of the modes of acquisition of territory is traditionally
divided into the five categories mentioned above, it must be noted that in
practice the issue of territorial sovereignty is complex and cannot usually be
ascribed to any single mode of acquisition. Moreover, international tribunals
have not always referred to these classic modes of acquisition within fixed
compartments.6
3 Ibid., 3.
4 Jennings and Watts, Oppenheim’s International Law, 679; Marcelo Kohen and Mamadou
Hébié, “Territory, Acquisition”, in Max Planck Encyclopedia of Public International Law, On-
line ed., ed. Rüdiger Wolfrum, para. 7. Roman law, from which much of the theory of acquisi-
tion of territory under international law is drawn, also recognized “adjudication” as a mode
of acquisition of territory, i.e., the determination of a territorial dispute by a court. However,
this has not been recognized by international law doctrine as constituting a mode of acquir-
ing territory. Hugh Thirlway, The Law and Procedure of the International Court of Justice: Fifty
Years of Jurisprudence (Oxford: Oxford University Press, 2013), Vol. 2, 1437.
5 See infra notes 45–52 and accompanying text, discussing the evolution of the limits set by
international law on the rights of States to go to war beginning with the establishment of the
League of Nations, then the 1928 Kellogg-Briand Pact, the 1932 Stimson doctrine and culmi-
nating with Article 2(4) of the un Charter.
6 James Crawford, Brownlie’s Principles of Public International Law, 8th ed. (Oxford: Oxford
University Press 2012), 221; Malcolm Shaw, “Title to Territory”, Netherlands Yearbook of
I nternational Law 13 (1982): 61–90, 80; D.H.N. Johnson, “Consolidation as a Root of Title in
International Law”, Cambridge Law Journal 13(2) (1955): 215–225, 217 (“Whereas international
tribunals might be expected to indicate under which of these various heads they are award-
ing territory to State A rather than to State B, in fact they rarely do so. So much so that it is
not unknown for a discussion to take place as to the appropriate head under which certain
awards should be classified.”). See also Jennings, Acquisition of Territory, 23 (“[T]he d ifferences
between [occupation and prescription] must frequently be blurred when they are seen in the
context of the facts or allegations of a particular case, and for the purposes of decisions in a
particular case, the result may be the same whether an existing and established sovereignty
was originally grounded in an occupation, or has developed by reason of immemorial
152 chapter 3
A corollary of acquiring territory by one State under any of the modes of

acquisition of territory (except in certain cases occupation of terra nullius), is
the corresponding loss of territory by another State. Thus, each of the modes of
losing territory corresponds to one of the five methods of acquiring territory:
i.e., cession, subjugation, prescription, operation of nature (which corresponds
to accretion as a method of acquiring territory) and dereliction or abandon-
ment (which corresponds to occupation as a mode of acquiring territory).7 As
these modes of losing territory are all a consequence of the modes of acquisi-
tion of territory, we will deal with the details of that process when address-
ing the modes of acquisition of territory themselves. In addition to these five
modes of losing territory, Oppenheim cites a sixth one, revolt, which does not
have a corresponding mode of acquisition.8 This need not detain us as revolt
followed by secession is not relevant for the dispute over the islands.9
The notion of “title to territory” rather than “mode of acquisition of ter-
ritory” is used in the more modern doctrine under international law.10 Title
is “a c omposite proposition, containing within itself both legal and factual
elements. It relates to the conditions necessary in law for a change in the
international legal status of territory.”11 As indicated by the icj in the Frontier
Dispute (Burkina Faso/Mali) case, title can refer both to the source of a right or
the proof of it.12
As to the different modes or titles to territory, a distinction is usually made
between original and derivative titles, “according to whether the title they
give is derived from the title of a prior owner-state or not.”13 Of the five titles
mentioned, cession is the only derivative title and the rest are all original.
possession or an adverse possession. It is not surprising, therefore, if tribunals do not

always indicate very clearly on what ground they are proceeding.”).
7 Jennings and Watts, Oppenheim’s International Law, 716–717.
8 Ibid.
9 As examples of revolt as a mode of losing territory we can refer to the secession of the
South American States from Spain in the early nineteenth century or of Brazil from
Portugal in 1822. Jennings and Watts, Oppenheim’s International Law, 717.
10 Kohen and Hébié, “Territory, Acquisition”, para. 3.
11 Malcolm Shaw, “Introduction: The International Law of Territory: An Overview”, in Title
to Territory, ed. Malcolm Shaw (Aldershot, Hants, England: Ashgate/Dartmouth, 2005),
xiii. See also Kohen and Hébié, “Territory, Acquisition”, para. 3 (It “refers generally to the
acts or facts that constitute the legal foundation for the establishment of a right over
territory”).
12 Frontier Dispute (Burkina Faso/Mali), icj Reports 1986, 554, 564 (“[T]he concept of title
may also, and more generally, comprehend both any evidence which may establish
the existence of a right, and the actual source of that right.”). See also Land, Island and
Maritime Frontier (El Salvador/ Honduras: (intervening)), icj Reports 1992, 351, 388.
13 Jennings and Watts, Oppenheim’s International Law, 679.
However, this classification does not seem to have any practical relevance, oth-
er than the application of the principle of nemo plus juris to derivative titles,
discussed below.14
The following paragraphs will provide a short explanation of each of the
five traditional modes of acquisition of territory and some of the problems
arising from some of them will be expanded upon in the sections that follow,
highlighting any reference to the relevant case law.
Accretion
Accretion concerns the increase of land through new formations, for example,
when an island rises within the maritime belt.15 The new formations can also
be artificial, such as embankments and dykes.16 Accretion is of little practi-
cal importance in the context of disputes over sovereignty to territory17 and,
moreover, has no relevance to the dispute over the three islands. Accordingly,
no further discussion of this mode of acquisition will be set out here.
Cession
As explained in the 9th edition of Oppenheim’s International Law, “[c]ession
of state territory is the transfer of sovereignty over state territory by the
owner-state to another state.”18 It is important to note that as a derivative
title to s overeignty, the principle of nemo plus juris transferre potest quam ipse
h abet (no one can transfer a better title than it already has) is paramount and
thus, the validity of the ceded title will depend on the validity of the title of
the ceding State.19 A particular application of this principle is found in the
Island of Palmas case, where the United States relied on the Treaty of Paris of
1898 transferring to it all the rights of sovereignty which Spain possessed in a
certain region to establish its title to the island of Palmas.20 However, the arbi-
trator found that the island was not included in the ceded territories and thus,
that “Spain could not transfer more rights than she herself possessed.”21
The only way in which a cession can occur is through agreement between
the ceding and the acquiring State and, in situations where the cession is part
14 Ibid., 679–708. See infra note 19 and accompanying text.

16 Ibid.
17 Cf. Jennings, Acquisition of Territory, 19.
19 Jennings, Acquisition of Territory, 16.
20 Ibid.
21 Island of Palmas case (Netherlands/United States of America), Award of April 4, 1928
riaa 2 (1928), 842.
154 chapter 3
of a peace agreement after an armed conflict, other States usually participate.22

In fact, treaties of cession have often been imposed by force of arms at the end
of an armed conflict but these “imposed” treaties are now subject to the rule
in article 52 of the Vienna Convention on the Law of Treaties (the “vclt”) and
would be void if procured by the threat or use of force.23
Occupation
A widely accepted definition of occupation is set out in the 9th edition of
Oppenheim’s International Law: “Occupation is the act of appropriation by a
state by which it intentionally acquires sovereignty over such territory as is
at the time not under the sovereignty of another state.”24 As will be discussed
below, the question whether any or all of the islands constituted terra nullius,
or territory not under the sovereignty of any State, at particular moments
in time, and the legal consequence of such a determination, figure into the
analysis over their rightful sovereign.
As evidenced from this definition, if occupation does not take place by and
for a State and in territory not subject to the jurisdiction of any other State,
then it would not be enough for the purposes of establishing sovereignty over
territory. Thus, private individuals affirming proprietary rights over territory
not occupied by any State will only lead to acquisition of territory if performed
in the service of a State or if the State later acknowledges the individual’s act
as its own by ratifying it.25
In relation to the requirement that the territory to be occupied not be sub-
ject to the sovereignty of any other State, i.e., for it to be terra nullius (territory
belonging to no one), this includes uninhabited territory or territory inhab-
ited by a group of persons not considered as a State or not forming themselves

23 Ibid., 681. See chapter 9, for an analysis of the mou between Iran and Sharjah under
article 52 of the vclt.
24 Jennings and Watts, Oppenheim’s International Law, 686. See also Jennings, Acquisition
of Territory, 20; Legal Status of Eastern Greenland, pcij Ser A/B No. 53 (1933), 45–46, 63
(“a claim to sovereignty based not upon some particular act or title such as a treaty of
cession but merely upon continued display of authority, involves two elements each
of which must be shown to exist: the intention and will to act as sovereign, and some
actual exercise or display of such authority”); Territorial sovereignty and Scope of Dispute
(Eritrea/Yemen), Award of October 9, 1998, riaa 22 (1998) 209, para. 239 (“The modern
international law of the acquisition (or attribution) of territory generally requires that
there be: an intentional display of power and authority over the territory, by the exercise
of jurisdiction or State functions, on a continuous and peaceful basis.”).
into a State exercising sovereignty over that territory.26 Natives living under
tribal organization would not have normally been regarded as a State for this
purpose up until at least the beginning of the twentieth century,27 although
the icj in the Western Sahara Advisory Opinion expressly stated that as of the
second half of the nineteenth century “territories inhabited by tribes or people
having a social and political organization were not regarded as terrae nullius.”28
Thus, in the case of such territories, the acquisition of sovereignty is not by
occupation of terra nullius but through agreements with local rulers thus
constituting an actual cession. The full relevant quote of the Western Sahara
Advisory Opinion where the Court makes this distinction is as follows:
Whatever differences of opinion there may have been among jurists,

the State practice of the relevant period [second half of the nineteenth
century] indicates that territories inhabited by tribes or peoples having
a social and political organization were not regarded as terrae nullius. It
shows that in the case of such territories the acquisition of sovereignty
was not generally considered as effected unilaterally through “occupa-
tion” of terra nullius by original title but through agreements concluded
with local rulers. On occasion, it is true, the word “occupation” was used
in a non-technical sense denoting simply acquisition of sovereignty;
but that did not signify that the acquisition of sovereignty through such
agreements with authorities of the country was regarded as an “occupa-
tion” of a “terra nullius” in the proper sense of these terms. On the con-
trary, such agreements with local rulers, whether or not considered as an
actual “cession” of the territory, were regarded as derivative roots of title,
and not original titles obtained by occupation of terrae nullius.
In the present instance, the information furnished to the Court shows
that at the time of colonization Western Sahara was inhabited by peo-
ples which, if nomadic, were socially and politically organized in tribes
and under chiefs competent to represent them. It also shows that, in
colonizing Western Sahara, Spain did not proceed on the basis that it was
establishing its sovereignty over terrae nullius.29
26 Ibid., 687.
27 Jennings, Acquisition of Territory, 20. See also Shaw, “Introduction”, xv (“[A]ccordingly,
organized groups of peoples on other continents (and in particular in Africa) who did not
conform to the European statal model were regarded as having no sovereign rights over
their territories and thus no sovereign title. Such peoples were merely in factual occupa-
tion of their lands.”).
28 Western Sahara, Advisory Opinion, icj Reports 1975, 12, para. 80.
29 Ibid., paras. 80–81.
156 chapter 3
In order to achieve the acquisition of sovereignty over territory that is terra

nullius, occupation must be “effective”, i.e., real as opposed to fictitious.30 The
elements that constitute “effective occupation” are possession and admin-
istration. As for “possession”, it includes both the physical possession of the
territory (corpus) (the modes of which will depend on the characteristics of
the territory in question, with actual settlement not being necessary in remote
areas such as rocky islets) and the intention of acquiring sovereignty over it
(animus) (usually in the form of formal acts which evince that the possessor
intends to keep the newly occupied territory under its sovereignty).31 Regard-
ing “administration”, this entails the exercise of acts that demonstrate that the
possessor intends to govern the territory it has just occupied. If subsequent
acts of administration do not follow (with these acts also in line with the type
of territory at hand), then no effective occupation will be configured and thus
no sovereignty acquired over terra nullius.32
Coupled with this is the role of discovery in relation to the acquisition
of territory and its relationship to effective occupation. In the fifteenth and
sixteenth centuries, discovery of terra nullius may have conferred a complete
title but even then, the consensus was that such discovery gave no more than
an inchoate or incomplete title which had to be followed by an effective act
of appropriation within a reasonable time.33 Grotius and Gryphiander writ-
ing in the early seventeenth century made clear that discovery alone was not
sufficient to found title but that actual possession was necessary.34

31 Ibid., 689.
32 Ibid.
33 Crawford, Brownlie’s Principles, 223; Shaw, “Introduction”, xv; Jennings and Watts, Oppen-
heim’s International Law, 689–690. See also Dr. Friedrich August Freiherr von Der Heydte,
“Discovery, Symbolic Annexation and Virtual Effectiveness in International Law”, Ameri-
can Journal of International Law 29 (1935): 448–471, 452, commenting on the period of
discovery between the years 1450–1550 and stating: “At no time was the fact of discovery
alone regarded as capable of granting more than the right to later appropriation.”
34 Hugo Grotius, De Jure Praedae Commentarius Commentary on the Law of Prize and B ooty.
Translated by Gladys L. Williams (Indianapolis: Liberty Fund, 2006), 306–307. (“For
discovery consists, not in perceiving a thing with the eye, but in actual seizure[.] …
[N]atural reason itself, the express statements of the law, and their interpretation by
men of considerable learning, all clearly indicate that discovery suffices to create a title
to ownership only when possession is an accompanying factor.”). Goebel indicates that
Gryphiander sets out three requisites for acquiring title by discovery: “First, there must be
the intent to acquire for one-self (animus sibi habendi); second, the corporal apprehen-
sion of the island (corporalis apprehension); third, the object discovered must be nullius,
otherwise no rights are acquired.” Julius Goebel, The Struggle for the Falkland Islands
It must be highlighted that “effective occupation” was not a requirement

nder international law until at least the eighteenth century or even the nine-
u
teenth century according to some scholars.35
As to the degree of effectiveness of occupation necessary to establish sover-
eignty over a certain territory, account should be had of competing claims of
other States.36
The interplay between discovery, effective possession and competing claims
can be seen both in the Island of Palmas and Clipperton Island arbitrations. In
the first case, the United States relied on title to the island based on Spanish
discovery in the sixteenth century and later cession of all of Spain’s territorial
rights to the United States by the 1898 Treaty of Paris, whereas the Dutch claim
rested on the exercise of sovereignty over the island over a long period of time.
The sole arbitrator Max Huber held that because discovery could only give rise
to an inchoate or incomplete title, it had to be “completed within a reasonable
period by the effective occupation of the region claimed to be discovered” and
in the case there was absence of such a completion by Spain.37
The Clipperton Island case involved the claims of France and Mexico to an
uninhabited island in the Pacific Ocean. France based its title on occupation
of terra nullius in 1858 by having proclaimed the intention to consider the
island as its own through diplomatic means and having taken possession in
an effective way considering the characteristics of the territory. Mexico relied
on the discovery of the island in the eighteenth century by the Spanish and
(1927; reprint, New Haven and London: Yale University Press, 1982), 117 (citing to Gryphi-
ander, Tractatus de Insulis (1623)).
35 Jennings and Watts, Oppenheim’s International Law, 689 (“[I]t was not until the 18th cen-
tury that the writers on international law demanded effective occupation, and not until
the 19th century that the practice of the states fully accorded with this postulate.”); Shaw,
“Introduction”, xv (“[T]he key to sovereignty as from the nineteenth century at least, and
irrespective of earlier practice, was the effective occupation of the territory in question.”);
Island of Palmas case, 845–846 (“International law in the 19th century, having regard to
the fact that most parts of the globe were under the sovereignty of States members of the
community of nations, and that territories without a master had become relatively few,
took account of a tendency already existing and especially developed since the middle
of the 18th century, and laid down the principle that occupation, to constitute a claim to
territorial sovereignty, must be effective, that is, offer certain guarantees to other States
and their nationals.”).
36 Jennings and Watts, Oppenheim’s International Law, 691. See Legal Status of Eastern Green-
land, 46 (“Another circumstance which must be taken into account by any tribunal which
has to adjudicate upon a claim to sovereignty over a particular territory, is the extent to
which the sovereignty is also claimed by some other Power.”).
37 Island of Palmas case, 846.
158 chapter 3
then Mexico being the successor State to Spain by virtue of its independence
from it in 1836. The King of Italy ruling as arbitrator in the case held that, even
if the discovery by Spain had been proved (which was not the case), there was
no proof that Spain had actually exercised its right to incorporate the island as
its possession. This meant that in 1858 when France proclaimed its sovereignty,
the island was terra nullius and susceptible of effective occupation.38 On this
latter point the King highlighted the importance of actual taking of possession
and acknowledged that effective possession will vary according to the type of
territory at stake.39
Corresponding with occupation as a mode of acquisition of territory is
dereliction, abandonment or relinquishment as a mode of losing territory.40 In
order for a territory to be considered abandoned, there must be actual aban-
donment (which corresponds to the physical element in occupation, or corpus)
and intention of giving up sovereignty over the territory (which corresponds
to the subjective element of occupation or animus). Mere abandonment alone
does not entail relinquishment as long as it can be presumed that the sover-
eign has the intention and ability to retake possession of the territory.41 It is
only when both elements are present that the territory becomes terra nullius
and is thus subject to the occupation of another State. However, in practice,
when a State occupies territory that was previously occupied by another State
38 Arbitral Award on The Subject of the Difference Relative to the Sovereignty over Clipperton
Island, Award of January 29, 1931, ajil 26 (1932), 390, 392–393.
39 Ibid., 393–394 (“It is beyond doubt that by immemorial usage having the force of law,
besides the animus occupandi, the actual, and not the nominal, taking of possession is a
necessary condition of occupation. This taking of possession consists in the act, or series
of acts, by which the occupying state reduces to its possession the territory in question
and takes steps to exercise exclusive authority there. Strictly speaking, and in ordinary
cases, that only takes place when the state establishes in the territory itself an organi-
zation capable of making its laws respected. But this step is, properly speaking, but a
means of procedure to the taking of possession, and, therefore, is not identical with the
latter. There may also be cases where it is unnecessary to have recourse to this method.
Thus, if a territory, by virtue of the fact that it was completely uninhabited, is, from the
first moment when the occupying state makes its appearance there, at the absolute and
undisputed disposition of that state, from that moment the taking of possession must be
considered as accomplished, and the occupation is thereby completed.”).
41 Ibid., 717. In the Clipperton Island case, the King of Italy when awarding the island to
France also held: “There is no reason to suppose that France has subsequently lost her
right by derelictio, since she never had the animus of abandoning the island, and the fact
that she has not exercised her authority there in a positive manner does not imply the
forfeiture of an acquisition already definitively perfected.” Clipperton Island case, 394.
which is deemed to have abandoned it, the former owner protests and tries to
prevent the new occupier from acquiring title to the territory.42
Subjugation or Conquest
As explained by the 9th edition of Oppenheim’s International Law:
Subjugation, that is the acquisition of territory by conquest followed by

annexation, and often called title by conquest, had to be accepted into
the scheme of modes of acquisition of title to territorial sovereignty in
the period when the making of war was recognised as a sovereign right,
and war was not illegal.43
While conquest had to be followed by annexation of the territory by the con-

queror State once hostilities had come to an end, the imposition of treaties of
cession by force were more often used than mere subjugation itself.44
The increasing limits set by international law on the right of States to go to
war at the beginning of the twentieth century (i.e., the establishment of the
League of Nations,45 then the 1928 Kellogg-Briand Pact46 and the 1932 Stimson
doctrine47) meant that war waged for the purpose of acquisition of territory

43 Ibid., 698.
44 Ibid., 699. However, nowadays such a treaty of cession would be invalid ab initio in accor-
dance with article 52 of the vclt. See chapter 9 for an analysis of this topic in relation to
the 1971 mou between Iran and Sharjah.
45 While the Covenant of the League of Nations did not generally prohibit recourse to force,
there were some provisions in the Covenant that condemned the use of force against
the Members of the League and there were other provisions that established a sort of
cooling-off period in which States could not resort to war to settle their differences. Mem-
ber States agreed to submit “any dispute likely to lead to a rupture” to arbitration or to
the Council of the League and agreed not “to resort to war until three months after the
award by the arbitrators or the report by the Council.” Covenant of the League of Nations,
Articles 10–16.
46 Pursuant to Article i of the Kellogg-Briand Pact or Pact of Paris of 1928, recourse to war for
the solution of international disputes was condemned and State Parties renounced war
as an instrument of national policy in their relations to one another. Kellogg-Briand Pact
(1928), August 27, 1928, Article i.
47 The Stimson doctrine is named after the American Secretary of State who, in 1932 after the
Japanese occupation of Manchuria, notified Japan and China that any situation brought
about contrary to the Pact of Paris would not be recognized and that this would extend
also to any similar decisions taken by any other government. Andrew Clapham, Brierly’s
160 chapter 3
became unlawful.48 This culminated in the inclusion in article 2.4 of the un

Charter of the prohibition of the threat or use of force49 which has as a con-
sequence that “no territorial acquisition resulting from the threat or use of
force shall be recognized as legal.”50 Coupled with this, the United Nations or-
gans have issued reiterated statements as to the illegality of the threat or use
of force and have affirmed the non-recognition of acquisition of territory or
territorial changes resulting from such threat or use of force.51 This has also
Law of Nations: An Introduction to the Role of International Law in International Relations,

7th ed. (Oxford: Oxford University Press, 2012), 177. Later the same year, the Assembly of
the League of Nations passed a resolution indicating “that it is incumbent upon the Mem-
bers of the League of Nations not to recognize any situation, treaty or agreement, which
may be brought about by means contrary to the Covenant of the League of Nations or the
Pact of Paris”. Ibid., 177, n. 21, citing to League of Nations Official Journal (1932), Special
Supp. No. 101, 87–8.
49 See United Nations Charter (1945), Article 2 (4): “All Members shall refrain in their
international relations from the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner inconsistent with the Pur-
poses of the United Nations.”
50 General Assembly Resolution 2625 (xxv), Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States in accordance with
the Charter of the United Nations, un Doc. A/RES/25/2625, October 24th, 1970. See also,
General Assembly Resolution 3314 (xxix), Definition of aggression, un Doc. A/RES/3314.
See Robert. Y. Jennings, “General Course on Principles of International Law”, Recueil des
Cours, 121(ii)(1967): 327–600, 418–419 (“It follows that the use of illegal force – whatever
that may mean – can no longer be regarded as per se giving a legal title.”).
51 See, e.g., General Assembly, Resolution 2949 (xxvii), un Doc. A/RES/27/2949, D ecember
8, 1972, Preamble and para. 4 (“reaffirming that the territory of a State shall not be the
object of occupation or acquisition by another State resulting from the threat or use of
force” and “declares once more that the acquisition of territories by force is inadmissible
and that, consequently, territories thus occupied must be restored”); General A ssembly,
Resolution 22 (xlii), Declaration on the Enhancement of the Effectiveness of the
Principle of Refraining from the Threat or Use of Force in International Relations, un Doc.
A/RES/42/22, November 18, 1987, para. 10 (“Neither acquisition of territory result-
ing from the threat or use of force nor any occupation of territory resulting from the
threat or use of force in contravention of international law will be recognized as legal
acquisition or o ccupation.”); Security Council Resolution 242 (1967), (“emphasizing the
inadmissibility of the acquisition of territory by war” and requiring the “withdrawal of
the Israel armed forces from the territories occupied in the recent conflict” in order to
fulfill the principles of the Charter); Security Council Resolution 662 (1990), paras. 1 and 2
(Iraqi annexation of Kuwait has no legal validity and is null and void and must not be
recognized).
been endorsed as customary international law by the International Court of

Justice.52
One final point that needs to be mentioned regarding the use of force and
title to territory is whether a title could be conferred by a lawful use of force,
such as use of force in self-defence.53 The answer to this question must be in
the negative since it would render meaningless the prohibition itself.54
While conquest is no longer a valid method of acquisition of territory un-
der international law, the principle of intertemporal law (discussed below)
means that its prohibition is not retroactive to titles acquired by conquest
in the past and thus, this method of acquisition of sovereignty over territory
remains relevant in analyzing the history of titles to territory in sovereignty
disputes.55
Acquisitive Prescription
Although acquisitive prescription56 has been contested as a method of
acquisition of territorial sovereignty by some international law scholars, State
practice has endorsed it.57 It has been defined in the 9th Edition of Oppen-
heim’s International Law as:
52 See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Ter-
ritory, Advisory Opinion, icj Reports 2004, 136, paras. 117–122 (recalling that, with regard
to Palestine, both the Security Council and the General Assembly have referred to “the
customary rule of ‘the inadmissibility of the acquisition of territory by war’” and conclud-
ing that “the construction of the wall [by Israel] and its associated régime create a ‘fait
accompli’ on the ground that could well become permanent, in which case, and notwith-
standing the formal characterization of the wall by Israel, it would be tantamount to de
facto annexation.”).
53 Clapham, Brierly’s Law of Nations, 180.
54 Ibid., 180 (“Here the practicality of the rule and the paramount principle outlawing the
use of force pull in the same direction. States nearly always claim that their use of force
is legal under the rules of self-defence, to allow for the acquisition of territory through
self-defence would rob the prohibition just outlined of much of its effect.”); Jennings,
A
cquisition of Territory, 55 (“[I]t must still be said that it would be a curious law of self-
defence that permitted the defender in the course of his defence to seize and keep the
resources and territory of the attacker.”).
56 As opposed to acquisitive prescription, extinctive prescription concerns the failure to
present a claim within a reasonable time which may result in the loss of the right to
enforce the right but not in the loss of the substantive right. Jennings, Acquisition of
T erritory, 21.
57 Ibid., 20. See also Thirlway, Law and Procedure, 1441.
162 chapter 3
[T]he acquisition of sovereignty over a territory through continuous and

undisturbed exercise of sovereignty over it during such a period as is nec-
essary to create under the influence of historical development the gen-
eral conviction that the present condition of things is in conformity with
international order.58
For his part, Hugh Thirlway has articulated the following definition of acquisi-
tive prescription taking into account the jurisprudence of the icj:
[A] process by which sovereignty over territory is transferred from one

State to another, without a formal act of cession, and without the consent
of the former sovereign (except to the extent that the acts and events
f[rom] which acquisitive prescription is deduced may be seen as implied
consent through failure to protest).59
Finally, it is also worth making reference to the definition given by D. Johnson

in his early and comprehensive article on acquisitive prescription:
[T]he means by which, under international law, legal recognition is given

to the right of a state to exercise sovereignty over land … where that state
has, in fact exercised its authority in a continuous, uninterrupted, and
peaceful manner over the area concerned for a sufficient period of time,
provided that all other interested and affected states (in the case of land
territory the previous possessor…) have acquiesced in this exercise of
authority.60

59 Thirlway, Law and Procedure, 1442.
60 D.H.N. Johnson, “Acquisitive Prescription in International Law”, British Yearbook of Inter-
national Law 27 (1950): 332–354, 353. The definition provided by Johnson also includes
acquisitive prescription of sea territory but this part of the definition has been omit-
ted from the quoted passage as we will be concentrating on acquisitive prescription of
territory. It must be noted that in a later article Johnson indicated that his attempt “to
combine in a single definition, under the heading of ‘acquisitive prescription,’ both the
notion of ‘immemorial possession’ (straightforward possession) on the one hand and
the notion of ‘prescription properly so called’ (adverse possession) on the other hand is
fraught with difficulties” and he welcomed the theory espoused by Prof. De Visscher on
historical consolidation of titles as being able to simplify the problem considerably since
the concept encompassed both the notions of “straightforward possession” and “adverse
possession.” Johnson, “Root of Title”, 220, 223. On De Visscher’s theory of historical con-
solidation of title see infra notes 84–93 and accompanying text.
As seen from these definitions, in international law the concept of acquisitive

prescription does not stand on its own. Rather, it is related with the notions
of acquiescence, estoppel and the effects of protests (or lack thereof).61 Thus,
the actual source of title will be recognition of or acquiescence in possession
and control by another State.62 The role of estoppel and acquiescence will be
examined in more detail below.
Within these general encompassing definitions, there are two types of
acquisitive prescription that have been identified based on the certainty or
uncertainty of the original events leading to prescription.63 The first form
of acquisitive prescription is based on “immemorial possession”, which is
characterized by the fact that a certain state of affairs exists but its origin
is uncertain so it is not possible to prove whether it is legal or illegal and it is
thus presumed to be legal.64 The second form of prescription that exists u nder
international law is one similar to the concept of usucapio in Roman law,
“where the actual exercise of sovereign rights over a period of time is allowed
to cure a defect in title … that is to say, where the exercise of sovereign rights
either rests upon a demonstrably defective title or is even in origin wrongful.”65
This type of acquisitive prescription is also referred to as “prescription prop-
erly so called” or “adverse possession.”66
However, despite the distinction between these two types of acquisitive pre-
scription, as Jennings explains:
But it will easily be seen that, since the result of either kind of prescrip-
tion is the same – the acquisition of a good title – and since the origins
of a possession may in any case be one of the matters of dispute, there
is inevitably a tendency to lump them together so that the difference
between them becomes one of the degree rather than of kind.67
From the definitions outlined above and international case law on the subject,
the elements of prescription can be identified as:
61 Jennings and Watts, Oppenheim’s International Law, 707–708. See also Jennings, Acquisi-
tion of Territory, 36–51.
62 Crawford, Brownlie’s Principles, 230.
63 Johnson, “Acquisitive Prescription”, 334.
64 Ibid.
65 Jennings, Acquisition of Territory, 21; Johnson, “Acquisitive Prescription”, 334–335, 332.
66 Johnson, “Root of Title”, 220. See also Johnson, “Acquisitive Prescription”, 338–339.
164 chapter 3
1. The possession of the … state must be exercised à titre de souverain.

2. The possession must be peaceful and uninterrupted.
3. The possession must be public.
4. The possession must endure for a certain length of time.68
Taking these elements in turn, possession à titre de souverain means that there
must be a display of State authority and non recognition of the sovereignty of
another State.69 Thus, if a State is administering a territory under e.g. a lease,
its administration will not be interpreted as possession à titre de souverain as
by the terms of the lease it would be implicitly admitting that the sovereignty
over the territory belongs to another State.70 Furthermore, for any legislative
measures to be interpreted as acts of possession à titre de souverain these must
concern the territory as such and not merely the activities of State’s nationals
as the State is free to legislate for its own nationals anywhere.71 Finally, the
relevant acts of State authority “must be those of the state as an international
person, not those of mere individuals or even of subordinate divisions of the
state.”72
The requirement that the possession be peaceful and uninterrupted is not
present if the original sovereign keeps its claim alive by issuing protests or even
brings a legal action.73 The publicity of possession comes from the require-
ment under domestic law that clandestinity cannot give rise to prescription.
Although it would be hard to imagine clandestine possession of territory u nder
international law, the importance of publicity lies in its relationship with
acquiescence: if there is no knowledge of possession, there can be no acquies-
cence (although constructive knowledge will suffice).74
68 The formulation of the elements in this way is taken from the Kasikili/Sedudu Island
case as articulated by Namibia, with which Botswana agreed as to the recognition of
acquisitive prescription under international law and on the conditions under which title
to territory may be acquired under that basis but differed on whether those conditions
were satisfied by Namibia in the case. Kasikili Sedudu Island case (Botswana/Namibia),
icj Reports 1999, 1045, paras. 94, 96. However, in that case, the icj did not find that the
elements of acquisitive prescription were present and thus did not go any further than
that. Ibid., para. 97.
70 Cf. Johnson, “Acquisitive Prescription”, 344.
71 Ibid., 345.
72 Ibid.
74 Johnson, “Acquisitive Prescription”, 347.
Finally, regarding the time factor, there isn’t a precise length of time pre-
scribed by international law under which possession must endure.75 The
length of time will depend on the circumstances and influences of a political
and historical character.76 Any periods that have been alleged by scholars (e.g.
a hundred years by Grotius) or in cases (e.g. fifty years in the treaty between
Venezuela and the uk concerning British Guiana-Venezuela boundary dispute
or forty-three years deemed sufficient by the United States in the Chamizal
arbitration) as minimum time for acquisitive prescription have been rejected
as constituting a general rule.77
Examples of cases in which acquisitive prescription was at issue include the
Chamizal arbitration between the United States and Mexico. In that case, the
claim of the United States based on acquisitive prescription failed because on
the facts its possession of the Chamizal tract (lying between the old bed of the
Rio Grande and the new bed, formed by the action of the water on the banks
of the river and causing the river to move into Mexican territory) had not been
“undisturbed, uninterrupted and unchallenged.”78 One of the elements taken
into account by the tribunal to deny acquisitive prescription by the United
Sates was the conclusion of a treaty with Mexico which had as its object “to fix
the rights of the two nations with regard to the changes brought about by the
action of the waters of the Rio Grande.”79 The arbitral tribunal concluded: “The
very existence of that convention precludes the United States from acquiring
prescription against the terms of their title.”80
The Island of Palmas case is another case in which acquisitive prescription
was at issue.81 In that case, the sovereignty of the Netherlands over the island
of Palmas (or Miangas) was largely decided on the basis of its continuous and
peaceful display of sovereignty and the acquiescence by the United States.82
75 Jennings, Acquisition of Territory, 21; Kohen and Hébié, “Territory, Acquisition”, para. 18.
76 Jennings and Watts, Oppenheim’s International Law, 707; Jennings, Acquisition of
Territory, 21.
77 Johnson, “Acquisitive Prescription”, 347; Jan Wouters and Sten Verhoeven, “Prescription”
in Max Planck Encyclopedia of Public International Law, Online ed., ed. Rüdiger Wolfrum,
para. 5.
78 The Chamizal Case (Mexico, United States), Award of June 15, 1911, riaa 11, 309, 328.
79 Ibid., 329.
80 Ibid.
81 However, Johnson says that the arbitrator did not expressly refer to the fact that he was
laying down the main principles of the law of prescription. Johnson, “Acquisitive Pre-
scription”, 342.
82 Island of Palmas case, 868–869.
166 chapter 3
Finally, it must be said that States do not lightly resort to arguments based
on acquisitive prescription because relying on this mode of acquisition of ter-
ritory ultimately means accepting that the original title to that territory be-
longed to another State.83
Historical Consolidation of Title
The doctrine of historical consolidation of title was introduced in the second

half of the twentieth century by, amongst others, De Visscher, S chwarzenberger
and Blum as an alternative to the theoretical and practical problems arising
from the requirement of possession for a prolonged period of time in the theo-
ry of acquisitive prescription.84 The doctrine of historical consolidation of title
focuses on “the special interest a territory may have for a given State, and on
the general tolerance or recognition by other States of this claim” rather than
on a specific time of possession in order to adversely posses.85 The doctrine
provides that a basis of title by way of “historical consolidation” can arise from
peaceful possession together with acts of administration and in the absence
of protest.86 In this sense, the juridical basis of an historic title is acquiescence,
i.e., “absence of protest under circumstances which would have w arranted such
83 Kohen and Hébié, “Territory, Acquisition”, para. 21. Yehuda Z. Blum, Historic Titles in Inter-
national Law (New York: Springer 1965), 34, n. 2 (“One of the main reasons for the relative
scarcity of State practice in this field seems to be the fact that any reliance by a State
on the doctrine of prescription implies its admission that its rights over the territory in
question are adverse rights and that the original title to that territory rests with another
State.”).
84 Kohen and Hébié, “Territory, Acquisition”, para. 22. See also Jennings, Acquisition of Ter-
ritory, 23–24 (“This ambiguity in actual cases based essentially on effective possession
suggests the question whether the various factors contributing to building a title cannot
usefully and instructively be subsumed under the one heading of a process of ‘consolida-
tion’ and regarded as being for essential purposes all part of one legal process, or ‘mode’
of acquisition of territorial sovereignty. This possibility has been advocated by Professor
Charles de Visscher, elaborating a formula used in the Norwegian Fisheries case, in which
he was a Judge.”). See also Johnson, “Root of Title”, 222–225 and his endorsement of De
Visscher’s theory.
86 Shaw, “Introduction”, xxvi. Blum, Historic Titles, 130 (“[T]he formation of an historic title
is contingent upon the existence of two concomitant factors, both of which are required
for its establishment: (a) Effective display of State Authority by the claimant State; and (b)
Acquiescence in such display of authority on the part of other States, affected or liable to
be affected by the perfection of a new territorial title.”).
a protest as evidence of opposition.”87 The special characteristics of acquies-

cence in relation to the doctrine of historical consolidation of title is that it
removes the difficulty that the doctrine of prescription faces, i.e., the passage
of a fixed period of time.88 Another element of acquiescence in the historical
consolidation of title doctrine is that it is “indifferent to the question whether
or not the State purporting to have acquired a certain right on the basis of
acquiescence acted in good faith. (Bona fides … is usually required for the op-
eration of prescription, but can hardly be assumed where the establishment of
adverse territorial rights is concerned).”89 The doctrine of acquiescence will be
discussed in more detail below.
De Visccher formulated the doctrine from the treatment by the icj in the
Fisheries Case (uk v. Norway) of the way in which other States had tolerated the
Norwegian delimitation system of the territorial sea by straight baselines.90 In
that case, in which De Visscher was a judge, the icj stated:
From the standpoint of international law, it is now necessary to consider

whether the application of the Norwegian system encountered any op-
position from foreign States.
Norway has been in a position to argue without any contradiction that
neither the promulgation of her delimitation Decrees in 1869 and in 1889,
nor their application, gave rise to any opposition on the part of foreign
States. Since, moreover, these Decrees constitute, as has been shown
above, the application of a well-defined and uniform system, it is indeed
this system itself which would reap the benefit of general toleration, the
basis of an historical consolidation which would make it enforceable as
against all States.
The general toleration of foreign States with regard to the Norwegian
practice is an unchallenged fact. For a period of more than sixty years the
United Kingdom Government itself in no way contested it….
87 Blum, Historic Titles, 60. Ibid., 38 (“Particular emphasis will be placed on the doctrine
of acquiescence, which, it is submitted, underlies not only the process of formation of
general customary rights under international law, but is also the very pillar of the mecha-
nism with the aid of which special or historic rights take shape.”). Blum explains that “the
doctrine of estoppel cannot be invoked as the basis for the formation of an historic title
in international law, in spite of the wide application of that doctrine and its close resem-
blance to the concept of acquiescence.” Ibid., 98.
88 Ibid., 59; Ian MacGibbon, “The Scope of Acquiescence in International Law”, British Year-
book of International Law 31, (1954): 143–186, 306.
89 Blum, Historic Titles, 60.
90 Kohen and Hébié, “Territory, Acquisition”, para. 22. Crawford, Brownlie’s Principles, 235.
168 chapter 3
The notoriety of the facts, the general toleration of the international

community, Great Britain’s position in the North Sea, her own interest in
the question, and her prolonged abstention would in any case warrant
Norway’s enforcement of her system against the United Kingdom.
The Court is thus led to conclude that the method of straight lines,
established in the Norwegian system, was imposed by the peculiar
geography of the Norwegian coast; that even before the dispute arose, this
method had been consolidated by a constant and sufficiently long prac-
tice, in the face of which the attitude of governments bears witness to
the fact that they did not consider it to be contrary to international law.91
This process of extension of sovereignty over the territorial sea was extrapo-
lated by the authors who support the theory of historical consolidation of title
to territorial situations.92 As explained by De Visscher:
Consolidation by Historic Titles. The fundamental interest of the stabil-

ity of territorial situations from the point of view of order and peace
explains the place that consolidation by historic titles holds in interna-
tional law and the suppleness with which the principle is applied… . This
consolidation … is not subject to the conditions specifically required in
other modes of acquiring territory. Proven long use, which is its foun-
dation, merely represents a complex of interests and relations which
in themselves have the effect of attaching a territory or an expanse of
sea to a given State. It is these interests and relations, varying from one
case to another, and not the passage of a fixed term, unknown in any
event to international law, that are taken into direct account by the judge
to decide in concreto on the existence or non-existence of a consolidation
by historic titles.93
Although the Eritrea/Yemen arbitral tribunal gave its approval to the con-
cept of historic titles,94 the icj in the Land and Maritime Boundary between
91 Fisheries case (United Kingdom v. Norway), icj Reports 1951, 116, 138–139 (emphasis added).
92 See Crawford, Brownlie’s Principles of Public International Law, 236; Jennings, Acquisition
of Territory, 23–28. See also George Schwarzenberger, “Title to Territory: Response to a
Challenge”, American Journal of International Law 51 (1957): 308–324.
93 Charles De Visscher, Theory and Reality in Public International Law (Princeton: Princeton
94 The arbitration agreement between Eritrea and Yemen asked the tribunal to “decide
territorial sovereignty in accordance with the principles, rules and practices of inter-
national law applicable to the matter, and on the basis, in particular, of historic titles.”
ameroon and Nigeria case rejected an attempt by Nigeria to rely on the

C
doctrine of historical consolidation of title. It indicated that “the theory of his-
torical consolidation is highly controversial and cannot replace the established
modes of acquisition of title under international law, which take into account
many other important variables of fact and law.”95
Despite the importance of historic titles, international tribunals deciding
sovereignty disputes tend to place more emphasis on recent history of use and
possession of territory rather than claims to very ancient titles.96
Thus, in light of this description, it can be said that the general view is that
historic consolidation of title does not exist independent of the established
rules governing effective occupation and prescription; instead, it is a sort of
compendium of these two other modes of acquisition97 with the concept
of actual possession as the “foundation and the sine qua non of this process of
consolidation.”98
E ritrea/Yemen case, para. 2. The arbitral tribunal defined historic title as “a title that has
been created or consolidated, by a process of prescription, or acquiescence, or by posses-
sion so long continued as to have become accepted by the law as a title.” Ibid., para. 106.
95 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equa-
torial Guinea intervening), icj Reports 2002, 303, para. 65.
96 Shaw, “Introduction”, xx–xxi (“The use of historical or past data as part of a contempo-
rary claim is not unusual in territorial disputes. The parties to cases frequently provide
the tribunal or court with copious materials dealing with a wide range of what may be
regarded as relevant activities over time. What is clear, however, is that such tribunals
or courts prefer to have recourse to modern manifestations of sovereign activity in the
absence of overwhelming evidence that the historical data provided has been sufficient
to meet the criteria required for an historic title.”). See e.g., The Minquiers and Ecrehos case
(France/United Kingdom), icj Reports 1953, 47, 53. (“Both Parties contend that they have
respectively an ancient or original title to the Ecrehos and the Minquiers, and that their
title has always been maintained and was never lost. The present case does not there-
fore present the characteristics of a dispute concerning the acquisition of sovereignty
over terra nullius…. What is of decisive importance, in the opinion of the Court, is not indi-
rect presumptions deduced from events in the Middle Ages, but the evidence which relates
directly to the possession of the Ecrehos and Minquiers groups.”) (emphasis added).
97 Crawford, Brownlie’s Principles, 236. See also Jennings, Acquisition of Territory, 27–28
(“Historical consolidation is also a voracious concept, and should be kept within bounds.
Otherwise we may see the classical scheme of modes of acquisition of title precipitated
into a general concept of cumulative estoppels. Moreover, it must be remembered that it
is based upon the merest hint in the case reports. It has never been as it were spelled out
as a doctrine by a court, and there may be some danger in allowing what is basically a
simple, and indeed obvious, idea to develop into a somewhat doctrinaire principle.”).
98 Jennings, Acquisition of Territory, 26. See also Andrea Gioia, “Historic Titles”, in Max
Planck Encyclopedia of Public International Law, Online ed., ed. Rüdiger Wolfrum, para. 23.
170 chapter 3
Geographical Considerations and the Doctrine of Contiguity
This section will outline the role of geographical considerations and the
d octrine of contiguity in relation to acquisition of territory. Geographical con-
siderations come into play when evaluating whether physical characteristics
of a certain territory justify the extension of sovereignty by one State over areas
which it does not effectively occupy by reason of the geographical unity of the
territory which it does occupy (e.g., whether a group of islands forms part of
the same geographical unity and a State exercising sovereignty over one island
may therefore extend its sovereignty to the other islands forming part of that
unity).99 Claims based on the principle of contiguity support the assertion of
sovereignty by a State over certain territory because it is geographically nearer
to that territory than any other State.100
It is common ground that geographical unity and contiguity are not sources
of title as such.101 Geographical considerations and the doctrine of contiguity
are aspects of the principle of effective occupation, as we will see below.102
Regarding the role of geographical doctrines up to the nineteenth century,
they were frequently resorted to by States to mark out areas claimed for future
occupation. As Waldock explains:
The hinterland and contiguity doctrines as well as other geographical

doctrines were much in vogue in the nineteenth century. They were in-
voked primarily to mark out areas claimed for future occupation. But,
by the end of the century, international law had decisively rejected geo-
graphical doctrines as distinct legal roots of title and had made effective
99 In the Island of Palmas case, Judge Huber indicated that “it is possible that a group may
under certain circumstances be regarded as in law a unit, and that the fate of the principal
part may involve the rest.” Island of Palmas case, 855. The Chamber of the icj in the Land,
Maritime and Frontier Dispute held that the island of Meanguerita was a dependency
of the island of Meanguera in light of “[t]he small size of Meanguerita, its contiguity to
the larger island, and the fact that it is uninhabited.” Land, Island and Maritime Frontier
Dispute (El Salvador/Honduras: Nicaragua intervening), icj Reports 1992, 351, para. 356.
However, this is a presumption only and the principle of dependency will cede vis-à-vis
an actual adverse display of sovereignty. C. Humphrey M. Waldock, “Disputed Sovereignty
in the Falkland Islands Dependencies”, British Yearbook of International Law 25 (1948):
311–353, 343.
100 Surya Prakash Sharma, Territorial Acquisition, Disputes and International Law (The Hague:
Martinus Nijhoff, 1997), 51–52.
101 Shaw, “Introduction”, xxiii.
102 Waldock, “Disputed Sovereignty”, 342; Crawford, Brownlie’s Principles, 237. See also, von
Der Heydte “Discovery, Symbolic Annexation”, 470.
occupation the sole test of the establishment of title to new lands. Geo-
graphical proximity, together with other geographical considerations, is
certainly relevant, but as a fact assisting the determination of the limits
of an effective occupation, not as an independent source of title.
Any pretensions of the hinterland doctrine to give legal title were
scotched once and for all by Article 35 of the General Act of the Berlin
Conference of 1885 which recognized an obligation in an occupying state
to exercise authority in the areas occupied. For Article 35 has ever since
been accepted as declaratory of a general rule of international law.103
The Island of Palmas case dismissed title based on the principle of contiguity
as having no basis in international law in the following terms:
[I]t is impossible to show the existence of a rule of positive international

law to the effect that islands situated outside territorial waters should
belong to a State from the mere fact that its territory forms the terra firma
(nearest continent or island of considerable size)… . The principle of
contiguity … as a rule establishing ipso jure the presumption of sovereignty
in favour of a particular State … would be in conflict with what has been said
as to territorial sovereignty and as to the necessary relation between the
right to exclude other States from a region and the duty to display therein the
activities of a State. Nor is this principle of contiguity admissible as a legal
method of deciding questions of territorial sovereignty; for it is wholly
lacking in precision and would in its application lead to arbitrary results.
…
The title of contiguity, understood as a basis of territorial sovereignty, has
no foundation in international law.104
Since the principle of contiguity is not a source of title to territory per se, what
is then the role of this principle with regards to the acquisition of territory? Is
the principle completely irrelevant in the consideration of title to territory?
There is consensus in the doctrine and in international decisions that the
principle is not irrelevant in questions of title to territory but that it is only
an aspect of the principle of effective occupation, indicating the extent of an
effective occupation.105 As explained by Jennings:
103 Waldock, “Disputed Sovereignty”, 342. See also, Jennings, Acquisition of Territory, 74.
104 Island of Palmas case, 854–855, 869 (emphasis added).
105 Waldock, “Disputed Sovereignty”, 344; Jennings, Acquisition of Territory, 74–76; Sharma,
Territorial Acquisition, Disputes and International Law, 56; von Der Heydte “Discovery,
172 chapter 3
Contiguity is no more than evidence raising some sort of presumption

of effective occupation; a presumption that may be rebutted by better
evidence of sovereign possession by a rival claimant. If this were not so,
a State might be able to argue that it had legal title over a “contiguous”
territory over which another State already enjoys a title coupled with
possession… . Contiguity as a factor in legal title is only relevant to cer-
tain presumptions concerning the definition of the area of an existing
occupation; its strength depends upon the presence and relative strength
of any rival occupation.106
In light of this, for example in the Eastern Greenland case, the geographical
unity of Greenland played an important part in establishing the limits of Den-
mark’s State activity.107 Thus, although Denmark had only occupied and had
settlements on certain areas in the coastline, given the nature of the region,
the Court held Denmark to have actually displayed its authority over the whole
of Greenland.108
Therefore, whenever analyzing a claim to territorial sovereignty which
alleges geographical considerations as its justification for the title to territory,
account must be taken of whether activity over a localized area is to extend to
another geographically contiguous area as part of the extension of the effec-
tiveness of occupation, which will depend on the type of territory at issue and
the State activity displayed by the State and on whether another title over the
contiguous territory based and supported on possession has a higher relative
strength.109
Establishing Effective Control over Territory
After this short survey of the modes of acquisition of territorial sovereignty,

it is evident that actual effective control plays a pivotal role in all of them. As
explained by Jennings:
Symbolic Annexation”, 470. Although von Der Heydte relies on certain arbitral decisions
in the late nineteenth century to confer on geographic contiguity a more important role,
his point of departure is always the principle of effectiveness.
107 Waldock, “Disputed Sovereignty”, 344. Sharma, Territorial Acquisition, 56–57.
108 Waldock, “Disputed Sovereignty”, 344.
109 Cf. Jennings, Acquisition of Territory, 75.
When we come to look more closely at the various modes which inter-
national law recognizes as creating a title to territorial sovereignty we
shall find that all have one common feature: the importance, both in the
creation of title and of its maintenance, of actual effective control. Every
mode, like the Roman Law counterparts, requires the presence of corpus
as well as animus.110
The notion of effective control is particularly relevant for occupation of terra

nullius and prescription as modes of acquisition of territory.111 In this sense, as
outlined above, earlier doctrines of discovery, symbolic annexation and geo-
graphical contiguity alone as sufficient to generate title, have been replaced by
the doctrine of effectiveness.112
The principle of effectiveness will find its limit in the prohibition of
acquisition of territory by force and the principle of self-determination.113 With
regards to the former, mere possession by force cannot nowadays found title
and a disputed territorial claim cannot be validated by forceful possession.114
The Concept of Effectivités

A vital element to occupation and prescription as modes of acquisition of
territory is that of effective exercise of sovereign authority,115 the “actual con-
tinuous and peaceful display of State functions.”116 This is encompassed in the
notion of effectivités, which refers to “acts undertaken in the exercise of State
authority through which a State manifests its intention to act as the sovereign
over a territory. Conditions for valid effectivités relate both to the entity per-
forming them, and the specific nature of the acts performed.”117
Regarding the type of entities carrying out effectivités, recourse must be
had to the rules on attribution of conduct to the State for the purposes of
110 Ibid., 4–5.

111 Malcolm Shaw, “Territory in International Law”, Netherlands Yearbook of International
Law 13 (1982): 61–91, 82–83.
112 Ibid., 83. See also, von Der Heydte, “Discovery, Symbolic Annexation”. Writing in 1935, von
Der Heydte shows, with reference to contemporaneous sources and writers, that even in
the fifteenth and sixteenth century discovery and symbolic annexation only conferred an
inchoate title.
113 Shaw, “Territory in International Law”, 88.
114 Ibid., 85.
174 chapter 3
d istinguishing which entities’ acts display State sovereignty.118 Thus, acts

performed by the central organs of a State and other State agents in their official
capacity (although not local provincial authorities) will be a ttributable to the
State and would, in principle, entail valid manifestations of sovereignty.119
Conversely, acts of private individuals in a territorial dispute will not be
attributable to the State unless these individuals have been allowed to exercise
elements of governmental authority.120
Examples of private companies entrusted with the exercise of elements of
governmental authority were the Dutch and the British East IndiaCompanies,
described by arbitrator Max Huber in the Island of Palmas case as “compa-
nies formed by individuals and engaged in economic pursuits (Chartered
Companies) [which] were invested by the State to whom they were subject
with public powers for the acquisition and administration of colonies.”121
As for the type of material acts that display sovereignty, these include a wide
range that can be classified under the legislative, executive and judicial power
of the State and in each case the threshold level below which these activities
will not count towards an establishment of title will be assessed in light of the
case as a whole.122 An important aspect is that such activities have to relate
to the territory in question.123 Just as geographical unity or contiguity do not
constitute a source of title to territory, effective display of sovereignty over cer-
tain parts of territory does not by implication necessarily extend to all parts of
contiguous territory.124
Examples of legislative sovereign acts include Malaysian legislation on turtle
egg fishing in the case concerning the Sovereignty over Pulau Ligitan and Pulau
Sipadan (Indonesia/Malaysia), which led the icj to declare Malaysian sover-
eignty over specified areas where Malaysia asserted its measures to regulate
and control the collecting of turtle eggs (together with the e stablishment
118 Ibid., para. 26.

119 Shaw, “Introduction”, xxiii. See also Kohen and Hébié, “Territory, Acquisition”, para. 27.
122 Shaw, “Introduction”, xxiii. See also Kohen and Hébié, “Territory, Acquisition”, 31.
123 Shaw, “Introduction”, xxiii; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/
Malaysia), icj Reports 2002, para. 136 (“The Court finally observes that it can only
consider those acts as constituting a relevant display of authority which leave no doubt as
to their specific reference to the islands in dispute as such. Regulations or administrative
acts of a general nature can therefore be taken as effectivités with regard to Ligitan and
Sipadan only if it is clear from their terms or their effects that they pertained to these two
islands.”).
of a bird reserve).125 In the Minquiers and Ecrehos Case, the exercise of juris-
diction over the Ecrehos for more than one hundred years by the tribunal of
Jersey was considered by the Court as administrative and judicial acts mani-
festing the exercise of State sovereignty.126 In the Qatar v. Bahrain case, the
Court considered that the construction of navigational aids such as lighthous-
es “can be legally relevant in the case of very small islands” and thus evinced
acts à titre de souverain for Bahrain in the island of Qit’at Jaradah.127 Other
effectivités identified by international case law include military activities and
police surveillance,128 regulation of economic activities, public works and con-
sular representation.129
In addition to the attribution to the State and the materiality of the acts
displaying sovereignty, there has to be an intent of the entity preforming the
acts to be acting as sovereign.130 Thus, acts carried out in a capacity other than
à titre de souverain (e.g., as a trustee or belligerent occupant) do not have pro-
bative value for the establishment of a title of territorial sovereignty.131
Finally, it is important to note that the value of activities à titre de souverain
will always depend on the nature of the territory and the nature of the com-
peting State claims.132 This was highlighted by the Eritrea/Ethiopia Boundary
Commission in the following way:
As to activity on the ground, the actions of a State pursued à titre de

s ouverain can play a role, either as assertive of that State’s position or,
expressly or impliedly, contradictory of the conduct of the opposing
State. Such actions may comprise legislative, administrative or judicial
assertions of authority over the disputed area. There is no set standard of
duration and intensity of such activity. Its effect depends on the nature
of the terrain and the extent of its population, the period during which it
has been carried on and the extent of any contradictory conduct (includ-
ing protests) of the opposing State. It is also important to bear in mind
125 Sovereignty over Pulau Ligitan and Pulau Sipadan, para. 145.
126 Kohen and Hébié, “Territory, Acquisition”, para. 31. See Minquiers and Ecrehos case, 64–65.
127 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v.
B
ahrain), Merits, icj Reports 2001, 40, para. 197.
128 The Indo-Pakistan Western Boundary (Rann of Kutch) between India and Pakistan (India,
Pakistan), Award of February 19, 1968, riaa 17, 558.
129 Territorial and Maritime Dispute (Nicaragua v. Colombia), icj Reports 2012, 624, paras.
82–84.
131 Ibid.
132 Malcolm Shaw, “Introduction”, 24.
176 chapter 3
that conduct does not by itself produce an absolute and indefeasible title,
but only a title relative to that of the competing State.133
The Relationship between Effectivités and Title to Territory

The legal weight to be given to effectivités exercised by one State over a par-
ticular territory depends on the existence or not of a legal title held by another
State to that same territory.134 Thus, effectivités can only create a territorial title
if one does not already exist or one cannot be created by other means; whereas
if a title exists, it takes precedence over contradictory effectivités of another
State.135 As explained by a Chamber of the icj in Frontier Dispute (Burkina
Faso/Mali):
[T]he Parties have invoked in support of their respective contentions the

“colonial effectivités”, in other words, the conduct of the administrative
authorities as proof of the effective exercise of territorial jurisdiction in
the region during the colonial period… . The role played in this case by
such effectivités is complex, and the Chamber will have to weigh care-
fully the legal force of these in each particular instance. It must however
state forthwith, in general terms, what legal relationship exists between
such acts and the titles on which the implementation of the principle of
uti possidetis is grounded. For this purpose, a distinction must be drawn
among several eventualities. Where the act corresponds exactly to law,
where effective administration is additional to the uti possidetis juris,
the only role of effectivité is to confirm the exercise of the right derived
from a legal title. Where the act does not correspond to the law, where
the territory which is the subject of the dispute is effectively adminis-
tered by a State other than the one possessing the legal title, preference
should be given to the holder of the title. In the event that the effectivité
does not co-exist with any legal title, it must invariably be taken into con-
sideration. Finally, there are cases where the legal title is not capable of
133 Decision Regarding Delimitation of the Border between The State of Eritrea and The Federal
Democratic Republic of Ethiopia, Eritrea/Ethiopia Boundary Commission, Award of April
13, 2002, riaa 25 (2002) 83, para. 3.28. See also, Legal Status of Eastern Greenland, 46 (“It is
impossible to read the records of the decisions in cases as to territorial sovereignty with-
out observing that in many cases the tribunal has been satisfied with very little in the way
of the actual exercise of sovereign rights, provided that the other State could not make out
a superior claim. This is particularly true in the case of claims to sovereignty over areas in
thinly populated or unsettled countries.”).
134 Shaw, “Introduction”, xxiv; Kohen and Hébié, “Territory, Acquisition”, para. 36.
135 Ibid.
showing exactly the territorial expanse to which it relates. The effectivité

can then play an essential role in showing how the title is interpreted in
practice.136
The icj has applied the same framework as to the relationship between effec-
tivités and title to territory in other cases not dealing with uti possidetis juris.137
Subsequent Conduct
The reaction of another State to the effectivités performed by a State with which
it is engaged in a sovereignty dispute can have various legal consequences.138
Thus, if the State does not react to those effectivités, this may entail a renuncia-
tion of its rights; whereas if the State issues protests, or enacts legislation or
engages in any other relevant conduct, it can keep its intention to be sovereign
alive and thus deprive those effectivités of the capacity to divest it of its title.139
Formal consent or acquiescence resulting from State conduct may also result
in transferring a title of sovereignty.140 The role of recognition, acquiescence
and estoppel will be analyzed below.
Depending on the circumstances, the attitude adopted by third States with
respect to a sovereignty dispute may be of significance, in particular when
there are competing claims by two or more States.141 The views of third States
or the international community have proven to be an important element in
the theory of historical consolidation of title.142 Moreover, the approach of
the international community can in certain situations be determinative by,
136 Frontier Dispute (Burkina Faso/Mali), para. 63.

137 Kohen and Hébié, “Territory, Acquisition”, para. 35. Land, Island and Maritime Frontier
Case, paras. 61–62; Sovereignty over Pulau Ligitan and Pulau Sipadan, para. 126; Bound-
ary between Cameroon and Nigeria Case, para. 68; Frontier Dispute (Benin/Niger), para. 47;
Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea (Nicaragua
v. Honduras), icj Reports 2007, paras. 151–158.
138 Shaw, “Introduction”, xxiv; Kohen and Hébié, “Territory, Acquisition”, para. 39.
140 Ibid.
141 Shaw, “Introduction”, xxiv. In Legal Status of Eastern Greenland case, the pcij indicated
that Demark was entitled to rely upon a series of treaties with third countries as evidence
of recognition of Danish sovereignty over Greenland. In these treaties, which were mostly
commercial, Denmark had, through different formulas, excluded the application of the
treaty to its Northern possessions, including Greenland. The acceptance of this provision
“showed a willingness on the part of the States with which Denmark has contracted to
admit her right to exclude Greenland.” Legal Status of Eastern Greenland case, 51–52.
142 Eritrea/Yemen case, para. 516 (“Repute is also an important ingredient for the consolida-
tion of title.”).
178 chapter 3
for e xample, preventing effective control from crystalizing into title, in particu-
lar in situations where the un acts.143
Other Relevant Concepts
Different factors are relevant in a decision as to territorial entitlement. Thus,

in a particular case, a decision as to who is the sovereign will depend upon
the weight to be attached to these various factors, such as which is the criti-
cal date in the specific case, the “continued and effective occupation and
administration, acquiesce and/or protest, the relative strength or weakness of
any rival claim, the effects of the inter-temporal law, the principle of stabil-
ity in t erritorial title and boundaries, regional principles such as uti possidetis,
geographical and historical factors, the attitudes of the international commu-
nity and the possible requirements of self-determination, and also indeed the
possibly unlawful origin of the original taking of possession, and that subjuga-
tion is no longer per se a recognisable title.”144 Several of these factors will be
dealt with in the following paragraphs.
Recognition, Acquiescence and Estoppel

This section will address the relevance of recognition, acquiescence and estop-
pel in the acquisition of a title to territorial sovereignty.145
As Jennings explains:
Whereas recognition, even though it be tacit, is the adoption of a positive

acknowledgment on the part of a State, acquiescence may arise from a
mere omission to protest against a situation where a right to protest ex-
isted and its exercise was called for. Both recognition and acquiescence,
however, are manifestations of a legally operative consent on the part of
a State.146
143 Shaw, “Introduction”, xxvi.

144 Jennings and Watts, Oppenheim’s International Law, 716. See also Shaw, “Introduction”,
xxvi (“Another relevant theme that recurs in territorial questions is the balance between
historical and modern manifestations of sovereignty.”).
146 Ibid. See also MacGibbon, “Scope of Acquiescence”, 143 (“[T]he inaction of a State which
is faced with a situation constituting a threat to or infringement of its rights: it is not
intended to connote the forms in which a State may signify its consent or approval in
The rule of estoppel has been defined as operating:
... so as to preclude a party from denying the truth of a statement of

fact made previously by that party to another whereby that other has
acted to his detriment or the party making the statement has secured
some benefit: as such the rule has been accepted by international
tribunals.147
While all these concepts are interrelated, the role of each one of them in a ter-
ritorial dispute will depend on the specific interplay of the opposing parties’
effectivités and the representations by one party that it does not consider itself
sovereign.148
Acquiescence (or, in certain cases, express recognition) of the State pre-
scribed against is at the essence of the process of prescription.149 Express
recognition does not present many problems because if a State were to recog-
nize that another State holds title to the territory in question, combined with
the exercise of acts à titre de souverain, that will be determinative.150 Regarding
acquiescence in the context of territorial disputes, international tribunals have
regarded as decisive the lack of protest of a State with respect to effectivités by
an opposing State, together with the absence of State activity by the former.151
The icj summarized the jurisprudence on this issue in the Pedra Branca/Pulau
Batu Puteh case:
Under certain circumstances, sovereignty over territory might pass as

a result of the failure of the State which has sovereignty to respond to
a positive fashion. Acquiescence thus takes the form of silence or absence of protest in
circumstances which generally call for a positive reaction signifying an objection.”).
147 Derek Bowett, “Estoppel Before International Tribunals and its Relation to Acquiescence”,
British Yearbook of International Law 33 (1957), 176, 199.
149 Jennings, Acquisition of Territory, 38–39 (“[W]hatever assistance recognitions may be in
proving title by occupation – or cession – recognition is not a condition for the acquisi-
tion of title…. The conclusion seems to be, therefore, that recognition and questions of
acquiescence are strictly irrelevant to title by occupation.”).
150 Ibid., 39; Crawford, Brownlie’s Principles, 232. See Legal Status of Eastern Greenland case,
73 (Norway, through a declaration by its Foreign Minister, had accepted Danish title over
Greenland and was therefore “under an obligation to refrain from contesting Danish sov-
ereignty over Greenland as a whole, and a fortiori to refrain from occupying a part of
Greenland.”).
180 chapter 3
conduct à titre de souverain of the other State or, as Judge Huber put
it in the Island of Palmas case, to concrete manifestations of the dis-
play of territorial sovereignty by the other State (Island of Palmas Case
(Netherlands/United States of America), Award of 4 April 1928, riaa,
Vol. ii, (1949) p. 839). Such manifestations of the display of sovereignty
may call for a response if they are not to be opposable to the State in
question. The absence of reaction may well amount to acquiescence. The
concept of acquiescence [:]
“is equivalent to tacit recognition manifested by unilateral conduct
which the other party may interpret as consent …” (Delimitation of the
Maritime Boundary in the Gulf of Maine Area (Canada/United States of
America), Judgment, i.c.j. Reports 1984, p. 305, para. 130).
That is to say, silence may also speak, but only if the conduct of the
other State calls for a response.152
The Court went on to remark that, given that the effect of this process would
be the abandonment of sovereignty over part of the territory of a State, there
must be a clear and without doubt manifestation of the conduct and the rel-
evant facts.153 That is, as established in previous cases, abandonment is not to
be presumed and very little evidence of effectivités by the title holder will be
sufficient to prevent a change of the status quo, in particular in remote and
uninhabited areas.154
Another essential element of acquiescence in the law of territorial sover-
eignty is the knowledge or at least a presumption of knowledge of the affected
State of the effectivités by an opposing State since that is the only way that the
State against which prescription is meant to operate can “be expected to make
known its objection to it.”155 However, formal notification is not required.
Given the open and public character of the display of authority, the affected
State can be considered to have had constructive knowledge of the situation
152 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/
Singapore), icj Reports 2008, 12, para. 121.
153 Ibid., para. 122.
154 Crawford, Brownlie’s Principles, 233. See also supra note 136 and accompanying text,
referring to the pronouncement of the Chamber of the icj in the Frontier Dispute (Burkina
Faso/Mali) case in which the Chamber held that preference is given to a formal title when
there is a conflict between title and effectivités. Frontier Dispute, para. 63.
155 Blum, Historic Titles, 134, 138–139.
revailing in its territory in light of the c ircumstances of the case.156 Notifica-

p
tion will only be useful to help probe the knowledge by the affected State.157
While both notions of acquiescence and estoppel have a common origin
in the principles of good faith and equity and in a particular sovereignty dis-
pute the same facts can be relevant for both concepts, the main difference is
that for estoppel to be configured, there must be detrimental reliance by one
State and there is no requirement of consent for estoppel to arise (whereas
acquiescence indicates an expression of consent tacitly communicated).158
Thus, estoppel may entail “holding a government to a declaration which in fact
does not correspond to its real intention, if the declaration is unequivocal and
the state to which it is made has relied on it to its detriment.”159 However, in
territorial disputes estoppel must be used with caution as it will help in dubi-
ous situations to interpret facts and legal instruments but cannot per se be a
root of title.160
The interplay of recognition, acquiescence and estoppel can be seen in the
decision of the icj in the Temple of Preah Vihear case, which also evinces that
one of the consequences of an acquiescing conduct can be estoppel.161 In the
case, Thailand (formerly Siam) was held to have acquiesced through its conduct
in the demarcation of part of its frontier with Cambodia (at the time a French
protectorate), which included the ruins of the Temple of Preah Vihear. A 1904
treaty between Siam and France (on behalf of its protected State) had set the
frontier in the area, to be delimited by a joint frontier commission but the fixed
frontier by the commission was inconclusive as to where the line at the frontier
of the Temple laid. The final maps implementing the decision of the commission
were executed by the French authorities in 1907 upon the r equest of the Siamese
Government which did not have adequate means for such technical work.162
156 E.g. in the Fisheries case the United Kingdom was attributed constructive knowledge of
the Norwegian system of straight baselines in light of the uk’s status as “a coastal State
on the North Sea, greatly interested in the fisheries in this area, as a maritime Power
traditionally concerned with the law of the sea and concerned particularly to defend the
freedom of the seas.” Fisheries case, 139.
157 Blum, Historic Titles, 140, 144.
158 Numo Sérgio Marques Antunes, “Acquiescence” in Max Planck Encyclopedia of Public In-
ternational Law, Online ed., ed. Rüdiger Wolfrum, para. 24.
160 Ibid., 234–235; Jennings, Acquisition of Territory, 51.
161 Crawford, Brownlie’s Principles, 234; Jennings, The Acquisition of Territory, 47–51.
162 Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, icj Reports
1962, 6, 18–20.
182 chapter 3
Two instances of Thailand’s conduct amounted to acquiescence of the sover-

eignty of Cambodia over the area in question: (i) Thailand’s lack of reaction for
a long period of time with respect to the frontier marked on a map produced by
the French authorities in 1907 which placed the Temple on Cambodia’s territo-
ry and (ii) a 1930 visit of a “quasi-official character” to the Temple by the Prince
of Siam, at which he was “officially received … with the French flag flying.”163
The Court remarked that both episodes amounted to acquiescence or tacit rec-
ognition by Thailand of the sovereignty of Cambodia over the Temple164 and
assigned preclusive or estoppel consequences to Thailand’s conduct.165
The Critical Date

The critical date is the moment in time where the parties’ rights are to be
legally assessed in light of the facts underlying each dispute.166 In the words of
Blum: “It is the situation that prevailed at that given moment which serves as
163 Ibid., 6, 23, 30.

164 Ibid., 23 (“[I]t is clear that the circumstances were such as called for some reaction, within
a reasonable period, on the part of the Siamese authorities, if they wished to disagree
with the map or had any serious question to raise in regard to it. They did not do so, ei-
ther then or for many years, and thereby must be held to have acquiesced.”); ibid., 30–31
(“Looking at the incident [of the Prince’s visit] as a whole, it appears to have amounted to
a tacit recognition by Siam of the sovereignty of Cambodia (under French Protectorate)
over Preah Vihear, through a failure to react in any way, on an occasion that called for a
reaction in order to affirm or preserve title in the face of an obvious rival claim.”).
165 Ibid., 32 (“The Court will now state the conclusions it draws from the facts as above set
out. Even if there were any doubt as to Siam’s acceptance of the map in 1908, and hence
of the frontier indicated thereon, the Court would consider, in the light of the subsequent
course of events, that Thailand is now precluded by her conduct from asserting that she
did not accept it. She has, for fifty years, enjoyed such benefits as the Treaty of 1904 con-
ferred on her, if only the benefit of a stable frontier. France, and through her Cambodia,
relied on Thailand’s acceptance of the map. Since neither side can plead error, it is imma-
terial whether or not this reliance was based on a belief that the map was correct. It is not
now open to Thailand, while continuing to claim and enjoy the benefits of the settlement,
to deny that she was ever a consenting party to it.”).
166 Kohen and Hébié, “Territory, Acquisition”, para. 50. The function of the critical date is re-
stricted to a dispute to be litigated before a court or arbitral tribunal. As explained by Sir
Robert Jennings in his 1967 Hague Academy course: “The reference to ‘litigated disputes’
makes by implication an important point about the doctrine of the critical date properly
so-called which is often overlooked; namely that its function is confined to a dispute to
be litigated before a court or other tribunal. It is essentially concerned with joinder and
definition of an issue. And indeed it is obvious that a notion that events after a certain
date are ineffective in law can only be relevant where the ‘future’ itself must be deemed
to halt at the date of the crystallization of a particular issue to be litigated. History, on the
the legal criterion and yardstick by which the merits of the conflicting parties’
alleged rights are being measured.”167 The dispute is said to be “crystallized” at
that date with the consequence that acts after that date cannot affect the par-
ties’ legal position.168
The need to determine a critical date arises given the fact that territorial
disputes entail a series of events occurring over a considerable period of
time,169 which can sometimes amount to several centuries.
Sir Gerald Fitzmaurice has referred to the critical date as “the date after
which the actions of the parties can no longer affect the issue. Such a date
must obviously exist in all litigated disputes, if only for the reason that it can
never be later than the date on which legal proceedings are commenced. The
actions of the parties after that date cannot affect their legal positions or rights
as they then stood.”170 The critical date is that at which time stops and whoever
has title retains it.171
In certain territorial disputes, the critical date is said to be “self-evident” or
obvious, as in these disputes there is usually a treaty or event which focuses
the precise issues at a point in time.172 However, in many other territorial
other hand, though it knows dates that are critical, knows none at which time is deemed
to stop.” Jennings, “General Course”, 425.
167 Blum, Historic Titles, 209.
168 Shaw, “Introduction”, xxii.
170 Sir Gerald Fitzmaurice, “Law and Procedure of the International Court of Justice, 1951–54:
Points of Substantive Law, Part ii”, British Yearbook of International Law 32 (1955–6): 20–
96, 20.
171 See The Minquiers and Ecrehos Case (France/United Kingdom), icj Pleadings, Vol. ii, 64
(speech of Sir Gerald Fitzmaurice).
172 Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 22; Jennings, Acquisition of Territory,
31–32. Examples of cases where the critical date was obvious are the Eastern Greenland
case and the Island of Palmas case. In the former case, the pcij stated that “the date at
which … Danish sovereignty must have existed in order to render the Norwegian occupa-
tion invalid is the date at which the occupation took place, viz., July 10th, 1931…. [T]he
critical date is July 10th, 1931.” Legal Status of Eastern Greenland case, 45. This date was
the date in which Norway issued a proclamation of the occupation of Greenland. At that
date, the territory was either terra nullius, thus making the Norwegian claim valid, or
was already subject to Danish sovereignty thus making the Norwegian declaration and
occupation invalid. Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 22. In the Island
of Palmas case, the Treaty of Paris of December 10, 1898 by which Spain ceded territory to
the United States, alleging to cover the island, was the critical date. “[T]he question arises
whether sovereignty … existed at the critical date, i.e., the moment of conclusion and
coming into force of the Treaty of Paris.” Island of Palmas case, 845.
184 chapter 3
d isputes, there is not such an obvious critical date and the determination of
the critical date is usually a matter of controversy between the parties.173 The
way to determine the critical date in these cases is to establish the point in
time where the parties formally opposed each other’s claim, i.e., when the dis-
pute is crystallized.174
In the absence of an obvious factor or event in determining the critical date
of a sovereignty dispute, Fitzmaurice has suggested a series of criteria to ascer-
tain this date, in which the conduct of the parties in relation to their claims
will be a material factor.175 In determining the critical date in these circum-
stances, account should be taken of the object of establishing the critical date,
i.e., “to ensure that the dispute is determined on the basis that seems most just
173 Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 22; Jennings, Acquisition of Territory,
32–33. In the Minquiers and Ecrehos case, the issue of the critical date was at the center of
the parties’ submissions. France advocated for an early critical date of 1839 resulting from
an Anglo-French Fishery Convention of that year which established joint fishery rights in
an area including the islands in dispute. Accepting this critical date would have excluded
from consideration events after 1839 which provided strong evidence of sovereignty for
the u.k. The u.k., for its part, maintained that the critical date was 1950, the date of sub-
mission of the case by compromis to the icj, arguing that it was only at that date that the
dispute properly crystallized. The icj did not adopt either of those dates as the critical
date in the case. Neither did the Court expressly state which was the critical date in the
case, it only implicitly did so by indicating that the years 1886 and 1888 were when “a dis-
pute as to sovereignty over the groups … ar[o]se… when France for the first time claimed
sovereignty over the Ecrehos and the Minquiers respectively.” Minquiers and Ecrehos case,
59. See also, Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 37–39 (describing the
arguments of the parties in the Minquiers and Ecrehos case); Blum, Historic Titles, 216–217
(commenting on the concept of the critical date in the Minquiers and Ecrehos case); Jen-
nings, Acquisition of Territory, 32–33.
175 Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 23–30. Sir Gerald Fitzmaurice set
out six different moments at which the critical date could be established: “(i) the date of
the commencement of the dispute; (ii) the date (not necessarily the same as in (i)) when
the challenging or plaintiff State first makes a definite claim to the territory; (iii) the date,
which again may or may not coincide with one of the foregoing, when the dispute ‘crystal-
lized’ into a definite issue between the parties as to territorial sovereignty; (iv) the date
when one of the parties proposes and … takes active steps to initiate a procedure for the
settlement of the dispute, such as negotiations, conciliation, mediation, reference to, or
use of, the machinery of an international organization, or other means falling short of ar-
bitration or judicial settlement; (v) the date on which any of these procedures is actually
resorted to and employed; (vi) the date on which, all else failing, the matter is proposed to
be or is referred to arbitration or judicial settlement.” Ibid., 23–24.
and equitable, having regard to all the circumstances of the case.”176 On this
basis, the “position existing on the date on which the differences of opinion
that have arisen between the Parties have crystallized into a concrete issue giv-
ing rise to a formal dispute”177 will be key and “in the absence of any overriding
factor, it will constitute the critical date.”178
There can even be more than one critical date in a sovereignty dispute de-
pending on the titles claimed.179 This is particularly relevant in the Abu Musa
and Tunbs dispute as will be evident from the discussion set out in the follow-
ing chapters.
The relevance of ascertaining the critical date is not only to determine the
applicable law but also, and more critically, to distinguish which facts are to be
considered for the purpose of establishing sovereignty. Thus, those facts occur-
ring after the critical date will not be taken into account to determine a title to
territory and a State cannot improve its legal position in the litigation of the
dispute by performing any of these acts after the critical date.180 However, the
consideration of subsequent events to the critical date is not excluded alto-
gether in certain special circumstances. Only those acts taken with a view to
improving the legal position of a party (also referred to as “mere manoeuvre
for position”181) will be ruled out, as the icj found in the Minquiers and Ecréhos
case.182 Subsequent acts that are “genuine evidence of the exercise of sover-
eignty” as it existed at the critical date will not be excluded.183
176 Ibid., 24 (citing from his oral pleadings as agent for the United Kingdom in the Minquiers
and Ecrehos case).
177 Ibid., 24
178 Ibid., 28.
179 Kohen and Hébié, “Territory, Acquisition”, para. 52; Jennings, Acquisition of Territory, 34.
180 Kohen and Hébié, “Territory, Acquisition”, paras. 50–51.
182 Minquiers & Ecréhos case, 59. See also Jennings and Watts, Oppenheim’s International Law,
para. 273, 711, Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 38; Territorial and
Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea, 697–698,
para. 117 (“[T]he significance of a critical date lies in distinguishing between those acts
performed à titre de souverain which are in principle relevant for the purpose of assessing
and validating effectivités, and those acts occurring after such critical date, which are in
general meaningless for that purpose, having been carried out by a State which, already
having claims to assert in a legal dispute, could have taken those actions strictly with the
aim of buttressing those claims.”).
183 Jennings, Acquisition of Territory, 34. See also Sovereignty over Pulau Ligitan and Pulau
Sipadan, para. 135 (“[The Court] cannot take into consideration acts having taken place
after the date on which the dispute between the Parties crystallized unless such acts are
186 chapter 3
Intertemporal Law
The doctrine of intertemporal law embodies a general principle of law by
which the law contemporaneous with the occurrence of an event is the law
to be applied in order to determine its effects under international law, as op-
posed to the law prevailing at the time when a claim is made.184 Although the
doctrine has particular application in questions of territorial claims given the
fact that title to territory is often based upon events that happened several
centuries in the past when a different set of rules of international law may have
existed, there are other areas in which the doctrine also applies, such as the
validity and effect of treaties.185
Perhaps the most oft-quoted articulation of the doctrine of intertemporal
law with respect to the legal requirements at a certain point in time to estab-
lish title to territory can be found in the Island of Palmas case where arbitrator
Max Huber stated:
[A] juridical fact must be appreciated in the light of the law contempo-
rary with it, and not of the law in force at the time when the dispute in
regard to it arises or falls to be settled.
…
As regards the question which of different legal systems prevailing
at successive periods is to be applied in a particular case (the so-called
intertemporal law), a distinction must be made between the creation
a normal continuation of prior acts and are not undertaken for the purpose of improving
the legal position of the Party which relies on them.”).
184 Jennings, Acquisition of Territory, 28. See also, Gerald Fitzmaurice, “The Law and Proce-
dure of the International Court of Justice, 1951–1954: General Principles and Sources of
Law”, British Yearbook of International Law 30 (1953): 1–70, 5 (“It can now be regarded as
an established principle of international law that in such cases the situation in question
must be appraised, and the treaty interpreted, in the light of the rules of international law
as they existed at the time, and not as they exist today. In other words, it is not permissible
to import into the legal evaluation of a previously existing situation, or of an old treaty,
doctrines of modern law that did not exist or were not accepted at the time, and only
resulted from the subsequent development or evolution of international law.”). The In-
stitut de Droit International adopted a Resolution in 1975 “The Intertemporal Problem in
Public International Law” which established the application of this principle as follows:
“Unless otherwise indicated, the temporal sphere of application of any norm of public
international law shall be determined in accordance with the general principle of law by
which any fact, action or situation must be assessed in the light of the rules of law that are
contemporaneous with it.” Institut de Droit International, The Intertemporal Problem in
Public International Law (Session of Wiesbaden, 1975).
185 Jennings, Acquisition of Territory, 28; Markus Kotzur, “Intertemporal Law”, in Max Planck
Encyclopedia of Public International Law, Online ed., ed. Rüdiger Wolfrum, paras. 1–3.
of rights and the existence of rights. The same principle which subjects
the act creative of a right to the law in force at the time the right arises,
demands that the existence of the right, in other words its continued
manifestation, shall follow the conditions required by the evolution of
law.186
As seen from this passage, there are two elements to the principle of intertem-
poral law as articulated by Max Huber. Essentially what Huber was alluding to
was that while it is the case that the rules that must be applied to determine
whether a State has, at a given time, acquired sovereignty over a territory are
the ones prevailing at that time, the maintenance of sovereignty must also ac-
cord to the changes and evolution of the law.187
The first aspect of the principle has been uncontroversial but the second
aspect has given rise to criticisms in the sense that it could cause instability by
threatening legal titles established in the past by a method which is no longer
valid today.188 That would be the case of sovereignty acquired by conquest in
the past and any titles derived from it by other methods.189 However, a strict
application of this second aspect of intertemporal law which could result in
absolute instability of titles to territory is mitigated by the interplay of other
principles of international law such as recognition, acquiescence, the rule that
abandonment is not to be presumed and the rule against non-retroactivity of
treaty provisions.190
The meaning of the second aspect of Huber’s articulation of the intertempo-
ral law doctrine has been aptly summarized by Judge Higgins in the following
way:
The second element may then be seen as providing that the creation of
an initial right does not of itself suffice to maintain it up to the moment
of the claim. Perpetuation of that right, demonstrated by effective
186 Island of Palmas Case, 845.

187 Markus Kotzur, “Intertemporal Law”, para. 6; Taslim. O. Elias, “The Doctrine of Intertem-
poral Law”, American Journal of International Law 74 (1980): 285–307, 286; Shaw, “Intro-
duction”, xxi.
188 For a full criticism of the second aspect of intertemporal law see Philip C. Jessup, “The
Palmas Island Arbitration”, American Journal of International Law 22 (1928): 735–752.
189 It is of note that General Assembly Resolution 2625 (1970), after stating that “No territorial
acquisition resulting from the threat or use of force shall be recognized as legal” indicates
that this will not affect “[p]rovisions of the Charter or any international agreement prior
to the Charter regime and valid under international law.”
190 Elias, “Doctrine of Intertemporal Law”, 286–287; Crawford, Brownlie’s Principles, 218–219.
188 chapter 3
o ccupation (as required by later law), is necessary. The Huber dictum,

taken in its entirety, may be taken as providing that by virtue of the prin-
ciples of inter-temporal law a State must continue to maintain a title,
validly won, in an effective manner – no more and no less.191
Therefore, the essence of the second limb of the dictum in the Island of Palmas
case regarding intertemporal law means that a State, after acquiring rights over
territory, will have to effectively maintain those rights.
Uti Possidetis Juris and Its Relation to the Right of

Self-determination
The principle of uti possidetis juris is a norm of customary international law
governing territorial delimitations between newly constituted States which
provides that the boundaries of old administrative or political unities of
colonies are to constitute the boundaries of the new States.192 As explained
by the Chamber of the icj in the Frontier Dispute (Burkina Faso/Mali) case,
the principle also applies to “international frontiers which previously divided
a colony of one State from a colony of another, or indeed a colonial territory
from the territory of an independent State, or one which was under protector-
ate, but had retained its international personality.”193
Although the application of the principle can be derogated by agreement
of the newly constituted States, it is a general principle or the default rule of
international law when dealing with newly independent States and its over-
all aim is to avoid disputes over territorial delimitations which could have an
impact on the stability of the newly created States.194
191 Rosalyn Higgins, “Time and the Law: International Perspectives on an Old Problem”,
International and Comparative Law Quarterly 46 (1997): 501–520; 516. See also Jennings,
Acquisition of Territory, 30.
192 Giuseppe Nesi, “Uti Possidetis Doctrine”, in Max Planck Encyclopedia of Public International
Law, Online ed., ed. Rüdiger Wolfrum, paras. 7–8.
193 Frontier Dispute case (Burkina Faso/Mali), para. 24.
194 Crawford, Brownlie’s Principles, 239. The Chamber of the icj in the Frontier Dispute case
stated: “Nevertheless the principle [of uti possidetis juris] is not a special rule which per-
tains solely to one specific system of international law. It is a general principle, which is
logically connected with the phenomenon of the obtaining of independence, wherever it
occurs. Its obvious purpose is to prevent the independence and stability of new States be-
ing endangered by fratricidal struggles provoked by the challenging of frontiers following
the withdrawal of the administering power.” Frontier Dispute case (Burkina Faso/Mali),
para. 20. In their compromis submitting the case to the icj Burkina Faso and Mali referred
to the principle of uti possidetis juris by requesting the Chamber of the Court to settle
The origin of the rule was in the context of decolonization, but it is also
applicable in non-decolonization contexts such as the dissolution of federal
States. The rule emerged as a regional norm in the nineteenth century in Latin
America for the determination of boundaries of States becoming independent
from Spain and Portugal, which adopted as their boundaries the pre-existing
administrative boundaries of the colonial authorities at the date of indepen-
dence.195 In the 1960s when many African States started to become indepen-
dent, the same principle was applied to the delimitation of the frontiers of the
newly independent States.196 As for the application of the principle in non-
colonial contexts, in the dissolution of the Former Yugoslavia and the ussr
and the separation of the Czech and Slovak Republics, the international bor-
ders amongst the newly formed States corresponded with the borders of the
administrative divisions of the predecessors federated States, thus constituting
something of an effective application of the doctrine.197
With respect to the application of the principle of uti possidetis in the con-
text of the Gulf States that were previously subject to British Protectorates,
despite the fact that these States have resorted to arguments on this basis in
territorial disputes amongst themselves, it was made clear in separate and dis-
senting opinions of the icj that the principle is not applicable to these States
as they are not considered former colonies.198
their boundary dispute “based in particular on respect for the principle of the intangibil-
ity of frontiers inherited from decolonization.” Ibid., paras. 2, 19–20.
195 Nesi, “Uti Possidetis Doctrine”, para. 3; Crawford, Brownlie’s Principles, 238.
196 Nesi, “Uti Possidetis Doctrine”, para. 4; Crawford, Brownlie’s Principles, 238. See Organiza-
tion African Union, Border Disputes Among African States, AHG/Res 16(i), July 21, 1964
(“[A]ll Member States pledge themselves to respect the borders existing on their achieve-
ment of national independence.”).
197 Nesi, “Uti Possidetis Doctrine”, paras. 15–16; Crawford, Brownlie’s Principles, 239.
B
ahrain), Separate Opinion of Judge Kooijmans, paras. 16, 24, 25; Maritime Delimitation
and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment, Sepa-
rate Opinion of Judges Bedjaoui, Ranjeva and Koroma, icj Reports 2001, 145, para. 214
(“Our agreement with the Court’s analysis ruling against the application of the principle
[of uti possidetis juris] to the present case is inspired by a variety of reasons. First, the ‘spe-
cial relationship of protection’ between the United Kingdom and the two States parties
to the present dispute gave rise to a flexible division, evolving over time, of responsibili-
ties between the protecting Power and the protected State, as a result of which the State
retained its personality; this was not the case for most countries in Africa. There could
be no question of applying the principle of uti possidetis juris, since no new subject of
international law had been created; that is to say, there was no State succession in the
190 chapter 3
Finally, the relationship of the uti possidetis juris principle with the right of
self-determination needs to be addressed as, at first sight, the former appears to
be in direct clash with the latter given that the delimitations in the colonial era
or of the central authorities of a federal State often were of an arbitrary nature
without bearing in mind the will of the populations living in the territory.199
This is an aspect which the Chamber of the icj highlighted in the Frontier
Dispute (Burkina Faso/Mali) case. However, the Chamber stressed the para-
mount importance of the maintenance of the status quo in Africa by i ndicating
that while African States have judiciously consented to respecting territorial
frontiers by application of uti possidetis, they have done so while taking into
account the principle of self-determination of peoples.200 Without the need to
redraw de novo the boundaries existing at the time of independence, ways of
respecting the right of self-determination include agreeing to territorial modi-
fications of the boundaries resulting from the uti possidetis principle or allow-
ing the populations concerned to have a say on the matter.201
present case.”). The majority of the icj did not deal with this issue as it decided the case
on other issues.
199 Nesi, “Uti Possidetis Doctrine”, para. 19.
200 Frontier Dispute case (Burkina Faso/Mali), para. 25 (“However, it may be wondered how
the time-hallowed principle has been able to withstand the new approaches to interna-
tional law as expressed in Africa, where the successive attainment of independence and
the emergence of new States have been accompanied by a certain questioning of tradi-
tional international law. At first sight this principle conflicts outright with another one,
the right of peoples to self-determination. In fact, however, the maintenance of the ter-
ritorial status quo in Africa is often seen as the wisest course, to preserve what has been
achieved by peoples who have struggled for their independence, and to avoid a disruption
which would deprive the continent of the gains achieved by much sacrifice. The essen-
tial requirement of stability in order to survive, to develop and gradually to consolidate
their independence in all fields, has induced African States judiciously to consent to the
respecting of colonial frontiers, and to take account of it in the interpretation of the prin-
ciple of self-determination of peoples.”).
201 Nesi, “Uti Possidetis Doctrine”, para. 21.
chapter 4
The Pre-Sixteenth Century Period and the

Existence of Historic Rights of Ownership
The positive claim asserted by the uae that it is the rightful territorial
sovereign over the three islands is not directly founded on any historical events
pre-dating the eighteenth century. Of the various theories which have been
advanced or referenced by or on behalf of Iran in support of its claim of sover-
eignty, however, one of those is linked to its argument that the islands belong
to it based on the existence of an historic and immemorial title stretching
back to the Achaemenid Empire (550–330 b.c.) and presumably (although this
has not been made entirely clear) running through to modern times almost
without interruption. Variations of this argument have been articulated both
by the Government of Iran and, in somewhat greater detail, by various scholars
who support Iran’s claim. This chapter will consider the legal arguments which
relate to the claim that such an historic and immemorial title exists and could
be legally established by Iran, with specific reference to the historical p
eriod
pre-dating the sixteenth century when the arrival of the Portuguese to the
Gulf introduced dramatic changes, involving considerations of both conquest
and treaty, which affect the analysis of the chain of asserted ownership of the
islands and which merit separate discussion. These matters will be considered
in the following chapter.
Iranian Claims of Historic Rights of Ownership
In its statement to the United Nations Security Council on December 9, 1971

during the debate over its seizure of the Tunbs and its acquisition of partial
control of Abu Musa, the representative of the Iranian government noted the
existence of Iran’s “historic title” over the islands and suggested that Iran’s en-
joyment of those rights of ownership had merely been interrupted during the
period in which Britain had defended Qawásim claims over the islands and pre-
vented Iranian government attempts to secure them (presumably from 1887 un-
til 19711). The statement made by the Iranian representative was the following:
1 From historical records that clearly establish Iran’s objections to the British intervention
which prevented the planting of Persian flags on the Tunbs and Abu Musa in 1887 and 1888,
it would appear that Iran’s assertion is that British defense of Qawásim claims began at that

192 chapter 4
But it is right, I think, that the Council should know that the Iranian
title to the islands is both long-standing and substantial. It has not been
developed recently to justify the measures now taken. These are only
the present reflection of a historic title which could not remain physi-
cally unasserted upon the removal from the Persian Gulf of the British
presence.2
A letter sent to the Security Council by the Iranian government in 1980 also
reflected the position that Iran’s long-standing sovereignty over the islands
had only been interrupted for a limited period by their “occupation” by the
British government: “Iran has continually exercised her sovereignty over this
part of her territory, and only during the period that the British colonial Power
occupied the islands by force was Iranian sovereignty temporarily interrupted,
and after the departure of the British forces from the Persian Gulf in 1971 Iran
resumed the exercise of her rightful sovereignty over these islands.”3 Although
not relevant to this chapter, it might be noted that by this statement, the Ira-
nian representative presumably meant that Iran’s “possession” or “control” of
the islands (rather than its sovereignty) was “temporarily interrupted ” by the
asserted British occupation since, if that “occupation” existed and was unlaw-
ful, as Iran claims, this would not have deprived Iran from maintaining its legal
sovereignty over the islands during that occupation. In any case, Britain never
claimed sovereignty over the islands nor physically occupied them, although it
did conduct occasional naval visits. Rather, what it did do, from September 1887
(when the Persian claim was first, albeit loosely, asserted) until November 1971,
was to effectively protect the islands, on behalf of Sharjah and Ras Al Khaimah,
from attempts by Iran to take possession of or otherwise assert control over
them. Thus, rather than an occupation, Britain’s actions in defense of the
time and ended in November 1971, when the Memorandum of Understanding was signed in
connection with Abu Musa and Iran seized and took possession of the Tunbs by force. How-
ever, in later diplomatic statements, including one made to the U.N. General Assembly in
1993, Iran identified the period of the “interruption” of its sovereignty over the islands as run-
ning from 1904 to 1971. The 1904 start-date obviously refers to the “flag incident” of that year,
when the British government intervened on behalf of the Qawásim to insist on the removal
of the Persian flag which had been forcibly planted by Belgian customs agents on Greater
Tunb and Abu Musa against the wishes of the Qawásim. See chapters 2 and 8.
2 Security Council Official Records, 26th Year, 1610th Meeting, December 9, 1971, un Doc. S/
PV.1610, para. 211.
3 Letter from the acting Minister for Foreign Affairs of Iran, conveyed by a letter from the
Chargé d’Affaires of the Permanent Mission of Iran addressed to the Secretary-General of the
United Nations, dated 26 November 1980, un Doc. S/14241.
The Pre-sixteenth Century Period 193
Qawásim allowed them to continue to possess and use the islands during this
eighty-four-year period notwithstanding the Persian claims of ownership. Be
that as it may, for purposes of the present chapter, statements made by the
Iranian government, such as those referenced above, along with the scholarly
views of various supporters of Iran’s claim (see below) clearly reflect the no-
tion that Iran’s sovereignty over the islands may be traced to antiquity and can
therefore be established by an historic and ancient title which was maintained
through the centuries, indeed according to some for more than two thousand
five hundred years, until the present day.
As mentioned, Iran’s asserted historic or ancient title to the islands has been
articulated by a number of scholars supporting its claims. Although there are
differences between them, a fairly consistent theme advocating Iran’s historic
title or rights over the islands runs through them. It is helpful and instructive,
therefore, to review how the proponents of such an argument generally have
expressed their support for that argument.
One scholar, tracing the beginning of Iran’s title over the islands to the
Achaemenid Empire, maintains that it continued uninterrupted through the
Seleucid, Parthian and Sassanid periods, stretching from 550 b.c. to 641 A.D,
during which time Iran exercised “political and military domination … over
the Persian Gulf”.4 This domination “supports the necessary conclusion that
in ancient and medieval times the Tonbs would have had to belong to Iran.”5
While acknowledging that available historical records do not specifically state
that Persian dynasties or empires controlled and used Abu Musa or the Tunbs
during this lengthy period of time, nor identify the islands by name, this histor-
ical narrative asserts that Persian control of the islands can be assumed given
its overall domination of inland and coastal areas around the Gulf. Another
contemporary Iranian writer, adopting a similar perspective, explains Iran’s
historical title as follows:
Iran’s claim to the historical title can be traced to antiquity, although the
names of Tumb or Abu Musa do not appear in the works of the classi-
cal historian. These islands were too small and relatively insignificant
to be specifically named in the vastness of the Iranian Empire from the
sixth century bc to the seventh century ad.6
4 Guive Mirfendereski, “The Ownership of the Tonb Islands: A Legal Analysis”, in Small Islands,
Big Politics, The Tonbs and Abu Musa in the Gulf, ed. Hooshang Amirahmadi, (New York: St.
Martin’s Press, Macmillan 1996), 120–121.
5 Ibid.
6 Farhang Mehr, A Colonial Legacy, The Dispute Over the Islands of Abu Musa, and the Greater
and Lesser Tumbs (Lanham, Maryland: University Press of America, 1997), 143.
194 chapter 4
Although by and large these scholars acknowledge the lack of specific histori-
cal references to the islands or Persia’s sovereignty over them, they argue that,
as an historical matter, it is reasonable to rely on assumptions derived from
historical occurrences which, they maintain, indirectly establish that Persia
must have controlled the islands or that, by conjecture, they must have fallen
within the continuous territorial sphere of successive Persian empires over
centuries. For example, one scholar who supports the Iranian claim states with
regard to presumed Persian ownership of Abu Musa throughout history that:
In the Iranian consciousness, Abu Musa Island has belonged to Iran by

virtue of her longstanding and substantial historical title to it. Under-
standably, a country as ancient as Iran whose core territorial character
was formed more than two thousand five hundred years ago cannot be
expected to produce a certificate of title, bill of sale, or a grant document
for every inch of its present-day territory. By the same token, one can
hardly expect that a territorial sovereign be made to account for a part
of its territory by means of producing documentation to show uninter-
rupted and continuous chain of custody or title.7
The same author goes on to note that:
[T]here appears to be no explicit mention in the pre-eighteenth c entury

annals of the Persian Gulf about the appurtenance of Abu Musa to a par-
ticular territorial sovereignty. A barren island devoid of potable water
and far flung from the major shipping lanes, it hardly would have mer-
ited any early description by local historians and geographers or, later, by
European surveyors.
…
The examination of the political circumstances of the Persian Gulf in
successive historical periods leads to the conclusion that the island, bar-
ring the production of evidence to the contrary, would have been in all
likelihood a part of Iranian territory. This conclusion is based upon two
interrelated considerations: (i) the territorial extent of the Iranian state
in the Persian Gulf which, for the most part, also included coastal sites on
the Arabian peninsula bordering the Persian Gulf and the Sea of Oman,
7 Davoud H. Bavand, “The Legal Basis of Iran’s Sovereignty over Abu Musa Island”, in Small
Islands, Big Politics, The Tonbs and Abu Musa in the Gulf, ed. Hooshang Amirahmadi (New
York: St Martin’s Press, Macmillan 1996), 78.
and (ii) the Iranian political, commercial, and military domination in the
Persian Gulf.8
In similar fashion, another scholar who supports the Iranian claims to the
islands states the following with regard to the Tunbs:
The challenge here to a jurist and historian is to examine records c overing

tens of centuries of Persian Gulf history in order to unearth evidence
about the connection of the Tonbs to either claimant. A m odest endeavor
in this vein has resulted in spotting a few direct pieces of e vidence
regarding the status of the Tonbs. The bulk of the findings, h owever,
consists of indirect evidence along with all the necessary inference and
conjecture which flow from it. The paucity of reference to the Tonbs in
pre-nineteenth century material is no doubt owed to the Tonbs being
among those islands in the Persian Gulf, which, to paraphrase a tenth
century geographer, are numerous but desolate, unknown, and small,
and therefore unworthy of mention.9
The narrative in support of the existence of Iran’s ancient title over the islands
further asserts that, despite the conquest and control of Persia and the Gulf by
the Arab Caliphates which occurred with the advent of Islam in the seventh
century, during the Islamic period the Persians maintained their de facto domi-
nation of the Gulf through their navigators, maritime tradesmen and seagoing
people. Thus, according to one Iranian historian, “[u]nder the Caliphs, Iranians
not only maintained their dominance over the Persian Gulf and its maritime
trade, but also managed to extend their influence far and wide in the Zone of
Islam.”10 Apart from their navigators, maritime tradesmen and seagoing people
who continued to control the Gulf during the Umayyad and Abbasid Caliph-
ates, the Persians are said to have also maintained their formal control of the
Gulf (presumably including its islands) through the Persian dynasties, most
prominently the Buyids, who “restored Iran’s control of the southern Gulf”11
and administered and controlled the lower Gulf area, albeit nominally under
Arab Caliphate rulers, for over a century (945–1055):
8 Ibid., 78–79.
9 Mirfendereski, “Ownership of the Tonb Islands”, 120.
10 Mehr, A Colonial Legacy, 30.
11 Pirouz Mojtahed-Zadeh, Security and Territoriality in the Persian Gulf (London and New
York: RoutledgeCurzon,1999), 165.
196 chapter 4
This was a Muslim Iranian government in the guise of Arab supremacy …

Thus, the Buyids controlled the Upper and Lower Gulf, and the Persian
Gulf became an Islamic Iranian Gulf for over a century, its islands under
Iranian dominion.12
The following description of Persian control of the Tunbs during the Buyid
dynasty demonstrates the manner by which this narrative makes assump-
tions as to Persian ownership of the islands based on surrounding historical
events:
The rise of the Buyid rulers in Iran in the middle of the tenth century
marked the return of direct Iranian political control in the Persian Gulf.
The Buyids annexed Oman in a.d. 973 and made it a part of the Iranian
province of Fars. The position of the Tonbs near the Iranian coast and the
bicoastal dominion of the Buyids in the eastern Persian Gulf leads to the
inescapable and necessary conclusion that in Buyid times (a.d. 945–1055)
the Tonbs in all likelihood belonged to Iran. Just as Oman was annexed
to Fars, the Tonbs too in all likelihood belonged to Fars as a matter of the
administrative structure of Iran’s maritime possessions.13
Persian control of the Gulf and its islands continued, according to this narra-
tive, during the reign of the Seljuks “of Northwest Iran” (1055–1194), when “the
Iranian dominion in the Persian Gulf … continued unabated”:14
With regard to the Persian Gulf, Saljuks were almost in the same position
as the Buyids. They had dominion over the littoral coast of Iran as well
as over the Lower Gulf. They conquered Oman and thus completed their
hold on the islands of the Persian Gulf.15
It is also asserted in other scholarly writings that Persian dominion over the
islands of the Gulf, specifically including Abu Musa, Greater Tunb and Lesser
Tunb as Persian “dependencies”, was formalized in the twelfth century, and
that their status as such continued through the Safavid era, having been inter-
rupted only by the Portuguese rule from the early sixteenth century until 1622.

14 Ibid.
These assertions about Abu Musa, Greater Tunb and Lesser Tunb are, however,
made without any specific supporting evidence.16
Thus, this narrative maintains that during much of the period of the Arab
Caliphates, running from the seventh century until approximately the mid thir-
teenth century, the Gulf and its islands were effectively controlled by Persians,
albeit often under titular Arab Caliphate rule. A necessary consequence of
this regional control is that the three islands “in all likelihood” must have be-
longed to Persia. Therefore, Persian ownership and authority over the islands,
which had existed before the rise of Islam, must have continued after an initial
phase of direct Arab Caliphate control, virtually uninterrupted from the tenth
century onwards and throughout this historical period. And even prior to that
time, the persons who in fact dominated activities on the Gulf were Persian
navigators and sailors. Following the Mongol invasions in the mid thirteenth
century and until the arrival of the Portuguese (and later other European colo-
nialists) in the late fifteenth and early sixteenth centuries, control of the Gulf
was in flux and to a significant extent it was a “lawless” region. However, it
remained part of Persia’s historical territory and domain even if at times tem-
porarily out of direct Persian control and subjected to “piratical” Arab tribes
who preyed “on the ships that sailed in the Gulf.”17
A significant historical aspect of the period following the Mongol invasions
and before the arrival of European powers (principally the Portuguese) in the
Gulf in the late fifteenth and early sixteenth centuries is, according to this
narrative sequence, the emergence of the Kingdom of Hormuz. According to
this narrative, the “principality of Hormuz”, although formed by Arabs origi-
nating from the Omani coast, was a “dependency of Iran”, “legally subordinate
to the governor (Atabeg) of the province of Fars.”18 Thus, while this narrative
maintains that Abu Musa and the Tunbs “likely” formed part of the “Hormuzi
territories”, the conclusion reached on the basis of this alleged historical fact
is that during the reign of Hormuz over the islands, from around the early
fourteenth century until the arrival of the Portuguese and their conquest of
Hormuz in 1507, the islands were under the ultimate control of Persia:
16 For example, this unsupported claim is made by Pirouz Mojtahed-Zadeh: “In the late
twelfth century, Abu Bakr Sa’d-e-Zangi, of the Atabegs of Fars, brought Oman, Bahrain
and other parts of the southern coast of the Gulf under his rule. Islands in the Gulf, in-
cluding Greater Tunb, Lesser Tunb and Abu Musa, were dependencies of the Atabegs.
Iranian domination of the lower Gulf continued until the arrival of the Portuguese in the
region, and was revived by the Safavid.” Mojtahed-Zahed, Security and Territoriality, 68.
18 Ibid., 32.
198 chapter 4
A similar conclusion may be drawn from the territorial and political

situation in the Persian Gulf at the time of the arrival of the Portuguese
to the area in 1507. At the time, the principality of Hormuz, itself a
dependency of Iran, included the territories of Old Hormuz (near Minab)
and Moghestan on the Iranian coast, Qalhat, Quryat, Mascat, Sohar, and
Khor Fakkan on the northeastern seaboard of Oman, and the islands of
Hormuz, Larak, Qishm, Kish, Shuaib, Hendorabi, and Bahrain. A decade
later, a more detailed roster compiled by a Portuguese navigator [Duarte
Barbosa] identified the Hormuzi territories as including (i) the tract from
Lingeh to Minab on the Iranian coast, (ii) the coast from Julfar (modern
Ras al-Khaimah) to Kassab in the lower eastern Persian Gulf, and (iii) the
islands in the Persian Gulf, including the Tonbs. Even though Abu Musa
is not mentioned explicitly, the presumed geographical situation of
Abu Musa – it being in the waters surrounded by Lingeh, Qishm, Tonbs,
Farurs, Ras al-Khaimah, and Kassab – argues rather persuasively in favor
of inclusion of the island in the roster of Hormuzi territories.19
Finally, and to bring the narrative in support of an almost continuous line of

territorial ownership over the islands from the reign of Darius i in the fifth
century b.c. until the arrival of the Portuguese in the Gulf and their conquest
of the Kingdom of Hormuz in 1507, it is asserted by some scholars supporting
the Iranian claim that in all likelihood the beginning of the Portuguese era
marked a temporary break in Persian ownership of the islands, at least with
respect to the Tunbs:
It is likely that the Tonbs formed part of the territories under Hormuzi
control and passed along with the rest of Hormuz to Portuguese control
in 1507.20
However, in line with this historical narrative, this break of ownership was only
temporary as, a few years following its defeat of the Portuguese at Hormuz
and Kishm island in 1622, Persia and Portugal signed a treaty under which the
Portuguese formally relinquished their ownership of the islands, which then
reverted to Persia. This treaty, apparently signed in 1625, and the legal signifi-
cance of the events beginning with the arrival of the Portuguese in the Gulf at
the beginning of the sixteenth century, will be discussed in the next chapter.

Although not tied directly to asserted ownership of the three islands, other
authors who support the Iranian claim have also suggested that Iran had an
“historic claim to supremacy” in the Gulf in a more general and broad fashion.
For example, one of these authors, Kourosh Ahmadi, recounts “Iran’s inherent
and historic position” regarding its right to regain control of the Gulf after the
British announced their intention to depart the region in 1971:
Iran, regardless of the political players at its helm, has always been the
major power of the Persian Gulf area, by virtue of geopolitical dictates,
and with an historic claim to supremacy in the region. It maintained this
claim through history, including during the period in which the British
dominated the Gulf….
When Britain left the region, Iran believed itself to be fully qualified to
reclaim the role it had played throughout most of its history. Iran was by
far the most powerful nation on the Persian Gulf in terms of h istorical,
geopolitical and military power. It had played an historic role from the
Achaemenian and Sassanian eras up to the Safavid and Nadder Shah
periods on both sides of the Persian gulf. It had enjoyed a position of
strength unrivalled among political entities in the area, and which had
been superseded only by the British superior naval force of the early
nineteenth century.21
Challenges in Establishing the Iranian Claims
It is not difficult to appreciate why the claim that Iran’s ownership of the
islands is founded on an original, ancient title based on immemorial pos-
session (whether this dates from Darius i in the fifth century b.c. or from
subsequently-formed Persian empires dating from or following the conquest
of Persia by the Arab Caliphate in the seventh century a.d.) would hold some
attraction for those supporting Iran’s claim. In the first place, there are histori-
cal realities about the strength and influence of successive Persian empires at
various locations around the Gulf and beyond which, although ancient, are
generally ascertainable and certainly give some resonance to that argument.
This history should not and cannot be ignored. Perhaps more directly rele-
vant to the discussion over sovereignty to the three islands, however, are the
legal consequences of either accepting or discarding the existence of such an
21 Kourosh Ahmadi, Islands and International Politics in the Persian Gulf: Abu Musa and the
Tunbs in Strategic Perspective (London and New York: Routledge, 2008), 75–76.
200 chapter 4
original title. Accepting that Iran is the beneficiary of an original title over the
islands which has endured through the ages – albeit not without periodical
difficulties – as a starting point would, and presumably is intended by those
supporting Iran’s claim, to focus the dispute narrowly on Iran’s long-held con-
tention that the British government acted unlawfully when, in defense of the
Qawásim, it forcibly prevented the Persian government from exercising its sov-
ereign rights, including the planting of its flag, on the islands, in 1887/1888 and
in 1904. If the premise that Iran held an historic title over the islands on the
basis of immemorial possession were true, the position set out in this con-
tention would certainly have been the case and there would be little else to
dispute. This is because Iran’s protests and affirmative actions to attempt to
take hold of the islands following 1887 would in all probability have been suf-
ficient to prevent Sharjah and Ras Al Khaimah, which thereafter continued
to possess the islands until 1971, from having acquired sovereignty over them
through the doctrine of acquisitive prescription.22
If, however, no ancient Persian title over the islands can be borne out,
whether because it cannot be established that it arose in the first place or be-
cause it was not kept up or held after it did come into existence, then from Iran’s
perspective, it would be necessary to demonstrate how it otherwise acquired
sovereignty over the islands at some point in more recent history. Explaining
how and when this occurred may prove to be a formidable u ndertaking, par-
ticularly as historical events in the Gulf following the Mongol invasions of the
thirteenth century involved numerous and varied actors (including the King-
dom of Hormuz, the Portuguese, the Dutch, the Qawásim and other maritime-
oriented Arab tribes, the Ottomans, the several dynasties from Oman and the
British), many of whom exerted at different times a dominating influence over
the southern Gulf waters where the islands are located and overshadowed or
supplanted entirely any Persian influence there. The difficulties the Persians
had in establishing a naval presence in the Gulf at any time during this histori-
cal period would present added difficulties in making out a credible claim that
Persia was able to control and acquired sovereignty over the islands within this
complex and somewhat chaotic mix of powers and the battles for control in
which those powers were continuously engaged.
Within this history, Iran would, in the absence of establishing an historic
title based on events from the Middle Ages, presumably have to argue either
(i) that the islands were terra nullius and it at some point acquired them on that
basis through an act of occupation, (ii) that it acquired them through cession
from Portugal in 1625, or (iii) that it acquired them through prescription from
22 These protests and actions are discussed in chapter 7.

a previous sovereign. Each of these theories presents evidentiary and there-

fore legal difficulties in the historical context of the Gulf, both with respect to
the original act which might be claimed to constitute sovereign acquisition
of the islands and with respect to the maintenance of that sovereign title.
In reality, however, whether it is argued that Persia obtained title over the
islands on the basis of an ancient and original title that is still in effect, or
that its title derives from more recent events and is based on occupation, ces-
sion or prescription, somewhat similar and equally difficult matters of proof
will be encountered. This is, among other reasons, because of the role of
continuity in the maintenance of a title based on an ancient right and imme-
morial possession. Thus, not only the establishment of such a title requires the
presentation of “concrete facts adduced … as evidence of possession during
the Middle Ages and subsequently”,23 treating presumptive evidence for this
purpose as insufficient per se and giving special importance to the exercise
of specific “state functions” in relation to the disputed territory (in particular
“the exercise of jurisdiction and local administration and to legislation”24), but
it is also necessary to keep up any title which was so acquired.25 The loss of a
title obtained through ancient right could occur either through the acquisition
of title by a nother sovereign through conquest or prescription, or in certain
circumstances through “a failure to renew, or too long a delay in renewing, the
concrete occupation.”26 These specific matters will be discussed below.
The assertion that Iran’s title to the islands originates in antiquity or may
be inferred from Iran’s powerful role around the periphery of the Gulf for
many centuries, described above in admittedly the briefest of ways through
excerpts from writings of scholars who support those views, thus raises two
fundamental questions. The first question is evidentiary and asks w hether, as
a matter of historical fact, the existence and maintenance of Persia’s ancient
or original title over the islands, demonstrated through its possession of
those features, may be established through reliable historical evidence.
1951–4: Points of Substantive Law, Part ii”, British Yearbook of International Law 32 (1955–56):
20–96, 50.
24 Minquiers and Ecrehos (France/United Kingdom), icj Reports 1953, 47, 65.
25 See, e.g., the well-known statement of Judge Huber in the Island of Palmas decision, in
which he noted that “the growing insistence” with which international law “has demand-
ed that the occupation shall be effective would be inconceivable, if effectiveness were
required only for the act of acquisition and not equally for the maintenance of the right.”
Island of Palmas Case (Netherlands/United States of America), Award of April 4, 1928, riaa
2 (1928) 829, 839.
26 Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 69.
202 chapter 4
The second question is whether, under prevailing principles of international

law, any legal significance may be derived from whatever historical record in
this respect e xists. This latter question involves a number of subsidiary ques-
tions, such as whether the asserted ancient title, if it can be established at all,
can be said to have been continuously held by Persia; whether, if such title was
lost at any particular time, it may be said to have been reestablished at some
later point, either through a subsequent occupation, cession, conquest or pre-
scription; and whether, particularly if an asserted original title is supported
with historical presumptions more than with any concrete factual evidence,
the acts of effective control over the territory by the currently disputing par-
ties (Iran and the uae) which are of more recent occurrence, and particularly
any such acts which were taken in the eighteenth to the twentieth centuries,
outweigh such presumptions or deductions from ancient history or the Middle
Ages.
As to these questions, it needs to be stated that it is not the purpose of this
book to purport to reach definitive conclusions on whether a claim by Iran to
the islands based on immemorial possession would be supported by serious
and neutral or objective historians or the evidence they, or Iran, might provide
if the dispute were ever to proceed to a formal adjudication. Such an exercise is
beyond the scope of this work and the credentials of its authors and, in the
absence of legal submissions which might be made by Iran and the uae in
a formal proceeding, would be presumptuous. Nevertheless, it is the purpose
of this book to come to reasonable conclusions as to the rightful sovereign of
the islands. As Iran, and several scholars who firmly support Iran’s claim, have
expressed the view that its title over the islands originates in antiquity and was
maintained throughout history in an almost unbroken chain of ownership, it
is necessary to evaluate as comprehensively as possible the substance of that
argument under international law and the likelihood of its success before an
international tribunal or court.
To do this, the authors will first review applicable jurisprudence related to
the treatment of territorial claims based on asserted ancient or historic title,
and the criteria which would have to be met by Iran in order to establish such
a claim, to the extent these matters appear relevant to the claim that Iran’s
ownership of the three islands is based on an original, historic title. Next, ex-
trapolating from the writings of various academicians on Gulf history, as well
as the writings of several scholars who have supported Iran’s claim over the
islands on the basis of asserted historic rights, we will set out our informed
and best conclusions as to whether such a claim, particularly the available his-
torical evidence supporting it, would likely be persuasive to an international
tribunal or the icj applying international law. Finally, a number of additional
c onsiderations will be set out which, in our view, would significantly affect
the viability of asserting such an argument in support of Iran’s claims over the
islands.
Ancient or Historic Title over Territory under International Law
The concept of an original or historic title based on long-held or immemorial

possession has been analyzed through a number of significant arbitral awards
and decisions of the icj and its predecessor, as well as in scholarly writings.27
For purposes of considering the validity of a claim by Iran that its sovereignty
over the islands is founded on such a legal basis, there are several aspects of
these international decisions which appear to be most relevant.
Continuous Display of Authority

Cases that have dealt with claims of sovereignty based on an asserted
occupation of terra nullius, as well as cases that have claimed original title
founded on historical and immemorial possession rather than a specific act
of occupation have both developed and relied on the proposition that sover-
eignty over territory may be established through the “peaceful and continuous
display of State authority” over that territory. This proposition was set out by
Denmark in the Legal Status of Eastern Greenland case (Denmark/Norway),28
in which its claim to title over the disputed territory was “not founded upon
any particular act of occupation” but rather, quoting the phrase used by the
sole arbitrator in the Island of Palmas decision,29 its “peaceful and continuous
display of State authority over the island” of Greenland during a long period of
27 See, e.g., Fitzmaurice, “Law and Procedure of the icj (Part ii)”, commenting specifically
on the Court’s decision in the Minquiers and Ecrehos Case (France/United Kingdom); Mar-
celo Kohen, “Original Title in the Light of the icj Judgment on Sovereignty over Pedra
Branca/Pulau Batu Puteh, Middle Rocks and South Ledge”, Journal of the History of Inter-
national Law 15 (2013): 151–171. Kohen prefers to use “original title” as a term of art to that
of “historic title” as the latter is “akin to a kind of adverse or prescriptive title”, whereas the
former “depicts precisely a situation in which there is a title which has previously existed
over a considerable period of time [i.e., immemorial possession], in the absence of any
adverse claim.” Ibid., 155–156. In this chapter, we do not adopt this distinction as the Ira-
nian position seems to refer to “historic rights” or “historic title” in the sense that Kohen
attributes to “original title”.
28 Legal Status of Eastern Greenland, pcij, Ser. A./B., No. 53 (1933).
204 chapter 4
time, in this case stretching back to the tenth century.30 The Court noted that
meeting this requirement for establishing title involved two elements: “the
intention and will to act as sovereign, and some actual exercise or display of
such authority.”31 The Court added that “the extent to which the sovereignty is
also claimed by some other Power”, along with the geographical circumstances
of the territory, must also be taken into account.32 On this latter point, the
Court noted, significantly, that “[i]t is impossible to read the records of the
decisions as to territorial sovereignty without observing that in many cases the
tribunal has been satisfied with very little in the way of the actual exercise of
sovereign rights, provided that the other State could not make out a superior
claim. This is particularly true in the case of claims to sovereignty over areas
in thinly populated or unsettled countries.”33 From these general propositions,
the Court held that Denmark had sovereignty over the entirety of Greenland
during the thirteenth and fourteenth centuries (“[s]o far as it is possible to ap-
ply modern terminology to the rights and pretensions of the kings of Norway in
Greenland” during that period34) based on historical records showing that the
king’s exercise of jurisdiction, albeit slight, was meant to apply beyond the two
small Danish settlements on the coast.35 Following the disappearance of these
two settlements “before 1500”, the kings had “no intercourse with Greenland”
for two centuries, yet there was no renunciation of their rights and indeed “the
tradition of the King’s rights lived on”.36 Danish expeditions to Greenland in
the early seventeenth century were stated as having the purpose of rediscov-
ering “our country of Greenland” and to establish respect for the rights of the
king, including the right to exclude others from the territory. With respect to
such activities, the Court held the following:
That the King’s claims amounted merely to pretensions is clear, for he

had no permanent contact with the country, he was exercising no author-
ity there. The claims, however, were not disputed. No other Power was
putting forward any claim to territorial sovereignty in Greenland, and
30 Legal Status of Eastern Greenland Case, 45.

31 Ibid., 44.
32 Ibid., 46.
33 Ibid.
34 Ibid.
35 These records demonstrated that the King of Norway, by edict, had required the pay-
ment of a fine by anyone committing murder “as far to the North as under the Pole Star”.
Ibid., 44.
36 Ibid., 47.
in the absence of any competing claim the King’s pretensions to be the

sovereign of Greenland subsisted.37
The Court then held that upon the establishment of new colonies in Green-
land beginning in 1721, “both elements necessary to establish a valid title to
sovereignty – the intention and the exercise – were present”, and that the
founding of these colonies, along with the enactment of various ordinances
which applied throughout Greenland territory (“Legislation is one of the most
obvious forms of the exercise of sovereign power, and it is clear that the opera-
tion of these enactments was not restricted to the limits of the colonies”38)
and, importantly, in the absence of any competing claim, conferred a valid title
to sovereignty over the entire island of Greenland:
The conclusion to which the Court is led is that, bearing in mind the
a bsence of any claim to sovereignty by another Power, and the Arctic and
inaccessible character of the uncolonized parts of the country, the King
of Denmark and Norway displayed during the period from the founding
of the colonies by Hans Egede in 1721 up to 1814 his authority to an extent
sufficient to give his country a valid claim to sovereignty, and that his
rights over Greenland were not limited to the colonized area.39
It is not entirely clear if the Court considered the earlier periods of Danish pos-
session and exercise of sovereign power in Greenland to constitute a necessary
or integral part of its conclusion that from 1721 Denmark’s claim to s overeignty
was “valid”, or whether the Court took the position that, whatever its earlier
claims may have been, its acts and will to act as sovereign beginning in 1721
were s ufficient on their own to give it a valid title over the territory. The lan-
guage of the decision suggests that the Court took those earlier periods into
account and that it may have even come to the conclusion that Danish sover-
eignty had never been lost since it was first acquired in the thirteenth century.
Fitzmaurice commented on this aspect of the case by suggesting the following:
The exact legal position which, in the Permanent Court’s view, resulted
from this state of affairs, is not entirely clear; but it would seem that the
Crown of Denmark-Norway was regarded as having had some sort of
inchoate or imperfect title during this period, not amounting to actual
37 Ibid., 48.
38 Ibid., 46.
39 Ibid., 48.
206 chapter 4
sovereignty, but, in the absence of any competing claim, sufficient to

preserve the connexion with, or maintain the thread of, the sovereign-
ty previously possessed – so that the latter would automatically revive
when effective occupation was resumed, as occurred in and after 1721. In
short, instead of sovereignty starting afresh in 1721, it was in effect held to
relate back to the date of the original assertion of it.40
Notwithstanding the idea of such a “revival” of sovereignty, Fitzmaurice also

made another significant observation in relation to the Court’s finding, noting
that it seemed “quite clear” that the Court would have ruled that the Danish
title would have been “wholly lost by desuetude over the two centuries of
inactivity if either there had been a competing claim actively maintained at
the time or if there had been a failure to renew, or too long a delay in renewing,
the concrete occupation.”41
The Court also examined the period from 1814 (which marked the end of the
unification of the Danish and Norwegian crowns, leaving Greenland under the
Kingdom of Denmark) to 1915 to determine whether during this period Den-
mark “exercised authority in the uncolonized area [of Greenland] sufficiently
to give her a valid claim to sovereignty therein.”42 For this period, Denmark
demonstrated its authority chiefly through a broad and exclusive concession
agreement it had granted for mining, hunting and trading throughout the east
coast of Greenland, as well as other concessions granted for the erection of
telegraph lines and legislation fixing the limits of territorial waters. These man-
ifestations of sovereignty, along with the lack of any competing claim, were
deemed adequate by the Court to rule that Denmark held a valid title during
this period:
In view of the above facts, when taken in conjunction with the legisla-
tion she had enacted applicable to Greenland generally, the numerous
treaties in which Denmark, with the concurrence of the other contract-
ing Party, provided for the non-application of the treaty to Greenland in
general, and the absence of all claim to sovereignty over Greenland by
any other Power, Denmark must be regarded as having displayed during
this period of 1814 to 1915 her authority over the uncolonized part of the
country to a degree sufficient to confer a valid title to the sovereignty.43
40 Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 68–69.

41 Ibid., 69.
43 Ibid., 54.
In the Western Sahara Advisory Opinion,44 Morocco also sought to frame its
claim of “immemorial possession of the territory” on the “public display of
sovereignty, uninterrupted and uncontested, for centuries”, rather than on an
“isolated act of occupation”.45 In the context of the process of decolonization
of Western Sahara, the ICJ was asked by the General Assembly: (i) whether in
1884, when the Spanish colonization began, Western Sahara was a territory be-
longing to no one (terra nullius); and (ii) if the answer to the previous question
was in the negative, “what were the legal ties between this territory and the
Kingdom of Morocco and the Mauritanian entity?”46 The answers to these le-
gal questions were necessary for the General Assembly to determine its future
decolonization policy with respect to this territory.47
The Court’s answer to the first question was that at the time of the Span-
ish colonization, Western Sahara was not terra nullius as it was “inhabited by
peoples which, if nomadic, were socially and politically organized in tribes and
under chiefs competent to represent them.”48 With respect to the second ques-
tion, the Court found that although legal ties of allegiance existed between
the Sultan of Morocco and some of the tribes in Western Sahara and between
the Mauritanian entity and the territory of Western Sahara, “the materials and
information presented to it did not establish any tie of territorial sovereignty
between the territory of Western Sahara and the Kingdom of Morocco or the
Mauritanian entity.”49
As for Morocco’s arguments, the Court rejected the comparison of M orocco’s
connections to Western Sahara with Denmark’s connections to Greenland,
principally because Morocco had presented very little in the way of any “actual
display of authority unambiguously relating to Western Sahara” and, crucially,
because the presence of tribal people in Western Sahara made it necessary for
Morocco to demonstrate a more active display of authority in order to estab-
lish the existence of its uncontested sovereign rights over the territory:
As the Permanent Court stated in the case concerning the Legal Status of
Eastern Greenland, a claim to sovereignty based upon continued display
44 Western Sahara, Advisory Opinion, i.c.j. Reports 1975, 12.

45 Ibid., para. 90.
46 Ibid., para. 75.
47 Ibid., para. 161. In particular, if Morocco or Mauritania were found to have had legal ties of
sovereignty to the territory, this would have had to be a factor to consider in the decoloni-
zation of Western Sahara which would have had to be respectful of the territorial integrity
of their respective territories. Ibid.
48 Ibid., paras. 80–81, 163.
49 Ibid., paras. 162–163.
208 chapter 4
of authority involves “two elements each of which must be shown to

exist: the intention and will to act as sovereign, and some actual e xercise
or display of such authority” (ibid., pp. 45 f). True, the Permanent Court
recognized that in the case of claims to sovereignty over areas in thinly
populated or unsettled countries, “very little in the way of actual exer-
cise of sovereign rights” (ibid., p. 46) might be sufficient in the absence
of a competing claim. But, in the present instance, Western Sahara,
if somewhat sparsely populated, was a territory across which socially
and p olitically organized tribes were in constant movement and where
armed incidents between these tribes were frequent. In the particular
circumstances outlined in paragraphs 87 and 88 above, the paucity of evi-
dence of actual display of authority unambiguously relating to Western
Sahara renders it difficult to consider the Moroccan claim as on all fours
with that of Denmark in the Eastern Greenland case.50
Another example of the application of this proposition, albeit with respect

to more recent historical events and an asserted sovereignty based on an act
of occupation rather than a claim founded on immemorial possession, is the
Clipperton Island (France/Mexico) decision.51 In that case, the sole arbitrator,
the King of Italy, recognized that “the actual, and not the nominal, taking of
possession is a necessary condition of occupation … by which the occupy-
ing state reduces to its possession the territory in question and takes steps to
exercise exclusive authority there”. In that respect, he found that France had
taken “effective possession” of the island in dispute in 1853 by drawing up an
act which “proclaimed and declared that the sovereignty of the said island”
belonged to the Emperor Napoleon iii and his heirs and successors,52 and that
France thereafter retained its title although it did not exercise any positive act
of sovereignty on the island over the next thirty-nine years (nor did any other
State) other than seeking explanations from the United States government
when three of its citizens were found collecting guano on the island, to which
it was told by that government that it harbored no claims over the island:
Thus, if a territory, by virtue of the fact that it was completely uninhabited,

is, from the first moment when the occupying state makes its a ppearance
there, at the absolute and undisputed disposition of that state, from that
50 Ibid., para. 92.

51 Subject of the Difference Relative to the Sovereignty over Clipperton Island (France/Mexico),
Award of January 28, 1931, ajil 26 (1932) 390.
52 Ibid., 391, 393.
moment the taking of possession must be considered as accomplished,

and the occupation is thereby completed.
…
There is no reason to suppose that France has subsequently lost her right
by derelictio, since she never had the animus of abandoning the island,
and the fact that she has not exercised her authority there in a positive
manner does not imply the forfeiture of an acquisition already defini-
tively perfected.53
The celebrated Island of Palmas case (Netherlands/usa), rendered in 1928, pre-

ceded all of the other cases referenced above and set the standards which the
other cases have followed.54 In that case, the claim of the United States over
the island in dispute was based on the asserted discovery by Spain in the early
sixteenth century, that country’s retention of title on the grounds that noth-
ing had happened during several hundred years to “cause the acquired title to
disappear” notwithstanding its lack of exercise of sovereign functions on the
island during that time, and finally on Spain’s cession of the Philippines (in-
cluding, it was asserted, the Island of Palmas) to the United States in 1898. The
United States argued that because Spain’s title over the island remained intact
(nothing having happened to make it disappear), it was not necessary for it “to
establish facts showing the actual display of sovereignty precisely over the Is-
land of Palmas”.55 In connection with these arguments, the sole arbitrator, Max
Huber, made a number of relevant pronouncements and decisions that have
enriched discourse on the issue of sovereignty in such cases. First, the decision
recognized that “the continuous and peaceful display of territorial sovereignty
(peaceful in relation to other States) is as good as a title” but that it is not suf-
ficient to show that “territorial sovereignty was validly acquired at a certain
moment; it must also be shown that the territorial sovereignty has continued
to exist and did exist at the moment which for the decision of the dispute must
be considered as critical”.56 In this regard, the decision states that “the growing
insistence” with which international law “has demanded that the occupation
shall be effective would be inconceivable, if effectiveness were r equired only
for the act of acquisition and not equally for the maintenance of the right.”57
53 Ibid., 394.
54 Island of Palmas Case, 829–871.
55 Ibid., 837.
56 Ibid., 839.
57 Ibid.
210 chapter 4
The decision also clarified that, in relation to the discovery of territory

which has not been “completed within a reasonable period by the effective oc-
cupation of the region claimed to be discovered”, a claim of title over that ter-
ritory would be considered “inchoate” and could not prevail over a competing
claim by another State that had exercised a “continuous and peaceful display
of authority” over that territory.58 With respect to the level of activity required
to demonstrate effectiveness of an occupation of territory, the decision stated:
Manifestations of territorial sovereignty assume, it is true, different forms,

according to conditions of time and place. Although continuous in prin-
ciple, sovereignty cannot be exercised in fact at every moment on every
point of a territory. The intermittence and discontinuity compatible with
the maintenance of the right necessarily differ according as inhabited or
uninhabited regions are involved, or regions enclosed within territories
in which sovereignty is incontestably displayed or again regions acces-
sible from, for instance, the high seas.59
Notwithstanding these general principles, the decision also made clear that
where no sufficiently precise frontier or conventional line marking sovereign
boundaries exists, or “if a conventional line leaves room for doubt, or if, as e.g.
in the case of an island situated in the high seas, the question arises whether
a title is valid erga omnes, the actual continuous and peaceful display of State
functions is in case of dispute the sound and natural criterium of territorial
sovereignty.”60 Thus, although an accommodation must be given in evaluat-
ing the level of activity in an uninhabited or isolated area, or an uninhabited
island, needed to establish effective possession, that accommodation should
not be understood as absolute, and in the event of disputed sovereignty, a dem-
onstration of activity or State functions of some sort must be shown in order to
make out a valid claim.
Finally, in relation to changes that had come about in international law
between the end of the Middle Ages and the nineteenth century regarding
“rights of discovery and acquisition of uninhabited regions”, and the need to
determine the legal effectiveness of Spain’s discovery of the island in accor-
dance with the law in effect when it occurred in the early sixteenth century
(the so-called “intertemporal law”), the decision made a number of relevant
holdings and observations. First, it noted (however not without hesitation)
58 Ibid., 846.
59 Ibid., 840.
60 Ibid.
that the international law in effect in the sixteenth century may have permit-
ted the acquisition of sovereignty over such regions through the “mere fact
of seeing land, without any act, even symbolic, of taking possession.”61 It also
noted that by the nineteenth century international law had changed, based
on a tendency which had already taken effect since the eighteenth century,
adopting the principle that an occupation “must be completed eventually by
an actual and durable taking of possession within a reasonable time” and that
to be “effective”, the occupation must also “offer certain guarantees to other
states and their nationals.”62 Stating that it would be incompatible with these
current rules of international law to permit a State to rely on discovery as a
valid sovereign title and many years later exercise its influence over a territory
based on rules in effect in the sixteenth century “in virtue solely of a title of
acquisition which is no longer recognized by existing law, even if such a title
ever conferred territorial sovereignty”, the decision held that such a title had
either become invalid altogether (“For these reasons, discovery alone, without
any subsequent act, cannot at the present time suffice to prove sovereignty
over the Island of Palmas (or Miangas); and in so far as there is no sovereignty,
the question of an abandonment properly speaking of sovereignty by one State
in order that the sovereignty of another may take its place does not arise”)
or that it must be considered an inchoate title requiring completion through
effective occupation which, as mentioned above, “could not prevail over the
continuous and peaceful display of authority by another State”.63
The standards for establishing title or effective control or possession of ter-
ritory set out in the Island of Palmas and Legal Status of Eastern Greenland
decisions, as well as the other decisions discussed above, represent a neces-
sary and useful starting point in analyzing a claim over territory based on an
ancient (and what may be described as a somewhat nebulous) history in which
it is asserted that title has been founded on a long-held connection with and
general intention to exercise authority over a territory. This is more or less the
case with the argument advanced by Iran that it has sovereign rights over the
three islands based on the ancient territorial scope of successive Persian em-
pires. In the next section, a greater focus is placed on the evidentiary standards
which should be met in demonstrating that specific acts of control or posses-
sion have actually occurred, and the methodology which has been followed in
assessing the weight or reliability of that evidence.
61 Ibid., 845. See chapter 3 on the role of discovery in the fifteenth to seventeenth centuries
and whether it gave an absolute or only inchoate title even in that period.
63 Ibid.
212 chapter 4
Insufficiency of Presumptive Evidence

International courts and arbitral tribunals have been cautious in basing
decisions on sovereignty over disputed territory on claims of ancient or his-
toric title. This is particularly the case where such a claim is based on indirect
evidence, presumptions, inferences or conjecture. Where this sort of evidence
relates specifically to the territory in dispute, some legal weight may be given
to it, but it will not likely be sufficient by itself to make out a good title and
will, therefore, require further evidence which relates directly to the parties’
actual or effective possession of the disputed territory, and their exercise of
State functions in relation to it. The seminal case that articulated this standard
is the Minquiers and Ecrehos Case (France/United Kingdom), in which the icj
stated that no decisive importance should be given to “indirect presumptions
deduced from events in the Middle Ages”, adding that what is important is “the
evidence which relates directly to the possession” of the territory in dispute.64
In that case, both France and Britain claimed “that they have respectively
an ancient or original title to the Ecrehos and the Minquiers, and that their
title has always been maintained and was never lost.”65 In evaluating the legal
arguments and evidence presented by the parties in support of their respective
claims, the Court first rejected the view that various treaties entered into in the
thirteenth century “throw light upon the status of the Ecrehos and the Minqui-
ers” (two small groups of islands near the Channel Islands off the French coast
of Normandy) despite several of such treaties designating the lands and geo-
graphical areas containing islands to be held by each of France and England,
but not naming the islands specifically:
Common to all these Treaties is the fact that they did not specify which
islands were held by the Kings of England and France, respectively. The
Court would therefore not be justified in drawing from them any conclu-
sion as to whether the Ecrehos and the Minquiers at the time when these
Treaties were signed were held either by the English or by the French
King. This question depends on facts which cannot be deduced from the
text of these Treaties.66
Other documents, including Charters of 1200 and 1203, the latter of which
specifically named one of the island groups in dispute as part of the fief granted
by the King of England to one of his Barons, created “a strong presumption in
64 Minquiers and Ecrehos Case, 57.

65 Ibid., 53.
66 Ibid., 54.
favour of the British view” of ownership, but nevertheless the Court found that
it was not dispositive:
The Court does not, however, feel that it can draw from these consid-
erations alone any definitive conclusion as to the sovereignty over the
Ecrehos and the Minquiers, since this question must ultimately depend
on the evidence which relates directly to the possession of these groups.67
In a key passage, after noting the French contention that a judgment of the
Court of France of April 28, 1202 resulted in the forfeit by the King of England
to the King of France of all lands held in Normandy (including, the French
government maintained, the Minquiers and Ecrehos), and that on the basis of
this judgment and the historical consequences of the dismemberment of the
Duchy of Normandy (to which the islands were attached) in 1204, “a presump-
tion in favour of the present French claim to sovereignty” over those island
groups must be made unless rebutted through evidence presented by Britain,
the Court refused to be drawn into speculative arguments about the legal effect
of the judgment.68 Instead, it ruled that “whatever view is held as to its exis-
tence, validity, scope and consequences, it was not executed in respect of the
Channel Islands, the French Kings having failed to obtain possession of these
Islands, except for brief periods” and that even if the judgment was intended
to have legal effects at that time, “it remained in any case inoperative”.69 The
Court went on to state that “to revive its legal force today by attributing legal
effects to it after an interval of more than seven centuries seems to lead far
beyond any reasonable application of legal considerations.”70 The Court also
noted that, whatever the legal consequences of the dismemberment of the
Duchy of Normandy in 1204 on the legal status of the islands, since then there
had been “a further development in the territorial position” in light of which
the Court considered it of greater importance to look at actual possession of
the islands rather than drawing “indirect presumptions” from those ancient
events:
Many wars and peace settlements between the two States succeeded
each other during the following centuries. The Channel Islands, or some
of them, were occupied temporarily by French forces during some years
67 Ibid., 55.
68 Ibid., 56.
69 Ibid., 56–57.
70 Ibid., 57.
214 chapter 4
immediately following the events in 1204, as well as for brief periods in

the next two centuries, and Continental Normandy was reconquered by
the English King and held by him for a long period in the fifteenth cen-
tury. In such circumstances it is difficult to see why the dismemberment
of the Duchy of Normandy in 1204 should have the legal consequences
attributed to it by the French Government. What is of decisive impor-
tance, in the opinion of the Court, is not indirect presumptions deduced
from events in the Middle Ages, but the evidence which relates directly to
the possession of the Ecrehos and Minquiers groups.71
The Court then assessed the evidence of the possession by each party and
actual exercise of State functions on and in relation to the islands from the
thirteenth to the twentieth centuries to determine the “relative strength
of the opposing claims to sovereignty”.72 In so doing, although it gave some
weight to presumptive conclusions related to the existence of an original and
ancient title over the territories in dispute, the Court placed key emphasis on
the evidence related to actual possession of the islands, particularly the evi-
dence related to the exercise of State functions in the nineteenth and twentieth
centuries. Thus, with regard to the Ecrehos group, the Court found that:
[I]n the beginning of the thirteenth century [it] was considered and
treated as an integral part of the fief of the Channel Islands which were
held by the English King, and that the group continued to be under the
dominion of that King, who in the beginning of the fourteenth century
exercised jurisdiction thereof. The Court further finds that British au-
thorities during the greater part of the nineteenth century and in the
twentieth century have exercised State functions in respect of the group.
The French Government, on the other hand, has not produced evidence
showing that it has any valid title to the group. In such circumstances it
must be concluded that the sovereignty over the Ecrehos belongs to the
United Kingdom.73
Other cases have employed similar reasoning, diminishing the evidentiary

importance of speculative historical presumptions about a claim of sover-
eignty by a party based on an asserted original or historic title over a given
territory in favor of more direct evidence of possession. In the Case Concerning
71 Ibid.
72 Ibid.
73 Ibid., 67.
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia),74 the

ICJ rejected the argument of Malaysia that historic title to the two small is-
lands in dispute had been held by the Sultan of Sulu (such title eventually be-
ing transferred to Malaysia) on the grounds that certain relevant documents
could be interpreted as including them within the Sultanate’s historic posses-
sions (without having named them). For example, one such document defined
the possessions of the Sultanate of Sulu as the Archipelago of Sulu (of which
the two islands admittedly did not belong) “and its dependencies” while an-
other document “vaguely” defined the Sultanate’s possessions as “compris[ing]
all the islands which are found between the western extremity of the island
of Mindanao, on the one side, and the continent of Borneo and the island of
Paragua, on the other side.”75 The Court found that such documents did not
serve to establish adequate evidence of the inclusion within the Sultanate’s
possessions of the two islands so as to justify a conclusion that it had held an
original historic title to them: “These documents, therefore, provide no answer
to the question whether Ligitan and Sipadan, which are located at a consid-
erable distance from the main island of Sulu, were part of the Sultanate’s
dependencies.”76 Further, the Court was not persuaded that “ties of allegiance”
between the Sultanate and certain inhabitants of islands around the two
islands in dispute who “may well have made use of” them served as sufficiently
direct evidence of the Sultanate’s title:
The Court is of the opinion that such ties may well have existed but that
they are in themselves not sufficient to provide evidence that the Sultan
of Sulu claimed territorial title to these two small islands or considered
them part of his possessions. Nor is there any evidence that the Sultan
actually exercised authority over Ligitan and Sipadan.77
In the Pedra Branca/Pulau Batu Puteh Case (Malaysia/Singapore),78 Malaysia

claimed that its predecessor, the Sultanate of Johor, held an original title to
the islets and rocks in dispute dating from the establishment of the Sultan-
ate in the early sixteenth century which was never displaced, while Singa-
pore argued that the maritime features were either terra nullius when Britain
74 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), icj Reports 2002,
625.
77 Ibid.
Singapore), icj Reports 2008, 12.
216 chapter 4
took possession of them in 1847 to construct a lighthouse, thus obtaining title

through effective occupation, and then subsequently transferring title to Sin-
gapore, or that their legal status was “indeterminate” at that time, resulting
in the acquisition of British sovereignty through “effective and peaceful exer-
cise of State authority” during the years that followed the construction of the
lighthouse.79 The Court noted that Malaysia considered the basis of its title
to be similar to that described in the Meerauge arbitration between Austria
and Hungary, from which it quoted the following passage: “Possession imme-
morial is that which has lasted for such a long time that it is impossible to
provide evidence of a different situation and of which anybody recalls having
heard talk.”80 In this instance, the Court found that Malaysia had adequately
established its claim of an ancient original title to the islands and rocks on the
strength of two principal categories of evidence. The first was a protest lodged
by the Sultan of Johor in the mid-seventeenth century against the seizure of
several vessels by the Dutch East India Company in the vicinity of Pedra Bran-
ca (one of the islets in dispute):
It is the view of the Court that this incident is a clear indication of the
S ultan of Johor’s position that the seizure of the junks in the waters
in question was an infringement of his right as sovereign in the area
concerned.81
The second category of evidence was a series of three letters written by the
British Resident in Singapore in 1824 which the Court found to be of “particular
relevance”.82 In these letters, the British official recognized that the S ultanate’s
possessions included “‘all’ the islands in the region of the Straits of Singapore”,
thus embracing the area where the islets and rocks in dispute are located
and making it clear that they were part of his sovereign possessions without
specifically naming them. The Court also noted that as these islets and rocks
“had always been known as a navigational hazard in the Straits of Singapore”,
and were not therefore “terra incognita”, it was “reasonable to infer that Pedra
Branca/Pulau Batu Puteh was viewed as one of the islands lying within the
general geographical scope of the Sultanate of Johor.”83 Although the Court
79 Ibid., paras. 37–42.

80 Ibid., para. 48, quoting from the Meerauge Arbitral Award (Austria/Hungary), September 13,
1902.
81 Ibid., para. 55.
82 Ibid, para. 56.
83 Ibid., para. 61.
did not state as much, it would appear that the finding that the islets and rocks
were not “terra incognita” supported its conclusion that in referring to “all the
islands” in the region of the Straits of Singapore as being under the sovereignty
of the Sultanate, the British Resident was consciously including those mari-
time features.84
The holding of the Court that the Sultanate of Johor held original and
ancient title to the islets and rocks in this case was also based on two fur-
ther, non-evidentiary, reasons, which it would seem affected its willingness to
accept the relatively low threshold of evidence of Johor’s possession of those
features described above. The first consideration was that “throughout the
entire history of the old Sultanate of Johor, there is no evidence that any com-
peting claim had ever been advanced over the islands in the area of the Straits
of Singapore.”85 This consideration, which will be discussed in greater detail
below, has been described elsewhere by Fitzmaurice as follows:
It is clear … that the weight to be given to any act, presumption or situation,

and equally to any omission, is not an absolute question, but depends
very much on whether a competing claim is in the field, and also on what
is the character and intensity of that other claim.86
Connected to this reason, the Court found that, particularly in the absence
of any competing claim and given the “tiny uninhabited and uninhabitable
island” in dispute,87 the lack of consistent display of State authority over the
islets and rocks by the Sultanate of Johor would not prevent them from being
considered part of its sovereign territory. Citing the Legal Status of Eastern
Greenland case and the Island of Palmas case, the Court held that:
This possession of the islands by the old Sultanate of Johor was never
challenged by any other Power in the region and can in all the circum-
stances be seen as satisfying the condition of “continuous and peaceful
display of territorial sovereignty (peaceful in relation to other States)”.
The Court thus concludes that the Sultanate of Johor had original title to
Pedra Branca/Pulau Batu Puteh.88
84 Ibid, para. 68.

85 Ibid., para. 62.
87 Sovereignty over Pedra Branca case, para. 66.
88 Ibid., paras. 67–69.
218 chapter 4
The issues raised by the existence or lack of a competing claim and the
geographical nature of the disputed territory in determining whether an an-
cient or historic title may be established will be discussed in further detail
below.
Other judicial and arbitral cases have also addressed the relevance of
“indirect inferences drawn from events in past history” in determining the
existence of title based on “immemorial possession”.89 In its Advisory Opin-
ion in the Western Sahara case, in response to Morocco’s claims of sovereignty
on the grounds of an alleged immemorial possession of the disputed territory
over centuries, commencing in the seventh century, the Court noted that:
In support of this claim Morocco refers to a series of events stretching

back to the Arab conquest of North Africa in the seventh century a.d., the
evidence of which is, understandably, for the most part taken from his-
torical works. The far-flung, spasmodic and often transitory character of
many of these events renders the historical material somewhat equivocal
as evidence of possession of the territory now in question.90
In light of the nature of this historical evidence, which the Court described as
mostly “taken from historical works”,91 the Court declined to draw any conclu-
sions from it, stating in line with the decision in the Minquiers and Ecrehos
Case that “what must be of decisive importance … is not indirect inferences
drawn from events in past history but evidence directly relating to effective
display of authority in Western Sahara at the time of its colonization by Spain
and in the period immediately preceding that time”.92 The Court then focused
its attention on a review of the specific evidence that had been adduced by
the parties relating to the effective display of State authority in the Western
Sahara during that time period.93
In the Eritrea/Yemen arbitration over sovereignty to various islands in the
Red Sea, Yemen based its claim on “original, historic, or traditional Yemeni
title”, which it asserted could be traced back to the sixth century and which
it contended survived intact notwithstanding its later incorporation into, and
the eventual dissolution of, the Ottoman Empire.94 As a point of interest, it
89 See Western Sahara Advisory Opinion, para. 93.

90 Ibid., para. 91.
91 Ibid.
92 Ibid., para. 93.
93 Ibid., para. 93–102.
94 Territorial sovereignty and Scope of Dispute (Eritrea/Yemen), Award of October 9, 1998,
riaa 22 (1998) 209, paras. 31–32.
might be noted that there are a number of striking similarities in the circum-
stances surrounding the islands in dispute in the Eritrea/Yemen case and
those involved in the dispute between Iran and the uae, both with respect
to geography and historical use.95 In any case, on the matter of Yemen’s claim
to the islands on the basis of an ancient or historic title, the Tribunal was not
persuaded, finding a number of difficulties with that argument. Among its rea-
sons was that Yemen had failed to establish through persuasive evidence “the
actual existence of such titles”, particularly as the Imam of Yemen ruled prin-
cipally over a mountainous society, which raised “questions” whether he “had
sway over the islands”, let alone a sovereign title, particularly as the islands
were “uninhabited and barren islands used only occasionally by local, tradi-
tional fishermen.”96 The Tribunal summed up this finding as follows:
So there are considerable problems for both Parties with these v ersions
of historic title. But the Tribunal has made great efforts to investigate
both claims to historic titles. The difficulties, however, arise largely from
the facts revealed in that history. In the end neither Party has been able to
persuade the Tribunal that the history of the matter reveals the juridical
95 See, e.g., ibid., para. 93 (“The disputed islands and islets range from small to tiny, are
uniformly unattractive, waterless, and habitable only with great difficulty. And yet it is
also the fact that they straddle what has been, since the opening of the Suez Canal in
1869, one of the most important and busiest seaways in the world. These contradictory
aspects of the disputed islands are reflected in the materials presented to the Tribunal.
During the earlier periods the islands seem often hardly to have been noticed by coastal
countries other than by local traditional fishermen who used them for shelter and their
waters for anchorage; but did receive considerable attention, amounting even to tempo-
rary occupation, from rival colonial powers, notably Great Britain and Italy. This was no
doubt because, after the opening of the Canal, the sea, narrowing in its southern part
where the islands are situated, was the principal route from Europe to India, the East
Indies and the Far East”). Ibid., para. 127 (“According to the most reliable historical and
geographical sources, both ancient and modern, the reported data clearly indicate that
the population living around the southern part of the Red Sea on the two opposite coasts
have always been inter-linked culturally and engaged in the same type of socio-economic
activities. Since times immemorial, they were not only conducting exchanges of a human
and commercial nature, but they were freely fishing and navigating throughout the mari-
time space using the existing islands as way stations (des îles relais) and occasionally as
refuge from the strong northern winds. These activities were carried out for centuries
without any need to obtain any authorizations from the rulers on either the Asian or the
African side of the Red Sea and in the absence of restrictions or regulations exercised by
public authorities.”).
220 chapter 4
existence of an historic title, or of historic titles, of such long-established,

continuous and definitive lineage to those particular islands, islets and
rocks as would be a sufficient basis for the Tribunal’s decision. And it
must be said that, given the waterless and uninhabitable nature of these
islands and islets and rocks, and the intermittent and kaleidoscopically
changing political situations and interests, this conclusion is hardly
surprising.97
In light of these findings, and in line with the approach followed by the icj in
the Minquiers and Ecrehos case, the Tribunal focused instead on the “relatively
recent history” of the use and possession of the islands by the parties to deter-
mine their rightful sovereign:
It may be said at once that one result of the analysis of the constantly
changing situation of all these different aspects of governmental activi-
ties is that, as indeed was so in the Minquiers and Ecrehos case where
there had also been much argument about claims to very ancient titles,
it is the relatively recent history of use and possession that ultimately
proved to be a main basis of the Tribunal decisions.98
Although no claims of historic title based on immemorial possession were

made in the Island of Palmas case between the Netherlands and the United
States (the claim of the United States was based on cession from Spain, which,
it was asserted, had obtained sovereignty over the island on the basis of an
“original title derived from discovery”), both parties claimed ownership of the
island in dispute “as a territory attached for a very long period to territories
relatively close at hand which are incontestably under the sovereignty of the
one or the other of them”99 and a number of pronouncements made by Max
Huber, the sole arbitrator in the case, provide relevant guidance to evaluating
presumptive evidence of an asserted claim to a long-held historic title. In that
regard, the arbitrator rejected a series of assertions made by the United States
to demonstrate Spain’s historical sovereignty over the island, noting that “no
precise elements of proof based on historical facts as to the display or even
the mere affirmation of sovereignty by Spain over the Island of Palmas have
been put forward”100 and “the documents laid before the Arbitrator contain no

100 Ibid., 848.
trace of Spanish activities of any kind specifically on the Island of Palmas.”101

Elsewhere, he put the question about the need to establish the existence of
sovereign title in the seventeenth and eighteenth centuries through reliable
evidence this way:
We thus come back to the question whether, failing any Treaty which,
as between the States concerned, decides unequivocally what is the
situation as regards the island, the existence of territorial sovereignty is
established with sufficient soundness by other facts.102
The arbitrator also refused to accept a presumption that the existence of sov-
ereignty by the Netherlands at the beginning of the eighteenth century and
the display of sovereign activities during the nineteenth century would neces-
sarily lead to the conclusion that the Netherlands had exercised sovereignty in
the meantime. In relation to that matter, he stated that “for the reasons given
above, no presumptions of this kind are to be applied in international arbitra-
tions, except under express stipulation. It remains for the Tribunal to decide
whether or not it is satisfied of the continuous existence of sovereignty, on the
ground of evidence as to its display at more or less long intervals.”103
Admissibility of Evidence and Unsubstantiated Assertions

Although it is often unstated, or not articulated in precise legal terms, it is clear
that lying behind the international decisions which have pronounced standards
for evaluating evidence of historic or ancient titles – seeking direct evidence
of possession or the peaceful display of sovereign authority rather than indi-
rect presumptions – is the fairly uncontroversial notion that such presumptive
evidence would in most cases be an insufficient basis on which to find that the
proponent of an assertion had carried its evidentiary burden of proof. With
respect to the burden of proof in international litigation, Amerasinghe writes:
The standard of proof applied is really based on the principle that tribu-
nals have authority and duties in respect of evidence in matters before
them, one of the duties being to decide whether or not the proponent
of a claim has succeeded in proving his claim to the satisfaction of the
tribunal, i.e., in discharging the burden of proof.104
101 Ibid., 851.

102 Ibid.
103 Ibid., 864.
104 Chittharanjan F. Amerasinghe, Evidence in International Litigation (Leiden/Boston: Brill,
2005), 232.
222 chapter 4
Nevertheless, and although international jurisprudence has developed a clear

tendency towards requiring the substantiation of territorial claims based on
ancient or immemorial title through direct evidence of the exercise of sov-
ereign authority over the disputed territory, this is not to say that indirect or
inferential evidence would be excluded from consideration. Such evidence
would, unless specifically excluded by a convention under which the disputing
parties have agreed to resolve the controversy, be allowed to be submitted for
evaluation, as would allegations that are unsupported by any evidence what-
soever. The freedom of the parties to make assertions and submit the evidence
they consider appropriate in support of those assertions was made clear by
Judge Huber, who set out the following relevant pronouncements in the Island
of Palmas case:
It is for the Arbitrator to decide both whether allegations do or – as being

within the knowledge of the tribunal – do not need evidence in support
and whether the evidence produced is sufficient or not…. This liberty is
essential to him, for he must be able to satisfy himself on those points
which are necessary to the legal construction upon which he feels bound
to base his judgment. He must consider the totality of the allegations
and evidence laid before him by the Parties, either motu proprio or at his
request and decide what allegations are to be considered as sufficiently
substantiated. Failing express provision, an arbitral tribunal must have
entire freedom to estimate the value of assertions made by the Parties …
The value and weight of any assertion can only be estimated in the light
of all the evidence and all the assertions made on either side, and of facts
which are notorious for the tribunal.105
Following this line of thought, it is apparent that in evaluating the evidence

presented to it, a decision maker (whether an arbitral tribunal or the icj) would
have considerable flexibility in determining whether the evidence submitted
by a party had served to satisfy its burden of proof, or the proposition it sought
to establish. While in the case of territorial disputes, inferential or indirect evi-
dence has been viewed as considerably less persuasive than direct evidence
(Fitzmaurice went so far as to state that “purely presumptive evidence of title
105 Island of Palmas Case, 841. See also, Amerasinghe, Evidence in International Litiga-
tion, 165–166 (“In general international tribunals have received every kind and form of
evidence, and have attached to them the probative value they deserve under the circum-
stances of a given case.”).
tends to be insufficient per se”106), that does not mean that such evidence
would necessarily be considered of no value at all. How then is such evidence
to be weighed? One scholar has stated that an “inference” may be controverted
by either “direct evidence” or “another inference”, with the tribunal left to de-
termine the probative value of the competing inferences or evidence:
What the Tribunal does in each case is to take account of the inferences
in favour of the party bearing the burden of proof and then determine
whether or not the probative value attributed to the inferences is suffi-
cient to meet that burden. The party that bears the burden of proof must
also controvert those which seem applicable against its claim. Then, it
is for the tribunal to decide whether or not that party has been able to
controvert those inferences.107
However, the same author also noted that:
[T]here is also a reluctance to rely unnecessarily on inferences, particu-

larly, where production of other types of evidence is possible. Thus, even
in cases where an international tribunal has accepted as admissible
circumstantial or indirect evidence because of the impossibility of pro-
ducing direct evidence on account of the nature of the claim, it has been
said that inferences “may be considered, so long as they lead to conclu-
sions consistent with the facts.”108
Citing the Corfu Chanel case (Merits), Amerasinghe went on to note that “con-
clusions, if they were to be drawn on the basis of inferences of fact, must leave
no room for reasonable doubt.”109 As we shall see, these suggestions are help-
ful in determining whether the inferential evidence that has been brought out
on behalf of the arguments in favor of the Iranian claim of an historic title to
the islands has merit or not.
Nature of Sovereign Functions

There has been much discussion in relevant decisions and commentary as
to the specific types of acts which have significance in determining whether
107 Amerasinghe, Evidence in International Litigation, 227.
108 Ibid., 228.
109 Ibid., referring to Corfu Channel (United Kingdom of Great Britain and Northern Ireland v.
Albania), icj Reports 1949, 4, 18.
224 chapter 4
s overeignty has been established by a State over a territory, with certain types
of acts (most prominently exercising jurisdiction, legislating or carrying out
acts of administration in relation to the territory in question) having greater
importance than others which are either not performed à titre de souverain
(and which would therefore be discarded altogether) or which on balance are
not considered as an exercise of sovereignty but which have other intentions
(an example of this category of activity is the carrying out a hydrographic sur-
vey whose purpose is the protection of mariners rather than the assertion of
sovereign control).
While these considerations are important and would certainly apply to an
analysis of whether a party had acquired an ancient or historic title over a
particular territory, they have no apparent relevance with respect to the ques-
tion whether Iran may claim an original historic title to the islands based on
events occurring from the fifth century b.c. or from the period prior to the
arrival of the Portuguese at the beginning of the sixteenth century. There is no
verifiable historical evidence dating from those periods that indicates s pecific
acts of one sort or another which may have been performed by ancient Per-
sian e mpires or dynasties on or over the three islands, and therefore no basis
on which to judge the nature of those acts. Rather, the claim which has been
alluded to by the government of Iran and various scholars referred to above
argues that from historical texts it is known that Persian empires and dynasties
had a general territorial hold over geographical areas surrounding the Gulf,
and on that basis it should be presumed that the islands were within the ter-
ritorial sphere of those empires and dynasties. This argument relates more to
the considerations set out in the previous section and will be evaluated below
in that context.
As for the legal issues around the nature of different acts which may or
may not constitute an exercise of sovereign authority, these will be discussed
in greater detail in the chapters that relate to the eighteenth and nineteenth
centuries, when the evidence allows a review of various acts taken by both
Persia and the Qawásim specifically in relation to the islands, and when an
appreciation of the nature of those acts becomes relevant in determining
which of the parties’ claims of sovereignty is stronger.110
Loss of Ancient Title/Failure to Maintain Title

From the jurisprudence which has played a prominent role in evaluating
claims of sovereign title based on ancient right or immemorial possession it is
110 See chapters 7 and 8.

clear that, if indeed the existence of such a title can be established, there are
three primary circumstances in which it can be lost.
The first of these, the existence of a competing claim, would itself appear to
encompass three general possibilities: that of cession of the territory in ques-
tion (in which case whatever dispute were to arise would presumably relate
foremost to the terms of the agreement of cession itself), that of conquest and
annexation by another State (in which case whatever dispute were to arise
would presumably relate to the legality of the seizure of the territory and, if
applicable, the lodging of sufficient protests against that seizure) and that of the
continuous and peaceful display of authority over the same territory by another
party. It is this last category which has been most prominently discussed in
the international decisions reviewed above. Thus, Judge Huber in the Island of
Palmas decision enunciated the rule that whether a previous title was inchoate
or definitive, neither would “prevail over the continuous and peaceful display
of authority by another State”111 so long as the display is “shown precisely in
relation to the disputed territory” and “no contestation or other action what-
ever or protest against the exercise of territorial rights” by another party has
been made.112 In the Legal Status of Eastern Greenland decision, the Permanent
Court conditioned each of its findings on the acquisition and maintenance of
title to Greenland by Denmark during successive historical periods on the lack
of any claim to that territory by any other power. Moreover, although it did not
state as much, the Court appeared to have accepted Denmark’s sovereignty
with a relatively minimal showing of the exercise of sovereign rights through-
out the territory due to the absence of any other claimant.
The judgment of the icj in the Minquiers and Ecrehos case suggests a pos-
sible distinct category in which an ancient title may be lost. In that case, the
Court found that the Ecrehos group of islands was “under the dominion” of the
King of England in the beginning of the thirteenth century and that the English
Kings continued to exercise “jurisdiction” over the islands at the beginning of
the fourteenth century. Notwithstanding these factual and legal findings, the
Court went on to review and balance the “relative strength” of both France’s
and England’s claims to sovereignty after that point, particularly during the
nineteenth and twentieth centuries. While this analytical methodology might
have been carried out either on the basis that English sovereignty had not yet
been definitively established in the thirteenth or fourteenth c enturies and
that therefore further evaluation of the parties’ respective connections with
and claims to the islands had to be made, or in order to determine whether

112 Ibid., 857, 868.
226 chapter 4
any English sovereign rights over the islands which may have existed in the
thirteenth and fourteenth centuries had been abandoned or effectively lost
through desuetude thereafter, the approach of the Court also suggests that
even where ancient rights in some form are established by one party, it may be
possible for that party to lose those rights even without an explicit abandon-
ment or prescriptive loss if in the intervening centuries a competing claimant
exercises relatively more acts of sovereignty in relation to the territory than it.
A second way in which a title (of ancient origin or otherwise) could be lost is
through voluntary abandonment. As made clear in the Legal Status of Eastern
Greenland case, the loss of a sovereign title through abandonment requires a
showing of a voluntary and “definite renunciation” of the territory in question
by the sovereign.113
A third category in which it seems clear that an ancient title, once definitively
established, may be lost is “if there had been a failure to renew, or too long
a delay in renewing, the concrete occupation”.114 This conclusion stems from
the dicta of Judge Huber in the Island of Palmas case cited above, in which he
found that holding valid title over territory requires not only an effective act of
acquisition but also effectively maintaining title thereafter in accordance with
the evolving requirements of international law. As was enunciated by Judge
Huber in that decision, the continuing effectiveness of an occupation must
be determined not only in the act of acquisition, but also in its maintenance:
The growing insistence with which international law, ever since the
iddle of the 18th century, has demanded that the occupation shall be
m
effective would be inconceivable, if effectiveness were required only for
the act of acquisition and not equally for the maintenance of the right.115
Elsewhere, Judge Huber elaborated this concept in relation to the “so-called

intertemporal law”:
As regards the question which of different legal systems prevailing at

successive periods is to be applied in a particular case (the so-called in-
tertemporal law), a distinction must be made between the creation of
rights and the existence of rights. The same principle which subjects
the act creative of a right to the law in force at the time the right arises,
demands that the existence of the right, in other words its c ontinued

anifestation, shall follow the conditions required by the evolution

m
of the law … It seems therefore incompatible with this rule of positive
law that there should be regions which are neither under the effective
sovereignty of a State, nor without a master, but which are reserved for
the exclusive influence of one State, in virtue solely of a title of acquisi-
tion which is no longer recognized by existing law, even if such a title
ever conferred territorial sovereignty. For these reasons, discovery alone,
without any subsequent act, cannot at the present time suffice to prove
sovereignty over the Island of Palmas (or Miangas); and insofar as there
is no sovereignty, the question of an abandonment properly speaking of
sovereignty by one State in order that the sovereignty of another may
take its place does not arise.116
Perhaps the most prominent, yet somewhat indirect, example of the applica-
tion of this principle is to be found in the decision of the icj in the Minquiers
and Ecrehos case, where the Court held that even if the decision of the French
Court in 1204 gave the French Kings title over the islands, they never came
into their possession and the court’s pronouncement was never operative: “To
revive its legal force today by attributing legal effects to it after an interval of
more than seven centuries seems to lead far beyond any reasonable applica-
tion of legal considerations.”117
Notwithstanding the dictum set out in the Island of Palmas case, it must also
be recognized that a loss of title by abandonment, derelictio or desuetude has
been rejected in several cases despite long periods of inactivity by the origi-
nal claiming State. For example, in the Clipperton Island case, it was held that
France’s inactivity on the island from the time of its discovery in 1858 until 1897
(when Mexico landed forces on the island and claimed title), did not result in
its losing title as “there is no reason to suppose that France has subsequently
lost her right by derelictio, since she never had the animus of abandoning the
island, and the fact that she has not exercised her authority there in a posi-
tive manner does not imply the forfeiture of an acquisition already definitively
perfected.”118 The decision in the Legal Status of Eastern Greenland case also
suggests that there is a point at which the failure to keep up an ancient title will
result in its loss. This was apparent from the Court’s ruling that, notwithstand-
ing its loss of “intercourse” with Greenland over a period of two hundred years,
a certain sovereign right, perhaps inchoate (although this was not articulated
116 Ibid., 845–846. On the concept of “intertemporal law”, see chapter 3, text accompanying
notes 184–191.
118 Clipperton Island Arbitration, 394.
228 chapter 4
by the Court) was retained by Denmark over the territory throughout, which
the Court based on the lack of any “definite renunciation” of its previous rights,
the maintenance of “the tradition of the King’s rights”, as well as the absence
of any competing claim.119 This explanation suggests that if those factors were
not present, no Danish rights over Greenland would have persisted. Indeed,
it may be said that in both of these cases, it was clear that a key reason for
the decision to uphold the rights of the original claimant was the absence of
any sovereign activity by any other competing claimant which had taken place
since the original act of occupation had occurred.
Consequence of Loss of Ancient Title

A final consideration, which is perhaps self-evident but must be mentioned
nevertheless, is that the consequence of losing an original title over terri-
tory (if of course it was acquired in the first place) is that for a claim to be
subsequently asserted over that same territory by the same party will require
that it start afresh and satisfy the requirements applicable to some mode for
acquiring territory, whether by occupation (if the territory is or has reverted to
terra nullius), prescription or cession. Fitzmaurice describes this consideration
when dealing with a title based on ancient right and immemorial possession as
follows:
Here the element of continuity goes to the very root of the question of
title on that basis, for the ancient right is lost or overlaid, and the imme-
morial possession will not be immemorial, if what was an original title
can be held not to have been kept up. Later acts -or a resumption of activ-
ity after the break – may furnish a fresh point of departure, leading to the
acquisition or re-acquisition of title by occupation or prescription, but it
will be a different basis of title.120
What this notion obviously signifies is that, whatever historical ties or con-
nection a State (or an Empire) may have had with a territory which at one
point may have brought about a conclusion that it had acquired and could
claim that territory by ancient or historic right will not endure indefinitely nor
can be called up at any later time to make a positive claim of sovereignty if
that ancient title has been lost in the meantime. Any such subsequent territo-
rial claim must therefore be based on its own merit, in light of the facts and
circumstances prevailing at the time it is asserted. The logical counterpoint
119 Legal Status of Greenland Case, 47.

to this conclusion is that where an ancient title has been lost or cannot be
established by a State at all in relation to an earlier period, that finding would
of course not exclude the State’s successful assertion of sovereignty at a later
moment so long as it is able to establish a valid title at that moment through
occupation (if the territory is still terra nullius), prescription or cession. What
is important is that, notwithstanding any prior history, at the relevant critical
date, that State can establish its title:
It must be borne in mind, however, that as the critical date is July 10th,
1931, it is not necessary that sovereignty over Greenland should have
existed throughout the period during which the Danish Government
maintains that it was in being. Even if the material submitted to the
Court might be thought insufficient to establish the existence of that
sovereignty during the earlier periods, this would not exclude a finding
that it is sufficient to establish a valid title in the period immediately pre-
ceding the occupation.121
Analysis of Iran’s Claim of Ancient or Historic Title
When considering the jurisprudence developed by the Permanent Court, the

icj and various international arbitral tribunals discussed above, it is apparent
that a claim by Iran, if it were to be made, that its ownership of the islands can
be traced to the existence of an ancient or historic title based on immemo-
rial possession dating from any of the earliest Persian empires which p receded
the conquest of Persia by the Arab Muslim armies in the seventh century a.d.
would raise a number of difficult if not insurmountable factual and legal ob-
stacles. Similar difficulties would also be encountered in positing an assertion
that such a title dated from any of the Persian dynasties which emerged and
held sway at some point after the rise of the Islamic Caliphates and prior to the
arrival of the Portuguese to the Gulf in the beginning of the sixteenth century.
In brief, these difficulties arise from the following questions, which are prin-
cipally directed to whether Iran, as the potential proponent of the hypothesis
that its sovereignty is properly based on rights of ancient or historic title, could
carry its evidentiary burden of proof with regard to that assertion: (i) Is there
any evidence which relates directly to the possession of the islands by any of
these pre-sixteenth century empires which could have led to the acquisition of

230 chapter 4
historic rights of title (or, in the words of the pcij in the Legal Status of Eastern
Greenland case, which might evidence the “peaceful and continuous display
of State authority” over the islands by such empires), and if so, what is the
nature of that evidence? (ii) If no direct evidence of possession exists, is there
any indirect or inferential evidence to that effect, what is the nature of that
evidence and what is the legal relevance or weight of such evidence? (iii) In
either case, can it be established that whatever title is argued to have existed,
such title survived until the time when sovereignty over the islands was openly
contested in the nineteenth century? Stated in another way, could it reason-
ably be assumed that having acquired ancient rights of title over the islands
at some point in antiquity, such rights were kept up continuously thereafter?
And did any intervening events occur which would have led to the loss of any
such ancient rights of title which may have existed at one point in history or
another, such as the subsequent claim or exercise of authority over the islands
by other powers or groups, or can it be concluded that any such ancient title
was not kept up for other reasons, such as desuetude?
The difficult evidentiary challenges posed by these questions, although
present throughout the time span under consideration, are exacerbated the
further back in history the analysis is focused. Interpreting or understanding
the nature and significance of the evidence which does exist also requires to
one degree or another an appreciation of the ancient or medieval history of
the Gulf, and the context in which that evidence must be seen. In that respect,
despite the historical importance of the Gulf and the breadth of the academic
literature that has been produced to tell its story over several thousand years,
deriving firm conclusions about who or what powers or groups (if any) can be
said to have controlled the various parts of the Gulf waters and littoral through-
out, and at what particular intervals during this long period of antiquity, let
alone who (if anyone) controlled or possessed the three islands themselves,
remains subject to significant speculation and interpretation of ancient liter-
ary sources or archaeological findings. For instance, one scholar notes that:
The literary sources used for the pre-Islamic period are usually the Perso-
Arabic histories that view the past retrospectively, as they were written
in Islamic times. Consequently, only Middle Persian inscriptions, some
texts of historio-geographical nature, and Greek and Latin sources give
us a contemporary view of the Gulf.122
122 Touraj Daryaee, “The Persian Gulf in Late Antiquity, The Sasanian Era (200–700 c.e.)” in
The Persian Gulf in History, ed. Lawrence G. Potter (New York: Palgrave Macmillan, 2009),
57–58.
The level of speculation required to draw evidentiary conclusions based on

sources such as these becomes particularly problematic where they are in-
tended to be used as an e ssential piece of evidence in a dispute over territorial
sovereignty arising in the nineteenth century, a period around which more as-
certainable evidence about possession of the islands is available. Although the
broad contours of much of the ancient or medieval history might be generally
ascertainable, it is still, when judged as evidence of effective control, owner-
ship or sovereignty over specific territory (i.e., the three islands), highly debat-
able, speculative and patchy. This is particularly apparent when the available
evidence is weighed against the pronouncements and standards on territorial
disputes which have shaped international law since the nineteenth century.
Viewed through that lens – requiring a demonstration of the intention to act
as sovereign over the territory in question and of “some actual exercise or dis-
play of such authority” over that territory – and in light of the evidence that
is available (which is largely, if not exclusively, inferential and indirect), it is
exceedingly challenging to make out a coherent and persuasive case which has
any reasonable degree of certainty, particularly one which “leaves no room for
reasonable doubt.”123 The reality that much of what is known about the earliest
of these empires – particularly those preceding the conquest of the Sasanian
Empire by the Islamic armies in the seventh century – is based on mythology
and a ncient texts (most of these retrospective), and archaeological discover-
ies (about which more below) perhaps highlights the reluctance that modern
tribunals or courts would undoubtedly have in using that information in any
decisive way in resolving a dispute over territorial sovereignty to the three is-
lands, particularly as that dispute has arisen in the fairly recent past. As one
contemporary scholar has noted:
The Persian perception of their history before the Sasanians is, then,
of a world of myth and legend. Reconstruction of what had in reality
happened in the previous thousand years had to await the attentions of
modern Western scholars, using such sources as the Old Testament, an-
cient Greek historians (especially Herodotus), and, above all, the findings
of archaeology.124
The general challenges in making out a case for Iran’s ancient rights of title
over the islands noted above are elaborated in the paragraphs which follow.

124 David Morgan, Medieval Persia, 1040–1797 (London: Routledge, 1988), 8.
232 chapter 4
Initial Observations
The point noted above in connection with the Legal Status of Eastern Green-
land case suggests that whether Persian empires of great antiquity ruled over
the three islands or not may be, perhaps paradoxically, to a certain extent an
academic question of little relevance to the dispute between the parties which
commenced in the nineteenth century. This is because, on the one hand, if
Iran could carry its burden of proof to establish that such a sovereignty existed
in antiquity, it would, particularly given the complex and multi-faceted history
of the Gulf which followed, in any case be necessary for it also to demonstrate
that such title was maintained and held continuously up to the point at which
the dispute genuinely arose in the nineteenth century. That is, Iran would
have to demonstrate that its title was – in the words of Fitzmaurice – “kept
up” and not lost over the many centuries that followed either through con-
quest, prescription, abandonment, or a failure to renew over a sufficiently long
period – or if lost, that it was re-established at some later date and thereafter
maintained. A parallel to this requirement may be drawn from the pronounce-
ment by Judge Huber in the Island of Palmas case, already mentioned above,
where he stated that in distinguishing between the “creation of rights” and the
“existence of rights”, the continuing effectiveness of an occupation must be
determined not only in the act of acquisition, but also in its maintenance.125 If
sovereignty cannot be proved because it has not been effectively maintained
in accordance with those evolving requirements, “the question of an abandon-
ment properly speaking of sovereignty by one State in order that the sover-
eignty of another may take its place does not arise.”126
Conversely, if sovereignty derived from ancient rights cannot be established
or is determined not to have existed at all, this conclusion would of course not
be fatal to Iran’s claim. It would, however, require it to demonstrate that its title
over the islands was acquired at some subsequent point prior to the crystalliza-
tion of the dispute in the late nineteenth century. As noted in the Legal Status
of Eastern Greenland case, “even if the material submitted to the Court might
be thought insufficient to establish the existence of that sovereignty during the
earlier periods, this would not exclude a finding that it is sufficient to establish
a valid title”127 at the time the dispute arose. Clearly, it is the legal position at
that moment which is critical, and whether title was held since antiquity, or

126 Ibid., 845–846.
at some moment or another in antiquity and then lost or abandoned, may be

of historical interest but with respect to the legal question whether Iranian
title over the islands in the late nineteenth century existed, it is of secondary
importance.
Stated another way, whether or not it is determined that Persia likely held
dominion over the islands in furthest antiquity, a more recent demonstration
of its sovereign title would undoubtedly be necessary in order to show either
that it has kept that title up continuously over the centuries in accordance
with the evolution of international law (in the event that its ancient rights are
established) or that it has acquired that title at some later time (in the event
that its ancient rights are not established or are deemed to have been acquired
in antiquity but then subsequently lost).
Notwithstanding these considerations, the methodology followed in both
Legal Status of Eastern Greenland and Minquiers and Ecrehos suggests reasons
why an analysis of such prior history may be considered relevant even where,
if established, it is not possible to trace an u
nbroken chain of title stretching
all the way from such earlier period to the more r ecent critical date of the late
nineteenth century. In the Legal Status of Eastern Greenland case, the Perma-
nent Court appeared to suggest that although Denmark had no “intercourse”
with Greenland for two centuries during which only the earlier-established
“traditions” or “mere pretensions” of the Danish Kings towards ownership
of Greenland endured, the effect of its earlier sovereignty over the island in
the thirteenth and fourteenth centuries somehow subsisted, possibly in an
imperfect or inchoate manner (as suggested by Fitzmaurice128) during this
period until it was revived by the establishment of new colonies in 1721.129
Thus, the establishment of Denmark’s sovereignty in the eighteenth century
was somehow, albeit unclearly, tied to the ancient rights it enjoyed in the
thirteenth and fourteenth centuries and given importance in granting it sov-
ereignty over the island. The importance given by the Court to Denmark’s
ties with Greenland during these earlier periods was, it would appear, based
largely on the absence of any other competing claim to the island during
those times.
In the Minquiers and Ecrehos case, the icj based its decision principally on
a balancing of “the relative strength of the opposing claims to sovereignty”
of France and England dating from the beginning of the thirteenth c entury
through to the twentieth century without specifically declaring if at any
234 chapter 4
articular time either party held a definitive sovereign title over the island
p
groups (although it did declare that English “dominion” existed over the Ecre-
hos at the beginning of the thirteenth century). Thus, the respective long-held
connections with and exercise of sovereign functions over the islands during
several centuries was considered of relevance by the Court in determining
which of the parties, on balance, held a superior claim. In a similar fashion, and
if title to the three Gulf islands requires a balancing of the “relative strength”
of the sovereign contenders’ respective connections to the islands, Iran may
argue that its claim should be considered in the light of its ancient rights, if
they can be established, even if such rights did not equate to sovereignty or if
they were at some point lost or abandoned. Although such a balancing of ties
to the islands in antiquity is not as relevant in the case of the Gulf islands since
it is only Iran which makes a claim based on historic rights, it may nevertheless
be of significance in determining whether Iran’s claim stemming from the con-
frontation in the nineteenth century may, on balance, be bolstered by some
ancient ties with the islands which the uae cannot demonstrate.
Absence of Direct Evidence

The conclusion to be drawn from the standards and pronouncements set out
in cases which have dealt with claims of sovereign title based on ancient rights,
as well as from the general grounds for evaluating the weight of inferential
or indirect evidence noted above, is that the probative value attached to such
evidence is not considered to be highly significant in these types of cases. For
that reason, any such claims that rely entirely or to a very significant extent
on indirect or inferential evidence are likely to face complications and dif-
ficulties. Thus, in evaluating the arguments which might be raised by or on
behalf of Iran that its claim over the islands is supported by the ancient or
historical rights over the islands held in the first instance by Persian empires
or dynasties, it would first be important to determine whether there exists any
“concrete facts adduced as evidence”130 that would directly support those ar-
guments, including any such evidence which, in the words of the icj in the
Minquiers and Ecrehos case, “relates directly to the possession” of the islands
by Persia in antiquity.
Although it is not the authors’ intention to pre-judge the nature and ex-
tent of evidence which might be produced if this dispute were ever to pro-
ceed to arbitral or judicial adjudication, based on the research conducted by
us in undertaking this work, it appears unlikely that there is any direct evi-
dence (as opposed to indirect evidence, inference or conjecture) which has
ever been unearthed of any Persian empire or dynasty which ruled prior to
the sixteenth century having actually possessed or claimed the islands or
exercised any s overeign functions there. Despite their relative proximity to the
Persian mainland, neither does there appear to be any direct evidence which
has come to light that any of the various Persian empires that reigned from the
fifth century b.c. until the sixteenth century a.d. actually landed on or took
physical possession of any of the islands, took any symbolic act of discovery
or occupation of the islands, had any connections with the islands or indeed
had the will to possess the islands. There is no mention of the islands in any
roughly contemporaneous or otherwise ancient text identified by historians or
scholars which directly ties or links the islands to these empires (with one pos-
sible exception – discussed in the following section – for Greater Tunb derived
from the writings of Herodotus and later Arrian in the fifth century b.c. and
the second century a.d., respectively), nor any suggestion that any of these
empires had any interest in possessing them. There is also no suggestion nor
any particular explanation which has been put forward that, or why, the islands
would have been of any specific use or interest to these empires as sovereigns.
Indeed, it does not seem to have occurred to any organized power, P ersian or
otherwise, to make consistent (or any) use of or seek to possess any of the three
islands until either the end of the eighteenth or the early nineteenth century
(see chapters 7 and 8) and even following that period the claims made to the
islands (by the Qawásim and by Persia) were largely harnessed to the use to
which local tribesmen living on the Gulf littoral had already informally put the
islands over a significant period of time (fishing, grazing of animals, pearling
and shelter) rather than some alternative use initiated by a sovereign authority
itself.
In brief, there is virtually no evidence which has been identified that
directly ties possession of the islands to any Persian empire from earliest an-
tiquity to the sixteenth century nor that indicates that any such empire (or
any other contemporaneous power) exercised any sovereign authority on the
islands whatsoever.131 Indeed, a prominent point raised in many of the writ-
ings of scholars who have supported the Iranian claims over the islands on
131 A possible exception to this conclusion, discussed in chapter 5, relates to the Kingdom
of Hormuz. As discussed therein, there is some historical evidence that this entity may
have possessed Greater Tunb. The nature and reliability of this evidence is also addressed
in that same chapter, along with the argument advanced by various proponents of the
Iranian claim over the islands that the Kingdom of Hormuz was a vassal State to Persia,
and that therefore Hormuz’s ownership of the Greater Tunb was in reality a continuing
manifestation of Persian sovereignty over that island.
236 chapter 4
the grounds of an asserted ancient or historical title is precisely the opposite;

that is, that the islands were never specifically mentioned in any historical texts
because, it is asserted, they were of no use and too inconsequential to men-
tion.132 For that reason, those advocating the existence of an ancient or histor-
ic Persian title over the islands openly base their own conclusions on “indirect
evidence”,133 “conjecture”,134 “likelihood”135 and “inference”136 rather than evi-
dence of actual possession or use. It is also noteworthy that the islands appear
to have remained uninhabited well into the nineteenth century, and it is a fair
assumption – particularly in the absence of any evidence to the contrary –
that they were uninhabited in antiquity as well. It may be noted in this respect
that this was not the case for all similarly small Gulf islands. For example, ar-
chaeological activities conducted in the Gulf have found Nestorian Christian
monasteries from Kharq island off the coast of Iran and on Sir Bani Yas island
off of Abu Dhabi dating from the third to the fourth century a.d.137
This absence of attention, as in the Eritrea/Yemen arbitration, must raise
further questions as to whether it can be claimed that Persia had sway over the
islands or the will to control them. This is particularly the case as the islands
are not at all inaccessible and certainly in the case of Abu Musa and Greater
Tunb, are capable of sustaining human habitation.
Nor has any claim or declaration of dominion over the islands by any of
the ancient Persian empires or those which emerged after the Arab conquest
been unearthed. Indeed, one of the principal conjectural grounds on which
it is claimed that the islands formed part of the Achaemenid Empire – that
132 See, e.g., Mehr, A Colonial Legacy, 143.

134 Ibid.
135 Ibid.
136 Ibid.
137 G.R.D. King, “A Nestorian monastic settlement on the island of Sir Bani Yas, Abu Dhabi:
a preliminary report”, Bulletin of the School of Oriental and African Studies, University of
London 60 (2) (1997): 221–235, 234. It should be noted, however, that from an ancient text
reporting a further such monastery on a “black island” founded in 343–46 a.d., it has been
suggested, but never confirmed, that the monastery in question may be found on Abu
Musa island since it roughly fits that description. Ibid. (“Sir Bani Yas has a monastery and
as it rises in clear light at dawn or sunset it is certainly dark enough to be called a ‘black
island’ by the Vita lonae but it must be stressed that there has been a lack of field-work on
other islands on the Iranian shore and on more easterly Gulf islands like Abu Musa, where
the same term could as well apply. At this stage, one can only emphasize the difficulties
that attend associating specific named places with existing Nestorian sites in the area.”).
they were included within the XIVth Satrapy (or Province) of that empire – is
not derived from archaeological findings tied to the Achaemenids themselves,
but from Greek texts of Herodotus and, in particular, Arrian written several
centuries later which have been interpreted by some modern archaeologists
as expressing the Greek view that certain Gulf islands, including Greater Tunb,
may have formed part of that Satrapy.138
In sum, and to use the words of the Permanent Court in the Legal Status
of Eastern Greenland case, there is no direct evidence of any sort which has
been uncovered which would demonstrate “some actual exercise or display of
[sovereign] authority” over the islands by any of the Persian Empires e xisting
from the fifth century b.c. until the sixteenth century a.d. and which would
manifest such empires’ “intention or will to act as sovereign” over those
islands.139
Finally, it should be mentioned that while it has become well-established
that, with respect to thinly populated areas or areas firmly within territories “in
which sovereignty is incontestably displayed”, that is, where a “conventional
line” or frontier leaves no room to doubt which power exercises sovereignty,
“very little in the way of actual exercise of sovereign rights” might be suffi-
cient “in the absence of a competing claim”,140 in the case of the three Gulf
islands during this long period from furthest antiquity to the sixteenth century,
there is virtually no trace of any actual exercise of sovereign authority of any
nature by Persia, or indeed anyone else, nor any hint of a claim. Moreover,
this circumstance subsisted within the long history of turbulence of the Gulf
region, which saw significant confrontation and the emergence of a number of
strong competitors – including Greek, the Arab Islamic Caliphates, Hormuz-
ian, Omani and other coastal Arab powers, Ottoman and finally Portuguese –
whose activities on Gulf waters and around its littoral in many cases eclipsed
or supplanted entirely those of Persia. The islands were therefore not akin to
interior or inland areas behind a “conventional line” where Persian sovereignty
was “incontestably displayed”. Rather, they were in the midst of waters on the
high seas where numerous local and foreign parties continuously interacted,
and where significant strife and confrontation endured over extended periods
of time. These circumstances bring to mind the description of the area around
138 Daniel T. Potts, “The Islands of the XIVth Satrapy”. Accessed January 10, 2016. http://www
.geopark.ir/content/media/80047heg//Potts%20islands%20of%20%E2%80%A6Vth%20
satrapy.pdf.
140 Ibid., 48.
238 chapter 4
the contested Red Sea islands made by the tribunal in the Eritrea/Yemen case,
where it highlighted the “waterless and uninhabitable nature of these islands
and islets and rocks, and the intermittent and kaleidoscopically changing po-
litical situations and interests”, which supported the Tribunal’s finding that
both parties had failed to persuade it that “the history of the matter reveals
the juridical existence of an historic title, or of historic titles, of such long-
established, continuous and definitive lineage to these particular islands, islets
and rocks as would be a sufficient basis for the Tribunal’s decision.”141 Further,
as held by Judge Huber in the Island of Palmas case, manifestations of territo-
rial sovereignty in such circumstances must be more clearly demonstrated.142
The ebb and flow of sea-borne power and the absence of any evidence
which relates directly to the possession of the islands by any of the ancient
Persian empires, can only bring into sharper relief the doubts that any claim
that those empires held the islands as their own territory continuously and
throughout this long historical period could be established as a legal matter.
Inference, Indirect Evidence, Conjecture and Speculation

It follows from the evidentiary points just made that an assertion that any
of the various pre-Islamic Persian empires which ruled at some point prior
to the seventh century a.d., or any of the Persian dynasties which followed
the Islamic conquest up to the sixteenth century, may have possessed, used
or had connections with the islands could only be based on inference, indi-
rect evidence, conjecture or reasoned speculation. Given the antiquity of this
time period, this conclusion is certainly not surprising. As discussed above,
international law does not reject such inferential evidence outright in resolv-
ing territorial disputes, but neither does it favor it. Instead, there is a strong
preference, as reflected in the decision of the icj in the Minquiers and Ecrehos
case, to base conclusions in such cases on “evidence which relates directly to
the possession” of the disputed territory.143 Thus, to satisfy its burden of proof,
Iran would have to demonstrate that whatever inferential evidence exists, that
evidence is significant enough standing on its own to establish that Persian
empires in antiquity must have effectively possessed the islands and that from
141 Eritrea/Yemen case, paras. 447, 449.

142 See Island of Palmas Case, 843, where the following finding is made: “[I]f a conventional
line leaves room for doubt, or if, as e.g. in the case of an island situated in the high seas,
the question arises whether a title is valid erga omnes, the actual continuous and peaceful
display of State functions is in case of dispute the sound and natural criterium of territo-
rial sovereignty”.
the time it was acquired, such effective possession continued throughout the
centuries until the modern era, indeed until the outbreak of the dispute in the
nineteenth century. As referenced above, the burden of proof required when
relying on inferential evidence has been expressed by the icj in one case (the
Corfu Channel case) as requiring the establishment of the proposition in ques-
tion “with no room for reasonable doubt”.144
The principal thrust of the argument that it may be assumed, in the absence
of direct evidence, that a series of ancient Persian empires must have acquired
and maintained effective possession of the three Gulf islands is that certain
of such empires conquered and controlled areas on the littoral of the Gulf –
extending at certain historical times to locations on both sides of it – and in
so doing became the dominant power throughout the Gulf region. Therefore,
even if not specifically mentioned in any relevant historical text, the islands
may be assumed to have come under the overall dominion of Persia at some
point in ancient history. Once incorporated into the sway of the greater Per-
sian empire, this sovereign possession, like other internal areas of the greater
expanse of Persian lands, was maintained, or perhaps simply never irrevocably
lost.145
There are a number of considerations which go into evaluating this asser-
tion, and it must be said that, as far as the available historical data and the
criteria developed under international law are concerned, they strongly point
to the assertion’s unsustainability.
(a) The Gulf as a “Persian lake” throughout Antiquity

The first, and most apparent, question raised when assessing this hypothesis is
whether (assuming for argument’s sake that at certain times in ancient history
Persian empires, whether Achaemenid, Sasanian, Buyid, Seljuk or others, estab-
lished control of areas on both littorals of the Gulf or otherwise were the most
dominant power in the Gulf region) such an historical phenomenon would
lead to the inevitable conclusion that these empires must have also possessed
and controlled many or all of the islands located within the Gulf, even those
(including the three islands in dispute) which were uninhabited and barren,
144 Amerasinghe, Evidence in International Litigation, 228, referring to Corfu Channel case, 18.
145 As noted by Mirfendereski: “The likelihood of the appurtenance of the Tonbs to Iran ap-
pears even stronger at the times when the Iranian dominion extended to the lower coast
of the eastern Persian Gulf thereby placing the Tonbs at least theoretically in the pen-
umbra of Iranian sovereignty. The political and commercial domination of Iran over the
Persian Gulf in the Seleucid (312–150 b.c.), Parthian (238 b.c.–224 a.d.) and Sassanid (a.d.
224–641) periods points to the conclusion that in pre-Islamic times the Tonbs most likely
belonged to Iran.” Mirfendereski, “Ownership of the Tonb Islands”, 120–121.
240 chapter 4
or located in what we would now refer to as the “high seas”. If scrutinized in

light of the nature of the inferential evidence which purportedly s upports this
view, as well as in accordance with the development of international law in
the modern age, the answer to this question must be in the negative. Several of
the reasons for that conclusion – such as the lack of c ontinuity in any asserted
possession – are set out in the sub-sections which follow. In this sub-section
we will note a number of threshold reasons why such an hypothesis would
overly strain both the evidence upon which it is based as well as the accepted
bounds established under international law.
A key difficulty which a proponent of this hypothesis would encounter
is the general unreliability – as a matter of evidence – of the sources of in-
formation and historical data which relate to it, and that the data which is
available, including the relevant archaeological findings, do not actually bear
out the broad conclusions which that hypothesis entails. For example, one
eminent archaeologist on Gulf history writes that the “impact of the Ach-
aemenid Empire on the Persian Gulf has long been debated” and that “while
the conquests of Cyrus the Great, Cambyses, Darius i, and Xerxes, to name
the most well-known Achaemenids, forged an empire that stretched from the
Aegean to Central Asia and the borders of India, the extent of Achaemenid
interest in the Persian Gulf is less well-documented.”146 Another scholar notes
that “in comparison with the Mediterranean and the Black Sea, information
on the Gulf [in late Antiquity] is rather meager”,147 while yet another author
points out that “[t]he very early history of the Persian Gulf and of the regions
round its shores is largely conjectural and hypothetical” and that “[o]ur knowl-
edge of it is based mainly on mythology, on deductions from ancient historical
records that have come down to us, such as the Old Testament, cuneiform tab-
lets … and the d eductions of anthropologists”.148 While the very early history of
the Gulf region in general may be conjectural and hypothetical, the very early
history, and indeed the later history up to (and beyond) the beginning of the
sixteenth century, of the specific islands in dispute is practically non-existent
(other than references which have at best the most tenuous connection with
the islands themselves).149 In his book, The Arabian Gulf in Antiquity, D.T. Potts
146 Daniel T. Potts, “The Archaeology and Early History of the Persian Gulf,” in The Persian
Gulf in History, ed. Lawrence G. Potter (New York: Palgrave Macmillan, 2009), 38.
147 Daryaee, “Persian Gulf in Late Antiquity”, 57.
148 Sir Arnold T. Wilson, The Persian Gulf, An Historical Sketch from the Earliest Times to the
Beginning of the Twentieth Century (London: George Allen & Unwin Ltd., 1928), 25.
149 See chapter 5.
describes the “scientific study” of the Gulf, and the centuries’-long gaps in its
assembly as follows:
The modern, scientific study of the Arabian Gulf has its ultimate origins …
in the attempts to gather accurate information on the coasts and waters
of the region by Nearchus and later Greek admirals who served under
Alexander the Great and his Seleucid successors. For centuries, however,
no further systematic efforts at describing the region were undertaken
until the renowned Arab pilots (mu’allim) Ibn Majid (d.c.1500) and Su-
laiman al-Mahri (d.c.1553) compiled their famous navigational works.
With the arrival of the Portuguese and Ottoman fleets in the sixteenth
and seventeenth centuries, though, and the entrance of the British East
India Company and the Dutch East India Company into the region, the
accumulation of knowledge of the coasts, ports, tides, and general con-
ditions in the area increased markedly. From this point on, naval charts
of the Gulf, admittedly of highly variable quality, began to proliferate. In
addition, the mid-eighteenth and early nineteenth centuries witnessed
the publication of several important mariner’s handbooks devoted to the
region.150
The difficulty in reaching clear or confident conclusions as to the scope, extent

and timing of the possession and control of the Gulf littoral and its islands over
many centuries when no written records were maintained is that, by neces-
sity, such conclusions, based to a large extent on literary sources which were
written centuries after the events or facts in question purportedly occurred or
based on archaeological findings, rely exclusively on deductive reasoning, con-
jecture or simply educated guess-work rather than more clearly ascertainable
facts. These are precisely the grounds on which the icj was unwilling to base
its evidentiary findings concerning asserted historical territorial possession
in the Minquiers and Ecrehos case, and later cases which followed the same
reasoning.
Although archaeological deductions, on which much of our assumed
knowledge of early Gulf history is based, are valuable in their own right as
indications of historical events, as noted above in this chapter, international
law has tended to treat such evidence and ancient historical works with a great
deal of caution, particularly when more recent and more conventional forms
of establishing facts are available. This is particularly the case when deal-
ing with historical events of early antiquity. In the Western Sahara Advisory
150 Daniel T. Potts, The Arabian Gulf in Antiquity (Oxford: Clarendon Press, 1990), Vol. 1, 5–6.
242 chapter 4
O
pinion, for example, the icj virtually dismissed out of hand “historical works”
relied on by Morocco to establish its claim of having held immemorial posses-
sion of the disputed territory since the time of “the Arab conquest of North
Africa in the seventh century a.d.” by stating that “[t]he far-flung, spasmodic
and often transitory character of many of these events renders the historical
material somewhat equivocal as evidence of possession of the territory now
in question.”151 The historical period involved in assessing the hypothesis that
ancient Persian empires must have effectively possessed all of the Gulf’s is-
lands goes much further back into ancient history, which would make it much
more problematic. Indeed, it does not appear that any international decisions
over a territorial dispute have ever been based primarily (or at all) on such
evidentiary sources.
In this regard, it is important to understand the material nature of the
archaeological evidence that has been unearthed to understand its limits and
the speculative inferences which are drawn from it. While such evidence may
give a snapshot of a specific aspect of ancient history, the broader c ontours of
historical events and the specific details emanating from these various snap-
shots are the subject of considerable debate. For example, D.T. Potts, while
noting that “[t]he impact of the Achaemenid Empire on the Persian Gulf has
long been debated”, identifies and sums up the archaeological evidence of that
empire’s presence in the southern Arabian side of the Gulf as having come
largely in the form of: (i) ceramic bowls and short swords found in Oman that
indicate its links with the Achaemenid empire; (ii) three of Darius i’s (521–486
b.c.) own inscriptions which use wording linking them to southeastern A rabia;
and (iii) several texts or tablets found in fortifications in Persepolis which re-
cord the allocation or disbursement of certain products, including beer and
wine, to regions presumably located on the Arabian side of the Gulf:
In one case, the flour was supplied to sixty-two men and their servants, all
of whom were described as “Arabians”, a strong indication that the desti-
nation, that is, Maka/Makkash, lay on the Arabian side of the Gulf (even
though Arab settlement on the Iranian side of the Gulf, well-attested
from the early Islamic to the modern era, may already date to this early
period).152
Other similar, but materially limited, archaeological evidence has been un-
earthed in relation to the geographical extent on the Arabian side of the Gulf
151 Western Sahara Advisory Opinion, para. 91.

152 Potts, “Archaeology and Early History”, 38–39.
of subsequent Persian empires. These pieces of archaeological data are, despite

their relatively limited nature, sometimes cited by legal scholars and commen-
tators as evidence of broad historical events and sweeping conclusions. For
example, one such scholar asserts that during the Sasanid period (224–641
a.d.), the Tunbs “most likely belonged to Iran”, due in part to “Iranian domin-
ion extend[ing] to the lower coast of the eastern Persian Gulf”153 (i.e., Oman).
However, the archaeological evidence of Sasanian rule in Oman simply can-
not support the suggestion that it endured throughout that region during a
four-hundred year period and, more importantly for our topic, that whatever
Sasanian rule over Oman existed somehow brought with it control and owner-
ship over the Tunbs. These assertions are speculative in the extreme, particu-
larly as there is no mention of the Tunbs in any source material related to the
Sasanian period. Furthermore, the archaeological evidence itself of Sasanian
rule in Oman is too limited, sparse and patchy to draw such broad conclusions.
For example, while one scholar (Daryaee) references an “inscription” of the
second Sasanian ruler, Shahpur i, who ruled from 240–270 a.d., which defined
the extent of his empire as including “and on the other side of the sea (dray),
Oman (Mazunshahr)” along with a Middle Persian text (which recalls a battle
in which it is stated that “at that time, a son (of the Kirm-Xwaday) who was
at Erhestan, with a large number of forces from the Arabs and Omanis who
were on the coast of the sea came and fought with Ardaxshir”) as the source
of archaeological evidence proving that the Sasanian Empire encompassed
Oman,154 another scholar (Potts) notes that “[a]fter the reign of Sapur [Shah-
pur], sources for the history of Sasanian political relations with the Oman
peninsula are lacking for roughly 150 years.”155 Deriving from this, and other
archaeological evidence of the Sasanian presence in the Oman peninsula, that
Sasanian rule over the Tunbs during a period of more than four centuries (or
at all) can be assumed would stretch the import of that evidence beyond any
reasonable limit.
Similarly, the Parthian period (238 b.c.–224 a.d.) is cited by some legal com-
mentators who support the Iranian position over the islands as a period of
“political and commercial domination of Iran over the Persian Gulf” due to
the evidence of the extension of Parthian rule to the Arabian side of the Gulf
at its lower corner (Omani peninsula). Such scholars consider this as strong
evidence of the “likelihood of the appurtenance of the Tonbs to Iran” during
that period.156 While there is some archaeological evidence of the Parthian
153 Mirfendereski, “Ownership of the Tonb Islands”, 120–121.

155 Potts, Arabian Gulf in Antiquity, Vol. 2, 330.
156 Mirfendereski, “Ownership of the Tonb Islands”, 120–121.
244 chapter 4
resence in the Omani peninsula, principally at Ed-Dur located in the present

p
uae emirate of Umm Al Qaiwain,157 reaching a conclusion that the Parthians
possessed the Tunbs on the basis of that evidence clearly does not follow. In-
deed, Potts notes that “[s]o far, very few sites dating to the Parthian period
have been located south of Bahrain”, with the exception of Ed-Dur, the center
of which is estimated to have been occupied “principally between the first and
third or fourth centuries ad.”158 Beyond the relatively limited archaeological
evidence of Parthian control of Omani territory and the southern end of the
Gulf, no evidence of the possession of the Tunbs during this period by any
power has been unearthed at all.
While these findings are noteworthy and historically fascinating in and of
themselves, their significance in connection with defining and establishing le-
gal rights is extremely limited and should not be over-stated. Thus, they cannot
be said to establish with any level of reasonable certainty or precision either
the nature, timing and geographical extent of Persian rule over and around the
Gulf throughout a period of numerous centuries, or more significantly, wheth-
er that rule extended at any time to the islands in dispute, for which there is no
independent evidence whatsoever.
On this point, it is worth recalling the well-recognized dictum of Judge Huber
in the Island of Palmas decision noted above. He stated that a lesser demon-
stration of the exercise of sovereign authority would suffice when determining
title to regions within territories “in which sovereignty is incontestably dis-
played”, but that where a “conventional line leaves room for doubt”, the “natu-
ral criterium” for determining sovereign title must be “the actual and peaceful
display of State functions” by the parties contesting that title.159 An underlying
suggestion to the argument that, even in the absence of any direct evidence, it
should be assumed that ancient Persian empires held dominion over the three
islands is that the territorial expanse of those empires fully e ncompassed the
Gulf as a whole, including its islands, and that therefore no direct evidence
of Persian possession of the islands should be required to make out its claim
over them. Indeed, in Judge Huber’s words, “sovereignty cannot be exercised in
fact at every moment on every point of a territory”,160 and therefore, according
to this argument and extrapolating from Judge Huber’s dictum, demonstrat-
ing Persian sovereignty over small territories (uninhabited islands) within the

158 Ibid.
160 Ibid.
s ecure borders of the Persian Empire, or “regions enclosed within territories in

which sovereignty is incontestably displayed” should not require that it bring
forth some specific evidence of its exercise of authority on those islands.161
The question whether the Gulf was such a region, comfortably enclosed
within the vastness of the Persian Empire, is, it would seem, fairly easily struck
down. While some ancient Greek texts and archaeological evidence (such as
that cited above) suggest, that at different points in history, Persian empires
extended their territorial control to points on both sides of the Gulf, even
taken at face value this evidence does not purport to establish the continu-
ous and all-encompassing dominion by Persian empires entirely around the
Gulf which would bring the islands into the status alluded to by Judge H uber.
As noted above, the extent and timing of Persian control of coastal areas on
both sides of the Gulf is subject to much debate and speculation, includ-
ing the interpretation of limited literary and archaeological evidence on
which it is difficult to reach definitive conclusions, particularly ones which
leave no room for reasonable doubt and which are intended to determine
legal rights over territory. Moreover, the Gulf waters and islands are barely
addressed in this evidence, leaving it even more uncertain what their status
may have been.
Other historical considerations are also relevant. These include that the
Gulf was, for much of its history prior to the sixteenth century, a region of
significant interaction and confrontation between peoples and powers, rather
than an area enclosed within one of a series of Persian empires. In the con-
stant ebb and flow of power and control around the Gulf during early history,
Persia played an important and at times dominant, but by no means exclusive,
part. Other competitors, including the Greeks and Romans, as well as the Arab
Caliphates, and at a slightly later date the Kingdom of Hormuz, Oman, the
Ottoman Empire and Arab tribal groups, to name some of the most obvious,
either defeated or supplanted Persian authority and power (including around
the Gulf littoral) at various times in history. Moreover, most of these powers
were, or became, highly oriented towards the sea and played a prominent role
there. However one describes this history of interaction and competition, it
is clear that, unlike for example the unchallenged power and authority of the
Danes in Greenland, there were competitors whose interests and power must
be considered when drawing speculative conclusions about presumed and
continuous Persian ownership over the Gulf or the three Gulf islands during
many centuries of history.
161 Ibid.
246 chapter 4
Even if it is thought reasonable to conclude that a Persian Empire, for exam-

ple, the Sasanian Empire, held what may be described as sovereignty over the
islands, the defeat of that empire by the Arab Caliphate in the seventh century
would have introduced a new consideration, that of Persia’s loss of sovereign
title through subjugation or conquest. The submission of the Sasanian Empire
to the Arab armies has been described by Savory as follows: “[w]ithin ten years
from the date of the first border clash in 633, the Arabs had conquered the
entire Sasanid empire, weakened by four centuries of struggle against Rome
and Byzantium.”162 Wilson summarizes the defeat of the Sasanians in this way:
[T]his kingdom of the Sasanians the Arabs eventually completely

overran and conquered: the last of the Sasanians was hunted down and
slain in the year a.d. 652, and the whole of Iran passed under the rule
of Islam in the time of the Caliph Othman, the second of the immedi-
ate successors of Muhammad, whose reign came to an end in 656. The
maritime provinces of the Persian kingdom were Iraq, Khuzistan, Fars,
Kirman, and Makran, and the names and boundaries of these divisions
were maintained for the most part, as far as is known, under the Arabs.163
In summary, speculating about a purported Persian ownership of the islands

continuously held over many centuries about which there is no actual or direct
evidence in support and in the midst of what may also be described as the “in-
termittent and kaleidoscopically changing political situations and interests”164
of the empires and powers which held control of the Gulf littoral and of the
Gulf waters throughout this historical period, is highly questionable and can-
not withstand serious scrutiny.
Given that inferences as a source of evidence in international law to estab-
lish a proposition may be controverted by counter-inferences,165 a final query
must be whether such counter-inferences exist and whether they appear to
outweigh the inference which has been advanced, i.e., that possession and con-
trol of locations on the Gulf littoral by various Persian empires and the estab-
lishment of one or more of those empires during periods of ancient history as
the predominant regional power must have brought with it an enduring posses-
sion and control of the Gulf’s islands. As Iran would bear the burden of proof
of establishing the assertion that its territorial rights over the islands exist on
162 Roger Savory, “a.d. 600–1800”, in The Persian Gulf States, A General Survey, ed. Alvin J. Cot-
trell (Baltimore: John Hopkins University Press, 1980), 14.
164 Eritrea/Yemen case, para. 449.
165 See, e.g., Amerasinghe, Evidence in International Litigation, 217.
the basis of immemorial title, it would be up to it to argue that this inference

is credible (“with no room for reasonable doubt”166 ) and outweighs any coun-
ter-inferences which might exist. The first logical step in such an analysis is to
determine the strength of the inference itself. This step may, it appears, be dis-
posed of briefly for it does not require much more than simply to ask whether
it appears logically or inevitably to follow that by virtue of the possession of
coastal areas on the Gulf littoral at various intervals of ancient history and its
position at particular and scattered periods of ancient history as the strongest
regional power in the Gulf, a series of primarily land-focused Persian empires
must have also continuously possessed and controlled many or all of the islands
located within the Gulf, including the three uninhabited islands in question.
This is clearly not an obvious deduction as a factual matter, particularly so since
there is no positive or direct evidence that might support it. It is also worth not-
ing that international law (albeit as it evolved in the nineteenth century) de-
veloped similar conclusions by clearly rejecting any notion that geographical
proximity (for example, of a mainland to islands), or contiguity, could serve as
an independent source of title.167
The extent to which such an inference appears unpersuasive, or even some-
what far-fetched, however, is more apparent when viewing the reasonableness
of the counter-inferences to which one is led. These may include the following:
(i) From the geographical location of the islands, at a fair distance

off-shore and in the high seas, and from their circumstances as
essentially uninhabited, desolate and unused until (based on the
available direct evidence) the seventeenth century, it is not diffi-
cult to infer that in antiquity they were also unclaimed and unused,
and therefore not possessed or put to use by any organized group,
State or empire. The reasonableness of this counter-inference is
supported by the decision in the Eritrea/Yemen Case, which arrived
at this same conclusion with respect to various Red Sea islands
having similar characteristics (“uninhabited and barren islands
used only occasionally by local, traditional fishermen”), holding
for that reason that these islands were not likely to have been pos-
sessed or under the control of any power in ancient times.168
(ii) From the absence of any mention of the islands in ancient literary
sources as having any use or as belonging to any power, or any
166 Ibid., 228, citing to Corfu Channel case, 18.

167 See chapter 3.
168 Eritrea/Yemen case, paras. 446–449. See text accompanying note 141 .
248 chapter 4
evidence which might indicate that they were possessed or fought

over, it also appears quite reasonable to infer that no power did in
fact possess or was interested in possessing them.
(iii) The lack of naval assets of at least certain of the ancient Persian
empires, for example the Sasanians, must also lead to a negative
inference about the practical ability of such empires to possess or
control the islands. About the Sasanian maritime capability, Savory
has noted that although the Sasanians “were the first Iranian kings
actively to encourage native Iranian seafaring”, “[t]he sixth cen-
tury a.d. marked the peak of Sasanid maritime activity, but once
again it must be noted that this was purely commercial activity.
The Sasanids had no navy, and this lack was a severe handicap in
their wars with Rome. In 622, Heraclius crossed the Aegean unmo-
lested, and in 623 he sailed from Byzantium across the Black Sea
without opposition. Both voyages resulted in the defeat of a Sasanid
army.”169
(iv) Finally, in light of the well-established historical convulsions and
shifts in power occurring around the littoral of the Gulf, and in Gulf
waters themselves, during the long march from antiquity to the
relatively modern era, it is also reasonable to infer that even if they
were the object of sovereign ambitions by some Persian empire at
some point in antiquity (for which there is no evidence), any pos-
session and control which may have been obtained at some point
could not have been maintained in a continuous manner over the
course of so many centuries. Indeed, following the tenth century
a.d. there are only sporadic examples of an established Persian
presence on the southern littoral of the Gulf, including in relation
to its control of Bahrain in the eighteenth and nineteenth centuries
and the two Persian campaigns of Nadir Shah against Oman in the
1730s and 1740s, both of which ended disastrously for Persia.170 By
the seventeenth century (if not earlier), much of the Persian litto-
ral itself had gone out of the control of any central Persian govern-
ment to diverse Arab tribes, and Oman was to establish itself on
the southern end of that littoral in a more formalized manner by
169 Roger M. Savory, “The Ancient Period”, in The Persian Gulf States, A General Survey, ed.
Alvin J. Cottrell (Baltimore: John Hopkins University Press, 1980), 12.
170 See, e.g., Laurence Lockhart, Nadir Shah, A Critical Study Based Mainly on Contemporary
Sources (1938), 182–184, 212–222. See generally, J.B. Kelly, Britain and the Persian Gulf 1795–
1880 (Oxford: Oxford University Press, 1968).
1794, albeit pursuant to a lease arrangement agreed with the Persian

government. This lack of “continuity” of ownership and its legal
significance is discussed further below in this chapter.
(b) The Three Islands as Part of the XIVth Satrapy

Certain scholars who endorse the Iranian claim to the islands based on
ancient rights have noted that evidence potentially supporting that claim may
be found in historical writings which tie the islands of the Gulf to the XIVth
satrapy, or province, of the Achaemenid Empire. For example, Mirfendereski,
citing Herodotus, states that: “The Achaemenid Empire (550–330 b.c.) in the
Persian Gulf consisted of the 14th satrapy (administrative division), which in-
cluded ‘the islands of the (Persian Gulf), where the king sends those whom
he banishes.’”171 He asserts that this was the “earliest mention of the exer-
cise of criminal or penal jurisdiction in the islands in the Persian Gulf by any
sovereignty”.172 Indeed, taken at face value, this reference appears to be one
of the few, if not the only, instance in which a specific mention in historical
writings potentially links, albeit indirectly, the three Gulf islands to Persia. It is,
therefore, a potentially significant piece of historical evidence.
Notwithstanding the inference which might be drawn from this reference
and the bearing it appears to have on the Iranian claim of ancient or historic
rights over the three islands, upon closer scrutiny its probative value as a piece
of evidence in support of this claim diminishes significantly. This is for several
reasons independent of what must undoubtedly be its inherent unreliability,
from an evidentiary perspective, due to its very antiquity and origins. First, the
reference cited is not derived from any writings, inscriptions or archaeologi-
cal findings tied to the Achaemenid Empire itself. Indeed, as noted by Potts,
“none of the Achaemenid royal inscriptions listing the satrapies … refer to”
such islands.173 So it cannot be concluded on the basis of this evidence that
the Achaemenids themselves claimed or asserted any ownership or possession
of any Gulf islands. Rather, the reference is derived from observations made in
writings attributed to the Greek historian Herodotus dating from around the
middle of the fifth century b.c. which stated, in discussing the Achaemenid
satrapal reforms reportedly carried out by Darius i, that:
The fourteenth province consisted of the Sagartians, Sarangians, Tha-

manaeans, Utians, Mycians and the inhabitants of the islands in the

172 Ibid.
173 Potts, “Islands of the XIVth Satrapy”, 1.
250 chapter 4
E rythraean Sea where the Persian king settles the people known as the
dispossessed, who together contributed 600 talents.174
As a fragment derived from the writings of Herodotus in the fifth century b.c.,
there is obviously little room for independent confirmation of how or why this
determination was reached, which specific islands were referred to, whether
in reality the referenced islands were actually considered part of one of the
provincial districts of the Achaemenid Empire or whether any form of jurisdic-
tion was exercised there by that empire. As stated by Potts, “[u]nfortunately,
our sources on this satrapy are extremely scanty.”175 Moreover, and as may be
noticed, the reference does not (as claimed by Mirfendereski) actually mention
the “Persian Gulf”, but instead refers to the “Erythraean Sea”. Archaeologists
and historians have debated for several centuries the origin and geographi-
cal expanse of the Erythraean Sea and there is considerable disagreement still
among them as to its meaning. In his study, for example, Potts concludes that
it may have “denoted, at a maximum, the Red Sea, Persian Gulf and western
Indian Ocean”,176 or an area stretching “from Kandahar in the east to, poten-
tially, somewhere in Media to the west”.177 Moreover, even taking the words of
Herodotus at face value, they give no locational information on these islands
or identify which islands are referred to. They, of course, don’t make any spe-
cific reference to any of the three islands at issue in this work. Thus, within the
extensive area potentially encompassed by the Erythraean Sea, islands located
in the Gulf would only be considered as “candidates for inclusion in the XIVth
satrapy”178 mentioned by Herodotus, assuming the accuracy of his assertion
that such islands did form part of that province.
Although no specific islands are referenced, both the above-mentioned
fragment and the only other writing of Herodotus which mentions “the islands
of the Erythraean Sea” indicate that the islands he had in mind were populat-
ed.179 The fragment from Book 3 mentioned above states that the islands of the
XIVth satrapy in question had “inhabitants” and that the Persian king “settled
the people known as the dispossessed” there. In the second fragment, from
Book 7 of Herodotus, he writes in relation to the infantry contingents which
fought for Xerxes at Doriscus, that “The tribes who had come from the islands
174 Ibid., quoting from Herodotus, Book 3 (emphasis added).

177 Ibid., 8.
178 Ibid.
179 Ibid., 1.
in the Erythraean Sea to take part in the expedition – the islands where the
Persian king settles the peoples known as the ‘dispossessed’ – closely resem-
bled the Medes in respect of both clothing and weaponry. These islanders were
commanded by Mardontes the son of Bagaeus”.180 Thus, again, the islands in
question are mentioned in connection with a population (in this case tribal
peoples). In both cases, the references to populations or tribes inhabiting the
islands would obviously exclude the three Gulf islands as the first evidence of
those islands being inhabited comes from the nineteenth century. Moreover, as
noted by Potts, uninhabited and inhospitable small islands would in any case
have been “of no interest to the Achaemenid administration”, at least for tax
purposes.181 Finally, the reference to the “Medes” (who came from the Iranian
Plateau), and to the fact that the tribal members from the referenced islands
bore the same dress and weaponry as them, throws some further confusion
onto the subject. As noted by Potts, “the chances of their dress and weaponry
closely resembling that of the Medes seem remote.”182 Potts goes on to surmise
that what Herodotus may have been referring to was not the islanders’ custom-
ary dress and weaponry, but what they were outfitted with for the battle about
which he was commenting. Of course, it is impossible to resolve this question
with any certainty.
In summary, drawing any conclusions as to the possession of the three
islands by the Achaemenids on the basis of the fragments of Herodotus men-
tioned above would be stretching speculation to the extreme. By way of com-
parison, we might recall the holding of the icj in the Minquiers and Ecrehos
case in which it found that even in the case of treaties between Britain and
France entered into in the thirteenth century which allocated to each cer-
tain geographical areas containing lands and islands in close proximity to the
islands in dispute, it was unwilling to find that these treaties threw “light upon
the status” of those features because they “did not specify which islands were
held by the Kings of England and France, respectively.”183
There is, however, somewhat more to the background of this question which
should be mentioned for completeness. More than a century after the death of
Herodotus, and following the defeat of the Achaemenid Empire by Alexander,
his admiral Nearchus commanded a fleet travelling from the Indus to the head
180 Ibid, 2, quoting from Herodotus, Book 7.

181 D.T. Potts, “Achaemenid Interests in the Persian Gulf”, in The World of Achaemenid Persia,
eds. J. Curtis and St. Simpson (London: I.B. Tauris & Co. Ltd, 2005), 532.
252 chapter 4
of the Gulf. This voyage, which was said to have taken place in 325/4 b.c.,184
was memorialized in a book reportedly written by Nearchus (now lost), which
formed the basis of a writing by Arrian some four centuries later. One author
speculates that this text, which has survived, “gives us a snapshot of the islands
of the Erythraean Sea at the end of the reign of Darius iii, some or all of which
may have been among those which formed part of the XIVth satrapy in the
reign of Darius I.”185 Among the islands which (according to Arrian) Nearchus
noted in his writings were a number within the Gulf, including one referred
to simply as “another island”.186 This island has been identified by some schol-
ars as the Greater Tunb in light of the distance which Arrian, citing Nearchus,
claims it was from the mainland (“300 stades”),187 although scholarly opinion
also holds that “it has long been recognised that the distances given in the ac-
counts of Nearchus’ voyage are unreliable and inconsistent”,188 so some doubt
must remain as to whether this other island was actually the Greater Tunb.
Whatever the case, could this ancient text attributed to Arrian, read in com-
bination with the fragments from Herodotus written four centuries before,
together establish more persuasively that Gulf islands, including possibly
Greater Tunb, formed part of the XIVth satrapy of the Achaemenid Empire?
Again, and viewed critically, drawing such a conclusion would not only require
a great deal of speculation, but would also not follow from the text of Arrian
itself. First, it must be observed that Arrian’s text does not purport to state
which, if any, of the islands visited or spotted by Nearchus were said to form
part of the XIVth satrapy, or even whether or in what manner that political
subdivision continued to function before or following the conquest of the
Achaemenid Empire by Alexander. It does not actually reference or mention
the XIVth satrapy at all. Rather, it is more of a form of journal entry or cap-
tain’s log which, assuming its accuracy, records that Nearchus’ fleet passed by
a number of islands in the Gulf, one of which (according to scholars), called
“another island”, may have been the Greater Tunb. Arrian’s text, even assuming
its general reliability (which, given its antiquity, must be treated with caution),
reveals no other specifics about this other island so we do not know whether
Nearchus or one of his captains actually visited the island or simply spotted
it from afar, if it was considered to be under the jurisdiction of any mainland
power, who controlled it (if anyone) and what, if anything, it was used for.

185 Ibid., 29.
186 Ibid., 15
187 Ibid.
188 Ibid., 25.
This contrasts with several of the other Gulf islands visited during this voyage,
which in A rrian’s text are named and whose nature or characteristics and use
are roughly described.189
In short, the possible sighting of Greater Tunb by Nearchus has no indepen-
dent significance with respect to the question whether the three Gulf islands
(or any of the other Gulf islands) formed part of the XIVth satrapy. Standing
on its own, it is simply a description, albeit of historical interest, of the voyage
of Nearchus and of certain observations made about various Gulf islands. The
text of Arrian itself makes this same point:
Nearchus “had not been sent to navigate the Ocean, but to reconnoitre
the coast lying on the Ocean, and the inhabitants of the coast, and its
anchorages, and its water supplies, and the manners and customs of the
inhabitants, and what part of the coast was good for growing produce
and what part was bad.”190
In that regard, it does not provide any elaboration of the textual fragments of
Herodotus cited above, nor any further evidence as to whether Greater Tunb or
either of the other two Gulf islands at issue were considered part of the XIVth
satrapy of the Achaemenids. As noted by Potts, “the mere fact that Nearchus
mentions these islands does not tell us that they all were counted amongst the
islands of the Erythraean Sea for tax purposes, and clearly some were uninhab-
ited and therefore of no interest to the Achaemenid administration.”191
While historically fascinating, standing alone the references in Herodotus,
even when read together with those of Arrian, shed very little light on whether
the three Gulf islands were considered part of a political subdivision (the XIVth
satrapy) of the Achaemenid Empire, or whether the Achaemenids claimed or
exercised any authority on any of those islands whatsoever. Indeed, if anything
the speculative inferences (and they are nothing more than that) derived from
those writings indicate that even if that satrapy included certain islands of
the Erythraean Sea as asserted by Herodotus, and even assuming that some
Gulf islands were contained within that geographical reference, it would have
more likely been only those islands which were populated or had some use
189 For example, the text of Arrian describes what scholars believe is Hormuz as named
Organa (“a rugged and deserted island”), and Qeshm as named Oarcata (“large, inhab-
ited island … vines and date-palms grew there, and it produced corn; its length was 800
stades”). Ibid., 11.
190 Potts, Arabian Gulf in Antiquity, Vol. 2, 3, citing to Arrian, Anab. 7. 20.9–10.
191 Potts, “Achaemenid Interests in the Persian Gulf”, 531–532.
254 chapter 4
as a source of revenue (such as pearl fishing) which would have been part of
the satrapy. That this historical material is in any case several thousand years
old and that, as far as the importance some scholars assert should be attached
to it (that it indicates that Persia has some historic rights over the three Gulf
islands), it is not part of a more extensive and consistent evidentiary m atrix,
only strengthens the view that to draw any such conclusions from it would
be highly unreliable and inconsistent with the treatment of such evidence in
international disputes. Indeed, although not an exact parallel, to seek to give
legal effects to assumptions drawn from writings which are over two thousand
years old and which are not supported by any evidence demonstrating the ac-
tual possession of the islands by the Aechemenids brings to mind the holding
of the icj in the Minquiers and Ecrehos Case, where it rejected the notion that
a decision of the French court in 1204 purportedly assigning title over islands
to the French King could stand as a legal basis for France’s claim of title to the
islands in the nineteenth century where France never took actual possession
of the islands. In that instance, the Court held that “to revive its legal force today
by attributing legal effects to it after an interval of more than seven centuries
seems to lead far beyond any reasonable application of legal considerations.”192
A final note concerning the XIVth satrapy is that the analysis set out above
demonstrates that it is unwise to place undue reliance on assertions of ancient
rights, even those which might appear superficially persuasive, as these often
suffer from evidentiary infirmities which are difficult to support and which,
when they are scrutinized, would make them unable to withstand any serious
judicial inquiry.
(c) Absence of Facts to Confirm Assertions

Closely connected to the analysis set out in the previous two sections is the
relevance of determining whether the proposed inferences discussed therein
“lead to conclusions consistent with the facts”.193 In this case, as discussed in
Section (b) above, it is difficult to discern any roughly contemporaneous facts
(as opposed to other inferences) which would be consistent with the assertion
that an immemorial possession of the islands by successive Persian empires
or dynasties existed from earliest antiquity until the onset of the sixteenth
century (the temporal focus of this chapter), during which such polities exer-
cised authority over any of the three islands. Such evidence has, to the authors’
knowledge, simply not been unearthed or revealed. Nor is there any indication
in the evidence which has been uncovered that the documented conduct of

any of these empires or dynasties would be consistent with an inference that

they must have considered the three islands as forming part of their sovereign
possessions from earliest antiquity. With regard to that entire period, there is
no hint of any claim or the exercise of authority over any of the islands by any
Persian power, nor any “concrete facts adduced as … evidence of possession”194
which would otherwise tie the islands to Persia. Nor is there any evidence, for
example, that the rise of non-Persian maritime powers throughout the Gulf,
which would have certainly threatened any island possessions of the main-
land Persian powers, ever gave rise to any particular reaction or concern by
those powers with respect to these three islands. As far as historical data is
concerned, the three islands remained obscure and entirely ignored by Persia
until the latter part of the nineteenth century.
The absence of factual evidence which might support, even indirectly, the
inference that Persian empires regarded the islands as their possessions from
a very early period further underscores the likelihood that, if faced with the
question, an international judicial or arbitral body would have great reluc-
tance in assigning any relevance to the isolated and unpersuasive inferential
evidence discussed above. For the same reason, it seems highly unlikely that
any such body would draw any firm conclusions in favor of an asserted h istoric
right based on immemorial possession by Persia over the three islands based
merely on the geographical extent of the various ancient Persian empires
which reigned prior to the sixteenth century or on the geographical scope of
the XIVth satrapy addressed by Herodotus. These historical aspects, controver-
sial and subject to much historical nuance and debate in and of themselves,
simply do not shed any light on whether those Persian empires possessed
or controlled three islands located on the Gulf’s high seas. As suggested by
Fitzmaurice, the lack of any such factual evidence which might confirm the
conclusions some would wish to be drawn from these assertions is, in and of
itself, revealing as to the unreliability of the inferences themselves: “so also
certain acts or omissions may be inconsistent with the claim of sovereignty, or
tend to negative the existence of title, by pointing rather to an absence of it.”195
Under these circumstances, it is even more unlikely that the conclusions which
are asked to be drawn on the basis of these unsupported assertions would be
seen as “leav[ing] no room for reasonable doubt.”196
195 Ibid., 58–59 (emphasis in original).
196 Amerasinghe, Evidence in International Litigation, 228, referring to Corfu Channel case, 18.
256 chapter 4
(d) Lack of Continuity

The difficulty in reaching any firm conclusions about the precise scope, tim-
ing and extent of Persia’s possession and control of the Gulf littoral over
centuries, and the near-impossibility of concluding that any ancient Persian
empire actually held or possessed any of the three islands at any point in
ancient history, constitutes only one aspect of the problem in sustaining the
argument. For an historic title based on immemorial possession to endure, it
must not have been displaced by some other title held by another power, for
example through conquest, nor lapsed or been abandoned. If it has been lost,
such “immemorial title” would be lost forever, although title to the territory
in question may of course have been subsequently reacquired on some other
basis (such as occupation, prescription or in past eras, conquest).197 An impor-
tant factor in determining whether Iran’s claim of sovereignty over the i slands
today may be based on an historic title or immemorial possession would
therefore be whether, even if that historic title existed in antiquity, it had been
maintained in a continuous manner until the moment the dispute over the
islands arose in the nineteenth century. Historical events in and around the
Gulf, some of which are alluded to above, would not support the likelihood of
such a conclusion.
The ebb and flow of power and the geographical continuity of the Persian
entities which existed from the fifth century b.c. until the sixteenth century
a.d. is far beyond the scope of this work or the expertise of its authors. More-
over, as the analysis set out in this chapter suggests, it appears to the authors
almost impossible to sustain an argument that the legal basis for such imme-
morial possession or historic rights over the three Gulf islands in dispute could
be established in the first place in light of the total absence of any persuasive
and credible evidence which might support that ambitious assertion. Thus,
the question whether such an original title, once established, was sustained
throughout the centuries would most likely never arise.
197 As noted by Fitzmaurice, in the case of an asserted title on the basis of ancient right, “the
element of continuity goes to the very root of the question of title on that basis, for the
ancient right is lost or overlaid, and the immemorial possession will not be immemorial, if
what was an original title can be held not to have been kept up. Later acts -or a resumption
of activity after the break – may furnish a fresh point of departure, leading to the acquisi-
tion or re-acquisition of title by occupation or prescription, but it will be a different basis
of title.” Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 68 (emphasis in original).
If the question was to be addressed, however, it would require that Iran dem-
onstrate to the satisfaction of whatever arbitral or judicial body was e ntrusted
with the dispute that, to the extent these rights ever existed in antiquity, they
somehow survived intact the convulsions, conquests and dramatic historical
developments in and around the Gulf over a period possibly as long as sev-
eral millennia. This would require, for example, that Iran somehow e stablish
through the presentation of concrete evidence that Persian possession and
authority over the three islands survived such events or calamities as the con-
quest of the Achaemenid Empire by Alexander in the third century b.c.,198
the conquest of the Sasanian Empire by the Arab Islamic armies in the sev-
enth century a.d. and the establishment of Islamic rule over several centuries
(when, as described by Savory, the Islamic caliphates established commercial
entrepôts “moving ever southward toward the mouth of the Gulf”, behind
which stood “the rich metropolis of Baghdad”199), the dismemberment and
disintegration of the Seljuk empire around the twelfth century, the seaborne
domination of the Gulf by the Kingdom of Hormuz from around the thirteenth
century until the arrival of the Portuguese in 1507, the conquest of that king-
dom and the establishment of Portuguese domination around the Gulf waters
in the sixteenth century, and the encroachment and establishment of control
all along the Persian coast and in Gulf waters by various Arab States or groups
from around the sixteenth or seventeenth century. To state that making out
such a case and carrying the requisite burden of proof would be of the highest
order of difficulty is nothing short of a grave understatement. Several points
illustrate this conclusion.
First, just as there is no direct or “concrete” evidence which might indicate
that Persia ever possessed or exercised authority over any of the three islands
in early antiquity, neither is there any direct evidence which has come to light
that would support an assertion that Persia somehow effectively maintained
possession of the islands or exercised any authority over them in any fashion
at any time up to the beginning of the sixteenth century. In fact, there does
not appear to have been any specific assertion of ownership by Persia over any
of the islands or any attempt to exercise authority over them until sometime
around the end of the nineteenth century. The absence of such evidence is
198 “Following the series of defeats inflicted upon the forces of the Achaemenid empire by
the armies of Alexander the Great, most of Western as well as parts of Central and South
Asia fell under Macedonian control. During the centuries which followed Alexander’s
death, however, his former dominions came under the sway of a variety of states and
empires.” Potts, Arabian Gulf in Antiquity, Vol. 2, 1.
199 Savory, “a.d. 600–1800”, 14.
258 chapter 4
s imply inconsistent with the supposed continuing existence of an immemorial

right, even assuming it had originally come into existence.
Second, during the long course of Gulf history when it would have to be
argued that such rights supposedly derived from immemorial possession
endured, there were, on the contrary, numerous affirmative demonstrations of
power and authority over the Gulf’s waters by other powers which were hostile
to or defeated the Persian State and which are entirely inconsistent with the
notion that Persia’s possession and control of Gulf islands located on the high
seas could somehow have continuously remained intact, even if such posses-
sion ever existed. The defeat of the Achaemenid Empire by Alexander is a case
in point. Following his conquest of the Achaemenids, Alexander’s fleet was
said to have been active throughout the Gulf, sending out “three naval expedi-
tions in 324 bc for the purpose of exploring the Arabian coast and offshore
islands, for he ‘had an idea of colonizing the coast along the Persian Gulf, and
the islands that lie near’”.200 This is in addition to the voyage of Nearchus noted
above, which skirted the Persian littoral. Following the death of Alexander, the
Seleucid Empire, formed by one of Alexander’s leading generals, maintained a
hold over much of his vast empire, including the Gulf (“Seleucid naval policy
in the Arabian Gulf was, for the most part, a continuation of that begun by
Alexander.”201). Indeed, during much of the time span which followed, Persia’s
presence on the Gulf waters, even in times of Persian strength on the mainland,
has not been shown to be a factor of any decisive importance. For example,
even when the Sasanians established significant control of locations around
the Gulf littoral, there was “very little evidence of a Sasanian navy”202 nor of
State control of Gulf waters, per se:
One must be mindful of the military and naval technology that hindered
Sasanian control of the sea. We should not confuse the modern use of
naval tactics as those employed by the British in the eighteenth century
with premodern traditions of seamanship. The state only went so far as to
facilitate trade and provide as much security as it was capable of, which
on the seas was not much.203
200 Potts, Arabian Gulf in Antiquity, Vol. 2, 5, citing to Arrian, Anab. 7.19.5–6.
201 Ibid., 10. Potts added: “Our evidence is in all cases slight, however … None the less, it
must not be forgotten that by the time Seleucus i died in 281 bc the empire he had built
stretched eastward virtually as far as the Indus … [and] the need to maintain a fleet on the
Gulf for military purposes would not have disappeared.”
203 Ibid., 65.
The matter of the Persian navy, or lack thereof, during other periods of history
will be discussed elsewhere in this book.204 In considering the credibility of
an assertion that Persia sustained continued possession and control of three
uninhabited Gulf islands, situated on the high seas, over the course of centu-
ries, this naval history is of course relevant. In this respect, it might be recalled
that when the Portuguese navy arrived in the Gulf in 1505, and proceeded to
conquer the Kingdom of Hormuz and impose its rule over much of the sea-
borne traffic through the Gulf for the next one hundred years, Persia, whose
economic and political interests were potentially as negatively affected as any-
one by this state of affairs, posed no naval challenge. Indeed, when the Safavids
succeeded in evicting the Portuguese from Qeshm island, and then from Hor-
muz itself in 1622, they relied on the heavy naval assets of the British secured
through the signing of a treaty.205 Even following this expulsion, however, the
reinforced Portuguese navy undertook a campaign of harassment of vessels
destined for Persian ports and trade, which Persia was largely unable to op-
pose, and which led Persia to agree terms for the cessation of hostilities, in-
cluding the establishment of a Portuguese trading center once again on the
Persian coast.206 Again, this episode also suggests that an assertion that im-
memorial possession of the three Gulf islands in dispute was maintained by
Persia could not withstand historical scrutiny, as these were clearly located
beyond its reach.
Third, the three islands remained uninhabited and apparently unused
until (according to the first evidence available) the seventeenth or eighteenth
century, when some records indicate that animals were being grazed on
Greater Tunb by unidentified persons.207 Claiming it continuously exercised
authority over three islands on the high seas over centuries while those fea-
tures had little discernible use and were uninhabited recalls the finding of the
tribunal in the Eritrea/Yemen arbitration over sovereignty to islands in the Red
Sea. In that case, the tribunal stated that Yemen had failed to persuade it of the
existence of any historic rights, particularly given that the islands in dispute
were “uninhabited and barren islands used only occasionally by local, tradi-
tional fishermen” and that the geographical area in which they were located
had been subject to “intermittent and kaleidoscopically changing political sit-

205 See chapter 5.
206 This was at Kong, located close to the port of Lengeh. See chapter 5.
207 See chapters 2 and 6 citing to sightings by Dutch mariners of “people and also cows” on
that island in 1645. na 1.10.30 (voc) rec. no. 280A (Geleynssen de Jongh) [rggc], Journal
register of the voyage undertaken by the ships Delfshaven and Schelvis from Bandar Abbas
to Basra, June 28-October 5, 1645.
260 chapter 4
uations and interests”.208 In the same manner, it is not persuasive to assert that
in the midst of such a volatile and changing political landscape as the Gulf,
Persia continuously maintained historic rights over three islands on the high
seas which were uninhabited, barren and unused, as well as out of the practical
reach of its authority.
Conclusions
It is apparent that establishing a claim that the three islands formed a part of
the ancient Persian empires and remained so throughout early history and until
the onset of the sixteenth century and thereafter, indeed until modern times,
presents a number of difficulties when measured against the standards set out
by international law. The general nature of these difficulties was a lluded to by
the tribunal in the Eritrea/Yemen award, where it was stated that, after consid-
ering the historical versions advanced by the parties claiming s overeignty over
various islands in the Red Sea, the tribunal was not persuaded of “the juridi-
cal existence of an historic title, or of historic titles, of such long-established,
continuous and definitive lineage to these particular islands, islets and rocks as
would be a sufficient basis for the Tribunal’s decision”.209
Thus, the first principal difficulty such an argument would encounter in an
international adjudicatory process if it were to be advanced by Iran with re-
spect to the three islands is that it would be based to an overwhelming extent,
if not entirely, on speculation and conjecture, and at times sheer unsubstanti-
ated assertion, rather than evidence of an actual and continuous display of
authority over and control of the islands during the long stretch of history in
question. This difficulty is obviously exacerbated by the sheer length of time,
lasting many centuries, the presumed possession and control of the islands by
successive Persian empires and dynasties is argued to have endured, but with-
out any direct evidence of it.
As made clear from the practice of the icj and prominent arbitral awards,
basing a territorial claim on grounds of ancient rights and immemorial
possession through inferential evidence alone, or as the icj put it in the Min-
quiers and Ecrehos Case, on “indirect presumptions deduced from events in
the Middle Ages”,210 is not only problematic, but will be rejected outright in
favor of an analysis and evaluation of the evidence of actual possession and
208 Eritrea/Yemen case, paras. 31–32.

209 Ibid., para. 449.
210 The Minquiers and Ecrehos Case, 57.
the exercise of State functions in relation to the disputed territory by the rival
parties. This does not mean that the Iranian claim lacks merit, but it does
mean that in all probability it cannot rely exclusively on indirect evidence,
historic texts and archaeology, or other inferences drawn from ancient history,
to establish its right of ownership. The fact that the inferences drawn from
such historical texts and archaeology are internally ambiguous and can (as
discussed above) equally be interpreted in a manner inconsistent with the
Iranian perspective makes them even more unreliable as a source of evidence.
While these considerations and the precedent represented by the cases
mentioned above may alone be dispositive in setting aside the legal signifi-
cance which Iran would hope to draw from its claim of having an ancient
title over the islands, establishing such a claim, and accepting such indirect
presumptions about their ownership, would be particularly problematic in
this case for other related reasons. One of those reasons is that, at no time
prior to the sixteenth century (and most probably at no time thereafter – see
next chapter), are there any identified treaties or other legal documents (such
as those identified by the French and British governments in relation to the
Minquiers and Ecrehos case dating from the thirteenth century,211 or by the
Dutch and Americans in the Island of Palmas case dating from the seven-
teenth century212) which might assist in determining a starting point or some
specifics as to the possible allocation of ownership of the particular maritime
areas in question and their islands. However, it should be noted that even if
such ancient treaties or documents did exist, they would, as in the Minquiers
and Ecrehos case, be of less relevance in determining ownership than actual
evidence of possession. The lack of any such documents only aggravates the
level of uncertainty and speculation which otherwise exists as to the unsub-
stantiated Persian claims of ownership of the islands during the continuation
of these historical periods, making it even more necessary to evaluate evidence
of actual possession during more recent history as a basis for determining
sovereignty.
Another reason why drawing conclusions as to the islands’ ownership based
on speculative historical inferences or conjecture would be problematic is, par-
adoxically perhaps, the relatively few number of islands in the vicinity of the
southern Gulf where the three islands are located. They are not part of an archi-
pelago of innumerable islands, islets and rocks where the failure to have taken
acts on one or two features would not necessarily be interpreted as a failure to
211 Ibid., 61.

212 The Treaty of Munster of 1648.
262 chapter 4
exercise sovereignty over those specific features so long as a ctivities reflective

of sovereignty had been taken in relation to the archipelago generally. Rather,
as can be appreciated from the map in Figure 0.2, the area of the southern Gulf
where the three islands are located is an area where only six roughly similarly-
sized islands are to be found (Abu Musa, Greater Tunb, Lesser Tunb, Sirri, Forur
and Bani Forur), or – if the geographical area considered is more than doubled
on the northerly and southerly side of that group of islands, no more than a
total of thirteen similarly-sized islands are located (except for Qishm island,
which is much larger). All of these islands, including the three in dispute, lie
within a small geographical area and in close proximity to vessel traffic, even
that dating from early antiquity, as we know from the voyage of Nearchus in 325
b.c. While it is certainly the case that the islands were “inconsequential”, they
were certainly generally known and recognized. Under such circumstances,
one would have a relatively high degree of expectation that any power claim-
ing these islands – if indeed they were actually claimed – would have at some
point over the centuries made its ownership clear in some d emonstrable way
or through some specific act, as in fact Iran attempted to do centuries later
when it sought to erect its flag on the islands in 1903. That being the case, the
concern of the icj – that evidence of possession rather than “indirect pre-
sumptions deduced from events in the Middle Ages”213 must be the foundation
of a reliable claim of title – is even more understandable.
This brings to mind a point made by Fitzmaurice mentioned above: “Just
as manifestations of sovereignty are necessary to support a claim to sover-
eignty, and certain acts constitute such manifestations while others do not,
or do not necessarily do so, so also certain acts or omissions may be incon-
sistent with the claim of sovereignty, or tend to negative the existence of
title, by pointing rather to an absence of it.”214 While the most common cir-
cumstance which might be alluded to by this point is the failure of a State
to lodge a protest where and when due, it can also arise where “a failure to
perform certain acts or set up certain institutions normal to the exercise of
sovereignty and jurisdiction” itself indicates a lack of sovereign connec-
tion to the disputed territory.215 Again, this notion is directly tied to the lack
of any evidence of the exercise of sovereign activities of any sort over the
islands by successive Persian empires, which would have to be considered
“inconsistent with the claim of sovereignty” Iran asserts was continuously
present throughout centuries.
213 Minquiers and Ecrehos case, 57.

214 Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 58–59 (emphasis in original).
215 Ibid., 62.
Under the historical circumstances which pre-dated the onset of the

sixteenth century, and judging from the evidence (or absence of evidence)
which has been unearthed in connection with this work, the three islands do
not appear to have been claimed or effectively possessed by any organized
power during that period, leaving them in a state of terra nullius. From the
evidence derived from the early seventeenth century (see chapter 6) which
indicates that the islands – or at least Greater Tunb – were then used by tribes-
men from coastal communities for grazing animals or in connection with
pearling or fishing, the most that can be said is that the islands may have been
used prior to that time for the same purposes and by the same sorts of peo-
ple. At least, this would be a reasonable deduction although there is no direct
evidence of it. Who these tribesmen were or to whom they were connected,
however, is unclear. Under such circumstances, and following the line of cases
referenced above, the icj or an arbitral tribunal formed to resolve this dispute
would almost certainly have to look beyond periods of unknown or speculative
possession of the islands and towards more recent periods in which either or
both of the contesting parties could identify instances of actual State or sov-
ereign activities on or with respect to the islands. This exercise would take the
historical review of sovereign possession more into the modern era. Fragments
of evidence of possession of the islands did begin to emerge in the sixteenth
through the eighteenth centuries, as we will see in the following chapters, but
again these were not significant evidence of any party’s claim over or effective
possession of the islands, which appear to have remained in a state of terra nul-
lius during this entire period. However, other circumstances, raising distinct
legal matters, did arise during this time period. These circumstances, particu-
larly those related to the Kingdom of Hormuz, will also be reviewed and ana-
lyzed in the following chapter.
Finally, the argument that Iran’s sovereign title may be traced back to an-
tiquity suffers from another set of difficulties. Even if the assumption is made
that the Achaemenid Empire, prior to its defeat at the hands of Alexander in
the third century b.c., or the Sasanian Empire prior to its defeat to the forces
of Islam in the seventh century a.d., held some form of sovereign title to the
islands, it must be the case that such sovereign possession irreversibly ended
with the defeat and disappearance of each of those empires.216 As Fitzmaurice
notes, the “element of continuity goes to the very root of title on that basis, for
the ancient right is lost or overlaid, and the immemorial possession will not
be immemorial, if what was an original title can be held not to have been kept
up.”217 Related to this is the consideration that a title once obtained through
216 See supra notes 162–163 and accompanying text.

217 Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 68 (emphasis in original).
264 chapter 4
a form of ancient right and immemorial possession (if indeed that was ever
the case with the islands, which is highly doubtful) will not be maintained
indefinitely without some demonstration of activity which serves to maintain
the right. This is derived from the dicta of Judge Huber in the Island of Pal-
mas case, quoted above. As we have seen, there is no evidence of a Persian
claim or Persian activity on or in relation to the islands prior to the sixteenth
century, nor (as discussed in chapter 6) is there any demonstrable evidence
of a Persian claim or Persian State activity on any of the islands until the end
of the nineteenth century. The absence of a claim or some sovereign activity
over hundreds of years, during which, in all likelihood, the islands were being
used by tribesmen and numerous regional and foreign commercial and naval
vessels frequented the waters around them, even landing on them on occasion,
would not suggest that Persia considered that it had some sovereign rights
over them. In either case (whether outright loss of title through conquest and
annexation or a failure to maintain an ancient right), the ancient right of title
to the islands would have been lost and the immemorial possession will not be
immemorial. Again, as noted by Fitzmaurice, “later acts – or a resumption of
activity after the break – may furnish a fresh point of departure, leading to the
acquisition or re-acquisition of title by occupation or prescription, but it will
be a different basis of title.”218 In our case, this would mean that a demonstra-
tion that Persia had acquired title to the islands without regard to any asserted
ancient rights would be required. There are several bases on which Iran may
have acquired such a title. One of those, founded on cession, is discussed in
chapter 5 in relation to the Kingdom of Hormuz.
Having concluded that, on the basis of standards developed by international
case law since the nineteenth century, there is insufficient evidence to support
the proposition that any Persian empire in antiquity or those d ynasties which
ruled parts of Persia following the Islamic conquest of the Sasanid E mpire and
prior to the onset of the sixteenth century held ancient and immemorial rights
over any of the three islands, we are left with one further avenue for deter-
mining whether the Persian polity may have possessed a territorial right over
the islands dating from antiquity or the Middle Ages, or whether the islands
remained as terra nullius throughout this period of history. That possibility re-
lates to the Kingdom of Hormuz, established on the Gulf’s Persian littoral at
its southern reaches in the thirteenth century, which is the subject of the next
chapter.
218 Ibid.
chapter 5
The Kingdom of Hormuz, Its Conquest by Portugal

in 1515 and Portugal’s Defeat at the Hands of Persia
and Britain in 1622
Thus haveinge made a brief relation of the most remarkable matters

that have happened in the Siege and Conquest of Ormus and the Cas-
tle thereof and haveinge seene the desolation therof together with the
banishment of her late inhabitants the Portugalls, ets., I cannot chose
but sett downe and wonder what people and off what minds they weare
which were the first inhabiters of soe barren and discommodious an
Iland that affordeth nothing of it selfe but salte.1
∵
The history of the Kingdom of Hormuz stretches from the eleventh or twelfth
century (when it is said its founder emigrated from Oman to the coast of
Persia2) to the seventeenth century when, in 1622, the last of the Kings of
Hormuz (he and his predecessors having been vassals of the Portuguese since
the kingdom’s conquest by Portugal in 1515 – actually re-conquest, as the initial
subjugation of the kingdom occurred in 1507, when the Portuguese defeated
1 Extracted from a letter of Edward Monnox, agent of the British East India Company in Persia,
following the defeat of Portugal at Hormuz by forces of Persia and Britain, April 1622.
Reprinted in C.R. Boxer, ed. Commentaries of Ruy Freyre de Andrada (London: Routledge,
2005), 309–310.
2 Vosoughi notes that “[w]hat we know of the early history of these kings [of Hormuz] is
scanty” and that “[t]he political history of Hormuz during the twelfth century is not very
clear.” He considers, however, that the origins of the Kingdom of Hormuz can be traced to
the decline of the economy of the Omani coast in the mid to late eleventh century as a result
of the “revival of the commercial sea route through the Red Sea” which accompanied the rise
in power of the Egypt’s Fatimid caliphs and the consequent shift in the flow of merchandise
away from the Gulf, which led to the migration of the merchants and residents of the princi-
pal Omani ports, most importantly Sohar, to the Persian coast. Mohammad Bagher Vosoughi,
“The Kings of Hormuz: From the Beginning until the Arrival of the Portuguese,” in The
Persian Gulf in History, ed. Lawrence Potter (London: Palgrave Macmillan, 2010), 90–91.

266 chapter 5
and imposed a treaty of submission on Hormuz) and his Portuguese overlords

were defeated by a combined force of Persians and English. This defeat led to
the “complete fall of Hormuz and its disappearance from the Persian Gulf’s
economic scene”.3 In fact, after its defeat, much of the contents and very struc-
tures of the island kingdom of Hormuz were literally dismantled and carried off
by Persian soldiery.4 Of concern for purposes of our work, however, is not the
entire historical evolution of the Kingdom of Hormuz, which has been the sub-
ject of considerable scholarly debate,5 but rather the specific question whether
there is evidence that this State possessed the islands which are the subject of
this book as its own territory prior to its defeat by and submission to Portuguese
rule at the beginning of the sixteenth century, and whether, as a consequence
of its conquest, Portugal became the sovereign owner of the islands.
The importance of this question may be explained briefly. From the stand-
point of Iran’s claim over the islands, and notwithstanding the question
whether its ancient empires were sovereign over them or not, an argument has
been advanced by some scholars seeking to trace the ownership of the islands
that, in fact, the Kingdom of Hormuz possessed them prior to and during the
fifteenth century. This assertion is, it would appear, supported by the observa-
tions of Duarte Barbosa,6 a Portuguese official and adventurer who may have
accompanied D’Alboquerque on one of his voyages of conquest of Hormuz at
the beginning of the sixteenth century or visited the island around that time.
Quoting Barbosa, Bavand states that Hormuzi territories included both of the
Tunbs and Abu Musa.7 An assertion is then made that, in reality, the Kingdom
3 Vosoughi, “Kings of Hormuz”, 99.

4 In a letter written by the British East India Company’s agent in Persia, Edward Monnox, who
was a witness to the defeat of the Portuguese at Hormuz in 1622, the extent of pillaging was
noted in graphic terms: “[W]e repayred againe unto the Castle where we found such havocke
made and so many chiests and suppettas broken open and whatsoever of value was in them
carried away that a man would thinke if halfe the camp had bin given their libertie freelie to
take the spoyle, in soe shortt a tyme they could hardlie have made soe great havock; and yet
ther was a guard of English to prevent the same; but it is to apparent that those men did more
hurt then good in that place and attended more their owne private gaine then the publique
good of the Company.” Reprinted in Boxer, ed. Commentaries of Ruy Freyre, 295.
5 See, e.g., Dejanirah Couto and Rui Manuel Loureiro eds., Revisiting Hormuz, Portuguese
Interactions in the Persian Gulf Region in the Early Modern Period (Wiesbaden: Harrassowitz
Verlag, 2008).
6 Mansel L. Dames, ed., The Book of Duarte Barbosa, An Account of the Countries Bordering on
the Indian Ocean and their Inhabitants. Written by Duarte Barbosa and Completed about the
Year 1518 a.d. (London: Hakluyt Society, 1918), Vol. 1.
7 Davoud Bavand, “The Legal Basis of Iran’s Sovereignty over Abu Musa Island”, in Small
Islands, Big Politics, The Tonbs and Abu Musa in the Gulf ed. Hooshang Amirahmadi (New
York: St Martin’s Press, 1996), 79–80.
The Kingdom of Hormuz 267
of Hormuz was suzerain to Persia prior to Hormuz’s defeat to the Portuguese.

Thus, Hormuz was a “dependency” of Iran, and “legally subordinate to the gov-
ernor (Atabeg) of the Province of Fars”.8 Although the islands were “Hormuzi
territories”, as a “dependency” of Persia all of Hormuz’s territories belonged ul-
timately to Persia. Therefore, when Portugal defeated the Kingdom of Hormuz
and definitively subjugated it and seized control of its territories (including the
islands) in 1515, the Portuguese were in reality seizing and annexing Persian
territory. A final assertion included within this sequence of events allegedly
leading to the acquisition (or re-acquisition) of title over the islands by Persia
is that the defeat of the Portuguese, along with its vassal the Kingdom of Hor-
muz, in 1622 by the Persian forces of Shah Abbas, with the assistance of the
British East India Company, led to the signing of a treaty in 1625 under which
Portugal ceded the territories it had taken from the Kingdom of Hormuz (in-
cluding the islands) back to Persia in exchange for the right to establish a trad-
ing emporium at the Persian coastal town of Kong. In this way Persia formally
recovered sovereignty over the islands after “107 years”.9
To begin this discussion, it should be noted that if it is accurate that prior to
1515 the islands were dependent territories of Persia, albeit held by the King-
dom of Hormuz, and then became territories belonging to Portugal as a re-
sult of its conquest of Hormuz in 1515, this would have occasioned a break to
any ancient and immemorial rights of Persia over the islands, if they had ever
existed and if they had not been previously broken (for example, upon the con-
quest of the Achaemenid Empire at the hands of Alexander the Great in the
third century b.c., or the conquest of the Sasanid Empire by the Arab Islamic
armies in the seventh century). As discussed in the previous chapter, a break
in the continuous maintenance of alleged ancient and immemorial rights of
title, whether by loss to conquest, failure to maintain title, abandonment or
desuetude, would have required that Persia subsequently re-acquire its rights
of title through some mode of acquisition in order to assert a valid claim to the
islands. It is of course argued that it did just this by defeating the Portuguese
and forcing Portugal to cede the islands back to Persia in 1625. But the point
to be made is that, if accurate, it makes the discussion over the existence of
ancient rights of title allegedly held by Iran somewhat irrelevant to the dispute
over rights of sovereignty to the islands in more (relatively speaking) modern
times.
It should also be noted that if the 1625 treaty was in fact signed and if it pro-
vided for the cession of the islands to Persia, and if title to the islands was in
8 Farhang Mehr, A Colonial Legacy, The Dispute Over the Islands of Abu Musa, and the Greater
and Lesser Tumbs (Lanham, Maryland: University Press of America, 1997), 32.
9 Ibid., 34, 36.
268 chapter 5
fact held by Portugal at that time, then whether or not the Kingdom of Hormuz
had been entirely under the dominion and control of Persia prior to its submis-
sion to Portugal (about which there is considerable doubt) would not in fact
be relevant since, in either case, the Portuguese cession of the islands to Persia
would have resulted in an effective transfer of sovereignty to Persia. Leaving
that question to one side for the moment, what then is most relevant to this
discussion is to determine: (i) whether one or more of the islands were territo-
ries of the Kingdom of Hormuz prior to 1515, whether or not that kingdom was
a vassal or under the effective control of the Persian empire of the day (i.e., as
of the beginning of the sixteenth century, the Safavids); (ii) whether, therefore,
Portugal acquired sovereignty over those islands as a result of its conquest of
the Kingdom of Hormuz in 1515; and (iii) whether Portugal ceded the islands
to Persia in an agreement entered into at some point following its defeat to
Persia and Britain in 1622. An additional question may also be raised, which is
whether the islands somehow became Persian territory as a result of its defeat
of the Portuguese in 1622, even in the absence of any agreement of cession.
This question is raised because, as will be reviewed below, there is consider-
able doubt as to the existence of the purported cession agreement.
Were the Three Islands Territories of the Kingdom of Hormuz?
The status of Hormuz during the period of the twelfth century has been
d escribed by Piacentini as an “autonomous administrative subdivision … ruled
by a local Amir” which was “subordinated to a foreign potentate” (i.e., the Seljuks
and their southern Iranian rivals). The Hormuzi Amir’s power was “founded
on the economic forces [of the regions and people under his autonomous au-
thority] … rooted in trade and business”, and reaching “understandings”and
“balances”, including the payment of “tribute”, with “external individual forces”
which, however, “did not imply any permanent vassalage or permanent rights,
but only a pragmatic line to take while the whole system was evolving”.10 Simi-
larly, Vosoughi describes the twelfth to the thirteenth centuries as a “time when
Hormuz was holding its own while submitting to the regional powers”. This
policy of “patience and perseverance” was successful and allowed the kings
of Hormuz who reigned from the twelfth to the mid-thirteenth century (the
so-called “old kings of Hormuz”) “to sustain their political life by following a re-
alistic policy on the basis of the circumstances of the day. The peaceful attitude
10 Valeria Piacentini, Beyond Ibn Hawqal’s Bahr al-Fars, Studies in the Archaeology and
History of Baluchistan (Oxford: Archaeopress, 2014) Vol. 2, 149.
and total submission of the amirs to the demands of their powerful neighbors
was the key to their success”.11
Towards the end of Seljuk rule and following the conquest of Persian lands
by the Mongols in the mid-thirteenth century, however, two important devel-
opments occurred with respect to the Kingdom of Hormuz. First, it emerged
from the status described above into a more independent kingdom rooted in
the dependence of the regional authorities or “potentates” (themselves vas-
sals of the Mongols) on Hormuz’s “mercantile forces and its ships, gaining
the rulers of Harmuz a new position” of authority and independence during
the thirteenth and fourteenth centuries.12 Piacentini writes that one of the
strongest kings of Hormuz during this transitional period, Mahmud Qalhati
(1242–1277/813), “continued to pay tribute to the current powers, but, at the
same time, he also undertook a policy which would reinforce the autonomy
that Harmuz already held de facto since the Seljuk period: a maritime domin-
ion established on the Gulf and beyond the Gulf, deeply rooted in the cultural
milieu of the Gulf and firmly intertwining with the forces of the Gulf and its bor-
dering regions.”14 Vosoughi notes that Qalhati’s rule was contemporaneous
with the Mongol attacks on Iran, which had weakened the local regional pow-
ers in southern Iran and allowed Qalhati “to stabilize his power” and extend it,
through a powerful navy, to other regions in the Gulf, most prominently the
coastal areas of the Omani peninsula and Bahrain, but also including regions
further afield such as Aden.15 Hormuz not only had its own fleet, it also had a
“military organisation of its own based on effective allegiances”, which allowed
it to maintain a strong measure of political independence as it developed and,
if necessary, enforced its trade-based revenues generated throughout the
Gulf.16 A large measure of this independence was based not only on secur-
ing “maritime dominion” through its fleet (used mainly for commercial pur-
poses but which “when needed – could become a powerful naval force”17), but
also on forging alliances, principally, although not exclusively, with those on
11 Vosoughi, “Kings of Hormuz”, 91.

12 Piacentini, Beyond Ibn Hawqal’s Bahr, 149.
13 Vosoughi dates Qalhati’s rule as running from 1249 to 1286. Vosoughi, “Kings of Hormuz”, 92.
14 Piacentini, Beyond Ibn Hawqal’s Bahr, 149 (emphasis in original). Ibid., 154: “It was under
the skilled guide of Mahmud Qalhat (1242–1277/8), that the Mulk [kingdom] was reorga-
nized into a powerful potentate, fabulous indeed for those who visited it. At the base of
the whole design there was one concept: Harmuz power and maritime domination had to
be reorganized, empowered and founded on the Gulf and on the very forces of the Gulf.”
15 Vosoughi, Kings of Hormuz, 92.
16 Piacentini, Beyond Ibn Hawqal’s Bahr, 165.
17 Ibid., 155.
270 chapter 5
the Omani coast. Piacentini writes that Qalhati, “pursuing his policy of free-
ing Harmuz from foreign military vassalage, actively recruited troops from the
Arabian side” and “reinforced mercantile structures there”, strengthening “the
traditional ties with ‘Uman” on the “economic/mercantile level and the politi-
cal level”.18 Citing Wilkinson, she writes that the system pursued by Hormuz
was “based not only on strategic/military convenience, but also on long-lasting
peaceful intercourses, economic-financial complementarities, family links,
and lively cultural contacts.”19 Vosoughi notes that:
The real independence of Hormuz, therefore was achieved during the

reign of [Qalhati] … [who] left a valuable legacy, the most important
aspect of which is the experience of an independent and self-sufficient
government and the expansion of power to the southern coasts of the
Persian Gulf.20
Hormuz’s interests lied mostly in controlling and profiting from trading empo-
ria, which it did with great success, rather than controlling territory for its own
sake. Vosoughi observes that Hormuzi policy focused on “establishing trade
security” and “laying stress on maritime trade and its revenues [as] controlling
these passageways and gaining enormous profits from transit taxes increased
the power of Hormuz.”21 He also writes this about Hormuz in the fourteenth
century:
Hormuz was the only city in the East in which economic activity was ac-
companied by political independence. The king, the merchants, and the
administrative system, in mutual cooperation, facilitated commerce. In
all policy making the first priority was commercial and trade affairs. In
reality, the history of Hormuz from the fourteenth century on is nothing
but the story of exchange of merchandise and maritime trade.22
In the same vein, Piacentini notes that while the “direct dominion of Hormuz
extended over some of the regions of the Persian Gulf Coast, both Iranian and
18 Ibid., 157.
19 Ibid., 155, citing to John C. Wilkinson, “Omani Maritime Trade in the Early Islamic Period,”
in Proceedings of the International Conference on “New Perspectives in Recording uae His-
tory” (Abu Dhabi: National Center for Documentation and Research, 2009), 154.
21 Ibid., 95.
22 Ibid., 96.
Arab, over the islands therein included and over some strategic and military
strongholds”, Hormuz was “not so much a ‘territorial empire’ but rather an
‘economic empire’ within territorial limits that were not very well defined and
that fluctuated with regards to the internal and external political contingen-
cies of the moment.”23 In fact, she points out that as the historical sources
“differ markedly”, it is “almost impossible to define exactly which were the ter-
ritories effectively subject to the local rule” of Hormuz.24 She notes that the
islands which the Kingdom of Hormuz put to use were, other than the island
of Hormuz itself, which was to become the capital around 129625 (see next
paragraph), two of those close to the island capital, namely Qeshm and Larak
islands, which “constituted the principal source of provisions and water of this
‘barren rock’ (as Barbosa referred to it), [and which] were also the principal
guardians and sentinels” protecting the island.26
It was as Hormuz emerged and strengthened its level of independence at
the end of the thirteenth and the beginning of the fourteenth centuries that
the second important development in the position of the Kingdom of Hor-
muz occurred. Around this time, the rulers of Hormuz determined to transfer
their capital city from the mainland (around the port of Gombroon or present-
day Bandar Abbas, where it was originally established) to the island of Jerum
(which was re-named Hormuz, or “New Hormuz”).27 In his Kings of Hormuz,
Teixiera, writing about his travels to the Gulf in or about 1600, recounts a history
of Hormuz reportedly written by one of its most illustrious kings, Turan Shah,
or (in the spelling of Teixiera, Torunxa). In this account, he relates how the
Mongol invasions of Persia in the mid-thirteenth century, and the insecurity
which this brought to southern Iran had eventually prompted the Hormuzians
to leave the mainland and seek protection by establishing their community on
the island of Jerum/Hormuz:
[I]n 1302 a.d. (sic), there came out of Turkestam great hordes of Turks,
and conquered many lands in Persia. They attacked the kingdom of
Kermon, and next that of Harmuz, and wasted it all; and well if the mis-
chief had stopped at that. For the wealth that they had found in those
23 Valeria Piacentini, L’Emporio Ed Il Regno Di Hormoz (viii-Fine xv Sec. D. Cr.) (Milano: Isti-
tuto Lombardo di Scienze e Lettere, 1975), 125 (our translation from Italian).
24 Ibid., 124 (our translation from Italian).
26 Piacentini, Regno di Hormuz, 123 (our translation from Italian).
272 chapter 5
lands induced them to return so often, that the Harmuzis, unable to

withstand such troubles, made up their minds to abandon their lands,
and so they did.28
This narrative also maintains that after its move to the island of Hormuz, the
kingdom “throve exceedingly well for the next two hundred years [until the
arrival of the Portuguese in 1507], so that it dominated the most part of Arabia,
and much of Persia, and all the Persian seas as far as Bacora [Basra]”.29 Partially
echoing this assertion (which is clearly an exaggeration at least insofar as the
Kingdom of Hormuz did not have pretensions of controlling hinterlands in
either Persia or Arabia), the traveller, Ibn Batuta, writing around the early to
mid-fourteenth century, noted that the towns on the Omani coast “are for the
most part under the government of Hormuz.”30 As for Hormuz itself, he de-
scribed it as “a large and fine city, with busy markets, as it is the port from which
the wares from India and Sind are despatched to the Iraqs, Fars and Khurasan.
The island is saline, and the inhabitants live on fish and dates exported to them
from Basra.”31 In the Commentaries of the Great Alfonso D’Alboquerque, tracing
the Portuguese commander’s assaults in seizing control of Hormuz and the
Gulf beginning in 1507, similar accounts are made in relation to towns along
the Omani coast, from Qalhat to Sohar, and including Muscat, all of which also
indicate the extension of Hormuzi authority to that region. For example, upon
first arriving at the Omani coast in 1507 and landing at Qalhat, south of Muscat,
28 Pedro Teixeira, The Travels of Pedro Teixeira; with his “Kings of Harmuz” and Extracts from
His “Kings of Persia”, trans. William F. Sinclair (London: Hakluyt Society, 1902), Appendix
A (“A Short Narrative of the Origins of the Kingdom of Harmuz, and of its Kings, down
to the Conquest by the Portuguese; extracted from its History, written by Torunxa, King
of the same”), 160–161. It should be noted that the dates reflected in this narrative are
likely inaccurate as the Mongol invasions had begun in the mid-13th century. Moreover,
Piacentini states that “Harmuz did not suffer directly because the terrible Mongol armies
and their fearful archers never thrust right to the sea. However, Old Harmuz was no longer
so well sheltered from behind the deserts and rocky hills. In fact, groups of ‘Tatars’, lured
by the city’s reputation and the wealth stored in its warehouses and bazaar, began to
overrun the region. They spilled from Khurasan and came down along the caravan routes
of the desert, attacking towns, raiding, plundering and laying waste. Thus, they reached
Harmuz, too, which they took and sacked repeatedly, seriously unsettling its activity.” Pia-
centini, Beyond Ibn Hawqal’s, 153.
29 Teixeira, Travels of Pedro Teixeira, 168–169.
30 H.A.R. Gibb trans., Ibn Batuta,Travels in Asia and Africa, 1325–1354 (London: G. Routledge
& Sons, 1929), 118.
31 Ibid., 119.
the Portuguese landing party was reportedly told by the inhabitants that their
town “belonged to the kingdom of Ormuz”32 and that the “King of Ormuz used
to send there a noble … who administered justice and made war and peace as
he chose.”33 According to the Commentaries, the port was “a great entrepot of
shipping, which comes thither to take horses and dates to India” and for which
taxes and duties were paid to the King of Hormuz.34 Upon arriving at Mus-
cat, the local leaders were said to have “governed under orders of the King of
Ormuz” and paid him “tribute”.35 It was also related that, to avoid destruction
of the city and the killing of its inhabitants at the hands of the Portuguese,
these leaders and the inhabitants of the city told D’Alboquerque that they
“were content to become vassals of the King of Portugal, and to pay him every
year the dues -and they were many – which they had hitherto paid to the King
of Ormuz”.36 Again, the Commentaries describe Muscat as “part of the king-
dom of Ormuz” and “the principal entrepot of the kingdom of Ormuz, into
which all the ships that navigate these parts must of necessity enter, to avoid
the opposite coast which contains many shallows.”37 Similarly, upon arriving
at the fortified town of Sohar, the Portuguese were told by the leader of the fort
that it belonged to the King of Hormuz.38
These accounts are echoed in the Book of Duarte Barbosa, compiled dur-
ing his sojourn in India and his travels to the various Portuguese holdings in
the Estado da India from around 1502 until 1516. In his book, Barbosa states
that the Kingdom of Hormuz held towns along the Arabian and Persian
32 Alfonso de Albuquerque, The Commentaries of the Great Alfonso Dalboquerque, Trans-

lated from the Portuguese Edition of 1774 (Cambridge: Cambridge University Press, 2010),
Vol. 1, 63. The townspeople were also said to have referred to the king of Hormuz as “their
Lord”. Ibid., 65. However, at the threat of destruction by D’Alboquerque’s fleet, they agreed
to be “subject to the king of Portugal, and as his vassals they desired he would not desire
to destroy them nor make war upon them.”
33 Ibid., 67.
34 Ibid., 66–67.
35 Ibid., 73, 79.
36 Ibid., 73. Notwithstanding their willingness to become Portuguese vassals, hostilities broke
out when forces from the interior of Oman arrived to support the town, with much kill-
ing of the local population. As recounted in the Commentaries, when all the Portuguese
soldiers were assembled, D’Alboquerque “returned to the city, and put all the Moors, with
their women and children, found in the houses, to the sword, without giving any quarter”,
then sacking and burning the city. Ibid., 73–83.
37 Ibid., 83.
38 Ibid., 86. Upon surrendering the fort to D’Alboquerque, it was noted that the head of the
fort “had revolted from the allegiance of the King of Hormuz”.
274 chapter 5
coasts, particularly at the Gulf’s southern end.39 While there is little doubt that
Barbosa was generally correct in asserting that the Kingdom of Hormuz had
some significant level of authority and influence around both littorals of the
southern regions of the Gulf at that time, an important cautionary note has
been made by his translator and editor that the details set out in the list of
places noted by Barbosa as being held by the Kingdom of Hormuz in Persia
“is extremely confused, and like all those shown on contemporary maps has
evidently been compiled without personal knowledge.”40
Notwithstanding the evident authority and influence of the Kingdom of
Hormuz throughout the southern Gulf during the fourteenth and fifteenth
centuries, particularly with respect to controlling maritime trade through the
Gulf and collecting from that trade transit taxes and customs dues (which was
a primary motivation for its conquest by the Portuguese), which is reflected
in the various accounts and histories of the kingdom, there is little concrete
evidence of the geographical extent or nature of its territorial control. This is
the case also with respect to the three islands in dispute. In fact, although some
scholars adopt the assumption that the Kingdom of Hormuz possessed all Gulf
islands,41 the only item of direct evidence that has been identified which indi-
cates that any of the three disputed islands was specifically considered part of
the realm of the Kingdom of Hormuz or that Hormuz exercised any authority
there is a reference in the Book of Duarte Barbosa that the island of “Fomon”
(which has been said to refer to Greater Tunb) pertained to the King of Hor-
muz.42 Contrary to what has been suggested by some scholars,43 Barbosa made
no mention of either Lesser Tunb or Abu Musa. In translation, Barbosa a sserted
that “Fomon” was one of the “scattered many isles pertaining to the same King
of Ormuz and under his governance” located “at the mouth of the Persian
39 Barbosa states that, “there are many villages and strongholds of the King of Ormus along
the coast as far as the entrance of the Sea of Persia. The said king holds many castles and
towns and on the Arabian side many isles which lie within the said sea, wherein dwell
Moors of high rank. There he keeps his governors and collectors of his revenues”. Dames,
Book of Duarte Barbosa, Vol. 1, 68–69. As for the Persian side of the Gulf, he also recounts
that: “This same King of Ormus holds many villages and inhabited lands along the coast”.
Ibid., Vol. 1, 74.
40 Ibid., Vol. 1, 75. See infra note 49.
41 See, e.g., Willem Floor, The Persian Gulf, A Political and Economic History of Five Port Cities
1500–1730 (Washington: Mage Publishers, 2006), 30 (“[T]he kingdom of Hormuz included:
(i) All the islands in the Persian Gulf.”).
42 Dames, Book of Duarte Barbosa, Vol. 1, 79–80.
43 See, e.g., supra note 7 and accompanying text, referring to an assertion by Bavand.
Sea”.44 Other than Barbosa’s reference, the only other reference which might
directly suggest that the Kingdom of Hormuz held any of the islands as its own
territory is found in the somewhat obscure “chronicle” purportedly written by
one of its kings (Pachaturunxa) and recovered (or rewritten) by Pedro Teix-
eira around the end of the sixteenth century. The chronicle relates that in the
fourteenth century “the kings of Ormuz went on prospering in such man-
ner that they became rulers of all the islands in this Strait”.45 Even taking this
assertion at face value, it is impossible to know whether the “islands in this
Strait” were considered by the author to include any of the disputed islands as
they are not named.
Whether the scant evidence of the sort referenced in the several paragraphs
above is sufficient to conclude that the islands did belong or must have belonged
to the Kingdom of Hormuz upon the arrival of the Portuguese at the begin-
ning of the sixteenth century is debatable. As stated by Huber in the Island of
P almas case, an arbitral tribunal must consider the “totality” of the evidence
laid before it, even if slight, and have “entire freedom to estimate the value of
assertions made by the Parties … in light of all the evidence and all the asser-
tions made on either side”.46 Moreover, the decision of the pcij in the Legal
Status of Eastern Greenland case laid out the pronouncement that “it is impos-
sible to read the records of decisions as to territorial sovereignty without ob-
serving that in many cases the tribunal has been satisfied with very little in the
way of actual exercise of sovereign rights, provided that the other state could
not make out a superior claim”.47 Notwithstanding these statements, there are
several strong reasons which augur in favor of a conclusion that the available
evidence is insufficient to attribute ownership of any of the three islands to
the Kingdom of Hormuz, and that therefore in reality none of those islands
may be said to have belonged to the realm of that kingdom.
An initial consideration in evaluating the evidence of Hormuz’s asserted
possession of the islands is understanding the nature and reliability of the evi-
dence itself. This, as noted above, consists of a mention in the Book of Duarte
44 Dames, Book of Duarte Barbosa, Vol. 1, 79–80.

45 Teixeira, Travels of Pedro Teixeira, 265, which is located in Appendix D, entitled “Relation
of the Chronicle of the Kings of Ormuz taken from a Chronicle composed by a King of the
same Kingdom, named Pachaturunxa, written in Arabic, and summarily translated into
the Portuguese language by a friar of the order of Saint Dominick, who founded in the
island of Ormuz a house of his order.” Ibid., 256.
46 Island of Palmas case (Netherlands/United States of America), Award of April 4, 1928, riaa
2 (1928) 829, 841.
47 Legal Status of Eastern Greenland, pcij, Ser. A./B., No. 53, 1933, 46.
276 chapter 5
Barbosa that Greater Tunb (but not Lesser Tunb or Abu Musa) belonged to the
kingdom and inferences drawn from various historical sources which recount
the general repute of the Kingdom of Hormuz as an important and largely
independent maritime-focused power in the Gulf for several hundred years
prior to its conquest by Portugal at the beginning of the sixteenth century.
These inferences would suggest, without providing direct evidence, that given
its maritime prominence and its close geographical proximity to the islands,
Hormuz was powerful enough and in a position to have controlled and pos-
sessed the islands, and therefore it may be presumed that it did. The value of
inferential evidence in territorial disputes has been reviewed in the previous
chapter in relation to the proposition, unsupported by direct evidence, that
Persian empires may be considered to have possessed the islands in antiquity.
It was concluded there that the inferences sought to be advanced were un-
sustainable as a matter of evidence. As was noted, international courts and
arbitral tribunals have been extremely reluctant to base decisions over dis-
puted territory on presumptive evidence, strongly preferring instead “evidence
which relates directly to the possession”48 of the territory itself. In this case,
however, the presumptive evidence in question is not only strengthened by the
acknowledged maritime-oriented nature of the Kingdom of Hormuz, but is
also supported (in relation to the Greater Tunb) by at least one piece of (albeit
flawed49) direct evidence – that of Barbosa.
Arrayed against this evidence are the following considerations. First, and
perhaps most crucially from the perspective of making out a case under inter-
national law, there is no evidence which has been unearthed that the Kingdom
of Hormuz itself ever took possession of any of the islands or exercised any au-
thority over any of the islands, that it considered itself to be the owner of any
of the islands (notwithstanding the reference to the Greater Tunb in the book
of Barbosa) or that any of the islands were of interest or use to the Hormuz-
ians at the time they were defeated by the Portuguese, or indeed at any time
prior to or after that. The absence of evidence showing a single act or mani-
festation of occupation or sovereignty on or in relation to the islands by the
Kingdom of Hormuz, despite its centuries’-long existence in the immediate
geographical region, is inconsistent with the notion that Hormuz effectively
48 Minquiers and Ecrehos (France/United Kingdom), icj Reports 1953, 47, 57.
49 The flaw in question is the doubt raised by Barbosa’s translator as to whether Barbosa
had actual personal knowledge of what he was writing about when he contended that
the island of “Fomon” (or Greater Tunb) pertained to the Kingdom of Hormuz. See supra
note 40 and accompanying text, citing to Dames, Book of Duarte Barbosa, Vol. 1, 75.
possessed or considered itself to own the islands and, on the contrary, signifies
the “absence of” title.50 This conclusion is reinforced by the references made
in historical materials to several other Gulf islands which the kingdom or its
inhabitants made use of. Thus, there is contemporaneous evidence that its of-
ficials or inhabitants brought water to Hormuz (as the island had no potable
water) and produce from Qeshm island and Larak island, and that Henjam
island was used for the anchorage of vessels.51 No mention of any use being
made of Greater Tunb (nor Lesser Tunb or Abu Musa) is to be found, and as it
was barren, infertile and relatively more distant, there is no apparent reason
why Hormuz would have had any use for it. This again indicates that, as op-
posed to these several other islands, Greater Tunb simply didn’t figure into the
needs or existence of Hormuz.
In this respect, there is no evidence that the Kingdom of Hormuz ever estab-
lished any settlements, outposts or fortifications on the islands or used them
for any other purpose. Indeed, fifty years after the Portuguese were expelled
from Hormuz by Persia and Britain, de Thévenot recounted a comment of a
representative of the Portuguese king in the Gulf concerning Greater Tunb,
which appears to shed some light on its status. This representative, Mendez,
brought to de Thévenot attention that “if someone would build a fortress on
this island and if war boats would sail around, the fortress owner could easily
ask for a tribute”.52 Despite this potential use, it was never so used. De Thévenot
also noted that after their expulsion from Hormuz, and up to 1650, the Portu-
guese would occasionally use the island of Greater Tunb as a rendezvous point
to receive “tributes”.53 These references to Greater Tunb are not suggestive of
a place which was under the ownership or control of anyone in particular. On
the contrary, as evidence they tend to signify that rather than pertaining to
Hormuz (which by this time was in the hands of Persia) or anyone else, Greater
Tunb was territory akin to terra nullius which could be resorted to or used by
50 Sir Gerald Fitzmaurice, “The Law and Procedure of the International Court of Jus-
tice, 1951–54: Points of Substantive Law, Part ii”, British Journal of International Law 32
(1955–1956): 20–96, 58–59.
51 See, e.g., Teixeira, who noted around 1604 that the “point of Queixome on the outside
has plenty of palm orchards, gardens, and wells of good water; whence Harmuz is com-
monly supplied”, while Henjam is “a little distinct island used as a port [which] forms in
its sound a very safe haven, fit to hold many and very great ships.” Teixeira, Travels of Pedro
Teixeira, 19.
52 Jean de Thévenot, Suite du Voyage de Levant, (Paris: Kessinger Legacy Reprints, 1674), 354
(our translation from French).
53 Ibid.
278 chapter 5
anyone minded and able to do so. Such a conclusion does not necessarily mean
that the island did not pertain to Hormuz at some prior time in history, but it
certainly makes that possibility seem more remote while reinforcing the no-
tion that Greater Tunb was essentially unused, unclaimed and ignored.
With the Portuguese conquest of Hormuz, and its subjugation of the king-
dom’s possessions, written records became more commonly used and retained.
Several extensive accounts exist of the conquest itself, as well as of the century-
long control exercised over the Kingdom of Hormuz by the Portuguese and,
finally, the ignominious defeat of Portugal and its Hormuzian vassal at the
hands of Persia and Britain in 1622. In none of these accounts which we have
been able to obtain (other than that of Barbosa) is there any mention of any
of the three disputed islands, whether as forming part of the territories of the
Kingdom of Hormuz taken in conquest by Portugal or otherwise, or any men-
tion of any act of sovereignty on or in relation to any of the islands which was
taken by Portugal or its Hormuzian vassal. The only islands which occasionally
figure into these accounts and which one is led to believe somehow pertained
to Hormuz are Qeshm, Larak and Henjam (as described above), as well as
Bahrain. This absence of evidence in accounts written during a period longer
than a century is, again, not supportive of an assertion that the territory of the
Kingdom of Hormuz which was conquered by Portugal included those islands.
Some accounts, in fact, portray circumstances in which the smaller islands in
general proximity to the Tunbs were lawless. For example, writing around 1604
of his voyage from Hormuz to Basra, Teixeira noted the following about the
islands located just beyond Qeshm island (which itself was afflicted by “raids”
which had laid it to “waste”54):
All these [islands] are at three, four, or five leagues off shore, and ill in-
habited, by reason of the raids of the Noutaques and Nihhelus, Arabs who
dwell on the Persian shore so called, and take their name from it.55
Moreover, the nature and extent of Hormuz’s territorial control is left vague in
these accounts, thus making it difficult to base a persuasive argument on them
that islands (which are not mentioned) were part of its kingdom. For instance,
what is known about the “instrument of submission” agreed by the King of
Hormuz in 1507 is that it provided for (i) the King of Hormuz to “receive” the
kingdom and domain of Hormuz from Portugal which had “dispossessed it by
54 Teixeira, Travels of Pedro Teixeira, 20.

55 Ibid., 21.
force of arms”, (ii) the King of Hormuz henceforth to be the “vassal” of the
King of Portugal and to pay him a yearly tribute of twenty thousand xarafins,
(iii) the King of Hormuz to pay the expenses incurred by Portugal in conquer-
ing the kingdom, and (iv) the King of Hormuz to allow the construction of a
Portuguese fort on the island of Hormuz.56 Elsewhere it is stated that another
point of agreement was to allow Portuguese merchandise to enter Hormuz
free of customs duties.57 The principal indication of the geographical extent
of Hormuz’s kingdom coming out of the accounts contemporaneous with the
conquest and domination of Hormuz by the Portuguese is that it encompassed
those places where it was able to exercise sufficient authority to extract trib-
ute and taxes. A number of these places were said to house a resident “noble”
or other representative of the king, and in others there were forts established
which were said to belong to the king.58 When a port or principality withheld
tribute to the kingdom of Hormuz (which in turn owed tribute to the Por-
tuguese), it was subject to attack, as the following episode written from the
Portuguese perspective in 1521 demonstrates:
Mocrin King of Lasab refused to pay the tribute due to the King of Ormuz
for the islands of Baharem [Bahrain] and Catifa, on the Coast of Ara-
bia; and he of Ormuz was backward in paying us, excusing himself with
the failure of the other. He had already sent a considerable force with
some assistance from Portuguese to reduce him, but to no effect. He now
resolved to do it effectually, and treated about it with James Lopez de
Sequeyra, who to secure our tribute, consented to assist him against his
Enemy … The Trenches assaulted, the Fight was hot, the King [Mocrin]
encouraging his men at the head of them till weariness and heat obliged
both parties to take breadth. Being recovered, they return to the attack,
56 Collecção de Tratados e concertos de pazes que o Estado da India Portugueza fez com os Reis
e Senhores com quem teve relações (Lisboa: Imprensa Nacional, 1881), Vol. 1, 1–2 (transla-
tion from Portuguese by Inês Gomes).
57 Floor, Persian Gulf, 93 (“Moreover, Portuguese merchandise was not subject to payment of
customs, while those goods that Portuguese subjects bought in the kingdom of Hormuz
would not pay more than Hormuzi subjects.”). See also Albuquerque, Commentaries, Vol.
1, 130–131 (“but that the merchandise coming from Portugal to the factory should be free of
duty, and that brought by the Portuguese in Ormuz and in its ports should not pay more
duty than that which the natives of the land paid.”).
58 As noted by Barbosa, the King of Hormuz “keeps his governours and collectors of revenue
at those places in Persia and Arabia and the isles which pertain to his seignory”. Dames,
Book of Duarte Barbosa, Vol. 1, 98.
280 chapter 5
and the King being shot through the thigh, whereof six days after he died,
his men fainted, and great numbers being killed, and wounded, they left
us a complete victory … But after knowing the dead body of the King
was carried over to be buried at Lasab, he [the commander of Hormuz]
obtained leave to go take it, and having performed it, cut off the head
which was carried to Ormuz. We had many wounded, seven killed, and
the island in two hours was restored to our Homager.59
Another relevant consideration is that the nature and interests of the Kingdom
of Hormuz over its centuries-long existence do not indicate any reason why its
rulers would have wanted to possess or use any of the three islands, uninhabited
and generally inhospitable as they were, unless it were to construct a fort from
which it might control maritime traffic, which we know didn’t occur. As noted
by such scholars as Vosoughi and Piacentini, the Kingdom of Hormuz was an
“economic empire”, but not a “territorial empire”, and its territorial boundaries
were “almost impossible to define exactly”.60 As its interests revolved around
trade and raising revenues through its control of maritime trade routes and
Gulf emporia, principally Hormuz, Muscat and Bahrain, it is obvious that the
Kingdom of Hormuz was not a power which sought to control territory for the
sake of territorial expansion or control alone, especially where such control
would have imposed upon it some obligation which it could not benefit from.
Rather, it sought to control or exert influence over territories, including islands,
from which some tangible benefit could be derived. In most cases (including
the ports and emporia of Oman and Bahrain) this was to collect transit taxes
and customs dues, and to facilitate trade. As mentioned above, in the case of
near-by Gulf islands, the evidence shows that Qeshm, Larak and Henjam all
provided Hormuz with some benefit (be it water, produce, wood or anchorage)
which related to the capital’s daily life or existence. Thus, it might be reason-
able to conclude that such islands formed part of the kingdom’s possessions,
or acknowledged “territories”, the control of which it was prepared to defend.61
The same simply could not be said for any of the three disputed islands, which,
59 Manuel De Faria y Sousa, Portuguese Asia, or the History of the Discovery and Conquest of
India by the Portuguese, trans. Cap. John Stevens (London: Printed for C. Browne, at the
Sign of the Gun, at the West-End of St. Pauls, 1695), Vol. 1, 256–258.
60 Piacentini, L’Emporio Ed Il Regno Di Hormoz, 124.
61 In fact, in the Commentaries, a fight between the Portuguese and the Hormuzians at
Qeshm island is described during the course of D’Alboquerque’s initial assault against
Hormuz in 1507 (“[T]he Moors who came up, finding themselves badly used by our
matchlocks, betook themselves to flight, and left the place.”) Albuquerque, C
ommentaries,
Vol. 1, 184.
as mentioned, did not appear to figure into any aspect of Hormuz’s existence
or interests.
Finally, as the reference to Greater Tunb in Barbosa’s book is the only
direct evidence that this island may have belonged to the Kingdom of Hormuz,
the reliability of that evidence must be considered. A review of that work sug-
gests that its detail must be treated with some considerable caution. As already
mentioned, his translator and editor noted that the list of places he laid out as
possessions of the Kingdom of Hormuz on the Persian coast included some
places which were in fact on the Arabian coast and was otherwise “extremely
confused” and obviously compiled “without personal knowledge.”62 Indeed,
the identity of a number of islands listed by Barbosa cannot actually be deter-
mined or appear to refer to towns on the coast.63 Elsewhere, he lists Bahrain
(Beroaquem) as being on or geographically attached to the Persian mainland
rather than lying just off the Arabian coast, and omits to mention the town of
Catif altogether, which (since it was one of the most important towns on the
Arabian littoral) further indicates that his compilation was “based on no real
knowledge”.64
Apart from lacking personal knowledge of the Gulf and presenting an “ex-
tremely confused” account of its islands and towns, a further point which
brings into question the general reliability of Barbosa’s account of the is-
land possessions of the Kingdom of Hormuz is raised by the mention made
in D’Alboquerque’s Commentaries to the voyage made by his nephew, Pero
D’Alboquerque, in mid 1514 for the purpose of exploring “the straits of the
Persian Sea in accordance with the instructions he had received from Alfonso
Dalboquerque” and to find out if Bahrain “was still in obedience to” Hormuz’s
commands.65 This voyage, which only lasted 4 weeks and was the first official
voyage of exploration by the Portuguese into the Gulf beyond the straits, in-
dicates that even at this date the Portuguese still did not have much detailed
information about the Gulf and were just beginning to compile it. The next
Portuguese voyage to Hormuz was that of D’Alboquerque himself in 1515, when
he succeeded in finally subjugating the kingdom outright and forcing its obe-
dience to the King of Portugal under the terms of the treaty which had been
agreed 8 years earlier. It is unclear when Barbosa himself traveled to Hormuz.
62 Dames, Book of Duarte Barbosa, Vol. 1, 75.

63 Ibid., Vol. 1, 79, note 1. These include, for example, Quiro, Melugan and Gory.
64 Ibid., Vol. 1, 76. Elsewhere it is noted by the translator that while the description of the
island city of Hormuz is “evidently derived from personal observation”, the same cannot
be said for “the confused account of the Persian Gulf inside the Straits of Hurmuz”. Ibid.,
Vol. 1, lxii.
65 Albuquerque, Commentaries, Vol. 4, 113–114.
282 chapter 5
In any case, Barbosa’s book, which was a compilation of his notes taken during
his various travels and experiences over the course of almost 15 years (begin-
ning around 1502 and ending somewhere around 1515), as well as things he
had “learnt from trustworthy persons”66 during this time could not have had
the benefit of much detailed insight concerning the status of the Gulf beyond
the Straits of Hormuz, whether from personal knowledge or from other Portu-
guese officials on whom he might rely, as very little such information apparent-
ly existed during the time he was writing the notes which would become his
book. For all of these reasons, it is difficult to place much reliance on the detail
related to the Gulf which is set out in the book of Barbosa as a source of histori-
cal evidence, particularly where it is essentially produced as the only piece of
evidence which purports to “relate directly to the possession” of Greater Tunb
by the Kingdom of Hormuz.
An assertion that the Kingdom of Hormuz was sovereign over the three is-
lands in dispute would, on the basis of the above, encounter substantial evi-
dentiary difficulties by any party advancing that argument. As a proponent of
such an hypothesis would have the burden of proving the assertion, it would
be obliged to seek to carry that burden by relying on the book of Barbosa as
(apparently) its only piece of direct evidence, supported by the inferential evi-
dence reviewed above. Further, as Barbosa refers directly only to the Greater
Tunb (but not Lesser Tunb or Abu Musa), his book provides no direct evidence
at all as to the purported ownership of those two islands by the Kingdom of
Hormuz, leaving any assertion as to their ownership by the kingdom based on
inferential evidence alone. The evidence of the Kingdom of Hormuz’s owner-
ship of Greater Tunb set out in Barbosa’s book must be considered at the low-
er end of a scale of reliability and persuasiveness for the reasons mentioned
above. Moreover, the inferential evidence which is available would also have to
be described as unpersuasive as it neither makes any reference at all to any of
the islands or even suggests that they were possessed by the Kingdom of Hor-
muz. On the contrary, the counter-inferences to be drawn from the absence
of any references to the islands (other than that of Barbosa) while mention
is made of the use which the Kingdom of Hormuz and its Portuguese over-
lords made of other Gulf islands, including Qeshm, Larak and Henjam, would
appear, as a matter of inferential evidence, to suggest more strongly that the
disputed islands did not make up part of the possessions of that kingdom than
that they did.
The standards for establishing title over terra nullius set out in chapter 3
demonstrate that emphasis is placed on the effectiveness of the claimant’s
66 Dames, Book of Duarte Barbosa, Vol. 1, 1.

o ccupation of the territory in question, including both the will, or animus, to

act as sovereign and the actual and continuous display of State functions on
or in relation to that territory, as established through direct, rather than pre-
sumptive, evidence, and that negative inferences are drawn where there is a
complete absence of the exercise of any sovereign acts by the asserted title
holder on the disputed territory (as is the case with respect to the Kingdom of
Hormuz and the islands). Although some have suggested that in the fifteenth
and sixteenth centuries symbolic acts, or discovery alone, may have been suffi-
cient to confer title, the prevailing view at that time was that some effective act
of appropriation had to follow within a “reasonable time” in order to complete
the “inchoate” title conferred by discovery or the symbolic act.67 Under these
circumstances, the evidence which has been unearthed and which might be
relied on to establish any claim that the islands belonged to the Kingdom of
Hormuz would appear to fall far short of that required to make out a credible
claim and would therefore have to be rejected. Not only is there a complete
absence of evidence that Hormuz had the intention to occupy the islands (ani-
mus occupandi), but there is also a complete lack of evidence that it ever physi-
cally possessed or carried out any acts of administration, or State functions, on
the islands. The consequences of such a finding are further discussed below.
In Conquering Hormuz, did Portugal Acquire Sovereignty

over the Islands?
If it is correct to conclude that none of the three disputed islands belonged

to the Kingdom of Hormuz, then the conquest and subjugation of that king-
dom and its possessions by Portugal in 1515 would not itself have resulted in
the seizure and annexation of the islands by Portugal, nor in any change in
whatever status they had prior to those events. In the previous chapter we
concluded that, on the basis of the available historical evidence, the islands
were neither claimed nor occupied by any other organized power prior to the
sixteenth century, which would place them in a status of terra nullius at that
time. If they were neither possessed by the Kingdom of Hormuz (and, for that
reason, not acquired by Portugal through its conquest of Hormuz) nor pos-
sessed by any other power, it follows that at the time of Portugal’s conquest of
Hormuz this status of terra nullius would still be in effect. Therefore, determin-
ing ownership of the disputed islands would involve an analysis of whether
either of the d isputing parties may claim title through occupation or other
67 See chapter 3.
284 chapter 5
mode of territorial acquisition based on events occurring after the onset of the
sixteenth century.
Beyond this observation, however, there are other legal questions inter-
twined within the assertion that through its conquest of Hormuz, Portugal
obtained ownership of the islands. Although, in light of the conclusion set out
in the previous paragraph, these issues may be purely academic and not di-
rectly relevant to the dispute over title to the islands, as they form part of the
legal matrix involved in the discussion over that dispute, they will be briefly
addressed. These issues are: (a) whether the Kingdom of Hormuz was a Per-
sian “vassal” at the time of its conquest by Portugal, and whether this status
conferred on Persia rights of ownership over Hormuz’s territories; (b) whether
Portugal’s conquest and subjugation of the Kingdom of Hormuz resulted in
the transfer of title to Portugal of all of the kingdom’s territorial possessions;
(c) whether Persia “ceded” Hormuz to Portugal at the time of its conquest of
the Kingdom of Hormuz in 1515; and (d) whether Portugal acquired sovereign-
ty over any of the islands following its conquest of Hormuz through occupa-
tion during its presence in the Gulf in the sixteenth and seventeenth centuries.
The Kingdom of Hormuz as a Persian “Vassal”

Persia’s reaction to the conquest of the Kingdom of Hormuz by Portugal sig-
nalled both its deep objection and practical inability to oppose the estab-
lishment of Portuguese control of the island kingdom. As noted above, some
scholars contend that prior to its conquest, Hormuz was already what they
describe as a Persian “vassal” and under the effective control of Persia, and
that by conquering and subjugating Hormuz’s territory, Portugal was in effect
annexing territory over which Persia had superior rights.68 As it has already
been determined that the historical evidence which has been found does not
support an assertion that any of the disputed islands were in fact Hormuzi ter-
ritories, the question whether the kingdom was a vassal State of Persia or not,
and whether this status conferred on Persia rights of ownership or sovereignty
over Hormuzi territories, is therefore of no apparent relevance to a discussion
concerning the chain of title to those islands. Moreover, as will be discussed
in the next sub-section, since there is little dispute that the Portuguese did,
in fact, conquer and subjugate all Hormuzi territories, whether those territo-
ries were previously Persian or Hormuz’s own territory is of little relevance
68 See, e.g., Bavand, “Legal Basis”, 79–80. A discussion of whether Portugal may be consid-
ered to have annexed or secured sovereignty over Hormuzi territories following its impo-
sition of the treaty of submission with the Kingdom of Hormuz in 1515 is set out later in
this chapter.
in terms of the chain of title attaching to those territories. It is clear that they
became Portuguese territory as of the beginning of the sixteenth century, with
their previous ownership then broken, and any subsequent disposition of that
territory depends on later events which must be understood and analyzed on
their own and without reference to the prior status of the territories in ques-
tion. Thus, even if, hypothetically, we assume that the islands were, because
of Persia’s rights of vassalage over the Kingdom of Hormuz, subject to some
Persian rights of ownership prior to Portugal’s conquest, that status would
not have affected the consequences of the conquest and transfer of territorial
rights to Portugal.
Notwithstanding the academic nature (for purposes of this work) of the
question whether the Kingdom of Hormuz was a Persian vassal, and what
rights (territorial or otherwise) that status would have conferred on Persia, a
short digression into the merits of that contention demonstrates that if it were
to be analyzed, it would likely find very little support in either the available
evidence or under international law.
In relation to the concept encompassed by the term “vassal” under interna-
tional law, Crawford has noted:
The terms ‘vassal’ and ‘suzerain’ derive from feudal law; their translation
into the field of international relations is a ready source of confusion.
The term ‘vassal’ referred sometimes to an entity subject to suzerainty….
Suzerainty may be defined as a relation between a dominant and a de-
pendent State the incidents of which are in part defined by treaty or
agreement, and in part by a lex specialis peculiar to that relation or that
class of relations. It differed from protectorate only in that certain of its
incidents are more likely to be undefined or to involve general claims of
supremacy.69
Other scholars have noted that the feudal concept of “suzerainty” in fact
“required three persons”: “If B holds land of A, and C of B, then A is seigneur to
B, and suzerain to C [while] B is vassal to A, and seigneur to C [and] C is arriere-
vassal to A, and vassal to B”.70 This, concludes the author, “alone proves that
the word [i.e., ‘suzerainty’] in the mouth of a modern international jurist has
69 James Crawford, The Creation of States in International Law (Oxford: Oxford University
Press, 2006), 321.
70 W.H.H. Kelke, “Feudal Suzerains and Modern Suzerainty”, Law Quarterly Review 12 (1896):
215–227, 216.
286 chapter 5
travelled very far from its original meaning.”71 Other scholars have ventured
definitions of “suzerainty” for purposes of international law. For example, Hall,
writing in 1890, posits the following:
States under suzerainty of others are portions of the latter which during
process of gradual disruption or by grace of their sovereign have acquired
certain of the powers of an independent community, such as that of mak-
ing commercial conventions, or of conferring their exequatur upon for-
eign consuls … [A] state under suzerainty of another, being confessedly
part of another state, has those rights only which have been expressly
granted to it.72
De Louter expounded this definition:
The term suzerainty served to indicate a kind of dependence shown

chiefly in external relations, which were subject to the superintendence
or even to the complete management of the suzerain; sometimes matters
did not rest there, and the dependent state paid tribute or was obliged to
endure a greater degree of interference in its affairs.73
Kelke ventures a definition of “modern suzerainty” (that is derived from the

nineteenth century) which contains certain of the features referenced by Hall
and De Louter, and which provides a useful frame of reference: it is “immate-
rial” whether the dependent State (“respublica serviens”) is “derived” from the
dominant State (“respublica dominans”), “and whether the relation is consti-
tuted by simple convention between the parties or imposed from without”:
What is essential is that there must be (1) a real restriction of sovereign

rights as against the former in favour of the latter, and (2) no quid pro quo
(or semble an obviously and highly inadequate consideration) moving
from the latter to the former. And (3) in practice it will be found where
this is so that (as a matter of fact rather than law) the convention will be
unilateral, i.e. it will be easy for the superior to terminate it, and difficult
or impossible for the inferior to do so.
71 Ibid.
72 William Edward Hall, A Treatise on International Law, 3rd ed. (Oxford: Clarendon Press,
1890), 30–31. Quoted also in Kelke, “Feudal Suzerains”, 222–223.
73 Kelke, “Feudal Suzerains”, 223, citing to De Louter, “La Question du Transvaal”, Révue de
Droit International et de Législation Comparée 28 (1896): 117–135, 122 (translation from
French by Kelke).
Lastly and above all, (4) the scope and extent of the restriction on sov-
ereign rights will be found in, and only in, the treaty, convention, or other
public document whereby the suzerainty is constituted. Any relation sat-
isfying these four conditions may be justly said to create a suzerainty in
the modern sense; no other can; subject to these conditions one instance
may differ very widely from another.74
The framework around which a relationship of suzerainty exists between

two States or distinct political entities which is reflected in these definitions
is clearly an elastic one, with no fixed parameters or legal consequences,
and very much dependent on the terms and circumstances under which the
relationship of suzerainty is established. Nevertheless, it is clear that the de-
pendent State would be limited in its freedom to exercise sovereign rights or
actions in some or many respects, and that the dominant State would be in a
corresponding position of control, with the right to interfere or obtain ben-
efits from the dependent State without giving anything in return. For example,
the 9th edition of Oppenheim’s International Law notes that “[v]assal states,
although retaining internal independence, normally had no separate interna-
tional position”,75 while McNair points out that a “dependent State, in which
term is comprised both protected and vassal States, by the terms of its connex-
ion with its protector or suzerain (which it is convenient to call ‘the dominant
State’) either may have surrendered any treaty-making capacity which it may
at one time have had, or may only be allowed to contract international engage-
ments of certain limited kinds.”76
Using that general framework as a guide, it is first important to determine
the level of control over the Kingdom of Hormuz which was exercised by Persia
at the time the kingdom was conquered by Portugal. In this regard, there is very
little persuasive evidence which would support an assertion that Persia or any
of its subordinate regions or provinces enjoyed any significant measure of con-
trol over Hormuz at that time at all (although, as set out below, it is clear that
Persia had taken certain steps to achieve that objective). Indeed, the evidence
in support of the suggestion that Hormuz could be described as a Persian vas-
sal, that is, subject to Persian control or interference, or other limitations on its
74 Kelke, “Feudal Suzerains”, 226.

75 Arthur Watts and Robert Jennings, Oppenheim’s International Law, 9th ed. (Oxford: Ox-
ford University Press, 1996), 267, para 81.
76 Lord McNair, Law of Treaties (Oxford: Oxford University Press, 1986), 42. For an analysis
of the term “protectorate” and “protected State” and the type of relationship between the
British and the Trucial Sheikhdoms in the nineteenth century, see chapter 9.
288 chapter 5
freedom to act independently, at the time of the Portuguese conquest appears

to consist of only a few specific elements.
One of these involved the payment by the Kingdom of Hormuz of a yearly
fee (“moqarrariyeh”) or tribute to “whoever was in power on the mainland” (be
it the Persian Shah, regional governor or various local chiefs77), the purpose of
which was “to ensure safe passage of the caravans to and from Hormuz”.78 As
noted by a number of scholars, this payment was in the nature of an econom-
ic or commercial arrangement “between two states” tied to activities (trade)
which brought each of them a level of prosperity, and that notwithstanding
the Hormuzi payment of this fee, “it remained totally free and independent in
its commercial and political activities and policies.”79 The Encyclopaedia Irani-
ca defines the moqarrariyeh as “a tribute paid by Hormuz to the neighboring
sovereigns to allow the passage of her commerce, which allowed them to trade
tax free until a certain amount.”80 In that respect, Floor points out that this
fee was also paid by the King of Hormuz “to the ruler of Basra until this port
had been incorporated into the Ottoman Empire in 1546.”81 D’Alboquerque
77 Indeed, Portuguese sources show that in 1568, when the payment of the moqarrariyeh had
been reinstated by the Kingdom of Hormuz, there were no less than 7 recipients, includ-
ing the Shah, the Governor of Lar, the Governor of Shiraz and various other local chiefs.
Referenced in Floor, Persian Gulf, 73.
78 Floor, Persian Gulf, 72. Writing around 1600, Teixeira also notes the payment of moqarrari-
yeh by Hormuz to Persia in Kings of Hormuz, which he contends was paid in connection
with the landward possessions of the kingdom: “For these territories the kings of Harmuz
pay to the King of Persia a certain tribute, called mokararias, because they are not let run
into arrear, as sometimes happens with tributes.” Travels of Pedro Teixeira, Appendix A
(“Short Narrative”), 190.
79 Floor, Persian Gulf, 72. In rejecting the notion that the payment of this fee constituted
recognition that it was a Persian vassal, Floor also cites to Jenkinson, Early Voyages and
Travels to Russia and Persia who relate that even the Portuguese came to pay a moqarrari-
yeh to Persia to maintain access to land-based water supplies transported to and used for
the island of Hormuz. Ibid. Piacentini, noting that the Persian Safavids recognized their
“weakness at sea”, held what she describes as “only nominal suzerainty over Hormuz” by
virtue of the payment of tribute and the moqarrariyeh, leaving “Gulf trade and shipping
… de facto in the hands of the prince of Hormuz and his ‘associates’”. Valeria Piacentini,
“Salghur Shah, malik of Hormuz, and his embargo of Iranian harbours (1475–1505)”, in
Revisiting Hormuz, Portuguese Interactions in the Persian Gulf Region in the Early Modern
Period, eds. Dejanirah Couto and Rui Manuel Loureiro (Wiesbaden: Harrassowitz Verlag,
2008), 11.
80 Encyclopaedia Iranica, s.v. “Portugal. i. Relations with Persia in the Early Modern Age
(1500–1750).” Accessed February 2, 2016. http://www.iranicaonline.org/articles/portugal-i.
81 Floor, Persian Gulf, 73.
had in fact refused the request of Persia to continue making this payment af-
ter Portugal had initially conquered Hormuz in 1507, and again in 1515 he re-
fused to agree to the inclusion of the payment in the treaty he negotiated with
Persia (see below), severing (temporarily) this connection with Persia alto-
gether. Whether he rejected maintaining these payments because he may have
considered them as some recognition of Persian suzerainty or, as stated in the
Commentaries, because “the expenses that the King of Ormuz was compelled
to spend upon his army and fleet, for the maintenance of his kingdom, were
so great (besides the tribute money paid to the King of Portugal, his lord), that
were it not for the dues upon the merchandise coming from Persia and o ther
parts, the King of Ormuz could not support himself”,82 is unclear.83 In any
case, payments of the moqarrariyeh were subsequently reinstated by Hormuz
even while Portuguese control of Hormuz was absolute. Moreover, Portugal
itself later paid a similar fee to Persia for access to water sources on the Persian
mainland.84 In neither case were the payments somehow suggestive of a form
of submission to Persian control, but rather they were in the nature of a com-
mercial arrangement for which a quid pro quo was received by Hormuz. For
these reasons, it would be inaccurate to deduce some legal conclusions reflec-
tive of suzerainty from these arrangements.85
A second evidentiary basis which could be used to argue that Persia was
suzerain over the Kingdom of Hormuz (or that it was a Persian vassal) relates
82 Albuquerque, Commentaries, Vol. 4, 176.

83 Floor says in Persian Gulf, 72 that: “The Portuguese, in fact held the same view despite the
fact that in 1515 Albuquerque refused to pay it, because he believed it be a political pay-
ment acknowledging suzerainty. Albuquerque’s position is understandable, because the
term apparently was also sometimes used in the sense of ‘tribute’ by the Hormuzi bureau-
cracy … However, given the nature of the payment (i.e., to guarantee safe passage of the
caravans) the kings of Hormuz had to pay it, of course.” However, he later says when he
is commenting on the tribute from Hormuz to Portugal: “Aubin has rightly observed that
whereas the Portuguese saw the payment of moqarrariyeh as a political act, the Hormuzis
saw it as a commercial one. This misunderstanding resulting in Albuquerque’s refusal to
allow the Hormuzis to pay this fee to the Safavid shah.” Floor, Persian Gulf, 94.
84 Ibid., 72.
85 Piacentini notes that at the end of the fifteenth and the beginning of the sixteenth cen-
turies, Hormuz “did not hesitate to pay tribute to the new emperor of Persia and his pro-
vincial governors” in the form of the moqarrariyeh and other tributary payments, this was
a “pragmatic” policy which resulted in only a “nominal suzerainty over Hormuz and its
maritime realm” as “Gulf trade and shipping remained de facto in the hands of the prince
of Hormuz and his ‘associates’ in exchange for the traditional payment of free passage
(muqarrariya) for caravans on the continent and access to the great markets of the em-
pire.” Piacentini, “Salghur Shah”, 11.
290 chapter 5
to the circumstances within the kingdom immediately before the Portuguese

secured its definitive submission in 1515. D’Alboquerque was said to have
reacted with alarm when, a few months prior to the final seizure of the king-
dom by Portugal, he was advised that, in accordance with “certain intelligence”,
the king of Hormuz “had accepted the cap [headgear] and prayer of the Xeque
Ismael [Shah Ismail], which was a beginning of his coming in time to be lord of
the kingdom”.86 The Commentaries also mention that D’Alboquerque had been
informed that the King’s new governor “was a native of Persia, vassal of the
Xeque Ismael, having under his command within the city of Ormuz seven or
eight nephews who ordered everything, and these had it in their power, when-
ever they thought fit, to put the reigning king to death … and to deliver over
the kingdom to the Xeque Ismael; and when once the Xeque was in possession
it would be a difficult matter to put him out”.87 Earlier, in 1514, D’Alboquerque
had conveyed a message to the Hormuzi king that as he (D’Alboquerque) had
learned that “the Xeque Ismael was very desirous of getting possession of Or-
muz”, the king should “not consent to any armed men of the Xeque Ismael
entering into his lands”.88 Notwithstanding this warning, when D’Alboquerque
arrived in the Gulf in 1515, he was informed that the Hormuzi governor had
“risen up in rebellion, and seized the fortress and the king’s palace, and made
the king a prisoner … and was now in absolute possession of the land”.89 When
D’Alboquerque and the Portuguese fleet reached Hormuz itself and made their
intentions to enforce the 1507 treaty terms clear, however, events took another
course altogether; in brief, the king was released and ratified the treaty, the
rebellious Hormuzi governor was killed by the Portuguese and his Persian
supporters expelled from the island, and construction of the Portuguese fort,
which had never been finished, was re-started and quickly completed. More-
over, Persia at once proposed a treaty with Portugal which effectively acknowl-
edged Portuguese possession of Hormuz (see below).
It is difficult to interpret these events, or payment of the moqarrariyeh, as
demonstrating a pre-existing Persian suzerainty over Hormuz, as that term
may be understood. There are several reasons for this conclusion.

87 Ibid., Vol. 4, 134–135. The Commentaries also assert that concern over Shah Ismail’s in-
tentions towards Hormuz (and India) is what, more than any other thing, “compelled”
D’Alboquerque “to go and make a final settlement of the affair of Ormuz” rather than
pursuing the erection of a fort in Aden, on the Red Sea, the other trading gateway between
East and West. Ibid.
88 Ibid., Vol. 4, 117.
89 Ibid., Vol. 4, 136.
First, it is uncontested that neither Persia nor any of its subordinate regions
or provinces had ever succeeded in militarily seizing Hormuz prior to the Por-
tuguese conquest of the island kingdom. While physical occupation is not nec-
essarily a prerequisite of establishing a relationship of suzerainty, it is a clear
indication that the Kingdom of Hormuz enjoyed a level of independence from
Persia.
Further, there is a complete absence of any historical evidence that any
alleged Hormuzi submission to Persian sovereignty or control was ever ac-
knowledged or formalized through any type of agreement or treaty. No such
document bringing Hormuz under Persian sovereignty and control – of the
sort which the Portuguese formalized with the King of Hormuz in 1507 and
further ratified with the successor king in 1515 – is in the historical record or
referred to in historical sources. Any suggestion that the kingdom was a Persian
vassal is therefore not only unrecorded in any way, it is also subject to pure
speculation and conjecture as a matter of evidence.
Moreover, at the time Persia undertook the actions described above which
some might speculate constituted Persia’s seizure of control over the king-
dom, the previously agreed treaty between the King of Hormuz and Portugal
had never been renounced and was therefore still in effect, albeit not fully
observed.90 Indeed, it appears more accurate to describe these actions as
reflective of an attempt by Persia to undermine whatever sovereign rights
Portugal had managed to establish in Hormuz in 1507 rather than acts which
constituted the establishment of Persian rights.
In that respect (and depending on the authenticity of the account set out in
the Commentaries), while it may be true that the Hormuzi governor considered
himself to be a “vassal” of Shah Ismail and intended to “deliver over the king-
dom” to him after killing or otherwise disposing of the Hormuzi king, there is
no evidence that this “delivery” ever actually occurred, and moreover there is
no suggestion that the regent himself agreed to Persian suzerainty of any sort.
If anything, the king appears to have been opposed to such a plan for otherwise
there would have been no need to imprison him or enter into conspiracies to
take over the kingdom: the king could have voluntarily delivered the kingdom
to Persia himself. In other words, Persia cannot be said to have taken Hormuz
by conquest. That was not to happen for more than a hundred years after the
Portuguese conquest.
90 That the 1507 treaty was partially observed is borne out by the payment in 1514 by the King
of Hormuz to Portugal of part of the past-due tribute owed under that treaty. Albuquer-
que, Commentaries, Vol. 4, 116–117.
292 chapter 5
Those who would contend that the Kingdom of Hormuz, prior to its con-
quest by Portugal, was a vassal State under the control of Persia not only have
little in the way of concrete or positive evidence that this was the case, but such
an argument would also encounter difficulties on other evidentiary grounds.
These relate to two matters which are not consistent with the assertion that
Persia enjoyed a relationship of suzerainty, or control, over Hormuz at the time
it was conquered by Portugal. First, there is little doubt that, beyond the fact
that it had never conquered Hormuz, Persia itself did not have the capability
of militarily seizing or controlling the island kingdom or exercising any control
over its principal activities, which involved maritime trade. On the contrary,
Piacentini notes that at the end of the fifteenth and the beginning of the six-
teenth centuries, Hormuz had managed, partly by enforcing an embargo on
strategic raw materials needed for shipbuilding and repair to Persian ports, to
make the various political and commercial centers of power in Persia, includ-
ing the Safavids, “totally dependent on Hormuz for their mercantile traffic”.91
As noted by Floor, “[b]ecause the land-based rulers were not able to seize the
Hormuz revenues they tried to at least benefit from its trading operations by
attracting its commercial traffic and collecting the moqararriyeh generated
by that traffic.”92 As for the long-held ambition of various land-based Persian
power centers to seize Hormuz, Persia only succeeded in capturing the city un-
der Shah Abbas with the assistance of the fleet and heavy weaponry of the Brit-
ish East India Company more than a century after the Portuguese conquest.
A further inconsistency with the assertion that Persia exercised suzerainty
over Hormuz at the time of the Portuguese conquest is that, rather than react-
ing with a show of force against the Portuguese presence or a protest that it
had seized territory of a Persian vassal rightfully belonging to Persia, the evi-
dence demonstrates that the Persian Shah responded to Portugal’s decisive
conquest and subjugation of Hormuz and its possessions in 1515 by making a
number of requests which, although highly significant, in and of themselves
are not reflective of circumstances in which an empire has been aggrieved at
the loss of territory and treasure it holds rightfully, if indirectly, belong to it.
These requests, and the agreement reached by the parties, are discussed below.
This point brings us to what is perhaps the most significant indication that
it would be inaccurate to describe Hormuz as a Persian vassal prior to its con-
quest by Portugal. That is, that notwithstanding Persia’s powerful presence on
the mainland, the kingdom managed its internal and external affairs largely
free of any interference from any Persian government. Examples of this are
91 Piacentini, “Salghur Shah”, 10.

92 Floor, Persian Gulf, 71–72.
the establishment of an independent Hormuzi naval force, the conduct and

control of maritime trade throughout the Gulf, the maintenance of an inde-
pendent customs house and treasury in which Persia had no role, involvement
or entitlement, and the establishment of de facto control over ports at other
locations in the Gulf, including on the Omani peninsula and Bahrain, which
the Kingdom of Hormuz itself treated as vassals. As noted above, in certain
circumstances, it was Hormuz which exercised a level of control over Persia,
as was the case with its domination of the movement of mercantile traffic in
the Gulf. In short, this level of independence does not fit well with an assertion
that Persia had established a position of control over the Kingdom of Hormuz
to an extent that would render it a Persian vassal, particularly in light of the
notion of vassaldom as generally (albeit imprecisely) understood in interna-
tional law.
Finally, it must be noted that to extend such an assertion to include the fur-
ther claim that, due to the relationship of purported suzerainty between Persia
and Hormuz, the former enjoyed rights of ownership over the latter’s territorial
possessions (assuming these included, for example, the three disputed islands)
would require a further and unsupported step in the analysis. How the pur-
ported Persian suzerainty over Hormuz would have the legal consequence of
formally transferring Hormuzi territory to Persian sovereignty could only be
explained as the result of conquest and annexation, or cession. However, nei-
ther of these possibilities applies. As an historical matter, Persia did not suc-
ceed in conquering Hormuz until 1622, long after (not before) the Portuguese
conquest, and no related annexation of Hormuzi territory ever took place. As
for any purported cession of Hormuz’s territorial possessions to Persia, there
is no historical evidence that any such cession ever occurred, or was ever
suggested. This might be contrasted with the events which occurred when Por-
tugal conquered and subjugated the Kingdom of Hormuz in 1507/1515, which
almost certainly resulted in a transfer of Hormuz’s territorial possessions to
Portugal. This matter is dealt with in the next section.
Status of Hormuz’s Territorial Possessions after Its Conquest by

Portugal
The conquest of the Kingdom of Hormuz by Portugal was initially consum-
mated by a treaty drawn up in October 1507, the principal points of which are
set out above.93 The overriding principle of this treaty was that the King of
Hormuz “received” his kingdom and domains from the Portuguese as they had
been “dispossessed” or taken from him “by force of arms”, and that henceforth
93 See supra note 56 and accompanying text.

294 chapter 5
the King of Hormuz submitted himself in obedience to the King of Portugal as

his “vassal”.94 D’Alboquerque’s Commentaries include an account of the events
around Hormuz’s surrender and submission in 1507, which notes that the King
of Hormuz conveyed a message to D’Alboquerque that, following the destruc-
tion of the Hormuzi fleet and defenses, as well as the death of many of its
defenders and populace, “the kingdom, the city, and all its revenues, were his,
for he had gained them”.95 A passage from D’Alboquerque’s Commentaries
reflects the savagery of the battle for Hormuz which preceded the surrender as
the kingdom initially resisted the Portuguese demands:
Afonso Dalboquerque, not content with having routed and destroyed all
the king’s fleet, in order that nothing might remain undone, gave instruc-
tions to Afonso Lopez da Costa, Antonio do Campo, and D. Antonio de
Noronha, to go in their boats and give chase to some guard-boats that
were making off towards the mainland. And as they went favoured with
the victory which Our Lord had given them, they pursued them, and sent
all that they overtook to the bottom, and put to death all the people that
were in them, and to others they set fire, and these went on burning over
the sea, wherever the wind drove them, and it was a great sight to be-
hold. And Afonso Dalboquerque, with the other captains, went along the
beach, bombarding the suburbs, burning all the ships that were moored
94 Collecção de Tratados, Vol. 1, 1. See also Albuquerque, Commentaries, Vol. 1, 128–131, De

Faria y Sousa, Portuguese Asia, 130–132 and Floor, Persian Gulf, 93, where it is recounted
that the terms of the subjugation of the Kingdom of Hormuz included the submission of
the King of Hormuz to the King of Portugal, the erection of a Portuguese fortress at Hor-
muz, the payment of a yearly tribute and duty-free treatment for Portuguese merchan-
dise. According to the Commentaries, what D’Alboquerque “desired more than anything
else” was the erection of the fortress at Hormuz. Albuquerque, Commentaries, Vol. 1, 130.
“D’Alboquerque declared that he on his part had no doubt that the shutting of the straits
was the most important undertaking that could be performed throughout the whole of
India”. The King of Portugal had let it be known that such an achievement would be “most
to the service of the country for the fleet to undertake” to make sure that Persia under
Shah Ismail “could not possibly maintain his footing in it.” D’Alboquerque also empha-
sized that the Portuguese should “make a final settlement of the affair of Ormuz, for in
that city they would gain large sums to pay their necessary expenses, and a set-off for the
men’s wages, and when this were once carried out to a successful issue, from that time for-
ward he would get more ease and opportunity for penetrating the Red Sea and destroying
the fleet of the Sultan”, the Red Sea being, with the Gulf, the other principal trade route
between East and West, both of which the Portuguese wished to control. Albuquerque,
Commentaries, Vol. 4, 134–136.
to the shore; and they approached so close that from the window and
terraces the enemy wounded some of the men with arrows and stones;
and all the ships he met with in the sea, as they were collecting together
to moor themselves to the land, he took and set on fire, putting all the
people to death.96
The terms of the “treaty of submission” agreed by the King of Hormuz

(including the payment of the required yearly tribute and the construction of
a fort on the island of Hormuz), however, were not significantly observed until
1515 when D’Alboquerque’s fleet had to return to Hormuz to impose it on a
successor king.97 As recounted in the Commentaries, at an encounter between
D’Alboquerque and the kingdom’s governor, in representation of the new King,
on Palm Sunday 1515, both parties swore an oath to uphold the treaty of 1507,
with the representative of the King of Hormuz swearing “in his king’s name …
to be always in obedience to the King of Portugal”.98 It is elsewhere related that
D’Alboquerque then demanded receipt of the physical copy of the “Instrument
of the Submission” which had been agreed and retained by the Hormuzi king
in 1507 (the other copy having been sent to the King of Portugal): “All was con-
sented to, because there was no power to resist.”99 D’Alboquerque also ordered
that a Portuguese flag be raised over the Hormuzi king’s palace so “that it might
be known to every one that it was in obedience to the King of Portugal”, and
this was promptly done when the King of Hormuz “commanded his people
to fly the Portuguese flag from the loftiest pinnacle of his palace.”100 Notwith-
standing Hormuz’s absolute submission to Portugal’s conquest, D’Alboquerque
insisted on formally bestowing the kingdom and its domains on the Hormuzi
king, thus maintaining the king (and the kingdom) in place so long as he
remained “in obedience to the King D. Manuel, his lord, and adhere[d] to the
treaty which he had made.”101
That as part of its conquest over the Kingdom of Hormuz, Portugal became
sovereign over Hormuz’s territories appears clear from the terms set out in the
96 Ibid., Vol. 1, 119.

97 Upon arrival of the Portuguese fleet at Hormuz, and after D’Alboquerque made clear his
intention of enforcing the terms of the 1507 treaty, its king reportedly sent a message to
D’Alboquerque “begging him not to be angry, for he would send Reys Nordim, his gover-
nor, immediately, to consult with him, and would agree to everything in accordance with
the wishes of his lordship.” Albuquerque, Commentaries, Vol. 4, 143.
98 Ibid., Vol. 4, 145.
99 De Faria y Sousa, Portuguese Asia, 203.
101 Ibid., Vol. 4, 144.
296 chapter 5
“instrument of the submission”, or treaty, which was entered into in 1507, and
then ratified and more fully observed beginning in 1515. Although the treaty ap-
pears to have been written in general and broad language, it clearly stipulated
that Portugal had “dispossessed” the kingdom of Hormuz and its domains from
the King of Hormuz, who then “received” the kingdom and its domains from
Portugal as a “vassal” of the King of Portugal. The actions taken by the Portu-
guese in 1515 demonstrated unambiguously that Portugal ruled over Hormuz
and its king, who swore obedience to the Portuguese King.
Thus, although the King of Hormuz remained formally in place, tribute pay-
ments owed to the Kingdom of Hormuz from the kingdom’s vassals and do-
mains, such as Bahrain, appear to have continued to be paid to the kingdom,
and the kingdom continued to assume responsibility for the “governance” of
the city of Hormuz and, for the time being, the running of the customs house
through which all official Hormuzi customs revenues flowed,102 as made clear
from the instrument of submission, as well as D’Alboquerque’s Commentaries
and other contemporaneous sources, there is no doubt that Portugal assumed
both formal and de facto sovereign control of Hormuz and its territorial pos-
sessions, such as those along the Omani coast, and determined what course
its affairs would take. The import and understanding of the parties, as well
as the practical effect of Portugal’s conquest, was that Portugal had taken ab-
solute dominion and control over Hormuz’s realm, and that the Kingdom of
Hormuz became a vassal State, both formally and in practice, under the con-
trol of Portugal.103
Apart from the explicit terms set out in the instrument of submission, per-
haps the most clear manifestation of Hormuz’s subjugation was the unilateral
imposition and periodic increase in the amount of the yearly tribute which
the “kingdom” was forced to pay to Portugal (in 1523, 1529, 1541),104 as well as
its taking greater control over the kingdom’s revenues by installing Portuguese
administrators in the Hormuz customs house (an initial attempt in 1521 led
to a revolt and was reversed, but a second effort in 1543 was more successful,
with Portuguese officials this time wresting significant control).105 As noted
102 For example, it was related that in 1522, the King of Hormuz, Mahmud Shah, was assured
that the “Portuguese commanders should not meddle with the Government of his City”.
De Faria y Sousa, Portuguese Asia, 266.
103 Floor notes that the “fact that Albuquerque conferred the title of king on Seyf al-Din ii
[king of Hormuz at the time of the conquest] shows that by this treaty the king of Hor-
muz had surrendered his kingdom to the king of Portugal who then returned it to the king
of Hormuz to rule it as his vassal.” Floor, Persian Gulf, 93.
104 Ibid., 231.
105 Ibid., 109, 231.
by Floor, Hormuz had become a “cash cow” for the Portuguese Estado which,
ultimately, led to the bankruptcy of the King of Hormuz.106
Notwithstanding the sovereignty which Portugal almost undoubtedly
obtained over the territorial possessions of the Kingdom of Hormuz, as noted
above, the available evidence strongly suggests that these territories did not
include the three disputed islands. For purposes of this work, therefore, the
conquest of Hormuz by Portugal did not affect the territorial status of those
islands.
Persian “Cession” of Hormuz to Portugal

At the time D’Alboquerque and the Portuguese fleet returned to Hormuz in
1515 to enforce the terms of conquest which had been originally agreed with
its king in 1507, Persia attempted to intervene, sending an ambassador of Shah
Ismail to negotiate with the Portuguese on a number of matters of importance
to Persia. Some scholars refer to the agreement which was reached as a cession
of the Kingdom of Hormuz by Persia to Portugal, while others postulate that
this cession included the disputed islands.107 The historical evidence does not
support such an assertion. Perhaps most obviously, and recalling the principle
that a party cannot transfer a better title than it already has,108 Hormuz was
not a Persian possession and not Persia’s to cede, and even if it did purport to
do so, such a cession would therefore have been ineffective. As there is no per-
suasive evidence that any of the disputed islands were territories of the King-
dom of Hormuz in any case, any suggestion that Persia ceded those islands to
Portugal is an even more remote possibility. Secondly, however, neither the re-
quests made by the Persians, nor the concessions granted by Portugal, at all ap-
pear to contemplate any cession of territory or control over the kingdom itself.
These points are summarized in D’Alboquerque’s Commentaries. There, it is
stated that Persia requested (i) the continuation of the moqarrariyeh payments
to Persia; (ii) the assistance of the Portuguese fleet in transporting a certain
number of Persians to “the land of Arabia, which is on the coast whereon lies
Barem [Bahrain] and Catife [Al-Katif]”, presumably in connection with Persian
106 Ibid., 231.

107 For example, Newman states that in 1515, Shah “Ismail was also unable to prevent Por-
tuguese consolidation of control over the Persian Gulf island of Hormuz and signed a
treaty ceding control to Portugal and in return for a military-commercial anti-Ottoman
alliance.” Andrew J Newman, Safavid Iran, Rebirth of a Persian Empire (London: I.B. Tauris
& Co Ltd, 2009), 21. See, also, Bavand, “Legal Basis”, 79–80.
108 See chapter 3, discussing cession and the principle of nemo plus juris transferre potest
quam ipse habet (no one can transfer a better title than it already has).
298 chapter 5
ambitions to conquer that area, particularly Bahrain; (iii) the assistance of the
Portuguese fleet in capturing a place which a certain rebellious Persian vassal
had seized; and (iv) the establishment of a harbour in India “for the Persian
merchants to trade their merchandise, and permission to establish a factory
house in Ormuz.”109
D’Alboquerque rejected the first of these demands outright,110 while he
equivocated in responding to the other three requests.111 If the account set out
in the Commentaries is accurate, the Persian requests may very well have re-
flected its recognition or acquiescence to the Portuguese conquest of Hormuz
and its effective annexation into the Portuguese realm. At a time when Persia
was itself seeking to bring Hormuz into its own empire as a vassal, such acqui-
escence may have been difficult to countenance. But these considerations and
its decision to acquiesce to the Portuguese conquest and control over Hormuz
are not equivalent to a cession of the kingdom or its territories, nor do they
involve the transfer of any territorial or sovereign rights from Persia to Portu-
gal, which is the most fundamental feature of any territorial cession.112 Beyond
these considerations, there is no other evidence which would indicate or sug-
gest that any such purported cession occurred or was attempted. Given that,
as concluded above, the Kingdom of Hormuz did not in any case pertain to
Persia as a vassal State, there is little reason to believe that Persia would have
sought or actually attempted to carry out a cession of that territory to Portugal.
Moreover, in light of the conditions under which Portugal conquered Hormuz,
and the terms set out in the instrument of submission, acknowledging that
Portugal had conquered and “dispossessed” the kingdom and its domains by
“force of arms” from its king who was thereafter to “receive” them as a “vassal”
of the King of Portugal,113 the assertion that at the same time these events were
occurring Portugal received the same kingdom from Persia as a cession makes
no reasonable sense.

110 Ibid., Vol. 4, 176: “As for the first, demanding the dues upon merchandise coming from
Persia, payable at Ormuz, they must be his; for the expenses that the King of Ormuz was
compelled to spend upon his army and fleet, for the maintenance of his kingdom, were so
great (besides the tribute money paid to the King of Portugal his lord), that were it not for
the dues upon the merchandise coming from Persia and other parts, the King of Ormuz
could not support himself.”
111 For example, he expressed a willingness to accede to the second request provided that “no
untoward event should be perpetrated … in the island of Barem [Bahrain]”, which was in
all likelihood the very purpose behind the Shah’s request. Ibid., Vol. 4, 176–177.
112 Jennings and Watts, Oppenheim’s International Law, 679. See also chapter 3.
Portuguese “Occupation” of the Islands

If it did not acquire the islands as part of its conquest of the Kingdom of Hor-
muz, which would clearly appear to be the case, the question remains whether
Portugal may have obtained possession of the islands through occupation at
some time during its presence in the Gulf in the sixteenth and seventeenth cen-
turies. While given its domination of the seas around the southern Gulf during
this period makes this a reasonable question, for much the same r easons set
out above, such a claim could not, if it were to be asserted, be established on
the basis of the historical evidence which has been found. In summary, there is
no evidence or indication in that historical record that Portugal ever claimed
or in fact took possession of any of the three disputed islands, or exercised
any authority on them. Nor is there any evidence that it was ever interested
in exercising any authority over any of the islands. Any notion that Portugal
somehow acquired sovereignty over the islands on the basis of occupation or
the “continuous and peaceful display of territorial sovereignty” may therefore
be dismissed. Indeed, the absence of any evidence that Portugal exercised any
authority over the islands during its long presence in and domination of the
southern Gulf may be considered an omission which positively demonstrates
that it did not have, or wish to have, sovereignty over those islands. In this
regard, the rejection by Judge Huber of the argument advanced by the United
States in the Island of Palmas case comes to mind. In rejecting the u.s. claim
that Spain had historical sovereignty over the disputed island (and subse-
quently ceded it to the u.s.), he noted that “no precise elements of proof based
on historical facts as to the display or even the mere affirmation of sovereignty
by Spain over the Island of Palmas have been put forward” and that “the docu-
ments laid before the Arbitrator contain no trace of Spanish activities of any
kind specifically on the Island of Palmas.”114 The same absence of proof and
conclusions would appear to hold true for any assertion that Portugal had sov-
ereignty over any of the three disputed Gulf islands. Such an argument would
therefore also have to be rejected.
Did Portugal Subsequently Cede the Islands to Persia?
It has been contended that, several years after its defeat at Hormuz in 1622, and
in exchange for acquiring the right to establish a trading emporium at a port
on the Persian coast, Portugal formally ceded the disputed islands to Persia,
114 Island of Palmas case, 848, 851.

300 chapter 5
a llowing Persia to recover sovereignty “after 107 years”.115 This assertion is un-
sustainable for a number of reasons. First, as discussed in the preceding sec-
tions of this chapter, the available evidence leads to the conclusion that title to
the disputed islands (i) was not held by the Kingdom of Hormuz, (ii) for that
reason was not, and could not have been, obtained by Portugal through its con-
quest of the Kingdom of Hormuz, (iii) was not obtained by Portugal through
some other mode of acquisition, such as occupation, and (iv) therefore could
not have been ceded by Portugal to Persia because the islands were not Portu-
gal’s to give. On this last point, Jennings has described the basis of a cession of
territory under international law as bilateral and derivative: “The title it con-
fers is derivative in the sense that its validity is dependent upon the validity of
the title of the ceding State”.116
Beyond these points, a further compelling reason for rejecting the as-
sertion that Portugal ceded the disputed islands to Persia is that, while an
agreement was reached between Portugal and Persia presumably in 1625117
under which, among other matters, the Portuguese were allowed to estab-
lish a trading emporium on the Persian coast (they selected the port of
Kong), the agreement itself made absolutely no mention of a cession of ter-
ritory by Portugal.118 Rather, the agreement reflects terms which are more
in the nature of a truce, and which also lays out detailed terms concerning
115 See, e.g., Mehr, Colonial Legacy, 34, 36; Bavand, “Legal Basis”, 80.
116 Robert Y. Jennings, The Acquisition of Territory in International Law (Manchester: Man-
chester University Press, 1963), 16. See also, Island of Palmas case, 842, where Judge Hu-
ber stressed that “it is evident that Spain could not transfer more rights than she herself
possessed”.
117 While a number of sources assert that this agreement was concluded in 1625 (see, e.g.,
J.G. Lorimer, Gazetteer of the Persian Gulf, Oman and Central Arabia (London: Archive Edi-
tions, 1986), Vol. 1, 29; George N. Curzon, Persia and the Persian Question (London: Long-
mans, Green and Co., 1892), Vol. 2, 419; Commentaries of Ruy Freyre de Andrada, 198–200),
the surviving copies of the agreement appear to be undated. Other authors, like Floor,
believe the agreement must have been concluded around 1630 and that the chronology in
Commentaries of Ruy Freyre, which seems to imply the year 1625 is “unclear and confused”.
Floor, Persian Gulf, 429–430. The precise date of the agreement does not affect the analy-
sis set out herein regarding the contents of its terms.
118 See Floor, Persian Gulf, 431–432, which sets out a full English translation of the agreement.
See also, William Foster, The English Factories in India, 1630–1633 (Oxford: Clarendon Press,
1910), 140–141, where a synopsis of the agreement (“capitulacions”) is set out as follows:
“The Portugall begins to be in favour againe with the Chon of Xiraz [Khan of Shiraz]; …
by capitulacions granted them (the coppy whereof translated wee send you) hath license
to trade att Portt Counge [Kung], which is three daies journey from Gombroon in the
kingdome of Pertia, and there hath half the customs given him for procurement of trade
commercial arrangements for trade and commerce in the Gulf. The context
in which the agreement was entered into involved the relentless harassment
of Persian shipping and coastal towns which, following its expulsion from
Hormuz in 1622, the Portuguese fleet under its commander Ruy Freyre de
Andrada had unleashed. According to Floor, the “Safavids were unable to
defend their ships and coastal settlements, because they lacked a fleet to op-
pose the Portuguese”.119 In the Commentaries of Ruy Freyre de Andrada, it is
asserted that the offer of a truce came from Persia, “in accordance with orders
received from the Sultan of Persia” and that it asked the Portuguese:
[T]o suspend the war along that coast for the space of a year, during
which interval the Portuguese might choose one of the Persian ports –
whichever the General [Ruy Freyre de Andrada] might select – wherein
to make a Customs-House, to which our ships could freely come to buy
and sell, and that half the royal dues thereof should belong to the King of
Portugal, and the other half to the Sultan.120
These terms are consistent with the agreement, which provides more specifi-
cally that the Portuguese would force trading vessels to directly call at Kong
rather than at the Arabian ports of Basra, Qatif or Mokha, and “in return, the
Portuguese will receive the moiety of the customs of Kong”.121 Again, no men-
tion of a cession of territory is made in the agreement, or in any contempora-
neous accounts of the agreement, and any assertion that it contained any such
cession must therefore be considered inaccurate.122
to that port by passing all jouncks and India vessells under convoy of his friggotts in the
tyme of our shipping att portt.”
119 Floor, Persian Gulf, 429. The Commentaries of Ruy Freyre de Andrada provide a more dra-
matic description of the conditions which these attacks had brought: “The Persians were
reduced to such a state of abject terror, that on sighting any sail at sea they fancied it to
belong to the General Ruy Freyre’s Armada, and with his name they hushed their babes at
the breast, whilst the peoples inhabiting the border districts of the Persian coasts obeyed
him more readily than the Sultan, both because they saw themselves delivered from the
intolerable yoke of the latter, as because they freed themselves from the perpetual fear in
which they otherwise were.” Commentaries of Ruy Freyre, 198.
120 Commentaries of Ruy Freyre, 198–199.
121 Floor, Persian Gulf, 431.
122 In connection with this agreement, while its terms do not include any cession of ter-
ritory, historical confusion has been generated by the mention in several sources that
some transfer of territory may have been contemplated. These sources include Lorimer,
who states that the agreement “confirmed” “the transfer of Hormuz and Qeshm to
302 chapter 5
Did Persia Acquire Possession of the Islands through Conquest in

1622?
The Portuguese control over Hormuz came to an abrupt and violent end in
May 1622.123 The downfall of Portugal’s hold over the island was brought about
through an assault by the forces of Shah Abbas, supported by naval units of the
British East India Company under an agreement which provided, among other
matters, that the English would share in half the spoils.124 A fortress, hastily-
built by the Portuguese on near-by Qeshm island, was first attacked and over-
come in January 1622.125 The terms of surrender of that fort did not contain any
provision for the surrender of other territories held by the Portuguese or their
Shah Abbas” (Lorimer, Gazetteer of the Persian Gulf, Vol. 1, 29), and Curzon, who states
that it “restored” to Shah Abbas “his coast possessions” (Curzon, Persia and the Persian
Question, 419). While both of these statements are inconsistent with the terms of the
agreement itself and therefore evidently inaccurate, it might also be noted that neither
asserts that a cession of any of the three disputed islands to Persia occurred, particularly
that of Lorimer which refers only to Hormuz and Qeshm islands. As Portugal had lost
its last possession on the Persian coast (at Bandar Abbas) in 1615 (“By the loss of their
fort at Gombrun [Bandar Abbas], the Portuguese were deprived of their last foothold on
the mainland and the Persians became yearly more aggressive” – see, Commentaries of
Ruy Freyre, Introduction, xxii), it is also difficult to see what possessions were supposedly
included in the the reference made by Curzon. It may possibly be the case that this refer-
ence reflects a confusion concerning one of the provisions of the agreement, which stipu-
lated that as Portuguese actions had allowed various Persian ports to “fall into disuse”, the
Portuguese and Persia would “try to revive them again”.
123 See, e.g., Commentaries of Ruy Freyre, Appendix X (Monnox, “History at large of the taking
of Ormuz Castle”), 294.
124 One translation of the agreement sets out the first condition of the agreement as follows:
“First, that, God givinge us the victory over our enemies that wee shall overcome this
contrye and citty of Ormuz, the halfe of all that shall bee found within the cittye, within
the houses, and within the castell shall remaine, the one halfe to us, the other halfe to the
English.” William Foster, The English Factories in India 1622–1623. A Calendar of Documents
in the India Office and British Museum (Oxford: Clarendon Press, 1908), 16.
125 There has been historical debate over the reasons why the Portuguese proceeded to con-
struct a new fortress on Qeshm island in 1621 when such an action was bound to provoke
Persia and even more inevitably lead to an assault against it and Hormuz itself. It is clearly
set out in the Commentaries that Ruy Freyre de Andrada, the Portuguese commander, was
obligated to construct the fort on the instructions of the Portuguese king. Moreover, sug-
gestions have been made that, as Qeshm island was the main source of water for Hormuz,
securing the Portuguese presence there through construction of a fortress was of vital
importance in the event of conflict with Persia. As resolving this debate strays from the
topic of this work, it has not been pursued further herein.
Hormuzi vassal, and cannot in and of itself be read as affecting broader territo-
rial rights. Next, the Persian and British forces assaulted Hormuz itself, which
capitulated after a siege which lasted almost three months. Edward Monnox,
the agent of the British East India Company who was present during the siege
and at the surrender, wrote that the terms under which the Portuguese capitu-
lated related primarily to ensuring their personal survival. He wrote that:
[T]he Portugals (whose meere necessity and pitiful estate wherein they
were, had forced them to surrender their Castle upon any conditions,
whereby they might have any hope at all to save their lives, which stood
then in great hazard to be spoiled by the Persians) sent this morning
to give notice unto us, they were contented to put themselves into our
hands, on condition that we should give them means to be transported
either for Muscat or India.126
As with the surrender of the fortress at Qeshm island, the terms of surrender
at Hormuz did not include any provisions related to the surrender of rights
related to other territories or properties outside of those held at Hormuz, nor
broader concessions which could be read as affecting other rights, including
territorial rights.127
The question then remains whether the surrender and capitulation of
the Portuguese, and their Hormuzi vassal, in May 1622 may be interpreted as
encompassing the conquest of Portuguese (or Hormuzi) territorial possessions
or rights by Persia beyond Qeshm and Hormuz islands, the only two locations
126 Commentaries of Ruy Freyre, Appendix X (Monnox, “History at large of the taking of
Ormuz Castle”), 292–293.
127 According to Commentaries of Ruy Freyre, 168, the document of surrender included only
“(1) That the King, the Princes and the Vizier, should leave with all their retinue, and
embark with everything which they could carry with them. Likewise the Priests should
leave with all their images and Church ornaments, whilst the Moors should withdraw
from the battlefield and retire to the City, leaving their positions unoccupied. (2) That the
white women and children should leave veiled, without being scanned or searched. (3)
That the English would station their men at the gate of the fort and elsewhere to guard the
Portuguese until the latter were all embarked. (4) That the Captain would leave with his
weapons and male and female slaves and servants, besides all his goods and chattels, and
6 chests, without anyone laying a hand upon him; and they were to provide him with a
ship to land him in Muscat or wherever else he might wish. (5) That all Portuguese soldiers
should leave with their weapons and whatever else they could carry with them. (6) That
all the rest of the people who were within the Fortress , should leave taking with them all
they could carry. (7) That they would have ships ready to take all people to Muscat.”
304 chapter 5
which were physically seized in the battles. For a number of reasons, there is
little reason to consider that this could have been the case, or that any of the
parties involved considered it to be the case, and even less reason to consider
that it could lead to a conclusion that the conquest of Hormuz may have some-
how encompassed, legally or otherwise, the acquisition of the three disputed
islands by Persia. Most obviously, if, as concluded by the analysis set out above,
none of the three islands ever actually pertained to the Kingdom of Hormuz,
then neither its conquest nor the defeat of its controlling power Portugal at
the battle of Hormuz, could have affected the territorial status or rights over
those three islands in any case. Beyond this reason, however, there are other
reasons why the military victory of Persia and Britain at Qeshm and Hormuz
in 1622 would not have affected sovereign rights over territories beyond those
two locations, particularly those related to the three islands:
(a) First, the defeat of the Portuguese and their Hormuzi vassal at Hormuz
and Qeshm was not accompanied by the signing of any document by
which any territories (including those two locations) were formally sur-
rendered, transferred or ceded to Persia. While the capital Hormuz and
the Portuguese fort at Qeshm island were physically captured and came
under de facto Persian possession, no other territories which might be
considered to have been owned by Portugal (or the Kingdom of Hormuz)
were occupied or physically captured, or otherwise ceded or annexed by
Persia in 1622. Thus, even if the three disputed islands were considered
part of Hormuzi territory, they were not formally transferred to Persia as
a result of its victory at Hormuz in 1622. This may be contrasted with the
“instrument of the submission” signed by the Kingdom of Hormuz with
Portugal in 1507 and ratified in 1515, by which the Hormuzi kingdom was
“dispossessed” by and in favor of Portugal.
(b) That following its defeat at Hormuz, Portugal retained possession of
other territories it had conquered and taken possession of from the King-
dom of Hormuz through the “instrument of submission” agreed in 1507
and ratified in 1515, particularly those on the Omani coast such as Mus-
cat, demonstrates that its defeat was not part of a broader surrender of
territorial rights it held in the Gulf. In fact, from its stronghold of Mus-
cat, Portugal undertook a vicious naval campaign against Persian ports
and shipping in the years following its ouster from Hormuz, and aimed to
retake the island itself around 1630, which however failed.
(c) A further evidentiary reason which points to the conclusion that
the encounters at Hormuz must be viewed as having been limited to
the capture of Hormuz itself and the acquisition of rights related

to the city and the island may be seen in the terms of agreement be-
tween the Persians and the British under which they agreed to combine
forces to oust the Portuguese. Those terms are related only to the island
of Hormuz itself, the division of any possessions found there as
“spoils”, the stationing of troops or representatives of the parties on the
island, the conduct and duty-free treatment of trade passing through
the island, the treatment of prisoners taken in the battle and the allocation
of expenses for the conduct of the hostilities.128 No mention is made of
any further or broader objectives, reflecting the limited aims of the attack.
(d) Finally, and in relation specifically to the three disputed islands, it is sig-
nificant that Persia did not otherwise take possession or occupy any of
those islands following its victory at Hormuz in 1622. Indeed, there is no
evidence that it paid any official attention to any of the islands for the
next several hundred years, that is until the late nineteenth century. This,
again, demonstrates that its victory at Hormuz in 1622 cannot be tied to
any purported establishment of control or possession of the disputed
islands, or anywhere else beyond Qeshm and Hormuz islands. This aspect
of the history of the dispute will be discussed in the following chapter.
Were the Kingdom of Hormuz or Portugal Sovereign over the

Islands by Virtue of Geographical Considerations?
There remains a final point related to the time period generally referred to in
this chapter (the fifteenth to the early seventeenth centuries) which has not
been addressed. This relates to the possibility that the Kingdom of Hormuz or
Portugal might be deemed to have been sovereign over the disputed islands
by virtue of geographical considerations. Such an assertion would be based
roughly on the notion that, notwithstanding their not having claimed or physi-
cally possessed the islands or exercised sovereign activities there, the juridical
effect of having established sovereign possession and control of various other
southern Gulf islands (most specifically, Hormuz itself), might be considered
to have extended to other islands in the same geographical vicinity, including
the three disputed islands, either on the basis that all of such islands consti-
tuted some sort of geographical or archipelagic unit, sovereignty over which
128 Foster, English Factories in India 1622–1623, 16–17.

306 chapter 5
must be regarded as an indivisible whole, or on the basis of the principle of

“contiguity”.129
The role and scope of this and the closely-related geographical doctrine of
“proximity”130 under international law have been discussed in chapter 3 above.
As made clear there, the notion that these doctrines might serve as an inde-
pendent and distinct means of acquiring title over terra nullius was decisively
rejected in favor of the principle of “effective occupation”. This is explained by
Waldock as follows:
[B]y the end of the [nineteenth] century, international law had deci-
sively rejected geographical doctrines as distinct legal roots of title and
had made effective occupation the sole test of the establishment of title
to new lands. Geographical proximity, together with other geographical
considerations, is certainly relevant, but as a fact assisting the determi-
nation of the limits of an effective occupation, not as an independent
source of title.131
In the Island of Palmas case, Judge Huber flatly stated that the “title of contigu-
ity, understood as a basis of territorial sovereignty, has no foundation in inter-
national law.”132 He also made this relevant pronouncement:
Although States have in certain circumstances maintained that islands

relatively close to their shores belonged to them in virtue of their geo-
graphical situation, it is impossible to show the existence of a rule of
positive international law to the effect that islands situated outside terri-
torial waters should belong to a State from the mere fact that its territory
129 Contiguity is “the name given to the doctrine sometimes invoked in support of claims to
islands lying near to a state’s territory but outside its territorial waters [where] [t]he mere
proximity of the island to the claimant state is represented as a geographical connexion
between the two lands and as a ground for including the island within the sovereignty of
the nearby state”. See C. Humphrey M. Waldock, “Disputed Sovereignty in the Falkland
Islands Dependencies”, British Yearbook of International Law 25 (1948): 311–353, 342. See
further chapter 3.
130 “Proximity” is a doctrine similar to contiguity which purports to allow a claim over an
extended territorial landmass based solely on the possession of a contiguous part of that
landmass. Cf. Waldock, “Disputed Sovereignty”, 339.
131 Ibid., 342.
132 Island of Palmas case, 869. See also, Eritrea/Yemen arbitration, where the Tribunal noted
that notions such as proximity, contiguity and continuity are “well known in internation-
al law as not in themselves creative of title”. Territorial sovereignty and Scope of Dispute
(Eritrea/Yemen), Award of October 9, 1998, riaa 22 (1998) 209, para. 462.
forms the terra firma (nearest continent or island of considerable size).

Not only would it seem that there are no precedents sufficiently frequent
and sufficiently precise in their bearing to establish such a rule of interna-
tional law, but the alleged principle itself is by its very nature so u ncertain
and contested that even Governments of the same State have on different
occasions maintained contradictory opinions as to its soundness. The
principle of contiguity, in regard to islands … as a rule establishing ipso
iure the presumption of sovereignty in favour of a particular State [would]
be in conflict with what has been said as to territorial sovereignty and as
to the necessary relation between the right to exclude other States from a
region and the duty to display therein the activities of a State. Nor is the
principle of contiguity admissible as a legal method of deciding ques-
tions of territorial sovereignty; for it is wholly lacking in precision and
would in its application lead to arbitrary results.133
Judge Huber also noted that actual display of sovereignty would prevail over
the principle of contiguity:
It is, however, to be observed that international arbitral jurisprudence

in disputes on territorial sovereignty (e.g. the award in the arbitration
between Italy and Switzerland concerning the Alpe Craivarola; Lafon-
taine, Pasicrisie Internationale, pp. 201–209) would seem to attribute
greater weight to – even isolated – acts of display of sovereignty than
to continuity of territory, even if such continuity is combined with the
existence of natural boundaries.
…
[An] inchoate title, based on display of State authority, would, in the opin-
ion of the Arbitrator, prevail over an inchoate title derived from discov-
ery, especially if this latter title has been left for a very long time without
completion by occupation; and it would equally prevail over any claim
which, in equity, might be deduced from the notion of contiguity.134
With respect to a group of islands, the Island of Palmas case made a further
relevant comment bearing in mind that they could be considered a “unit” but
insisting that eventually the actual display of sovereignty must be felt through
the whole territory:

134 Ibid., 855, 870.
308 chapter 5
As regards groups of islands, it is possible that a group may under certain

circumstances be regarded as in law a unit, and that the fate of the
principal part may involve the rest. Here, however, we must distinguish
between, on the one hand, the act of first taking possession, which can
hardly extend to every portion of territory, and, on the other hand, the
display of sovereignty as a continuous and prolonged manifestation
which must make itself felt through the whole territory.135
Regarding this comment on the “unity” of a group of islands, this must be

somehow demonstrated. Constituting “in law a unit” whose “fate” is intercon-
nected would clearly require a showing that the group of islands in question
have a shared legal or sovereign history and have been generally regarded as
co-existing, perhaps through a common leadership, population or economy.
Such parameters were indicated by the tribunal in the Eritrea/Yemen arbitra-
tion, which found that “after examination of all relevant historical, factual and
legal considerations”, the Mohabbakahs constituted a group of islands which
had “always been considered as one group, sharing the same legal destiny.”136
While the development of the principle of effective occupation since the
nineteenth century, and the role which geographical considerations have in
determining its limits (rather than in establishing some independent grounds
of title), has been the subject of both judicial and arbitral decisions, as well
as scholarly debate, the status or existence of geographical doctrines as inde-
pendent roots of title prior to the nineteenth century has not been as widely
discussed. Judicial and scholarly views, however, point to its non-acceptance at
that time as well. Waldock suggests that the notion that these doctrines could
be used to establish an independent basis of title over terra nullius was essen-
tially a creature of the nineteenth century: “They were invoked primarily to
mark out areas claimed for future occupation.”137 In the quote extracted from
the Island of Palmas case mentioned above, Judge Huber rejects the notion
that such a doctrine ever existed under international law. Accepting that some
act of appropriation (even where a symbolic act may have given rise to an
135 Ibid., 855.

136 Eritrea/Yemen arbitration, para. 475. The Chamber of the icj in the Land, Island and Mari-
time Frontier Dispute case also took into account the unity or dependency of two islands
and held that the island of Meanguerita was a dependency of the island of Meanguera
in light of “[t]he small size of Meanguerita, its contiguity to the larger island, and the
fact that it was uninhabited.” Land, Island and Maritime Frontier dispute (el Salvador/
Honduras: Nicaragua intervening), icj Reports 1992, 351, 570.
inchoate title) was required to confirm the acquisition of title over terra nullius
is inconsistent with the notion that the acquisition of sovereign title may be
deemed to exist by the mere proximity of one territory (or island) to another.
Other international judgments (albeit limited in scope) which have called
for the determination of sovereign territorial rights before the nineteenth cen-
tury, in particular starting from the middle ages, also appear to have rejected
the notion that “proximity” constituted a valid and independent basis of ter-
ritorial sovereignty in that era. For example, the pcij in the Legal Status of
Eastern Greenland case, at the different historical stages in which it analyzed
who was sovereign over Greenland, reaffirmed that at all these various stages,
the principle of proximity alone was not enough basis to found a valid title
to territory. Thus, with respect to the thirteenth and fourteenth centuries, the
Court found that Norway’s sovereignty in Greenland was not confined to the
two Nordic settlements it had established there.138 The basis for this finding
was the existence of a law in effect at that time requiring the payment of fines
to the King of Norway for offences committed in areas of Greenland outside
of those two settlements, indeed throughout the territory.139 The Court, there-
fore, was prepared to recognize Norway’s sovereignty over Greenland as of that
early historical point, but only on the basis that it had exercised some State ac-
tivity, or “jurisdiction”, beyond the area of its settlements, rather than on a basis
of “proximity” alone. Similarly, at a later point in the history of the sovereignty
dispute over Greenland (1721–1814), the pcij concluded that at that particular
time the King of Denmark and Norway – both kingdoms were united at the
time – had displayed his authority “to an extent sufficient to give his coun-
try a valid claim to sovereignty and that his rights over Greenland were not
limited to the colonized area.”140 The sovereign acts that demonstrated that
the King’s sovereignty was not restricted to the colonized area included the
granting of a monopoly of the trade over all the island, legislation to enforce
that monopoly and Ordinances containing a “prohibition of injurious treat-
ment of the Greenlanders and this was not limited to the colonies, but oper-
ated in Greenland as a whole.”141 The Court arrived at the same conclusion
with respect to the nineteenth and early twentieth centuries, by holding that
138 Legal Status of Eastern Greenland, pcij, Ser. A./B., No. 53 (1933), 25–26. See also, Waldock,
“Disputed Sovereignty”, 343 (“The judgment of the Permanent Court in the Eastern Green-
land case does not, it is submitted, conflict at all with the view of Judge Huber as the non-
legal character of the proximity doctrines.”).
139 Legal Status of Eastern Greenland, 26–27, 46.
140 Ibid., 52.
141 Ibid., 48.
310 chapter 5
Denmark had displayed State activity over the whole island and not just in the
colonized area.142 These State activities included granting a concession in 1863
for “trading, hunting, mining, etc.”, “concessions for the erection of telegraph
lines and the legislation fixing the limits of territorial waters in 1905”, legisla-
tion regulating the hunting and fishing in 1925, amongst others.143
The notion that the disputed Gulf islands might be deemed to have been
encompassed within the sovereign territory of Hormuz, before or after the
Portuguese conquest, on the basis of geographical considerations alone
is therefore not sound as a matter of international law. There are a number
of other reasons which would also make the hypothetical application of any of
these geographical doctrines (including contiguity and the supposed unity of
a group of islands as an indivisible sovereign whole) during the sixteenth and
seventeenth centuries, whether as an asserted independent source of title to
the disputed islands or as demonstrating a natural extension of the effective
control exercised on Hormuz island to the disputed islands, unreasonable and
far-fetched. Most fundamentally, there is no evidence that during this period
any claim to any of the disputed islands was ever made by either the Kingdom
of Hormuz or Portugal, nor did either of them advance any contention that
they held title to any islands in the southern Gulf on such a basis or otherwise
express an intention to occupy or possess the islands. To attribute such a claim
or contention to either of such parties five or six centuries later without any
evidence that any such claim had ever been made or contemplated, or that
any of such parties actually expressed any intention to possess the islands at all
would, therefore, as a preliminary matter rest on the flimsiest of grounds, if not
a false premise, and for that reason be unsustainable. In this respect, it must be
recalled that these geographical doctrines, even in their most liberal and broad
142 Ibid., 52–64. See also, Waldock, “Disputed Sovereignty”, 343–344 (“[T]he the Eastern
Greenland case presents no difficulty and no conflict with the principle of effective oc-
cupation. The Court did not hold Denmark to have sovereignty over Eastern Greenland
merely by reason of it being a continuation of other territory possessed by Denmark; nor
did it do so merely because Greenland, being an island, is a geographical unity. The Court
held Denmark to have actually displayed state authority in regard to the whole of Green-
land, slight though the impact of that authority might have been in the contested part of
the island. It treated Denmark as having shown not a constructive but an actual ‘occupa-
tion’ of Eastern Greenland. The geographical unity of Greenland was an important fact
in assessing the limits of Denmark’s state activity, but it is plain from the judgment that
geographical continuity would not have availed Denmark in the least if she had not estab-
lished some state activity displayed in regard to the whole island.”) (emphasis in original).
143 Legal Status of Eastern Greenland, 52–53, 62.
interpretations, are but an extension of the general doctrine of the acquisition

of terra nullius by occupation. As such, their application would have required
that the purported claimant actually had the intention, or animus, to possess
the islands. As noted above, no such evidence has ever surfaced.
Nor, as mentioned previously in this chapter, is there any clear evidence
that the Kingdom of Hormuz or Portugal exercised any acts of sovereignty on
the islands or which may be said to have “made themselves felt” thereon. The
absence of such evidence would remove from consideration any notion that a
claim to the islands on the basis of geographical considerations (if it had been
made or envisioned) was ever consummated or completed so as to confer title
under the reasoning of the pcij in the Legal Status of Eastern Greenland case,
or Judge Huber’s award in the Island of Palmas case.
A further reason to consider that neither the Kingdom of Hormuz nor
Portugal should be deemed to have held sovereignty over the disputed islands
based merely on an hypothesis that they, together with Hormuz and the other
islands which the kingdom or Portugal actually possessed in the southern Gulf,
formed “in law” a geographical “unit”144 whose “fate” and sovereignty must be
viewed as an integral whole is that, simply, there is no obvious basis on which
to regard these various islands as together constituting such a “unit”. Indeed,
there are no apparent “historical, factual or legal considerations” which would
lead one to the conclusion that the three disputed islands and the islands phys-
ically possessed by Hormuz (or any of the other southern Gulf islands) had
“always been considered as one group, sharing the same legal destiny.”145 These
islands have never been considered, identified or categorized as a distinguish-
able “group”, and as an historical matter, it is difficult to point to any period in
Gulf history when it can be said that the fate of these scattered islands was ever
bound together “in law”, or when it may be said that “the fate of the principal
part may involve the rest.”146 Indeed, for much if not all of their history up to
the nineteenth century, there is little evidence that these various islands were
subject to the rule of a single sovereign or can be said to have shared any “legal
destiny”.147 Such a status certainly does not define their history prior to that
time.148

145 Eritrea/Yemen arbitration, para. 475.
148 This conclusion with respect to the other islands in the Persian Gulf and the three dis-
puted islands not constituting a geographical unit is irrespective of the fact that Greater
and Lesser Tunb have later been considered as constituting a “unity”.
312 chapter 5
If anything, the disputed islands were unclaimed, uninhabited and largely

unproductive and ignored up to the nineteenth century (as was Hormuz up to
the fourteenth century), with those coastal communities from both sides of
the Gulf (including Arab communities possessing areas of the Persian littoral)
having the need and ability to make use of them doing so.149 In that respect
alone they had very distinct destinies, legal and otherwise, from other south-
ern Gulf islands, such as Hormuz island (after the fourteenth century), which
became the capital of an independent kingdom and a center of east-west trade
for several centuries (and, as discussed above, the Kingdom of Hormuz and its
Portuguese conqueror ruled supreme in the southern Gulf for several hundred
years without claiming or seeming to use or care about any of the disputed
islands), Larak island, Henjam island, Qais island or Qeshm island, which had
been inhabited and fertile since the time of the Achaemenid Empire. With re-
gard to this last island, for example, Kelly sets out a dizzying description of
its ownership which typifies the unstable and fluid nature which has charac-
terized the “destiny” of Gulf islands in general and large parts of the Persian
littoral. He states that Qeshm island became a possession of Persia “for the
first time in its history” in 1622 when the Portuguese were expelled from there
and Hormuz, and that during the succeeding two centuries it changed hands
repeatedly between various Gulf rivals, principally the Omanis, the Qawásim
and the Bani Ma’in, another Gulf Arab tribe:150
149 The observations of Carsten Niebuhr (who noted that the Persian littoral was largely in-
habited by Arab tribes who would typically “betake themselves to their boats at the ap-
proach of an enemy, and be concealed in some isle in the Gulph till he have retreated”)
are relevant in this respect. Carsten Niebuhr, Niebuhr’s Travels Through Arabia and Other
Countries in the East, trans. Robert Heron (Edinburgh: Printed for R. Morison and Son,
1792), Vol. 2, 110–112.
150 Kelly adds the following further description of Qeshm island’s ownership: “Until the
conquest of Hormuz by the Portuguese in 1514 Qishm had been subject to Hormuz. It
remained under Portuguese rule until 1622, when the Portuguese were expelled from Hor-
muz, and only then, for the first time in its history, did it become a Persian possession.
Half a century later it was occupied for a time by the Dutch. They, in turn, lost it to the
Ya’ariba Imam of ‘Oman about the beginning of the eighteenth century. Qishm remained
an ‘Omani possession until some time between 1735 and 1743, when, together with the
other islands off the Persian coast, it fell under the sway of Nadir Shah. It was governed
by a chief who, on Nadir Shah’s death in 1747, refused to acknowledge his successor. When
Carsten Niebuhr was in the Gulf in 1764, he found that most of Qishm was in the hands
of the Qasimi chief of Ras al-Khaima, Rashid ibn Mattar, who up to that time had been a
vassal of the Imam Ahmad ibn Sa’id of ‘Oman. The Qawásim were expelled from Qishm
about 1770 by a chieftain called ‘Abdullah ibn Ma’in, who for a time paid tribute to Persia.
From all this, Elphinstone concluded, it appeared, that Persia’s claim to

the island was based solely upon the argument that all the islands in the
Gulf had once been Persian and that they still were, regardless of what
had happened over the centuries. It was a claim, he considered, as pre-
posterous as the Shah’s claim to sovereignty over ‘Oman on the basis of
the Persian occupations between 1737 and 1744.151
From the historical and scholarly materials which have been reviewed for this
work, it is clear that for centuries the disputed islands, as well as a number of
others in the southern Gulf, had no discernible owner at all, or may have even
been regarded as something akin to shared property, their “fate” more likely
tied to the needs of tribal groups living in nearby coastal communities who
used them in connection with their livelihoods or as a “refuge”. Moreover, as
noted above, the ownership, or control, of certain Gulf islands clearly changed
hands from time to time. This general instability is in line with what Lawrence
Potter describes as a “culture of migration” which has been common to the
Gulf over centuries, where populations were often on the move and control of
distinct coastal areas underwent numerous changes:
[T]he Khalijis [people living around the Gulf] were tied to the sea, and
they could easily move if dissatisfied. In a region where boats and not
land constituted capital, it was easy to sail away and reestablish them-
selves elsewhere and there was little a ruler could do to stop this … It
was common for tribes to migrate, both over their home range (Arabic,
dira) on land and from one side of the Gulf to the other. The Al Sabah
established themselves in Kuwait in the 1750s, while those under the
leadership of the Al Khalifa migrated to Zubara (on the northwest coast
of Qatar) in 1766 and ultimately came to rule over Bahrain in 1782 … In
the eleventh century many Arabs moved from the Omani coast to south-
ern Iran where they established the city of (Old) Hormuz. In the period
after Nadir Shah’s death in 1747, a decades-long political struggle ensued
On his death, the Qawásim again descended upon Qishm, but their possession of it was
disputed by the Al Bu Sa’id of Muscat. A long struggle for control ensued, which was de-
cided in favour of the Al Bu Sa’id by Saiyid Sultan ibn Ahmad in 1794–9. Since then Qishm
had belonged, in name at least, to Muscat.” J.B. Kelly, Britain and the Persian Gulf, 1795–1880
(Oxford: Clarendon Press, 1968), 184–185.
151 Ibid., 185.
314 chapter 5
in Iran during which there was no strong central government and the
southern ports were largely autonomous. The German traveller Carsten
Niebuhr, who visited the region in the 1760s, remarked that “the Arabs
possess all the sea-coast of the Persian empire, from the mouths of the
Euphrates, nearly to those of the Indus.” Some tribesmen, notably the
Qawásim, were based at Sharjah and Ras al-Khaimah on the Arab shore,
but also governed Bandar Lingeh, one of the most important Persian
ports. They freely moved back and forth until the Tehran government, in
line with its policy of reclaiming its own Gulf littoral, ultimately evicted
them in 1887 … This movement is exemplified by the Hawla or Hawala,
groups of Sunni Arabs that migrated from Oman and the eastern coast
of the Arabian peninsula to the Iranian side of the Gulf, between Bush-
ehr and Bandar Abbas, probably starting in the eighteenth century. They
eventually returned to the Arab side, especially after the discovery of oil
and the imposition of restrictive economic policies by Reza Shah in the
1930s. In the early 1900s Hawala were living in the uae, Qatar, Bahrain,
Hasa and on the island of Sirri.152
At other times, it is also clear that certain islands were regarded as somewhat
“lawless” and essentially left to the whims of those brave, daring or desperate
enough to visit them. For instance, Teixeira recounts how, around 1600, the Gulf
islands of Farur, Kish, Hindarabi, Shitwar and Shaikh Shuaib were “ill inhabit-
ed, by reason of the raids of the Noutaques and Nihhelus, Arabs who dwell on
the Persian shore so called, and take their name from it.”153 Della Valle, writing
around 1623, made similar observations by recounting the “multitude of those
Arabian thieves called Nouteks, who rob upon that sea and frequently reside
in this Island of Lareck”.154
Thus, the notion that the Kingdom of Hormuz or its conqueror, Portu-
gal, should be deemed to have held sovereign title to the three disputed is-
lands, without having claimed them or exercised any sovereign jurisdiction or
activities there, on the basis that those islands formed, in law, some sort of
152 Lawrence G. Potter, “Introduction” in The Persian Gulf in History, ed. Lawrence G. Potter
(New York: Palgrave Macmillan, 2009), 10–11. On the presence of Arab populations on the
Iranian littoral, also see Shahnaz Razieh Nadjmabadi, “The Arab Presence on The Iranian
Coast of the Persian Gulf”, in The Persian Gulf in History, ed. Lawrence G Potter (New York:
Palgrave Macmillan, 2009), 129–145.
153 Teixeira, Travels of Pedro Teixeira, 20–21.
154 Edward Grey ed., The Travels of Pietro Della Valle in India (London: Hakluyt Society, 1892),
Vol. 1, 3.
unbreakable “geographical unit” with Hormuz, “the fate of the principal part …
involv[ing] the rest”,155 or which had “always been considered as one group,
sharing the same legal destiny,”156 is not possible to sustain.
Finally, it might be mentioned that there are no other obvious social or eco-
nomic characteristics of the various southern Gulf islands in question which
would lead one to consider them, particularly as of the sixteenth or seventeenth
centuries, as an integral and indivisible “unit” whose “fate” or “destiny” was
closely tied together. Indeed, in many ways the islands were quite distinct one
from the other. Certain of the islands were fertile while others were complete-
ly barren, some were inhabited while others were uninhabited. Those which
were inhabited had different, and at times transient, communities, sometimes
hostile to each other. In terms of their economic usefulness, certain islands
were sources of water, wood or agriculture while others were of no use whatso-
ever, at least to the Portuguese and Hormuzis. In short, there was little in their
physical characteristics, social fabric or economic utility which can be seen as
having unified them or tied their destinies together.
Conclusions
To summarize, the discussion set out in this chapter establishes that:
(i) There is insufficient evidence to conclude that any of the disputed

islands pertained to or were possessions of the Kingdom of Hormuz
prior to its conquest by Portugal.
(ii) Persia did not have a sufficiently dominant position over the King-
dom of Hormuz for it to be considered as a Persian vassal prior to its
conquest by Portugal, and indeed prior to the conquest, the King-
dom of Hormuz acted independently of Persia.
(iii) For this reason, and because there are no other relevant grounds
(such as cession) which might be relied upon, even if the disputed
islands had formed part of the possessions of the Kingdom of Hor-
muz, there is no evidence that such possessions were ever trans-
ferred to or otherwise acquired by Persia prior to the Portuguese
conquest of Hormuz.
(iv) Persia did not cede the Kingdom of Hormuz, or in so doing the
three disputed islands, to Portugal because the islands were not part
of the Kingdom of Hormuz, so would not have been included in any

316 chapter 5
such cession, and just as importantly, the Kingdom of Hormuz itself

was not Persia’s to cede.
(v) Far from acquiring the Kingdom of Hormuz through cession, the
Portuguese conquered and took effective hold of all of the Hormuzi
royal or State possessions, including its territorial possessions (how-
ever those were defined), through its assaults carried out in 1507
and 1515 by “force of arms” and converted it into a Portuguese vassal.
(vi) Despite Portugal’s conquest of the Kingdom of Hormuz, as the king-
dom’s territorial possessions did not include any of the three disput-
ed islands, they were not taken by Portugal as part of that conquest.
(vii) There is no evidence that following its conquest, Portugal, or its vas-
sal the Kingdom of Hormuz, exercised any authority over or had
any intention to govern any of the disputed islands, a further indi-
cation that, in the words of the pcij in the Legal Status of Eastern
Greenland case, neither it nor the Kingdom of Hormuz ever had
“the intention and will to act as sovereign” over them.
(viii) Portugal did not cede the islands to Persia following Portugal’s
expulsion from Hormuz as they were not Portugal’s to cede, and just
as importantly, the treaty which the parties signed in or around 1625
or 1630 did not contemplate any cession of territory whatsoever,
and emphatically not any of the three disputed islands.
(ix) There are no grounds on which to impute Hormuzi or Portuguese
sovereignty over the disputed islands merely on the basis of geo-
graphical doctrines, as these doctrines did not operate as an inde-
pendent source of territorial title in the sixteenth and seventeenth
centuries, they were never claimed by either polity as a basis for
asserting ownership over the islands and to attribute such a claim
six centuries later would not be sustainable as a legal matter. In any
case, the disputed islands do not form in any coherent or recog-
nizable sense a distinguishable geographical “unit” with the other
southern Gulf islands which were under Hormuzi or Portuguese
ownership.
Arising from these various findings is the conclusion that, as of the early de-
cades of the seventeenth century, the legal status of the three disputed islands
remained as terra nullius.
chapter 6
The Early Seventeenth Century to the End of the

Eighteenth Century: Were the Islands Still Terra
Nullius?
As concluded in the previous chapter, based on the available historical

evidence it is difficult to view the status of the disputed islands as of the early
decades of the seventeenth century as anything other than terra nullius. Al-
though it has been stated by some scholars that the events which followed in
the wake of the defeat of the Portuguese at Hormuz in 1622, and in particu-
lar the agreement reached between Persia and Portugal in (or around) 1625 or
1630, marked a formal transfer of the three disputed islands from Portuguese to
Persian sovereignty, as explained in the previous chapter, neither these events
nor that agreement can or should be viewed as relating to the islands at all in
light of the evidence, or lack of evidence, which has been uncovered which
might demonstrate or otherwise suggest that conclusion. This and the other
conclusions reached in chapter 5 leave the legal status of the ownership of the
islands as of the early decades of the seventeenth century obscure, there be-
ing no firm evidence that they were or had been claimed or possessed by any
established or otherwise discernible power. Moreover, between the early de-
cades of the seventeenth century and the end of the eighteenth century, when
British power and influence became the dominant force in the Gulf leading
to a series of violent confrontations and treaties of peace (or submission) be-
tween Britain and the Gulf Arab Sheikhdoms which evolved into the protec-
torate arrangements, the Gulf islands remained largely ignored. Thus, despite
the numerous and important historical events which occurred in and around
the southern Gulf during this period of nearly two hundred years (including
the bringing to an end not only of the Portuguese domination of the strategic
island of Hormuz along with much of its influence in the Gulf but also of its
vassal the Kingdom of Hormuz, which then disappeared forever), those events
which are directly relevant to the dispute over sovereignty to the three islands
are relatively few.
If it is accurate to describe the islands as terra nullius in the early stages of
the seventeenth century, then it follows that any claimant asserting an origi-
nal title thereafter would have to adduce evidence that it acquired title to the
islands through occupation. The requirements underlying the doctrine of the
acquisition of title through occupation prior to the middle of the eighteenth
century (when there was recognized a “growing insistence” under international

318 chapter 6
law that “demanded that the occupation shall be effective”1) are not entirely
clear, but, even in the sixteenth century “some form of appropriation” of the
claimed territory was in all likelihood required and merely sighting territory
would not be sufficient to establish ownership over it.2 To reach the opposite
conclusion would be “contrary to the principles of Roman law from which the
rules of international law were deduced”,3 and contrary to the teachings of
many of the early and most influential international law scholars, including
Grotius who wrote at the beginning of the seventeenth century in connection
with discovery of terra nullius that “No one is sovereign of a thing which he
himself has never possessed … [and] [t]he act of discovery is sufficient to give
a clear title of sovereignty only when it is accompanied by actual possession.”4
By the middle of the eighteenth century, as recognized in the seminal cases
of the Island of Palmas, Legal Status of Eastern Greenland and Clipperton Island,
the concept of occupation had changed: “[t]he emphasis has shifted from the
taking of physical possession of the land and the exclusion of others to the
manifestation and exercise of the functions of government over the territory.”5
The test articulated in these cases for determining whether a claimant wishing
to establish that its acquisition of title over terra nullius had been “effective”
varied, but generally consistent notions emerged. For example, in the Island
of Palmas case, as articulated by Waldock, Judge Huber “insisted that the test
of sovereignty by occupation is the actual, continuous and peaceful display of
state functions in regard to the territory in dispute”,6 while in the Legal Status
of Eastern Greenland case, the pcij “acted on the principle that the true tests
1 Island of Palmas case (Netherlands/United States of America), Award of April 4, 1928, riaa 2
(1928) 829, 839.
2 C. Humphrey M. Waldock, “Disputed Sovereignty in the Falkland Islands Dependencies”,
British Yearbook of International Law 25 (1948): 311–353, 322. See chapter 3.
3 Waldock, “Disputed Sovereignty”, 322. Waldock further added: “A finder in Roman law did not
acquire title by the mere act of detection but by a further act appropriating the thing found,
that is, manifesting an assumption of possession.” Ibid.
4 Hugo Grotius, Mare Liberum The Freedom of the Seas, trans. Richard Hakluyt (New York:
Oxford University Press, 1916), 11. See also chapter 3.
5 Waldock, “Disputed Sovereignty”, 317. As elaborated by Waldock, “This change is a natural
consequence of the recognition that in modern international law occupation is the
acquisition of sovereignty rather than of property. It follows perhaps even more from the
recognition that sovereignty entails international duties as well as rights. Occupation is not
only the assumption of the exclusive right to display state activities in the territory. It is also
the assumption of a duty to protect within the territory the rights of other states both in
regard to their security and in regard to the treatment of their nationals in the territory.” Ibid.
6 Waldock, “Disputed Sovereignty”, 316, referring to certain oft-quoted passages of the Island of
Palmas case.
of sovereignty by occupation are the intention and will to act as sovereign plus
some actual exercise or display of sovereignty.”7
Recorded Sightings and Visits to the Islands
What events then did, or did not, occur during the period of almost two hundred
years between the defeat of the Portuguese at Hormuz in 1622 and the close
of the eighteenth century which would shed any light on whether any party
acquired title over any of the disputed islands through occupation (whether
through physical or “effective” occupation)? It is useful to begin the discussion
of this question with a review of some of the surviving recorded instances of
sightings of and visits to the islands – made primarily by Europeans – during
this lengthy period to determine whether they reveal anything which may as-
sist in addressing this issue. Examples of these accounts include the following:
• The journal entry of the Dutch captain Cornelis Cornelisz Roobacker of

3 July 1645, naming Greater Tunb Slangen Eiland (Snake Island) due to hav-
ing found many snakes on the island which made access to its water re-
sources beyond reach.8
• The visit to the Greater Tunb island by a landing party from the Dutch ship
Delfshaven in August 1645, the crew members reporting having seen “people
and also cows”.9
• The unspectacular references to certain of the islands, most prominently
the Greater Tunb, made in Dutch vessel logs, simply noting sightings of the
island, such as:
7 Ibid., referring to certain oft-quoted passages of the Legal Status of Eastern Greenland case.
8 Roobacker’s journal entry states: “[S]aw the west end of Qeshm at about 2.5 leagues west-
erly and westerly of the south of us. In the afternoon we were at 26 degrees 18 minutes lati-
tude, saw directly in front of us two small islands. One (the smallest) named Nabuzon, the
other (fairly big) named Thom, where – as our pilot has it – there is good water, but which
is impossible to be collected because of the manyfold occurence of snakes. Thus we named
this island Slangen Eilandt [Snake Island]. This island is not very high [i.e. not very hilly].
After this we sailed between Thom and Qeshm.” na 1.10.30 (voc) rec. no. 280A (Geleynssen
de Jongh) [rggc], Journal register of the voyage undertaken by the ships Delfshaven and
Schelvis from Bandar Abbas to Basra, June 28–October 5, 1645 (translation by G.G.J. Boink, on
file with authors).
9 Ibid. The full journal entry states: “Saturday the 5th in the morning our commander’s sloop
rowed to land to see if there was any water or wood to be had but found that it was a rocky
island where there was nothing to be had for us. Around noon the sloop returned; some of
our soldiers said that they had seen people and also cows.”
320 chapter 6
(i) An October 1645 entry made on the return journey of the vessels
Delfshaven and Schelvis to Bandar Abbas from Basra, recording
that: “[S]aw the island Thom, or Snake Island, southeast about 3.5
leagues from us. Went easterly of the south, to avoid the cove of
Bandar Kong. Found the depth about midway between the island
Thom and the corner of Qeshm to be 4 and 5 fathoms water.”10
(ii) A February 1646 entry made on a journey of the vessels Delfshav-
en and Zeemeeuw to Basra, recording that: “In the morning of
Wednesday February 14th, at sunrise when we were about 3.5 leagues
in the southeast of the island Hengam we saw two sails, but could
not see where they were going. Shortly after they vanished from
sight. This whole day was prosperous. After sundown we passed the
island Thom, or [‘or’ meaning ‘also known as’] the end of Qeshm.
Today we agreed that the yacht Delfshaven will carry the lights at
night during the passage to Basra, because the c ommanders of the
yacht the Zeemeeuw have never before sailed these waters and we
will encounter several islands each day.”11
(iii) An April 1651 entry made in the daily register of the supercargo (“op-
percoopman”) Elias Boudaen during its voyage from Surat to Basra,
recording that: “The 21st [of April] we were a quarter of a league from
the mentioned island of Qeshm and turned for the better, the setting
sun showed us in the south southwest the island N abasson. In the
night we had various winds, as from the west, the w estsouthwest,
the southsouthwest and the south. Saturday the 22nd at dawn we
saw the corner of the island Qeshm 2 leagues nortwesterly from us,
that of Nabasson about 3.5 leagues, and also found the one which
is called Tombo [Greater Tunb] at 1.75 leagues; with remark that
the triangle of the manyfold mentioned island Qeshm from the
easterly island of Nabasson northnorthwest and southsoutheast is
seperated around 3 leagues from the limit. Also that the two small
patches of land Nabosson and Tombo are surrounded by water and
are situated east and west 1.5 to 2 leagues from each other, as was
shown on the small chart made by the noble Sercerium [i.e., Dirck
Sarcerius], while Nabosson is situated 5 leagues southeast to the
south and northwest to the north from the southwesterly corner of
10 Ibid.
11 na 1.04.02 (voc) rec. no. 1152, Fol. 346v, Daily register by Leonard Winnincx held on
the journey to Basra as well as at that place, February 11 – March 17 1646 (translation by
G.G.J. Boink, on file with authors).
Qeshm and the afore mentioned Tombo is situated southeast to the

south and northwest to the north 1.5 leagues from the mentioned
Nabosson in that map.”12
• A journal entry of the vessel the Pauw dated 28 December 1646, noting that
“We sounded the island Rijnsburg [Abu Musa or possibly Sirri13] about
2.5 leagues in the southwest of the south from us… The island we know as
Rijnsburg is fairly high, but has just a few trees.”14
• The writings of de Thévenot in 1667, in which he noted that the Portuguese
had been, up to about the year 1650, sending galliots to “receive tributes” at
Greater Tunb.15
• The comment, also reported by de Thévenot in 1667, of the Portuguese
representative Manuel Mendez to the effect that if “someone would build a
fortress on” Greater Tunb, its owner could “easily ask for a tribute from any
boats sailing around.”16
• The journal entry of the Frenchman Abbé Carré, in which he records having
spent the night of 13 September 1672 onboard a Portuguese vessel anchored
between the islands of Greater Tunb and Lesser Tunb, without having given
any further comment or elaboration.17
12 na 1.04.02 (voc) rec. no. 1181, Fols. 848v–849, Copy daily register held by the supercargo
Elias Boudaen [sailing from Surat to Basra], March 14–September 29, 1651 (translation by
13 G.G.J. Boink, Report on the Occurrence of Information about the Islands of Greater Tunb,
Lesser Tunbs and Abu Musa in the Holdings of the Dutch National Archives (Nationaal
Archief ) at The Hague, June 2014 (on file with authors), 8–9.
14 na 1.10.30 (Geleynssen de Jongh) rec. no. 280E, Daily register held by cargo Abraham
Mathijsz. van Rythoven on the ship the Pauw during the journey from Bandar Abbas to
Basra and back and during his stay at Basra, May 10–December 31, 1646 (translation by
15 Jean de Thévenot, Suite du Voyage de Levant, Part 2 (Paris: Kessinger Legacy Reprints,
1674), 354 (our translation from French). Cited also in chapters 1 and 5.
16 Ibid. Cited also in chapters 1 and 5.
17 In the original text, the author refers to the two islands as Pulor and Elfanem, but the loca-
tion he indicated, being southeast of Kung (i.e., Congo) would have rather placed the ves-
sel between the two islands below the southwest point of Qishm island, that is, Greater
Tunb and Lesser Tunb. Sir Charles Fawcett and Sir Richard Burn, eds., The Travels of the
Abbé Carré in India and the Near East, 1672 to 1674. Translated from the Manuscript Journal
of His Travels in the India Office by Lady Fawcett (London: HakluytSociety, 1947), Vol. 1, 125.
Cited also in chapter 2.
322 chapter 6
• The description of the Greater Tunb and the Lesser Tunb made by de
Thévenot in 1674: “Nabdgiou or Pitonbo [Lesser Tunb] is a little island, not
high, and uninhabited. It is South–West or South South East from Queschi-
mo. Tonbo [Greater Tunb] is another little island, also not high, flat, and
uninhabited where there is only lots of gazelles and rabbits. It is east or le-
vant from Nabdgiou-Pitonbo and south or my-jour from Congo. It is only 4
leagues from Congo.”18
• The document entitled “Description of the coasts of the Persian Gulf and
its inhabitants”, addressed to Jacob Mossel, Governor General of the Dutch
East Indies, from Tido Frederik van Kniphausen, dated 1756, in which he
made a number of comments indirectly related to the ownership of the is-
lands and the apparent lack of control over the islands by the Persian gov-
ernment. Relevant passages from the “Kniphausen Report” include:
(i) “Their [i.e. the Arabs] places and houses [on the Persian coast] are
wretched, because they judge the dry and infertile ground on which
they live as not worthy of better ones, which is not a bad policy,
seeing as they have nothing to lose, which enables them, in case
Persian dukes or regents bother them with contributions and king’s
services [like taxes and conscription] to leave their places to board
their ships with wife and children, and to move to the adjacent
islands, until the time they think they can return to their former
places without being bothered.”;19 and
(ii) “The islands of Troer, Tombo and Nabiau, which are not inhabited,
belong under these Mersoukis [i.e. Arab inhabitants of Lenge or
Bandar Lenge], and serve them as retreat in troubled times.”20
• The list of Gulf islands which Carsten Niebuhr wrote he had come to
know in or about 1773, including “Bomosa” [Abu Musa], “Tumb Namiu”
[Lesser Tunb] and “Tumb” [Greater Tunb], noting only that “these last two
mentioned islands are uninhabited”.21
18 De Thévenot, Suite du Voyage, 354.

19 na 1.11.01.01 rec. no. 461, Fol. 1v, “Description of the coasts of the Persian Gulf and its in-
habitants”, addressed to Jacob Mossel, Governor-General of the Dutch East Indies, [18th
century] (Tido Frederik van Kniphausen’s report of 1756) (translation by G.G.J. Boink, on
file with authors).
20 Ibid., Fol. 3v.
21 Carsten Niebuhr, Description de L’Arabie d’après les Observations et Recherches Faites Dans
Le Pays Même (1773) (Copenhague: Chez Nicolas Möller 1773), 283.
• The report of the capture of a number of Englishmen near the Greater

Tunb by a group of Qawásim “pirates” in 1803, who were then taken to Ras
Al Khaimah.22
Notably, none of these accounts record the ownership of the islands, whether
Persian or Arab, or make any other specific references or give any other spe-
cific clues as to their ownership or whose authority they were under, except
perhaps that of Kniphausen, which makes a reference to the ownership of the
Tunbs by the “Mersoukis” (an Arab tribe). Other than this observation, there is
no strong or affirmative basis arising out of these particular records on which
either of the contesting parties might support a claim of ownership based on
the doctrine of occupation in light of any of the tests to make out a claim of
occupation referred to above. On the contrary, these brief accounts appear on
the whole to suggest, if anything, that the islands had no discernible sovereign
owner as they note they were uninhabited and neither mention any author-
ity or official presence on or controlling the islands, nor otherwise associate
them with any such authority, including any authority connected to Persia.
This is most prominently the case with the Kniphausen Report, which (as of
the middle of the eighteenth century) not only states that the islands adjacent
to Lengeh, including both Greater Tunb [“Tombo”] and Lesser Tunb [“Nabiau”]
“belonged” to one of the Arab tribal communities which were living in semi-
autonomy on the Persian coast around Lengeh, and that Arab communities in
general would use islands close to the Persian littoral as a retreat in “troubled
times” or when Persian authorities approached their communities to collect
taxes or conscript men into the army, but in so doing makes it clear that these
islands were beyond the reach and not subject to the control of those authori-
ties. The Kniphausen Report further emphasizes this point by noting that:
[As] the Persians have never been inclined to seafaring, all places in the
north [the northern, or Persian, littoral of the Gulf] that are in any way –
be it by a small source or river – capable of harbouring any ships, are in-
habited by colonies of Arabs, who busy themselves with shipping, diving
for pearls or fishing.23
In this respect, the Kniphausen Report is consistent with the report of the Ger-
man traveller, Carsten Niebuhr (who joined the expedition to Arabia sent by
1877), Vol. 1, 223.
23 na 1.11.01.01 rec. no. 461, Fol. 1, Tido Frederik van Kniphausen’s report of 1756.
324 chapter 6
the King of Denmark), compiled around the same time (1772). Niebuhr also
made similar observations about the independence of Arab communities re-
siding on the Persian side of the Gulf, stating that it was those communities,
rather than the Persian government, which “possessed” the entirety of the Per-
sian littoral of the Gulf, and adding that “they always betake themselves to their
boats at the approach of an enemy, and be concealed in some isle in the Gulph
till he have retreated.”24 He added that the towns of Kong and Lengeh, among
others on the Persian coast, recognized the Qawásim ruler of “Seer”, Rashid bin
Mattar, as “sovereign”, and that in addition to “possessing” those towns, he also
possessed a “portion of Qeshm island”.25 Niebuhr adds this about the Qawásim
leader:
His navy is one of the most considerable in the Persian Gulph. His s ubjects
are much employed in navigation, and carry on a pretty extensive trade.26
Other than the contemporaneous accounts of the islands emanating from the
seventeenth and eighteenth centuries noted above, this period also saw the
production of a number of maps charting the Gulf, including in certain cases
the disputed islands. Although we mention it here, analysis of this category
of evidence will be left for a dedicated discussion in chapter 10. Suffice it to
say that, particularly during the eighteenth century, a number of maps of the
Gulf and its islands were published, primarily by European cartographers and
surveyors, some of whom were connected to the European trading compa-
nies which sought to establish a strong presence in the Gulf for commercial
reasons. As elaborated in chapter 10, a close analysis of these maps demon-
strates why they are generally unreliable in assisting in the determination of
sovereign rights over Abu Musa and the Tunbs.
In brief, the map evidence which has been reviewed is often contradictory
in its depiction of the islands as Persian or Arab (or neither), and the c oloring
of the maps, purportedly showing national ownership, is often misleading,
with older maps in which colour has been applied by hand at a second stage
leading to more contradictions of different versions of the same maps. Further
weakening the reliability of these maps, from the perspective of determining
sovereign rights under international law, is that none of them are annexed to
a treaty or are the clear expression of the will of the States concerned in the
dispute over sovereignty to the islands. Finally, any suggestion that the islands
25 Ibid., 100, 116. See also, Niebuhr, Description de L’Arabie, 266, 272.
26 Niebuhr, Niebuhr’s Travels Through Arabia, Vol. 2, 101.
belonged to either Persia or any other discernible power which is reached by

analyzing the seventeenth and eighteenth century maps which were reviewed
would not corroborate conclusions that are arrived at by other evidentiary
means – including contemporaneous documentary records – not connected
with the maps, a requirement under international case law for accepting the
probative value of maps.
In summary, neither the recorded observations of third parties during the
seventeenth and eighteenth centuries related to or discussing the islands, nor
the map evidence from that period, provide a great deal of support for a claim
by either of the disputing parties that it, or its predecessors, had acquired title
over the islands through occupation at some point from the early seventeenth
to the late eighteenth century. They do, however, establish to a certain extent
a negative inference against the notion of Persian occupation of the islands
during this period, particularly the Kniphausen and Niebuhr reports, which
refer to Gulf islands and waters as generally outside the control of Persian
authorities.
Lack of Persian Sea Power
This conclusion is consistent with the absence of any positive evidence that
Persia actually held any authority or control over the islands, as well as with
the multiple accounts of the struggles experienced by Persia in coping with its
lack of sufficient naval forces during this period, notwithstanding the efforts
made by Nadir Shah in the eighteenth century (1730s and 1740s) to acquire a
navy.27 As summed up by Lockhart, “Nadir’s bid for sea-power in the Gulf, like
his attempts to conquer Oman, ended in ultimate failure”, and “not even an
autocrat like Nadir, powerful though he was, could turn into seamen a people
who, at that time, were neither by inclination nor training in the least sea-
minded.”28 In this same vein, Floor cites a Dutch report of 1756 which stated
that, notwithstanding having acquired a fleet of some 30 vessels and many
smaller craft during the 1740s, “‘of those ships which Nadier Scha had built at
27 Willem Floor, The Persian Gulf: The Rise of the Gulf Arabs the Politics of Trade on the Persian
Littoral 1747–1792 (Washington, d.c.: Mage Publishers, 2007), 1–21 provides a comprehen-
sive account of Persia’s reliance on foreign naval forces in the seventeenth and eighteenth
centuries.
28 L. Lockhart, Nadir Shah. A Critical Study Based Mainly Upon Contemporary Sources (Lon-
don: Luzac & Co., 1938), 221–222. Della Valle had noted in 1623 that “the Persians wholly
want” for ships and strength at sea, “there being neither Mariners nor Timber in Persia”.
Edward Grey ed., The Travels of Pietro Della Valle in India (London: Hakluyt Society, 1892),
Vol. 1, 9.
326 chapter 6
such large expense two still are left, which float above water. However, they are
in such a bad condition that they cannot be repaired anymore’.”29 A century
later, these circumstances persisted as it was reported in 1869 that “the Shah
was content to leave the maintenance of the maritime peace to the British
Resident, as in this way there is less expense and less chance of failure.”30
Documentary material found in the Dutch East India Company (voc) ar-
chives, principally communications between the Persian government and the
voc or internal correspondence of the voc itself, gives a revealing perspective
on the circumstances and manner by which Persia attempted to cope w ithout
adequate naval assets during the seventeenth and eighteenth centuries,
particularly as it sought to invade Oman, generally protect its own coastline,
and in 1740, deal with a general mutiny in which the largely Arab crews of Nadir
Shah’s fleet spirited many of them away, bringing the Persian government to
urgently request the assistance of the Dutch East India Company fleet to try
and recover them. For purposes of illustration, a number of excerpts of these
communications are set out below. Although these excerpts, most of which
relate to the naval assistance requested by Persia in connection with its designs
to invade Oman, are given without providing the context in which they were
written, they do demonstrate the general reliance Persia had on foreign powers
in the conduct of naval affairs:
• On 13 October 1696, the Persian Shah Hossein wrote to the Dutch director
of the voc at Bandar Abbas asking for assistance in waging war on Oman:
“[S]o this letter is meant to request Your Honour at its most friendliest, be-
cause of the friendship that exists between us and the Dutch, and which will
29 Floor, Rise of the Gulf Arabs, 21. Floor also notes: “In the eighteenth century, rather remark-
ably, Persia formed a navy. Up to that time the shahs of Persia had relied on other powers
to maintain security in the Persian Gulf. The dominant naval power in the Gulf during the
sixteenth century was Portugal, while the Dutch, and to a lesser extent the English, were
supreme during the seventeenth and the beginning of the eighteenth centuries. Oman
also became a naval power in the Gulf of great importance after 1690, the more so, since
neither the Dutch or the English chose to exercise their naval strength in the Gulf at that
time. Persia’s southern borders were not safe and secure after the conquest of Hormuz in
1622, because the Portuguese attacked its ships and coastal settlements until 1631. Since
it did not have a navy Persia relied for a time on the Dutch and the English to maintain
security in the Gulf to the extent that these two powers were willing to provide such assis-
tance, which they usually were not. Later in the seventeenth century, some naval support
was provided by Portugal against the marauding of the Omanis.” Ibid., 1.
Archive Editions, 1993), Vol. 1, 498, containing Report from Col. Pelly, British Political Resi-
dent in the Gulf, dated July 20, 1868.
last indefinitely, when it may pass that mentioned Sir Alimeerdechan will
ask Your Honour for some ships, or will be needing Your Honour’s help in
any other way, to provide him those, and further to lend a helping hand, and
to not leave him in embarrassment … for which friendship we will favour
Your Honour in all opportunities.”31
• On 14 June 1697, the Dutch recorded their consent to provide the Shah
with the requested assistance in waging war on Muscat: “On the detailed
proposal made by the Governor General on the point of the request of the
Persian majesty for help of the Company in loaning ships etc. to fulfil his
intention to wage war on the Imam or ruler of the realm of Oman in Arabia
and to bring this under his power, about which issue the Governor General
last 21 May, while relating to the written advice of the former director in
Persia Adriaan Verdonck, requested the gentlemen to ponder. This case has
now been given much thought. The request comes at a bad time for the
Company because shipping and crews are scarce, and we can hardly cope
with everything that is to be done to keep our trade going in all quarters of
the Indies, to further our trade and at the same time to monitor the designs
of the French, with whom we are at war at this moment. Furthermore, the
request – mentioned in such documents as the letter written by order of the
king to the director in Persia, the annex written on 26 October 1696 to this
Government by the director Alexander Bergaigne, the supercargo Jacobus
Hoogkamer and the cargo Willem Sicken and the account handed over by
the said Hoogkamer to the said director on 25 October 1696 concerning his
returning from Isphahan to Bandar Abbas – is only put in general and ob-
scure terms, without a much needed statement of the real intention, which
we guess to consist of the wish to obtain from the Company some ships as
escort of the vessels with which the Persians will transport their troops, so
as to protect those ships against the naval power of the Muscat Arabs, and
to make sure that they will not be attacked at sea [by the Muscat Arabs],
because they [i.e. the Persians] are not able to resist them at sea; but instead
will be assured to be able to land anywhere they want. Although it comes
at a bad time, it has to be deemed necessary to help the Persians, to show
them that after the manifold difficulties the Company endured in the years
before, it is willing to help. This only because the trade with Persia and in
Persian goods is of significant importance to the Company, and that any
31 na 1.04.02 (voc) rec.no. 1586 fol. 464-464v [ls&r], A copy of a translated letter by His
Majesty of Persia written to the Honourable sir director or captain of the Dutch, asking for
assistance in case his general Aliemeerdichan needs some help in his campaign to wage
war on the Arabs, dated October 13, 1696 (translation by G.G.J. Boink, on file with authors).
328 chapter 6
delay in answering would increase the risk that the Persians would turn to
the European competitors.”32
• In December 1697, after the arrival of the Dutch ships in Bandar Abbas, the
Shah notified the Dutch that he had ordered the cancellation of the expedi-
tion against Muscat: “An order, which the world has to obey, has been issued,
namely this: […] Your Honour’s servants here have submissively let me
know that Your Honour’s Lords and Masters have dispatched ten ships to
attack Muscat in Arabia, which have arrived on the roads of Bandar Abbas
so that my armed forces are able to transport themselves under your guid-
ance to mentioned Muscat, and also that Your Honour’s Lords and Masters
wouldn’t like the ships to stay at the roads of Bandar Abbas without effect;
this expedition is a proof of Your Honour’s great affection. At this time, we
are burdened with so many weighty tasks, that we are forced to postpone
the punishment that we wanted to inflict on the Arabs until better times,
and when we, with God’s help, will be able to pay the rascally Arab what
serves them right, we will not tally to do so, as example to others. As soon as
Your Honour has received and read this mandate, you are allowed to direct
your ships to where they belong; we will timely notify Your Honour to let
you know when we will be inclined to gather our forces to make war on said
Muscat, trusting that Your Honour will surely second us with your warships,
and thusly will demonstrate your affection for us, so that when that filth
will be removed for once, Your Honour will be assured of my lasting and
continuous royal affection for you and your nation.”33
• On 3 October 1701, a letter written from an official of the Persian royal court
to the Dutch ambassador in Persia again requested the loaning of vessels for
a campaign against Muscat: “High of quality, refuge of loftiness and fortune,
suffused by noblesse and chastity, pleasing in all his actions, prime of his
peers and Christians, Jacobus Hoogkamer, elected ambassador of the Dutch
Company, is to know that it is the will of the King of Kings and keeper of
the world, for the praise of whose foot my soul is prepared to sacrifice it-
self, to conquer the lands and people of the Muscat Imam, for which he
has appointed me, as lowest and most sincere slave of the threshold that is
32 na 1.04.02 (voc) rec.no. 712 fols. 369–374 [rggc], Dutch conceding the assistance in wag-
ing war on the Arabs of Muscat and provided the ships Vosmaer and Oostsouburg, dated
June 14, 1697 (translation by G.G.J. Boink, on file with authors).
33 na 1.04.02 (voc) rec.no. 1611 Perzie 1 fols. 112–114 [ls&r], Translation of a mandate con-
cerning the waging of war against the Muscat Arabs, granted by the Persian king Shah
Sulthan Hossen to the noble sir Jacobus Hoogkamer, temporary Governor of this direc-
tion [i.e. Persia], dated December 1697 (translation by G.G.J. Boink, on file with authors).
guarded by angels, whereupon I have nominated Your Honour, prime un-

der his peers, because of the good services Your Honour has tried to render
without refusal upon the everlasting country by supplying this crown with
several ships and militia of the high and mighty Dutchmen, which services
have been contracted by Your Honour, and which we, by his majesties grant,
now request from Your Honour – knowing that a good result will be a source
of envy for your peers and Your Honour is being gifted by his majesties royal
grace – so let it be written in large what Your Honour deems to be neces-
sary in the execution of afore mentioned, and also what Your Honour needs
in recompense and at what time the ships could be ready, as to be able to
communicate this knowledge to the fortunate dust of his Majesties feet, for
whom the best human soul is sacrificed, so that a mandate and contract can
be made like we agreed orally”.34
• Subsequently in 1701, the Dutch ambassador replied to this request for na-
val assistance, noting the difficulties such a campaign would involve and
suggesting that seeking peace with Muscat would be a preferable objec-
tive: “Your Honour’s demand for ships and militia is not to be interpreted
differently than as a request for a convoy of vessels, by which the soldiers
can cross, and will be transferred during the war, to visualize them, and to
protect you from all naval raids and encounters. It needs its meditations
whether the ships will be used for a year or a monsoon or even longer, be-
cause we do not know what kind of power is needed to perform his majes-
ties intention, [and] to get to a swift and positive result. […] But because this
[action] can only be accomplished with great difficulty, loss of money and
other massive obstructions, and another way of dealing with this problem
presented itself during our talks, which is not so costly nor hazardous, be-
ing: to send a person to the Muscat Imam to labour for peace and a cessation
of all hostilities between this crown [i.e. Persia] and said nation […] [we
would suggest the latter action].”35
• On 4 May 1702, an internal report from the outgoing Dutch ambassador to
the incoming ambassador made the following points related to the matter
of lending vessels to Persia in connection with a military campaign against
34 na 1.04.02 (voc) rec.no. 1642 fol. 1589 [ls&r], Translation of a Persian letter written by
the highest gold stick bearer to the ambassador, dated October 3, 1701 (translation by
35 na 1.04.02 (voc) rec.no. 1642 fol. 1590 [ls&r], Answer by the ambassador to the trans-
lated Persian letter of the highest gold stick bearer, 1701 (translation by G.G.J. Boink, on file
with authors). The comments between square brackets are from Mr. Boink’s translation of
the document.
330 chapter 6
Muscat: “At the same time, the fleet of six ships under command of com-
mander Herman Voet arrived at Bandar Abbas, to help the Shah, following
his request and our promise made last year, to aid him in his endeavour
to overpower Muscat and to transport his troops. This arrival was imme-
diately translated to our residents in Isphahan, so they could mention it
to the imperial trustee, along with reminding him of the promise that, in
case of the conquering of Muscat, as compensation for the heavy and costly
furnishing and equipment of the ships, on recommendation of his Majesty,
the Company would firstly get the right of free trade everywhere in his maj-
esties realm, including the conquered Muscat, secondly be allowed the free
exportation of species, thirdly be discharged from the silk contract […] and
fourthly, start to receive the promised 1.000 thomans yearly, to compensate
for the cost of gathering this armada. The Persians acted as if they had no
knowledge of these agreements, and said the Company would only be enti-
tled to the spoils of the conquering of Muscat.” [The writer ends with a note
to his successor that nothing can be undertaken if the terms agreed upon
are not put to paper, and that if the Persians do not wish to sign a document,
no action should be undertaken at all.]36
• On 3 March 1737, the voc consented by resolution to lend the Company’s
vessel Anthonia to Muhammad Takje Khan, to transfer Persian s oldiers to
the Arabian littoral in connection with Persia’s first invasion of Muscat:
“Yesterday his highness the Beglerbegie Mhamed Tackie Chan, through our
interpreter, requested to borrow one of the two ships that we received from
Batavia, to use it for a short time to transport people to a place near Julphar
named Ghoer â Gon, situated 2 to 3 days travel from here.”37
• On 2 September 1738, the voc noted the deliberations of an internal meet-
ing of directors which concluded that the loaning of ships to the Persian
Shah must be avoided to the fullest extent possible: “[T]he gentlemen re-
flect on the present state of affairs in the Persian realm. From the extensive
description thereof it is concluded that the crowning of the new king Nadir
36 na 1.04.02 (voc) rec.no. 1652 fols 744–747v [MvO], Memorandum or instruction by the
sir former ambassador to the Persian court Jacobus Hoogkamer for his replacement
in the direction of Persia the sir Magnis Wichelman, dated May 4, 1702 (translation by
G.G.J. Boink, on file with authors). The comments between square brackets are from Mr.
Boink’s translation of the document.
37 na 1.04.02 (voc) rec.no. 2368 fol. 3809-3809v [ls&r], Extract from the resolution taken
in Bandar Abbas about the entrenchment of the Company’s servants in Bandar Abbas
and Bassoura, item by which it is consented to loan the Company’s vessel Anthonia to
Mhamed Takje Chan, to transfer troops to the Arabian littoral, dated March 3, 1737 (trans-
lation by G.G.J. Boink, on file with authors).
Shah, only brought more costs to renew the existing firmans as to preserve
the old privileges of the Company. The Company is subject to vehement
extortion by the Beglerbegie, who has grown more independent and power-
ful by having a new king. These extortions resulted i.a. in the Company hav-
ing to loan ships for the king’s designs to transport troops to Julphar as to
conquer Muscat … The loaning of the ship Anthonia and not resisting other
extortions is deemed necessary to avoid greater evil in the future. The extor-
tion by the Beglerbegie could be a scheme designed by the crown to gather
money for the military action. It is resolved to speak to the king about the
misconduct of his Beglerbegie and thus to try to get compensation for all
financial damage. The servants in Persia have to abide by the old and well
known order that the loaning of ships at the service of the Persian crown
has to be avoided, as long as a refusal doesn’t mean greater evil.”38
• A resolution of the voc dated 21 April 1744, setting out measures devised
to avoid the harmful loaning of ships to the Persian king. “[Discussing how
the Company could be best freed from the expensive and highly damaging
Persian requests for ships, the Governor General and council resolve that:]
Firstly: to have some more Moorish sailors than usual aboard the ships
bound for Persia, so that the ships can be unloaded more speedily. If the
ships are laying around for a long time in unloading, the Persians might get
the idea of using them for their own designs or for so-called services to the
crown. Secondly: Not to directly call at Bandar Abbas but to first anchor be-
hind the island of Ormuz and then send a notification of impending arrival
to Bandar Abbas, then awaiting the orders of our servants there. Thirdly:
[about a specific ship present in the Gulf at that moment: the ‘s Heeren
Arendskerke, it has to be sent from Bandar Abbas to Bassoura as soon as
possible, even if it is still half loaded. From Bassoura it has to sail for Bengal
without delay.] Finally: to use for the Persian trade only the lightest ships,
that are able to sail in very shallow waters, which can be sailed into the river
Euphrates if any fear of confiscation by the Persians arises.”39
• A summary of Persia in 17 chapters, prepared in 1757 by the councillors
Van de Velde and Van Rheeden, which briefly describes the history of re-
quests and lending of vessels to Persia, recounts the following: “In the year
38 na 1.04.02 (voc) rec.no. 762 fols. 215–217 [rggc], concerning the loaning of ships to the
king, dated September 2, 1738 (translation by G.G.J. Boink, on file with authors).
39 na 1.04.02 (voc) rec.no. 773 fols. 271–274 [rggc], regarding measures devised to avoid
the harmful loaning of ships to the Persian king, dated April 21, 1744. (translation by
G.G.J. Boink, on file with authors). The comments between square brackets are from Mr.
Boink’s translation of the document.
332 chapter 6
1697 we sent six ships under command of commander Harmen Voet, to as-
sist the Crown against the Muscat Arabs, but these had to return fruitlessly
and all [Persian] promises etc. vanished ‘into the wind’. [fol. 1408] [also at
the time that Nadir Shah ruled, and after that (from 1735)], we have steadily
been subject to the loaning of ships to transport troops; we were first re-
quested to do so, and if we refused we were forced, without receiving any-
thing as favour or compensation, except for three royal mandates which we
received in 1737. [fol. 1432-1432v] And now I will write about the foreign na-
tions or indigenous powers, of which there are none of any consideration
but the Muscat Arabs, with whom the Persians are in a continual state of
war, or at least have an unsound peace. The Persians have several times re-
quested the Company’s help in waging war on this nation, which has been
refused them under this or that pretext, except for the already mentioned
commando of 6 ships under commander Harmen Voet in 1696, and in which
refusal the High Honourable [i.e. the Gentlemen xvii] have commanded us
to keep neutral, as not to cause displeasure for any party, especially not for
the suspicious Persians.”40
Theories Underlying Persian Claims of Sovereignty
Notwithstanding the indications arising out of this contemporaneous evi-

dence that Persia may not have had the practical ability to effectively occupy
and administer any of the three disputed islands on a continuous basis during
the seventeenth or eighteenth centuries, as well as the absence of any evidence
that it actually attempted, or in fact did occupy them or exercise any sover-
eign activities there, a number of scholars have taken the view that Persia’s
sovereignty over the islands can be established during that period on the
basis that they were formally made part of the southern Persian Province of
Fars by the Safavid Empire (1502–1722).41 For example, one author states that:
40 na 1.04.02 (voc) rec.no. 2870 fols. 1303–1468 [ls&r], Copy of the radical description of
Bengal and Persia made by the councillors Van de Velde and Van Rheeden, made by order
of the Council of India, dated 1757 (translation by G.G.J. Boink, on file with authors). The
comments between square brackets are from Mr. Boink’s translation of the document.
41 See, e.g., Willem Floor and Edmund Herzig, ed. Iran and the World in the Safavid Age
(London: I.B. Tauris & Co Ltd, 2012); Andrew Newman, Safavid Iran, Rebirth of a Persian
Empire, 2009 (London: I.B. Tauris & Co Ltrd, 2008); Roger Savory, Iran Under the Safavids
(Cambridge: Cambridge University Press, 1980). Mojtahed-Zadeh notes: “The Safavids
revived the Sassanid tradition of political administrative organization of the country
and created nineteen ayalat (autonomous provinces) and beglerbeg (semi-autonomous
governates-general).” Pirouz Mojtahed-Zadeh, “Perspectives on the Territorial History of
“The Province of Fars in southern Iran included all the ports and islands in
the Persian Gulf. Affairs of districts and islands of this province were admin-
istered from and taxes paid to the capital Shiraz.”42 Another author maintains
that from around 1763, the “governorship of the Iranian coast and islands” was
conferred on a prominent Persian authority in Fars, Muhammad Khan Bastaki:
“From this time until the end of the nineteenth century, the port of Lingeh and
its corresponding coastal archipelagic islands, namely, the Farurs, Tonbs, Sirri,
and Abu Musa continued to be ruled by the governors of Lingeh, itself a port
of the Province of Fars.”43
Other arguments of a more general and geographic nature in support of
Iran’s claim of sovereignty are also advanced by certain scholars. These in-
clude the assertion that the disputed islands formed “an archipelagic entity
within the geopolitical and economic gravitational field of the Iranian main-
land, particularly the port of Lingeh”;44 and the assertion that “Islands lying as
close to the Iranian coast as the Tonbs ‘are held to be natural dependencies of
the territory of the nation that owns the coast, to which the sovereignty over
these islands is of infinitely greater importance than to any other for the sake
of its security at sea and on land’.”45
A third line of argument in support of the existence of Persian sovereignty
over the disputed islands during the eighteenth century contends that,
even if Persia did not take possession or directly administer the islands, it
administered and in effect acquired them through the Qawásim. The outlines
of this hypothesis appear to be as follows: Members of the Qawásim, who had
become increasingly active and involved in the chaotic struggles for power in
the areas of the Persian side of the Gulf littoral around Bandar Abbas, Qeshm
island and Lengeh in the several decades following the assassination of Nadir
the Tonb and Abu Musa Islands”, in Hooshang Amirahmadi, ed. Small Islands, Big Politics:
The Tonbs and Abu Musa in the Persian Gulf (New York: St. Martin’s Press, 1996), 36.
42 Mojtahed-Zadeh, “Perspectives”, 36 (emphasis added).
43 Davoud H. Bavand, “The Legal Basis of Iran’s Sovereignty over Abu Musa Island”, in
Hooshang Amirahmadi, ed. Small Islands, Big Politics: The Tonbs and Abu Musa in the
Persian Gulf (New York: St. Martin’s Press, 1996), 80–81 (emphasis added).
44 Ibid., 81.
45 Guive Mirfendereski, “The Ownership of the Tonb Islands: A Legal Analysis” in Hooshang
Amirahmadi, ed. Small Islands, Big Politics: The Tonbs and Abu Musa in the Persian Gulf
(New York: St. Martin’s Press, 1996),123. In this same manner, the author suggests that
the military expeditions sent by Persia to Oman and Ras Al Khaimah by sea during two
occasions in the eighteenth century “may have added a greater importance to the Tonbs,
as these islands lay on the sea lanes plied at the time by the Iranian navy”. Ibid.
334 chapter 6
Shah in 1747,46 eventually settled in Lengeh47 and were subsequently “delegat-

ed” the local administration of the town by the governor of the Iranian coast
and islands, Muhammad Khan Bastaki:
They [the Qawásim] allegedly signed an agreement with him [Bastaki],

agreeing that henceforth the Qavasem would be subordinate to the gov-
ernor of Bastak Mohammad Khan Bastaki. The latter granted the chief of
the Qavasem at Lengeh the function of revenue collector (zabet) and the
title of sheikh.48
Floor marks the beginning of Qawásim “sway” over Lengeh to sometime before
1765, while indicating that if the “alleged” agreement between the Qawásim
and Bastaki existed, it must have been signed sometime in the 1770s (“because
Sheikh Mohammad Khan Bastaki became the governor of Bandar ‘Abbas
only in 1769”49). Bavand states that it was sometime after 1789 that Bastaki’s
heir (Hadi Khan Bastaki) “delegated the local administration of Lingeh to a
Qasimi Sheikh”, but he does not place this delegation within the context of a
contractual relationship.50 Connecting the matter of the Qawásim governance
over Lengeh to assertions of sovereignty over the disputed islands is brought
into focus in this description by Mirfendereski:
Suffice it to say: (i) in or about 1780, the Iranian government conferred

on a Qasimi inhabitant of Lingeh the government of the port; (ii) the
46 Sultan Muhammad Al-Qasimi, The Myth of Arab Piracy, 2nd ed. (London: Routledge,
1988), 26; Willem Floor, The Persian Gulf: The Rise & Fall of Bandar-e Lengeh (Washington:
Mage Books, 2010), 34.
47 It is disputed whether they were invited to settle at Lengeh by Bastaki or essentially took
over the town.
48 Floor, Rise & Fall of Bandar-e Lengeh, 35.
49 Ibid.
50 Bavand, “Legal Basis”, 81. It should be noted that scholars are divided on the precise timing
of the Qawásim settlement at Lengeh and in whose hands real control was held. Some,
including Mattair, maintain that Lengeh belonged to the Qawásim from the 1750s until
their expulsion by Persia in 1887 (with one period of interruption from 1763 until 1777 fol-
lowing their “expulsion” by the Persian Shah, Karim Khan Zand), and that their presence
was “independent of weak Persian central governments and provincial governments in
Fars”. Thomas Mattair, The Three Occupied uae Islands: The Tunbs and Abu Musa (Abu
Dhabi: The Emirates Center for Strategic Studies and Research, 2005), 36–38. Easa Saleh
Al-Gurg dates the establishment of the Qawásim sheikhs in Lengeh from the 1720s. See
Easa Al-Gurg, The Wells of Memory: An Autobiography (London: John Murray Publishers,
1998), 5.
s uccessive Qasimi administrators of Lingeh remained subjects and offi-

cials of the Iranian government until their divestiture in 1887; and (iii)
already a faction of the larger Qawásim tribal group that was often at
odds with the Qawásim in the eastern lower Persian Gulf, the Qawásim
of L ingeh were subjects of the Iranian government throughout their
settlement on the Iranian coast. The Tonb islands were included in the
administration of Lingeh because of their close proximity to Lingeh.51
In other words, this argument appears to assert that the Qawásim leaders of
Lengeh were granted the contractual right and obligation, on behalf of the
Persian government, to administer the town itself, and that this contractual
right/obligation must be interpreted as having extended to the Tunbs given
their geographical proximity to Lengeh.
Another scholar, Shahnaz Nadjmabadi, refers to a general circumstance
arising towards the middle of the eighteenth century which saw, in connection
with the “continuous, systematic Arab settlement in the Iranian coastal prov-
inces of the Persian Gulf”,52 a number of Arab tribes, including the Qawásim,
entering into “contractual relationships” with the Persian government under
which the tribes would “lease” a geographical area, and in return receive “the
right to collect duties from the population on all sources of income, … to deter-
mine the amount of taxes, and to freely dispose of the tax revenue.”53 For their
part, the tribal leaders would commit “themselves to protecting the popula-
tion of the coastal region against attacks from outside and regularly paid taxes
(maliat) to the Iranian state.”54 Nadjmabadi’s thesis is that these arrangements
arose out of the inability of the Persian government to protect its own Gulf lit-
toral and the instability there caused by “the presence of foreign powers, raids
and attacks by ‘pirates’ of different origins on the Iranian coast and internal
conflicts”.55 She writes that the “Iranian central government, unable to provide
the local population the necessary protection, was dependent on support from
Arab tribes.”56 The arrangements she describes appear to be roughly similar to
those referred to by Floor mentioned above.
The legal effect of any contractual arrangement entered into between the
Qawásim and the Persian government, or some provincial or local authority,

52 Shahnaz Razieh Nadjmabadi, “The Arab Presence on the Iranian Coast”, in Lawrence G.
Potter, ed. The Persian Gulf in History (New York: Palgrave Macmillan, 2009), 135.
53 Ibid., 133.
54 Ibid.
55 Ibid
56 Ibid.
336 chapter 6
and whether it affected in any way legal rights of title over the disputed islands,
would have to be viewed in accordance with the terms of the agreement it-
self, and the legal status of the islands at the time the purported contractual
arrangement was entered into. Thus, if the islands remained as terra nullius
when the purported grant was made, or if the islands had been effectively
occupied by then (whether by Persia or the Qawásim), could clearly lead to
distinct legal consequences. These varying scenarios are discussed below.
However those scenarios may be analyzed, they are all impacted by a funda-
mental uncertainty, which is that there is no written evidence of the existence
of such an agreement between Persia and the Qawásim, or that if it did exist,
what its terms were and whether it conferred any political authority on the
Qawásim, as opposed merely to the obligation to collect taxes in the sense of
a tax farming lease.
Given their continuing status as terra nullius following the defeat of the
Portuguese at Hormuz in 1622, whether any of the assertions mentioned thus
far related to the seventeenth and eighteenth centuries presents a credible
basis on which to found an argument that Persia acquired sovereignty over
the islands depends on whether they can be factually confirmed and rightly
seen as evincing an occupation of those islands in accordance with the legal
parameters then generally observed.
Asserted Incorporation of the Islands into the Province of Fars and

the Raising of Taxes from the Islands
A claim which asserts that the acquisition of title by Persia over the disputed
islands during the seventeenth or eighteenth centuries may be based on the
formal incorporation of the islands into the Province of Fars or the port district
of Lengeh by the Safavid empire and the administration of, or raising of taxes
from, the islands by the Persian State would raise a number of evidentiary and
legal questions related to the acquisition of sovereignty over terra nullius. In
connection with an analysis of these matters, it is useful to recall that while
it is generally recognized that as early as the mid-eighteenth century acquir-
ing sovereignty over terra nullius required that the occupation by the claimant
State be “effective”,57 it is also generally agreed that prior to that time, and as
early as the fifteenth century, some act of appropriation of terra nullius was
57 Island of Palmas case, 845–846 (“International law in the 19th century, having regard to
the fact that most parts of the globe were under the sovereignty of States members of the
community of nations, and that territories without a master had become relatively few,
took account of a tendency already existing and especially developed since the middle
of the 18th century, and laid down the principle that occupation, to constitute a claim to
required in order to complete an occupation, including in circumstances in

which a claim was initially made through a symbolic act creative of an incho-
ate title.58 As noted by Waldock, acts such as discovery were not capable on
their own of conferring title in the sixteenth century if they were not accom-
panied by a ppropriation, or actual taking of possession of the territory: “the
opinion is preferred that not even at that date was discovery sufficient for title
without some form of appropriation.”59 He adds that, around the middle of
the eighteenth century, “[t]he emphasis has shifted from the taking of physical
possession of the land and the exclusion of others to the manifestation and
exercise of the functions of government over the territory.”60 Thus, “[w]hatever
may be the truth about the law of discovery and occupation in the sixteenth
and seventeenth centuries, it is certain that from the middle of the eighteenth
century onwards increasing emphasis was placed on the need to perfect an
inchoate title within a reasonable period by effective occupation.”61
Under either of these doctrinal approaches (roughly, pre or post mid-
eighteenth century), an asserted acquisition of title over the islands by Persia
in the seventeenth or eighteenth centuries would have required the exercise
of some sovereign act (whether of physical appropriation or effectiveness) on
the islands to obtain or consolidate that title. Moreover, in line with the pro-
nouncement of Judge Huber in the Island of Palmas case that “a distinction
must be made between the creation of rights and the existence of rights”,62 the
“same principle which subjects the act creative of a right to the law in force
at the time the right arises, demands that the existence of the right, in other
words its continued manifestation, shall follow the conditions required by the
evolution of law.”63
In accordance with this reasoning, any claim which may have been made
to the islands at some point prior to the mid eighteenth century based on a
symbolic, or nominal, act which was not followed by some act of actual pos-
session or effective occupation to conform to “the evolution of law”, would not
territorial sovereignty, must be effective, that is, offer certain guarantees to other States
and their nationals.”). See chapter 3. See also supra notes 5–7 and accompanying text.
58 See supra notes 1–5 and accompanying text. Other theories, which are not as generally
accepted, hold that prior to the eighteenth century, a symbolic act, including discovery,
“involved ipso jure territorial sovereignty and not merely an inchoate title.” See Island of
Palmas case, 845.
60 Ibid., 317.
61 Ibid., 324.
63 Ibid.
338 chapter 6
“suffice to prove sovereignty” existed at all.64 Waldock states that the “impor-
tance of this interpretation cannot be overstated. It means that an established
title may be lost not only by voluntary abandonment but by mere inactivity,
that is, by failure to display state activity with a continuity appropriate to the
circumstances.”65
As for the degree of State activity, or effectiveness, which would have been
required to support a title to territory by occupation, this may vary “with the
circumstances of each territory.”66 As noted by Waldock, Fitzmaurice, L indley
and others, “what is sufficient will depend on all the circumstances.”67 But au-
thority is clear that the exercise of State functions must be actual and “not a
mere paper claim dressed up as an act of sovereignty.”68 Thus, in the Clipperton
Island case, it was held that “the actual and not the nominal, taking of posses-
sion is a necessary condition of occupation. This taking of possession consists
in the act or series of acts, by which the occupying state reduces to its posses-
sion the territory in question and takes steps to exercise exclusive authority
there.”69 The State’s exercise of authority and display of State functions must
also be “continuous”, but keeping in mind Huber’s pronouncement in the Is-
land of Palmas case that “[a]lthough continuous in principle, sovereignty can-
not be exercised in fact at every moment on every point of a territory”,70 the
frequency of activity may vary depending on the circumstances and location
of the territory in question: “[t]he intermittence and discontinuity compatible
with the maintenance of the right necessarily differ according as inhabited
or uninhabited regions are involved, or regions enclosed within territories in
which sovereignty is incontestably displayed or again regions accessible from,
64 Judge Huber made this clear in stating that “The growing insistence with which interna-
tional law ever since the middle of the eighteenth century has demanded that the occu-
pation shall be effective, would be inconceivable, if effectiveness were required only for
the act of acquisition and not equally for the maintenance of the right.” Island of Palmas
case, 839 (emphasis added).
66 Ibid., 336.
67 Ibid., quoting from Sir Mark Frank Lindley, Acquisition and Government of Backward Terri-
tory (1926); Sir Gerald Fitzmaurice, “The Law and Procedure of the International Court of
Justice, 1951–4: Points of Substantive Law, Part ii”, British Yearbook of International Law 32
(1955–1956): 20–96, 51.
69 Arbitral Award on The Subject of the Difference Relative to the Sovereignty over Clipperton
Island, Award of January 29, 1931, ajil 26 (1932) 390, 392–393. 393.
for instance, the high seas.”71 Notwithstanding this general statement, Judge
Huber also made clear that where there is doubt as to sovereign ownership
because no “conventional line” establishing the limits of territorial s overeignty
exists, “or if, as e.g. in the case of an island situated in the high seas, the question
arises whether a title is valid erga omnes, the actual continuous and peaceful
display of State functions is in case of dispute the sound and natural criterium
of territorial sovereignty.”72 Commenting on the level of sovereign activity re-
quired to confer a valid title in relation to uninhabited or sparsely inhabited
territory, Waldock states:
It is enough if the state displays the functions of a state in a manner cor-

responding to the circumstances of the territory, assumes the responsi-
bility to exercise local administration, and does so in fact as and when
occasion demands.73
In considering the types of State activity evidencing title which were discussed
by the icj in the Minquiers and Ecrehos case, the Court attached particular
probative value to (i) the exercise of jurisdiction, (ii) local administration and
(iii) legislation.74 With regard to this last category (legislation), it is interesting
to note that the Court attached significance to a British legislative act which
included the Ecrehos within the limits of the British port of Jersey, calling it “a
clear manifestation of British sovereignty”.75 However, as noted by Fitzmaurice,
while the legislation was clear evidence of the “intention and will” to act as sov-
ereign over those islets, it was “not sufficient in itself to create title”.76 In other
71 Ibid.
72 Ibid.
73 Waldock, “Disputed Sovereignty”, 336 (emphasis in original). Waldock also notes that, in
describing this rule, Lindley had considered that “in the case of small islands used merely
for the purpose of a particular business, such as the catching or curing of fish or the col-
lecting of guano, the presence of an official or two may be [a] sufficient” level of sovereign
activity to confer title. Waldock considers that “in the light of the modern cases[, w]hen
uninhabited or very sparsely inhabited territory is taken into sovereignty, the occupying
state may not necessarily be required to maintain even a single official permanently on
the spot” so long as the above-quoted criteria are met. Ibid.
74 Although this case did not involve an assertion of title by either of the parties through
occupation of terra nullius, the evaluation of the parties’ claims involved an assessment
of their respective connections to the islands at issue which are substantially similar to an
evaluation of a claim of title through occupation.
75 The Minquiers and Ecrehos case (France/United Kingdom), icj Reports 1953, 47, 66.
340 chapter 6
words, while legislation which purports to incorporate islands or other terri-

tory within an administrative region or department of a State may constitute
evidence of the State’s intention to occupy that territory (animus occupandi),
such an act does not by itself create or vest title over that territory in the State.
The creation of title would also require that the State actually exercises sov-
ereign activity (or displays the functions of a State) over the territory, as and
when the circumstances require.
Against this legal background, a number of significant difficulties appear in
the assertion that by designating the disputed islands as part of the Province
of Fars, or the port of Lengeh, and administering the islands, including the col-
lection of taxes, from Lengeh, the islands became sovereign territory of Persia.
First, there are serious evidentiary difficulties which must be recognized. In
short, as far as the authors have been able to determine, there is no contem-
poraneous evidence which would confirm that key aspects of these factual as-
sertions are accurate. Indeed, the evidentiary basis cited as support for these
assertions by various scholars provides in certain instances no credible sup-
port at all and is in other respects doubtful. The evidence relates to two gen-
eral propositions. The first of those is that the disputed islands were formally
made part of the Province of Fars, as a dependency of the port of Lengeh, at
some point during the reign of the Safavids, presumably through action of the
Persian government. The evidence to support this assertion is unclear. There
does not appear to be in existence any evidence of an act or formal incorpora-
tion of the disputed islands into the administrative limits of Fars or Lengeh.
Presumably for this reason, the scholarly work which seeks to support this
proposition does not cite any such evidence, but instead relies on inferences,
rather than direct evidence, drawn from unsubstantiated commentaries writ-
ten one or two centuries after the demise of the Safavids. In some cases, the
sources cited do not actually support that proposition at all. For example, the
assertion referred to above (that the “Province of Fars in southern Iran includ-
ed all the ports and islands in the Persian Gulf [and] [a]ffairs of districts and
islands of this province were administered from and taxes paid to the capital
Shiraz”77) is supported exclusively by reference to a scholarly work written in
1966 in German and translated into Farsi in 1978 which, upon scrutiny, makes
no reference to the purported incorporation of the disputed islands within the
Province of Fars, or the claimed administration of or collection of taxes from
those islands by or on behalf of the Persian government.78
77 Mojtahed-Zadeh, “Perspectives”, 36.

78 See Klaus-Michael Röhrborn, Provinzen und Zentralgewalt Persiens im 16. und 17. Jahrhun-
dert (Berlin: Walter De Gruyter & Co., 1966).
Another example of the mis-use of historical evidence to promote an

a ssumed ownership of the islands by Persia during the seventeenth or eigh-
teenth centuries is set out in the work referenced above which asserts that the
“governorship of the Iranian coast and islands” was conferred on M uhammad
Khan Bastaki in 1763 and that “[f]rom this time until the end of the nineteenth
century, the port of Lingeh and its corresponding coastal archipelagic islands,
namely, the Farurs, Tonbs, Sirri, and Abu Musa continued to be ruled by the
governors of Lingeh, itself a port of the Province of Fars”.79 This assertion,
purportedly of an historical fact, is not based on any contemporaneous e vidence
from either the eighteenth or nineteenth centuries. Rather, it is based on a sin-
gle source (an unpublished dissertation written in 1985) which does not – as
claimed – name the islands at all, but on the contrary, states that the islands
purportedly contained within the coastal district under Bastaki’s jurisdiction
were “unspecified”.80 Moreover, the source itself bases its findings regarding
the terms of Bastaki’s appointment and the territorial scope of his supposed
jurisdiction over the disputed islands on yet another modern scholarly work
written in 1970 which in turn bases its findings on these same matters on a
further undocumented manuscript written by a descendant of M uhammad
Khan Bastaki himself around 1960 (some two centuries after the appointment
took place). The historical interpretations and conclusions set out in these
various works might be accurate, but in connection with the dispute over sov-
ereign title to the islands, they should be recognized as u
nsupported assertions
rather than probative evidence.
Another assertion referred to above, which states that in the late eighteenth
century the “Tonb islands were included in the administration of Lingeh
because of their close proximity to Lingeh”, and seeming to imply because of
this that the Tunbs were considered sovereign Persian territory, is based on
two sources.81 Not only were both of those sources written more than a cen-
tury after the events of the eighteenth century referred to (for which their
79 Bavand, “Legal Basis”, 80–81 (emphasis added).

80 Guive Mirfendereski, “The Tamb Islands Controversy, 1887–1971: A Case Study in Claims
to Territory in International Law” (PhD diss., Fletcher School of Law and Diplomacy, Tufts
University, 1985), 316: “On 10 January 1763 Karim Khan Zand’s appointee as Governor
of the Jahangireh District arrived in Bandar Abbas. Sheikh Muhammad Khan Bastaki’s
government included the Persian Coast from Bandar Abbas to Gavbandi (including, of
course, Lingah) and ‘the islands’ (unspecified).” (emphasis added).
81 Mirfendereski, “Ownership of the Tomb Islands”, 124 and note 62, citing to “f.o. 371/14535
(1930), Persia 5935/143/34: Robert Clive (Teh). to A. Henderson (f.o.), no. 520, 22 O
ctober
1930, no. 1, enclosure 3” and to “Curzon, Persia and the Persian Question, Vol. ii, 409.”
Ibid., 149.
342 chapter 6
probative value as evidence should be brought into considerable doubt), but

neither of them actually support the proposition that the Tunbs (or Abu Musa)
were included within the administrative limits of either the port of Lengeh or
the Province of Fars in the late eighteenth century, nor that the islands were
the sovereign territory of Persia. In fact, one of these two sources, a British
governmental aide-mémoire written in 1930, is taken out of context when cited
by the Iranian scholar and completely contradicts the Persian claim of sover-
eign ownership of the islands. It is worth citing a large passage of this document
to illustrate this point (the part that the Iranian scholar relies on is in italics):
Until the middle of the 18th century the history of these three islands
is obscure… On the contrary, there are documents which prove undeni-
ably that from this date [i.e., middle of the 18th century] until the end
of the 19th century, those islands belonged to the Sheiks of Oman [i.e.,
the Qawásim], and that, during this period, Persia never exercised any
de facto control. Towards the end of the 19th century – and it is upon
this consideration that the Persian thesis seems to be based – the sheikhs
of Lingah, who became Persian subjects as a result of the consolidation
of the central power, continued to administer those islands, just as they
had done so since the times of their independence. This is very simply
explained by the fact that two of the three islands, namely Tomb (with
Nabiou- Tomb) and Bu Musa are substantially closer to Lingah than they
are from the other coast of the Gulf; it is only natural that the few admin-
istrative tasks that were needed in these small more or less desert islands
was entrusted from the beginning to the Jowasimi of Lingah, and since
they have at all times kept largely independent and the Persian Govern-
ment of that time never formulated objections, they continued to take
charge thereafter. But it is undoubtedly in their capacity as Jowasimi
sheiks, and not in that as Governors of Lingah that they exercised this
control: it was only the younger branch of the larger Jowasimi of Oman
tribe and anyone who knows the tribal system of these Arabs cannot
deny that such territories always from part of the inalienable heritage of
the whole clan.82
Archive Editions, 1993), Vol. 4, 386–387, containing an Aide-Memoire from the British
Legation in Tehran, dated October 21, 1930, which is Enclosure No. 3 to Telegram No.
520 from Sir Robert Clive to Mr. A. Henderson, dated October 22, 1930, archived as f.o.
371/14535 [E 5935/143/34] (emphasis added) (our translation from French).
The other source, dating from 1892, is ambiguous, noting that:
The Arabs [residing in Lengeh] belong to the Kowasim (vulgarly

ronounced Jowasmi) tribe, a branch of the larger stock who people
p
the opposite Arabian coast at Ras-el-Kheimah. For generations the
governorship of Lingah, and of the islands lying off the shore, has been an
hereditary patrimony of the sheikh of this tribe, who resided at Lingah, and
was always recognized by the Persians as deputy-governor of the town.83
The meaning of the phrase “hereditary patrimony of the sheikh” is vague and
susceptible to various interpretations, but it is certainly not evidence for the
proposition that the Tunbs (which are not mentioned by name) formed part
of the sovereign territory of Persia. On the contrary, the phrase may be read
more consistently with the claim which has been asserted by the Qawásim,
that the islands belonged to them and constituted their tribal, or “hereditary
patrimony” beginning in the eighteenth century.
Other sources are referenced by other scholars. Among these is an account
of the geographical extent of the Safavid Empire written around 1670 which
incorporates all Gulf islands within the borders of the empire. However, this
account has little probative value as it was neither produced by the Safavid
government itself nor is consistent with historical evidence which demon-
strates that Persia held little sway over Gulf waters or many, if not most, of
these islands during that time.
In sum, there do not appear to be any contemporaneous or otherwise
credible sources of evidence which might demonstrate that through some
governmental or official act the disputed islands were in fact specifically made
part of the geographical limits of the Province of Fars or officially placed under
the administrative authority of the port of Lengeh during the seventeenth or
eighteenth centuries. As any such assertion that this was the case would, in
a judicial or arbitral context, require the proponent of that view to carry its
burden of proof, it is difficult to foresee on the evidence that has come to light
that this could be met.
The importance of determining whether the islands had been designated
as part of the Province of Fars, or the port of Lengeh, through some official
or legislative act, should not be over-stated. While relevant to the claim of
ownership by Iran, such an act would be sufficient only to demonstrate the
animus to occupy the islands but insufficient to create title.84 The creation of
83 George Nathaniel Curzon, Persia and the Persian Question (London: Longmans, Green &
Co, 1892), Vol. 2, 409 (emphasis added).
344 chapter 6
title over the islands, as terra nullius, would have required Persia to exhibit
both the n ecessary animus as well as to either physically appropriate the is-
lands within a reasonable period of time or (in accordance with the “evolution
of law”) to actually and continuously display State activity on the islands.85
Thus, if the purported acts of administration or collection of taxes from the
islands by the Province of Fars on a “continuous” basis (relative to their cir-
cumstances) cannot be established through credible evidence, and there are
no other displays of sovereignty on the islands which may be relied upon to
demonstrate Persia’s “taking of possession”, then any assertion that Persia had
effectively occupied the islands would have no legal basis and for that reason
would be unsustainable. This, in fact, appears to be the case as, despite claims
to that effect, no contemporaneous or otherwise credible or probative evi-
dence has surfaced that any acts of local administration were carried out on
the islands by Persia or its officials, nor that any taxes were assessed or paid
from or in relation to the islands to any Persian governmental entity during
the seventeenth or eighteenth centuries.86 Indeed, as mentioned throughout
this work, there appears to be virtually no evidence that Persia took any genu-
ine sovereign interest in the islands until the late nineteenth century. Thus,
any argument based on the assumption that Persia had staked a claim to the
islands in the seventeenth or eighteenth centuries on the basis of the consid-
erations noted above would appear to be difficult if not impossible to sustain
as an evidentiary matter.
The consequence of concluding that there is no evidence that the Persian
State carried out acts of administration on or imposed and collected taxes
from the disputed islands (and that Persia did not display any other acts of
sovereignty on the islands) would thus be to eliminate any notion that, apart
from the symbolic act of unilaterally designating the islands as part of the Prov-
ince of Fars (for which, as noted above, there is also no contemporaneous evi-
dence which has come to light, and which, standing alone, would in any event
not “suffice to prove sovereignty” but only the animus to possess terra nullius),
Persia exercised any sovereign authority or activity on the islands during the
seventeenth or eighteenth centuries. Such a conclusion would be fatal not only
to an assertion that Persia had occupied the islands under the doctrine of ef-
fective occupation as it developed from the mid-eighteenth century, but, in
85 This, in the words of the award in the Clipperton Island case, was described as “the actual
and not the nominal, taking of possession … consist[ing] in the act or series of acts, by
which the occupying state reduces to its possession the territory in question and takes
steps to exercise exclusive authority there.” Clipperton Island case, 393.
86 For example, none of the works cited in this chapter which refer or claim that taxes were
paid from the islands to the Province of Fars are supported by any evidence whatsoever.
line with the pronouncement of Judge Huber in the Island of Palmas case (and
even if it could be established that the islands had been, by government act,
officially made part of the Province of Fars or the port of Lengeh), it would also
be fatal to an argument (albeit a flawed one) that such a symbolic act was suf-
ficient on its own to bestow title prior to that time. This is because, consistent
with the reasoning of the decision in Island of Palmas, the symbolic taking of
possession (even if sufficient to create title prior to the eighteenth century,
which is doubtful) would have had to be followed by some act of actual pos-
session or effective occupation to conform “to the evolution of law.”87 As there
appears to be no evidence that this was done, the claim of title to the islands
through occupation would fail. It should also be added that this conclusion
would be consistent with both the inferential evidence referred to at the begin-
ning of this chapter, which reveals no Persian government activity or presence
on the islands whatsoever during the seventeenth and eighteenth centuries,
and with the absence of reliable Persian naval assets in general, which, particu-
larly in light of the hostile environment which existed on Gulf waters during
much of the seventeenth and eighteenth centuries, could have significantly
hindered Persia’s practical capacity to exercise authority over islands located
on the high seas even if it had the intention to do so.
“Contiguity” or Other Geographical Considerations

The arguments that Persia acquired sovereign title over the islands in the sev-
enteenth or eighteenth centuries on the basis of the principle of contiguity or of
its geographic proximity to the islands (or their supposed inclusion in Persia’s
or Lengeh’s “geopolitical and economic gravitational field”) would also encoun-
ter a number of obvious difficulties. These include the absence of any evidence
that Persia ever made out such a claim in the seventeenth or eighteenth centu-
ries, and the lack of evidence (assuming the conclusions regarding evidentiary
matters set out above) that Persia ever expressed any intention to occupy or
possess the islands during that period,88 notwithstanding any such geographi-
cal considerations or the existence of the supposed “gravitational field”. These
considerations, including the apparent lack of any animus occupandi, would
make it virtually impossible to argue now that Iran’s claim over the islands
can legitimately be traced back to a supposed acquisition by occupation
87 Island of Palmas, 845. See supra notes 63–64 and accompanying text.
88 As shown in the previous section, there is little probative evidence that Persia expressed
an intention to occupy the islands by designating them as part of the Province of Fars
through some official or governmental act, or that it acted on such intention by carrying
out acts of administration on or collecting taxes from the islands during this period.
346 chapter 6
carried out three centuries ago. There is simply no evidence of any intention by
Persia to do so (nor any evidence of physical occupation) and thus one of the
most fundamental requirements for the acquisition of terra nullius through
occupation – the intention to acquire sovereignty – cannot be shown to have
ever existed.
Even if Persia had at that time asserted an intention to acquire, or a belief
that it had acquired, sovereignty over the islands on the basis of their mere
proximity to the Persian mainland, or a belief as to their inclusion in a geo-
graphical area somehow gravitating politically or economically towards the
Persian littoral which justified Persia’s assumption of sovereignty, such asser-
tions would not have been sufficient on their own to bestow title. As previously
explained in this book with respect to the contiguity doctrine and other geo-
graphical considerations89 and as noted by Huber in the Island of Palmas case,
“it is impossible to show the existence of a rule of positive international law to
the effect that islands situated outside territorial waters should belong to a State
from the mere fact that its territory forms the terra firma (nearest c ontinent or
island of considerable size)…. Nor is the principle of contiguity admissible as
a legal method of deciding questions of territorial sovereignty; for it is wholly
lacking in precision and would in its application lead to arbitrary results.”90
Such “arbitrary results” would be that much more in evidence in these hypo-
thetical circumstances as in the seventeenth and eighteenth c enturies the
extent and scope of Persia’s sovereign control over its southern Gulf littoral,
particularly in the region closest to the islands, was unstable, contested and in
certain areas almost entirely absent (see discussion in chapter 1). Thus, apply-
ing a contiguity doctrine in a manner which projects the geographical extent
of a claimant State’s sovereignty seaward to islands located on the high seas
from coastline areas which are not entirely (or at all) under its control would
push the doctrine, even if otherwise valid, too far. Fitzmaurice has added this
conclusive and illuminating statement on the subject:

90 Island of Palmas case, 854–855. See also the pronouncement in the Eritrea/Yemen
a rbitration, which stated that “[t]here is a strong presumption that islands within the
twelve-mile coastal belt will belong to the coastal state, unless there is a fully-established
case to the contrary (as, for example, in the case of the Channel Islands). But there is no
like presumption outside the coastal belt, where the ownership of the islands is clearly at
issue… And even if there were a presumption of coastal-state sovereignty over islands
falling within the twelve-mile territorial sea of a coastal belt island, it would be no more
than a presumption, capable of being rebutted by evidence of a superior title.” Territorial
sovereignty and Scope of Dispute (Eritrea/Yemen), Award of October 9, 1998, riaa 22 (1998)
209, para. 474 (emphasis added).
Contiguity or proximity not ground of title. This is so as a matter both of

principle and of precedent. Since international law now postulates the
effective exercise of State functions as the basic requirement of title …, it
would be wholly inconsistent with this position if the mere fact of prox-
imity could confer title. The real basis of claims founded on proximity is
sentimental, economic or political, as the case may be, but not legal.91
As geographical doctrines do not provide “distinct legal roots” for the establish-
ment of title, a claim (if it had been asserted) that any of the disputed islands
should have fallen under the sovereignty of Persia merely by virtue of their
geographical proximity to the Persian mainland would therefore have been
untenable.
Although geographical considerations are not grounds of title, they may “in
certain circumstances afford some evidence of its existence”92 within the prin-
ciple of effective occupation. Thus, “proximity may, in certain circumstances,
operate to raise a presumption of fact that a particular state is exercising or
displaying sovereignty over outlying territory in which there is no noticeable
impact of its state activity.”93 As recognized by Judge Huber, and elaborated
by numerous scholars, including Waldock, Fitzmaurice, Jennings and others,
in determining whether an occupation has been effective, “[t]he fact that a
State cannot prove display of sovereignty as regards such a portion of territory
cannot forthwith be interpreted as showing that sovereignty is inexistent. Each
case must be appreciated in accordance with the particular circumstances.”94
This statement is complemented by another well-known statement of Judge
Huber in the Island of Palmas case, that “sovereignty cannot be exercised in
fact at every moment on every point of territory.”95 In accordance with these
pronouncements, while contiguity and other geographical considerations do
not serve as evidence of an independent basis of title, they are relevant “as
a fact assisting the determination of the limits of an effective occupation.”96
Stated another way, the principle of contiguity constitutes “a technique in the
application of the normal principles of effective occupation.”97
91 Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 72, note 2.
92 Ibid., 72.
94 Island of Palmas case, 855. See also, Waldock, “Disputed Sovereignty”, 336; Fitzmaurice,
“Law and Procedure of the icj (Part ii)”, 74; Robert Jennings, The Acquisition of Territory in
International Law (Manchester: Manchester University Press, 1963), 20–21.
97 James Crawford, Brownlie’s Principles of Public International Law, 8th ed. (Oxford: Oxford
348 chapter 6
The question which then arises is whether a hypothetical claim to the is-
lands by Persia in the eighteenth century on the basis of occupation would
have been valid, notwithstanding the absence of any display of sovereignty on
or actual possession of the islands, on the grounds that, given their geographi-
cal proximity to or “gravitational” pull towards the Persian mainland, it was not
necessary to exercise specific acts of sovereignty on the islands themselves to
demonstrate Persia’s sovereignty over them.
Apart from the absence of any evidence that such claim was ever made, this
argument would be very difficult to sustain for a variety of other reasons. First,
there is a possible doctrinal difficulty in applying these geographical consider-
ations to the islands at all. This may be appreciated by recalling the views of
Waldock and Fitzmaurice quoted above, that “it is only within the principle
of effective occupation that international law takes account of contiguity.”98
Although contested and subject to the control of various competing groups
in particular areas, there are no grounds for arguing that the Persian littoral
constituted terra nullius in the seventeenth or eighteenth centuries. There are,
therefore, no grounds for arguing that the disputed islands became subject to
the sovereignty of Persia as part of its effective occupation of other points on
the mainland. Again quoting Waldock, geographical considerations are rel-
evant, but only “as a fact assisting the determination of the limits of an effec-
tive occupation”.99 This reasoning would be equally true with respect to Judge
Huber’s pronouncement regarding a group of islands, where the “fate of the
principal part [i.e., the principal island] may involve the rest [i.e., the smaller or
outlying islands]”.100 The inclusion of the less important islands within the ac-
quisition of sovereignty over the “principal” island was, again, premised on the
doctrine of occupation, or as Fitzmaurice put it, “where the occupation of the
main island of a group might be regarded as extending to the whole group”.101
These premises do not apply to an asserted acquisition of the disputed is-
lands by Persia as such an acquisition would not constitute an extension of its
occupation of any other territory.
Even if such doctrinal difficulties are not considered an impediment to the
application of the doctrine itself, an asserted occupation of the disputed islands
on the grounds that they were so closely identified with and attached to areas
on the Persian littoral under the effective control of the Persian government –
and in particular the port of Lengeh – that its sovereignty had to be presumed

to have extended to the islands although they were not under the possession
of the Persian government would face a number of other difficult legal and evi-
dentiary obstacles. The notion that the taking of possession of certain territory
through its effective occupation may extend to other territories (or islands)
which have not been occupied (or as Waldock describes it, where “there is no
noticeable impact of its state activity”102) is a concept which can only be ap-
plied within certain limitations or conditions. These include demonstrating
the existence of factors which justify considering the “principal” and “outlying”
territories in question as a naturally unified whole under the same sovereignty,
and which have been subject to the same sovereign authority, and establishing
that in maintaining its occupation, the claimant State has exercised sovereign
activities which relate to both the principal and outlying areas “as a whole.”103
This follows from the decision in the Island of Palmas case, where it was stated
in relation to acquiring sovereignty over a group of islands “regarded as in law
a unit”, but not all of which are actually occupied, that to secure sovereignty
of the entire group, “the display of sovereignty as a continuous and prolonged
manifestation … must make itself felt through the whole territory”.104
There is very little, if any, evidence that might adequately address either of
these requirements. In the first place, while there is some documented evi-
dence that Arab groups living on the southern Persian coast occasionally used
“adjacent islands” or “some isle in the Gulph” (which may or may not have
been the Tunbs) as a refuge or hiding place from Persian authorities in the
seventeenth or eighteenth centuries,105 there is scant evidence of any “natural
unity” between those islands and the Persian littoral, let alone any such unity
which was of such a magnitude as to consider them as intrinsically linked,
whether politically, economically or legally (or, in the words of Bavand, a unity
which brought the islands within the “geopolitical and economic gravitational
field of the Iranian mainland, particularly the port of Lingeh”106). If anything,
their possible use as a refuge from mainland, or Persian, enemies during the
eighteenth century demonstrates that they were detached from the littoral and
not under the same sovereignty. Any such intrinsic link would in any case be
difficult to imagine as the evidence which has come to light shows that the is-
lands were throughout this period uninhabited, and largely unproductive and
ignored. In light of these circumstances, there is obviously even less evidence

104 Island of Palmas, 855 (emphasis added).
105 See supra notes 19 and 24 and accompanying text.
106 Bavand, “Legal Basis”, 81.
350 chapter 6
that whatever connection may have existed between the islands and the Per-
sian mainland reflected their falling under the common sovereign authority
of Persia.
Indeed, not only is there no evidence that Persia exercised any authority
or sovereign activities whatsoever on the disputed islands, or which was “felt”
there, during this time period (for which reason alone its asserted occupation
of those islands may be discarded in line with the judicial authorities cited
above), but, conversely, there is convincing contemporaneous evidence that
the islands were beyond the reach of Persian authorities. In addition, the level
of control exercised by the Persian government over its own Gulf littoral during
extended periods of the seventeenth and eighteenth centuries is itself subject
to considerable doubt (see discussion in chapter 1). The evidence, in fact, points
to highly chaotic and unstable conditions in which Persia had little effective
control of its Gulf coastline, including in and around Lengeh itself, where the
Qawásim began exercising significant control and governance from the middle
of the eighteenth century precisely due to the lack of any Persian government
control. These general circumstances make any assertion that Persia acquired
sovereignty over the disputed islands by virtue of its sovereign possession and
control of its southern Gulf littoral even more untenable and unconvincing.
Finally, other historical circumstances make any argument that Persia should
be deemed to have acquired sovereignty over the disputed islands d uring this
period of time, without actually taking possession of them or exercising sov-
ereign activities on them, because of their alleged natural unity with the Per-
sian mainland or due to their supposed status as “natural dependencies” of
Persia, far-fetched. These include the evidence arising from the early n ineteenth
century (discussed in the following chapter) that, if anything, the disputed
islands had developed significant ties with groups – principally the Qawásim –
residing on the Arabian littoral, indicating that, if it can be d escribed as such,
a more natural unity had begun to exist between that side of the Gulf and the
islands, rather than with the Persian side. Other factors which call into doubt
the notion that a common sovereignty existed between Persia and the disputed
islands during the seventeenth and eighteenth c enturies include the generally
unstable and hostile conditions which prevailed in and around the Gulf waters
during that period generally. In that respect, it must be recalled that several
regional powers (including Oman, the Qawásim, the Bani Ma’in and others)
and foreign powers (including in the early stages some vestiges of the Portu-
guese, the Dutch, the Ottomans and the English) competed for superiority and
control of those waters, eclipsing the diminished or non-existent naval capac-
ity of Persia, which was incapable of confronting them. These factors demon-
strate that, far from occupying a position of strength from which it may be
reasonable to assume that Persia’s sovereign power and geographical reach

projected de facto into Gulf waters and its islands, the reality was far different.
Persian Acquisition of Title through Acts of the Qawásim

The conclusions reached in the previous sections of this chapter are that there
is an absence of probative evidence that during the seventeenth or eighteenth
centuries Persia either took any formal act to incorporate the disputed islands
into the geographical limits of its sovereign territory or that those islands were
somehow brought into Persia’s territorial limits through the operation of some
geographical doctrine, and that moreover there is no evidentiary basis on
which to assert that Persia or its officials ever physically possessed or occupied
the islands during that time period. These conclusions would ordinarily be
more than sufficient to find that no basis existed to ground the acquisition of
title over the islands, as terra nullius, by Persia through an effective occupation,
or indeed under any other theory.
Notwithstanding these conclusions, the outlines of an alternative theory on
which Persia may have acquired title to the islands during the latter part of
the eighteenth century have appeared. Although not specifically articulated
by any authors as such,107 this theory seeks to use the connections with the
islands developed by the Qawásim, and the settlement of certain members
of the Qawásim in Lengeh and their position in governing that town begin-
ning around the mid-eighteenth century, as a basis for tracing an acquisition
of title by Persia, through the Qawásim, dating from the eighteenth century.
In the context of determining whether an effective occupation of the islands
by Persia may be proven to have occurred on the basis of these circumstances,
three hypotheses which could lead to that result are possible.
The first hypothesis would depend on the accuracy of the following basic
factual scenario: (i) in the mid to late eighteenth century, and following the
settlement of members of the Qawásim in Lengeh, the islands remained as
terra nullius, (ii) those members of the Qawásim who had settled at Lengeh
at around that time then took possession of the islands in the name of Persia,
having been authorized to do so on behalf of the Persian government, either
107 Commentators who generally support the Iranian claim to the islands almost unani-
mously maintain that such a claim is based on historical title, and that the asserted
administration of the islands by the Qawásim leaders resident in Lengeh, on behalf of
Persia, is just further evidence of a continuing exercise of sovereignty by Persia. Thus,
these commentators do not accept the premise set out in this work that Persia has no
historical rights to the islands, and that the islands remained as terra nullius until, in all
probability, the nineteenth century.
352 chapter 6
under the terms of a contractual arrangement or otherwise as Persian citi-

zens or representatives of the Persian State, (iii) the Persian government then
followed up this acquisition of an “inchoate” title by exercising acts of sover-
eignty over the islands which were sufficient to create a definitive title under
applicable norms of international law.
Under a second hypothesis, the status of the islands following the settlement
of members of the Qawásim in Lengeh in the mid to late eighteenth c entury
would also have been terra nullius, but instead of having been authorized by
Persia to take possession of the islands, those members of the Qawásim took
possession and claimed the islands for Persia on their own as an individual
act, following which Persia ratified and adopted the claim, exercising acts of
sovereignty over the islands which were sufficient to create a definitive title
under applicable norms of international law.
The third alternative hypothesis would depend on the accuracy of the
following basic factual scenario: (i) in the mid eighteenth century, and prior
to the settlement of the Qawásim at Lengeh, ownership of the islands was
already held by the Qawásim, (ii) through the act of settling in Lengeh or in
accordance with contractual terms agreed with representatives of the Persian
State, the Qawásim transferred the ownership of the islands to Persia, and
(iii) subsequent acts of administration or control exercised on the islands by
the Qawásim throughout the nineteenth century were carried out on behalf
of Persia and do not reflect the acquisition of title to the islands by the wider
Qawásim tribe based on the Arabian littoral, whether through conquest or the
doctrine of prescription.
It might be added that any of these three hypotheses could apply to certain
of the disputed islands, but not necessarily all three of them.
(a) Did the Qawásim Hold Ownership of the Islands before They
Became Established at Lengeh and Subsequently Transfer
Sovereignty to Persia?
The third of these hypotheses, which is mentioned for the sake of complete-
ness, may be discarded almost out of hand. There are two reasons for this
conclusion. The first is that, although it has been otherwise contended by some
historians,108 there is little definitive evidence which has come to light that the
Qawásim held undisputed sovereign ownership of any of the islands as early
108 For example, Mattair asserts that “[t]here should be no doubt that [the Qawásim] made
frequent use of the islands during [the 1720s]” in connection with their expansion at that
time to the Persian coast around Bandar Kong and Basidu, and that, in connection with
their fishing, pearling and shipping activities carried out in the 1750s and 1760s, as re-
ported by van Kniphausen and Niebuhr, the Tunbs must have “belonged” to the Qawásim.
as the mid eighteenth century. Most of the evidence which does exist with
respect to the asserted use or ownership of the islands by the Qawásim during
that time period is conjectural and largely unsupported, or reflective of acts of
private persons, such as grazing of animals, pearling or fishing, rather than acts
taken à titre de souverain. These factual assertions may be accurate, but they
cannot be definitively proven as a legal matter on the basis of the evidence
which the authors have been able to locate, nor are they necessarily creative of
sovereign rights. In this regard, Fitzmaurice has noted that “[i]t has long been
well settled that the hunting, whaling, guano collecting, exploring, and other
similar activities of private individuals acting on their own, however numerous
and extensive, do not per se confer on their State a title to sovereignty over the
areas concerned. In those cases where the acquisition of sovereignty depends
on an act of volition, that act must be of the State, i.e. of its accredited agents
or authorities, or persons specially authorized to act on its behalf. Otherwise it
is not the State which is acting.”109 Moreover, although it is hardly doubtful that
individual Qawásim tribal members engaged in such activities in and around
the islands during the eighteenth century, it must be acknowledged that the
evidence of this is largely inferential and unsubstantiated. Thus, Mattair notes
the following, but without putting forth any concrete historical evidence in
support:
In fact, from the early to mid-eighteenth century, Abu Musa and the Tun-
bs, although not permanently inhabited, were used on a seasonal basis by
the Arab tribes dependent on and loyal to the Qawásim. The islands were
a source of fresh water and a refuge from bad weather and from politi-
cal trouble in all seasons. The Qawásim shaikhs would send their horses
and flocks to graze on the islands during the spring following the rain,
while Qawásim boats frequented the islands during the summer pearling
season. During the winter fishing season, Qawásim fishermen would live
there.110
However, these conclusions are based on inferential evidence and are themselves stated
to be circumstantial or conjectural in nature. Mattair, Three Occupied uae Islands, 35–37.
1951–1954: General Principles and Sources of Law”, British Yearbook of International Law
30 (1953): 1–70, 48.
110 Mattair, Three Occupied uae Islands, 38. The only evidence cited in support for these
claims, at note 40, is an unpublished 1971 study prepared by an English law firm for the
Ruler of Sharjah, and an unspecified mention that “British officials of the 1800s, com-
menting on the historical practices of the Qawásim, i.e. in the 1700s, noted many of these
uses of the islands.” Ibid., 451.
354 chapter 6
Similarly, a British India Office Memorandum compiled in 1928 entitled “Status

of the Islands of Tamb, Little Tamb, Abu Musa and Sirri” asserted that the Qa-
wásim exercised “effective occupation” of the disputed islands since 1750, but
again without basing this conclusion on any documentary evidence:
As regards the merits of that claim, the historical summary above shows
that the history of the islands prior to 1750 is obscure; that since that date
such authority and such effective occupation as there has been has had
its source in the Jowasimi [Qawásim] Arabs, who between 1750 and 1820
exercised in the Gulf a maritime control uncontested by Persia…. Finally,
de facto possession resting with the Jowasimi Arabs of the Trucial Coast,
it would appear to be for Persia, in the absence of evidence at any stage of
effective Persian occupation or of acknowledgment by the Trucial Arabs
of Persian overlordship in the islands, to prove the case for alteration of
the status quo.111
An earlier British report prepared by the Political Resident in 1894 also found
that, in relation to Greater Tunb, historical facts (particularly the naval strength
of the Qawásim since the early 1700s) could only lead to a conclusion that the
Qawásim must have held the island prior to their establishment in Lengeh in
the eighteenth century, but again providing no specific evidentiary support.
Thus, he wrote that:
[T]he conclusion from these historical facts is certainly not that the Joas-
mees having obtained a footing on the Persian coast, thence derived an
authority over outlying islands, but rather that they carried with them to
their new settlement a possession in the islands which they already pos-
sessed; and the fact that a section of these Arab intruders later acquired
the status of Persian subjects, and held their authority on the coast in
111 Toye, Lower Gulf Islands, Vol. 4, 130, containing “India Office, Status of the Islands of Tamb,
Little Tamb, Abu Musa and Sirri” by J.G. Laithwaite, dated August 24, 1928. These conclu-
sions were reiterated in other British government reports, including that cited above at
note 82 (citing to Toye, Lower Gulf Islands, Vol. 4, 386–387), which even more emphati-
cally provides that “there are documents which prove undeniably that from this date [i.e.,
middle of the eighteenth century] until the end of the nineteenth century, those islands
belonged to the Sheiks of Oman [i.e., the Qawásim], and that, during this period, Persia
never exercised any de facto control.” The “documents” referred to, however, are not at-
tached or provided in this report.
subordination to the Persian Government as local chiefs or Governors,

cannot affect any original rights the tribes may have held in common.112
Evidence, such as the van Kniphausen report (which stated in 1756 that the
Tunbs “belonged” to the Mersouki Arabs of Lengeh) and the Niebuhr report
(which stated around 1772 that Arab communities residing on the Persian lit-
toral of the Gulf “possessed” that littoral and used offshore islands as a refuge),
constitute significant and direct evidence that Gulf islands around Lengeh
(which included the disputed islands) did not belong to Persia during the
mid-eighteenth century nor were under its control, but that does not mean
necessarily that this evidence establishes that those islands did belong to the
Qawásim at that time, let alone prior to their establishment at Lengeh. Indeed,
with respect to that proposition, such evidence is purely inferential. Other evi-
dence, such as that related to the growing maritime strength of the Qawásim
in the mid-eighteenth century and their involvement in trade and other sea-
related economic activities in and around the southern Gulf waters in close
proximity to the islands, including pearling and fishing, also does not in most
cases constitute evidence which relates directly to the sovereign possession
of the islands by the Qawásim. As noted above in chapter 4 in the context
of the discussion concerning historical rights of title, although international
law does not reject such inferential evidence outright in resolving territorial
disputes, neither does it favor it, preferring “evidence which relates directly to
the possession”113 of the disputed territory.
In light of these evidentiary considerations, including the absence of
evidence which can be said to “relate directly” to the possession of the dis-
puted islands by the Qawásim prior to the settlement of certain members of
the larger Qawásim tribe in Lengeh, it would have to be concluded that the first
aspect of this hypothetical scenario could not be established with the requisite
degree of certainty (or, as arising from the Corfu Channel case, “with no room
for reasonable doubt”114) to be accepted by a judicial or arbitral body.
The second consideration in discounting such an hypothesis is that there is
absolutely no evidence in the historical record that, even if the Qawásim held
112 Toye, Lower Gulf Islands,Vol. 2, 197, containing Memorandum from F.A. Wilson, Political
Resident, Persian Gulf, dated May 31, 1895.
113 Minquiers and Ecrehos case, 57.
114 Chittharanjan F. Amerasinghe, Evidence in International Litigation (Leiden/Boston: Brill,
2005), 227, referring to Corfu Channel (United Kingdom of Great Britain and Northern
Ireland v. Albania), icj Reports 1949, 4, 18. See chapter 4, section discussing the admis-
sibility of evidence before international tribunals.
356 chapter 6
undisputed ownership of some or all of the islands prior to their settlement

at Lengeh, they subsequently ceded those islands to Persia. Indeed, no such
suggestion is touched upon in historical documents discussing the dispute,
contained in any archival material which has been unearthed, or made in any
historical or scholarly works dealing with the Gulf and the dispute over the
islands. Nor is there any indication that any contractual arrangement which
may have been agreed between the Qawásim and the Persian government (or
an individual who may be considered one of its agents, such as Muhammad
Khan Bastaki) contained any provision which ceded or transferred ownership
of territories owned by the Qawásim to Persia. In fact, as discussed below, there
appears to be no record of the existence of any such agreement, let alone its
terms.115
In light of the absence of any relevant evidence, the possibility that Iran could
pursue an argument that the Qawásim, having already assumed ownership of
the islands prior to the settlement of certain Qawásim leaders at Lengeh, then
ceded or transferred the islands to Persia following their establishment at that
port, may be discarded, and with it the hypothesis to which it relates.
(b) Did the Lengeh-Qawásim Have Authority to Claim the Islands on

Behalf of Persia?
With respect to the first hypothesis mentioned above, it follows from the con-
clusions just reached that, based on the evidence which has come to light, when
members of the Qawásim settled at Lengeh and established some level of con-
trol of that port around the mid-eighteenth century, it cannot be d efinitively
established that they had yet claimed ownership or acquired title over the is-
lands, and for that reason they must be considered to have remained as terra
nullius at that time. The question then becomes whether a case can be made
that the Qawásim who settled at Lengeh undertook, as agents of the Persian
government, to take possession of and claim the islands for and on behalf of
the Persian State, thus providing a basis for the acquisition of title by Persia.
This issue requires an analysis of two distinct matters. First, whether the
Qawásim leaders who settled in Lengeh were vested with authority by Persia
to act on its behalf in taking possession of the islands and claiming them in the
name of the State. Secondly, if they were, whether the Lengeh-based Qawásim
in fact took possession of the islands and claimed them on behalf of Persia,
and whether Persia then undertook acts to consolidate the inchoate title over
the islands which would have resulted from such acts in a ccordance with ac-
cepted norms of international law.
115 See infra notes 130–133 and accompanying text.

This general scenario arises from the well-known principle that occupa-
tion, like prescription, “requires that the possession forming the basis of the
title must be by virtue of the authority of the state or à titre de souverain, and
not a manifestation of purely individual effort unrelated to the state’s sover-
eign claims.”116 Crawford in Brownlie’s Principles of Public International Law
notes that the activity out of which an occupation is realized “must be à titre
de souverain in the sense that the agency must be that of the state and not
of unauthorized persons.”117 Waldock, connecting these principles to the
requirement that an effective occupation must have an animus occupandi, and
noting that “the acquisition of sovereignty is a state act” and that “the animus
occupandi ultimately must be that of the state, not of the individual”, states
that “an annexation [of terra nullius] to have any effect must either have been
carried out under a prior commission from the state or must have been adopt-
ed subsequently by the state – through express ratification.”118 Hall expresses
this principle as follows:
In order that occupation shall be legally effected it is necessary, either

that the person or persons appropriating territory shall be furnished with
a general or specific authority to take possession of unappropriated lands
on behalf of the state, or else that the occupation shall subsequently be
ratified by the state.119
In applying these principles, Hall notes that an effective occupation by private

“colonists establishing themselves in an unappropriated country” would require
the colonists to “declare it to belong to the state of which they are members”
and “a simple adoption of the act by their state”.120 Through these distinct acts,
“the fact of possession and the assertion of intention to possess, upon which
the right of property by occupation is grounded, are brought f ully together.”121
He then contrasts the acts of an “uncommissioned navigator” with a “commis-
sioned officer” of a State. Acts of the former declaring a territory a possession
of his sovereign are not State acts and even if ratified by the State would have
116 Malcolm H. Shaw, International Law, 6th ed. (Cambridge: Cambridge University Press,
2008), 505. It is also noted by Shaw that “occupation must be by a state and not by private
individuals”. Ibid., 503.
119 William Edward Hall, A Treatise on International Law, 8th ed. (Oxford: Clarendon Press,
1924), 128.
120 Ibid.
121 Ibid.
358 chapter 6
no legal value if not “supported by local acts”, whereas a d eclaration of pos-

session of terra nullius by a “commissioned officer” would constitute a “state
act which shows at least a momentary conjunction of fact and intention”.122
Fitzmaurice refers to “the well-established rule of international law according
to which State rights can only be acquired through the acts of persons in the
service of the State, or authorized (either generally, or in reference to the par-
ticular matter involved) to act in the name or on behalf of the State: and there-
fore cannot in general be acquired through the acts of private persons, unless,
exceptionally, they are so authorized – or if their act (purporting to assert e.g. a
claim to sovereignty, jurisdiction or other e xclusive right) is subsequently rati-
fied and adopted by the State as its own.”123 The examples of the kind of private
activities that do not translate into State acts, as seen from the passage of the
Fitzmaurice article quoted above, include “hunting, whaling, guano collecting,
exploring, and other similar activities.”124
Where a person authorized by the State purports to take possession of terra
nullius on behalf of that State, such as a commissioned officer, the State will
“thereby … acquire the provisional or ‘inchoate’ title which mere discovery, or
a mere initial taking of possession, is sufficient to set up (but not sufficient to
perpetuate unless followed up by physical occupation, or such equivalent acts
as may be appropriate to the circumstances of the territory ... ).”125 Where, on
the other hand, the person purporting to take possession on behalf of the State
is not authorized, “his acts are ineffective to confer any title on his country or
constitute the basis of a claim of sovereignty unless subsequently ratified and
adopted by his Government.”126
Again quoting Waldock, for “an annexation [of terra nullius] to have any
effect [it] must either have been carried out under a prior commission from
the state or must have been adopted subsequently by the state – through
express ratification.”127 In this regard, Waldock, in noting that explorations of
Antarctica by individuals during the eighteenth and nineteenth centuries did
not result in occupations on behalf of the British government notwithstanding
that they were sometimes carried out by serving British naval officers, states
what appears to be a relevant view:
The officers must either have had the prior authority of the Government
to assert British sovereignty or its subsequent approval. Whether, in fact,
122 Ibid.
123 Fitzmaurice, “General Principles and Sources of Law”, 47.
124 Ibid., 48.
125 Ibid., 48, note 2.
126 Ibid.
the annexations received any form of endorsement from the British Gov-
ernment is not known, but in view of the lack of interest in the Antarctic
during the nineteenth century it seems improbable that they did.128
Applying these assertions concretely to the disputed islands, it is evident that

to make out a case that Persia carried out an occupation of any of them d uring
the eighteenth century through acts of the Lengeh-based Qawásim leaders
would require a demonstration that the Persian government “commissioned”
or gave authority to those members of the Qawásim in some manner to so
act on behalf of the Persian State. There are two possible grounds on which
to base such an argument. First, that such authority was granted by virtue of
whatever formal position the Qawásim leaders in Lengeh held in the P ersian
government. And second, that such authority was granted through some other
specific authorization, such as an agreement entered into between the Per-
sian government and the Qawásim which regulated their activities on the
Persian coast. In either case, if the necessary authority was granted, it would
also be necessary to demonstrate that the Qawásim leaders in fact exercised
that authority to take possession of the islands, creating an inchoate title, and
that the Persian government then “followed up” such provisional title by carry-
ing out such acts as “may be appropriate to the circumstances of the territory”
so as to formalize the occupation and acquisition of title.129
As reviewed previously in this chapter, there is no documentary evidence
in the historical record which would confirm that if the Qawásim who estab-
lished themselves at Lengeh during the eighteenth century in fact entered into
any formal written agreement with either the Persian government or some
regional or local authority (such as Muhammad Khan Bastaki130) or other
representative of the government, what the terms and conditions of such an
agreement may have been. Some scholars contend that the settlement of Arab
tribes on the Persian coast (including the Qawásim at Lengeh) was c ontractual
and “with the approval of the local Iranian authorities.”131 Others, however,
128 Ibid., 324.

129 Fitzmaurice, “General Principles and Sources of Law”, 48, note 2.
130 Floor relates that, in Bastaki’s 1920 book (Tarikh-e Jahangiriyyeh), recounting the history
of his ancestors in governing the areas of the southern Gulf littoral, particularly Muham-
mad Khan Bastaki, the author alleges that as governors during the eighteenth century,
they assigned the various Arab tribal groups “ports and districts” in which to live on the
Gulf littoral “on the understanding that they would not exceed the borders of their al-
lotted area.” Willem Floor, The Persian Gulf: The Hula Arabs of the Shibkuh Coast of Iran,
(Washington, d.c.: Mage Publishers, 2014), 19.
131 Nadjmabadi, “Arab Presence on the Iranian Coast”, 139. She adds that “For the payment of
a lease, the shuyukh [i.e., the sheikhs] received the right to collect duties from the popula-
360 chapter 6
contend that, far from settling at Lengeh with the approval and consent of
the Persian government, the Qawásim rather took control of the port and
administered it independently of the “weak” central Persian government.132
Still other scholars, including Floor, believe that the reality was somewhere in
between:
[I]t is unlikely that the governor of Bastak imposed his will unilaterally
on these groups when agreeing to their distribution over the various dis-
tricts. In fact, it is quite unlikely that this distribution of land happened in
an organized manner and at the same time. It is more likely that the Arab
migrants settled at a certain location, which existing situation later was
formalized and endorsed by the governor of Bastak after negotiations
concerning quid pro quos, i.e., payments and service duties. This is clear,
for example, from his relations with the Qavasem and their settlement at
Lengeh, where they took over from the Marzuqis, a reality that was later
agreed to by the governor of Bastak. However, the family historian had to
play up the role of his ancestors in this and other activities that they were
involved in.133
Whatever the case, for purposes of concluding that upon or after their estab-
lishment at Lengeh, the Persian government commissioned or authorized the
Qawásim leaders to carry out political acts (including taking possession of the
islands) on its behalf through such an agreement, it would be necessary to
have sight of specific evidence of the agreement’s terms. As no such evidence
has come to light, it is not possible to reach that conclusion. Nor does there
appear to be any evidence that the Qawásim rulers at Lengeh would have been
inclined to take such an act on behalf of Persia. Indeed, such a scenario would
seem highly far-fetched in light of the close relationship which persisted dur-
ing the eighteenth century between the Qawásim rulers established in Lengeh
and their kinsmen who ruled the tribal homeland on the Arabian coast, as well
as the general level of mutual suspicion, if not hostility, which existed between
the Persian government and the largely independent Lengeh-based Qawásim
leaders.
tion on all sources of income (such as pearl fishery, agriculture, cattle breading, and fish-
ery), to determine the amount of taxes, and to freely dispose of the tax revenue. In return
they committed themselves to protecting the population of the coastal region against
attacks from outside and regularly paid taxes (maliat) to the Iranian state.” Ibid., 133.
133 Floor, Hula Arabs, 21.
An example of the continuing close relationship between the Qawásim of

both Gulf coasts and the view that they acted in concert or together constituted
a single political entity may be seen in the circumstances around the first ma-
jor confrontations between the Qawásim and the British arising from naval
engagements at the end of the eighteenth century and the beginning of the
nineteenth century. The British had identified the Qawásim “pirates” as a sin-
gle unified group including those established on both sides of the Gulf (that is,
including Lengeh), describing the “Shaikhs of Lingah” as “dependants” of the
broader Qawásim tribe134 and noting that Lengeh was one of two ports on the
Persian coast “belonging to the Joassims who furnish boats and men for their
piratical enterprises”.135 Indeed, the ruler of Lengeh at this time was the uncle
of the overall ruler of the Qawásim who resided in Ras Al Khaimah on the
Arabian side of the Gulf, Sultan bin Suggur.136 For its part, when asked in 1805
if the Persian government would oppose an attack on the Qawásim at Lengeh,
its ambassador replied that while it considered them “Persian subjects”, their
“allegiance was very precarious in general”.137 When, in early 1806, the British
finally mounted a blockade of the Qawásim fleet, “which was reduced to such
distress”,138 they treated the Qawásim settled on the Persian coast at Lengeh
and those on the Arabian coast as a single group under the leadership of the
recognized head of the tribe, Sultan bin Suggur. This can be seen in the terms
of the treaty of peace which brought this initial confrontation to an end,
which was agreed between the “Honourable East India Company” and “Sultan
bin Suggur, Joasmee, and the whole of his dependants and subjects on the shores
of Arabia and Persia”.139
134 Sultan Muhammad Al-Qasimi ed., The Journals of David Seton in the Gulf. 1800–1809 (Ex-
eter: University of Exeter Press, 1995), 53, containing “Journal of Captain Seton’s Proceed-
ings and Draft of the Treaty entered into with the Qawásim” (io, P/382/16, 2312–54).
135 Al-Qasimi, Myth of Arab Piracy, 65, containing a Letter from David Seton, Resident, to
Thomas Skinner, Esqre., Commanding all the Honorable Co. vessels in the Gulph of Per-
sia, dated October 9, 1805.
136 Floor, Rise & Fall of Bandar-e Lengeh, 43; J.B. Kelly, Britain and the Persian Gulf 1795–1880
(Oxford: Oxford University Press, 1968), 106, note 4.
137 Al-Qasimi, Myth of Arab Piracy, 56, containing a Letter from Captain D. Seton to Wm.
Bruce, dated June 30, 1805.
138 Low, History of the Indian Navy, 317.
139 C.U. Aitchison, A Collection of Treaties, Engagements, and Sanads Relating to India and
Neighbouring Countries (Calcutta: Office of the Superintendent of Government Printing,
1892), Vol. 10, 121–122, containing “Agreement between Sheikh Abdulla bin Croosh, on the
part of Sheikh-ul Mus Sheikh Ameer Sultan bin Suggur, bin Kashid, Joasmee, and Captain
362 chapter 6
The import of these historical events are of course peripheral to the islands
themselves, but they demonstrate the general allegiance of the Qawásim lead-
ers in Lengeh to their Qawásim relatives on the Arabian shore rather than to
Persia. As we will see in the following chapter, such allegiance and general at-
tachment among the different branches of the Qawásim continued throughout
the nineteenth century as well, although it became more nuanced. Be that as it
may, for purposes of evaluating a hypothetical assertion that Persia effected an
occupation of the islands during the eighteenth century by commissioning the
Qawásim leaders in Lengeh to take possession and lay claim to the islands on
its behalf in a contractual arrangement regulating their activities, the absence
of any evidence that such a contractual agreement actually existed, let alone
that its terms extended authority to those leaders to exercise political acts in
the name of Persia, is sufficient reason to discard such an argument.
An alternative argument for finding that the Qawásim rulers of Lengeh were
authorized to act in the name of Persia in carrying out political acts on be-
half of the State (including taking possession of the islands) would be that
by virtue of their purported position within the Persian bureaucracy, that is,
as “deputy governors” of Lengeh, such authority may be assumed. While it is
possible to argue that as “deputy governors” of the port, the Qawásim sheikhs
held a formal position within the local Persian governmental structure which
may have carried with it the inherent authority to carry out political acts on
behalf of the Persian State, there are many questions about the nature of this
position and those leaders’ relationship with the Persian authorities which the
historical evidence does not adequately resolve and which raise doubts about
such a possibility.
Most significantly, there is no direct or inferential evidentiary support that
the scope of those sheikhs’ authority as “deputy governors” ever extended be-
yond responsibilities for tax collection. Indeed, there is evidence, as well as
scholarly opinion, that the Qawásim sheikhs held no political role at all within
the Persian government, but on the contrary were for most of their tenure in
Lengeh in effect lease holders who were “left to their own devices” to govern
the port as long as they collected and handed over to the Persian authorities a
certain amount of taxes annually. The British, in fact, held this view, as revealed
in the following report sent by its Political Resident in the Gulf in July 1888:
Although it is not a point one can dwell upon with the Persians, it is a fact
that the position of the Arab Governors of Lingah was until quite recent
David Seton, on the part of the Honourable East India Company. In Bunder Abbass, this
sixth day of February 1806”, Article 1 of the Treaty (emphasis added).
times different from that of ordinary officials of that government. The

Arab Sheikhs paid an annual sum, and were then left to their own devices
and not interfered with. It was really more of the nature of a lease re-
newed annually. This explains the separate relations of the Arab Sheikhs
referred to towards the Arab islands such as Sirri. Had it not been that
the Joasmee Arabs were allowed to govern Lingah there would have been
no co-existence of the two authorities in one hand and the Persian claim
would have never come forward.140
If, as appears to be the case, the authority granted by the Persian government
to the Qawásim leaders as “deputy governors” was essentially limited to the col-
lection of taxes or the payment of a yearly rent, but that it involved no broader
political authority (and that in other respects they acted independently of the
Persian government), this status would not have conferred on them the right
to act on behalf of the State in other matters. Thus, even if they had taken
possession of the islands and claimed them on behalf of Persia, such an act
would have been “ineffective to confer any title on his country or constitute
the basis of a claim of sovereignty unless subsequently ratified and adopted by
his Government.”141 This is particularly the case given that a claim over terra
nullius depends on an “act of volition”, which must be an act of the State, that
is by “its accredited agents or authorities, or persons specially authorized to act
on its behalf. Otherwise it is not the State which is acting.”142
In light of the above, there does not appear to be any basis to argue that Persia
may be considered to have authorized or commissioned the Qawásim leaders of
Lengeh to take possession of the islands on its behalf or otherwise act on behalf
of the State through any contractual or other written arrangement or merely
140 Toye, Lower Gulf Islands, Vol. 2, 57, containing letter from Ross to Wolf, dated July 28, 1888.
Floor also holds the view that the Qawásim sheikhs at Lengeh were granted “the function
of revenue collector (zabet)”, which he equates with the position of “deputy governor”,
and that they were “but an administrator on behalf of the Iranian government” (Floor,
Rise and Fall of Bandar-e Lengeh, 35, 49, 115), while Vosoughi explains that “the issue of
Zabeti should be analyzed in the context of financial dealings/administration of the time,
and not in a political context. Although this is not a complete explanation, nevertheless,
it should be noted that a Zabeti for one town/city was in reality the lease of the taxes for
one year from that town’s tax agent. The Zabet (i.e., the person receiving the lease) had no
administrative or political power.” E-mail correspondence with Prof. Mohammad bagher
Vosoughi, dated August 25, 2015 (on file with authors).
142 Ibid.
364 chapter 6
by virtue of having conferred on them the title of deputy governor of the port
of Lengeh. It must be added, however, that apart from these conclusions, even
if the Qawásim sheikhs in Lengeh had been specifically authorized to carry out
political acts on behalf of the Persian State during the eighteenth century, or if
no specific grant of authority was considered necessary to act on behalf of the
State due to their position as “deputy governors”, there would be serious eviden-
tiary problems in any argument that this somehow led to an acquisition of title
by Persia over the islands. These problems relate both to whether it could be
demonstrated that the Qawásim leaders at Lengeh in fact claimed possession
of the islands on behalf of Persia (pursuant to some presumed authority), and
to whether Persia can be said to have followed up the acquisition of the incho-
ate title which would have resulted from such a claim of possession by exercis-
ing acts of sovereignty over the islands sufficient to create a definitive title, or
as expressed by Fitzmaurice, “acts as may be appropriate to the circumstances
of the territory”.143 In neither respect does the historical record reveal any evi-
dence that such acts were taken during the eighteenth century. Not only is the
evidence bare in these key respects, but n either is there any indication whatso-
ever in the historical record related to the eighteenth century that Persia ever
requested or directed the Qawásim leaders at Lengeh to take any acts in relation
to the islands. For that matter, there is no historical evidence that Persia itself
actually had the intention to appropriate or claim the islands during this period,
whether through acts carried out there by the Qawásim or otherwise. Moreover,
there is no specific evidence that the Lengeh-Qawásim c arried out any spe-
cific acts on the islands on behalf of the Persian government at any time dur-
ing the seventeenth or eighteenth centuries. Indeed, the only suggestion that
they ever did so, which relates to the purported raising of taxes from the islands
and other administrative acts on b ehalf of the Persian government during the
nineteenth century, has been shown to be totally unsubstantiated.144
(c) Did the Lengeh-Qawásim Take Possession of the Islands as

a Private Act on Behalf of the Persian Government which it
Subsequently Ratified?
The final alternative hypothesis, resting upon the notion that a Persian oc-
cupation of the islands during the eighteenth century occurred through the
Qawásim rulers at Lengeh having taken possession of the islands on their own,
as private acts but laying claim for the benefit of the Persian government,
143 Ibid., 48, note 2.

144 See, e.g., text accompanying note 105 in chapter 1 and text accompanying notes 25 to 44
in chapter 7.
and that government then expressly adopting and ratifying those acts, does
not need to be addressed in light of the evidentiary conclusions reached so
far.145 As noted above, such an acquisition of State rights through the acts of
individuals acting on their own is possible, albeit exceptional.146 Under inter-
national law, the acts of a private “taker of possession” of terra nullius “are in
themselves ineffective to confer any title on his country or to constitute the
basis of a claim of sovereignty unless subsequently ratified and adopted by
his Government.”147 As the factual basis for such an assertion is not present in
relation to the eighteenth century, this alternative hypothetical would not be
possible to substantiate, and indeed would be far-fetched.
Conclusions
In summary, given the evidence, or lack of evidence, which has been unearthed
in the historical record, it seems highly improbable that, not having demon-
strated any genuine interest in any of the disputed islands throughout the sev-
enteenth and eighteenth centuries, an argument could be fashioned that Persia
had entrusted the Qawásim residents of Lengeh with the task of carrying out
acts constitutive of an occupation of the islands on its behalf during that pe-
riod, or that the Qawásim would have had any willingness to perform that task
for Persia. Events which occurred at the beginning of the nineteenth century,
when documented accounts concerning the islands b egan to be kept more
regularly, support these conclusions. These events will be described in the next
chapter. The conclusion that Persia made no assertion of sovereignty or claim
over any of the islands during the eighteenth century, whether through the
Qawásim rulers of Lengeh or otherwise, is supported by the subsequent actions
145 In brief, there is no probative evidence that the Qawásim rulers of Lengeh took pos-
session of the islands and laid claim to them on behalf of Persia in the eighteenth
century, nor quite obviously that Persia somehow adopted and ratified such a claim.
A related question is whether acts of the Qawásim established in Lengeh were susceptible
to adoption and ratification by the Persian government during the eighteenth century, or
whether, alternatively, acts of those Qawásim members were taken independently of the
Persian government, which could not assume rights resulting from those acts. For much
the same reasons, this question does not need to be addressed.
147 Ibid., 48, note 2. See also Waldock, “Disputed Sovereignty”, 323 (“[For] an annexation
[of terra nullius] to have any effect [it] must either have been carried out under a prior
commission from the state or must have been adopted subsequently by the state – through
express ratification.”) (emphasis added).
366 chapter 6
taken by Persia in the later part of the nineteenth century with respect to Sirri,
an island then in identical circumstances as the three disputed islands. Thus,
in 1887, when Persia wished to assert a claim over that island, it dispatched a
small vessel under the orders of a Persian official to go to the island, hoist the
Persian flag there and fire a salute from guns.148 That P ersia would, when as-
serting a claim over an island in such circumstances, make such a clear and
deliberate demonstration of its sovereign claim evidences its recognition that
such actions were required to make good an assertion of sovereignty it wished
to make over that territory. That it had never previously taken any similar
actions on that island nor on any of the three disputed islands is therefore
further evidence that it had never previously had any intention to appropriate
those islands.
These conclusions, however, raise a further general point, which is whether
the broader Qawásim State can be shown to have carried out acts of effective
occupation on the islands on their own behalf during the eighteenth century.
In brief, the answer to this query, as touched on above, must be in the negative
as very little in the way of probative evidence has been found. It should be
noted that, notwithstanding the absence of historical evidence dating from the
eighteenth century, there is some direct and other inferential evidence from
the beginning of the nineteenth century which indicates that the growing
ties of the Qawásim with the islands almost certainly began in the eighteenth
century. This evidence, and the legal considerations which it involves, are
discussed in the following chapter.
148 Toye, Lower Gulf Islands, Vol. 1, 721, containing Letter from the Residency Agency, Lingah
to the Political Resident, Persian Gulf, dated September 18, 1887.
chapter 7
The Seeds of Conflict: 1800 until 1887 – Effective

Occupation
When, in September 1887, Persian authorities sent armed men and ordered the
hoisting of the Persian flag on Sirri island (a fourth island in the general vicinity
of the three disputed islands which was possessed and also considered by the
Qawásim as their property), resulting in a serious confrontation between the
Persian government and the Qawásim leaders, as well as the British authorities
(who by this time had established a strong relationship of protection with the
various sheikhdoms of the Arabian coast, including the Qawásim Sheikhdom
of Sharjah and Ras Al Khaimah1), Persia d enied that its action constituted a
seizure of territory. In response to a British request for an explanation of its
occupation of the island and the raising of its flag there, it gave several argu-
ments. It argued that as it was now in possession of the island there should be
no further dispute as to its ownership (“the strongest proof of the ownership of
a Power is the occupation thereof by that Power”); that the Persian government
had raised taxes from the island during the previous nine years; that the island
was considered by the Persian government to be part of the Persian province of
Fars; and that raising the Persian flag should not be seen as an indication that
it was taking over territory which was not its own or an alteration of the status
quo, but rather merely the implementation of a recent government policy to fly
the flag throughout its coastal possessions.2
Raising of the Persian Flag at the Island of Sirri in 1887
These events and their legal significance will be discussed in greater detail
in chapter 8. However, they require a brief mention at the beginning of this
1 This relationship was described by the British Political Resident in the Gulf in October 1887
as follows: “I must mention that the control and supervision we exercise over the trucial
chiefs is not in virtue of any treaty or convention. The Chiefs are bound to the British merely
to keep the peace on sea, but, from natural and inevitable deduced positions, these Chief-
doms have come to regard England as their paramount superior power.” Toye, Lower Gulf
Islands, Vol. 1, 733 containing a note from Col. E.C. Ross, Political Resident in the Persian Gulf
to A. Nicolson, Her Britannic Majesty’s Chargé d’Affaires at Tehran, October 30, 1887.
2 Toye, Lower Gulf Islands, Vol. 2, 26, containing a letter from the Persian Ministry for Foreign
Affairs to Her Britannic Majesty’s Legation at Tehran, dated March 10, 1888.

368 chapter 7
chapter to explain why the period 1800–1887 is of key importance in the dis-
pute over sovereignty to the three islands. The reasons are twofold. The first
reason is to explain the multi-faceted historical context in which the Persian
action on Sirri island in September 1887 was carried out and must be under-
stood because it was within this context that the Persian claim of rights over
the Tunbs was first raised. The previous month Persian officials had conducted
a visit to the Arab coast, intending to call on the Rulers of Abu Dhabi, Dubai and
Sharjah, the purpose of which was not immediately apparent but which raised
suspicions about the Persian objectives among both the rulers and the British
government.3 It was later rumoured that the purpose of the trip was to propose
that the rulers “withdraw from the ‘circle’ of the ‘Christians’ [i.e., the British]
and come under the Persian Government.”4 Two months later it transpired
that Persia had, in fact, proposed that the rulers enter into a treaty with Persia
providing for the residence of a Persian government representative (Agent)
on the Arab coast, who would be “received and treated in the same way as the
Agent of the British Government.”5 At virtually the same time as these events
were taking place, the Qawásim leader of Lengeh was seized by Persian forces
and imprisoned, with his family’s property confiscated, thus bringing to an end
the Qawásim rule over that port and its environs. Following that event, there
were reports “afloat” that Persian sources in Lengeh were telling the popula-
tion “that the British maritime supremacy in the Gulf is about to cede to that
of Persia” and that “it is intended to fix Persian flagstaffs at Ras-el-Khaimah
and Ajman”.6 Thus, the occupation of Sirri and the raising of the Persian flag
was clearly not an isolated act, but came in the midst of a number of concerted
efforts by a resurgent Persian government to assert an expanded political au-
thority over the Gulf.
Adding to the suspicion of the Qawásim (and the British) that Persia’s a ction
at Sirri was part of a broader political agenda was that the justifications given by
the government for raising its flag at the island and arguing that this act did not
represent its seizure of non-Persian territory rang hollow. For one, by the end of
the nineteenth century basing ownership on “occupation” under international
3 Ibid., Vol. 1, 717.

4 Ibid., Vol. 1, 724–725.
5 Ibid., Vol. 1, 733, containing “Memorandum of text of draft of proposed treaty”. The text of
the proposed treaty also provided for the “renewal of the friendly relations with the Persian
Government”, mutual extradition of absconders, the involvement of the Persian “Agent” in
resolving claims by the Rulers against Persian subjects “in the same way as it is arranged with
the British Government”, and that the Rulers “should not forbid the readings about Husain
during the days of ‘Ashura.’” Ibid.
6 Ibid., Vol. 1, 728.
The Seeds of Conflict 369
law could not be established on the forcible, and challenged, hoisting of its
flag on territory it had never previously possessed. A British communication to
the Persian Foreign Ministry in March 1888 had made this precise point when
it noted that “[p]ossession, if of long standing and undisputed, doubtless car-
ries considerable weight; but this argument would scarcely govern in the pres-
ent instance”7 since the Persian occupation had only occurred a few months
previously and had been immediately protested against. The argument that
Persia had raised taxes from the island turned out to be unsubstantiated as the
Persian government itself conceded there were no records of such payments.
And the justification that the Persian government had recently undertaken a
policy of showing the flag at its coastal possessions appeared to be more a pre-
text than a valid explanation, as the Persian flag had been flown at various of
its Gulf ports, including Lengeh, for many years.8
These circumstances lead to the second reason why it is important to make
mention of the raising of the Persian flag at Sirri in 1887. At the time it carried
out this action, suggestions of a Persian claim of sovereignty over Greater
Tunb were also expressed by Persia (although not asserted d irectly) and, from
internal reports of the British, it appears they at least may have understood
Persia’s claim also to have included Greater Tunb.9 In the months following
7 Ibid., Vol. 2, 27, containing a letter from Her Britannic Majesty’s Legation, Tehran to the
8 The 1855 lease agreement by which Persia leased Bandar Abbas to Oman demonstrated the
great attention Persia had already placed on showing its flag at its coastal possessions by
providing in its article 5 as follows: “That they [the Omanis] should always fly the Persian
flag at Bandar A bbas, and there will always be a few Persians there to take care of the flag. A
Taskarachee also will be appointed and sent to remain permanently at Bandar Abbas. Every
respect due to the P ersian flag should be brought into effect. There will be a monthly courier
sent to Bandar Abbas to take newspapers and to look after the flag and its attendants. On
all festivals and on the anniversary of the Shah’s birthday a salute should be fired. The usual
morning and evening guns will also be fired.” Ibid, Vol. 1, 392. An American traveller, William
Perry Fogg, who visited Lengeh in 1874, noted that “[f]rom a high building in the center of
town, the residence of the governor, the flag of the Shah of Persia, the ‘lion and the sun,’ is
flying, and at the masthead of a native bugalah we see the favorite banner of the Persians,
– the two-bladed sword of Ali, on a white ground with a dark green border”. William Perry
Fogg, Arabistan: or, The land of “The Arabian nights”, Being travels through Egypt, Arabia, and
Persia, to Bagdad (1875).
9 For example, at the time of the Persian action on Sirri, a “rumour” was reported to have been
heard around Lengeh that the Persian government “talk of doing the same on Tomb”, and
when the British requested an explanation for the action on Sirri, the Persian Governor Gen-
eral of Fars replied that “for past nine years Sirri Island and Tomb have paid taxes to Persian
Government.”. Toye, Lower Gulf Islands, Vol. 1, 736 (emphasis added). However, no action was
370 chapter 7
the o ccupation of Sirri, further suggestions of a claim by Persia to Abu Musa

are also apparent from the contemporaneous evidence.10 Nevertheless, no
evidence of a specific claim by Persia to either Greater Tunb or Abu Musa at
that time can be found, and it was only in 1904 that Persia affirmatively and
formally asserted a claim to those islands as well as the Lesser Tunb (none of
which it then possessed) by forcibly hoisting its flag on the two larger islands.11
While no specific claim to Greater Tunb or Abu Musa may have been asserted
prior to 1904, the making of suggestions of a sovereign claim to those islands
by Persia beginning in 1887 brought about a response from the Qawásim, ar-
ticulated at various times throughout this seventeen-year period, that they, as
Rulers of Sharjah and Ras Al Khaimah, already held title to the Tunbs and Abu
Musa (as well as Sirri) and had done so since the eighteenth century. On this
basis, their rulers, as well as the British, dismissed any notion of a Persian right
of sovereignty. While, as mentioned in the previous chapter, clear evidence of
ownership or connections to the islands by any identifiable party is lacking
during the eighteenth century, greater clarity can be derived from the evidence
available from the nineteenth century, which will be reviewed in this chapter.
For its part, and although it did not appear to have asserted a formal claim to
Greater Tunb or Abu Musa at the time it occupied Sirri in 1887, when challenged
by Britain to justify its occupation of that island, Persia’s reply referenced both
Sirri and Greater Tunb, stating that “for past nine years Sirri Island and Tomb
taken by the Persian authorities on Greater Tunb at the time it occupied Sirri and hoisted
its flag there, nor was any specific claim made to that island (or the other two islands in
dispute) as far as the evidence shows, yet the island was referred to in the context just
mentioned creating some confusion as to whether Persia had expressed some specific
claim to the island. Later, in January 1888, although no evidence of a Persian claim to
Greater Tunb appears to have been made, internal British correspondence related to the
crisis over Sirri also at times refers to Greater Tunb. For instance, in reporting on docu-
ments supplied by the Persian government purporting to justify its claim over Sirri, the
British Political Resident in the Gulf noted that such documents “in no wise establish
the Persian claim to the Islands of Sirri and Tamb.” Ibid., Vol. 2, 3 (emphasis added). Yet,
in March 1888, a communication from the Persian Ministry for Foreign Affairs regarding
such evidentiary materials refers only to Sirri, without mentioning Greater Tunb: “ever
since Lingah has had its dependence on the Persian Government and has had its gover-
nors sent from the Court of Persia, it has always been usual to take taxes from the said
island [i.e., Sirri].” Ibid., Vol. 2, 26, containing a letter from the Persian Ministry for Foreign
Affairs to Her Britannic Majesty’s Legation at Tehran, dated March 10, 1888.
10 For example, a confidential report from the British Political Resident in the Gulf, dated
April 28, 1888, mentions that “the claim now put forward [by Persia] to the island of Bu
Moosa [Abu Musa] has no justification whatsoever.” Toye, Lower Gulf Islands, Vol. 2, 28.
11 These events are described in more detail in chapter 8.
have paid taxes to Persian Government.”12 Somewhat vague references were

also made by Persian authorities at this time to other reasons justifying their
claims over Gulf islands, although these were specifically made only in refer-
ence to Sirri. The principal basis for these claims was essentially straightfor-
ward, maintaining that Persia had established historic rights over the island
of Sirri emanating from its purported formal attachment to the port of Lengeh
and the Province of Fars, of which it was said to be a “dependency”.13 Although
it did not address the matter specifically at the time, implicit in this argument
was that the Qawásim rulers established in Lengeh, who Persia asserted had
exclusive charge of the islands prior to their expulsion from Lengeh in 1887,
had become Persian subjects and administered the islands prior to that time
on behalf of the Persian government. The sovereign acts carried out by the
Lengeh-Qawásim in relation to the islands were, according to the Persian argu-
ment, therefore obviously under its authority and at its direction, or attribut-
able to it, and similarly any possessory rights seemingly held by the Lengeh-
Qawásim rightfully belonged to Persia as their overlord and sovereign.
Persia’s total rejection of any assertion that the Qawásim were sovereign
over the island of Sirri was simply expressed, but without specific reasons, in
a letter from the Persian Foreign Ministry to the British Government in March
1888 in reply to a request for proof of Persia’s sovereign claim over Sirri in the
following terms:
[T]his matter has given rise to extreme wonder and surprise that the
steemed British Embassy having full knowledge and knowing thorough-
E
ly all the points and places on the coast of the Sea of Oman, and in par-
ticular the ports of the Persian Gulf, how have they (Embassy) considered
that this matter stands in need of proof, and how have they found fit to en-
tertain the ill-founded claim of the Joasmee Chiefs and then ask for proofs?14
12 Toye, Lower Gulf Islands, Vol. 1, 736 (emphasis added).

13 Rights derived from the purported “dependency” and formal attachment of the islands to
the port of Lengeh as a basis of occupation of the islands as terra nullius were, as d iscussed
in chapter 6, not borne out for various reasons in relation to the eighteenth c entury.
Arguments related to Persia’s ancient rights of title, cession from Portugal and occupation
during the seventeenth or eighteenth centuries, which, as discussed in chapters 4 to 6, are
not persuasive on the basis of the evidence which has come to light, were not raised by
Persia when it asserted title in the late nineteenth or early twentieth centuries.
14 Toye, Lower Gulf Islands, Vol. 2, 26, containing a letter from the Persian Ministry for For-
eign Affairs to Her Britannic Majesty’s Legation at Tehran, dated March 10, 1888 (emphasis
added).
372 chapter 7
The Qawásim Rulers of Sharjah and Ras Al Khaimah (and the British) dismissed
these arguments, reiterating their long-standing rights of ownership over the
islands of Sirri, Abu Musa and the Tunbs15 (even when Persia had not specifi-
cally set out a claim to any islands other than Sirri), and arguing that although
the Qawásim rulers who had been established in Lengeh enjoyed common
rights of access to the Tunbs (principally using it for the grazing of animals
belonging to the tribespeople under their control), such rights were held and
enjoyed by them due only to their status as members of the larger Qawásim
tribe, and in any case subject to the paramount consent of the Ruler of Ras Al
Khaimah. The Qawásim, and along with them the British government which
led the interaction with Persia on the matter, also argued that any rights held
by the Lengeh-based Qawásim rulers in relation to the Tunbs did not involve
Persia or confer on it any rights at all over those islands even if those members
of the Qawásim were Persian subjects or under its quasi-jurisdiction. In this
regard, the British government wrote to the Persian Ministry for Foreign Affairs
in March 1888 in relation to Sirri, stating that “[i]t is quite true that the Deputy
Governors of Lingah exercised jurisdiction over the Island of Siri, but this was
not in their capacity as Governors of Lingah, but Joasimee Sheikhs.”16 The let-
ter added that the “Joasimee Sheikhs have had traditional rights over the Island
of Siri which were never disputed and generally recognized. The hoisting of
the Persian flag altered the existing status”.17 Finally, it was argued in internal
British memoranda that any rights held by the Lengeh-based Qawásim did not
extend in any manner to Abu Musa.18
15 See, e.g., ibid., Vol. 1, 732, containing “Translated purport of a letter from Sakar Bin Khalid,
chief of Shargah, to Colonel E.C. Ross, Political Resident in the Persian Gulf and Her
Majesty’s Consul-General for Fars”, dated October 16, 1887, in which the Ruler stated that
“according to reports we have received from Lingah, it is said that the Malik intends to
put up flagstaff on the island of Tomb, and you are aware that those islands belong to the
El-Kowasim, in the same way as do the Islands of Seer-bu-Na’eer, Sirri, and Bu-Musa.” (em-
phasis added).
16 Ibid., Vol. 2, 27, containing a letter from Her Britannic Majesty’s Legation, Teheran to the
17 Ibid.
18 Although there is no independent record of Persia having made a claim to Abu Musa in
1887 or 1888, a confidential internal British memorandum written in April 1888, which re-
ferred to an Iranian report privately obtained by the British, noted that: “The claim now put
forward to the island of ‘Bu Musa’ has no justification whatsoever. Any attempt to assert
Persian authority there in a practical form would probably result in disturbances.” Toye,
Lower Gulf Islands, Vol. 2, 28–29, containing a letter from Colonel Ross to Sir Drummond
Wolff, Minister Plenipotentiary to Teheran, dated April 28, 1888. See chapter 8 for further
discussion of the contents and legal analysis of this privately obtained Iranian report.
Given this background (the historical and legal issues of which are d iscussed
in greater detail in the following chapter) and the emergence of the Persian
assertions of sovereignty between 1887 and 1904, which marked the first time
that there was a confluence of direct and competing claims to the islands by
Persia and the Qawásim, in opposition to each other, it follows that the critical
date on which the dispute between the parties may be said to have crystallized
(which has been referred to as the date on which “time is deemed to stop” so
that “[n]othing that happens afterwards can operate to change the situation as
it then existed”19), should likely be plotted somewhere within this seventeen-
year period.
Theoretical Framework for Asserting Acquisition of Title

by Occupation
The determination of the critical date will be further explored in chapter 8.

However, regardless of the moment during this seventeen-year period the criti-
cal date may be considered to have occurred, it is crucial to understand the re-
spective connections and ties between the parties and the three islands during
the preceding period of time, that is up to September 1887. Recalling the words
of Fitzmaurice (that “[w]hatever was the position at the date determined to
be the critical date, such is still the position now. Whatever were the rights
of the Parties then, those are still the rights of the Parties now. If one of them
then had sovereignty, it has it now, or is deemed to have it”20), the purpose of
this chapter is to clarify the respective ties of the parties with the islands prior
to September 1887 and to determine whether, on the basis of these ties, either
of the parties had a legitimate claim of sovereignty over the islands, or any
of them, prior to that date. In light of the conclusion reached in the previous
chapter that, until the end of the eighteenth century, the islands’ status was
most likely that of terra nullius, it follows that this undertaking will involve
an analysis of the events related to the islands during the nineteenth century
(and prior to September 1887) principally in order to determine whether either
party could put forth a credible claim to have taken possession of the islands
19 The Minquiers and Ecrehos Case (France/United Kingdom), icj Pleadings, Vol. ii, 64
(speech of Sir Gerald Fitzmaurice). Cited also in Robert Y. Jennings, The Acquisition of
Territory in International Law (Manchester: Manchester University Press, 1963), 32.
(1955–6): 20–96, 20–21 (emphasis added).
374 chapter 7
through occupation in accordance with the requirements of international law

recognized during that period.
Grounds for a Persian Claim of Occupation from 1800–1887
In previous chapters the conclusion has been reached that there is no persua-
sive or direct historical evidence which might support an assertion that Persia
held ancient rights of title over the islands, nor that it obtained title through its
conquest of Hormuz or by cession from Portugal in the seventeenth century.
Neither has evidence come to light which would support an argument that
Persia or any other party obtained title over the islands through occupation in
the seventeenth or eighteenth centuries, notwithstanding the recognized use
made of one or several of the islands by individual, but unidentified, members
of the Gulf’s coastal communities. Moreover, it has been established that any
claim by Persia over the islands on the basis of geographical doctrines, most
particularly contiguity, would not be viable. Finally, it has been concluded that
a claim that the Qawásim held sovereign ownership of the islands prior to the
nineteenth century is not supported by the evidence which has come to light.
These findings left the islands in a status of terra nullius at the beginning of the
nineteenth century. During the nineteenth century, prior to 1887, and leaving
aside for the moment the assertion that Persia was, in effect, the beneficiary of
acts taken during that period in relation to the islands by the Qawásim rulers
of Lengeh (which is discussed below), there is also a familiar absence of con-
temporaneous evidence of direct Persian connections or ties with the islands,
let alone acts carried out by the Persian government, which would support a
claim of effective occupation by Persia (that is, in the words of Waldock, acts
which would constitute “the manifestation and exercise of the functions of
government over the territory”21). Without such sovereign manifestations, nor
indeed any asserted claim, any argument that Persia effectively occupied the
islands would not stand up to scrutiny.
The absence of any indications of sovereign acts by Persia gains further note
due to the growing evidence from historical records that various economic ac-
tivities were taken on or in relation to the Greater Tunb and Abu Musa during
this period in relation to which it would appear Persia had no involvement.22
21 C. Humphrey M. Waldock, “Disputed Sovereignty in the Falkland Islands Dependencies”,

British Yearbook of International Law 25 (1948): 311–353, 317.
22 For example, David Seton, the British Political Resident in the Gulf, noted in 1801 that Great-
er Tunb “has also a Pearl fishery carried on by the inhabitants of Julfar [Ras Al Khaimah]”.
Moreover, a number of disputes concerning ownership and rights of access to

the islands broke out between different branches of the Qawásim and other
Arab tribes on the Arabian littoral, yet none of these episodes involved or
mentioned Persia either.23 Even in relation to such disputes which directly in-
volved the Qawásim leaders in Lengeh, who, according to the “Iranian view”
(see next section below), administered the islands on behalf of the Persian gov-
ernment, the evidence of these disputes and their resolution makes no men-
tion of Persia or its asserted ownership or interests in the islands,24 nor the
existence of any such agency relationship between the Lengeh Qawásim and
the Persian government.
A possible exception to this general lack of evidence was suggested by a
communication from the Persian government to the British government in De-
cember 1887 in defense of Persia’s occupation of Sirri island. In that communi-
cation, Persia asserted that “for past nine years Sirri Island and Tomb have paid
taxes to the Persian Government, and that documents in support of Persian
claims are at Bushire.”25 While the “levying of local rates and taxation” has been
generally accepted as an act constituting the exercise of local administration
Sultan Muhammad Al-Qasimi ed., The Journals of David Seton in the Gulf 1800–1809 (Ex-
eter: University of Exeter Press, 1995), 19–20.
23 For example, in March 1872, the Native Agent of Britain on the Arab coast wrote to the
British Resident in the Gulf, informing him of a dispute over the use of Abu Musa for
purposes of grazing their horses. He wrote that the Ruler of Sharjah, Sheikh Salim bin
Sultan, had “launched 15 Buggalahs and embarked therein Arabs and articles of warfare
intending to go to the Island of Bomosa as he had heard that the Chief of Amulgavine
[Umm Al Qaiwain] had launched Buglahs … and placed therein 450 persons from Ejman
with articles of warfare & had proceeded to the Island of Bomosa with horses belonging
to Amulgavine and Ejman intending to take possession [of] also the horses of the Chief of
Sharjah.” Toye, Lower Gulf Islands, Vol. 1, 586. The Native Agent later informed the B ritish
Resident that he had learned that “the Chiefs of Debaye [Dubai], Shargah and Ejman
Amulgavine” had “come to terms” and had “arranged to send all their horses there during
the Spring”. No mention or consideration of Persia or its interest in the islands is made in
these reports. Toye, Lower Gulf Islands, Vol. 1, 593.
24 For example, on 22 March 1873, the British Resident, Colonel Ross, wrote to the Native
Agent on the Arab coast in relation to “the dispute between the Chief of [Ras Al Khaimah]
and that of Lingah in regard to the Island of Tamb”, informing him, without mentioning
Persia, to “remind the Chief of [Ras Al Khaimah] of the former arrangements that distur-
bances on the Island [of Greater Tunb] are considered as disturbances at sea and if any
irregular act of his leads to such disturbances he will be responsible.” Toye, Lower Gulf
Islands, Vol. 1, 609.
25 Toye, Lower Gulf Islands, Vol. 1, 736, containing a telegram from A. Nicolson, Esq., Teheran
(hm’s Chargé d’Affaires in Teheran) to Viceroy, Camp, dated December 10, 1887.
376 chapter 7
à titre de souverain and as such could provide probative evidence of an ef-

fective occupation of Greater Tunb by Persia,26 this assertion proved to be
unsubstantiated as, when pressed by the British to show evidence of these
tax payments, the Persian government did not produce any such documents,
with the official who was said to hold them “declar[ing] he has none, and …
excus[ing] himself from discussing the question”.27
British records also contain five other letters (more accurately, brief messag-
es of one or two sentences) which they received from the Persian g overnment
in January 1888 in defense of its occupation of Sirri in September 1887, and pur-
porting to prove that the island, as well as Greater Tunb, were under the sov-
ereignty of Persia. Indeed, these letters were said to constitute Persia’s “case in
full” with regard to its claim to sovereignty.28 Three of these messages mention
Greater Tunb and must therefore be addressed here (the two other messages
related exclusively to the island of Sirri). All three were purportedly written
within a two-week period around March 1885 by “Sheikh Yusuf bin Muham-
mad”, then the Deputy Governor of Lengeh, and addressed to the Governor of
Bandar Abbas and Lengeh, a district of the Persian Province of Fars.29
Before examining the texts of these messages, it must be noted that for a
number of reasons their general evidentiary value and reliability must be con-
sidered questionable. First, their author, Sheikh Yusuf, was not a Qawásim ruler
himself, but rather an attendant of a previous Qawásim ruler who Sheikh Yusuf
murdered in 1879, resulting in his appointment as the new Deputy Governor
of Lengeh by the Persian Government, to whom he was clearly indebted.30
Indeed, following his own murder in 1885 by a relative of the Qawásim ruler

27 Toye, Lower Gulf Islands, Vol. 1, 741. The acknowledgement that no records existed of any
alleged tax payments levied on or in relation to Sirri or Greater Tunb by the Persian gov-
ernment prior to 1887 also undermines the assertion made by the Persian government in
defense of its occupation of Sirri in 1887 that in April 1885 the then deputy governor of
Lengeh (who was not a Qawásim Sheikh) sent a message to the Governor of Bandar Abbas
and Lengeh that he had gone to Sirri to “recover Government dues”. This documentation
is set out in Toye, Lower Gulf Islands, Vol. 2, 4.
28 Ibid., Vol 1, 738, containing a telegram from Her Majesty’s Chargé d’Affaires, Teheran to
Resident in the Persian Gulf, Bushire, dated December 14, 1887.
29 Ibid., Vol. 2, 3–4, containing a letter from Colonel Ross, Political Resident in the Persian
Gulf to A. Nicolson, Esq., Chargé d’Affaires at Teheran (with enclosures), dated January 23,
1888.
30 Ibid. Lorimer states that the “Persian authorities showed no displeasure at this occur-
rence, and even recognised Yusuf as Deputy Governor of Lingeh on their behalf”. John
G. Lorimer, Gazetteer of the Persian Gulf, Oman and Central Arabia (Cambridge: Archive
Edition, 1986), Vol. 4, 2064.
he had murdered in 1879, Sheikh Yusuf’s wife and sons fled Lengeh for the
Persian controlled island of Qeshm.31 Apart from the questionable reliabil-
ity these circumstances attach to any statement of Sheikh Yusuf in connec-
tion with a dispute between his patron, the Persian government, and the Qa-
wásim, his mortal enemies, it is clear that statements of Sheikh Yusuf cannot
constitute under any circumstances admissions attributable to the Qawásim.
Be that as it may, the British had noted that after Sheikh Yusuf’s appoint-
ment in 1879 “he then appears to have commenced to interfere unduly in the
islands in question, drawing forth remonstrances from the Joasimi Shaikh of
Ras-el-Khymah.”32 In connection with one of these “remonstrances” in 1884,
Sheikh Yusuf had in fact acknowledged that Greater Tunb belonged to the
Ruler of Ras Al Khaimah, thus further undermining the credibility of any sug-
gestion that these subsequent letters reflect his view that the island instead
belonged to Persia.33 Finally, two of the three letters curiously refer to sup-
posed residents of the island, while it is widely acknowledged that at the time
the letters were written (1885), Greater Tunb was uninhabited.34 This obviously
calls into further doubt the reliability of the letters as probative evidence.
Apart from these points of evidentiary credibility, two of the three letters
do not actually reference an act of administration on Greater Tunb, and thus
their value in purporting to establish in some manner the sovereignty of Persia
over the island is in any case doubtful. The first relates an incident in which it
was reported that a boat “belonging to the people of Tamb” went to a Persian
port (Charak), where it was detained due to claims against its owner by local
31 Willem Floor, The Persian Gulf: The Rise and Fall of Bandar-e Lengeh, the Distribution
enter for the Arabian Coast, 1750–1930 (Washington dc: Mage Publishers, 2010), 49.
C
33 In 1884 he wrote to the Ruler of Ras Al Khaimah after this latter had complained about
the Lengeh Sheikh planting date trees on Greater Tunb. In reply, Sheikh Yusuf of Lengeh
wrote to the Ruler of Ras Al Khaimah that he had been informed of “your complaint
about the island of Tanb. In reality, the island belongs to you the Qawásim of Oman, and
I have kept my hand over it, considering that you are agreeable to my doing so. But now
when you do not wish my planting date offsets there, and the visits of Al Bu-Sumait to
cut grass there, God Willing, I shall prohibit them and our mutual relations shall remain
friendly.” Reproduced in Muhammad Morsy Abdullah, The United Arab Emirates: A Mod-
ern History (London: Croom Helm, 1978), 237.
34 See, e.g., The Persian Gulf Pilot (1883 and 1898 editions) which both note that Greater Tunb
was uninhabited. The 1883 edition provides that Greater Tunb “is uninhabited; at times
a few cattle are brought over from the main for pasture, the island being covered with
coarse grass and shrubs.” The Persian Gulf Pilot 1870–1932 (Cambridge: Archive Editions,
1989), Vol. 2 (1883), 225. See also, ibid., Vol. 3 (1898), 227.
378 chapter 7
merchants.35 Thus, this act of administration (detention of a boat in relation

to a claim) purportedly occurred in a Persian port, not on Greater Tunb, and is
therefore not relevant for our purposes.
The second letter recounts that the Persian Governor of Qeshm was travel-
ling to the island of Greater Tunb, and that Sheikh Yusuf purportedly “wrote to
the people of the island to show him due respect”.36 Again, as the island was
uninhabited, purporting to have written to “the people of the island” raises
obvious doubts about the probative value of this evidence. Moreover, when
measured against acts which are generally considered to constitute “local
administration” for purposes of demonstrating a sovereign connection with
a territory (including, for example, raising local taxes, registering title deeds
and contracts of sale, establishing a customs house and holding inquests on
deaths occurring there37) the mere sending of such a message falls far short,
and indeed does not constitute a recognized act à titre de souverain. Further,
the transmission of such a message arguably does not reflect an act actually
taking place on the island itself, particularly as there is no evidence that the
message was ever received or what was done in reaction to it. A final point
of doubt in relation to this letter is that the fact that Sheikh Yusuf might have
made such a request to the “people of the island” does not at all establish that
he did so in assumed recognition of Persian sovereignty over that island, for
which assumption there is no obvious connection (for example, it could have
been the case that he wrote the message as a simple courtesy to the visiting
Persian official). By itself, conveying such a message does not somehow sug-
gest that Persia held sovereignty over the island and it should not, therefore, be
interpreted with such an assumption as a matter of evidence.
Finally, the last letter recounts a decision of Sheikh Yusuf to appoint a cer-
tain officer to make a claim against a person at the island of Kish, noting that
the appointed officer had Sheikh Yusuf’s confidence because he had “formerly
sent him to Tamb to settle the Tamb business.”38 What “Tamb business” is
referred to is not mentioned and guessing at the import and significance of
this reference is simply too speculative and uncertain to base any evidentiary
conclusions on. Moreover, as with the other two letters referenced above, the
subject matter dealt with in this letter and the circumstances of its purported
transmission, do not, even if taken at face value, establish that they were sent
in assumed recognition of Persian sovereignty over Greater Tunb. At most, it

36 Ibid.
s uggests that Sheikh Yusuf himself may have performed some administrative
role or had some authority over certain “business” transacted in relation to
Greater Tunb, but what that role was or what “business” he carried out there
is unclear. Deriving any conclusions about sovereign ownership on the basis
of such a message without some greater evidentiary support is simply not
possible.
In sum, even if their reliability was not tainted or questionable, it is not
possible to derive from these isolated messages dated over a two-week peri-
od in 1885 any firm conclusions about a purported Persian sovereignty over
Greater Tunb. On the contrary, if such evidence was all the Persian government
could provide in defense of a claim over Greater Tunb in 1887 (and there is
no evidence in the record of any further presentations of proof when, in 1904
Persia’s claim over the island became clarified39), it could be interpreted as
demonstrating the “absence of title” as it shows a failure by Persia to have set
up “any kind of administrative regime” for or in relation to the island.40 This
is particularly the case as other evidence has shown that by the latter part of
the nineteenth century some economic activities related to animal husband-
ry, pearling, fishing and some agriculture were regularly being carried out by
individuals on the island. As noted by Fitzmaurice, “a failure to perform certain
acts or set up certain institutions normal to the exercise of sovereignty and
jurisdiction, will be detrimental to a claim of title”41 and the failure to exercise
certain acts on a territory “may be inconsistent with the claim of sovereignty,
or tend to negative the existence of title, by pointing rather to an absence of
it.”42 While it cannot reasonably have been expected that Persia would have
set up any elaborate administrative structure for Greater Tunb (and as stated
previously, in making out a claim of title to terra nullius, “it is enough to display
‘the functions of a State in a manner corresponding to the circumstances of the
territory’, provided the State concerned ‘assumes the responsibility to e xercise
local administration, and does so in fact as and when occasion demands’ (ital-
ics in original)”43), given the economic activities which had begun to be car-
ried out on or around them, it would have been expected that either some
39 It would also appear that the Persian government had no further evidence as prior to
handing over these letters it had asked the British government for “a little delay as to
island when he will communicate to me Persian case in full.”. Toye, Lower Gulf Islands, Vol 1,
738, containing a letter from Her Majesty’s Chargé D’Affaires in Teheran to the Resident in
the Persian Gulf, Bushire, dated Decebmer 14, 1887 (emphasis added).
41 Ibid.
42 Ibid., 58–59 (emphasis in original).
43 Ibid., 52, citing to Waldock, “Disputed Sovereignty”, 336.
380 chapter 7
basic administrative activities would have occurred, or that some evidence of

Persia’s ties or authority would have come to light if indeed those islands had
come to belong to Persia. When considering the absence of any other positive
evidence derived from the nineteenth century that Persia had ties or connec-
tions with the islands during that time, the value of these messages as pro-
bative evidence of Persian sovereignty over Greater Tunb must be considered
very low. It was possibly for these reasons that the British Political Resident in
the Gulf concluded at the time that “[t]hese papers do not bear out the Persian
claim, and I do not think that weight can be attached to the statements of
Sheikh Yusuf.”44
Absence of Evidence of a Direct Persian Occupation

In conclusion, not only is there an almost total absence of any record of
direct Persian links with or control over any of the islands during the period
1800–1887, but there is also no indication that the Persian government other-
wise asserted its ownership of the islands at any point during this nineteenth
century period. Under these circumstances, it would have to be concluded that
there is no evidentiary basis nor legal grounds on which to argue that Persia
(independently of acts which may have been taken by the Qawásim Sheikhs
in Lengeh) claimed, took possession or effectively occupied through acts or
manifestations of sovereignty any of the islands during this period.
Persian Occupation through the Lengeh Qawásim

As there is no evidence on which to argue that Persia acquired title through ef-
fective occupation of the islands during the nineteenth century (prior to 1887)
on the basis of its own governmental actions, the only alternative theory on
which it could be argued that it effectively occupied the islands, as terra nul-
lius, at some point during this period is that it carried out such an occupation
through the acts or intervention of the Qawásim rulers of Lengeh.
44 Toye, Lower Gulf Islands, Vol. 2, 3, containing a letter from Colonel Ross, Political Resident
in the Persian Gulf to A. Nicolson, Esq., Chargé d’Affaires at Teheran (with enclosures),
dated January 23, 1888. For the sake of completeness, it should also be noted that the
absence of evidence of a Persian connection with the islands appears to contradict a note
from the British Resident written in 1880 in reply to a supposed proposal from Sheikh
Yusuf to sell Greater Tunb to Oman. The reply notes that “Sheikh Yusuf would have no
power or right to dispose of the Island without the sanction of the Government of Persia,
which it is wholly improbable would be accorded.” Ibid., Vol. 1, 670. It is difficult to recon-
cile this statement with the evidence as it contains no indication whatsoever that Persia
had claimed or held title to the island or had any authority over it.
Before undertaking this analysis, it should be mentioned that a number

of authors on the subject of the dispute over the islands have noted that the
“Iranian view” or the “Iranian position” (as they describe it) is that “any control
exercised by the Qasimis over the disputed islands was in fact on behalf of the
local provincial authorities of Iran”,45 or that “the Qawásim of Lingah admin-
istered the Tambs in their capacity as Persian officials governing Lingah.”46 In
addition to the absence of any probative evidence that the Qawásim leadership
acted in relation to the islands on behalf of Persia (see below), it is important
to keep in mind that the analyses set out in such arguments are generally pre-
mised on several unquestioned, and erroneous, assumptions. These include
that the islands were already Persian territory prior to the establishment of the
Qawásim at Lengeh in the eighteenth century, and that whatever acts of admin-
istration may have been undertaken by those Qawásim leaders on the islands
must be considered, ipso facto, as having been performed on behalf of the Per-
sian State given the presumptive status of those leaders as Persian subjects and
officials (deputy governors). A closely related third assumption is that to the
extent that certain members of the Qawásim leadership held Persian citizen-
ship, any acts undertaken on the islands by those leaders must without ques-
tion be attributed to Persia. Given the assumptions on which these analyses
are based, they do not address the core issue of the occupation of the islands
as terra nullius (or explain how it is that the Qawásim rulers of Lengeh pur-
portedly undertook such an occupation of the islands on behalf of the Persian
State in the first place). Nor do they explore the associated question whether
any administration which may have been undertaken on the islands by those
Qawásim rulers could, in fact, be viewed as having been performed on their
own behalf or on behalf of the Qawásim leaders on the Arabian coast, rather
than on behalf of Persia.
The analysis set out in this book concludes, contrary to these premises, that
on the basis of the available evidence the islands must be considered to have
been terra nullius at the time the Qawásim established themselves at Lengeh
in the eighteenth century, and indeed that they remained so at the beginning
of the nineteenth century. Accordingly, and in light of the conclusion reached
above that acts by the Persian government itself provide insufficient grounds
45 Kaiyan Homi Kaikobad, “The Evolution of Armistice Lines and Political Borders,” in The
Three Iranian Islands of the Persian Gulf, ed. Ali Rastbeen (Paris: Institut International
D’Études Stratégiques, 2008), 123.
46 Guive Mirfendereski, “The Tamb Islands Controversy, 1887–1971: A Case Study in Claims
to Territory in International Law” (PhD diss., Fletcher School of Law and Diplomacy, Tufts
University, 1985), 311.
382 chapter 7
on which to base a claim of effective occupation of the islands at any time

prior to 1887, it is evident that if a Persian claim of sovereignty is to be found
prior to that date, it will depend entirely on the nature of the relationship
and ties between the Persian government and the Qawásim rulers at Lengeh,
and in particular whether an argument can be made that those rulers carried
out, on behalf of the Persian government, acts leading to an effective occupa-
tion of the islands by Persia during that nineteenth century period. As will be
explained below, it is overly simplistic to maintain that holding Persian citizen-
ship necessarily leads to the conclusion that whatever acts were undertaken
on the islands by the Qawásim leaders of Lengeh were on behalf of that state.
Following a similar methodology as that laid out in chapter 6 with respect
to the eighteenth century, a claim that the Qawásim leaders carried out an
effective occupation of the islands on behalf of Persia would require proof
either that: (i) the Qawásim Sheikhs resident in Lengeh were commissioned
or authorized to act in the name or on behalf of Persia in taking possession of
the islands, that they in fact did so and that the Persian government followed
this up by taking sovereign acts in relation to the islands sufficient to establish
or perfect its title, or that (ii) the Qawásim Sheikhs resident in Lengeh acted
on their own in taking possession of the islands on behalf of Persia, that the
Persian government then ratified and adopted those private acts and followed
up such ratification by taking sovereign acts in relation to the islands sufficient
to establish or perfect its title.47
The first scenario, which has been discussed (and dismissed) in the previous
chapter in relation to the eighteenth century, would require as a preliminary
matter a finding that the Qawásim sheikhs resident in Lengeh were authorized
to act on behalf of the Persian State in laying claim to the islands. Three theo-
retical possibilities underlying such a grant of authority have been identified.
The first of these is that such authority may have been contained in a specific
contractual document entered into between the Persian authorities and the
Qawásim rulers. The second possibility is that such authority may have been
inherent in the authority granted to the Qawásim rulers in their capacity as lo-
cal officials of the Persian government (“deputy governors”). A third theoretical
47 This follows from the principle that occupation, like prescription, “requires that the pos-
session forming the basis of the title must be by virtue of the authority of the state or à ti-
tre de souverain, and not a manifestation of purely individual effort unrelated to the state’s
sovereign claims.” Malcolm H. Shaw, International Law, 6th ed. (Cambridge: Cambridge
University Press, 2008), 505. It is also noted by Shaw that “occupation must be by a state
and not by private individuals”. Ibid., 503. See further chapter 6, text accompanying notes
108–116.
possibility, that authority to take possession of the islands on behalf of Persia

may have been granted to a Qawásim ruler at Lengeh on an ad hoc or infor-
mal basis, need not detain us long for the reason that there are no evidentiary
grounds on which to make such an assertion, and considering such a possibil-
ity would therefore be highly speculative. Thus, there is no evidence which has
come to light on which to argue that at any time some Persian official infor-
mally instructed a Qawásim member at Lengeh to carry out some act on any of
the islands on behalf of Persia which could be interpreted as an act of annexa-
tion or claim of possession, or just as crucially, that any such person undertook
such an act. The further question, whether an act taken pursuant to such an
informal grant of authority would be considered an act of the state, or à titre de
souverain, does not therefore have to be addressed.
(a) Contractual Agreement

As is the case with respect to the eighteenth century, there does not appear
to be any clear evidence in the historical record which would confirm that, if
any written agreement was entered into between some entity of the Persian
government and the Qawásim leaders in Lengeh which was effective during
the nineteenth century, what such agreement’s terms and conditions were. Al-
though a number of scholars refer to such agreements, the evidence of their
existence is inferential since their texts are not in the historical record.48 In-
deed, some authors raise doubts about the very existence of such agreements,
at least insofar as they purported to confer some governmental authority on
the Qawásim. For example, Mirfendereski notes that although the Governor of
Jahangireh, Hadi Khan Bastaki, “is alleged to have conferred the government of
Lingah on the Qawásim of the Persian Coast … Hadi Khan Bastaki’s biography
contains no reference to such a conferral by him upon the Qawásim.”49 Floor
also has found no evidence of such an agreement, noting that the Qawásim
“allegedly signed an agreement” with Mohammad Khan Bastaki, although he
holds that they were formally considered to be subordinate to the governor
of Bastak, the latter having “granted the chief of the Qavasem at Lengeh the
function of revenue collector (zabet)”.50 It is therefore speculative to assume or
conclude, as an evidentiary matter, that the Qawásim rulers in Lengeh received
some form of contractual grant of authority which would have specifically del-
egated to them broad rights to govern Lengeh or, more to the point, act on
behalf of the State in taking political acts, such as asserting a sovereign claim to

49 Mirfendereski, “The Tamb Islands Controversy”, 323.
384 chapter 7
the islands in the name of the Persian state.51 Without such specific authority,
the Qawásim leaders would not have been entitled to act, or purport to act, for
the state in laying claim to the islands. As noted by Fitzmaurice, in relation to
the acquisition of sovereignty over terra nullius, unless the person purporting
51 From other historical events it may also be inferred that no such agreement is likely to
have existed, at least not one which would have granted the Qawásim leaders some de-
gree of political authority to act in the name of the Persian state, other than in relation
to the collection of taxes. For example, the evidence which has been unearthed related
to the events of September 1887, when the Persian government wished to rid itself of
the presence of the Qawásim ruler in Lengeh and reassert its own unfettered authority
over the port (and its tax and customs revenues) reveals no hint of any such contractual
arrangement or its termination. And within the historical documentation which records
that the relatives of the imprisoned Qawásim chief of Lengeh sought the assistance of
the British government in recovering their confiscated property in 1888, no references to
any contractual agreement or rights arising under it were raised, as might be expected in
such circumstances. The absence of evidence of an agreement that may have regulated
(allowing or proscribing) the activities of the Qawásim rulers in Lengeh contrasts with
the circumstances which occurred in relation to the nearby port of Bandar Abbas and
its environs, which had been formally leased by Persia to Oman under a contractual ar-
rangement, first (apparently) entered into in 1795, and then renewed under specific terms
(which included the territorial scope of the lease, the amount of the lease payment and
the requirement that the Persian flag be flown above the port, among numerous other
specific terms) in 1855 and 1868. In that case, the historical archives are replete with evi-
dence of the lease agreements themselves and of instances in which the parties acted
under or with reference to their terms. See, e.g., Toye, Lower Gulf Islands, Vol. 1, 295–536.
Indeed, the Persian government terminated the Bandar Abbas lease only when a change
in leadership in Muscat, bringing to power a “collateral relation of the ex-Sultan”, afforded
it the opportunity to do so pursuant to the lease terms which allowed continuation of
the lease only to the ex-Sultan and his “heirs”. Ibid., Vol. 1, 522. See also, George N. Curzon,
Persia and the Persian Question (London: Longmans, Green and Co., 1892), Vol. 2, 424:
“In the same year, however, the Sultan was expelled from Muscat by a successful revolt,
and the Persian Government, taking advantage of a clause in the lease, allowing them
to cancel the contract if a conqueror obtained possession of Muscat, installed their own
governor at Bandar Abbas, and have retained possession of the place ever since.” While
the specific and numerous historical references to the lease of Bandar Abbas and the clear
evidence of its terms, contrasted with the absence of any historical references to or evi-
dence of the terms and conditions of a contractual arrangement between the Qawásim
and the Persian government, or one of its regional entities such as the Province of Lars,
does not definitively prove that no such contractual arrangement was in place in relation
to Lengeh, it certainly suggests that conclusion. If such an agreement had existed, one
would have at least expected it to have been raised by the Qawásim as a point of objection
to their expulsion from power and confiscation of their property and then referenced in
historical materials of the day.
to carry out the claim is “specially authorized to act on … behalf” of the state,
“it is not the state which is acting” and therefore not an act of volition of the
state, which is one of the principal requirements for carrying out an effective
occupation of terra nullius.52
In the absence of any concrete evidence of such a contractual arrangement
and its specific terms and conditions, and more importantly that it could for
some reason be interpreted as having granted the Qawásim rulers of Lengeh
authority to act in the name of the Persian state in taking acts directed towards
annexing the islands on its behalf, it would be exceedingly difficult for a propo-
nent of this argument to carry the requisite burden of proof.
(b) Authorization as Deputy Governors of Lengeh

Although it cannot therefore be established that the Qawásim rulers of Lengeh
had some contractual grant from the Persian government which would have
provided some basis for them to act on its behalf in asserting a claim of sover-
eignty over the islands during the nineteenth century, an alternative argument
which is theoretically possible is that those leaders possessed inherent author-
ity to act in the name of the Persian State in laying claim to the islands on its
behalf due to their status as Persian officials, or “deputy governors” of Lengeh.
This possibility has been discussed in relation to the eighteenth century in the
previous chapter, where it was found not to be a viable argument, principally
because the scarce evidence which is available would suggest that whatever
authority was granted by the Persian government to the Qawásim leaders
as “deputy governors” was essentially limited to the collection of taxes in or
around Lengeh, and that they were not delegated any broader or independent
political authority.53 If this accurately reflects the extent of the delegated au-
thority the Qawásim leaders in Lengeh held during the nineteenth century, any
act of a Qawásim leader purporting to claim the islands on behalf of Persia at
that time would in any case not have constituted a State act, but rather would
have been a private act which would have been “ineffective to confer any title
on his country or to constitute the basis of a claim of sovereignty unless sub-
sequently ratified and adopted by his Government.”54 As the historical record
does not indicate that any change in the authority of the Qawásim rulers as
presumptive Persian officials occurred in the nineteenth century, it would have
30 (1953): 1–70, 48.
54 Fitzmaurice, “General Principles and Sources of Law”, 48, n. 2.
386 chapter 7
to be concluded that, on the basis of the evidence which has come to light, the
nature and authority attached to whatever official position was held by the
Qawásim rulers during that period was as limited as during the eighteenth cen-
tury. Again, therefore, it would not be possible to draw conclusions from the
holding of the title of deputy governor by any of the Qawásim rulers of Lengeh
during the nineteenth century, that any act of occupation of the islands they
may have carried out constituted a State act attributable to Persia, as opposed
to a private act "ineffective to confer" title without subsequent ratification by
the Persian Government.
In this respect, it should also be mentioned that it is unclear from the his-
torical records when exactly the title of “deputy governor” was first granted to
the Qawásim rulers at Lengeh, and which of them actually held this title. Floor,
for example, lists only one such deputy governor (Sheikh Qazib bin Rashed
al-Qasimi), who he records having served from March 1886 until September
1887.55 Similarly, a British report notes that “[t]he date cannot be established
when the Persian claim that the Shaikhs of Lingah first held an official position
as Deputy Governor. The first recorded instance found is in Lorimer who states
that the Persian Government recognised Shaikh Yusuf bin Muhammad, who
became Shaikh of Lingah after assassinating his predecessor Shaikh Ali bin
Khalifah in 1878, as Deputy Governor of Lingah.”56 If this account is accurate,
and recalling that Sheikh Yusuf was not one of the Qawásim leaders, it would
mean that only Sheikh Yusuf’s successor, the last Qawásim ruler of Lengeh,
may have officially been given the title of deputy governor. Other records, how-
ever, indicate that the practice of conferring this title was more widespread.
For example, a British report of January 1888 states that the “Joasimi Shaikhs
of Lingah have hitherto been usually also Deputy Governors on the part of
Persia.”57 If any firm conclusions regarding sovereignty over the islands were to
be drawn from the status of some Qawásim rulers in Lengeh as deputy gover-
nors (which, for the reasons stated in this chapter, is not the case in this work),
there would obviously have to be greater evidentiary clarity on this point.
(c) Absence of Evidence of Authority or that Persia Perfected its Title

Even if an argument could be established on credible evidence that the
Qawásim leaders in Lengeh received a “prior commission from the state”58

ship of Certain Islands in the Persian Gulf”, undated, 26.
57 Toye, Lower Gulf Islands, Vol 2, 4.
s ufficient in principle to take possession and claim title to the disputed islands
on behalf of Persia, a proponent of this argument would still have to estab-
lish through some evidence that the Persian State actually intended that these
leaders proceed to take possession of the islands, and that the leaders in turn
both intended to exercise, and in fact exercised that authority in claiming pos-
session of the islands as terra nullius on behalf of the state. If these factual
elements cannot be shown, the requisite animus occupandi which underpins
the principle of occupation would be missing, as would the actual exercise and
display of sovereign authority (corpus occupandi), both of which make up the
essential ingredients of the doctrine of effective occupation. As for the latter
element, it must also be kept in mind that a “mere initial taking of possession”
is only “sufficient to set up” a provisional or inchoate title, and that perfect-
ing that title requires “physical occupation, or such equivalent acts as may be
appropriate to the circumstances of the territory”.59 This follows the oft-cited
pronouncements of Judge Huber in the Island of Palmas case. The applica-
tion of this principle to our circumstances would mean that even where the
Persian government had commissioned the Qawásim leaders to take posses-
sion of the islands on its behalf as an act of State, and they had then done so
in furtherance of such commission or authority through some initial act, evi-
dence would have to be adduced that the resulting provisional or inchoate title
which would have resulted was followed up sufficiently by Persia with “such
equivalent acts as may be appropriate to the circumstances” of the islands so
as to perfect its title.
Demonstrating that the Qawásim rulers at Lengeh carried out, on behalf of
Persia, both an initial claim of sovereignty and then the required continuing
acts of sovereignty, or the functions of a State, à titre de souverain, on or in rela-
tion to the islands sufficient to establish title under the norms of international
law alluded to above might be established either through direct or inferential
evidence. In either case, it is fair to say that there is no indication in the his-
torical record whatsoever that any Q awásim leader in Lengeh ever claimed or
purported to have taken possession of the islands, or subsequently exercised
acts of administration there, on behalf of Persia, nor that Persia directed those
59 Fitzmaurice, “General Principles and Sources of Law”, 48, n. 2. In fuller quote, Fitzmaurice
stated that a commissioned officer of a State would be allowed to take possession of terra
nullius on behalf of his country, in which circumstances “the State will thereby … acquire
the provisional or ‘inchoate’ title which mere discovery, or a mere initial taking of posses-
sion, is sufficient to set up (but not sufficient to perpetuate unless followed up by physical
occupation, or such equivalent acts as may be appropriate to the circumstances of the
territory[)]”. Ibid.
388 chapter 7
leaders to take such acts. Indeed, the scarce evidence which has been found,
most of it inferential, which sheds any light on this matter would suggest other-
wise. This includes, significantly, the negative inferences which may be drawn
from the inability of Persia to adduce any relevant or probative evidence of
its claim of ownership of Greater Tunb in 1888 when requested to do so by
Britain, with the only evidence it was able to produce (the various brief letters
described in the previous section of this chapter) being wholly unpersuasive
to prove that proposition. Another important example, also mentioned above,
are the negative inferences to be drawn from the acknowledged absence of
any evidence that Persia raised tax revenues from the islands, whether directly
or through the medium of the Qawásim rulers at Lengeh. As it is fairly well-
established that those rulers were charged with acting as tax collectors for the
port of Lengeh and the coastal area around it, that this remit did not extend
to the islands indicates that the Persian government either did not consider
those islands to belong to it or that it did not ask the Qawásim rulers at Lengeh
to undertake activities there. In either case, it is therefore not possible to as-
sume that whatever activities those rulers did undertake at or in relation to the
islands were done in the name of or on behalf of the Persian state.
Finally, and perhaps most significantly, are the inferences to be drawn from
the various incidents involving the islands during the nineteenth century
which were recorded in contemporaneous documents. While one may dispute
whether these incidents demonstrate that one branch or the other of the Qa-
wásim held the predominant position in controlling or governing the islands,
it is most interesting and relevant to this discussion that none of these docu-
ments record any interest of the Persian government in the islands at all, nor
its involvement in the various disputes which occurred in relation to them.
The absence of any reference to the Persian State or its interests in connec-
tion with these incidents or disputes strongly suggests that any acts taken by
the Qawásim leaders in Lengeh concerning the islands during that period had
nothing at all to do with Persia. If the Qawásim leadership at Lengeh had been
“commissioned” by Persia to take possession of or carry out acts of adminis-
tration on the islands on its behalf, and they in turn believed themselves to
be acting on behalf of the Persian State in such matters, it certainly would be
expected that Persian interests would have been raised, if not placed at the
center of discussions, during these exchanges and disagreements. They were
not even mentioned.60
In light of such evidentiary considerations, there does not appear to be any
factual basis on which to argue that any acts the Qawásim leadership in Lengeh
60 Two of these incidents are described at notes 23 and 24, supra. Other examples will be
described below in this chapter.
may have undertaken in relation to the islands, whether in taking possession

of or administering them, could be considered as constituting acts carried out
on behalf of the Persian State.
(d) Other Considerations Undermining Persian Claims

It should also be added that there is no obvious historical reason why the Persian
government should be assumed to have been amenable to specifically grant-
ing any broad authority to the Qawásim sheikhs which would have allowed
them to act on behalf of the State, other than in relation to the collection of
taxes, given the uneasy, if not hostile, nature of the co-existence between them
during the nineteenth century. For Persia, the autonomous Arab principalities
along its Gulf littoral, including that of the Qawásim at Lengeh, were more of
an unavoidable evil which it had to deal with as best it could and whose terri-
tory it aimed to “retake”. As noted by Lawrence Potter:
Persian control over the Gulf was never continuous, but waxed and waned
over the centuries. The long period between the fall of the Safavids in the
early eighteenth century and the rise of the Pahlavis in the early twenti-
eth century was one in which a weak government in Tehran was not able
to fully control its Gulf littoral. However, starting in the middle of the
nineteenth century there is an unmistakable trend to retaking the ports
whose outcome was never in doubt.61
Potter adds that “[t]he last piece of territory to be retaken was Bandar Lengeh
and its districts, stretching about 40 miles along the coast. This important port
had been ruled by the Qawásim for most of the previous century.”62 Indeed,
as recounted above, the strained co-existence between the Qawásim rulers in
Lengeh and the Persian authorities ended in violence in September 1887 when
the Persian government re-established its control of Lengeh and the area of
the Gulf littoral around it by force through a detachment of troops, arresting
and imprisoning the Qawásim leader in Lengeh and confiscating all of his and
his family’s property. As described by Lorimer, the “Arab population of Lingeh
were loyal to the [Qawásim] Shaikh, preferring an Arab to a Persian ruler; but
the Persians had resolved on abolishing the system of Local Deputy Gover-
nors and on the abasement of the Arab ruling family.”63 Hardly s uggestive of
61 Lawrence G. Potter, “The Consolidation of Iran’s Frontier on the Persian Gulf in the Nine-
teenth Century”, in War and Peace in Qajar Persia, ed. Roxane Farmanfarmaian (London:
Routledge, 2008), 141.
62 Ibid., 140.
390 chapter 7
a relationship of confidence and trust, on which an agency is typically found,

this episode is more reflective of a relationship in which, prior to 1887, the
Qawásim rulers operated with a significant degree of independence and per-
haps at times impunity from the central government.
Closely connected to the mutual suspicion and outright hostility (and
undoubtedly the cause of it in part) which existed between those rulers and
the Persian authorities was the continuing tribal relationship which existed
between the Qawásim rulers on both sides of the Gulf during the nineteenth
century. Although by 1864, the British Political Resident in the Gulf described
the “wealthier class” of residents at Lengeh as “Persianised Arabs”,64 clear in-
dications of the close ties between the Qawásim leaders of the Arabian and
Persian coasts endured throughout the century and right up to their expulsion
from Lengeh in 1887. It has been noted above that in 1806 the British govern-
ment considered the Qawásim on both sides of the Gulf to constitute a uni-
fied group which, because of their so-called “piratical depredations”, had to be
jointly suppressed (and were in one naval engagement that year), and whose
rulers at Lengeh were but “dependents” of the Qawásim leadership on the
Arabian coast. The 1806 treaty of peace with the British which resulted from
these engagements was entered into by the Qawásim leader at Ras Al Khaimah
on behalf of the unified Qawásim tribe, including those resident in Lengeh.
At that time, and understandably in light of these circumstances, the Persian
government regarded the Qawásim leadership at Lengeh as having a precari-
ous allegiance to Persia.65 The same view was held by the British, who noted
in relation to the Qawásim ruler of Lengeh at this time that he “is a Joassim by
birth, uncle to Sultan ben Sugger of Rasul Khemeh [Ras Al Khaimah] on the
Arabian shore, and a Wahabee by religion and pays tribute to Sahood, the pres-
ent leader of that rising sect; but living on the coast of Persia he calls himself,
when it suits his purpose, a Persian subject, tho’ he obeys no order but what
pleases him.”66
In a further and more severe naval assault by the British against the Qawásim
in 1809, attacks were again launched against both the Qawásim h eartland on
64 Lewis Pelly, Visit to Lingah, Kishm, and Bunder Abbass (read before the Royal Geographical
Society of London on June 27, 1864) (W. Clowes and Sons (undated)), 1–2.
65 Sultan Muhammad Al-Qasimi, The Myth of Arab Piracy in the Gulf, 2nd ed. (London: Rout-
ledge, 1986), 56, containing a Letter from Captain D. Seton to Wm. Bruce, dated June 30,
1805.
66 J.B. Kelly, Britain and the Persian Gulf 1795–1880 (Oxford: Oxford University Press, 1968),
106–107, note 4 (citing to a letter from Captain Seton, dated August 14, 1805).
the Arabian side of the Gulf (principally Ras Al Khaimah) and at Lengeh,
where the British navy destroyed Qawásim vessels and razed the town:
From Ras-ul-khymah the Expedition proceeded to Linjah, a flourishing

port of the Joasmis, on the Persian coast, near the island of Kishm, and
probably containing at that time nearly ten thousand inhabitants. From
this place the people fled into the mountains on the approach of the
squadron, taking all their moveables with them. On the 17th of November
Linjah was occupied without resistance, and burned to the ground, and
the vessels, amounting to twenty, nine of them being large war dhows,
were destroyed.67
A third “naval and military expedition was despatched from India against the
piratical Qawásim of the Persian Gulf” in 1819, and it once again also targeted
Qawásim vessels at Lengeh where “some boats were destroyed” and the port
was sacked, although on this occasion the Persian government launched a
protest against the British intrusion at the port and demanded that compen-
sation be paid to the owners of the destroyed vessels as “Persian subjects”.68
Notwithstanding this protest, the aim of the British naval operations at Lengeh
was clearly in recognition of the unified nature of the Qawásim leadership on
both sides of the Gulf. This was made clear in a letter from the Governor of
Bombay to the Prince of Shiraz prior to the attack, in which the British had
requested – in vain– the assistance of the Persian government in “the opera-
tions about to be undertaken against Linjah, Moghu, Charak and other points
on the Persian coast which had completely identified themselves with the
Joasmis.”69 As in the case of the treaty which was entered into following the en-
gagements of 1806, the recognized Ruler of the Qawásim at Sharjah, Sultan bin
Saqar, signed the “General Treaty of Peace” with the British in 1820 on behalf
of the Qawásim tribe,70 although unlike the 1806 treaty, no specific mention of
the Qawásim responsibilities to cease hostile activities from the Persian coast
1877), Vol. 1, 330–331.
68 Lorimer, Gazetteer of the Persian Gulf, Vol. 4, 1932, 1936; Floor, Rise & Fall of Bandar-e
Lengeh, 44. See also, Kelly, Britain and the Persian Gulf, 160, who notes that the British
reply to the Persian protest was “to remind the Persian ministers that complaints had
frequently been made to the Prince-Governor of Fars about outrages committed upon
British ships by Persian subjects, and that no satisfaction had been obtained because the
Prince had no power to control the coastal tribes.”
69 Rathbone Low, History of the Indian Navy, Vol. 1, 352.
392 chapter 7
is made in the 1820 treaty. Some authors have taken this to indicate that a sepa-
ration of the Lengeh Qawásim rulers from their cousins on the Arab littoral
had occurred by 1820, with the former increasingly identifying themselves with
Persia rather than with their Qawásim cousins. One author suggests that as the
1820 treaty was not signed by the Qawásim leader at Lengeh, he (and Lengeh)
were purposefully and specifically excluded from the scope of its obligations.71
But these assertions are in direct contradiction to the evidence which shows
that the Qawásim on both sides of the Gulf had continued to act in unison, and
had for that reason both been indistinguishably targeted by the British in the
three naval and military expeditions it launched against the Qawásim in 1806,
1809 and 1819. That the recognized chief of the Qawásim would sign the treaty
on behalf of the entire tribe, wherever located, is not surprising. While there is
no explicit reason identified in the historical record for not specifically men-
tioning the obligations of the Qawásim on or in relation to the Persian coast
in the 1820 treaty, it may have been due to various reasonable explanations, in-
cluding that by committing the chief of the Qawásim to “abstain for ever from
all plunder and piracy by sea and land”,72 it was simply not necessary (nor was
it the intention) to specify (or limit) the geographical extent of his obligations.
On the contrary, the intention of the treaty was to obligate each of the Arab
chiefs signing the document (including the Ruler of the Qawásim) to observe
its terms (including the cessation of so-called “plunder and piracy”), without
any geographical limitation. This interpretation is, in fact, consistent with the
nature of many of the other provisions of the treaty as well.73
Lorimer notes that after 1820, “[t]he Qawásim had still a close connection
with the coast of Persia, where Lingah was governed by a family of their tribe;
and they seem to have favoured, not unnaturally, the side of the local Arab
Shaikhs in the periodical difficulties between the latter and the central Persian
Government.”74 Between 1820 and 1887, the historical records note a number
of occasions on which the Qawásim rulers on either side of the Gulf acted to
support each other. These include, significantly, the occasion in 1855 when the
Ruler of Sharjah stepped in and acted as regent for the adolescent successor to
the Ruler of Lengeh “and continued for some months to reside there.”75 A few
years later, in 1857, the Ruler of Sharjah sent several hundred armed men to
Lengeh at the request of its leader to support him in a threatened c onfrontation
71 Kaikobad, “Evolution of Armistice Lines”, 122.

73 Ibid., Vol. 2, 672–673.
74 Ibid., Vol. 2, 688.
75 Ibid, Vol. 2, 730.
with Persian authorities concerning the delayed payment of taxes.76 The close
attachment between the Qawásim leaders on both sides of the Gulf is also
apparent when considering the events surrounding the demise of Qawásim
rule at Lengeh in 1887. When the Qawásim Ruler was seized and imprisoned
by the Persian authorities at Lengeh, his vizier and the Ruler’s brother fled to
Ras Al Khaimah for sanctuary, and when threatened by Persia with force if the
two were not surrendered, the Qawásim Rulers of Ras Al Khaimah and Sharjah
refused and were prepared to resist any aggression launched by Persia.77 Those
Rulers also claimed a share of the Qawásim properties “situated in the P ersian
district of Lingah” which, upon the seizure of the Qawásim Ruler there, had
been confiscated by the Persian authorities. The Ruler of Ras Al Khaimah
noted in a letter to the British in November 1887 that he had “landed property,
date plantations, houses and ware-houses, and property which has descended
to us as heritage from our family, and over which we have our control.”78
The conclusion to be derived from a review of the historical events of the
nineteenth century leading up to the events of 1887 is that any assumption
underlying the notion that the Persian government would have granted some
independent political authority to the Qawásim leadership at Lengeh under
which those leaders would have been authorized to conduct sovereign activi-
ties (such as an effective occupation of the islands) on behalf of and in the
name of that government, is seriously flawed. The evidence simply does not
support that assumption. Equally flawed is any notion that the Qawásim lead-
ers in fact carried out any such acts or other acts of administration on or in
relation to the islands on behalf of Persia, as there is absolutely no evidence in
the record which would support such an assertion. While, as we will describe
below, the Qawásim leadership in Lengeh played a role in the administration
of Greater Tunb during the nineteenth century, this fact alone does not lead to
the conclusion that Persia was the beneficiary of those acts of administration.
Indeed, there are no factual grounds in the historical record on which to tie
those activities in any way to Persia or to interpret them as having been under-
taken on behalf of Persia or at its behest. As these notions are not plausible, the
only remaining basis on which one might conclude that Persia was the benefi-
ciary of acts of annexation of the islands undertaken by the Qawásim leaders
of Lengeh is if those leaders purported to act in a private capacity on behalf of
Persia and such acts were then adopted and ratified by Persia. This subject is
addressed in the following section.
76 Floor, Rise & Fall of Bandar-e Lengeh, 45–46.

78 Ibid. Notwithstanding this claim, there is no record that any compensation was paid or
that the rights of the Ras Al Khaimah Ruler over the Lengeh property was recognized.
394 chapter 7
Persian “Ratification” of an Effective Occupation Carried out

by the Lengeh-Qawásim
Again quoting Waldock, “an annexation [of terra nullius] to have any effect
must either have been carried out under a prior commission from the
state or must have been adopted subsequently by the state – through express
ratification.”79 This latter principle raises the question whether an argument
could be advanced that, even if they were not commissioned to do so by Persia,
the Qawásim leaders at Lengeh carried out private acts on behalf of the State
tantamount to an effective occupation of the disputed islands, which Persia
then adopted “through express ratification”. No such argument has ever been
asserted or discussed by those scholars who generally support the claim of Iran
to sovereignty over the islands. It would, in any case, be a difficult argument
to support as two of the three constituent factual elements making up such a
claim appear to be totally absent from the historical record. These are, first, the
requirement that any such private acts which were carried out by the Qawásim
leaders of Lengeh were performed with the intention of claiming or annexing
the islands on behalf of Persia, and second, that Persia expressly ratified those
acts of annexation. In neither case is there any contemporaneous evidence
which would even indirectly support the assertion in question.
This is not surprising insofar as the historical record reveals no indication
that the Persian government and the Qawásim leadership at Lengeh cooper-
ated in any way with respect to the islands. Given this history, in which noth-
ing can be found which would suggest that those Qawásim leaders at any time
declared the islands to be a possession of Persia or took other acts in relation
to the islands in support of Persian sovereignty, or that Persia took any acts or
made any claims in relation to the islands prior to 1887, let alone “expressly
ratified” a possession of the islands purportedly made on its behalf by the
Qawásim, it would have to be concluded that this general argument could not
stand up to scrutiny. That being said, the third factual element which would
arise in connection with such an argument – whether the Qawásim leaders at
Lengeh in fact carried out acts of administration related to the islands (albeit
not on behalf of Persia)– is still a very relevant question. That matter must be
analyzed in connection with the question whether the islands were effectively
occupied by the broader Qawásim tribe, that is, the predecessors of the mod-
ern Emirates of Sharjah and Ras Al Khaimah, prior to 1887, and in that context,
whether a division of authority for the administration of the islands between
the Qawásim settled at Lengeh and the Qawásim authorities on the Arabian
79 Waldock, “Disputed Sovereignty”, 323 (emphasis added).

coast, existed and, if so, what effect it had on the rights of ownership. This is
the subject of the following section.
Grounds for a Qawásim Claim of Occupation from 1800–1887
An analysis of whether the Qawásim obtained title over the islands – or any
of them – through effective occupation or any other applicable legal doctrine
during the nineteenth century involves very different considerations from
those discussed in relation to Persia. Thus, while there are various instances of
recorded Qawásim activity on and in relation to the islands during this p eriod
(as opposed to the total absence of Persian activity), the question remains
whether this activity reflected the “actual exercise of sovereign rights” or was
otherwise sufficient to make out a completed occupation or acquisition of
title. Another important question is the significance of the internal Qawásim
disputes as to ownership over certain of the islands, and whether, and in what
respect, the existence of such disputes affected ownership rights over those
islands. Finally, the question arises as to whether a strict application of the
doctrine of effective occupation of terra nullius should be applied in deter-
mining whether the Qawásim acquired title over the islands, or whether some
adaptation of that doctrine is more appropriate to take into consideration “the
special conditions of the region”.80
Applicable Legal Doctrines
Effective Occupation
The critical elements of determining whether a State has effectively occupied
terra nullius are well-known and have been set out above. Briefly, and recall-
ing the seminal cases of Eastern Greenland, Island of Palmas and Clipperton
Island, and those subsequent cases which elaborated various related eviden-
tiary doctrines, including the Minquiers and Ecrehos case, the fundamental
requirements to establish an effective occupation include (a) the intention
and will to act as sovereign over the territory in question, and (b) some actual
exercise or display of sovereign authority over that territory. Judge Huber in
Island of Palmas articulated the relevant standard as “the actual continuous
80 Cf. Dubai-Sharjah Border Arbitration (Dubai/Sharjah), Award of October 19, 1981, ilr 91
(1993) 543, 590.
396 chapter 7
and peaceful display of state functions”.81 The exercise of sovereignty suffi-

cient to establish an effective occupation must be “genuine and not a mere
paper claim dressed up as an act of sovereignty”.82 As for remote territories, or
uninhabited islands, it “is enough if the state displays the functions of a state
in a manner corresponding to the circumstances of the territory, assumes the
responsibility to exercise local administration, and does so in fact as and when
occasion demands.”83 This pronouncement gains added poignancy when read
alongside the statement of the Permanent Court in the Eastern Greenland case
that “[i]t is impossible to read the records of the decisions in cases as to ter-
ritorial sovereignty without observing that in many cases the tribunal has been
satisfied with very little in the way of the actual exercise of sovereign rights,
provided that the other state could not make out a superior claim. This is par-
ticularly true in the case of claims to sovereignty over areas in thinly populated
or unsettled countries.”84 As the islands were all uninhabited and not subject
to competing claims from Persia prior to 1887, it may be concluded that a rela-
tively modest “exercise of sovereign rights” by the Qawásim would in principle
be sufficient to make out an effective occupation during the pre-1887 period.
Special Conditions of the Region

In addition to the characteristics of the territory as a factor to be taken into
account by international tribunals in assessing the exercise of sovereign rights
over territory, when dealing with territorial or boundary disputes involving soci-
eties and regions in which, at the time the disputes arose, western c onceptions
of sovereignty were not entirely applicable to the accumulation of sovereign
rights which the regional powers, including tribal organizations such as the
Qawásim, typically held, international tribunals have been prepared to adapt
their analysis to take into account the types of ties to the territory which then
amounted to territorial sovereignty in such societies, as well as other special
conditions of the region and political entities in question. This approach re-
sponds to what one leading scholar has described as “the significant elements
81 Island of Palmas case (Netherlands/United States of America), Award of April 4, 1928, riaa
2 (1928) 829, 840.
83 Ibid., 336 (emphasis in original).
84 Legal Status of Eastern Greenland, pcij, Ser. A./B., No. 53 (1933), 46. See also, Territorial
sovereignty and Scope of Dispute (Eritrea/Yemen), Award of October 9, 1998, riaa 22 (1998)
209, para. 239: “The modern international law of the acquisition (or attribution) of terri-
tory generally requires that there be: an intentional display of power and authority over
the territory, by the exercise of jurisdiction or State functions, on a continuous and peace-
ful basis.”
of relativity” which “the concept of territorial sovereignty” has throughout the

world.85 Thus, the icj in the Western Sahara Advisory Opinion recognized that:
It is in the context of such a territory and such a social and political

organisation of the population that the Court has to examine the ques-
tion of the “legal ties” between Western Sahara and the Kingdom of Mo-
rocco and the Mauritanian entity at the time of colonization by Spain …
No rule of international law, in the view of the Court, requires the structure
of a State to follow any particular pattern, as is evident from the diversity of
the forms of State found in the world today … At the same time, where sov-
ereignty over territory is claimed, the particular structure of a State may
be a relevant element in appreciating the reality or otherwise of a display of
State activity adduced as evidence of that sovereignty.86
In particular, a review of some of these decisions reveals that tribunals have

also analyzed ties to territory in light of the concept of effective control over
that territory and the display of effective governmental authority in the ter-
ritory in question, while taking into account the nature of authority typically
exercised by the tribal organizations present in that region. For example, in
the Dubai/Sharjah arbitration, when dealing with various territorial disputes
between two Emirates of a federated country (the uae), the tribunal applied
“international law adapted to the special conditions of the region” and, impor-
tantly, laid out criteria which, in relation to that area in the nineteenth century,
were most relevant to “assessing and evaluating the various territorial claims”.87
The tribunal explained its methodology for reaching this conclusion in the fol-
lowing manner. First, the tribunal took note of five criteria which had been
developed and applied by the British government when it undertook the task
of investigating and determining the boundaries between the various emirates
of the uae in 1955. These were “in approximative order of importance[:] 1. De
facto control of several years’ standing in an area, and the recognition of that
control by local and neighboring tribesmen and authorities. 2. The collection
of zakat [or Islamic alms] (on crops). 3. The allegiance of tribesmen settled in
the area. 4. Historical evidence [including:] (a) agreements (b) zakat (c) set-
tlement of disputes (d) past occupation (e) development and use of territory
85 Malcolm Shaw, “Introduction: The International Law of Territory: An Overview”, in Title to

Territory, ed. Malcolm Shaw (Asghate: Dartmouth, 2005), xiii.
86 Western Sahara, Advisory Opinion, icj Reports 1975, 12, paras. 89, 94 (emphasis added).
87 Dubai-Sharjah Border Arbitration, 588–590.
398 chapter 7
[and] 5. Ownership of property.”88 Of these, the tribunal considered it could re-

duce them “essentially to the following two – (i) control, and (ii) allegiance.”89
Ultimately, the tribunal, after analyzing all the evidence, found that “in the
middle of the nineteenth century the Ruler of Sharjah had a legal title over
Abu Hail, firstly, because of the allegiance owed to him by its inhabitants, and,
secondly, because he had effective control over it, since it was at his instigation
that the fortifications [there] were erected and it was to him that approaches
were made to have them pulled down.”90 The concept of effective control over
territory was also resorted to by the arbitral tribunal in analyzing sovereignty
over the Al Mamzer Peninsula in subsequent historical moments.91
In the Qatar/Bahrain case, the icj, in dealing with one of the small islands
subject of the sovereignty dispute between these former British protectorates
(the island of Qit’at Jaradah), held that it belonged to Bahrain as it had dem-
onstrated sufficient acts à titre de souverain considering the characteristics of
the island, on which point the Court referred to the oft-quoted passage of its
predecessor in the Legal Status of Eastern Greenland case:
The Court first notes that Qit’at Jaradah is a very small island situated
within the 12-mile limit of both States … Certain types of activities
invoked by Bahrain such as the drilling of artesian wells would, taken
by themselves, be considered controversial as acts performed à titre de
souverain. The construction of navigational aids, on the other hand, can
be legally relevant in the case of very small islands. In the present case,
taking into account the size of Qit’at Jaradah, the activities carried out by
Bahrain on that island must be considered sufficient to support Bahrain’s
claim that it has sovereignty over it.
In this context the Court recalls that the Permanent Court of Interna-
tional Justice observed in the Legal Status of Eastern Greenland case that
“It is impossible to read the records of the decisions in cases as to territo-
rial sovereignty without observing that in many cases the tribunal has
been satisfied with very little in the way of the actual exercise of sover-
eign rights, provided that the other State could not make out a superior
claim.” (P.C.I.J., Series A/B, No. 53, p. 46).92
88 Ibid., 588–589.
89 Ibid., 589.
90 Ibid., 601–602 (emphasis added).
91 Ibid., 606–607, 611, 622.
B
ahrain), Merits, icj Reports 2001, 40, paras. 197–198.
Evidentiary Framework – Abu Musa
Measured against these yardsticks, and keeping in mind the evidentiary stan-
dards developed, most prominently, in the Minquiers and Ecrehos case, which
emphasize the importance of evidence which relates directly to the posses-
sion of the disputed territory by the claimant rather than inferences drawn
from surrounding events, a number of evidentiary materials related to events
which occurred from the 1860s through the mid 1880s are reflective of both
“the intention and will” of the Qawásim leaders of Sharjah to act as sovereign
over Abu Musa (animus occupandi) and their actual exercise of some sovereign
authority over the island (corpus occupandi), or (in the terminology used in the
Dubai-Sharjah Border Arbitration), their effective control of the island. A review
of these materials and the events they relate to is set out below.
Claims of Ownership and Disputes over Use and Access

The sequence of these documented events begins in 1864, when the Sheikh of
Sharjah and Ras Al Khaimah (as the two places were then under the leadership
of a single Qawásim leader, Sultan bin Suggur), wrote to the British Resident,
Colonel Pelly, to complain that people from Dubai had been taking their horses
and sheep to Abu Musa for grazing, and that notwithstanding an earlier com-
plaint, the British had not prevented them from continuing this practice. This,
the Qawásim ruler contended, would lead to “disturbances” as “Tamb [Greater
Tunb], Bu Musa [Abu Musa] and Sir belong to me from the time of my forefa-
thers. Nobody went there without my permission.”93 The Ruler of Dubai had
refused to discontinue his people’s use of the island unless the British govern-
ment instructed him to do so on the grounds that “the island was in the sea
and did not belong to anybody.”94 To this, the Qawásim ruler had replied to the
British Resident:
If you will not prevent him, a disturbance will take place, because I will
not give up my rights to it, neither will I allow anybody to interfere with
it without my permission. It is well-known from olden times that these
islands (i.e., Bu Musa, Tamb & Sir) belong to me.95
93 IOR/R/15/1/246, “14/88 I Islands of Abu Musa, Tunb and Sir Abu Nu’air: questions of own-
ership”, 134r–135v, containing Letter from Sultan bin Suggur (Chief of Ras al-Khaimah) to
Col. Pelly (Political Resident, Persian Gulf), dated Dec. 28, 1864. Also available in Q
atar
Digital Library. Accessed November 20, 2016. http://www.qdl.qa/en/archive/81055/vdc
_100023662629.0x00004e.
94 Ibid., 134v.
95 Ibid., 135r.
400 chapter 7
The reference to “disturbances” and, in general, seeking the intervention of the

British Resident in preventing the encroachment on the island by the people
of Dubai can be explained by looking at the terms of the 1853 Treaty of Peace in
Perpetuity. Article 1 of that treaty, which had been signed by both the Qawásim
chief, Sultan bin Suggur, and the Dubai chief, among other coastal Arab chiefs,
under the auspices of the British, provided that “there shall be a complete ces-
sation of hostilities at sea between our respective subjects and dependents,
and a perfect maritime truce shall endure between ourselves and between our
successors, respectively, for evermore.”96 Disturbances on islands were consid-
ered disturbances at sea, and were thus prohibited by the treaty, regardless
of whose property they were.97 Further, the treaty granted the British govern-
ment the role of keeper of the peace, obliging the parties to seek its interven-
tion whenever necessary to maintain the peace at sea: “We further agree that
the maintenance of the peace now concluded amongst us shall be watched
over by the British Government, who will take steps to ensure at all times the
due observance of the above Articles”.98
The 1864 letter clearly reflected the intention and will of the Qawásim to act as
sovereign over Abu Musa, and in fact it claimed that Qawásim ownership of the
island had existed from the mid-eighteenth century given that Sultan bin Sug-
gur himself had ruled since 1803 and in the letter he claimed that the Qawásim
had owned the island since the time of his “forefathers”.99 Contemporaneous
evidence of possession of the island by the Qawásim stretching back that far
96 Toye, Lower Gulf Islands, Vol. 1, 290–291, containing “Treaty of Peace in perpetuity agreed
upon by the Chiefs of the Arabian Coast [on] behalf of themselves, their heirs and succes-
sors, under the mediation of the Resident in the Persian Gulf, 1853”, Art. 1.
97 See, e.g., ibid, Vol. 1, 609, containing a letter from the British Resident to the Native Agent
on the Arab Coast, dated March 22, 1873, in which the Native Agent is told to “remind the
Chief of Rasulkhymah of the former arrangements that disturbances on the Islands are
considered as disturbances at sea and if any irregular act of his leads to such disturbances
he will be responsible.”
98 Ibid., Vol. 1, 291, Art. 3 of the 1853 Treaty.
ership”, 134r-135v, containing Letter from Sultan bin Suggur (Chief of Ras al-Khaimah)
to Col. Pelly (Political Resident, Persian Gulf), dated Dec. 28, 1864. Also available in
Qatar Digital Library. Accessed November 20, 2016. http://www.qdl.qa/en/archive/81055/
vdc_100023662629.0x00004e. As his father, Sultan, had ruled from 1777 until 1803 and his
grandfather, Rashid, had ruled from around 1747 until 1777, such an assertion would date
the Qawásim ownership of the island from the mid-eighteenth century. It should also
be noted that, while Sultan bin Suggur states in the 1864 letter that Abu Musa, Greater
Tunb and Sir islands “belong to me from the time of my forefathers” (emphasis added),
in stating that his ownership dated from the time of his forefathers, the letter makes clear
that the ownership rights he refers to were tribal rights which pertained to the broader
has not, however, been located. The same year this letter was written (1864),
the first edition of a British maritime survey of the Gulf (The Persian Gulf Pilot)
was published. It noted that Abu Musa was uninhabited, but was “visited by
fishing boats from Sharkeh [Sharjah]”, thus adding some support to the asser-
tion of a connection between the island and Sharjah.100
In addition to the 1864 letter, a number of other documents dated during
the nineteenth century contain statements reflecting the Qawásim assertion
of ownership over Abu Musa and documenting the repeated steps taken by
the Qawásim to defend the island from encroachment or use by others. These
include a letter, dated December 1871, from the Qawásim Chief of Ras Al
Khaimah for the attention of the British Resident in the Gulf, reiterating in
terms reminiscent of the 1864 letter that it was common knowledge that the
islands of Abu Musa, Greater Tunb and Sir had belonged to the Qawásim for
generations, that is from the time of Sultan bin Suggur and his forefathers, and
warning off the use of the island by other tribes from the Omani coast.101
This was followed by other documented events, typically arising out of at-
tempts by non-Qawásim Arab tribes to use Abu Musa for grazing animals or
fishing, which brought about written complaints from the Qawásim to the
British reflecting their repeated assertions of ownership of the island. Remi-
niscent of the 1864 letter, documents dated between 1871 and 1875 (discussed
below) reflect continued Qawásim claims of long-standing ownership to Abu
Musa, along with efforts to defend and control access to the island by other
coastal Arab tribes (including those from Abu Dhabi, Dubai, Ajman and Umm
Al Qaiwain) which, although they made no formal claim to the island, sought
on several occasions to use it in connection with seasonal animal grazing and
fishing. Again, in line with the 1853 Treaty of Peace in Perpetuity, the Qawásim
requested British intervention to ensure that its rights over the island were
maintained without causing “irregularities” or “disturbances”, which they im-
plied would occur if the British did not ensure that Qawásim rights over the
island were respected by these other tribes.
Two reports, also dated December 1871 and clearly connected to the above-
mentioned letter of the same date, were sent from the British Agent on the
Arab coast to the British Resident concerning the actions of the Ruler of Dubai
in attempting to send armed men to the island of Abu Musa “to deter the
Qawásim tribe. This is also made clear by the reference in the letter to the ownership of
Sirri island, which the letter states “belongs to the Jowasimis of Lingah”.
100 Persian Gulf Pilot, Vol. 1 (first edition (1864)), 170. However, the same edition of the Persian
Gulf Pilot noted that Abu Musa was under the “authority” of the Qawásim chief of Lengeh
at that time. This assertion and its significance will be discussed further below.
402 chapter 7
horses and cattle of the Chief of Shargah from grazing there.” In line with the
assertions of ownership made by the Qawásim leaders in the letters of 1864
and 1871, the British Agent noted in one of these reports that “[i]t has been
customary from old times for the Chief of Shargah to send his cattle to that
island. The people of Debaye [Dubai] sent some horses and cattle there some
time ago and a dispute took place between the two Sheikhs about that island.
I twice wrote to the Chief of Debaye to keep away from that Island.”102
In March 1872, soon after these two reports were written, the Qawásim Chief
of Sharjah, Salim bin Sultan, wrote to the British Resident reminding him that
he (the Resident) had previously written to the chiefs of the other coastal Arab
ports to prevent their people from going to Abu Musa, and again asking his
intervention to prevent “the people of other Ports from sending their camels
and horses to graze” at the island: “I fear disturbances may take place on that
Island which may extend to the Sea and beg you will be so good as to inform the
Chiefs not to send their cattle there.”103 Some two weeks later, and apparently
after the rulers of two other coastal Sheikhdoms, Ajman and Umm Al Qaiwain,
had proceeded to send boats with their animals aboard to Abu Musa for graz-
ing, such “disturbances” occurred. A report to the British Resident recorded
that the Ruler of Sharjah had, after hearing about these actions, launched his
own boats and “articles of warfare” intending to defend the island from the
other tribes.104 This action led to a confrontation between the tribes in which
violence was apparently averted when they agreed on a peaceful resolution,
reported to the British resident in March 1872, under which all their animals
could graze that Spring.105
Whatever accommodation had been agreed in the Spring of 1872, the
Qawásim maintained their claim to hold ownership over the island thereafter,
as events from both 1873/1874 and 1875 demonstrate. In January 1874, it was
reported that armed men from Sharjah, under the direction of the Q awásim
Ruler Sheikh Selim bin Sultan, had fired upon a vessel from Dubai seeking to
anchor at the island of Abu Musa on account of bad weather, w ounding several
men. Although the British government demanded that the Ruler of Sharjah
pay a fine to the wounded men, as it considered such conduct to be “irregular”
and in violation of the 1853 Treaty of Peace in Perpetuity, the Ruler of Sharjah
refused.106 In November 1875, the Ruler of Sharjah notified the British Resident
that he intended to send horses and men to Abu Musa and that, while he no
102 Ibid., Vol. 1, 570–573.

103 Ibid., Vol. 1, 584.
104 Ibid., Vol. 1, 586–587.
105 Ibid., Vol. 1, 593.
106 Ibid., Vol. 1, 621–644.
longer had any objection to “boats taking shelter at [the island] in times of
necessity”, he would not tolerate anyone sending their cattle to the island for
grazing or “carry[ing] away any grass from it”.107 The British then notified the
other Arab tribes not to enter the island.108
While the evidence derived from these events during the 1860s and 1870s
reflects a consistent pattern of Qawásim claims of ownership over Abu Musa
during that period, the claims that such ownership stretched back to the mid-
eighteenth century is not supported by direct evidence which has come to
light, but rather is made out only through assertion and inference. Importantly,
however, the various disputes which arose between the Qawásim and other
Arab coastal communities, including those from Abu Dhabi, Dubai, Ajman
and Umm Al Qaiwain, during the 1860s and 1870s did not involve any compet-
ing claims of ownership by those communities. While they sought to use the
island, none of them, other than the Qawásim, claimed ownership.
Other than these documented events, there exists some other probative evi-
dence reflecting the Qawásim rights over Abu Musa and their exercise of au-
thority on or in relation to the island during the latter stages of the nineteenth
century. These activities are briefly described below.
Building Infrastructure
A number of written reports dating from the early 1880s document the con-
struction of buildings and some light infrastructure on Abu Musa by the
Qawásim. These reports include one from 1880 in which the Chief of Sharjah
stated that he had spent “about 3000 tomans in the Island of Abu Musa in build-
ings, sinking wells and plantations”.109 The report of a burglary on Abu Musa
dating from 1882 (see next sub-section) also of course deals with a s tructure –
the Ruler’s house– which had been built on the island. A further report, the
1883 edition of The Persian Gulf Pilot, again alludes to the Ruler’s house and
the activities carried on at the island by noting that the Ruler of Sharjah “visits
the island in the hot season” and has planted dates and keeps horses there, for
which activities he maintains some 50 persons on the island, as well as sheep
and goats.110 It also notes, consistent with the above-mentioned report, that
“[w]ells have been sunk, and good water can be obtained” and that the island
is visited by “fishing boats from Sharjah.”111
107 Ibid., Vol. 1, 655.

108 Ibid., Vol. 1, 651.
109 Ibid., Vol. 1, 674.
110 Persian Gulf Pilot, Vol. 2 (second edition (1883)), 227.
111 Ibid.
404 chapter 7
Investigating Crime
A report was documented in November 1882 of a burglary which took place in
the house of the Qawásim Ruler of Sharjah on Abu Musa. In response, the ruler
ordered an investigation and sent an “expert from Rasul Khymah” to read the
footprints of three persons which were found at the scene of the crime and to
interview the various persons who were on the island at the time the burglary
was committed.112 This report also made note that several persons – servants
of the Ruler – were living on the island, and that there were also houses of
fishermen there.
Exiling of the Ex-Ruler

In 1883, the Qawásim Ruler of Sharjah, Sheikh Salim bin Sultan, was deposed
by his nephew, Sheikh Saqar bin Khalid, while, coincidentally, the Ruler was on
Abu Musa reportedly spending time at his house and tending to his horses and
date plantations.113 As recalled by Sheikh Saqar, “[i]t was then open to me to
expel Sheikh Salim from Abu Musa island, and I addressed the [British] Resi-
dent in the Persian Gulf on the subject in letters … but the Resident pressed me
to make a peaceable settlement so that there might be no cause for a breach
of the maritime peace.”114 The letters written by Sheikh Saqar at the time of
these events reflect both the Qawásim Ruler’s claims that the island belongs
to Sharjah, and the general terms of Sheikh Saqar’s agreement with his uncle,
in which the exercise of what may be described as state activity in relation to
the island (which took the form of using the island as a place of residence in
exile for his uncle) is clear. Thus, in a first letter, dated 21 January 1884, Sheikh
Saqar notes that:
At present, you are aware that Salem resides at Abu Musa, which is an
island dependent on Shargah, and we cannot spare it to others. Perhaps
Salem may create some disturbance which may break the maritime
peace. I beg therefore to request that you will kindly warn Salem, and
inform him that if he is desirous of living at Abu Musa, he must do so
with peace.115

113 Ibid., Vol. 3, 127.
114 Ibid., Vol. 3, 125–126, containing a letter from Sheikh Salem, dated February 22, 1908, ex-
plaining the position with regard to Abu Musa.
115 Ibid., Vol. 3, 124–125, containing a letter from Sheikh Sagar-bin-Khalid to Resident, Persian
Gulf, dated January 21, 1884.
In a second letter, dated 14 February 1884, Sheikh Saqar again reminded the
British that the island was Qawásim territory: “[A]ccording to what I have
already said, I beg to tell you that Bu Musa is our island and a dependency of
Shargah.”116 He then went on to emphasize that Sheikh Salem could remain
there so long as he did not do anything to “interfere with my affairs or disturb
the maritime peace”, but that in any case it should not be forgotten that “I can-
not dispense with the Island of Bu Musa, as it is of great use to me.”117 Of added
significance, the Rulers of Dubai and Ras Al Khaimah (which at this time con-
stituted a separate Qawásim-ruled Sheikhdom) had agreed to serve as “guaran-
tors” of the agreement under which Shaikh Saqar had permitted Shaikh Salim
to live on Abu Musa and Shaikh Salim’s commitment to refrain from interfer-
ence in the affairs of Sharjah.118 In so doing, the two rulers effectively acknowl-
edged Sharjah’s ownership of the island. In any case, as explained in the next
sub-section, several years earlier the British had already compiled a “complete
list” of the territories owned by each of the coastal Arab Sheikhdoms which
had listed Abu Musa under the ownership of the Qawásim Ruler of Sharjah.
Recognition of Qawásim Title

There are a number of distinct instances in which the Qawásim rights or title
over the island were specifically recognized in reports prepared by the British
and Ottoman governments (the report of this latter government was dated
1905 and is accordingly dealt with in the following chapter, as are several non-
contemporaneous British reports dating from 1887 or beyond). These include
the 1871 report dealing with a dispute over grazing rights to the island between
the Qawásim and the people of Dubai in which, as recounted above, the lo-
cal British Agent on the Arab coast noted in a report to the British Resident
that “[i]t has been customary from old times for the Chief of Shargah to send
his cattle to that island. The people of Debaye [Dubai] sent some horses and
cattle there some time ago and a dispute took place between the two Sheikhs
about that island. I twice wrote to the Chief of Debaye to keep away from that
Island.”119
More directly relevant is a report prepared some years later, in July 1879, at
the request of the British Resident, Colonel Ross, who asked the local British
Agent to prepare “a complete list of the dependencies of each Trucial Chief
116 Ibid., Vol. 3, 125, containing a letter from Sheikh Sagar-bin-Khalid to Resident, Persian
Gulf, dated February 14, 1884.
117 Ibid.
118 Ibid., Vol. 3, 128.
119 Ibid., Vol. 1, 570–573.
406 chapter 7
noting those claimed and acknowledged and otherwise”.120 The list which was
prepared noted that the “Island of Boo Moosa” [i.e., Abu Musa] belonged to
the Chief of Sharjah, Sheikh Salim bin Sultan.121 No claim to the island by any
other ruler was noted in the report. Although it was not specifically noted in
this report or in the request for its preparation, it may have been compiled in
connection with an agreement which was entered into by rulers of the various
coastal States at precisely the same time (June 1879) requiring the extradition
of any fraudulent absconder “seeking refuge in our territories, whether by sea
or land.”122 Again, this agreement, and the fines levied under it in case of its
violation, were to be enforced by the British government.
The Hennell Line and Other Considerations

In 1835, at the same time the British had negotiated a six-month maritime
truce between the various rulers of the Arabian coast so that the pearling sea-
son could be carried on without “hostilities among ourselves”,123 the British
Resident, Major Hennell, was reported to have discussed with the rulers a rec-
ommendation he wished to make to the British government that, for the pro-
tection of the trade of the Gulf, no war vessels be permitted to cruise within
a certain distance from the Persian coastline.124 The maritime line of demar-
cation (the “restrictive line”, or as it later was referred to, the “Hennell Line”)
which Major Hennell had in mind would extend from the Persian coast to a
distance offshore marked by the islands of Sirri and Abu Musa, leaving the area
from these islands to the Arabian coast unrestricted. As this idea was still to be
presented to the British government, Major Hennell “did not ask for the con-
sent of the respective Sheikhs in writing”.125 This recommendation was later
approved by the British government, and subsequently, on the recommenda-
tion of Major Hennell’s replacement, the restrictive line was extended seaward
from the Persian coast unilaterally by the British with the result that the island
of Abu Musa became fully encompassed within the area in which war vessels
120 Ibid., Vol. 1, 659.

121 Ibid., Vol. 1, 662.
122 A copy of this agreement is set out in Lorimer, Gazetteer of the Persian Gulf, Vol. 2, 784–785,
and in Toye, Lower Gulf Islands, Vol. 2, 597.
123 Toye, Lower Gulf Islands, Vol. 1, 235. This six-month truce was followed by several other
successive maritime truces and peace treaties, culminating in the Treaty of Peace in Per-
petuity of 1853.
125 Ibid.
would not be allowed to cruise.126 Some authors have suggested that the exis-
tence of the Hennell Line and the absence of any evidence that the Qawásim
objected to it is evidence that the island of Abu Musa was not regarded as a
territorial possession of the Qawásim of Sharjah as the Line in its amended
extension would have effectively cut off access to the island from its war ves-
sels cruising from Sharjah or Ras Al Khaimah.127
Such an assertion is not sustainable for several reasons. First, its evidentiary
value for the proposition that it somehow establishes that Abu Musa was not
Qawásim territory is merely inferential and indirect, and more importantly is
contradicted by the direct evidence of actual Qawásim possession and exercise
of authority over the island set out in this chapter. Such direct evidence must
take priority over the unsubstantiated inferences which might be drawn from
the existence of the Hennell Line. This is particularly the case as the purpose
of the restrictive line was not to impose some form of maritime delimitation
or border between Arab and Persian islands, but rather to establish a neutral
area in which trading vessels traversing the Gulf to and from the port of Basra
would be safe from attack or harassment by war vessels. Access through the
designated neutral area was not otherwise prohibited. Second, the evidence
related to the effective occupation of the island by the Qawásim begins in the
1860s, while the arrangements related to the restrictive line date from the 1830s.
As such, those arrangements are not relevant to the established time-frame in
which the Qawásim can be said to have carried out an effective occupation
of the island. Finally, the restrictive line was never formally agreed by any of
the Arab leaders, including the Qawásim, particularly its amended extension
encompassing Abu Musa. This was recognized by the British themselves, who
noted in relation to the restrictive line that “it will be observed, that although
the concurrence of the Arabian Chiefs in its establishment may be considered
by implication to have been afforded, yet that, with the exception of a letter
from Sheikh Abdullah bin Ahmed of Bahrain, we hold no written documents
in which their consent has been formally given.”128 In fact, it is unclear that
the restrictive line was ever implemented. This is evident, for example, when
observing that the sea-borne confrontations and the sending of armed vessels
126 Ibid. As noted by the British official, Major Morrison, who instructed that the restrictive
line be thus extended, this was due to his having ascertained that the island of Sirri was
“notorious as a place of pirate rendezvous” and the island of Abu Musa “seemed liable to
the same objections, although to a lesser degree”.
127 See, e.g., Pirouz Mojtahed-Zahed, Security and Territoriality in the Persian Gulf (1999;
reprint, London: Routledge-Curzon, 2003), 236.
408 chapter 7
to Abu Musa by the Qawásim in the 1870s were not criticized by the British for
constituting a violation of the restrictive line, but rather for the reason that
such actions might lead to a disturbance at sea in a violation of the 1853 mari-
time truce which had been agreed between the British and the various coastal
Arab Sheikhdoms, including the Qawásim.
Some authors have also asserted that the 1864 edition of The Persian Gulf
P ilot, a nautical survey containing “Sailing Directions for the Persian Gulf”
which was prepared by the Hydrographic Office of the British Admiralty, im-
plies that Abu Musa did not constitute territory belonging to the Qawásim.
That edition, as well as the subsequent edition published in 1883, state that the
Qawásim Chief of Lengeh “has authority over” the island of Abu Musa.129 It is
unclear on what grounds this statement was made or how its conclusions were
reached, and it is noteworthy that in relation to certain other Gulf islands, such
as Furur, the survey indicates to whom the island “belongs”, and in relation to
many others, the authors set out their views on sovereign title.130 Thus, in rela-
tion to Abu Musa, the publication ventures no views on ownership. Be that
as it may, such evidence must be considered unreliable in light of the docu-
mented and contemporaneous evidence set out in this chapter which provides
numerous instances in which the Qawásim rulers of the Arab coast, and not
those of Lengeh, exercised actual authority over Abu Musa. Indeed, within this
body of evidence, there is no mention whatsoever of the Qawásim authorities
in Lengeh exercising control or authority over Abu Musa.
Legal Analysis – Abu Musa
The contemporaneous evidence reviewed above demonstrates that beginning

around the mid-nineteenth century the Qawásim leadership considered the
extent of its territorial domains to encompass the island of Abu Musa. At the
same time that evidence does not reveal the existence of any competing claims
to the island which had been asserted in any public manner, let alone acted
upon, by any other party. While some disputes related to access to the island
had arisen during the 1860s and early 1870s between the Qawásim rulers and
the rulers of other coastal communities and tribes, including those of Dubai,
Ajman, Umm Al Qaiwain and Abu Dhabi, typically related to the grazing of
animals, there is no evidence that any of these other communities made any
claim of ownership to the island or maintained any effective control over it.
129 Persian Gulf Pilot, Vol. 1 (first edition (1864)), 172. As to the probative value of assertions
contained in this nautical survey, see chapter 8, text accompanying notes 50–52.
130 See infra note 210 and accompanying text.
Nor, as mentioned above, is there any evidence that these disputes, or their
resolution, involved Persia in any way. Moreover, the British, in exercising their
authority to maintain “peace at sea” between the tribes under the 1853 Treaty
of Peace in Perpetuity, recognized the Qawásim ownership rights over the is-
land on more than one occasion.
Indeed, it is clear from the various treaties the British entered into with the
Qawásim that, although clearly defined boundaries were not established, or
may have even been a “totally alien” concept,131 the Qawásim, like other large
and well-organized tribes in the area, were formally recognized as having held
sovereign ownership of territory and that they assumed sovereign – like ob-
ligations in relation to that territory and the persons living therein. Thus, for
example, the 1853 Mutual Agreement related to extradition of fraudulent ab-
sconders imposed a duty on the Ruler of Sharjah and Ras Al Khaimah to hand
over any such “runaway” “seeking refuge in our territories”; the 1856 “further en-
gagement for the more effective suppression of the slave trade” treaty required
the rulers to deliver over to the British “whatsoever slaves have been brought
to my territories, or to any places subject to my authority”; and the 1892 Ex-
clusive Agreements (“protectorate treaties”) bound the rulers not to allow any
representative of a foreign power to reside “within my territory” or to cede, sell,
mortgage or otherwise give for occupation “any part of my territory”.
In light of this background, it is not surprising that, when the Persian gov-
ernment hoisted its flag on Sirri island at the end of 1887 (and rumours were
heard that the government intended to do the same on other Gulf islands), the
Qawásim leadership in Sharjah became alarmed and reiterated its ownership
rights over not only Sirri but other Qawásim-claimed islands, including Abu
Musa.132 Nor in light of this history is it surprising that the British Resident,
when learning in April 1888 that the Persian government may have also laid
claim to Abu Musa following the hoisting of its flag on Sirri, stated that “[t]he
131 Morsy Abdullah describes these circumstances as follows: “Political boundaries were de-
pendent on tribal loyalties to particular shaikhs and consequently were subject to fre-
quent change. Therefore … the inter-state boundaries [between the different sheikhdoms
of the Trucial Coast] changed frequently during the nineteenth and twentieth centuries
as it was based on the dirah of the tribes. Dirah in Arabia at this time was a flexibly de-
fined area, changing in size according to the strength of the tribe which wandered within
it. In addition, a tribe’s loyalty was determined by its own interests and could, and at
this time often did, alter … The awareness of a need among the shaikhs for a recognised
and stable boundary had its origin in 1935 with the advent of oil concessions.” Abdullah,
A Modern History, 291. See also, Dubai-Sharjah Border Arbitration.
132 See, e.g., Toye, Lower Gulf Islands, Vol. 1, 732, containing a letter from the Chief of Shargah
to the British Resident, dated October 16, 1887.
410 chapter 7
claim now put forward [by Persia] to the Island of ‘Bu Moosa’ has no justifica-
tion whatsoever. Any attempt to assert Persian authority there in a practical
form would probably lead to disturbances.”133
Intention and Will to Act as Sovereign

Applying the doctrine of effective occupation to these circumstances and the
documentary evidence discussed above, it cannot be subject to any reason-
able doubt that the Qawásim satisfied the first element of that doctrine (the
“intention and will” to act as sovereign (animus occupandi) over the island of
Abu Musa) on repeated occasions during the 1860s, 1870s and 1880s. Waldock
explains this element of the doctrine of effective occupation as meaning “no
more than that there must be positive evidence of the pretensions of the par-
ticular state to be the sovereign of the territory. This evidence may consist ei-
ther of published assertions of title or of acts of sovereignty.”134 The tribunal in
the Eritrea/Yemen arbitration described this requirement in a similar fashion
(albeit in relation to a consolidation of title): “Evidence of intention to claim
the Islands à titre de souverain is an essential element of the process of consoli-
dation of title. That intention can be evidenced by showing a public claim of
right or assertion of sovereignty to the Islands as well as legislative acts openly
seeking to regulate activity on the Islands.”135 In the Clipperton Island arbitra-
tion, the arbitrator referred to “the regularity of the act by which France in 1858
made known in a clear and precise manner, her intention to consider the island
as her territory”.136 Whichever one of these criteria is applied, the acts taken
by the Qawásim during this time period of the nineteenth century, whether
through public claim or acts of sovereignty, made their pretensions to act as
sovereign over Abu Musa abundantly clear. With respect to the first condition
(published, or public, assertions of title), the Qawásim leaders made no se-
cret of their claim to the island, having specifically stated their long-standing
ownership rights in writing to the British government on several occasions,
and those writings themselves reflect the assertion that Qawásim ownership
of Abu Musa was common knowledge to those in the southern Gulf.137 Indeed,
133 Toye, Lower Gulf Islands, Vol. 2, 28–29, containing a letter from Colonel Ross to Sir Drum-
mond Wolff, Minister Plenipotentiary to Tehran, dated April 28, 1888.
135 Eritrea/Yemen, para. 241.
136 Clipperton Island, 393 (emphasis added). In that case, France had published its claim to
the island in a newspaper in Honolulu, The Polynesian.
137 Such written assertions of title over Abu Musa were made in the correspondence from the
Qawásim leader dated December 1864, December 1871, March 1872 and November 1875.
It should be noted that, notwithstanding the evidentiary requirement to demonstrate a
the December 1864 letter to the British Resident invited him to make enquiries
about this matter (“if you make enquiries about this [i.e., Qawásim ownership
of Abu Musa, Greater Tunb and Sir] you’ll find it correct.”138). The Qawásim
also made their pretensions of ownership of Abu Musa clear by taking affirma-
tive actions to assert sovereignty over the island through their exploitation and
use of it, the creation of the rudimentary trappings of administration and their
efforts to exclude others (including through the threat or use of force) from us-
ing or accessing the island.139 Such acts would appear to have more than been
sufficient to demonstrate the Qawásim intention and will to be sovereign over
Abu Musa.
Another question could be raised with respect to whether the pretensions of
the Qawásim to act as sovereign of Abu Musa should properly be considered
the pretensions of a "particular" State. There is little doubt that they were. As
noted by the icj in the Western Sahara Advisory Opinion, “[n]o rule of inter-
national law, in the view of the Court, requires the structure of a State to follow
any particular pattern”.140 The Court went on to note that:
Political ties of allegiance to a ruler, on the other hand, have frequently

formed a major element in the composition of a State. Such an alle-
giance, however, if it is to afford indications of the ruler’s sovereignty,
must clearly be real and manifested in acts evidencing acceptance of his
political authority. Otherwise, there will be no genuine display or exer-
cise of State authority.141
claim to terra nullius through either public assertions of title or acts of sovereignty of
some nature, publication itself is not a requirement for the validity of such a claim. For
example, Oppenheim’s International Law states that “[t]here appears to be no rule of in-
ternational law that requires notification of occupation to other states as a condition of
its validity.” Sir Robert Jennings and Sir Arthur Watts, Oppenheim’s International Law, 9th
ed. (Oxford: Oxford University Press, 1996), 688, note 1.
ership”, 134r-135v, containing Letter from Sultan bin Suggur (Chief of Ras al-Khaimah)
to Col. Pelly (Political Resident, Persian Gulf), dated Dec. 28, 1864. Also available in Qa-
tar Digital Library. Accessed November 20, 2016. http://www.qdl.qa/en/archive/81055/
vdc_100023662629.0x00004e. See supra note 99 and accompanying text.
139 A description of such acts of sovereignty are set out at text accompanying notes 102–117,
supra.
140 Western Sahara, Advisory Opinion, icj Reports 1975, 12, paras. 89, 94.
412 chapter 7
As noted in more detail in chapter 9, while there is no widely accepted treaty

definition of what constitutes a State, the elements of statehood which have
been generally accepted include a permanent population, a defined territory,
a government and the “capacity to enter into relations with other states.”142
Regarding this last requirement, Fitzmaurice writes that statehood carries with
it the “the power to enter, directly or mediately, into relationship (by treaty or
otherwise) with other international persons.”143 Judge Huber articulated the
concept of State sovereignty in terms of “independence”, which he described
as follows: “[i]ndependence in regard to a portion of the globe is the right to
exercise therein, to the exclusion of any other State, the functions of a State.”144
Moreover, as noted above, international courts and tribunals have typically
“adapted” requirements of international law developed by western countries
to the special conditions of particular regions.
In light of these various pronouncements, it is evident that the Qawásim
polity constituted a State and was capable of carrying out an effective occu-
pation of terra nullius at the time the manifestations of ownership over Abu
Musa described in this chapter were made by its leaders (the 1860s through the
1880s). The Qawásim leaders were the recognized authority over a roughly de-
fined territory (comprising both the coastal and interior areas around Sharjah
and Ras Al Khaimah, as well as various off-shore islands, until their separa-
tion in 1869 when these territorial areas were effectively divided between
them)145 in which they exercised such “independence” from other States in
various respects; for example, the persons living in those territories had “ties
of allegiance” to the leadership,146 and in those territories those leaders carried
142 See chapter 9, citing to the Convention on Rights and Duties of States, adopted at Monte-
video, Uruguay on December 26, 1933.
145 The Persian Gulf Pilot described the authority of the Qawásim chief in 1864 as being
“acknowledged in all places south of Ras as Sheikh, as far as Jezíret al Hamrah, also in
Shargeh and the little towns near it, and on that part of the east coast of ‘Omman called
As Shemíliyeh.’” Persian Gulf Pilot, 1st edition (1864), 76. For another description of the
extent of Qawásim territory, see Kelly, Britain and the Persian Gulf, 17 ff.; and Abdullah,
A Modern History, 89–92.
146 For example, Kelly notes the widespread involvement of men within the Qawásim ter-
ritories who took part in its naval activities: the “strength of the Qasimi naval confederacy
was estimated at sixty-three large vessels and 810 smaller ones, manned by 18,000–25,000
fighting men. Most came from the ports between Rams and Sharjah, though some came
from Lingah, Nakhilu, and other ports on the Persian coast.” Kelly, Britain and the Persian
Gulf, 111.
out administrative activities,147 conducted trade, dispensed justice148 and col-

lected taxes,149 among other activities. Moreover, they had also assumed a rec-
ognized international personality through a series of treaties entered into with
the British government. These included the General Treaty of Peace of 1820, the
series of maritime truces entered into beginning in 1835, the agreements for
the abolition of the slave trade of 1847 and 1856, the Treaty of Peace in Perpetu-
ity entered into in 1853, and the Mutual Agreement related to the extradition of
persons “absconding for fraud” of 1879.150 While all of these treaties except the
1879 treaty (which was entered into by the leaders of both Sharjah and Ras Al
Khaimah) were entered into by the leader of the unified Qawásim sheikhdom,
it appears clear from historical evidence that, upon separation, the leader of
each of Sharjah and Ras Al Khaimah assumed the obligations under each of
these prior treaties.151 Finally, and recalling the words of Huber mentioned
above equating State sovereignty with “independence” exercised within a “por-
tion of the globe”, it is worth adding that none of these treaties purported to
147 Lorimer notes that the Qawásim leaders conducted “direct administration” of both Shar-
jah and Ras Al Khaimah. Lorimer, Gazetteer of the Persian Gulf, Vol. 2, 756.
148 Examples of this authority include the undertakings assumed under article 2 of the Treaty
of Peace in Perpetuity, under which the signatory rulers “will immediately punish the as-
sailants and proceed to afford full redress” against “any of our subjects or dependents
committing an act of aggression at sea”, and article 1 of the Mutual Agreement regarding
extradition, under which each signatory ruler consented that “[i]n the event of a runaway
seeking refuge in our territories, whether by sea or land, to consider it our duty to at once
restore him to the Chief from whose jurisdiction he may have absconded.”
149 For example, Lorimer notes that in 1840, the Ruler of Sharjah had imposed a tax on pearl
divers of “$7 per head annually”. Lorimer, Gazetteer of the Persian Gulf, Vol. 2, 756. Brucks
noted that “Shargah sends from three to four hundred boats of various sizes to the pearl
fishery. Each boat pays the Shaikh a tax of from one to two and a half dollars, according
to the number of divers employed.” Captain George Barnes Brucks, “Memoir Descriptive
of the Navigation of the Gulf of Persia (1829)”, Selections from the Records of the Bombay
Government, 601. Accessed February 20, 2016. http://www.qdl.qa/en/archive/81055/
vdc_100022870193.0x0000b0, 544.
150 All of such agreements are set out in Toye, Lower Gulf Islands, Vol. 2, 585–598. See
also, James Onley and Sulayman Khalaf, “Shaikhly Authority in the Pre-oil Gulf: An
Historical-Anthropological Study”, History and Anthropology 17(3) (2006): 189–208, 189,
191, who describe the “Qasimi state centred around Sharjah and Ras al-Khaimah at its
height (c.1750s–1860s)” as “more like mature states than proto-states in terms of their eco-
nomic, military, political and demographic resources.”
151 This can be appreciated, for example, by reviewing the correspondence of March 22, 1873
in which the British Resident states that the Ruler of Ras Al Khaimah, who did not sign
the 1853 Treaty of Peace in Perpetuity, would “be responsible” for any “disturbances at sea”
in breach of that treaty. See text accompanying notes 235–236, infra.
414 chapter 7
grant Britain the right or obligation to interfere in the various rulers’ indepen-
dent authority to govern their internal affairs.
While, as discussed in chapter 9, the authorities have expressed varying
opinions on whether Sharjah, Ras Al Khaimah and the other regional States
which entered into the Exclusive Agreements, or protectorate agreements, in
1892 with the British government thereafter retained sufficient independence
so as to retain their status as “States” in the international system, the acts un-
der consideration which are said to have led to the effective occupation of Abu
Musa by the Qawásim all occurred prior to the time at which the protectorate
agreements were entered into. Thus, any limitation on the Qawásim State’s in-
dependence resulting from those agreements would not have affected its statal
status at the time it undertook acts to occupy the island in any case.
Display of Sovereign Authority

With respect to the second element of effective occupation, the actual exercise
or display of some sovereign authority over the disputed territory, the inter-
national law authorities have set out somewhat broad standards for evaluat-
ing acts which satisfy this condition. For example, in discussing the nature
of State acts needed to establish an effective occupation, Fitzmaurice notes
that “[n]o acts are wholly devoid of probative value, except such acts as are
clearly not performed à titre de souverain”.152 Notwithstanding the clear man-
ifestations of authority by the Qawásim leaders over Abu Musa which were
documented during the 1860s, 1870s and 1880s, the question remains whether
these manifestations of authority should be considered as tantamount to State
authority performed à titre de souverain (on which an effective occupation
may be based), or whether they are more accurately described as private acts,
which, unless they were authorized or ratified by the State, do not necessarily
form the basis of title. As noted by Shaw, activities on which an effective oc-
cupation may be founded “must amount to the exercise of state functions on
behalf of state authorities or constitute conduct performed à titre de souverain.
Private actions will not count, unless either expressly authorized by the state
as a sovereign action or subsequently expressly adopted or ratified as such by
the state.”153 In similar fashion, Hall states that in order “that occupation shall
be legally effected it is necessary, either that the person or persons appropri-
ating territory shall be furnished with a general or specific authority to take
153 Shaw, “Introduction”, xxiii (emphasis added).
possession of unappropriated lands on behalf of the state, or else that the oc-
cupation shall subsequently be ratified by the state.”154
In general terms, private acts may be understood as “the independent ac-
tivity of private individuals … unless it can be shown that they have acted in
pursuance of a license or some other authority received from their Govern-
ments or that in some other way their Governments have asserted jurisdic-
tion through them.”155 Thus, “individuals, by undertaking enterprises on their
own initiative, for their own benefit and without any delegation of authority
by their G overnment, cannot confer sovereignty on the State”.156 Activities
such as “hunting, whaling, guano collecting, exploring, and other similar ac-
tivities of private individuals acting on their own, however numerous and ex-
tensive, do not per se confer on their State a title to sovereignty over the areas
concerned.”157
State acts performed à titre de souverain encompass “the manifestation and
exercise of the functions of government over the territory” in question, or “the
effective activity by the state either internally within the territory or externally
in relations with other states”.158 It has already been noted above that, for pur-
poses of determining whether it was capable of carrying out an effective oc-
cupation of Abu Musa, the political entity comprising the Qawásim territories
of Sharjah and Ras Al Khaimah constituted a State during the nineteenth cen-
tury.159 On a number of specific matters indicative of State activity, Fitzmau-
rice points out that the icj in the Minquiers and Ecrehos case placed special
importance on the exercise of jurisdiction, including criminal jurisdiction, on
the islands in question in that case, and the exercise of “local administration”,
as well as “other facts which throw light upon the dispute” even if not strictly
administrative in nature. In this latter category, the icj had taken note of the
“periodical visits” to the islands made by the Jersey authorities and their having
“carried out various works and constructions there, such as a slipway … a signal
post … and the placing of a mooring buoy”.160 Shaw sets out a broad descrip-
tion of State activity, which includes “the exercise of state functions on behalf
of state authorities”, and those state actions “that actually assert sovereignty or
154 William Edward Hall, A Treatise on International Law, 8th ed. (Oxford: Clarendon Press,
1924), 128.
155 Fitzmaurice, “General Principles and Sources of Law”, 47, quoting Judge McNair in the
Fisheries case.
156 Ibid., 48, quoting Judge Hsu Mo in the Fisheries case.
160 Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 53–54
416 chapter 7
jurisdiction or may be so interpreted” such as “activities of the legal or p olice

systems to registration of births, marriages and deaths to activities of the
armed forces, the holding of elections, payment of taxes, regulation of land use
and administration of schools and hospitals.”161 The authorities are unanimous
in adding that, as held by the Permanent Court in the Eastern Greenland case,
“state activity may be slight when the territory is uninhabited and when there is
no competing state activity”.162
In applying these general principles to the evidence of Qawásim activity on
Abu Musa during the 1860s through the 1880s to determine whether that activ-
ity can be said to have established an effective occupation of the island during
that period, it is difficult not to reach that conclusion. This can be appreciated
from several perspectives.
Private Acts Carried out with the Authority of the Ruler

While certain of the documented acts carried out by the Qawásim on Abu
Musa during the relevant period, such as using the island for grazing animals
or in connection with pearling or fishing, may readily be considered as private
acts, whether such acts could have led to the effective occupation of the i sland
depends on whether they were carried out by “private individuals acting on
their own”163 and independently of the Qawásim leadership, or alternatively
whether they were carried out by individual members of the Qawásim tribe
with the knowledge and express authorization of the Qawásim ruler. Stated
another way, and in the words of Judge McNair, if such activities were car-
ried out by individuals pursuant to “some other authority received from their
Governments or that in some other way their Governments have asserted ju-
risdiction through them”,164 then those activities are capable of establishing an
effective occupation of terra nullius.
The evidence is clear that during the period of the 1860s through the 1880s,
acts undertaken on Abu Musa, even if of a private nature, were not u ndertaken

162 Waldock, “Disputed Sovereignty”, 325 (emphasis in original), paraphrasing the pcij in the
Legal Status of Eastern Greenland case, which held that: “It is impossible to read the re-
cords of the decisions in cases as to territorial sovereignty without observing that in many
cases the tribunal has been satisfied with very little in the way of the actual exercise of
sovereign rights, provided that the other state could not make out a superior claim. This
is particularly true in the case of claims to sovereignty over areas in thinly populated or
unsettled countries.” Legal Status of Eastern Greenland case, 46.
163 Fitzmaurice, “General Principles and Sources of Law”, 48, quoting Judge McNair in the
Fisheries case (emphasis added).
164 Ibid.
independently of the Qawásim leadership, but on the contrary were undertaken

with its knowledge and actual participation. Indeed, in viewing the evidence
which has come to light concerning Qawásim possession of and acts under-
taken on the island during the nineteenth century, it is difficult to discern any
acts by individual members of the Qawásim tribe which did not involve the
Qawásim leadership as well. The most obvious examples of this relate to the
various encounters during the 1860s and 1870s between Qawásim tribesmen
and the people of other coastal tribes or communities which are document-
ed above. In all of these confrontations, the use of the island by individual
Qawásim tribesmen, and the insistence of the Qawásim leaders that the people
of other tribes stay away from and refrain from using the island while claim-
ing their ownership of it, were virtually inseparable actions. In each of these
incidents, and in a very broad sense, the Qawásim leaders “asserted jurisdic-
tion” over Abu Musa through their tribesmen, that is by insisting that no-one
other than their tribesmen be permitted to use the island. Such circumstances
are entirely distinct from circumstances in which “private individuals act…
on their own” independently of their government. Indeed, the nature of such
intermingled private acts (grazing of animals on the island by individual Qa-
wásim tribesmen) and State acts (the Qawásim rulers claiming ownership
while taking formal steps to exclude others from grazing their animals on the
island) is more suggestive of circumstances in which sovereign possession pre-
ceded private use. Although the Qawásim (and the British) asserted that this
was exactly the case in relation to Abu Musa, with Qawásim possession hav-
ing taking place from the mid-eighteenth century, as noted previously there
is no contemporaneous evidence to support this assertion. Nevertheless, for
determining whether these intermingled private/State acts could result in the
establishment of an effective occupation, it is not necessary to make out such
a case, as it is sufficient for that purpose that the private acts were endorsed if
not brought about by the Qawásim leadership and accompanied by those State
acts, including the repeated claims of ownership, mentioned above.
Given the absence of any competing claims to the island during the period
from the 1860s to the 1880s, if these acts were all that the Qawásim could show
it would in all likelihood be sufficient to make out a claim to have effectively
occupied the island at that time. This is particularly the case in light of the
relative repetition with which these acts were carried out and the related/
intermingled ownership claims which were re-asserted at the same time.165
165 In this regard, compare the circumstances of the Clipperton Island case, where the sym-
bolic annexation of an uninhabited island by France was followed by 39 years of complete
inactivity, whereupon it re-asserted its claim after having found three American citizens
418 chapter 7
It is not the case, however, that these acts represented the totality of the Qa-
wásim acts exercising authority or jurisdiction over the island. The acts reflec-
tive of the functions of a State which the Qawásim exercised on Abu Musa are
discussed in the following section.
Activities or Functions of the State

It is also possible to view activities of the Qawásim on Abu Musa as more purely
State activity. Several of the points of “special importance” which F itzmaurice
notes were emphasized by the icj in the Minquiers and Ecrehos case are, in
fact, present in the case of Abu Musa, albeit in isolated instances. Thus, the
Qawásim Ruler of Sharjah exercised what may be described as criminal juris-
diction in ordering an investigation of the burglary of his house on Abu Musa
in 1882 and bringing an investigator to the island to examine the forensic evi-
dence and interview potential witnesses. That this exercise of jurisdiction on
Abu Musa was brought to the attention of the British, who appear to have ac-
knowledged and accepted the Qawásim right to do so, can be said to strength-
en the conclusion that the incident reflects a proper exercise of jurisdiction by
Sharjah over the island itself. A further act of jurisdiction over the island was
exercised in 1883 when the Ruler of Sharjah negotiated and agreed on the resi-
dence in exile of the ex-ruler on Abu Musa. This agreement, and the exercise
of jurisdiction over Abu Musa which it reflected, was formalized at the behest
and with the encouragement of the British government, as well as with the
participation of the Rulers of Dubai and Ras Al Khaimah. As for the category of
evidence which the icj in the Minquiers and Ecrehos case termed “other facts
which throw light upon the dispute”, such activities as the seasonal visits to
the island by the Qawásim ruler, the sinking of wells and the planting of dates,
all of which reflect an ongoing attachment of the Qawásim authorities to the
island and which, for that reason, must be regarded as relevant in evaluating
their claim of ownership, should be considered.
Of perhaps greater importance in finding that the Qawásim exercised the
“functions of government” over Abu Musa are the various incidents, referred to
above, which occurred during the period of the 1860s through the 1880s when
the Qawásim took measures to exclude others from using or entering onto the
island, while making use of and reserving the island’s resources exclusively for
themselves, building structures (including the Ruler's house), digging wells
collecting guano. The French claim was upheld as against a claim by Mexico, which as-
serted sovereignty over the island a month after the re-asserted French claim. Difference
Relative to the Sovereignty over Clipperton Island Arbitration, Award of January 29, 1931,
ajil 26 (1932) 390.
and settling some persons (mostly caretakers and fishermen) there.166 In so

doing, the Qawásim leaders clearly intended, and succeeded, in establishing
their exclusive authority over the island. As noted in Oppenheim’s International
Law, the “importance of state territory is that it is the space within which the
state exercises its supreme, and normally exclusive, authority.”167 Thus, these
repeated acts not only constituted acts of possession of the island, but also
the establishment of jurisdiction and a level of administration in controlling
access and use of the island which “shows that the territory [was] really gov-
erned” by the Qawásim168 and which they “intended as exercises of sovereignty
over the territory”.169 As noted by Judge Huber in the Island of Palmas case,
“[t]erritorial sovereignty … involves the exclusive right to display the activities
of a State.”170 Following the events which took place on the island during the
1860s through the 1880s, there can be little doubt that it was only the Qawásim
who enjoyed the right to “display the activities of a State” on the island of Abu
Musa, and who, in the terms set out in the Dubai-Sharjah Border Arbitration,
held effective control over it.
Waldock reduces the relevant international decisions discussing the need
for an effective occupation to be based on the exercise or display of sovereignty
or State activity into four applicable requirements: these are that the display of
sovereignty must be “(a) peaceful, (b) actual, (c) sufficient to confer a valid title
to sovereignty, and (d) continuous.”171 As measured against the historical record
during the period from the 1860s until the end of the 1880s, the Qawásim claim
over Abu Musa appears to have complied with each one of these requirements.
The first of these notions (peaceful display of sovereignty) requires that the
“first assertion of sovereignty” over the territory by the claimant must “not be
a usurpation of another’s subsisting occupation nor contested from the first
by competing acts of sovereignty”.172 Although the Qawásim leaders claimed
that their title over Abu Musa began in the middle of the eighteenth century,
the probative evidence which has been found begins in the 1860s, but even
with respect to that later period, the evidence shows no indication that in
claiming ownership of the island in 1864 the Qawásim usurped any “subsisting

167 Robert Jennings and Arthur Watts, Oppenheim’s International Law, 9th ed. (Oxford: Oxford
168 Ibid., 689.
172 Ibid.
420 chapter 7
o ccupation” nor that there were any “competing acts of sovereignty” over the
island at that time. It has been discussed previously in this chapter that there
is no evidence which has come to light which would support an assertion that
Persia claimed the island at any time prior to (possibly) 1888. While the event
of 1864 described above arose out of an incident in which the Qawásim Ruler
of Sharjah complained to the British that people from Dubai were using Abu
Musa to graze their animals, the acts of the Dubai people cannot be regarded
as a “competing act of sovereignty” for several reasons. Most importantly, al-
though people from Dubai may have wanted to use Abu Musa, there is no evi-
dence at all that Dubai ever claimed sovereignty over the island. Indeed, the
ruler of Dubai was reported to have argued in 1864 that he should be entitled
to use the island not because it was his property, but because, according to
him, it was “in the sea and did not belong to anybody.”173 The Ruler of Sharjah
contested this, and the British warned the Ruler of Dubai “several times” not to
go to the island as it was subject to the authority of the Ruler of Sharjah.
Subsequent incidents also reveal no notion that Dubai ever claimed owner
ship of the island. In 1874, when a boat from Dubai was fired upon at Abu Musa
by people under the direction of the Ruler of Sharjah, the Ruler of Dubai did not
complain about this incident on the basis that the island belonged to Dubai,
but rather that such an act of violence was in contravention of the 1853 Treaty
of Peace in Perpetuity and that two of his men were wounded and deserved
compensation. Moreover, when the “complete list” of territories held by each
of the coastal Arab rulers was compiled by the British in 1879, the territories
listed as held by Dubai included only “Dubaye” while those listed for Sharjah
included, among other territories, the “Island of Boo Moosa” [Abu Musa].174
Finally, the Ruler of Dubai himself expressed his recognition that the island
belonged to Sharjah when, in 1883, he served as guarantor of the agreement
under which the ex-ruler of Sharjah was allowed by the new ruler to live on
Abu Musa so long as he refrained from interfering in the affairs of Sharjah. As
for the other coastal communities, including those from Abu Dhabi, Ajman
and Umm Al Qaiwain, which were reported to have sought to use the island
for grazing at various times during the 1870s, again there is no evidence at all
that any of such groups ever claimed the island or considered it their sovereign
territory.
The second notion (actual display of sovereignty) means that the exercise
of sovereignty “must be genuine and not a mere paper claim dressed up as an

act of sovereignty”.175 There can be no doubt that this requirement was satis-
fied through the acts of the Qawásim taken during the 1860s through the 1880s,
as described in the evidence reviewed in this chapter. In the Clipperton Island
case, this element was described as requiring the “actual and not the nomi-
nal taking of possession” in which “the occupying state reduces to its posses-
sion the territory in question and takes steps to exercise exclusive authority
there.”176 If anything, the history of events from the 1860s until the 1880s de-
scribed in the evidence discussed above reflects the concerted Qawásim ef-
forts to reduce Abu Musa “to its possession” and “exercise exclusive authority
there”, including by taking steps to physically occupy and use the island and
exclude others from doing the same, even where that required taking up arms
in defense of the island’s territory. In view of the holding of the Permanent
Court in the Legal Status of Eastern Greenland case, and Judge Huber’s well-
known views in the Island of Palmas case, which set out the principle that “in
thinly populated and uninhabited areas very little actual exercise of sovereign
rights might be necessary in the absence of any competition”177 (both of which
descriptions apply to Abu Musa in the nineteenth century), the relatively ac-
tive and repeated manifestations of territorial sovereignty exercised by the
Qawásim during the 1860s, 1870s and 1880s would appear to be more than suf-
ficient to satisfy this requirement.
The third notion (a display sufficient to confer valid sovereign title) means
that “the state activity must be such as to show that the claimant really acted
as an international sovereign would have acted in the circumstances”, that is,
that the claimant “displays the functions of a state in a manner correspond-
ing to the circumstances of the territory … as and when occasion demands.”178
Given the circumstances of Abu Musa in the middle of the nineteenth century,
a sparsely or uninhabited and desolate island whose utility revolved princi-
pally around the grass which grew in springtime and could be used for grazing
animals, as well as its use during the pearling and fishing season as a safe
harbour, there can be little doubt that the nature of the activities which the
evidence shows the Qawásim carried out on the island (grazing of their herds,
seeking to exclude others from doing the same or approaching the island,
establishing a house for the ruler and building other minor structures, sink-
ing wells, planting dates, investigating crime) complied with this condition.

176 Clipperton Island case, 393.
177 Waldock, “Disputed Sovereignty”, 335 (paraphrasing from the Clipperton island case, the
Legal Status of Eastern Greenland case and the Island of Palmas case).
178 Ibid., 336.
422 chapter 7
ther than red oxide mining activities, which the Qawásim commenced on

O
Abu Musa through concessions towards the end of the nineteenth century
when the possibility of that activity came to their attention, it is difficult to
imagine what other activities they could have reasonably or practically have
been expected to carry out on the island during the nineteenth century.
Finally, the fourth notion (continuous display of sovereignty) is also un-
derstood as a relative notion, meaning that “the degree of continuity … var-
ies according to circumstances”,179 or as elucidated by Judge Huber in the
Island of Palmas case, the “intermittence and discontinuity compatible with
the maintenance of the right necessarily differ according as inhabited or un-
inhabited regions are involved, or regions … accessible from, for instance the
high seas.”180 This condition also appears to be easily satisfied in the case of
the Qawásim activities at Abu Musa when considering the relative frequency
of the displays of sovereignty by the Qawásim reflected in the evidence which
has come to light. Thus, and despite its isolated location, thinly or uninhab-
ited status and seasonal utility, there is evidence of a relatively steady stream
of activity and authority exercised by the Qawásim related to the island from
the 1860s through the 1880s, during which time, as mentioned, no competing
claims of sovereignty emerged. When compared, for example, to the “irregular
and comparatively long intervals” of the displays of sovereignty seen in the
Clipperton Island, E astern Greenland and Island of Palmas cases, the frequen-
cy with which the Qawásim asserted rights and exercised authority over Abu
Musa during the nineteenth century would appear to have been more than
adequate to establish the required degree of continuity needed for an effective
occupation under prevailing standards of international law.
Division of Ownership of Islands between Sharjah

and Ras Al Khaimah
A final note regarding the ownership of Abu Musa during the pre-1887 period
of the nineteenth century should be made. The Qawásim of Sharjah and Ras
Al Khaimah presented a fairly continuous and unified front until the death in
1866 of Sultan bin Suggur. Lorimer states that “[t]ill the end of his life he was
indifferently described as ‘Shaikh of Sharjah’ and ‘Shaikh of Ras-al-Khaimah’;
and the direct administration of both towns appears to have been ordinar-
ily carried on by a near relation acting under his orders, and not by himself
179 Ibid., 337.

180 Island of Palmas case, 840. Cited in Waldock, “Disputed Sovereignty”, 337.
personally.”181 He also held some measure of authority over the Qawásim-ruled

town of Lengeh, as evidenced by his temporarily assuming control of the affairs
of the town in 1855 when his “young relation Khalifah-bin-Sa’id – a minor– was
chief”.182 Notwithstanding the over-arching rule of Sultan bin Suggur, there
were clear tendencies of those in charge of each of the two principal Qawásim
towns – Sharjah and Ras Al Khaimah – to seek a measure of independence at
different times. For example, in 1840 his son Saqar bin Sultan sought to make
Sharjah an independent principality.183 Lorimer states that by about 1859, the
Qawásim leader “seems now to have counted for little in the disputes among
his unruly progeny.”184 Shortly after his death in 1866, his son Khalid declared
independence for Sharjah while another son Ibrahim did the same in Ras Al
Khaimah.185 Although this separation was short-lived, another Qasimi Sheikh,
Hamaid-bin-Abdullah, established his rule at Ras Al Khaimah in 1869 and “pro-
claimed himself independent of Sharjah and so remained until the end of his
days” in 1900.186 Despite separation, the various Qawásim leaders of Sharjah
and Ras Al Khaimah were not entirely estranged, and indeed at times main-
tained a measure of loyalty to each other, as is evidenced by such events as the
support given by the Chief of Ras Al Khaimah to his uncle Sheikh Salim in 1871
to restore him to his position as the Chief of Sharjah,187 and the re-unification
of Sharjah and Ras Al Khaimah in 1900, which occurred “without encountering
any opposition.”188 The two emirates were later to separate again, in 1921,189
and remained so through establishment of the uae in 1971.
A number of authors maintain that following the separation of Sharjah
and Ras Al Khaimah in 1869, the island of Abu Musa was allocated to Sharjah
while the Greater Tunb was allocated to Ras Al Khaimah.190 The documents
described above relating to the activities and claims made to Abu Musa by
the Qawásim generally reflect this assertion. Thus, prior to the separation of

182 Ibid., Vol. 2, 757.
183 Ibid., Vol. 2, 756–757.
184 Ibid., Vol. 2, 758.
185 Ibid., Vol. 2, 759. See also, Toye, Lower Gulf Islands, Vol. 1, 559–562.
186 Lorimer, Gazetteer of the Persian Gulf, Vol. 2, 759. See also, Toye, Lower Gulf Islands, Vol. 1,
559–562.
188 Ibid., Vol. 2, 762.
Emirates Center for Strategic Studies and Research, 2005), 162.
190 Abdullah, A Modern History, 234.
424 chapter 7
Sharjah and Ras Al Khaimah in 1869, the island was held to belong generally
to the Qawásim of the Arab (Oman) coast, with no distinction drawn between
Sharjah and Ras Al Khaimah.191 Following 1869, the evidentiary material gen-
erally ties claims made to the island and efforts to exclude third parties from
accessing or using the island to the Qawásim rulers of Sharjah specifically
(although there are a few exceptions, principally documents in which the is-
land is described as belonging generally to the Qawásim, or the Qawásim of
Oman192). For example, the reports dated December 1871, March 1872, J anuary
1874 and November 1875 all reference the actions taken in relation to Abu
Musa by the Ruler of Sharjah.193 One of the most prominent examples of this
is the “complete list” of territories belonging to the different Arab rulers pre-
pared for the British government in 1879, which lists Abu Musa as belonging to
Sharjah.194 Finally, the documents following 1879 reflecting various sovereign
or other activities carried out on Abu Musa, including erecting buildings, dig-
ging wells, planting dates, keeping stables, grazing animals, investigating bur-
glary and providing an effective residence in exile for the ex-ruler, all tie the
island exclusively to Sharjah.195
...
191 For example, the 1864 letter from the Qawásim chief, Sultan bin Suggur, states that Abu
Musa “belongs to me from the time of my forefathers” and does not attach the island to
either Sharjah or Ras Al Khaimah. See supra note 93 and accompanying text.
192 One of these exceptions is a letter written in December 1871 by the chief of Ras Al Khaimah
to the local agent of the British on the Arab coast in which, according to the local agent,
the Ras Al Khaimah chief appears to state that “he intends taking possession of the above
named Islands” [i.e., Abu Musa, Greater Tunb and Sir]. Toye, Lower Gulf Islands, Vol. 1, 565.
It is unclear from this evidence whether the chief of Ras Al Khaimah actually intended to
take possession of Abu Musa away from the Ruler of Sharjah or whether he was making
the general point that all three islands historically constituted Qawásim territory and that
other parties should be prohibited by the British from using the islands in order to avoid
disturbances which would violate the 1853 Treaty of Peace in Perpetuity. Whatever the
case, there is no evidence that the Rulers of Ras Al Khaimah sought to forcibly take the
island of Abu Musa from Sharjah, and the evidence reviewed in this chapter shows, on
the contrary, that the use and ownership of the island resided exclusively with Sharjah.
In addition, of course, once the dispute with Persia over sovereignty to the islands arose,
Ras Al Khaimah itself did not assert any claim or rights to Abu Musa, limiting its activities
and defense of sovereignty to the Tunbs. See chapter 8.
Conclusions – Abu Musa
In summary, based on the evidence which has come to light, and as measured
against the criteria which have been developed under international law, the
Qawásim appear almost certainly to have achieved an effective occupation of
Abu Musa during the period running from the 1860s through the 1880s. The
Qawásim can therefore be said to have obtained title to the island prior to any
claim being made by Persia, which occurred, at the earliest, in 1888.196 That the
acts of authority exercised by the Qawásim during this period were carried out
on an otherwise sparsely or uninhabited island with primarily seasonal eco-
nomic utility, and that there were no competing claims of ownership raised by
other parties must be counted as factors which make, “according to conditions
of time and place”,197 the argument that the Qawásim undertook sufficient acts
to establish and maintain an effective occupation that much more compel-
ling. Finally, the evidence clearly indicates that, as the Qawásim separated into
two independent power centers during this nineteenth century period, title to
Abu Musa followed the Qawásim rulers of Sharjah. The following chapter will
discuss whether the events of 1887/1888 and those of the years following, up
to 1971, affected in any way the ownership rights over Abu Musa which were
established in favor of the Qawásim of Sharjah during this earlier period of the
nineteenth century.
Evidentiary Framework – The Tunbs
The sequence of the documented events in the nineteenth century related to

the Tunbs begins much earlier than Abu Musa. In November 1801, a British offi-
cial, David Seton, noted that a pearl fishery was carried on by the inhabitants of
the Qawásim capital, Julfar (Ras Al Khaimah) at Greater Tunb “who assemble
to the number of fifty and sixty and remain on the Island during the Pearl Sea-
son from the month of May to October”.198 He also noted that the island “has
good anchorage, plenty of fresh Water and fish and is capable of cultivation [;]
from its Situation between the western extreme of Keshmeh [Qeshm] and Ras
ul Khimeh, every vessel that passes in the Gulph may be seen on this account,
196 But see chapter 8, which concludes that Persia’s first clearly articulated and formal claim
to Abu Musa did not occur until 1903/1904.
197 Island of Palmas, 840.
426 chapter 7
the French privateers generally anchor under it”.199 He added the following in-
teresting remark: “at present there is nothing but Antelopes on it, the Emam
[Imam of Muscat] landed from his Ship once and killed 400 another time 200,
he thinks of moving his port from Angam [Henjam island] to this on account
of its more convenient size and Water.”200 As for the Lesser Tunb, Seton noted
only that it “is unfrequented probably from want of water.”201
The Imam was not the only one considering (but never acting on) the es-
tablishment of a naval base at Greater Tunb in the early nineteenth century. In
1822, shortly after signing the General Treaty of Peace of 1820 with the various
tribal chiefs of the Arabian coast, officials of the British government undertook
a tour of potential sites to locate its Gulf detachment, which had been at the
town of Qeshm (on the island of the same name) and prior to that at Ras Al
Khaimah.202 Difficulties at the town of Qeshm (including protests from the
Persian government against the placement of a British military presence on
Qeshm island, which Persia had claimed ownership of against a competing
claim by Oman203) had led the British to consider other locations, although
they ultimately maintained their base at one end of Qeshm island – Basidu –
notwithstanding the Persian protests. The alternative locations considered
included Greater Tunb, although it was not selected. The leader of this tour,
Captain Kennet, wrote that:
The next place I visited was a small island called great Tumb, about 30
or 40 miles south-west from Salak; it is about 3 miles in length and 2 in
breadth; there is a large place in it open to the westward which would be
a most eligible spot for a cantonment, but the want of good water will
never allow it to be made a permanent station, there was only one well
which was very bad and brackish.204
While the British decided against establishing a base at Greater Tunb, they did
resort to the island in subsequent years. A British naval officer, Lieutenant
Whitelock, wrote in 1838 that: “About twenty-four miles to the south of Ba-
sidoh there are two uninhabited islands, called the Great and Little Tomb. The
former is well stocked with antelopes, and much resorted to by the officers
199 Ibid., 19.

200 Ibid., 20.
201 Ibid.
203 Ibid., Vol. 1, 223.
204 Ibid., Vol. 1, 229.
stationed at Basidoh, for the purpose of hunting.”205 An earlier Gulf survey car-
ried out in 1829 by Captain Brucks of the Indian Navy did not mention the use
of the island by the British, but it did reiterate that the “island is well stocked
with antelope”, and, contrary to the findings of Lieutenant Whitelock, that
“there is good water on it.”206
These accounts from the beginning of the nineteenth century until 1838
present an ambiguous picture of the ownership of the island. While there is
evidence of a close connection between the Qawásim and Greater Tunb, as
recognized in the observations of David Seton and other accounts noting Ras
Al Khaimah’s involvement in the pearl trade,207 there is no specific probative
evidence of any claim of ownership to the Tunbs having been asserted by the
Qawásim, or anyone else, during this earlier period of the nineteenth century.
Moreover, the documented reports referenced above give the impression that,
in addition to being uninhabited, Greater Tunb seemed to have been regarded
as at the disposal of anyone who had the wherewithal and desire to use it. Thus,
while the Qawásim used it in connection with pearling six months out of the
year, French “privateers” anchored under it, the Imam of Muscat and British
officers hunted on it, and both Oman and the British considered placing a na-
val port on its shores. Unlike all these other parties, however, the Qawásim
were not only the earliest party to be identified as having a specific link with
Greater Tunb, they were the only party to maintain a consistent connection
with the island and, in later years, to assert a positive claim to it (see below).
Claims of Ownership and Disputes over Use and Access

A different picture emerges beginning in the 1860s and 1870s when, as in
the case of Abu Musa, outright claims of ownership to Greater Tunb by the
Qawásim were made and some activities which were carried out there began
to be recorded. The main issues derived from the contemporaneous evidence
of the period from that date up to the late 1880s revolve principally around
two key questions: (i) whether the Qawásim demonstrated both the “intention
and will” to be sovereign over the Tunbs and whether they exercised sufficient
205 Lieutenant Whitelock, “Descriptive Sketch of the Islands and Coast situated at the En-
trance of the Persian Gulf”, The Journal of the Royal Geographic Society of London 8 (1838):
170–184, 181.
206 Captain Brucks, “Memoir Descriptive”, 601.
207 For example, Brucks noted in 1829 that the residents of Ras Al Khaimah “also take a large
share in the pearl fishing.” Ibid., 542. The 1853 Treaty of Peace in Perpetuity itself was
brought about to allow the Qawásim and other coastal Arab tribes to carry on pearl fish-
ing, “their principal means of subsistence” without threat of maritime hostilities between
the tribes. See infra notes 223–224 and accompanying text.
428 chapter 7
acts of sovereign authority to achieve an effective occupation of the two is-

lands under prevailing principles of international law, and (ii) whether it was
the Qawásim leaders at Ras Al Khaimah or those at Lengeh who had a greater
claim of authority and ownership of the Greater and Lesser Tunbs, or whether
they shared ownership. Connected to this latter point is a secondary question,
which is whatever the nature or division of ownership over the Tunbs between
these two branches of the Qawásim may have been, what was the effect on the
ownership of the islands resulting from the demise of the Qawásim leadership
at Lengeh at the hands of the Persian government in 1887. A final question
which arises is whether conclusions about ownership over the Lesser Tunb
may be made on the basis of evidence which largely relates only to the Greater
Tunb.
In the case of the Tunbs, the probative evidence also begins, as in the case of
Abu Musa, with the 1864 letter of the Ruler of Sharjah and Ras Al Khaimah (the
two places then being under common leadership of a single Qawásim Sheikh,
Sultan bin Suggur), to the British Resident. As mentioned above, in that letter
the Qawásim ruler complained about the use which people from Dubai were
making of the island of Abu Musa and warned that if they were not stopped,
disturbances would result, which would have violated the conditions set out in
the 1853 Treaty of Peace in Perpetuity. The basis of the ruler’s complaint was
that Abu Musa, along with Greater Tunb and Sir islands “belong to me from
the time of my forefathers. Nobody went there without my permission”.208 As
explained previously, this claim to ownership purported to trace its origin to
the mid-eighteenth century, although there is no contemporaneous evidence
which has been found which would substantiate ownership of that antiquity.
As with Abu Musa, and keeping in mind that establishing the intention and
will to act as sovereign over terra nullius (animus occupandi) requires that there
is positive evidence (in the form of assertions of title or acts of sovereignty) of
the “pretensions” of the State “to be sovereign over that territory”,209 this docu-
ment clearly demonstrates that the Qawásim had the intention and will to act
as sovereign over Greater Tunb, as well as their claim to have had ownership of
the island for many prior years. In that respect, it constitutes the first known
and documented claim of ownership over Greater Tunb by any party.
ership”, 134r–135v, containing Letter from Sultan bin Suggur (Chief of Ras al-Khaimah)
to Col. Pelly (Political Resident, Persian Gulf), dated Dec. 28, 1864. Also available in
Qatar Digital Library. Accessed February 20, 2016. http://www.qdl.qa/en/archive/81055/
vdc_100023662629.0x00004e. See supra note 93 and accompanying text.
It has been noted in relation to Abu Musa that in the same year this letter
was written by the chief of the Qawásim (1864), the first edition of The Per-
sian Gulf Pilot was published. This nautical survey carried out by former of-
ficers of the Indian Navy on behalf of the British Admiralty’s Hydrographic
Office, asserted that the Qawásim chief of Lengeh “has authority over all the
places on the coast between Birket Sifleh, and Bostaneh village, with the is-
lands Seri, Nabiyu Furur, Tumb [i.e., Greater Tunb], Nabiyu Tumb [i.e., Lesser
Tunb], and Bu Musa.”210 Whatever the evidentiary value of statements in The
Persian Gulf Pilot (which is discussed further in chapter 8), by asserting that the
chief of Lengeh had “authority over” the Tunbs (and Abu Musa), the authors of
The Persian Gulf Pilot did not purport to assign ownership of those islands to
the Qawásim leaders of Lengeh. This is clear not only from the wording of the
text (having “authority over” a place does not necessarily imply ownership),
but more so when noting that, with respect to other Gulf islands covered by the
survey, The Persian Gulf Pilot indicates the authors’ views on actual sovereign
ownership.211 Thus, the assertion made, which ventures no view on ownership
of the Tunbs (or Abu Musa), does not necessarily contradict the contempo-
raneous assertion by the Qawásim chief of Sharjah and Ras Al Khaimah that
the islands belonged to him. The assertion set out in The Persian Gulf Pilot re-
garding the chief of Lengeh’s “authority over” the islands is, nevertheless, in
clear contradiction to the 1864 letter in one respect, which is that in addition
to claiming ownership of the Greater Tunb in that letter, the Sharjah/Ras Al
Khaimah Ruler also asserted that he, as leader of the Qawásim, controlled ac-
cess to and use of the island (“Nobody went there without my permission”).
This is a clear representation that the Sharjah/Ras Al Khaimah leadership had
“authority over” those islands, and not the Qawásim of Lengeh.
Be that as it may, following the separation of Ras Al Khaimah and Sharjah
in 1869, the chief of Ras Al Khaimah claimed the Tunbs (as well as Abu Musa
and Sir212) “as his territory” in a December 1871 letter transmitted to the British,
and warning that tribes from other coastal areas would not be allowed to bring
their animals there for grazing.213 The correspondence which reported the con-
tents of this letter to the British Resident added that “[i]t would appear from
210 The Persian Gulf Pilot, Vol. 1 (first edition (1864)), 172 (emphasis added).
211 This is the case, for instance, in relation to all the islands off the Persian coast from Ras
Bostaneh to Abu-Shehr (Bushire), which The Persian Gulf Pilot, first edition, asserts “all
belong to the Persian Government”. Ibid., 176. No similar assertion is made in relation to
Abu Musa and the Tunbs.
213 Ibid., 565.
430 chapter 7
the Chief of Rasul Khymah’s present letter that he intends taking possession of
the above named Islands and not to permit other people to bring their cattle
& horses there”.214 In light of these circumstances, the British had “directed
the other Sheikhs not to send their cattle to the Island of Boo Moosa, as that
Island was for the cattle of the Joasmees and that they [i.e., the other Sheikhs]
had no right even to the other Islands.”215 About a year later, in November 1872,
the chief of Ras Al Khaimah again protested directly to the chief of Lengeh
that tribesmen under the latter’s authority had sought to make use of Greater
Tunb to graze their animals.216 In a reply dated November 1872, the Lengeh
chief apologized and stated that such tribesmen are “under your command”.217
He added that the people of Dubai, Ajman and Umm Al Qaiwain, “who cross
over to that place for grass”,218 should also be prevented from using the island.
Finally, and most significantly, he noted that “[a]s regards the island, it belongs
to you just as it was under the authority of your father. We have nothing to
interfere with you about it.”219 The reference to “your father” is to Sultan bin
Suggur, the author of the 1864 letter mentioned above.
Despite this documentary evidence from 1864, 1871 and 1872 showing the
seemingly uncontested assertion of control and ownership over Greater Tunb
by the Qawásim of the Arab coast (the latter two pieces of evidence, follow-
ing the separation of Sharjah and Ras Al Khaimah, tying the island to the
Qawásim of Ras Al Khaimah), an apparent change of view by the Qawásim
chief of Lengeh occurred in February 1873 when it was reported by the native
agent at Lengeh that in a conversation he had with the ruler, he (the ruler) had
contested Ras Al Khaimah’s control and ownership of the island. This reported
conversation is the only evidence in the record that the Ruler of Lengeh had
apparently disagreed with Ras Al Khaimah’s ownership, and instead asserted
that he controlled access to the island, as no documents from the Lengeh ruler
himself setting out this position appear to exist. A flurry of correspondence
214 Ibid.
215 Ibid. (emphasis added). Mattair asserts that in the December 1871 letter, the chief of Ras
Al Khaimah had also mentioned that he was in receipt of a letter from the chief of Lengeh
which specifically acknowledged the rights of the chief of Ras Al Khaimah over Greater
Tunb, but that this information was possibly not translated or transmitted to the British
Resident. Mattair, Three uae Islands, 56.
217 Toye, Lower Gulf Islands, Vol. 2, 13, Vol. 4, 208. See also, Abdullah, A Modern History, 235.
218 Ibid., Vol. 4, 208.
219 Ibid.
during the next two months dealing with these apparently competing claims
followed between the native agents of Lengeh and the Arab coast, the Brit-
ish and the Ruler of Ras Al Khaimah (all described below), but not involving
or even referencing the Ruler of Lengeh himself. In summary, this correspon-
dence reflects the following:
The Native Agents

After the initial agreement with the claim of ownership over Greater Tunb as-
serted by the chief of Ras Al Khaimah in 1871 (described above in relation to
the letter of November 1871), the native agents at Lengeh and on the Arab coast
subsequently formed the view in March 1873 that the chief of Lengeh held su-
perior rights to the island. This view appears to have changed again by 1879
when the native agent on the Arab coast settled on the view that ownership
rights over the island were shared between the two Qawásim branches at Ras
Al Khaimah and Lengeh.
The British
The British took note of the native agents’ views, but did not formally docu-
ment their own conclusions over ownership of the Tunbs during this period.
Chief of Ras Al Khaimah

The chief of Ras Al Khaimah maintained a consistent position throughout that
the Greater Tunb had historically belonged to the Qawásim, and particularly to
him as leader of Ras Al Khaimah, and he protested against the contrary views
expressed by the native agents in March 1873.
Chief of Lengeh
The only documented position of the three consecutive rulers of Lengeh from
1871 until 1884 (in written correspondence from 1872, 1877 and 1884) conceded
that Greater Tunb was the property of the Qawásim of Ras Al Khaimah. The
report of the native agent at Lengeh from February 1873, however, reflected
a different view, that in conversation the chief of Lengeh maintained that
he held sway over the island. As noted above, there appears to be no docu-
mentary evidence from the chief of Lengeh himself that he in fact held this
view.
In order to provide a framework in which to analyze the legal consequences
of the claims and positions laid out with regard to Greater Tunb, a brief chron-
ological summary of the key documentary materials reflecting the relevant
events which occurred between 1864 and 1884 is set out below:
432 chapter 7
Key Documentary Evidence

1864
In December 1864, the chief of the Qawásim in Sharjah and Ras Al Khaimah,
Sultan bin Suggur, claimed ownership of Greater Tunb (as well as Abu Musa and
Sir) in a letter written to the British Resident.220 This assertion of o wnership is
the first recorded claim to be made to Greater Tunb, and is consistent with the
observations of David Seton, a British official posted as the first British Resi-
dent at Muscat in 1801. In those observations, Seton recorded that the inhabit-
ants of Ras Al Khaimah, which he noted was the capital of the Qawásim, carry
on a pearl fishery at Greater Tunb, assembling 50–60 persons who “remain on
the Island during the Pearl Season from the month of May to October” each
year.221 He added that the ruler of the Qawásim is “called Shaichk Sugger” (i.e.,
Sheikh Sultan bin Suggur, the author of the 1864 letter).222 Although there is
no recorded evidence that the pearl fishery on Greater Tunb continued to be
assembled as observed by Seton in subsequent years, pearl fishing constituted
throughout the nineteenth century one of the “principal means of subsistence”
of the coastal Arab communities, and in order to safeguard it led to the signing
of the first general maritime truce between them in 1835.223 The preamble of
that agreement, which was continually renewed and culminated in the signing
of the 1853 Treaty of Peace in Perpetuity, provided that the signatories, includ-
ing Sultan bin Suggur, “being fully impressed with a sense of the evils suffered
by our subjects and dependents in consequence of their being debarred from
carrying on the pearl fishery on the banks during the present state of hostilities
among ourselves, and duly appreciating the general advantages that would be
derived from the establishment of a truce during the fishing season …”224
1869
In 1869, Ras Al Khaimah separated from Sharjah and proclaimed its indepen-
dence. Historical views hold that following the separation of Sharjah and Ras
Al Khaimah, Greater Tunb was allocated to Ras Al Khaimah (while Abu Musa
was allocated to Sharjah). Although unsubstantiated by specific contempora-
neous evidence, such reports are broadly consistent with the conduct of the
parties and subsequent evidentiary materials.225
220 See supra notes 93–100 and accompanying text for a description of this correspondence.
222 Ibid.
224 Ibid., 235.
225 See supra notes 100–119 and accompanying text for events tying Abu Musa to Sharjah fol-
lowing 1869, and see supra notes 206–221 and accompanying text for events tying Greater
Tunb to Ras Al Khaimah.
1871
In December 1871, following the separation of Sharjah and Ras Al Khaimah, the
chief of Ras Al Khaimah claimed the Tunbs “as his territory” and is reported
to have intended “taking possession” of them and “not to permit other people
taking their cattle and horses there”. In reply the British noted that they had
previously made clear to the “other Sheikhs” that they had no right to those
islands, nor to Abu Musa or Sir.226 This report is the first specific and docu-
mented claim to Greater Tunb by the chief of Ras Al Khaimah following its
separation from Sharjah.
1872
In November 1872, after receiving a letter of protest from the chief of Ras Al
Khaimah that tribesmen under the authority of the chief of Lengeh had at-
tempted to use Greater Tunb to graze their animals, the chief of Lengeh wrote
to the chief of Ras Al Khaimah apologizing for the intrusion and acknowledg-
ing the chief of Ras Al Khaimah’s ownership of the island.227 This reply is,
therefore, consistent with the historical evidence set out above which ties the
island to Ras Al Khaimah.
1873
12 February
In reply to a letter received from the chief of Ras Al Khaimah regarding the
Greater Tunb,228 the British native agent at Lengeh wrote to the British Resi-
dent stating that he had met with the chief of Lengeh on this matter and that
the Lengeh chief had said (in contradiction to the letters of December 1864,
December 1871 and November 1872) that (i) Greater Tunb is attached to Lengeh
and his people send their animals to that island, (ii) in 1872 the chief of Ras
Al Khaimah had, out of friendship and due to tribal relations, been permitted
to graze his horses on the island by the chief of Lengeh, and (iii) the chief of
Ras Al Khaimah now “wishes to possess” the island.229 This correspondence
reflects the first and only purported claim of control over Greater Tunb by the
Qawásim leaders of Lengeh, although as noted it is not set out in any correspon-
dence from the Lengeh leader himself, but rather is a reported conversation.

228 Morsy Abdullah asserts that this letter was written to protest the continuing efforts of
tribesmen under the authority of the chief of Lengeh to use Greater Tunb for pasturage,
an assertion which appears reasonable in light of the disputes over that issue which had
just occurred in November of the previous year. See Abdullah, A Modern History, 235.
434 chapter 7
21 February
The British Resident forwarded the 12 February 1873 letter to the native agent
on the Arab coast on the 21st of February 1873, stating: “Please enquire and
report as to whom the Tumb Island is supposed to belong.”230
1 March
On this date, the native agent on the Arab coast wrote to the British Resident
reporting that he had received a letter from the native agent at Lengeh stating
that the people of Lengeh had been prevented from grazing their animals on
the Greater Tunb by the chief of Ras Al Khaimah “on the plea that the Island
belonged to his ancestors.”231 The native agent added that he had written to the
chief of Ras Al Khaimah “to keep clear of this Island, as I know matters will in
the end lead to disturbances at Sea between Fars and Arabia for Chief of Rasul
Khymah has no rights to the Island unless permitted to go there by consent of
Lingah.”232 This letter sets out for the first time a third party view (albeit not
of the British, but of their native agent) that the Greater Tunb belonged to the
Qawásim of Lengeh rather than the Qawásim of Ras Al Khaimah. No explana-
tion was provided as to why such a view was held. For his part, the action taken
by the Qawásim Ruler of Ras Al Khaimah – claiming long-standing ownership
and excluding the tribesmen from Lengeh from using the island– is consistent
with the correspondence of December 1864, December 1871 and November 1872.
Undated, around 1 March

The chief of Ras Al Khaimah replied to the letter sent by the native agent advis-
ing the chief to “keep clear” of Greater Tunb by reiterating his claim of own-
ership to the island. His letter, in relevant part, stated the following: “I have
received your letter in regard to which you write about my wishing to possess
myself of the island of Tanb. I beg to inform you that the island of Tanb, Boo
Moosa and Sir are under the authority of the Joasmis of Oman. The island of
Henjam belongs to the Al bu Saeed. The Islands of Siree & [illegible] belong
to the [illegible] of the Joasmis living on the coast of Fars.” [i.e., the Qawásim
of Lengeh]233 Through this document, the chief of Ras Al Khaimah protests
the assertions of the native agent at Lengeh and reiterates that ownership of
Greater Tunb (as well as Abu Musa and Sir) are held by the Qawásim “of Oman”,
that is the Qawásim of Ras Al Khaimah and Sharjah.
230 Ibid., Vol. 1, 604.

231 Ibid., Vol. 1, 605.
232 Ibid.
233 Ibid., Vol. 1, 606.
15 March
The native agent on the Arab coast then wrote to the British Resident to inform
him that he had gone to see the chief of Ras Al Khaimah to “require” him to
write “a letter of apology” to the chief of Lengeh about having taken his horses
and camels to Greater Tunb as he “had no claim to this Island”.234 Again, this
document reflects the assertion that Ras Al Khaimah’s claim to the island is
unfounded, but does not provide an explanation as to why that claim should
give way to the authority of the Qawásim of Lengeh.
22 March
In reply to the letter of the native agent of 1st March 1873, which attached the
response of the chief of Ras Al Khaimah maintaining that ownership of Great-
er Tunb was held by the Qawásim of the Arab coast and not the Qawásim of
Lengeh, the British Resident took no immediate position on the competing
claims, but on 22 March 1873 he asked the native agent to “remind the Chief
of Rasul Khymah of the former arrangements that disturbances on the Islands
are considered as disturbances at sea and if any irregular act of his leads to
such disturbances he will be responsible.”235 That the British Resident would
direct such an admonishment to the chief of Ras Al Khaimah (rather than the
chief of Lengeh) is understandable, and does not suggest any position on the
merits of the competing claims to the island, because the chief of Lengeh was
not a party to the 1853 Treaty of Peace in Perpetuity, whereas the chief of Ras
Al Khaimah was considered bound by that agreement not to engage in any
“hostilities” at sea.236 This reply is also significant in that it demonstrates that
the British Resident considered avoiding “disturbances at sea” (including is-
lands) as his priority, with the matter of identifying the rightful owner of an
island relevant principally to determine how most expediently to avoid such
disturbances.
30 March
On this date, the native agent on the Arab coast wrote to the British Resident
in reply to his request of 21 February 1873 (asking “to whom the Tumb Island is
supposed to belong”), stating that the “Island of Tamb is a Dependency of Fars
and under the Chief of Lingah. On learning the differences between that chief
and that of Rasul Khymah I wrote to them and then went myself to the Island
234 Ibid, Vol. 1, 610.

235 Ibid., Vol. 1, 609.
236 The full text of the Treaty of Peace in Perpetuity can be found in Toye, Lower Gulf Islands,
Vol. 1, 290–291.
436 chapter 7
and prohibiting Rasul Khymah’s chief from transgressing on the Island in view
to prevent disturbances at Sea.”237 This reply reveals that the view of the native
agent that Greater Tunb was not owned by Ras Al Khaimah, or more gener-
ally the Qawásim of the Arab coast, was colored by the perception that Great-
er Tunb was a “dependency” of the Persian province of Fars. As discussed in
chapter 6, there is no evidentiary or legal basis for such an assertion.
25 April
On this date, the British Resident wrote to the native agent on the Arab coast
in reply to his letter of 30 March 1873, stating simply “I await further reports
on the matter.”238 This reply is significant only insofar as it does not suggest
that the British Resident agreed or disagreed with the assessment that Greater
Tunb was “under the Chief of Lingah” or that he had actually formed a view on
the ownership of the Greater Tunb. Indeed, no further “reports” around this
time have been located in the archival records, and it is unclear what then
occurred in relation to the dispute between Ras Al Khaimah and Lengeh over
control and ownership of the Greater Tunb until some four years later, in 1877.
1877
In January 1877, the chief of Lengeh (who had become the chief in 1874 upon
the death of his father, the author of the correspondence of 1872 conceding
that ownership of Greater Tunb was held by the chief of Ras Al Khaimah)
wrote to the chief of Ras Al Khaimah in reply to this latter’s request that tribes-
men under the authority of the chief of Lengeh be prohibited from using
Greater Tunb for pasturage. With regard to this request, the chief of Lengeh
wrote to the chief of Ras Al Khaimah that “a great deal of correspondence had
taken place between you and my late father … who had prevented this tribe
from going there.” He added, “the island belongs to you”, and that “it has been
ascertained by me that the Island of Tomb is a dependency of the Kowasim
of Oman; and we have no property there nor any right to interfere, save with
your consent.”239 This exchange of correspondence is in contradiction to the
12 February 1873 report of the native agent of Lengeh, which conveyed the pur-
ported views of the previous chief of Lengeh to the effect that he held sway
over the island. It is also in direct contradiction to the views set out by the
native agents during 1873 which are reflected in the various reports and letters
of February and March of that year. It is, however, entirely consistent with the
237 Ibid., Vol. 1, 614.

238 Ibid., Vol. 1, 617.
239 Ibid., Vol. 4, 211; see also, ibid., Vol. 2, 13.
letter written by the previous ruler of Lengeh in 1872, and with the insistence
of the Qawásim chief of Ras Al Khaimah expressed since 1871 that the Greater
Tunb was his property, a position he maintained notwithstanding the contrary
views of the native agents.
1879
On the 21st of June 1879, the British Resident asked the native agent on the
Arab coast to “obtain a complete list of the dependencies of each Trucial Chief
noting those claimed and acknowledged and otherwise”.240 It is unclear what
prompted the British Resident to request this list or to wish to define at this
particular time the specific territories of each of these chiefs, but it may have
been connected to the treaty entered into by each of them, at the behest of the
British, at precisely that time which required the extradition of any fraudulent
absconder “seeking refuge in our territories, whether by sea or land”.241
On the 16th of July 1879, the native agent sent his report, which listed the
Greater Tunb (Island of Tamb) as being owned by the Chief of Ras Al Khaimah,
but noting that “this Island is also owned by the Chief of Lingah in part as he is
also of the tribe of the Joasmees”.242
1884
A further relevant occurrence in this sequence of pre-1887 events happened a
few years after the compilation of this list of territories. In 1884, after the then
Ruler of Lengeh (Shaikh Yusuf, who was not of the Qawásim tribe, but who had
been an attendant of the previous Qawásim Ruler and assumed authority after
murdering him in 1878243) reportedly had date offsets planted on Greater Tunb
without the consent of the Ruler of Ras Al Khaimah, this latter “reacted force-
fully” and destroyed the trees and sent a protest note to Sheikh Yusuf and the
native agent at Lengeh.244 In reply, the Ruler of Lengeh wrote to the Ruler of
Ras Al Khaimah stating that “[i]n reality the island belongs to you the Qawasim
of Oman, and I have kept my hand over it, considering that you are agreeable to
my doing so. But now when you do not wish my planting date offsets there, and
240 Ibid., Vol. 1, 659. The “Trucial Chiefs” included those of Sharjah, Ras Al Khaimah, Abu
Dhabi, Dubai, Ajman and Umm Al Qaiwain.
242 Toye, Lower Gulf Islands, Vol. 1, 664. It has been pointed out that apparently upon receiv-
ing this report, the British Resident noted in the margin next to the reference about the
ownership of Greater Tunb, “considered Persian”. Abdullah, A Modern History, 236.
243 See supra notes 30–31 and accompanying text for the background of Sheikh Yusuf and his
assumption of power at Lengeh.
438 chapter 7
the visits of the Al Bu-Sumait [tribesmen from Lengeh] to cut grass there, God
willing, I shall prohibit them and our mutual relations shall remain friendly.”245
This 1884 letter was the third letter, each written by a consecutive Ruler of
Lengeh, which recognized that the ownership of the island of Greater Tunb
resided in the chief of Ras Al Khaimah, the other two letters being the letter of
November 1872246 and the letter of January 1877247 noted above.
Legal Analysis – The Tunbs
In light of the historical events and evidence set out above, and as judged
against the standards of international law which were developed and in ef-
fect during the nineteenth century, a Qawásim claim to have carried out an
effective occupation of the Tunbs, and more specifically Greater Tunb, would
follow closely, but not identically, the analysis and conclusions set out above
with respect to Abu Musa. In the succeeding paragraphs, we will follow the for-
mulation for an effective occupation set out in the principal cases addressing
that doctrine (which found expression in the Eastern Greenland case by focus-
ing on (i) the intention and will to act as sovereign, and (ii) some actual exer-
cise or display of such authority) to determine whether the Qawásim claim of
title over Greater Tunb is made out on the evidence which has come to light.
The paucity of evidence related to the exercise of sovereign acts on the Lesser
Tunb requires that we revisit the doctrine of contiguity to determine whether
any conclusions related to sovereignty which may be reached with respect to
Greater Tunb should extend to Lesser Tunb as well.
Intention and Will to Act as Sovereign

The correspondence of the Qawásim leader of Sharjah and Ras Al Khaimah of
1864, in which he advised the British government in writing that the Greater
Tunb belonged to him as the Ruler of the Qawásim (and had belonged to the
Qawásim “since the time of my forefathers”), clearly constituted “positive evi-
dence of the pretensions” of the Qawásim to be sovereign of that island.248
There is no contemporaneous evidence that any other party had ever previous-
ly claimed ownership or exercised sovereignty of the island (thus, this assertion
245 Quoted in Abdullah, A Modern History, 237; see also, Toye, Lower Gulf Islands, Vol. 2, 13.
was not an “usurpation” of any other “subsisting occupation”), nor that any
party contested the Qawásim claims “by competing acts of sovereignty”.249
Whether, following the separation of Sharjah and Ras Al Khaimah in 1869, the
Qawásim leader of Ras Al Khaimah would have had to separately assert his in-
tention to act as sovereign of the island in order to establish positive evidence
of his claim is a neat, but somewhat academic question. In brief, the answer
would appear to depend on whether it can be established that the Qawásim
obtained a definitive and completed title over the island prior to the separa-
tion of Ras Al Khaimah from Sharjah, or whether it in effect remained as terra
nullius at that time. If the Qawásim title had not been definitively completed, it
would follow that the newly-established entity of Ras Al Khaimah would have
had, as a legal matter, to independently take whatever steps were required to
effectively occupy the island, including expressing its intention and will to act
as sovereign (as well as displaying acts of sovereignty). If, on the other hand,
title had been definitively acquired by the Qawásim prior to the separation,
then clearly no further acts of effective occupation would have been relevant,
and instead the question would be whether the island was then effectively
placed under the ownership of Ras Al Khaimah as opposed to Sharjah.
Whatever the legal status of Greater Tunb as of 1869 – whether sovereign
territory of the larger Qawásim State or terra nullius – this conundrum does
not have to be resolved on the basis of the evidence reviewed above. While, as
discussed in the following section, there is a basis for arguing that the Q
awásim
completed their acquisition of title over Greater Tunb by 1864 and that this title
was allocated to the Ruler of Ras Al Khaimah when he separated his domains
from Sharjah in 1869,250 even if this was not the case and the island had re-
mained as terra nullius in 1869, there are a number of written documents from
the Ruler of Ras Al Khaimah following its separation from Sharjah which reflect
his independent intention and will to act as sovereign of Greater Tunb. These
documents include the December 1871 letter of the Ruler of Ras Al Khaimah in
which he claimed Greater Tunb “as his territory”.251 This document may be said
249 Ibid., 335.

250 As discussed in the following section, it is possible to view the letter of the Qawásim lead-
er of 1864 as reflective of both the intention and will of the Qawásim to be sovereign over
Greater Tunb and as a display of sovereign authority over the island. Given the absence
of any competing claim to the island at that time, and various other factors discussed
below, this could amount to a sufficient demonstration of sovereignty by itself. As for
the allocation of ownership of Greater Tunb to Ras Al Khaimah, the evidence from the
1870s reviewed above reveals a general assumption, and certainly no dissent, among the
Qawásim on such an allocation.
440 chapter 7
to have constituted “positive evidence of the pretensions” of the Qawásim Ruler

of Ras Al Khaimah to act as sovereign of Greater Tunb.252 It also predated any
competing claim to the island, and was not contested; indeed, it was noted that
the British had, prior to this time, once advised the sheikhs of other coastal
towns on the Arab littoral that they had no rights to Greater Tunb or the other
Qawásim-claimed islands of Abu Musa or Sir.253 Subsequent correspondence
or actions taken by the Ras Al Khaimah leader in 1872, March 1873, 1877 and
1884 referenced above also reflect the intention and will of the Qawásim Ruler of
Ras Al Khaimah to consider Greater Tunb as his own territory. Thus, even if the
island remained as terra nullius in 1869 and was not simply allocated to Ras Al
Khaimah in the division of territories between the two Qawásim States, the Qa-
wásim leader of Ras Al Khaimah expressed his clear intention thereafter to be
sovereign over Greater Tunb in a manner sufficient to satisfy this fundamental
condition for the acquisition of terra nullius.
The two additional criteria which have been mentioned in relation to Abu
Musa as relevant to determining whether the intention and will to act as sov-
ereign over terra nullius is present – that the party expressing this intention
be a State and that the evidence of the claim either be published or otherwise
manifested through “acts of sovereignty”254– also both appear to have been
met in the case of the Qawásim claim to Greater Tunb. It is evident that, for the
same reasons that the unified Qawásim political entity of Sharjah and Ras Al
Khaimah (which asserted title over Abu Musa in the December 1864 commu-
nication to the British referenced above) constituted a State, and was capable,
for purposes of international law, of effectively occupying terra nullius, this
same entity was also a State when asserting its claim of ownership over Greater
Tunb through that same communication. The status of Ras Al Khaimah fol-
lowing its separation from Sharjah in 1869 (and throughout the time that its
ruler sent the several communications and performed the various actions –
in December 1871, November 1872, 1 March 1873, 1877 and 1884 – in which he
repeatedly asserted his claim over Greater Tunb), continued to have similar
characteristics, albeit reduced in geographical scope. Despite its reduced size,
Ras Al Khaimah’s status may also be described as a State for these purposes as
it had an identifiable leadership (its ruler remained in place from 1869 until his
passing in 1900), a relatively defined territory (centered around the port of Ras
Al Khaimah), a settled population with evident ties of allegiance to the ruler,
and independence within that territory to conduct acts of civil and criminal
252 Waldcok, “Disputed Sovereignty”, 334.

administration, taxation and trade, as well as the capacity to enter into treaties
with foreign powers, most prominently the British. As in the case of the ter-
ritorial claims asserted by the Qawásim over Abu Musa, all of the assertions to
ownership of Greater Tunb referred to above were made by the Ruler of Ras Al
Khaimah prior to his signing of the protectorate agreement (Exclusive Agree-
ment) with the British government in 1892 and therefore any limitations on
his sovereign authority imposed by that agreement (and any arguments that
it detracted from Ras Al Khaimah’s status as a State) were not yet in effect.
Indeed, the signing of such a treaty by the Ruler of Ras Al Khaimah, as well as
his signing of the treaty on extradition of 1879 and his assumption of responsi-
bilities under the various other treaties which had been signed by the Qawásim
prior to the separation of Sharjah and Ras Al Khaimah, are all acts which are
indicative that it possessed international status.
With respect to the evidentiary criteria noted by Waldock – demonstrat-
ing the pretensions of the Qawásim to act as sovereign of Greater Tunb either
through the publication of the “assertion of title” over the island, or through
the performance of acts of sovereignty, both of these conditions also appear
to have been satisfied. It has already been noted that the claim to the Greater
Tunb asserted by the Qawásim in 1864, 1871, 1872, 1873, 1877 and 1884 were in
writing, directed to, or brought to the attention of, the British government,
and that these claims were also either directed or made known to the various
coastal sheikhdoms along the Arab coast, as well as to the chiefs of Lengeh.
The content and the recipients of these statements left no room for doubt that
the Qawásim had asserted their claim to ownership over the island, and that
this claim of title was disseminated to others in the region. While certain evi-
dence from the same period, such as the 21 February 1873 request of the British
resident to the native agent on the Arab coast to ascertain “to whom the Tunb
is supposed to belong”,255 might bring into question how well documented or
noted the prior Qawásim claims were, there is no reason to believe that in-
ternational law as it had developed in the late nineteenth century required
that the notoriety of the acts by which a claim of title over terra nullius was
made known had to be in any specific form or properly recorded by those so
advised. For example, in the Clipperton Island arbitration, decided in 1858, the
arbitrator held that a declaration of sovereignty by a French navigator over
the island which was notified to the Hawaiian government and published in a
newspaper in Honolulu (The Polynesian) was “incontestable”.256 The arbitrator
went on to state that “[t]here is good reason to think that the notoriety given

256 Clipperton Island, 393.
442 chapter 7
to the act, by whatever means, sufficed at the time.”257 Under the prevailing
conditions of the mid to late nineteenth century Gulf, the means by which the
Qawásim made their claim to Greater Tunb known – in particular having noti-
fied the British government, its native agents and other coastal Arab powers in
writing – would appear to have been more than sufficient to meet that criteria.
As noted by Waldock, the intention and will to act as sovereign of territory
may also be wrapped up in a display of sovereignty itself, this being as effec-
tive as having demonstrated its pretensions through publication. In this re-
spect, it was precisely the purpose of each of the correspondences or actions
mentioned above not only to assert the Qawásim leaders’ intention to act as
owner, but also to display their presumed and existing authority to exclude
others from using and gaining access to the island. The exercise of such author-
ity would clearly appear to have constituted an act of sovereignty, and as such
sufficient to demonstrate the Qawásim intention and will to claim Greater
Tunb à titre de souverain.258
In view of the evidence referred to in the previous paragraphs, and in light of
the above-mentioned considerations, there seems no doubt that the Q awásim,
in the first instance those leaders representing the unified sheikhdom of Shar-
jah and Ras Al Khaimah and subsequently the leader of Ras Al Khaimah alone,
satisfied the first element which, according to the leading authorities, is re-
quired to carry out an effective occupation of terra nullius, namely that the
claimant state had the “intention and will” to act as sovereign of the territory
in question.
Display of Sovereign Authority

The contemporaneous evidence reviewed above supports the conclusion that,
as in the case of Abu Musa, from at least around the mid-nineteenth century
and throughout the period up to the events of 1887/8, the Qawásim leadership
on the Arab coast (whether considered as the unified Sheikhdom of Sharjah
and Ras Al Khaimah, or Ras Al Khaimah alone) considered the extent of its
territorial domains to encompass the island of Greater Tunb. The evidence of
257 Ibid., 394 (emphasis added).

258 See Island of Palmas, in which the arbitrator described “excluding the activities of other
States” as one aspect of the exercise of “territorial sovereignty”. Island of Palmas, 839. See
also Clipperton Island, where the action of France in demanding “explanations” from the
United States as to the presence of three American nationals on an otherwise uninhab-
ited island which France had claimed some thirty years before constituted an act of sov-
ereignty sufficient to carry out an effective occupation of that island. Clipperton Island,
392–394.
the operation by Qawásim tribesmen from Ras Al Khaimah of a pearl fishery

on the island in 1801259 raises the possibility that Qawásim control of the is-
land in fact dates from a much earlier period, yet whether these activities were
merely the private acts of individuals, or acts sanctioned (or carried out) by the
Qawásim leadership and a display of jurisdiction over Greater Tunb, is difficult
to ascertain given the absence of supporting contemporaneous evidence.260
Indeed, what distinguishes the analysis over Greater Tunb from that of Abu
Musa is, first, the relative lack of evidence of State activity, or effectivités, which
was actually displayed on the island by the Qawásim prior to 1887/8, and sec-
ond, the assertions made by the native agents in 1873 that the Qawásim lead-
ers of Lengeh held superior rights over the island to those rights held by the
Qawásim leaders on the Arab coast. This latter assertion serves to raise doubts
as to whether the claim of Ras Al Khaimah lacks foundation ab initio.
Addressing this latter point first, the positions of the various interested par-
ties on this question prior to the events of 1887/8 fell within a broad range.
As noted above, the native agents themselves appear to have eventually
modified their position of 1873, asserting instead – at least in the list of territo-
ries owned by each of the Arab sheikhdoms which was compiled by the native
agent on the Arab coast at the request of the British in 1879 – that while the
leader of Ras Al Khaimah owned the island, the leader of Lengeh “also owned”
the island “in part as he is also of the tribe of the Joasmees.”261
A similar, although not identical, view came to be expressed by the British
government, which in contemporaneous documents made varying descrip-
tions of the ownership of Greater Tunb, including that it has “always been
considered Arab and beyond the zone of Persian interference [and that] Arab
Chiefs within our sphere of influence and control have rights on the islands in
common with Arabs of Persian littoral.”262 In another internal correspondence
from the British political resident, it was stated that Greater Tunb “formed part
of the hereditary estates of the Jowasimee Arab Shaikhs”,263 and in another

260 The evidence that the Qawásim leaders were imposing a tax on boats and divers engaged
in the pearl fisheries at around this time does, however, suggest that Qawásim jurisdiction
was considered to extend to the island where such activities were carried out. See supra
note 149.
261 Toye, Lower Gulf Islands, Vol. 1, 664 (emphasis added). See supra note 242 and accompa-
nying text.
263 Ibid., 723.
444 chapter 7
Greater Tunb was said to be under the “joint possession of Joasmee Shaikhs in
general”.264
For their part, the Qawásim, particularly those in charge of Ras Al Khaimah,
viewed the role of their Lengeh cousins in relation to the ownership of Greater
Tunb as virtually an irrelevance because, according to them, Greater Tunb had
always been under the authority of the Qawásim of the Arab coast (eventually
resting in the hands of the ruler of Ras Al Khaimah exclusively) and not those
of Lengeh, who could use the island, or put it at the disposal of others, only
with the consent of the Qawásim of the Arab coast, who they contended were
its rightful owner.265
As mentioned above, the evidence indicates that the Qawásim leaders of
Lengeh agreed with their relatives in Ras Al Khaimah that Greater Tunb be-
longed to them, with the only indication otherwise being the reported con-
versation between the leader of Lengeh and the native agent of the Persian
coast of 12 February 1873, in which this latter asserted that the Lengeh ruler had
claimed to hold authority over the island.
Finally, and as discussed above, the Persian government asserted that the
Qawásim leaders of Lengeh did hold authority over Greater Tunb, and it used
this assertion as a basis for claiming the island as its own, in effect asserting
that whatever acts of jurisdiction or control had been displayed on that island
by the Qawásim leadership at Lengeh (who they maintained were at all rel-
evant times Persian citizens and officials) had been carried out under the di-
rection and authority of the Persian government, and that Persia acquired or
solidified its ownership of the island by virtue of these activities. These argu-
ments, and the legal and evidentiary reasons why they cannot be supported,
have already been analyzed at length above in this chapter.
If, as we have determined, the evidence of the asserted ownership or con-
trol by the Lengeh Qawásim of Greater Tunb does not serve to promote in
any positive manner the claim that Persia held title to the island during the
nineteenth century, and on the contrary undercuts that claim, what further
relevance could this evidence have to the dispute over ownership to Greater
Tunb? Such evidence, if it existed, would certainly not support the claim to
the island which has been made by the Qawásim of Ras Al Khaimah, nor, since
the Qawásim leadership of Lengeh itself ceased to exist in 1887 and certainly
are not sovereign claimants to the island today, could such evidence be used
to support a hypothetical claim put forward by them. Thus, the only further
relevance which that evidence might have to the dispute between Iran and
264 Ibid., 736.

265 This position was reflected or laid out in the correspondence of 1864, 1871, 1872, 1 March
1873, 1877 and 1884 noted above in this chapter.
the uae today over ownership to the Greater Tunb would be to disassemble or
undermine the claim that the Qawásim of the Arab coast acquired ownership
of the island during the nineteenth century. The basis of such an argument
would have to be that, in reality, ownership of the island was vested in the
leaders of Lengeh at that time to the exclusion of both Persia and the Qawásim,
or that neither the leaders of the Qawásim in Lengeh or Ras Al Khaimah exer-
cised sovereign authority over the island, leaving it as terra nullius in 1887. The
merits of these arguments are discussed in the following section.
Independent Ownership of Greater Tunb by the Qawásim Rulers

of Lengeh
The notion that the Qawásim rulers of Ras Al Khaimah did not hold title to the
Tunbs at the time the events of 1887/8 occurred because those islands were in
fact held in ownership by, or under the authority of, their Qawásim relatives
in Lengeh at that time has historically served to create a measure of confusion
in the discourse over sovereignty to those islands. Much of this confusion has
been generated by the variety of arguments different parties have made to ex-
plain what to make of the circumstances around the Lengeh rulers’ purported
involvement in administering the islands. To disentangle these arguments, it is
best to return to the evidence.
The most significant aspect of that evidence is that there is no documented
record emanating from the Qawásim leaders of Lengeh themselves in which
they ever made a claim of ownership to Greater Tunb. Indeed, the only occa-
sion on which it was reported by a third party (in this case, the native agent
at Lengeh) that the Qawásim leader at Lengeh had claimed an interest in the
island was in February 1873, when the agent reported to the British resident
that he (the agent) had been told by the Lengeh leader during a conversation
that Greater Tunb was “attached” to Lengeh and that access to the island by the
chief of Ras Al Khaimah was subject to the consent of the leader of Lengeh.266
No claim of ownership was made and no indication of whether that “attach-
ment” amounted to supposed ownership was noted in this report. Other than
this indirect report, there is no evidence of any positive claim to the island
266 See supra note 219 and accompanying text. In two other reports of the native agents, of
1 March (see supra note 235) and 30 March 1873 (see supra note 236), and in the list of
dependencies owned by each of the Sheikhdoms prepared by the native agent on the
Arab coast in July 1879 at the request of the British (see supra note 242), the native agents
had also asserted that Greater Tunb was either controlled by the Lengeh Qawásim or that
control and ownership of the island was shared between them and the Qawásim of Ras
Al Khaimah.
446 chapter 7
ever having been made by the Lengeh Qawásim. On the contrary, the only
documented evidence from the Qawásim leaders at Lengeh themselves which
reveals their views as to the ownership of Greater Tunb are the two letters, dat-
ed November 1872 and January 1877, in which two consecutive Qawásim Rulers
of Lengeh acknowledged directly to the leader of Ras Al Khaimah that owner-
ship of the island was rightfully his.267 In addition, the non-Qawásim Ruler of
Lengeh, who took control of the town and its surroundings by murdering his
Qawásim master in 1878, also acknowledged in a letter to the Ruler of Ras Al
Khaimah in 1884 that the island “belongs to you the Qawásim of Oman”.268
Not only is there no direct evidence which has been uncovered that the
Lengeh Qawásim ever made a claim to the Greater Tunb, but neither is there
any evidence of their displaying anything akin to sovereign authority on the
island. We have reviewed earlier in this chapter the text of several letters which
Persia presented to the British government in 1887 purporting to establish that
the leadership of Lengeh – on behalf of the Persian government – carried out
acts of administration on Sirri and Greater Tunb.269 As discussed above, none
of these letters presents credible evidence of the performance of any admin-
istrative acts on either of those islands by the leader of Lengeh. Other than
that evidence, there are the recorded incidents in which tribesmen under the
authority of the Lengeh Qawásim made use of Greater Tunb in 1872, 1873 and
1877 to be considered. In each of these instances, which were rather identical
to the incidents in which people from Dubai, Ajman and Abu Dhabi sought to
use Abu Musa to graze their animals, the use of Greater Tunb brought on the
strong protests from the leader of Ras Al Khaimah described above. Just as in
those cases, the offensive activity appeared to amount to private acts of indi-
viduals (tribesmen seeking to graze their animals), against which the Qawásim
leader emphatically maintained his rights of ownership and demanded a stop
to the intrusions. Moreover, as in the occurrences related to Abu Musa, there is
little evidence to indicate that the intrusions in fact amounted to a competing
claim to ownership by the leaders of those tribesmen, as in each of the events
of 1872, 1877, as well as 1884 (when the leader of Lengeh had date offsets plant-
ed on the island, which were then uprooted at the instruction of the leader
of Ras Al Khaimah), the Lengeh leader apologized rather than escalating the
confrontation into a dispute over ownership.
The exception to this pattern were the events of February and March 1873,
when the native agent at Lengeh made the assertion noted above (that he had
267 See supra notes 217–218 and 239 and accompanying text.
been told by the Lengeh leader that Greater Tunb was attached to Lengeh and
that “his people send their animals to that island”), following which the agent
wrote several missives to the British resident asserting that the island did not
belong to Ras Al Khaimah, but was a “dependency of Fars”.270 The probative
value of this evidence must be considered low for several reasons:
• Most importantly, it is contradicted by the direct evidence of the leaders of

Lengeh themselves in the letters of 1872, 1877 and 1884, in each of which they
disclaimed any rights of ownership to Greater Tunb and acquiesced to the
claim of ownership asserted by the leaders of Ras Al Khaimah.
• Second, the native agent who made this assertion in 1873 subsequently
retreated from that position, asserting instead in 1879 that ownership of
Greater Tunb was shared between the Rulers of Ras Al Khaimah and Lengeh.
In neither case, however, did he seem to have taken into account the corre-
spondence of 1872 and 1877 just mentioned.271 In this regard, some schol-
ars have noted that the credibility of the reports of Britain’s native agents
was always somewhat unreliable. For example, Onley states that “[a]nother
disadvantage of employing native agents was that the agents’ intelligence
reports were not consistently accurate. Their reports to the Resident were
colored by their personal interests from time to time. They occasionally re-
ported rumors as facts and, in rare instances, even suppressed, distorted, or
falsified information if it benefited them to do so.”272
• Finally, the assertions made by the native agent in 1873 were, as noted
above, firmly protested against by the leader of Ras Al Khaimah. There is
no evidence that the chief of Lengeh, in the face of these protests, then
sought to challenge the ownership rights claimed by Ras Al Khaimah. On
the contrary, the next recorded incident on the island, which occurred in
1877, ended with correspondence from the chief of Lengeh to the chief of
Ras Al Khaimah in which the former apologized for the intrusions on the
island by his tribesmen and conceded that ownership of the island was held
by Ras Al Khaimah. He also indicated that additional evidence of Ras Al
Khaimah’s ownership existed in the form of letters from his father (the au-
thor of the 1872 letter) to the chief of Ras Al Khaimah when he noted that

271 This was asserted in the list of territories of each Sheikhdom compiled by the native agent
of the Arab coast in 1879 at the request of the British resident. See supra notes 240–242
and accompanying text.
272 James Onley, “Britain’s Native Agents in Arabia and Persia in the Nineteenth Century”,
Comparative Studies of South Asia, Africa and the Middle East 24(1) (2004): 129–137, 134.
448 chapter 7
in ascertaining the rights of Ras Al Khaimah over the island, he had seen “a
great deal of correspondence [which] has taken place between you and my
late father” on this matter.273 These letters have not been located, but their
mention by, and to the detriment of, the leader of Lengeh serves as proba-
tive evidence of their existence.
No Basis for Finding Effective Occupation of Greater Tunb by

Rulers of Lengeh
In summary, the evidence up to the events of 1887/8 shows (i) neither an in-
tention by the Lengeh leaders to claim ownership of Greater Tunb nor the
display of any acts of administration or jurisdiction on the island by them,
(ii) the outright acknowledgement by those leaders on repeated occasions that
Greater Tunb rightly belonged to the Qawásim of Ras Al Khaimah, (iii) the
acquiescence by those same Lengeh leaders to the control exercised over the
island by the Qawásim of the Arab coast, particularly in the face of protests by
those Qawásim leaders to the attempted use of the island by persons under the
authority of Lengeh, and (iv) closely connected to this last point, the assertion,
or preservation, of the ownership rights of those Qawásim leaders in the face
of such use of the island through consistent protests. Making out a persua-
sive claim that the Rulers of Lengeh effectively occupied and took ownership
of Greater Tunb under such evidentiary circumstances is simply not possible.
Moreover, as measured against the criteria laid out under the international law
principles discussed above for the effective occupation of terra nullius, any
such hypothetical claim would fail due to a lack of evidence showing either
the intention and will of the Lengeh rulers to act as sovereign over the island,
or their performance of any acts of sovereignty thereon. In brief, even if it were
possible to argue that the rulers of Lengeh governed a territory imbued with a
sufficient degree of independence and other characteristics to be referred to as
a State, which is highly unlikely, there is no evidentiary basis to demonstrate,
in the words of the Permanent Court in the Eastern Greenland case, the “con-
tinued display of authority” over Greater Tunb by those rulers.274 This conclu-
sion is strengthened by the reasoning and criteria referred to by the tribunal
in the Dubai/Sharjah arbitration. In that case, in which the tribunal sought to
apply regionally applicable criteria to resolving a dispute between these two
emirates over the ownership of disputed territory, it was held that a key factor
to consider was which of the parties was able to establish that it held effective

274 Eastern Greenland, 25.
control over that territory.275 There is no persuasive way to argue that the lead-
ers of Lengeh held any measure of effective control over Greater Tunb on the
basis of the evidence reviewed above. In light of all the considerations set out
above, it is more than apparent that any claim that the leaders of Lengeh held
outright title to the Greater Tunb would have virtually no prospect of success.
Did Qawásim Rulers of Lengeh Hold Partial Ownership of Greater

Tunb?
Notwithstanding these conclusions, arguments were made by several parties
prior to or around the events of 1887/8 that the Qawásim Rulers of Lengeh held
some form of partial ownership of Greater Tunb by virtue of their status as
members of the wider Qawásim tribe of the Arab coast. These parties included
one of the native agents who, as noted above, stated in 1879 that Greater Tunb
was “also owned” by the Qawásim Rulers of Lengeh, and the British resident,
who, possibly based on the assertions of the native agent, stated in 1887 that
Greater Tunb was part of the “hereditary estates” of the Qawásim sheikhs, or
under the “joint possession” of those sheikhs. Although it was not specifically
stated as such, the implication of these pronouncements was that the Qawásim
sheikhs of Lengeh may have, in their capacity as members of the tribe, shared
in the ownership of these “hereditary estates”. The British government also ex-
pressed its view on several occasions following the events of 1887/8 that the
Lengeh sheikhs not only shared in the ownership of Greater Tunb, but notwith-
standing the contemporaneous evidence cited above, had responsibility for
administering the island on behalf of the wider Qawásim tribe. For example,
on 15 August 1888, the British resident wrote a lengthy report on the “Persian
Occupation of the island of Sirri” in which he stated that “Sirri and Tamb are
beyond the zone of Persian interference, that the islands belong to Arab chiefs
under British protection in common with Arabs of the Persian littoral”.276 He
also added that “the islands [i.e., Sirri and Tamb/Greater Tunb] form part of the
hereditary estates of the Jowasimi Arab Sheikhs, but that for many years the
management, administration, and jurisdiction had by common consent been
vested in the chief Jowasimi Sheikh of the Persian coast, viz: – the Sheikh of
Lingah for the time being”.277 Some years later, in 1900, a British government rep-
resentative wrote that the “ownership of Tamb has always been doubtful. The
above note shows the opinions of several Residents and there seems little

277 Ibid., 68.
450 chapter 7
doubt that if every one had their rights it would be the common property of
the Joasmi Arabs of Lingah & the Arab Coast.”278
While these assertions are of historical and academic interest, their legal rel-
evance to this study, and to the specific question addressed here (whether the
Qawásim rulers of the Arab coast, and in particular Ras Al Khaimah, effectively
occupied and held title to Greater Tunb prior to 1887), should not be exagger-
ated. The principal reason for this is straightforward. As discussed above, there
are no evidentiary grounds on which to maintain that the rulers of Lengeh
ruled over or governed the island on behalf of the Persian government. More-
over, there is an almost complete absence of evidence that the rulers of Lengeh
carried out acts to claim ownership of Greater Tunb themselves. It is apparent,
therefore, that if a claim of ownership, based on its effective occupation, was
to be asserted by the Qawásim, such a claim would have to be based on acts
carried out by the Qawásim rulers of the Arab coast, and not their Lengeh rela-
tions. Whether those Qawásim rulers carried out an effective occupation in the
first instance is discussed in the following section below. If they did, the ques-
tion whether, through some tribal arrangement, the Qawásim rulers of Lengeh
came to enjoy some share of that ownership would have been a matter for
the Qawásim to resolve in the context of their tribal or familial relationships,
and would only be relevant to this analysis if the Lengeh rulers had asserted
a claim or otherwise contested the title repeatedly asserted by the Qawásim
of Ras Al Khaimah. No such claim or assertion was, as far as the authors have
determined, ever made, whether during the nineteenth century or thereafter.
Indeed, from the evidence reviewed above, it is established that a succession of
Lengeh chiefs specifically acknowledged that they held no authority over the
island and that it belonged to the Qawásim rulers of Ras Al Khaimah. It is thus
entirely speculative, and somewhat improbable, to assume what legal impact
such “partial” ownership would have had as it was never in fact asserted. More-
over, and extrapolating from decisions of international tribunals or courts, the
direct admissions or acknowledgements by the Lengeh rulers that they held
no ownership or authority over the island would hold considerable weight in
determining that those rulers did not hold title to, or any ownership interest
in, the island.279 In any case, the conduct of the Lengeh rulers following their

279 See, e.g., the Minquiers and Ecrehos case, where the icj found that France had not mani-
fested her intention to be sovereign over the Minquiers group based on the content of
diplomatic correspondence “from the beginning of the nineteenth century”. The Court
held that this correspondence constituted “evidence of the French official view at that
time”. The Minquiers and Ecrehos case, i.c.j. Reports 1953, p. 47, 71.
demise from authority at Lengeh in 1887 – revealing no assertion or claim over

Greater Tunb nor contesting the claim of Ras Al Khaimah – would also lead
to the conclusion that any independent ownership rights they may have con-
sidered they held over Greater Tunb as of that time were subsequently aban-
doned or lost, if they had ever been held in the first place.280
Conclusions – Greater Tunb
This leaves us to determine whether, on the basis of the evidence which has
been found, the Qawásim carried out sufficient acts of administration or State
activity on Greater Tunb to demonstrate their intention to govern the territory
as sovereign, leading to an effective occupation of the island. As noted above,
the evidence of such activity by the Qawásim in relation to Greater Tunb prior
to 1887 is not abundant. But neither is it non-existent. To summarize, that ac-
tivity consists principally of acts by which the Qawásim leaders excluded, or
sought to exclude, those persons not under its jurisdiction or authority from
accessing or using the island. Such documented efforts were taken by those
leaders in 1864, 1871, 1872, 1873, 1877 and 1884.281 Apart from these acts of ex-
clusion, other evidence relates to what may be described as presumptions and
situations.282 Counted among them are those to be derived from: the admis-
sions and acknowledgements of the leaders of Lengeh noted above that the is-
land belonged to the Qawásim Ruler of Ras Al Khaimah; the recognition by the
native agent in 1879, which has been discussed above, that Greater Tunb be-
longed to Ras Al Khaimah; the observations of David Seton in 1801 that persons
from Ras Al Khaimah had established a pearl fishery at Greater Tunb at that
time283 and the recognition through the 1853 treaty between the British and
the Qawásim that throughout the nineteenth century pearl fishing constituted
280 Fitzmaurice makes the following relevant comment, albeit again addressing the loss of
title by States: “In actual fact, apart from specific cessions or renunciations by treaty,
States very seldom formally renounce title. But they may lose it, and the question of inten-
tion, if latent, is really one of inference from the facts. Moreover, so far as abandonment
proper is concerned, the question is less whether title has been abandoned, than whether
the territory has; or has simply been lost by a process which, if perhaps involuntary, or not
due to any deliberate intention, is nevertheless one that entails the legal consequence of
loss of title.” Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 67, note 1.
283 See supra note 207 and accompanying text. See also chapter 2, note 59 and accompanying
text.
452 chapter 7
one of the “principal means of subsistence” of the coastal Arab communities,

including Ras Al Khaimah; and the inferential deduction that the Qawásim
rulers controlled access to the island by outsiders in order to preserve it for the
use of their own subjects. With regard to this last point, there is little doubt
that the Qawásim held at least some physical possession of or had some pres-
ence on Greater Tunb since, among other considerations, the acts by which
they sought to exclude outsiders were all founded on observations that such
outsiders had arrived on the island or were seeking to use it. In the incident of
1884, in which the Ruler of Lengeh had date offsets planted on the island, the
Ruler of Ras Al Khaimah had them physically uprooted as a means of protest,
again indicating a physical presence by the Qawásim on the island.
Of critical importance in evaluating the significance of this evidence, both
direct and inferential, is the absence of any competing claim to the island dur-
ing the period of time to which this evidence relates. As concluded above, there
is no probative evidence that Persia or any other potential claimant asserted
a claim to Greater Tunb during this period, nor that any such party exercised
acts of intended sovereignty there. Without a competing claim, “very little ac-
tual exercise of sovereign rights might be necessary” to establish the effective
occupation of terra nullius, particularly when the territory in question is a thin-
ly populated area or uninhabited island, as was the case of Greater Tunb. This
principle was firmly established in the Eastern Greenland case, which held that
“[a]nother circumstance which must be taken into account by any tribunal
which has to adjudicate upon a claim to sovereignty over a particular territory,
is the extent to which the sovereignty is also claimed by some other Power”.284
The Court when on to state the following:
It is impossible to read the records of the decisions in cases as to territo-

rial sovereignty without observing that in many cases the tribunal has
been satisfied with very little in the way of actual exercise of sovereign
rights, provided that the other State could not make out a superior claim.
This is particularly true in the case of claims to sovereignty over areas in
thinly populated or unsettled countries.285
Fitzmaurice, commenting on the application of this principle in the M inquiers

and Ecrehos case, noted that “[i]t is clear … that the weight to be given to any
act, presumption or situation, and equally to any omission, is not an absolute
284 Eastern Greenland, 25.

285 Ibid.
q uestion, but depends very much on whether a competing claim is in the field,
and also on what is the character and intensity of that other claim.”286 He add-
ed the following relevant remarks to distinguish the nature of the acts which
would suffice to establish title in the presence, and absence, of a competing
claim:
Acts which would suffice as evidence of title, or omission which would

have no particular significance in the absence of a competing claim, ac-
quire a wholly different complexion if there is one. Similarly, the ques-
tion of what is required is affected by that of what has to be met in the
way of the acts of the other claimant. Acts that will be sufficient, or, con-
versely, neglects that will be immaterial, in the face of a low degree of
counter-activity, will not be so if that counter-activity is high. As has al-
ready been observed … the whole finding of the Court in the Minquiers
case was based not so much on the intrinsic worth of the parties’ claims
as on their relative worth.287
In light of these pronouncements, and given the absence of any competing

claims, the acts performed on or in relation to Greater Tunb by the Qawásim
prior to 1887 would appear to have been sufficient to establish title over the
island. In particular, the repeated and assertive acts to control access to the
island and its use over several decades would constitute “genuine” acts of sov-
ereignty. The nature and frequency of these acts would, in fact, appear to have
far exceeded those which were held in the Clipperton Island case to have estab-
lished France’s title over that island. In that case, following France’s declara-
tion of sovereignty over the uninhabited island and the subsequent passage of
almost forty years of “no positive and apparent act of sovereignty”,288 France
demanded explanations from the United States after three of its citizens were
found there collecting guano and, at almost the same time, reminded Mexico
of France’s asserted rights over the island after a Mexican expedition landed
on the island and hoisted the Mexican flag. The arbitrator upheld France’s title
despite its having performed no other acts on the island. As noted by Fitzmau-
rice, since “no other State having in the meantime claimed or manifested
(1955–6): 20–96, 64.
287 Ibid., 64–65.
288 Clipperton Island, 391.
454 chapter 7
any activity either, France’s original prise de possession was regarded as still
holding good”.289 Waldock points out with regard to the same case that its
holding was fully consistent with the principle of effective occupation under
international law as it had developed in the nineteenth century because in
demanding explanations from the United States concerning the presence of
three of its nationals on the island, “France did, in fact, exercise sovereignty
again before Mexico attempted for the first time to assert a title.”290
Thus, although the documented acts carried out on the island by the
Qawásim prior to the events of 1887/8 were largely confined to taking steps to
exclude others, such acts did constitute displays of sovereignty whose “relative
worth” (and not intrinsic worth) must be appreciated. As noted by Huber in
the Island of Palmas case, “[m]anifestations of territorial sovereignty assume,
it is true, different forms, according to conditions of time and space” and
“[t]he fact that a State cannot prove display of sovereignty as regards such a
portion of territory cannot forthwith be interpreted as showing that sover-
eignty is inexistent. Each case must be appreciated in accordance with the par-
ticular circumstances.”291 He also noted that one side of territorial sovereignty
was “excluding the activities of other States”.292 Measured against the general
nature and circumstances of Greater Tunb – a largely or entirely uninhabited
island whose value was principally its seasonal usefulness in connection with
the grazing of livestock and pearl fishing – and in view of the consistency and
forcefulness with which the Qawásim successfully reacted against attempts by
others to access the island for these purposes, such steps would appear to have
been sufficient, and in line with the doctrine of effective occupation, to estab-
lish and maintain title, particularly as no other competing claims were made
or “in the field” at that time. Taking the words of Waldock, such display of State
functions corresponded with “the circumstances of the territory” and were ex-
ercised as and when occasion demands.293 Such a conclusion would also be
supported by the unambiguous claims of ownership which were put forward
by the Qawásim at the same time as they demanded that others respect their
authority to control access. Thus, the Qawásim leaders left no doubt that they
founded their very right to control access to the island on their claim of owner-
ship of the island itself.
291 Island of Palmas, 839, 855 (emphasis added).
292 Ibid.
The Lesser Tunb
Having established that, based on the evidence emerging from the nineteenth
century period prior to 1887, the Qawásim claim of title over Greater Tunb rests
on grounds which are consistent with prevailing jurisprudential and scholarly
thought on the doctrine of effective occupation, it remains to be determined
whether the Qawásim title to Greater Tunb extended to, or carried with it, ti-
tle to Lesser Tunb. There is a very noticeable absence of probative evidence
directly related to Lesser Tunb during the nineteenth century on which one
might construct an argument that the island was claimed or effectively oc-
cupied by any party. The nineteenth century navigational surveys which have
been mentioned in this work, including those of Captain Taylor (1818), Captain
Brucks (1830), James Horsburgh (1836), H.H. Whitelock (1838) and The Persian
Gulf Pilot (1864 and 1883) all describe the physical characteristics and geo-
graphical location of the island (which is also sometimes referred to as “Nabiyu
Tumb” or “Nabiyu”), but say little of relevance beyond noting that it was barren
and uninhabited. The latter of these surveys notes that Lesser Tunb “lies W. by
S. from the great Tumb, the channel between being 7 miles wide”.294
The documented records reviewed above in which various Qawásim lead-
ers lay claim to Greater Tunb do not specifically mention the Lesser Tunb by
name or indicate any specific activity carried out there by the Qawásim (or
anyone else), although certain of those records make reference to the “Tunbs”
(in plural), suggesting that the Greater Tunb and Lesser Tunb may have been
regarded as a single unit of territory. These documents include the December
1871 letter from the chief of Ras Al Khaimah, in which he claimed that various
islands, including the “Tunbs”, were his “territory” (emphasis added).295 Other
examples of the use of the plural “Tunbs” include documented references
which were made during the tumult brought about by the imprisonment of
the Qawásim ruler of Lengeh and the hoisting of the Persian flag on the island
of Sirri in September 1887, among which are several communications from the
British Resident to the foreign department of the Government of India. These
include (i) a communication dated 18 September 1887, in which it is stated that
Sirri, “as well as the Islands of Tomb, formed part of the hereditary estates of
the Jowasimee Arab Shaikhs” (emphasis added);296 (ii) a communication dat-
ed 1 October 1887, in which the Resident notes that he had requested a British
warship “to visit Sirri and Tomb Islands” to ascertain whether the Persian flag
294 Persian Gulf Pilot, Vol 1, 170.

296 Ibid., 723.
456 chapter 7
had been hoisted thereon, and in which he further notes that he was enclos-
ing “translations of letters in the possession of the Chief of Ras-el-Khaimah
regarding the Islands of Tomb to which that Chief lays claim both of posses-
sion and jurisdiction” (emphasis added);297 and (iii) a further communication
dated 31 October 1887, in which the British Resident recommends that the gov-
ernment “take diplomatic action, in view to causing the Persian Government
to withdraw their flag from Sirri, and to refrain from hoisting it on the Tomb
Islands.”298
Other contemporaneous evidence, however, mentions only Greater Tunb
(sometimes spelled “Tamb” or “Tomb”, which was understood to refer to the
larger island). For instance, the 1864 letter from the Qawásim leader to the
British Resident mentions only “Tamb” and in connection with the disturbanc-
es which occurred in 1873 arising out of the grazing of animals, only Greater
Tunb is typically mentioned. This may not, however, be surprising as Lesser
Tunb was repeatedly described in the surveys noted above as “barren” and
without water, which would suggest that it was unsuitable for grazing. Other
instances in which the failure to mention Lesser Tunb occurs include the re-
quest of the British Resident to the native agent in 1873, inquiring “as to whom
the Tumb Island is supposed to belong” (not mentioning Lesser Tunb)299 and
the 1879 list of territories “belonging” to each of the tribes of the Arab coast
which was compiled by the native agent at Sharjah, which lists only the “Island
of Tomb”, again obviously referring only to Greater Tunb.300
This contemporaneous evidence, therefore, paints an inconsistent picture
as to whether the two Tunbs islands were regarded as a single unit of property.
To the extent that the question was subsequently addressed and documented,
however, several early twentieth century accounts record the view that the
two islands may have been considered to have constituted a single unit. For
example, Lorimer, writing sometime before 1908, stated that “[t]he ownership
[of Lesser Tunb] is presumably determined by that of [Greater] Tunb”.301 The
297 Ibid., 726.

298 Ibid., 730 (emphasis added).
300 Ibid., 664.
301 Lorimer, Gazetteer of the Persian Gulf, Vol. 9, 1909. Lorimer’s entire description of the is-
land is as follows: “An island in the Persian Gulf, 8 miles west of the island of Tunb. It is
of triangular shape, 1 mile long from north-west to south-east, and ¾ of a mile broad at
the south end. A dark-coloured hill which stands on its north point is 116 feet high. The
island is uninhabited and destitute of water, but there is a good deal of vegetation of a
salsolaceous kind. Nābiyu Tunb is a favourite breeding place of sea birds. The ownership
is presumably determined by that of Tunb.” With respect to the ownership of Greater
same view, although more emphatically stated, was expressed by the British
government in 1908 when responding to a request from a British mining com-
pany which sought to excavate red oxide from Lesser Tunb and, in connection
therewith, asked to whom Lesser Tunb belonged. In reply, the British foreign
office stated that “the status of the island is, in the view of His Majesty’s Gov-
ernment, the same as that of the larger island of Tanb.”302
Geographical Considerations
As reviewed previously in this chapter and in chapter 3, the doctrine of conti-
guity or proximity “and such notions, well known in international law as not
in themselves creative of title” establish the “possibility or presumption for
extending to the area in question an existing title already established in an-
other, but proximate or contiguous, part of the same ‘unity’”.303 As stated by
Fitzmaurice, “contiguity or proximity is not a ground of title, but may in certain
circumstances afford some evidence of its existence.”304 To allow otherwise
would, in the words of Huber, “conflict with what has been said as to territorial
sovereignty and as to the necessary relation between the right to exclude other
States and the duty to display therein the activities of a State.”305 Fitzmaurice
explains the application of these principles in the following manner:
This question can have far-reaching consequences. Not only may it pow-
erfully affect the play of probabilities and presumptions, but also, if it can
be shown that the disputed areas (whether by reason of actual contigu-
ity or of proximity) are part of an entity or unity over which as a whole
the claimant State has sovereignty, this may (under certain conditions
and within certain limits) render it unnecessary – or modify the extent
to which it will be necessary – to adduce specific evidence of State activ-
ity in relation to the disputed areas as such – provided that such activity,
amounting to effective occupation and possession, can be shown in the
principle established by the Island of Palmas case that ‘sovereignty can-
not be exercised in fact at every moment on every point of territory.’306
Tunb, Lorimer stated that it “belongs to the Shaikh of Sharjah, and is connected with the
Ras-al-Khaimah District of his principality”. Ibid., 1908.
303 Eritrea – Yemen Arbitration, para. 462.
305 Island of Palmas, 854–855.
458 chapter 7
In the Island of Palmas case itself, Huber recognized that a “group of islands”
may “under certain circumstances be regarded as in law a unit, and that the fate
of the principal part may involve the rest.”307 But he noted that while “the act
of first taking possession” may not have to “extend to every portion of territory”
(or island), it is necessary that the “display of sovereignty … must make itself
felt through the whole territory”. In what manner the display of sovereignty
“makes itself felt” must depend on the particular circumstances of the terri-
tory in question. Given that the island in that case was permanently inhabited,
he found that the required display of sovereignty would have to include some
evidence of “acts of public administration” since under such circumstances
it would be “impossible that acts of administration could be lacking for very
long periods”.308 Elaborating on this holding, Waldock reiterates that it is “only
within the principle of effective occupation” that international law takes ac-
count of contiguity: “proximity may, in certain circumstances, operate to raise
a presumption of fact that a particular state is exercising or displaying sov-
ereignty over outlying territory in which there is no noticeable impact of its
state activity.”309 The “indirect effects” of such contiguity or proximity “in the
absence of anything to the contrary” may “lend colour to a contention that the
disputed territory is in fact under the same sovereignty as the neighbouring or
contiguous territory, or that State authority known to be exercised in the latter
territory has been exercised in the former too.”310 In the Eritrea-Yemen arbitra-
tion, the tribunal expressed this principle as follows:
All these authorities speak of it in terms of raising a presumption. And

Fitzmaurice is, in the passage cited, clearly dealing with the presumption
that may be raised by proximity where a state is exercising or displaying
sovereignty over a parcel of territory and there is some question whether
this is presumed to extend also to outlying territory over which there is
little or no factual impact of its authority.311
In the Land, Marine and Frontier Dispute between El Salvador and Honduras
(Nicaragua intervening), a Chamber of the icj held that the small and unin-
habited island of Meanguerita was an “appendage” or “dependency” of the
307 Island of Palmas, 855.

308 Ibid.
311 Eritrea – Yemen Arbitration, para. 461.
larger and nearby island of Meanguera. Although in that case neither of the
disputing parties claimed a separate territorial treatment of either of the two
islands, the reasoning of the Chamber illustrates a potentially useful applica-
tion of the geographical principles set out above, particularly as the evidence
of sovereignty was limited to the larger island of Meanguera. In that respect,
the Chamber stated:
Meanguera is now, and has long been inhabited: Meanguerita is not. …

The small size of Meanguerita, its contiguity to the larger island, and the
fact that it is uninhabited, allow its characterization as a “dependency”
of Meanguera, in the sense that the Minquiers group was claimed to be a
“dependency of the Channel Islands” I.C.J. Reports 1953, p. 71.312
Thus, these principles may allow, “in the absence of any evidence to the contrary”
the extension of sovereignty from a territory (or island) effectively occupied to
another contiguous or proximate area (or island) in which evidence of State ac-
tivity may be absent, but only if it can be established that both territories (or is-
lands) constitute an “entity”, a “natural unity”313 or a “simple organic whole”314
over which there is evidence that leads to a presumption that they are in fact
under the same sovereignty, or possibly (in the words of the El Salvador/Hon-
duras case), if an island which is not occupied or specifically claimed consti-
tutes an “appendage” of another island where sovereignty is established.
Conclusions – Lesser Tunb
In the case of the Lesser Tunb (and allowing that sovereignty over the Great-
er Tunb is established in favor of the Qawásim of Ras Al Khaimah as set out
above), a number of the key elements required to find an extension of that
sovereignty to Lesser Tunb which are noted by the authorities referenced in
this chapter appear to be present. The first and most fundamental factor re-
lates to basic geography; that is, the close geographical proximity of the two
islands is clear. Indeed, the location of Lesser Tunb has sometimes been de-
scribed in contemporaneous writings in terms of its distance from Greater
312 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua interven-
ing), icj Reports 1992, 351, 570.
313 Minquiers and Ecrehos case, separate opinion of Judge Carneiro, i.c.j. Reports, 1953, 102.
314 British Guiana Boundary case, reprinted in British and Foreign Papers, vol. 99 (1904), p. 930.
460 chapter 7
Tunb (approximately 7 to 8 miles) with the sea area between them character-
ized as a “channel”. As a pair of islands, they are considerably closer to each
other than to any other island or land mass in the southern Gulf. The more dif-
ficult question is whether, in establishing its effective occupation over Greater
Tunb, “a presumption of fact” should be raised that the Qawásim were also
“exercising or displaying sovereignty over” Lesser Tunb despite the absence
(on the available evidence) of any “noticeable impact of its state activity” on
the island. Several considerations suggest that it should. Perhaps most impor-
tantly, there are clear evidentiary grounds for considering the two islands as
a “unit”, whose ownership was presumed to be joined. Among such eviden-
tiary grounds are the various nineteenth century correspondence noted above
in which claims, ownership and treatment of the two islands are referred to
in a single breath by use of the plural (viz, the “Tunbs”), as well as the views
of the British government (and Lorimer) which regarded the status of the
smaller island as following that of the larger island. Perhaps of equal signifi-
cance is that, while this evidence suggests that the two islands were regarded
as a “natural unity”, with the smaller island an “appendage” of the larger is-
land, there is no positive counter evidence derived from any source that the
two islands were in fact or should have been regarded as separate territorial
entities. Indeed, such an argument has, as far as the authors can determine,
never been made by any party, and even in its modern manifestations, the
dispute between Iran and the uae over the islands appears to simply assume
that the ownership of the two Tunbs has always been joined under a single
sovereign.
On balance, therefore, this evidence suggests that the two islands were con-
sidered to constitute a “natural unity” whose ownership was joined. Indeed,
there is nothing in the evidence to suggest that, if the matter were ever to come
to an arbitral or judicial body for resolution, either of the parties would contest
this view. The particular circumstances of Lesser Tunb – barren, uninhabited
and lacking water, and in general of little practical or economic utility – are also
relevant in that they may serve to explain, or justify, the absence of evidence
of displays of sovereignty specifically over the island by the Qawásim during
the nineteenth century, as well as the occasions on which reference is made in
correspondence related to “disturbances” over use of Qawásim islands only to
the Greater Tunb (which was of significant economic use), but not mentioning
Lesser Tunb (of which little use was apparently made), presumably because
such disturbances did not typically (or ever) arise there. In that respect, there
is a similarity in the relationship between Greater Tunb and Lesser Tunb as
that found by the Chamber of the icj in the Honduras/El Salvador dispute
between the islands of Meanguera and Meanguerita.315 While the relative ab-
sence of specific displays of sovereignty over Lesser Tunb are therefore under-
standable in light of the particular circumstances of that island, it is equally
true that the “acts of public administration” which Judge H uber found had to
have been performed on Palmas island in order to establish that, in the par-
ticular circumstances of that island (principally its permanent population),
sovereignty through an effective occupation had been duly established, would
not be applicable to Lesser Tunb.
315 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), 570 (“The small size of
Meanguerita, its contiguity to the larger island, and the fact that it is uninhabited, allow
its characterization as a “dependency” of Meanguera”).
chapter 8
The Period 1887–1971: The Possible “Critical Dates”

in the Sovereignty Dispute
Having concluded that prior to the events of 1887/8 the Qawásim had estab-
lished rights of title to the three islands under prevailing principles of inter-
national law while Persia had yet to manifest a claim to any of the islands or
display on them any acts of sovereignty, it remains to be determined whether it
was in the midst of those events, or at some subsequent time, that the dispute
over sovereignty to the islands (or any of them) between the Qawásim and
Persia actually arose. This of course depends on whether it can be established
that Persia asserted a formal claim in opposition to the Qawásim title to any
of the islands at that time, or whether its claim, for legal purposes, dates from
some subsequent period. The relevance of this question revolves around the
legal principle of the “critical date”, that is the date on which the sovereignty
dispute may be said to have “crystallized” between the disputing parties and,
most importantly, the date on which the legal positions of the parties should
be evaluated to determine whose claim of title is stronger. The consequence of
finding that Persia asserted a claim to any of the islands around the events of
1887/8 would, on the basis of the findings set out in the previous chapter, be
significant because it would mean that, as a starting point, the Persian claim
would have to be considered invalid as all three islands were then already un-
der the ownership of the Qawásim. Barring a change in the legal position of
the Qawásim in the years following (whether as a result of acquiescence to an
assertion of sovereignty over the islands made by Persia, cession or abandon-
ment of title), the Qawásim title over the islands would have to be considered
to have been maintained until the present day. If, however, the Persian claim
to any of the islands was made subsequent to the events of 1887/8, the validity
of that claim would, as a starting point, have to be determined on the basis of
the respective legal positions of the parties at that critical date, subject always
to any changes in their legal positions which might have occurred thereafter.
The principal focus of this chapter is, therefore, to determine the dates on
which Persia first asserted a claim of title over each of the islands and in so
doing, to determine the critical date (or the various critical dates) on which the
dispute over sovereignty to the islands between Persia and the Qawásim may be
said to have first crystallized as a sovereignty dispute between the competing
parties, as well as the respective and actual ownership rights of those parties in

The Period 1887–1971 463
connection with the islands at the critical dates in question. In a ddition, this
chapter will describe, in relation to the period covered (1887–1971), the various
acts of both parties to the dispute following the critical dates for the purpose of
determining whether those acts were performed “deliberately for the purpose
of improving [a party’s] legal position”1 (and should therefore not be taken into
consideration in determining their connection or ownership rights over the
islands) or whether they were “the continuation of activities previously under-
taken by the States Parties to the dispute”2 (and may therefore be reflective of
any connections or ownership rights already established at the critical date).
Finally, and in connection with this last point, this chapter will examine the is-
sues of protest (determining whether either of the parties which may have held
valid ownership rights kept its claims alive by issuing valid protests in the face
of competing assertions of ownership by the other party) and acquiescence
(determining whether it could be said that any of the parties acquiesced to the
claims put forth by the other party, thereby losing any ownership rights it may
have previously held).
The Principle of the “Critical Date”
Determining the critical date in a sovereignty dispute where there is no “obvi-

ous” critical date (as would be the case for example where there is a cession
treaty or similar instrument that marks the point at which a dispute arose),
has been explained in chapter 3 by reference to the views of Fitzmaurice, who
suggested a series of criteria to ascertain this date, ranging from:
(i) the date of the commencement of the dispute; (ii) the date (not
necessarily the same as in (i)) when the challenging or plaintiff State
first makes a definite claim to the territory; (iii) the date, which again
may or may not coincide with one of the foregoing, when the dispute
1 Robert Y. Jennings, The Acquisition of Territory in International Law (Manchester: Manchester

2 Marcelo Kohen and Mamadou Hébié, “Territory, Acquisition”, in Max Planck Encyclopedia
of Public International Law, Online ed., ed. Rüdiger Wolfrum, para. 51; Sovereignty over Pulau
Ligitan and Pulau Sipadan (Indonesia/Malaysia), icj Reports 2002, 682, para. 135 (“The Court
further observes that it cannot take into consideration acts having taken place after the date
on which the dispute between the Parties crystallized unless such acts are a normal continu-
ation of prior acts and are not undertaken for the purpose of improving the legal position of
the Party which relies on them.”).
464 chapter 8
‘crystallized’ into a definite issue between the parties as to territorial

sovereignty; (iv) the date when one of the parties proposes and … takes
active steps to initiate a procedure for the settlement of the dispute,
such as negotiations, conciliation, mediation, reference to, or use of, the
machinery of an international organization, or other means falling short
of arbitration or judicial settlement; (v) the date on which any of these
procedures is actually resorted to and employed; (vi) the date on which,
all else failing, the matter is proposed to be or is referred to arbitration or
judicial settlement.3
It was also discussed in chapter 3 that there can be more than one critical date
in any sovereignty dispute and that this will depend on the titles claimed.4
The conclusions reached by the icj in the Minquiers and Ecrehos decision
provide a framework for the determination and consequences of the critical
date which is highly relevant to the dispute over the islands. Pared down to its
essential elements, the Court found that “[t]here is a critical date in territo-
rial disputes as at which … the question of sovereignty falls to be determined”
which is “prima facie the date at which the dispute on the issue of sovereignty
‘crystallizes’”, with the date of crystallization being “the date at which the party
not in possession of the territory makes a formal claim to it” and with such
critical date marking, prima facie, the moment when all subsequent “acts and
events” are excluded from consideration.5 As to this last element, while it has
been widely recognized that it would act as a complete bar to considering acts
taken by any of the parties after the date determined to be the critical date
“deliberately for the purpose of improving its legal position”,6 applying this
standard to particular and complex factual scenarios is sometimes difficult as
the parties involved will often believe for historical reasons that in carrying out
such subsequent acts they are acting in furtherance of established sovereign
rights even where that is not necessarily the case as a matter of international
law. To resolve the difficulties arising in evaluating the significance of such sub-
sequent acts, one may look at the statement of Judge Huber in the Island of
Palmas case that such acts may be “indirectly of a certain interest, owing to
3 Sir Gerald Fitzmaurice, “Law and Procedure of the International Court of Justice, 1951–1954:
Points of Substantive Law, Part ii”, British Yearbook of International Law 32 (1955–6): 20–96,
23–24.
4 Kohen and Hébié, “Territory, Acquisition”, para. 52; Jennings, Acquisition of Territory, 34.
5 As paraphrased by Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 39–40.
The Period 1887–1971 465
the light they might throw on the period immediately preceding”,7 that is, such
post-critical date acts may provide evidence of what the legal situation was
at the critical date, and be taken into consideration strictly for that purpose.8
Another insightful formulation was laid out by Fitzmaurice who, taking into
account that “improvement of position acts” may not be accepted as evidence
of sovereign rights on the critical date, stated:
The subsequent acts of either of the parties, not done with a view to im-
provement of legal position, will to that extent, and depending on their
intrinsic character and worth, be evidence of that party’s sovereignty at
the critical date. To the extent however that the acts are “improvement
of position” acts, they will not afford any such evidence, and may even
afford evidence to the contrary – for instance, the party concerned would
not have needed to be consciously improving its position subsequently, if
it had really possessed sovereignty at the critical date.9
Elsewhere he added that the rationale and need to exclude such post-critical
date acts is most obvious and sensible in cases where one of the parties under-
takes such acts in an attempt to acquire a prescriptive title, “when it may be
clear that the acts of one of the parties after the date when the dispute crystal-
lized … have been carried out in the prosecution of the prescriptive process,
and with a view to strengthening the legal position of the prescripting party.”10
For purposes of determining which side has, under international law, a valid
claim to sovereignty over the islands, the strength of the parties’ respective
claims today may therefore be determined to a significant (if not exclusive)
extent on the basis of what their respective ownership rights over the islands
were at the critical date.
Protest and Acquiescence
Regarding protests, there is no standard form or formal definition of what con-

stitutes a protest in international law, but it has been persuasively defined by
one scholar in the following way:
7 Island of Palmas Case (Netherlands/United States of America), Award of April 4, 1928,

riaa 2 (1928) 829, 866.
8 Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 41, 43.
9 Ibid., 43.
10 Ibid., 41.
466 chapter 8
A protest constitutes a formal objection by which the protesting State

makes it known that it does not recognize the legality of the acts against
which the protest is directed, that it does not acquiesce in the situation
which such acts have created or which they threaten to create, and that it
has no intention of abandoning its own rights in the premises.11
To achieve such a purpose, the terms and form of a protest should comply with
a number of basic criteria, the most important of which, as developed through
international arbitral and judicial decisions, are the following:
(a) A protest should be unambiguously made by or on behalf of the State

adversely affected by the act of another State.12
(b) A protest should identify clearly the act which is objected to and clearly
articulate the grounds on which the protest is made. Thus, ambiguous
protests, or protests which set out reasons which are different than the
reasons on which a legal claim is subsequently made may fail to support
the protesting State’s legal claims.13 Often, protests will therefore also set
out the specific reasons why the offending act is considered to be in viola-
tion of international law.14
(c) A protest should be effectively communicated to the offending State,
whether directly or through intermediaries, or through raising the dispute
in a forum in which the offending State is present or will be made aware
of the protest, such as the u.n. Security Council or General Assembly.15
(d) To ensure that a protest has full legal effect, it should be brought with a
certain immediacy following the act protested against,16 and if that act
11 Ian MacGibbon, “Some Observations on the Part of Protest in International Law”, British
Yearbook of International Law, 30 (1953): 293–319, 293.
12 Ibid., 294.
13 Ibid., 296. For example, in the Minquiers and Ecrehos case, French protests related to the
right to fisheries around the islands in dispute were held by the icj not to constitute a
claim to the right to sovereignty over those islands. Minquiers and Ecrechos case (France /
United Kingdom), icj Reports 1953, 47, 66.
14 MacGibbon, “Some Observations”, 297.
15 MacGibbon recounts, for example, that in the Alaska Boundary dispute, “The main objec-
tion raised against the validity of the British protests was that they were not communi-
cated to the Government of the United States”. MacGibbon, “Some Observations”, 296.
16 Seventh Report on Unilateral Acts of States, by Mr. Víctor Rodríguez Cedeño, Special Rap-
porteur, International Law Commission, April 22, 2004, un Doc. A/CN.4/542, para. 94
(“The icj had occasion to consider the concept of protest in the Fisheries case, in which
it stressed that a protest must be lodged with a certain immediacy and with the intent to
The Period 1887–1971 467
is not retracted or reversed by the offending State, subsequent protests

should be made with a degree of repetition so long as the objectionable
act continues.17 The protesting State must, of course, have knowledge –
either actual or presumptive – of the circumstances calling for a protest.18
(e) While in general the act complained of by the protesting State must be
a violation of international law rights for the protest to have an effect
in the preservation of those rights of the protesting State,19 in some cases,
the protest may be formulated on a basis other than that of a violation of
the rights of the protesting State.20 In the case of protests complaining of
a violation of the rights of the protesting State, these will only be effec-
tive to accomplish this result if the act objected to is in fact in violation
of international law.21 This means that if a State protests, albeit with due
prevent the unilateral act being opposed from achieving recognition. This view was reiter-
ated in the Land, Island and Maritime Frontier Dispute case.”); Fisheries (United Kingdom
v. Norway), icj Reports 1951, 116, 131 and 138 (“In any event, the ten-mile rule would appear
to be inapplicable as against Norway inasmuch as she has always opposed any attempt
to apply it to the Norwegian coast … [T]he Court is bound to hold that the Norwegian
authorities applied their system of delimitation consistently and uninterruptedly from
1869 until the time when the dispute arose.”); Land, Island and Maritime Frontier Dispute
(El Salvador/Honduras: Nicaragua intervening), icj Reports 1992, 351, para. 364 (“The
Chamber considers that this protest of Honduras, coming after a long history of acts of
sovereignty by El Salvador in Meanguera, was made too late to affect the presumption of
acquiescence on the part of Honduras. The conduct of Honduras vis-à-vis earlier effectivi-
tés reveals an admission, recognition, acquiescence or other form of tacit consent to the
situation. Furthermore, Honduras has laid before the Chamber a bulky and impressive
list of material relied on to show Honduran effectivités relating to the whole of the area
in litigation, but fails in that material to advance any proof of its presence on the island
of Meanguera.”).
17 Eric Suy, Les Actes Juridiques Unilatéraux en Droit International Public (Paris: Librairie
Générale de Droit et de Jurisprudence, 1962), 79 (“If the protest is an isolated one, it is
presumed that the protester did not have the real will to oppose the allegedly unlaw-
ful situation.”) (translation by the ilc’s Special Rapporteur in the report cited in note 16
supra).
18 Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 59, n. 3.
19 MacGibbon, “Some Observations”, 297.
20 Ibid. MacGibbon indicates that examples of these include “[r]epresentations … which
have been widely described as protests, in which the protesting State has admitted that
the State to which the protest was addressed was entitled to act in the manner which pro-
voked the protest, but that in so doing it was acting contrary to the comity and established
practice of nations.”
21 MacGibbon, “Some Observations”, 296–297 (“[N]ormally a protest is devoid of legal effect
if the rights in defence of which it is made do not in fact pertain to the protesting State.”).
468 chapter 8
immediacy and precision, the act of some other State, such protest shall
have no effect in the preservation of its rights if the act protested against
was not in violation of international law.
The failure to make protests when called for in a sovereignty dispute over ter-
ritory may negative the existence of title.22 As indicated by Fitzmaurice: “a fail-
ure by one party claiming title to territory to protest against acts that would
be encroachments on its sovereignty if title existed, may be evidence of the
non-existence of such title.”23 As further explained by Fitzmaurice:
A failure to protest may: (i) amount to a tacit abandonment by the State

concerned of its own title, assuming that to exist or to have existed; (ii)
involve a failure to check the acquisition of a title by prescription on the
part of another State; (iii) amount to acquiescence in, or an admission of
the validity of, the claim of the other party to the dispute; and (iv), with-
out necessarily implying (iii), constitute an admission (or evidence) of
the non-existence of the title of the non-protesting party.24
With respect to protests made when a dispute over territory exists, while these
will not nullify the acts which are manifestations of sovereignty of the other
party, they will serve “to keep alive the claim of the protesting party, and to
prevent it lapsing by tacit abandonment.”25
As will have been seen from chapter 2 on the history of the dispute in his-
torical perspective and from the events described in this chapter, at the end
of the nineteenth century and during the twentieth century both sides to the
sovereignty dispute over the islands (with the Sheikhdoms being represented
by the British pursuant to the 1892 Exclusive Agreements) took various mea-
sures concerning the islands, including granting mining concessions, enacting
legislation with a view to encompassing all three islands within their mari-
time boundaries and by taking several other steps, such as visiting the islands
or planting flags there. Both sides have at the same time vigorously protested
many of the actions taken by the other party. While most of these protests
22 Fitzmaurice indicates that “generally … a protest is called for whenever failure to make it
will, in the circumstances, justify the inference that the party concerned is indifferent to
the question of title, or does not wish to assert title, or is unwilling to contest the claim of
the other party.” Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 59, n. 3.
23 Ibid., 59.
24 Ibid., 59–60.
25 Ibid., 59.
The Period 1887–1971 469
were effective in preserving the position of the protesting State in accordance

with the requirements for the issuance of effective protests described above,
in reality the protests will only have been effective to preserve the sovereignty
rights of whichever party was sovereign over the islands at the critical date.
As indicated by the United Kingdom in its oral pleadings in the Minquiers and
Ecrehos case: “The whole subject of protests, of course, presupposes the ex-
istence of a title on the part of the protesting country, and … we do not ad-
mit that France had any title … For this reason alone, French protests were
necessarily without legal effect.”26 Thus, establishing that Sharjah and Ras Al
Khaimah were sovereign over the three islands either in 1887 (as was the case –
see chapter 7) or in 1903/1904 (on which we will elaborate below), the fact that
protests may have been lodged by Persia after those dates does not necessar-
ily assist the Iranian claim. If, however, Persia did have title to the islands by
1903/1904 (about which more below), then its protests thereafter may have pre-
served its sovereign rights notwithstanding the possession of the islands which
continued to be exercised by the Qawásim at that time and until 1971. This is,
in fact, the position adopted by the Iranian government, which asserts that its
protests from 1904 until 1971 served to prevent the “peaceful and undisturbed”
display or exercise of British/Arab sovereignty over the islands, thus prevent-
ing the acquisition of sovereignty over the islands by the Sheikhdoms through
acquisitive prescription.27
Relevant Events Leading to the Possible Critical Dates
As suggested above, events which occurred in and around 1887/8 and 1903/4
must be considered as the events most likely to have marked the dates on
which Persia first claimed ownership of the islands in opposition to the ex-
ercise of sovereign acts of the Qawásim, and thus the dates most likely to
be the critical dates in the dispute. The events of 1887/8 have been reviewed
in chapter 7. In brief, the argument set out by those who favor the Iranian
claim over the islands is that Persia was “dispossessed” of the islands at that
time. This argument is based on the assertion that the Qawásim leaders of
Lengeh were, prior to their removal from power by Persia in 1887, ruling the
26 The Minquiers and Ecrehos Case (France/United Kingdom), icj Pleadings, Vol. ii, 365.
27 See, e.g., Guive Mirfendereski, “The Tamb Islands Controversy, 1887–1971: A case Study in
Claims to Territory in International Law” (PhD diss., Fletcher School of Law and Diplo-
macy, Tufts University, 1985), chapter 12.
470 chapter 8
islands as Persian subjects and on behalf of the Persian government.28 Thus,

this argument holds that after having expelled the Qawásim from Lengeh, the
Persian government was fully entitled to resume direct control over the islands,
but this was prevented by the British government, in defense of the Qawásim
of the Arab coast. The reasons why this argument cannot be accepted, which
include most crucially the absence of any probative evidence which might
support it, have been set out in detail in chapter 7. For purposes of this chapter,
the relevance of these events lies in whether they constitute the moment in
which Persia first claimed the islands as its sovereign territory in opposition to
the Qawásim, and therefore constitute the critical date.
In later years, Persia asserted another argument, which is inconsistent with
the position laid out above in relation to the events of 1887/8. This alternative
argument maintained that Persia had been unopposed in re-establishing its
authority and control over the islands in 1887 and that Britain only took con-
trol away from it in 1903, as part of a plan to improve its military control and
authority in the Gulf under the pretext of defending Qawásim rights.29 This
28 See chapters 1 and 7. As explained in chapter 1, “[I]n accordance with this argument, when
the Persian government dismissed and ousted the Qawásim leaders in Lengeh in 1887 and
no longer could or wished to call on them to perform tax collection or other administra-
tive duties in connection with the islands, it was natural that the Persian government
should at the same time seek to establish direct Persian government control over the is-
lands. It asserts that it was in this context that its reported intention to plant the Persian
flag on the Greater Tunb in 1887 and Abu Musa in 1888 must be understood … It was,
therefore, legally groundless and politically motivated for the British government to have
opposed the extension of direct Persian government control to the islands, including the
intended planting of the Persian flag, on the grounds, or pretext, that they were Qawásim-
owned territory.”
29 See, e.g. Guive Mirfendereski, “The Ownership of the Tonb Islands: A Legal Analysis.”, in
Small Islands, Big Politics. The Tonbs and Abu Musa in the Persian Gulf, ed. Hooshang Ami-
rahmadi (New York: St. Martin’s Press, 1996), 137 (“[I]t may be held that Iran had title to
the Tonbs up to 1903–1904 by virtue of immemorial prescription. However, during these
years, the Sheikh of Sharjah challenged Iran’s sovereignty over the island. This marked the
starting point of the Anglo-Arab claim over the Tonbs by virtue of acquisitive presctip-
tion…”); Kourosh Ahmadi, Islands and International Politics in the Persian Gulf: Abu Musa
and the Tunbs in Strategic Perspective (London and New York: Routledge, 2008), 59. Ahma-
di asserts, but without any supporting evidence, that upon the replacement of the Lengeh
Qawásim rule by direct Persian rule in 1887, Persia had proceeded to rule and administer
Abu Musa and the Tunbs directly. With that in mind, he states that if the British and the
Qawásim of the Arab coast genuinely believed the Qawásim were the rightful owners
of those islands, they should have then protested against the Persian rule, which they
The Period 1887–1971 471
proposition thus suggests that Persia was only dispossessed or lost control over
the islands in 1903/1904 and that its dispute with the Qawásim over ownership
arose, or crystallized, at that time.
The following sections analyze which of these two historical moments are
more accurately described as the critical date in the dispute, and the conse-
quences which flow from a determination in either case.
The Events of 1887/8: Factual Background
The first legally significant point in time for the analysis of possible critical
dates in the dispute over the three islands is the year 1887. As noted in chapter
7, in September of that year the government of Persia re-established its direct
control over the coastal town of Bandar-e Lengeh (“Lengeh”) on the northern
side of the Gulf by expelling the Qawásim rulers who had been established in
Lengeh and its surrounding area since the middle of the eighteenth century
and had come to exercise a form of direct control over the port. Sheikh Kadbib
bin Rashid, the Qawásim Ruler of Lengeh, was arrested by the Persian govern-
ment and imprisoned in Bushire.30
Some scholars describe the Persian government actions in Lengeh, as
well as other assertive actions taken along the Gulf littoral by the Persian
government during the mid to late nineteenth century, as part of a Persian
policy in the Gulf which was implemented in order to “assert Persian su-
premacy to the detriment of the British preponderance there.”31 Under this
narrative, in order to contain Persia and also to restrict its ability to grant
access to the Gulf to potentially hostile European states, most specifically
did not until they seized the islands in 1903 (in the case of Abu Musa and Greater Tunb)
and 1908 (in the case of Lesser Tunb): “[N]either the British nor the sheikhs of the main
branch of Qasimis lodged any protest or took any action with regard to the continuation
of the Persian rule over the dependencies of Lingah, including the three islands, until 1903
and 1908.”; General Assembly, 48th Session, 15th plenary session, October 4, 1993, un Doc.
A/48/PV.15, 37 (Statement of the representative of the Islamic Republic of Iran) (“The fact
that Iranian sovereignty over the islands in question was interrupted between 1904 and
1971 as a result of colonial ploys does not by any means change the status of those islands.
What transpired in 1971 was no more than the reassertion of Iran’s sovereignty over the
islands”.)
Archive Editions, 1993), Vol. 1, 721–726; John G. Lorimer, Gazetteer of the Persian Gulf,
Oman and Central Arabia (Gerrards Cross: Archive Ed., 1986), Vol. 4, 2065–2066.
31 Ahmadi, Islands and International Politics, 33.
472 chapter 8
Russia and Germany, British policy deemed it necessary to control to the maxi-
mum extent possible the maritime spaces in the Gulf as well as the islands
both on the northern shores of the Gulf (including Qeshm, Henjam, Hormuz,
Larak and Kish) and, eventually, those situated in the middle or towards the
southern shores of the Gulf (including Sirri, Abu Musa, Greater Tunb and
Lesser Tunb).32
After taking direct control of Lengeh, the Persian government planted a
flag on the island of Sirri, followed by the seizure and annexation of that is-
land.33 Internal British correspondence reveals a suspicion among the British
government – based initially on rumors which were circulating around Lengeh
at the time – that there was an intention to hoist the Persian flag on Greater
Tunb island as well, but that did not materialize, as corroborated by a Brit-
ish ship sent to the island in early October 1887 to reconnoitre the situation.34
Around the same time, General Hajji Ahmed Khan, the representative in Bush-
ire of the Persian Governor of the Gulf Ports, tried to extend Persia’s influence
to the Sheikhs of Abu Dhabi and Dubai by inducing them to accept Persian
political agents with similar functions as the British Residency Agents.35 These
efforts were not successful.
As discussed in chapter 7, Persia maintained that the Qawásim leaders of
Lengeh were ruling the port, and from there administering the island of Sirri,
as Persian subjects and on behalf of the Persian government and that therefore
the island came under Persia’s direct control as a natural consequence of Per-
sia having divested the Qawásim of their semi-autonomous role in Lengeh.36
These assertions, which were based to a large extent on the unsubstantiated
claim that the Qawásim had been collecting taxes from Sirri on behalf of the
32 Ibid., 33–34.
33 Toye, Lower Gulf Islands, Vol. 1, 722, containing a telegram from the Political Resident in
the Persian Gulf, Bushire to the Foreign Secretary, Simla, dated October 1st, 1887.
34 Ibid. (“Ranger visited Islands Sirri and Tomb. Persian flag flying on former, not yet on lat-
ter.”); ibid., Vol. 1, 726, containing Telegram from the Commander of the Ranger to Political
Resident in the Persian Gulf, Bushire, dated October 1st, 1887 (“Persian flag flying on Sirri,
not on Great Tonb. Remain here till tomorrow morning.”).
Emirates Center for Strategic Studies and Research, 2005), 64; Toye, Lower Gulf Islands,
Vol. 1, 728, containing internal British correspondence of October 1887 reporting on Gen-
eral Haji Ahmed Khan’s communications with the Trucial chiefs of Oman.
36 Cf. Pirouz Mojtahed-Zahed, “Perspectives on the Territorial History of the Tonb and Abu
Musa Islands”, in Small Islands, Big Politics. The Tonbs and Abu Musa in the Persian Gulf,
ed. Hooshang Amirahmadi (New York: St. Martin’s Press, 1996), 45; Guive Mirfendereski,
“Ownership of the Tonbs”, 125–126.
The Period 1887–1971 473
Persian government from the year 1878 through 1887 (see below), were rejected
by the Qawásim as well as the British. The position of the Qawásim was ex-
pressed in a communication of 16 October 1887 from the Ruler of Sharjah to
Colonel Ross, the British Political Agent in the Persian Gulf, upon learning of
the erection of the Persian flag in Sirri and the suspected intention of the Per-
sian government to erect a flagstaff on the island of Greater Tunb:
I have the honour to inform Your Excellency that the Island of Sirri, as is
known to you, is a dependency of the El-Kowasim tribe and that when our
cousins and other relatives were on the Persian mainland, and Lingah was
in their hands, there was no difference between us, our affairs and our prop-
erty were one and the same. Now you have heard of the proceedings of the
Persians, and what they have done at Lingah. After that we learned that
the Persian sent to Sirri erected a flagstaff there, and we had no knowl-
edge of this until after the event. This has done us a grievous wrong, and
since the affairs of the sea are referrible, first to God and then to you, it
had become incumbent on us to report the matter to Your Excellency.
Our earnest hope and extreme desire is that you will exert yourself to
annul this proceeding and cause the removal of the flagstaff. In like man-
ner, according to reports we have received from Lingah, it is said that the
Malik intends to put up flagstaff on the Island of Tomb, and you are aware
that those islands belong to El-Kowasim, in the same way as do the Islands
of Seer-bu-Na’eer, Sirri, and Bu-Musa. We beg therefore you will take effec-
tive measures to prevent this happening, and to frustrate their design of
hoisting their flag on Tomb. For we, the El-Kowasim, will not consent to this
so long as we are in existence, and it is certain disturbances will occur on
the sea if the British Government are indifferent to these matters. I have
therefore submitted this for your information and hope you will send a
reply; and we have full confidence in you, and are at your orders.37
In light of this message from the Ruler of Sharjah, the British requested an
explanation from the government of Persia as to the grounds on which their of-
ficials had annexed Sirri. In reply, Amin-es Sultan (the Persian Governor of the
Gulf Ports and the Prime Minister) asserted that “for the past nine years [i.e.,
1878–1887] Sirri Island and Tonb [emphasis added] have paid taxes to Persian
37 Toye, Lower Gulf Islands, Vol. 1, 732, containing Translated purport of a letter from Sakar
bin Khalid, Chief of Shargah, to Colonel E.C. Ross, Political Resident in the Persian Gulf
and Her Majesty’s Consul-General for Fars, dated October, 10 1887 (emphasis added).
474 chapter 8
Government and that documents in support of Persian claims are at Bushire.”38

As noted in chapter 7, this assertion had no evidentiary support whatsoever,39
a fact that was eventually acknowledged by the P ersian government itself,40
and confirmed by the Ruler of Sharjah.41 The Persian Minister Amin-es-Sultan
later requested to be given more time to supply additional evidence, which
he did in early 1888.42 This evidence was in the form of five brief messages
dated over a two-week period in 1885 from Shaikh Yusuf (the Ruler of Lengeh at
that time) to the Governor of Bushire, some of which made reference to both
Sirri and Greater Tunb.43 Each of these messages has been reviewed in chapter
7, and as concluded there, none of them provides probative evidence which
might support the assertion that the Rulers of Lengeh controlled Greater Tunb,
let alone that Persia held sovereignty over either Sirri or Greater Tunb.
Upon being informed by the British Residency Agent at Sharjah of what the
Persian officials had said about the chiefs of Lengeh ruling Sirri on behalf of
the Persian government, the Ruler of Sharjah once again reiterated his position
38 Ibid., Vol. 1, 736, containing a telegram from A. Nicolson, Esq. (Her Majesty’s Chargé
d’Affaires in Teheran), to Viceroy, Camp, dated December 10, 1887.
39 As discussed at various points previously in this book, the position of the Rulers was that
the islands were owned and controlled by the Qawásim rulers of the Arab coast rather
than their Lengeh-based relatives, whose access and use of the islands was subject to the
permission of the senior tribal leaders in Sharjah and Ras Al Khaimah. The Rulers also
maintained that their ownership and control of the islands pre-dated the establishment
of the Qawásim in Lengeh and that, based on this, even if those Qawásim became Persian
subjects at some point in time for reasons of convenience or protection, the islands could
not be considered as Persian. Finally, they maintained that any administration of the Qa-
wásim from Lengeh over the islands was exercised in their capacity as Qawásim rulers
and not as Persian subjects.
40 Toye, Lower Gulf Islands, Vol. 1, 737, containing a telegram from Political Resident in the
Persian Gulf, Bushire to Foreign Secretary, Calcutta, dated December 12, 1887 (“I have
made inquiry of Malik as to what documents he possesses relative to Persian claims to
Sirri; he declares he has none and that he telegraphed Amin-es-Sultan three days ago
excusing himself from discussing the question with me.”).
41 Ibid., Vol. 2, 12, containing “Translated purport of a letter from the Residency Agent, Shar-
gah, to the Political Resident, Persian Gulf, No. 3”, dated January 18, 1888; ibid., Vol. 2, 12–13,
containing “Statement of the Chief of Shargah, Sakar-bin-Khaled”, dated January 14, 1888.
42 Ibid., Vol. 1, 738, containing a telegram from Her Majesty’s Chargé d’Affaires in Teheran to
the Resident in the Persian Gulf, Bushire, dated December 14, 1887 (“Amin-es-Sultan asks
for a little delay as to island when he will communicate to me Persian case in full. I think
there is no harm in this.”).
43 Ibid., Vol. 2, 3–4, containing internal British correspondence of January 1888 enclosing an
English translation of the five messages.
The Period 1887–1971 475
that the islands of Sirri, as well as Abu Musa, Tunbs and Sir Abu Nu’ayr were
all dependencies of the Qawásim of Oman (that is, those established in Shar-
jah and Ras Al Khaimah) and he supplied the British with three letters from a
succession of three chiefs of Lengeh over the period from 1872 through 1884 in
which they each acknowledged that any use of Greater Tunb by those chiefs
was subject to the permission of the Qawásim rulers of Sharjah, who were its
rightful owners.44
After the various exchanges with Persian officials concerning Sirri cited
above, the British government sent a formal communication to the Persian
Ministry for Foreign Affairs in March 188845 to request explanations “on what
ground the Persian Government have annexed [the island of Sirri] which is
the property of the Joasimee Chiefs who are under British protection.”46 The
Persian Ministry for Foreign Affairs replied by making reference to the same
kind of unsubstantiated arguments regarding the payment of taxes and the as-
sertion that the island was a “dependency” of the government of Lengeh. With
respect to the submission of documentary proof of its ownership, however,
the Persian Ministry for Foreign Affairs provided nothing, stating instead that
Persia’s ownership of the island was so obvious that no proof was required.47
From the various correspondence described above it is noticeable that the
parties seemed at times to have been communicating somewhat at cross-
purposes. While the only initial assertion of sovereignty made by Persia was in
relation to Sirri (the hoisting of its flag there), the Qawásim leader responded
to this by confirming the Qawásim claim of ownership to both Sirri and Greater
Tunb. And while the British challenged Persia’s claim to Sirri, the Persian gov-
ernment replied by providing its evidence (the claim of tax collection and the
five brief messages from 1885) which in certain cases referenced both Sirri and
Greater Tunb. An exception was the last exchange noted above, in which the
British government requested evidence of the Persian claim over Sirri, and the
Persian Foreign Ministry replied in terms referencing Sirri alone. This leaves
the question whether Persia had asserted any claim to Greater Tunb at this
44 The three letters date from 1872, 1877 and 1884. See Toye, Lower Gulf Islands, Vol. 2, 12–13.
See chapter 7 for an analysis of these and other letters of the Qawásim.
45 Ibid., Vol. 2, 22, containing a letter from Her Britannic Majesty’s Legation, Teheran, to the
46 Ibid.
Britannic Majesty’s Legation at Tehran, dated March 10, 1888 (“[T]here is no doubt that
the dependencies of the Province of Fars are all subject to the jurisdiction of Fars. Since
this proof from its extreme conclusiveness does not require any other proof, I do not at
present trouble you with other proofs which are numerous.”).
476 chapter 8
time unresolved and murky at best. Moreover, up to this point, no reference or

claim at all had been made to Abu Musa or Lesser Tunb.
In the midst of these events, a Persian General, Haji Ahmed Khan, was said
to have prepared a report regarding the status of several Gulf islands for the
Persian Prime Minister. The report, which was said to have recounted infor-
mation the General had gathered from inhabitants of Sirri and Greater Tunb
on the status of the two islands and other islands in the Gulf and which also
contained a summary of the enquiries the General had made himself on the
contention of Colonel Ross, the British Political Resident in the Gulf, that “the
islands of Sirri and Tonbs are dependencies of the Joasmees of Oman”,48 was
handed “privately” to Colonel Ross in April 1888 by an unidentified party. The
privately obtained report (the transmission of which Colonel Ross noted the
Persian authorities “should not become aware of”49) set out various grounds –
principally founded on statements contained in the 1870 edition of the nauti-
cal survey, The Persian Gulf Pilot, which stated the authors’ view that the chief
of Lengeh held “authority over” various Gulf islands, including the three dis-
puted islands – which were said to support the Persian government claim of
ownership over Sirri, Greater Tunb and other Gulf islands, and also made refer-
ence to Abu Musa by simply disavowing the Qawásim claim over the island.50
The immediate reaction of the British to the contents of this report was
that it contained “nothing new” with respect to the asserted grounds of Per-
sia’s claimed ownership over Gulf islands, and that the apparent claim to Abu
Musa had “no justification whatever” and that “[a]ny attempt to assert Per-
sian authority there in a practical form would probably lead to disturbances.”51
In commenting on the General’s reliance on The Persian Gulf Pilot, which the
report quoted verbatim at length, Colonel Ross noted: “The book ‘Persian Pi-
lot’ is a nautical not a political compilation and statements in it about s tatus
of various places cannot be considered authoritative.”52 In any case, given
the manner by which the report was obtained, and that up to that point no
48 Ibid., Vol. 2, 30.

49 Ibid., Vol. 2, 28.
50 Ibid., Vol. 2, 28–29, 347–348, containing a letter from Colonel Ross to Sir Drummond Wolff,
Minister Plenipotentiary to Teheran, dated April 28, 1888. Ibid., Vol. 2, 74 (mentioning the
internal Persian report with the claim to Abu Musa). The contents of the 1870 edition
of The Persian Gulf Pilot, and the reasons why the statements set out therein related to
the control of the islands are not necessarily of probative value, have been noted and
explained in chapter 7.
51 Ibid., Vol. 2, 28–29, containing a letter from Colonel Ross to Sir Drummond Wolff, Minister
Plenipotentiary to Tehran, dated April 28, 1888.
52 Ibid.
The Period 1887–1971 477
formal or unambiguous claim to the Tunbs (or Abu Musa) had ever been made
by Persia, the British did not reply to the report or the inferences made in it.
Some commentators who support the Iranian claim over the islands point to
the absence of any British reply to the report, or to the other assertions made
by Persia that could be interpreted as inferring a Persian claim over Greater
Tunb (the alleged tax payments and the brief messages of 1885) as an indica-
tion that Britain did not contest Persia’s ownership of that island, but rather
only contested Persia’s claim over Sirri.53 Such a supposition is difficult to ac-
cept. Other than the rather obvious point that the British could not reply to the
internal (and privately obtained) report which had not been officially given to
them, the most self-evident reason for this is that neither that report nor any
of the other communications in fact asserted a specific claim to Greater Tunb
(or Abu Musa). Nor had any acts of sovereignty been exercised on either of
these islands by Persia, whether in furtherance of any such communications
or otherwise. That Persian actions in 1887/8 had been limited to an assertion of
sovereignty to Sirri is also clear from the response of the Persian Ministry for
Foreign Affairs to the British government in March 1888 noted above, which
was confined to asserting Persian sovereignty over that island.54
This point was made by the British government in a subsequent memoran-
dum, which noted that the reason why no express representation was made
with respect to the island of Greater Tunb in its correspondence with the Per-
sian government at the time of the events of 1887/8 was because there had
not been “any overt action … taken by Persia in the case of Tamb”.55 On the
contrary, the British position that Greater Tunb, as well as Sirri and Abu Musa,
belonged to the Qawásim rulers of Sharjah and Ras Al Khaimah is clear from
the British exchanges with Persia concerning Sirri, an island that had a similar
status as that of Greater Tunb, and from the various contemporaneous internal
British communications, together with the correspondence of the British with
the Qawásim rulers cited above. Indeed, a British government memorandum
written by the British Political Resident in the Persian Gulf in May 1895 empha-
sized the notion that, in Britain’s view, the Qawásim rulers of the Arab coast
53 Mirfendereski notes that notwithstanding these references to Greater Tunb, “The British
Government decided however to confine their representations solely to Iran’s actions on
Sirri Island.” Mirfendereski, “Ownership of the Tonb Islands”, 128.
eign Affairs to Her Britannic Majesty’s Legation at Tehran, dated March 10, 1888.
55 Ibid., Vol. 4, 123, 125, 130, containing “India Office, Status of the Islands of Tamb, Little
Tamb, Abu Musa and Sirri”, dated August 24, 1928, citing to a telegram from the Political
Resident to the Government of India, dated November 15, 1887.
478 chapter 8
had obtained ownership of all of the Gulf islands in question prior to their set-
tlement in Persia during the eighteenth century and that therefore any claim
to those islands by Persia ostensibly on the grounds that the Qawásim leaders
who came to rule in Lengeh eventually fell under the authority of the Persian
government was misplaced:
[T]he circumstances attending the assertion of Persian authority over the

Island [of Sirri], and the mode in which it was effected in 1887, certainly
do not point to a long established and well recognized possession which
had been effectively exercised by the lease of the revenues in years imme-
diately preceding. In September of 1887 an armed party with two small
cannon was sent to erect a flagstaff and to hoist the Persian flag on Sirri,
and this proceeding certainly has not the appearance of an ordinary inci-
dent in the course of a long maintained possession.
It has constantly been alleged on the part of the Persian Government
that Persian possession has been quite independent of the Joasmees, who
have held authority on the Persian coast and that it has been exercised
independently of them, but there has been no proof of these allegations…
The conclusion from these historical facts is certainly not that the Joas-
mees having obtained a footing on the Persian coast, thence derived an
authority over outlying islands, but rather that they carried with them
to their new settlement a possession in the islands which they already pos-
sessed; and the fact that a section of these Arab intruders later acquired
the status of Persian subjects, and held their authority on the coast in
subordination to the Persian Government as local Chiefs or Governors,
cannot affect any original rights the tribes may have held in common.56
56 Ibid., Vol. 2, 196–197, containing a Memorandum from F.A. Wilson, Political Resident, Per-
sian Gulf, dated May 23, 1895 (emphasis added). See also, ibid., Vol. 2, 495–496, containing
a Memorandum from Colonel Wilson to Sir M. Durand, Bushire, dated May 1895, which
recounted: “[T]here has been no proof [of Persian] allegations. Thus the Amin-es-Sultan
informed Her Majesty’s Chargé D’Affaires in December 1887 that Sirri and Tamb had paid
taxes to the Persian Government for nine years previously, and that documents in sup-
port of Persian claims were at Bushire. Yet the then Resident, Colonel Ross, was at once
informed by the Malik-ul-Tujiar, who was Governor at Bushire at the time, that he had no
such documents. The proofs of the former dependence of Sirri on Persian authority which
were asked for by Her Majesty’s Legation in March 1888, have also not been given. On the
other hand, it is certain that the condition of the Joasmees on the Persian coast in past
times was not that of ordinary subjects nor were their Chiefs who held authority there in
the position of Governors, such as are usually subordinate to a paramount Power.”
The Period 1887–1971 479
There is little probative evidence which has come to light concerning Abu
Musa or either of the Tunbs for at least a decade following the receipt by the
British of the private report prepared by General Haji Ahmed Khan discussed
above.
The Events of 1887/8: Is This the Critical Date of the Dispute?
Abu Musa
As seen from the historical review of the events of 1887/8 set out above, no
claim to Abu Musa appears to have been formally made by Persia at that time.
Although the British learned of Persia’s apparent pretensions of ownership over
the island, they did so only through an unofficial document privately obtained
by Colonel Ross, which, at the time, the Persian government was not aware had
been transmitted to the British.57 Moreover, the reference to Abu Musa in that
document does not positively state Persia’s claim, but rather simply contests
that the claim of the Qawásim is well-founded. As a report prepared by the law
firm Bathurst, Ely and Chance for the Ruler of Sharjah in September 1971 noted:
The [Persian] report was however an unofficial private document that

cannot be interpreted as a claim to Abu Musa. Had the Iranian Govern-
ment considered there to be any merit in such a claim, no doubt they
would have raised the point at that time, instead of referring only to Sirri
and Tanb.58
Additionally, there is no evidence that the Persian government followed up any

supposed assertion of ownership by formally raising a claim to the island of
Abu Musa (whether directly with the Qawásim or with the British) or by seek-
ing to exercise any acts of sovereignty on the island itself, which would have
been required under international law to stake a claim to sovereignty.59 In that
57 Toye, Lower Gulf Islands, Vol. 2, 28–29, 347–348, containing a letter from Colonel Ross to
Sir Drummond Wolff, Minister Plenipotentiary to Tehran, dated April 28, 1888. Ibid., Vol.
2, 74 (mentioning the internal Persian report with the claim to Abu Musa).
58 M.E. Bathurst, Nortchutt Ely and Coward Chance, Sharjah’s Title to the Island of Abu Musa
(London: Unpublished study for the Ruler of Sharjah, September 1971), ii, 106, cited in
Mattair, Three Occupied uae Islands, 69.
59 Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 51 (“There must, however, remain
considerable doubt whether a total absence of physical occupation can be reconciled
with a claim of sovereignty over a territory, except in those cases where the character of
the territory or other special circumstances connected with it can reasonably account for
480 chapter 8
respect, it is noteworthy that in subsequent correspondence concerning the

sovereignty dispute over the islands, the Persian Minister for Foreign Affairs
did not even refer to the events of 1887/8, but rather made reference to a noti-
fication of the Persian claim to Abu Musa and the Tunbs which was made in
1903/1904:
According to information received, His Majesty’s Consul-General at

Bushire has attempted to hire the Red Oxide existing in the Islands of
“Tamb” and “Abu Musa” from the Sheikh of Shargah. Owing to the right
of sovereignty (proprietorship) of the Persian Government in these two
islands, of which notification was made to His Majesty’s Legation in the year
1321 (1903–1904), I request your Excellency to be so good to cause the prop-
er authorities to abstain from meddling with this proposed illegal lease.60
The above notwithstanding, a number of scholars who support the Iranian

claim over Abu Musa maintain that the fact that no protest was issued by the
British Government to the contents of the internal (and privately obtained)
Iranian report, including its assertion that Abu Musa was not under the own-
ership of the Qawásim, and the resulting inference that it was therefore under
Persian sovereignty, constitutes British acquiescence in or recognition of Iran’s
sovereignty over the island.61 Such an argument is not persuasive under pre-
vailing principles of international law. Indeed, it turns applicable international
such a situation.”) (emphasis in original); Legal Status of Eastern Greenland, pcij Ser A/B
No. 53 (1933), 45–46 (“[A] claim to sovereignty based not upon some particular act or title
such as a treaty of cession, but merely upon continued display of authority, involves two
elements each of which must be shown to exist: the intention and will to act as sovereign,
and some actual exercise or display of such authority.”).
60 Toye, Lower Gulf Islands, Vol. 3, 457, containing a letter from the Persian Minister for For-
eign Affairs to His Majesty’s Minister, dated May 23, 1923 (emphasis added).
61 Mirfendereski states, for example, that the British Government “having obtained a copy
of the report through ‘private’ channels, did not object to the contents of the report.” Mir-
fendereski, “Ownership of the Tonb Islands”, 128. See also, Davoud H. Bavand, “The Legal
Basis of Iran’s Sovereignty Over Abu Musa Island”, in Small Islands, Big Politics. The Ton-
bs and Abu Musa in the Persian Gulf, ed. Hooshang Amirahmadi (New York: St. Martin’s
Press, 1996), 89 (“The British government also did not react adversely to the discovery that
Abu Musa had been mentioned as an Iranian island in an Iranian government document
(1888), which demonstrates that the discovery was in conformity with the established,
longstanding, and uncontradicted view that Abu Musa was politically and territorially an
Iranian island.”).
The Period 1887–1971 481
law principles on their head. As discussed above, the contents of the report not
only did not assert a positive and unambiguous claim of sovereignty to Abu
Musa, but the report itself was not formally transmitted by the Persian govern-
ment to the British government or to the party which had claimed ownership
over the island, the Qawásim rulers. Moreover, it was not followed by any acts
on the island à titre de souverain on the part of Persia. In light of this, there
can be no acquiescence or recognition by the British on behalf of the Ruler
of Sharjah of the alleged Persian claim over Abu Musa as, in the absence of a
claim and any acts à titre de souverain on the part of Persia, a protest was not
called for.62
Under such factual circumstances, not only was the report lacking the re-
quirements needed to constitute a recognizable claim by Persia to sovereignty
over the island, but on the contrary, as the Qawásim had exercised sovereign-
ty over Abu Musa for some years prior to 1887 and as the report reveals that
the Persian government was fully aware of the Qawásim claim of ownership,
if anything the contents of the report (disavowing Qawásim ownership) may
have reflected an effort by Persia to avoid the consequence of its failure to ob-
ject to those displays of sovereignty as constituting its own acquiescence to the
Qawásim claim. In this respect, however, the report cannot be considered an
effective protest as it was not “unambiguously made” or “effectively commu-
nicated”, nor indicates why Persia considered the Qawásim claim to allegedly
be invalid.63 The result of its failure to protest therefore may, in the words of
Fitzmaurice, have amounted to Persia’s “acquiescence in, or an admission of
the validity of, the claim of the other party to the dispute” or “an admission …
of the non-existence of the title of the non-protesting party.”64 Even if the
report was somehow deemed to comply with the requirements of a valid pro-
test, due to the conclusion reached in chapter 7 that the Qawásim had already
established title over Abu Musa prior to 1887, such a protest would have been
“devoid of legal effect” since “the rights in defence of which it is made do not in
fact pertain to the protesting State.”65
The conclusion that Persia did not lodge a proper claim or protest in 1887/8
to the Qawásim claims and displays of sovereignty over Abu Musa, despite its
62 Cf. Jennings, Acquisition of Territory, 36; James Crawford, Brownlie’s Principles of Public
International Law, 8th ed. (Oxford: Oxford University Press 2012), 233. See also, Sovereignty
over Pedra Branca/Pulau Batu Puteh, Middle rocks and South Ledge (Malaysia/Singapore),
icj Reports 2008, 42, para. 121.
64 Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 59, 59–60.
65 MacGibbon, “Some Observations”, 296–297.
482 chapter 8
awareness of those matters, does not mean that the dispute over sovereignty
to the island did not crystallize at that time, or that the critical date did not
arise out of these events. On the contrary, the contents of the internal Persian
report (acknowledging the Persian government’s awareness of the Qawásim
claims over Abu Musa and reflecting Persia’s rejection of those claims) and
the emphatic claims of ownership over Abu Musa which at the same time
the Qawásim had reiterated in the midst of and in response to those events,
including most prominently the hoisting of the Persian flag on Sirri island,
would appear to mark “the commencement of the dispute”, or the date “when
the dispute ‘crystallized’ into a definite issue between the parties as to territo-
rial sovereignty”, notwithstanding the absence of any formal claim to the is-
land by Persia.66 In either of such circumstances, the critical date could be
viewed as having occurred, with the result that “time is deemed to stop at
that date”67 in assessing the respective rights of the disputing parties. Since,
as noted at the beginning of this chapter, the Qawásim held title to Abu Musa
at this critical date, they would still have it now (or as stated by Fitzmaurice,
“[w]hatever were the rights of the Parties then, those are still the rights of the
Parties now”68), unless some change in the legal position occurred thereafter.
Whether any such change occurred prior to 1971 is analyzed below in this chap-
ter, and whether any other change may have occurred after 1971 is analyzed in
chapter 9.
The Tunbs
With respect to the Tunbs, as noted above, there is no evidence of any overt ac-
tion by the Persian government on either of those islands during the events of
1887/8 as there was on Sirri, and looking closely at the correspondence between
the British and the Persian governments, including the official correspondence
with the Persian Ministry for Foreign Affairs of March 1888, it is clear that no
formal or unambiguous claim was made to the Tunbs by Persia either. While it
may be suggested that the informal exchanges with Persian officials in which
they asserted that for the “past nine years Sirri island and Tomb have paid taxes
to Persian Government”,69 somehow constituted a claim to Greater Tunb, such
an assertion does not appear to rise to the level of a formal and direct claim
66 As noted by Fitzmaurice, the critical date in a territorial dispute does not have to coincide
with the date on which the “challenging or plaintiff State first makes a definite claim to
the territory”. Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 23.
68 The Minquiers and Ecrehos Case (France/United Kingdom), icj Pleadings, Vol. ii, 64
(speech of Sir Gerald Fitzmaurice).
69 Toye, Lower Gulf Islands, Vol. 1, 736 (emphasis added).
The Period 1887–1971 483
of sovereignty, less so as the Persian government eventually admitted there

was no proof of such tax payments.70 The conclusion that Persia did not as-
sert a formal claim to either of the Tunbs around the events of 1887/8 is also
indicated by the passage quoted above by the Minister for Foreign Affairs of
Iran in 1923, in which he tied Persia’s claim to Greater Tunb to a notification
made to the British in 1903–1904 (albeit on the apparent, and untenable, basis
that Persia had exercised sovereignty over the island prior to the hoisting of
the Arab flag on the island in 1903).71 Even if it can be said that a claim to the
Tunbs was made in the informal exchanges between Nicolson and Ross on the
British side and Malik and Amin-es-Sultan on the Persian side, as Fitzmaurice
indicates, if a claim is limited to a mere paper or verbal claim and is then “con-
tradicted by, or inconsistent with the acts of, the State concerned, positive or
negative – i.e. including omissions or failure to perform certain acts – it is the
acts or omissions that are, in law, to be regarded as representing the true at-
titude of the State.”72 Thus, the fact that Persia – at the time of these informal
exchanges with the British concerning the Tunbs – did not follow these up by
attempting to plant a flag on the islands (as it had indicated was necessary to
do in all its “dependencies” in the Gulf Ports73) or exercising any other act of
sovereignty as it did on Sirri, has legal significance. Its legal significance is that
the Persian claim “can be said to be, or become, a ‘paper’ one”. As explained by
Fitzmaurice: “[i]t is not the mere fact of being on paper that makes it so, but
that of only being on paper, or of being nullified by more concrete facts that are
not merely on paper.”74 Added to this is the fact that in the informal exchanges
over Sirri and the Tunbs, the Persian officials were aware of the British position
that both islands were under the ownership of the Qawásim of Sharjah and Ras
Al Khaimah, yet they still did not take any steps to formally assert sovereignty
in response to that position.75
70 Ibid., Vol. 2, 196–197, containing a memorandum from British Political Resident, Persian
Gulf, dated May 31, 1895.
71 Toye, Lower Gulf Islands, Vol. 3, 457, containing a letter from the Persian Minister for For-
eign Affairs to His Majesty’s Minister, dated May 23, 1923.
72 Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 64, n. 1 (emphasis in original).
eign Affairs to Her Britannic Majesty’s Legation at Tehran, dated March 10, 1888 (“From
olden times it was not deemed necessary to set up a flagstaff at any of the ports of the
Persian Gulf. It is now some time that, having deemed it necessary, they have set up flag-
staves in all the ports; and they have also done the same at the Island of Siri, which is a
dependency of Lingah.”).
74 Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 64, n. 1 (emphasis in original).
75 Toye, Lower Gulf Islands, Vol. 2, 30–43, containing “Exchange of correspondence between
Hajji Ahmed Khan and the inhabitants of Tunbs and Sirri islands”, dated April 1888.
484 chapter 8
One Iranian author maintains that Persia “did not erect a flag or a garrison
on the Tonbs as she had done on Sirri” because “it relied upon Britain’s conduct
and in so doing may have acted in detriment of its interests” which “may result
in estoppel or preclusion of the Anglo-Arab claim to the Tonbs” or, regardless
of detrimental reliance, at least trigger the application of the “maxim allegans
contraria non est audiendus”, excluding evidence that is contradictory.76 The
British “conduct” that this Iranian author refers to includes certain acts and
omissions which in the author’s view shows that the British considered the
Tunbs as Persian territory, thus making it unnecessary for Persia to take any
affirmative steps to claim its own territory. Most specifically, these acts or
omissions included: (i) the previously-mentioned lack of protest by Britain re-
garding Greater Tunb despite the Arab Ruler’s concerns about possible Persian
intentions to seize it in 1887 as they had done at Sirri; (ii) the contents of cer-
tain documents held by the British Residency at Bushire which reflect the view
of certain officials that the islands were administered by the Qawásim rulers
of Lengeh (not those of Sharjah and Ras Al Khaimah) and that they therefore
fell under Persian control;77 and (iii) the “depiction of the Tonbs as Iranian ter-
ritory” on an 1886 British War Office Map of Persia handed to the Shah by the
British in 1888.78
Such assertions raise two questions.
(a) Evidence of Persian Ownership of the Tunbs

The first question is whether any such “conduct” or documents constitute evi-
dence that might refute the findings set out in the previous chapter that own-
ership of all three of the disputed islands was held by the Qawásim prior to
and in 1887. This question must clearly be answered in the negative. Taking the
points in turn:
Absence of Protest
Just as in the case of Abu Musa, and as noted above, Persia did not in fact make
any formal claim to the Tunbs in 1887/8 nor exercise any acts of sovereignty
on the islands which would have called for the lodging of a protest by Brit-
ain. Indeed, not only did the British make it known to the Persian government
at the time that Britain considered the Tunbs to belong to the Qawásim, but
it challenged the claim made by Persia that it had raised taxes from Greater
Tunb during the previous nine years (the communication of that assertion by

77 Mirfendereski, “The Tamb Islands Controversy”, 391–395.
78 Mirfendereski, “Ownership of the Tonb Islands”, 129. The significance of the 1886 map is
discussed below in this chapter and further in chapter 10.
The Period 1887–1971 485
Persia being the only grounds which might be considered to have constituted
a “claim” of ownership to the islands), a claim which the Persian government
eventually conceded was unsupported by any evidence. Thus, the absence of
a formal protest by Britain cannot under the circumstances be regarded as an
indication that it had acknowledged Persian ownership of the Tunbs, let alone
constitute probative evidence that Persia was in fact the sovereign owner of
the islands. Simply put, no protest was called for under those circumstances
and the failure to have protested does not therefore have any legal effect. More
to the point, however, is that in the absence of any positive evidence that Persia
had at any time up to and including 1887/8 taken any steps recognized under
international law as leading to the acquisition of title over the Tunbs, the sug-
gestion that the supposed “failure” of Britain to lodge a protest against what
was clearly an unasserted claim might somehow otherwise result in bestowing
title on Persia is an untenable proposition.
Inconsistent Internal British Documentation

When looked at closely, certain documents generated and maintained internal-
ly at the British residency at Bushire do evince a confusion as to the ownership
of the islands, to the effect that the Tunbs were administered and controlled by
the Qawásim rulers of Lengeh and that therefore they came under Persia’s ulti-
mate control. But that confusion emanated chiefly from certain reports related
to events which occurred in 1873 described in chapter 7, the probative value
of which, as explained in that chapter, cannot be considered reliable. In any
case, the misconceptions regarding the ownership and control of the Tunbs
reflected in those reports were clarified in numerous other contemporaneous
documents, including the letters which established the rights of the Qawásim
chiefs of Sharjah and Ras Al Khaimah over the Tunbs which were provided by
the Residency Agent at Sharjah.79 These letters, written to the Sheikh of Ras Al
Khaimah by three successive Sheikhs of Lengeh, contained admissions by all
three that the Tunbs belonged to the Qawásim of Sharjah and Ras Al Khaimah
and that the inhabitants of Lengeh could not use the islands without having
the Qawásim Ruler’s prior permission.80 This, and the other documentary evi-
dence regarding the ownership of the Tunbs which pre-dates 1887 which has
been reviewed in the previous chapter, make clear that the Qawásim rights of
ownership over the Tunbs were established at that time and acknowledged by
the British government, despite the contradictory views reflected in certain of
those other internal British documents. Finally, it bears repeating that there is
ship of Certain Islands in the Persian Gulf”, undated, 25, 27.
80 Ibid., 28. See chapter 7 for the text of the letters.
486 chapter 8
a total absence of any positive evidence that Persia had at any time up to and
including 1887/8 taken any steps recognized under international law as leading
to the acquisition of title over the Tunbs. This evidence is determinative and
cannot simply be cured by internal British documentation which suggests that
certain British officials misunderstood the ownership status of the islands.
The 1886 British War Office Map

To buttress its arguments on its sovereignty over the islands of Sirri, Abu Musa
and the Tunbs, Iran has pointed to an 1886 British War Office Map that was
handed to the Persian government in July 1888 by the British government and
which shows these four islands marked in the same color as the Persian land-
mass. On this, one Iranian author explains:
The Iranian action on Sirri Island in September 1887 and the Sheikh of
Sharjah’s concern that the same may be repeated on Great Tonb were
followed by the presentation of the Map of Persia to the Shah in July 1888.
The presentation of the map was trumpeted as a gesture to satisfy the
monarch’s request for geographical information. Yet this gesture, made
at the time of Anglo-Iranian negotiations about the Iran-Afghanistan
boundary, probably was intended to induce the Shah to interpret politi-
cally the information about the Iran-Afghanistan border as Britain would
have liked the border to be delimited.
The information on the Map of Persia about Sirri Island had been
consistent with Iran’s view that the island had belonged to Iran. Further,
the map coming almost a year after the Iranian action on Sirri also vali-
dated the action in spite of the various protests that Britain was lodging
in Tehran. Ultimately, Britain’s recognition of Iran’s sovereignty over Sirri
confirmed the Iranian claim to Sirri, recognized the validity of the Irani-
an action, and agreed with the Iranian interpretation of the information
about the sovereignty of the island as depicted on the Map of Persia. Simi-
larly, the inaction or lack of protest on the part of the British government
regarding the Sheikh of Ras al-Khaimah’s concern about Great Tonb,
Iran’s statement of claim to the Tonbs and the depiction of the Tonbs as
Iranian territory on the map all were consistent with and necessary con-
sequences of Britain’s recognition of or acquiescence to Iran’s ownership
of the Tonbs.81
Notwithstanding these arguments, the 1886 British War Office map does not
constitute persuasive or positive evidence of Persian ownership of the Tunbs
81 Mirfendereski, “Ownership of the Tonbs Islands”, 129 (emphasis in original).

The Period 1887–1971 487
which might outweigh the direct evidence of Qawásim ownership (and the
total absence of evidence of Persian ownership or connections to the islands)
set out in chapter 7. The first consideration in this regard is the unreliability
of map evidence in general, a topic which is reviewed in detail with respect
to numerous eighteenth, nineteenth (including the British War Office map)
and twentieth century maps depicting Abu Musa and the Tunbs as either Ira-
nian or Arab (or neither) in chapter 10. As will be shown in that chapter, this
evidence leads to contradictory and misleading results, including with respect
to the 1886 map, which is included as Figure 10.25. A number of further con-
siderations highlight that particular map’s unreliability as evidence of Persia’s
sovereign ownership of the disputed islands. These include its inconsistency
with Britain’s own position on the ownership of the islands and Sirri, as articu-
lated in various documents dated prior to and following the production of the
1886 map which are cited above, as well as the historical evidence showing that
after the presentation of the map to the Shah, the British recognized the error
it contained and repeatedly emphasized to Persian officials a position on own-
ership of the islands directly contrary to the depiction on the map. In a later
confidential India Office note regarding the status of the islands, this depiction
was described as an “extremely regrettable” error which could not, however,
“be regarded as of substantial importance in view of the consistent repudia-
tion, before and after the dates mentioned, of the Persian claim.”82 As with the
Bushire documents mentioned above, the existence of an inaccurate British
map, which the British had themselves renounced, does not cure the absence
of evidence which would otherwise validate an asserted Persian acquisition of
title over the islands. One further point to stress about the 1886 Map of Persia
is the fact that, because the Rulers of Ras Al Khaimah and Sharjah were at no
time aware of the map nor gave their consent to it, the error in the coloring
by the British government can in no way prejudice the Rulers’ position with
respect to their sovereignty over the islands.
(b) Acquiescence
The second question raised by the circumstances surrounding the British “con-
duct” in question (the absence of protest, the inconsistent internal documen-
tation and the presentation of the 1886 British War Office map) is whether any
of these matters could be said to have led the Persian government to conclude
that it was not necessary to assert a formal claim of sovereignty or otherwise
exercise state acts on or in relation to the Tunbs in order to establish its rights
of title, and that as a result of this reliance the Qawásim were estopped or
82 Toye, Lower Gulf Islands, Vol. 4, 129, containing “Status of the Islands of Tamb, Little Tamb,
Abu Musa, and Sirri,” confidential India Office Memorandum, dated August 24, 1928.
488 chapter 8
precluded from asserting their claim to sovereignty after 1887/8. These asser-
tions are unpersuasive for several reasons.
First, there is no evidence which the authors have located that indicates
or suggests that the failure of Persia to assert a claim or take any sovereign ac-
tions on the Tunbs in 1887/8 was somehow due to any such British conduct or
statements, or which would otherwise indicate that Persia acted, or abstained
from acting, in reliance on that conduct or those statements in any manner
whatsoever. Thus, the assertion of detrimental reliance is unsupported by evi-
dence and must be regarded as nothing more than conjecture.
Second, the notion that Persia concluded that it was unnecessary to lodge
a formal claim to the islands or take any acts of sovereignty there for any of
these reasons does not stand up to scrutiny. With regard to the asserted “fail-
ure” of Britain to lodge a formal protest against perceived Persian designs on
Greater Tunb, as noted above, the Persian government never asserted a formal
claim to Greater Tunb nor took any other acts of sovereignty on the island,
and for those reasons a British protest was simply not called for. To contend
that Britain acquiesced to Persian rights of ownership over Greater Tunb by
a failure to protest in circumstances in which Persia neither made a formal
claim of ownership nor could point to any other evidence supporting its right
of title is far-fetched and lacking credibility. As for an asserted reliance on any
internal British documentation which might have suggested that the British
held inconsistent or unformed views on the ownership of the Tunbs at some
point prior to 1887, none of these documents were ever communicated to the
Persian government, they only having come to light with the modern publica-
tion of British archival materials. They could not, therefore, have formed the
basis of any reliance by Persia nor led the Persian government to take or refrain
from taking any action whatsoever in 1887/8, and it is therefore a moot or false
point whether Persia relied on such documentation to its detriment at that
time. Finally, with respect to the 1886 British War Office Map of Persia, any reli-
ance on it would also have been unreasonable as it contradicted the position of
the British government on the ownership of Sirri and other Gulf islands about
which the Persian government was fully aware. Indeed, shortly after receiving
the map, the Shah himself complained about the inconsistency of the map’s
coloring of the islands in the color of the Persian mainland while, at the same
time, the British “put forward claims in favor of those islands belonging to the
Beni Jevasem [Qawásim].”83 Accordingly, any asserted detrimental reliance by
Persia on the map also lacks credibility.
The final, and perhaps most obvious, point with respect to the assertion of
British acquiescence derived from the above-mentioned matters is that none

The Period 1887–1971 489
of the British acts or omissions which are said to have reflected the view of
the British government that the Tunbs were Persian territory reflected the
conduct or views of the Qawásim and could not therefore bind or estop them
from maintaining their claim of ownership over the Tunbs. As the evidence
reviewed above demonstrates, the Qawásim forcefully maintained their claim
of title over the Tunbs prior to and throughout the events of 1887/8. Thus, even
if British acquiescence could be established, that would not lead to a conclu-
sion that the Qawásim themselves acquiesced to this assertion, or much less
that the Qawásim were then estopped from maintaining their own ownership
rights.
...
Notwithstanding the absence of any formal claim or assertion of sovereignty
over the Tunbs in the midst of the events in 1887/8, can these events still be
considered as marking the critical date with respect to the sovereignty dispute
over the Tunbs? Although there wasn’t a formal claim to the Tunbs by Persia
followed by any overt assertion of rights of sovereignty over those islands, the
main arguments of both parties to the sovereignty dispute had been articu-
lated by then, as a number of exchanges between Persian and British officials
concerned both the islands of Sirri as well as Greater Tunb. It could then be
said – although not with absolute certainty – that the events of 1887/8 with
respect to the Tunbs constitute the critical date as they reflect, just as in the
case of Abu Musa, the commencement of the dispute between the parties and
the moment when their positions as to territorial sovereignty started to crystal-
lize into a definite issue between them.84 Assuming these events marked the
critical date, then it was the situation that prevailed at that particular moment
that must serve as the “legal criterion and yardstick by which the merits of the
conflicting parties’ alleged rights” have to be measured.85
As was the case with Abu Musa, analyzing the comparative ownership rights
over the Tunbs islands in 1887/8 of Persia, on the one hand, and the Qawásim
of Sharjah and Ras Al Khaimah, on the other, does not favor Persia. The evi-
dence pertaining to the balance (or imbalance) of rights between the parties
on this date, showing that the Qawásim had previously carried out acts of ef-
fective occupation sufficient to establish title over the islands while there is no
recorded history of the Persian government ever having exercised any direct
control or acts of jurisdiction or administration over the islands nor having
previously asserted any claim of ownership, has been analyzed in detail in the

85 Yehuda Z. Blum, Historic Titles in International Law (New York: Springer, 1965), 209.
490 chapter 8
previous chapter and will not be repeated here. Bearing in mind these conclu-
sions, however, if 1887/8 did indeed mark the critical date in the dispute over
ownership of the Tunbs islands, then the rights of ownership held at that time
by the Qawásim would have been established as and when the dispute first
crystallized and would have continued in effect thereafter, thus prevailing over
any subsequent claim or assertion of sovereignty by Persia unless some change
in the legal position leading to a loss of those ownership rights can be shown
to have later occurred.
While a fairly persuasive case may thus be made that the events of 1887/8
marked the critical date in the dispute over Abu Musa and the Tunbs, an as-
sessment of the events of 1903/4 (which as noted earlier some supporters of
the Iranian claim over the islands insist constitutes the critical date in the dis-
pute) will be reviewed in the following section to determine whether that date
may more accurately be marked as the critical date and whether on that date
the respective legal positions of the parties had changed, and if so the legal
consequences which would follow such a determination.
The “Flag Incident” of 1903/4: Factual Background
Many of the relevant facts surrounding the so-called “flag incident”, which re-
fers to the removal of the Arab Rulers’ flag and the planting of the Persian flag on
Abu Musa and Greater Tunb in 1904 by customs agents apparently acting pursu-
ant to the instructions of the Persian government, were reviewed in chapter 2.
In short, the “flag incident” arose at the end of March 1904, when those customs
officials (who were Belgian customs agents appointed to manage the Persian
customs authority in connection with loans granted by E uropean countries to
the Persian government which had been secured through an assignment of
Persian customs revenues), landed on Abu Musa and Greater Tunb, removed
the Arab flags which had been hoisted there by the Ruler of Sharjah in 1903 as
a sign of ownership of the islands86 and then put up new flagstaffs on which
they hoisted the Persian flag. Further, the Persian government stationed four
and two Persian guards on Abu Musa and Greater Tunb, respectively.87 While
no flag was hoisted on Lesser Tunb, it is believed that it was also visited with
the larger island in 1904 by the Bushire Director of Customs.88
86 Toye, Lower Gulf Islands, Vol. 2, 344–346, 349–350.

87 Ibid., Vol. 2, 423–425, 443–446.
88 Ibid., Vol. 3, 137, containing a letter from India Office to Foreign Office, dated September 7,
1908. See also, Mirfendereski, “The Tamb Islands Controversy”, 458.
The Period 1887–1971 491
Writers who support the Iranian territorial claims over the islands assert
that the fact that the Ruler of Sharjah only placed his flag on the islands of Abu
Musa and Greater Tunb in 1903, and at the instigation of the British govern-
ment, indicates that the Qawásim did not previously hold a genuine title over
the islands and that the British had fabricated the Qawásim claim over the
islands at that time to aid in their policy of “prevent[ing] the arrival of Iranian
customs on Abu Musa.”89 Thus, pursuant to this narrative of events the islands
of Abu Musa and Greater Tunb were only first occupied by the Qawásim in
1903 under instructions of the British.90 Further to this narrative, it is main-
tained that the so-called “occupation” of Abu Musa and Greater Tunb by the
Ruler of Sharjah at the instigation of the British did not in any case attract le-
gal consequences as the islands were not terra nullius, but rather were already
under the immemorial possession of Persia and, in any case, Sharjah was not a
State and as such was incapable of occupying territory.91 In line with that ver-
sion of events, one Iranian writer makes the following claim:
[I]t may be held that Iran had title to the Tonbs up to 1903–1904 by vir-
tue of immemorial prescription. However, during these years, the Sheikh
of Sharjah challenged Iran’s sovereignty over the island. This marked the
starting point of the Anglo-Arab claim over the Tonbs by virtue of ac-
quisitive prescription….92
89 Bavand, “Legal Basis”, 91. See also Ahmadi, Islands and International Politics, 46–47;
ojtahed-Zadeh, “Perspectives … of the Tonb and Abu Musa Islands”, 45–47.
M
90 Mojtahed-Zadeh, “Perspectives … of the Tonb and Abu Musa Islands”, 46. In general, this
narrative describes the period following the “occupation” of Abu Musa and Greater Tunb
in 1903 (and Lesser Tunb in 1908), when the Arab flag was first hoisted there until the “re-
covery” of the islands by Iran in 1971 as having been dominated by three significant trends:
(i) the “takeover” of the islands themselves and the continuous assertions of sovereignty
over the islands by Sharjah and Ras Al Khaimah, or the British presumably on their behalf,
which were methodically protested against by Iran, thus preserving its sovereign rights;
(ii) beyond protest, the Iranian government sought to reassert its sovereign rights through
continuous actions taken in relation to the islands (as described throughout this chapter);
and (iii) the general lack of interest by the leaders of Sharjah and Ras Al Khaimah in
maintaining control over the islands compared to the keen interest shown by the British.
See, generally, Bavand, “Legal Basis”; Mojtahed-Zahed, “Perspectives … of the Tonb and
Abu Musa Islands” and Hooshang Amirahmadi, “The Colonial-Political Dimension of the
Iran-UAE Dispute”, in Small Islands, Big Politics. The Tonbs and Abu Musa in the Persian
Gulf, ed. Hooshang Amirahmadi (New York: St. Martin’s Press, 1996).
92 Mirfendereski, “Ownership of the Tonbs Islands”, 137.
492 chapter 8
Another Iranian commentator asserts that, upon the “replacement” of the

Lengeh Qawásim rule by direct Persian rule in 1887, Persia had proceeded to
rule and administer Abu Musa and the Tunbs directly. With that in mind, he
states that if the British and the Qawásim of the Arab coast genuinely believed
the Qawásim were the rightful owners of those islands, they should have then
protested against the Persian rule, which they did not until they “seized” the
islands in 1903 (in the case of Abu Musa and Greater Tunb) and 1908 (in the
case of Lesser Tunb):
[N]either the British nor the sheikhs of the main branch of Qasimis
lodged any protest or took any action with regard to the continuation
of the Persian rule over the dependencies of Lingah, including the three
islands, until 1903 and 1908.93
Aspects of such a narrative have been addressed (and dismissed) in this and
previous chapters of this book. Most crucially, it has been shown that there is
no probative evidence that Persia held any historic or immemorial rights of
ownership over the islands nor that it had claimed or taken any acts of sover-
eignty on the islands through the nineteenth century, nor indeed at any time
prior to the hoisting of its flag on Abu Musa and Greater Tunb in March 1904.
Moreover, the available evidence indicates that while throughout the eigh-
teenth century the islands remained as terra nullius, the Qawásim effectively
occupied them at some point in the nineteenth century prior to 1887, that is
long before the flag incident of 1903/04 occurred and prior to the initial as-
sertion of sovereignty by Persia, whether that is deemed to have occurred in
1887/8 or 1903/4.94 There is no evidence of “Persian rule” over any of the islands
during the period 1887–1904.
93 Ahmadi, Islands and International Politics, 59.

94 In this respect, the assertion that the hoisting of the flag of the Ruler of Sharjah on the
islands of Abu Musa and Greater Tunb in 1903 and the stationing of men to guard them
was an act of “occupation” which could only turn into a valid title through acquisitive
prescription of course depends on a finding that the Qawásim did not already hold title to
the islands at that time. Having established that by 1903 title to the islands already rested
with the Qawásim Rulers, the planting of the Arab flag on Abu Musa and Greater Tunb in
1903 cannot be seen as an act of occupation but rather as a continuation of the exercise
of sovereignty over the islands by those Rulers which had been previously established.
Similarly, the acts of sovereignty exercised on the islands from 1903 by the Qawásim can-
not be characterized as an attempt to obtain title through acquisitive prescription (which
Iran would say had failed given the many protests it lodged against such acts – see below,
this chapter) as they had already established their title prior to that time.
The Period 1887–1971 493
Thus, while the evidence indicates that the Ruler of Sharjah first hoisted the
Qawásim flag on Abu Musa and Greater Tunb in 1903 at the urging of the Brit-
ish government, this does not mean that the islands were not already under
the territorial possession of the Qawásim. Indeed, as just noted, the Qawásim
had taken acts to effectively occupy the islands during the nineteenth century,
and there is no basis for arguing that they had somehow abandoned or lost
the title they then acquired at any time prior to the flag incident (about which,
more below). There is no rule of international law which would have required
the hoisting of a flag to confirm the establishment of ownership which fol-
lowed an effective occupation. On the contrary, the hoisting of the Qawásim
flag on the islands in 1903 (whether at the urging of the British government
or not) was entirely consistent with the ownership rights the Qawásim had
already established and does not diminish or affect those rights. If anything,
the fact that the Qawásim flag was raised the year prior to the landing of the
Belgian customs agents and their forcible dismantling and replacement of that
flag with the Persian flag is, under the circumstances, further evidence that
continuing manifestations of sovereignty by the Qawásim preceded any asser-
tion of sovereignty by Persia. That evidence, and the effective protests against
the actions taken by Persia which were made (see below), thus preserved those
established Qawásim territorial rights. Viewed in light of the reality of the his-
torical sequence of events, therefore, neither the raising of the Qawásim flag in
1903 nor the forcible removal of that flag and its replacement with the Persian
flag in 1904 resulted in any change in the legal status of the islands as Qawásim
possessions.
Notwithstanding these conclusions, a number of writers who support the
Iranian claim over the islands argue that in the midst of the flag incident the
British and Persian governments mutually agreed – in the form of a status quo
agreement – that following the lowering of the Persian flag at Abu Musa and
Greater Tunb, neither party would allow or undertake any acts of sovereignty
on the islands (including the hoisting of flags) until the question of their right-
ful ownership had been settled. The implication raised by the alleged existence
of such an agreement was that it demonstrated that the British government
itself had acknowledged that the legal status of the islands at that time was
unresolved and had to be submitted to arbitration for a final determination of
sovereign rights. Another assertion arising out of the alleged status quo agree-
ment is that Britain’s conduct in permitting the re-hoisting of the Arab flag
immediately following the removal by Persia of its flag from the islands (see
below) was a violation of that agreement. A review of the evidence, however,
shows both of these assertions to be unsupported by evidence and untenable.
The flag incident appears to have had its origin in January 1903, when during
a visit to Lengeh the British Political Resident in the Gulf noted a significant
494 chapter 8
decline of the trade of that port (brought about by the imposition of increasing
and more vigorously pursued customs tariffs by the Persian government) and
a resulting desire by the local merchants to make Abu Musa a port of call for
facilitating a transfer of the pearl business and other trade away from Lengeh
to the island. In view of these circumstances, the Political Resident concluded
that Persia may as a consequence proceed to claim the island in order not to
lose any customs revenues effectively transferred there from Lengeh. He there-
fore advised the Ruler of Sharjah to begin flying his flag on the island, as well as
on Greater Tunb, as a sign of ownership.95 Shortly thereafter, the Qawásim flag
was hoisted on both islands.
The following year, in April of 1904, the British learned through information
and a request for action received from the Ruler of Sharjah that the Qawásim
flags on both Abu Musa and Greater Tunb had been removed by Belgian cus-
toms officials acting for the Persian government and replaced with the Persian
flag.96 Internal deliberations within the British government on how best to
respond and assert the rights of the Rulers over the islands ranged from pro-
posals of sending a gun-boat with a representative of the Sheikh of Sharjah in
order to haul down the Persian flag, replace it with the Arab colors, and remove
the Persian guards to Persian territory97 to proposals of being courteous and
inviting the Persian government to voluntarily remove its flags.98 The British
ultimately settled on the latter option, contacting the Persian government in
May 1904 to protest the actions taken by the customs officials and to convey the
message that the British government was prepared to send a ship to the islands
95 See Toye, Lower Gulf Islands, Vol. 2, 344–346, 349–350.

96 The Ruler of Sharjah wrote to the Political Resident on April 5, 1904 and an account of
the contents of this letter is contained in a report of the Political Resident to the Sec-
retary to the Government of India, dated April 15, 1904: “I have now received a letter of
5th April from the Chief of Shargah, in which he says that he had first heard from Ras el
Kheima people that a Persian Govt steamer had called at the island of Tamb, hauled down
the Joasmi flag which was flying there and hoisted the Persian flag. The Chief says that he
cannot tolerate this action of the Persians: that the British Govt aware of the fact that the
islands of Tanb, Bu Moosa and Siri (meaning the island of Sir Abu Nair) belong to theirs
and that as he is one of those enjoying treaty relations with the British Govt, he hopes
they will be so good as to take the necessary steps to [preserve] such interference with
his territory. The Chief does not mention anything about the Bu Moosa island, but prob-
ably the information regarding the Persian action there had not reached him when he
wrote to me.” Toye, Lower Gulf Islands, Vol. 2, 444–445. On the reports of the Political
Resident on the origin of this incident, see ibid., Vol. 2, 423–425, 430–431.
97 Ibid., Vol. 2, 449.
98 Ibid., Vol. 2, 455.
The Period 1887–1971 495
“in order to vindicate the rights of the Sheikh of Shargah” if the Persian flag and
guards were not voluntarily removed by the Persian government.99
The Persian government replied to this protest by ordering the removal of
the flags and guards from the islands, but noting that they “reserve[ed their]
right to discuss” with the British Government their respective claims to the
Islands of Tamb and Abu Musa.100 Sir Arthur Hardinge, the British Minister at
Tehran, recounted in a telegram to the British Foreign Secretary the conver-
sations between him and the Persian Director of Customs, Mr. Naus, and the
Persian Foreign Minister, Mushir-ed-Dowleh, during May 1904 in the following
way:
I spoke to M. Naus about the action of the Persian Customs Department

in placing flags and guards on the Islands of Tamb and Abu [M]usa, and
removing the flag of the Shaikh of Shargah, a trucial Chief, under the
protection of the Government of India. I said that that Government was
prepared to send a ship to the islands in question in order to vindicate
the rights of the Shaikh of Shargah, but that before taking any overt step
which might wound Persian susceptibilities your Lordship [the British
Foreign Secretary] has authorized me to point out to the Persian Govern-
ment the indefensible character of M. Dambrain’s action [the subordi-
nate Belgian customs agent who had ordered the removal of the Arab
flags and their replacement with Persian flags], and to request that the
flags might be removed and the status quo ante restored by the Persian
authorities themselves. If, I added, the Persian Government disputed the
claims of the Shaikh of Shargah to these islands, their views might form
the subject of diplomatic discussion with His Majesty’s Legation, but
they ought not to have prejudged the issue and pulled down the flag of a
de facto occupant.
…
M. Dambrain had, [M. Naus] observed, no business to remove the Arab
flag. He had not been told to do so by the Persian Government, which was
ignorant of the Arab occupation of the islands, and he himself (M. Naus)
could only repudiate his action.
What [M. Dambrain] should have done was to make further inquiries as
to the circumstances under which the Joasimi flag was hoisted on these
islands, and to report to Tehran for further orders. His Excellency thanked
99 Ibid., Vol. 2, 484–485, containing a telegram from Sir A. Hardinge (British Minister in Per-
sia) to the Marquess of Lansdowne (British Foreign Secretary), dated May 24, 1904.
100 Ibid.
496 chapter 8
me for my courtesy in giving the Persian officials an opportunity of them-

selves rectifying this hasty step.
…
I accordingly called today [May 24, 1904] at the [Persian] Foreign Office
to be informed of [Mushir-ed-Dowleh’s] decision. M. Naus was present
at our interview, and showed me a telegram which he was just sending
to Bushire informing M. Dambrain that the question of sovereignty over
Tamb and Abu [M]usa was a disputed one, and ordering him with the
least possible delay to remove the Persian flag from those islands.
The Mushir-ed-Dowleh observed in this connection that the Persian Gov-
ernment considered it had a claim to these two islands, and reserved its
right to discuss that claim with me.101
The Persian flags and guards were finally removed by officers of the Persian
government from the islands of Abu Musa and Greater Tunb on or around 12
June 1904.102 In anticipation of this happening, Major Cox, the Acting Political
Resident in the Persian Gulf, had sent a letter to the Ruler of Sharjah explaining
that after the discussions that took place between the British and the Persian
governments, the latter had undertaken to remove the flags from the islands.
He also requested the Ruler to take the necessary measures to re-erect the Qa-
wásim flag on the islands and to station two men on each of the islands “whose
duty will be to see to the hoisting and guarding of the flags permanently.”103
There ensued an exchange of notes between Mushir-ed-Dowleh and Sir
A. Hardinge, which Iran subsequently claimed constituted a formal agreement
by both Persia and Britain not to re-hoist either the Persian or Arab flag over
any of the islands or take any other sovereign acts in relation to the islands
until agreement had been reached on the question of ownership (and which
Persia therefore dubbed the “status quo agreement”).104 It is worth transcribing
the wording of that exchange of letters in full before drawing conclusions as to
their legal significance, if any.
101 Ibid.
102 Ibid., Vol. 2, 501, explaining that the flags were to be removed on June 12, 1904. Ibid., Vol. 2,
512, explaining that the flags were removed by the Persians on June 14, 1904.
103 Ibid., Vol. 2, 505–506, containing a letter from Major Cox to the Ruler of Sharjah, dated
June 11, 1904.
104 Mirfendereski, “Ownership of the Tonbs Islands”, 135–136 (citing to “Iranian Foreign Min-
istry, Moshir al-Dawleh minutes, 29 Rabi al-Aval (15 June 1904)”); Bavand, “Legal Basis”,
93–94 (citing from “Iranian Ministry of Foreign Affairs, File No. 33/150 A, Part ii, Section
1”, “Muzaffar al Din Sha’s letter of instruction to Mosheer al-Dawleh, dated 22 Rabi al-Aval
1323” and from “Mosheer al-Dawleh’s minutes, dated 26 Rabi al-Aval 1323.”).
The Period 1887–1971 497
The first letter was sent from Mushir-ed-Dowleh to Sir A. Hardinge on 14

June 1904:
With reference to the islands of Tamb and Abu Musa, I have the honour
to inform your Excellency that the Persian Government considers these
two islands as its own property, and the measures taken by the Customs
authorities in these two places have been on this account; but, as I have
brought to His Majesty’s notice the result of the conversation I had with
your Excellency a few days ago on the subject, the Royal Command has
been issued that, for the present, the measures taken by the Customs
authorities in the above-mentioned places should be given up and nei-
ther party hoist flags in the two places pending the settlement of the
question.105
The response of Sir A. Hardinge on 15 June read:
Your Excellency,
I have had the honour to receive your note of yesterday’s date respecting
Tamb and Abu Musa, and shall be happy to transmit to the Government
of India any proofs with which you may favour me that the claims of the
Persian Government to the ownership of these islands outweigh those of
the Sheikh of Shargah.
Your Excellency must, however, understand that I cannot agree to the
suggestion, of which I hear for the first time, that this trucial Chief should
not be permitted to replace his flag pulled down by the Persian Customs
officials, and I would remind you in this connection that we have not in-
sisted upon the Persian Government removing its flag from the island of
Sirri till the controversy between the two Governments as to the owner-
ship of the island, which originated many years ago, has been reciprocally
settled.
The position would have been different if the Sheikh of Shargah had re-
moved an existing Persian flag from Tamb and Abu Musa. What he did
was to hoist his own flag upon the islands, which were not yet formally
occupied by any other Government, and he has the right to fly it as the
first occupant till his lawful possession of these islands is disproved.106
105 Toye, Lower Gulf Islands, Vol. 2, 508, containing a letter from Mushir-ed-Dowleh to Sir A.
Hardinge, dated June 14, 1904.
106 Ibid., Vol. 2, 508, containing a letter from Sri Arthur H. Hardinge to Mushir-ed-Dowleh,
June 15, 1904.
498 chapter 8
As clearly seen from the language of this exchange of notes, the British did not
agree, either implicitly or explicitly, not to re-hoist the Qawásim Arab flag over
the islands in return for the voluntary lowering of the Persian flag, and indeed
made clear that the Ruler of Sharjah was acting within his rights by flying the
Qawásim flag. The only concession in the British letter is that it acknowledges
the existence of the Persian claim to the islands but demanded proof of that
claim. Similarly, the oral exchange between the same representatives of both
governments that took place on 24 May 1904 cited above does not imply any
“status quo” agreement whatsoever.107 In fact, in a contemporaneous report
from Sir A. Hardinge to the Marquess of Lansdowne referring back to his con-
versation with the Persian Foreign Minister it was clear that the British had
rejected any form of status quo agreement involving the impossibility of re-
hoisting the Ruler’s flag:
In the course of our conversation, the Ain-ed-Dowleh referred to our

insistence upon the removal of the Persian flag from Tamb and Abu
Musa …. He suggested that, pending the discussion and decision of the
question of ownership, the Arab flags should not be re-hoisted on the
islands. I need not repeat the obvious arguments with which I replied to
this contention, and explained the impossibility of complying with His
Highness’ last suggestion about the flags.108
Notwithstanding the clear import of this exchange of notes, some commen-

tators who support the Iranian claims describe the exchange in a markedly
different way. For example, Mirfendereski, citing internal Persian government
documents, states in relation to Greater Tunb:
According to the Iranian documentation on the matter, the British gov-

ernment secured the lowering of the Iranian flag at Great Tonb by means
of threats and pressures. The pressure applied in Tehran was in all likeli-
hood the threat of gunboat diplomacy…
At the end of the June 14–15 Anglo-Iranian proceedings over the Tonbs,
which the Iranian documentation refers to as negotiations (mozakerat),
the Iranian foreign minister noted, “(i)t has been agreed to that no flag be
hoisted from either side on the two locations.” As it relates to Iran’s future
position with respect to the islands, this entente is referred to as the 1904
status quo agreement, whose existence the British documentation does
107 Ibid., Vol. 2, 484–485.

108 Ibid., Vol. 2, 528, containing a telegram from Sir A.H. Hardinge to the Marquess of Lansd-
owne, dated June 20, 1904.
The Period 1887–1971 499
not seem to explicitly recognize. Regardless, on June 17, 1904, the Sheikh
of Sharjah hoisted his flag on Great Tonb. Following an Iranian protest,
the British Legation replied that “the Sheikh had the right to fly his flag on
an island of undetermined ownership.”109
Bavand, writing on the sovereignty dispute over Abu Musa, similarly explains:
The British government’s securing of Iran’s consent to the removal of its

flag from Great Tonb and Abu Musa was achieved by a combination of
threats of naval demonstration and the terms of the so-called status quo
agreement, whereby “neither party should hoist flags in them pending
settlement of the question”. Commenting on the diplomatic negotiations
in this regard, on June 11, 1904, while instructing the foreign minister,
Mosheer al-Dawleh, to pursue the matter with the British representative
in Tehran, the Shah Muzaffar al-Din Qajar wrote: “Although Iran views
the islands as belonging to Iran, Britain has pressured to have both flags
lowered at those places, so that the issue may be settled by arbitration.
We do, therefore, expect that the British would not allow the sheikhs to
hoist their flag once ours have been removed.” After further discussions
with the British representative, Sir A. Hardinge, on June 15, 1904, the Ira-
nian foreign minister noted: “It has been agreed to that no flag be hoisted
from either side on the two locations.”110
While these accounts may be consistent with internal minutes or correspon-

dence of the Persian government with respect to the exchange of notes, they
are clearly an inaccurate portrayal of the contents of that exchange. As a
matter of interpretation, it is the language of the agreement (or in this case,
the exchange of notes) itself which is relevant in determining the intention
of the parties, not an alternative intention which one of the parties assigns to
that agreement in subsequent internal correspondence.111 The reality is that
109 Mirfendereski, “Ownership of the Tonbs Islands”, 135–136 (citing to “Iranian Foreign Min-
istry, Moshir al-Dawleh minutes, 29 Rabi al-Aval (15 June 1904)”).
110 Bavand, “Legal Basis”, 93–94 (citing from “Iranian Ministry of Foreign Affairs, File No.
33/150 A, Part ii, Section 1”, “Muzaffar al Din Sha’s letter of instruction to Mosheer al-
Dawleh, dated 22 Rabi al-Aval 1323” and from “Mosheer al-Dawleh’s minutes, dated 26
Rabi al-Aval 1323.”).
111 Cf. Ian Sinclair, The Vienna Convention on the Law of Treaties, 2nd ed. (Manchester: Man-
chester University Press, 1984), 115 (indicating that the general rule on treaty interpreta-
tion in Article 31 of the Vienna Convention on the Law of Treaties was “clearly based on
the view that the text of the treaty must be presumed to be the authentic expression of
the intention of the parties.”).
500 chapter 8
the actual exchange of notes did not contain a status quo agreement in the
terms described by such accounts, and nowhere in the text of the exchange is
there an agreement not to re-hoist the Ruler of Sharjah’s flags on the islands.
Indeed, there is an explicit rejection of that suggestion.
In line with the position laid out in the British note to the Persian govern-
ment of 15 June 1904, the Ruler of Sharjah had his flags re-hoisted on the islands
of Abu Musa and Greater Tunb a few days after the removal of the Persian flags
and guards.112 Nevertheless, Persia referred to this as a violation of the “status
quo agreement”.113 The British, acting on behalf of the Qawásim rulers, denied
these exchanges amounted to an agreement at all.
In subsequent years, allegations were again made by Persia that the Gov-
ernment of the United Kingdom had violated the so-called status quo agree-
ment in light of diverse actions of the British government on the islands. For
example, in 1953 the landing of fourteen British troops on Abu Musa prompted
the following reply from the Iranian Government, invoking its interpretation
of the 1904 status quo agreement:
[A]ccording to a report received from the Imperial Iranian authorities

the British Government have recently landed 14 troops at the Abu Musa
Island in the Persian Gulf, belonging to the Imperial Iranian Government
and have also established a wireless set in the mentioned island. The Im-
perial Iranian Ministry of Foreign Affairs invited the attention … to the
Treaty of 1904 between the then Minister for Foreign Affairs of the Impe-
rial Government and the British Minister of the time, and states that al-
though Iranian jurisdiction over the Abu Musa Island is indisputable, but
as according to the abovementioned treaty the Imperial Iranian Govern-
ment upon the proposal of the British Government agreed that no action
should be taken by either government for safeguarding the status quo,
the dispatching of troops and establishment of wireless set by the British
Government is therefore considered violation of the rights of the Iranian
jurisdiction over the Abu Musa Island and the above mentioned treaty.
The Imperial Ministry of Foreign Affairs by stating the foregoing request
112 Toye, Lower Gulf Islands, Vol. 2, 514–515 and 574, indicating that the Ruler’s flags were re-
hoisted on June 14 and that two men were stationed on each island to hoist flags.
113 Bavand, “Legal Basis”, 94, noting that “On June 20, 1904, the Iranian government objected
to the raising of the sheikh’s flag as an act of usurpation and in violation of the status
quo agreement.” Bavand cites as support of this communication “Digest of Mosheer al-
Dawleh’s Note to British Legation (Tehran), dated 1 Rabi al-Sani 1323.” Ibid., n. 102. This
communication does not seem to be included in the collection of India Office records
compiled in Toye, Lower Gulf Islands and the authors have not been able to consult the
source cited by Bavand.
The Period 1887–1971 501
the Swiss Legation custodian of the British interest in Iran to transmit the
strong protests of the Iranian Government to the competent British au-
thorities and urge the latter to withdraw and give assurance that in future
they will abstain from similar deeds in the island concerned.114
In response to this protest, the British reiterated their interpretation of the

1904 exchange of notes on the basis of the text of the notes themselves, thus
rejecting any assertion that they reflected any kind of formal agreement or un-
dertaking to restrict the free exercise of sovereignty over the islands by the
Qawásim:
Her Majesty’s Government have at no time admitted the validity of any

Persian claims as constituting proof of ownership to the Island of Abu
Musa, nor have they entered into any agreement which in any way re-
stricts their liberty to action in support of the interests of the Ruler of
Sharjah to whom they consider the island belongs. The exchange of
notes between the Mushir ed Dowleh and the British Minister at Tehran
in 1904 so far from bearing the construction placed upon it by the Impe-
rial Ministry of Foreign Affairs clearly shows that the British Government
rejected a suggestion by the Persian Government that certain restrictions
should be placed on the exercise of the sovereignty over the Island [of
Abu Musa] by the Ruler of Sharjah.115
In light of the considerations set out above, the position of the British gov-
ernment, which has been consistently maintained, must be seen as prevailing
over the assertions of the Iranian government. While it may thus be concluded
that no status quo agreement of the sort suggested by Persia ever came into
existence, it remains to be determined whether the flag incident itself may be
114 Toye, Lower Gulf Islands, Vol. 6, 275, containing a telegram from Berne to Foreign Office,
dated May 22, 1953. At the time, in light of the fact that Iran and the uk had broken off
diplomatic relations due to the crisis that arose amongst other things from the national-
ization by Iran of the Anglo-Iranian Oil Company in 1952, the Swiss legation was the cus-
todian of the British interest in Iran. Mattair, Three Occupied uae Islands, 85. See also, a
similar reference to the status quo agreement by Iran in October 1954 in an aide-mémoire
of the Iranian Ministry of Foreign Affairs: “In the year 1904, the Government of the United
Kingdom reached an agreement with the Iranian Government regarding the aforesaid
islands in the Persian Gulf, whereby Iran’s sovereign rights and the status quo in the
islands were to be respected and maintained.” Toye, Lower Gulf Islands, Vol. 6, 322.
115 Ibid., Vol. 6, 276, containing an Official Note from British Embassy, Tehran to Iranian Min-
istry for Foreign Affairs, undated.
502 chapter 8
viewed as having marked the critical date in the dispute over sovereignty to the
three islands.
The “Flag Incident” of 1903/4: Is This the Critical Date of the

Dispute?
While it has been noted previously in this chapter that during the events of
1887 and 1888 Persia may be said to have indirectly or informally laid an ambig-
uous claim to the Tunbs islands, as well as possibly Abu Musa, its first attempt
to physically assert its authority over Abu Musa and the Tunbs, combined with
the assertion of a formal claim to the islands, occurred in the midst of the flag
incident of 1904. After protests against this action by the Qawásim of Sharjah
and Ras Al Khaimah, as well as by the British, the Persian government lowered
its flags and removed its personnel from Abu Musa and Greater Tunb (no flag
or guards having been placed on Lesser Tunb), but did so while maintaining
its claim of ownership. Although the removal of its flag was later described by
the British as a repudiation by Persia of its claim over the islands,116 there can
be no doubt that in the course of these events a clear dispute between Persia
and the Qawásim over sovereignty to the islands was crystallized, and that the
Persian assertion of sovereignty became more than a “paper claim”. Thus, by
the time the second possible critical date in the dispute (1903/4) occurred, Per-
sia had not only articulated a definite claim to the three islands of Abu Musa,
Greater and Lesser Tunbs but it had also taken physical action to support that
claim by visiting the islands, removing the Ruler’s flag from them, hoisting the
Persian flag on Abu Musa and Greater Tunb and stationing guards on those
two islands. Thus, 1903/1904 may be seen as the critical date as, in the catego-
ries set out by Fitzmaurice reviewed at the beginning of this chapter, not only
is it “the date of the commencement of the dispute”, but it is also the date when
“the challenging … State makes a definite claim to the territory” and the date
“when the dispute ‘crystallized’ into a definite issue between the parties as to
territorial sovereignty”.117
As measured against the criteria laid out by Fitzmaurice, either of these
dates or time periods – 1887/8 and 1903/4 – could be considered the critical
date in the dispute, albeit the latter time period marks the occasion in which
116 Cf. Toye, Lower Gulf Islands, Vol. 4, 34, containing a letter from Alex Flint to the Under
Secretary of State, Colonial Office, dated July 3, 1926 (“Persian pretensions to ownership
of the island [of Abu Musa] were apparently put forward in 1904 but withdrawn almost
immediately as the result of representations by His Majesty’s Government.”).
The Period 1887–1971 503
the dispute between the parties was laid bare in a more direct and unambigu-
ous fashion. In a sense, both of these time periods are “obvious” critical dates
in that (a) the available evidence leads to the conclusion that the islands had
been terra nullius until the nineteenth century, (b) at some point during that
century (but prior to 1887) the Qawásim made unambiguous claims of owner-
ship and began exercising sovereign authority over the islands through acts of
effective occupation, and (c) such authority was subsequently challenged by
Persia, in the first instance (1887/8) implicitly and in the latter instance (1903/4)
in a direct and open manner. The question thus arises as to whether title to the
islands was, on either (or both) of these dates, still held by the Qawásim or not.
Either of these circumstances (most particularly those arising in 1903/4) are
reminiscent of the unsuccessful challenge to French sovereignty which Mexico
asserted in 1897 to Clipperton Island. As described by Fitzmaurice:
The Clipperton Island case was another in which there was no issue as to
what the critical date was. France had proclaimed her sovereignty in 1858
on the basis that the island was then res nullius. In 1897, Mexico sent an
expedition to the island, and hoisted the Mexican flag there. The imme-
diate and obvious issue therefore was whether, in 1897, Clipperton Island
was French or not.118
As it has already been determined that title to Abu Musa and the Tunbs was
held by the Qawásim in 1887/8, a finding that the status of the islands had not
changed between 1887 and 1904 would make the question whether the critical
date occurred at the earlier or later period purely academic because in either
case ownership would reside with the Qawásim. In this respect, and based on
the available evidence, there is little doubt that the Qawásim title over the is-
lands which was present in 1887 continued in effect in 1904. Three factors are
determinative.
First, although there is not an abundance of evidence in the record related
to this seventeen-year period, it is certainly the case that the Qawásim did
not abandon title to the islands between 1887 and 1904, whether expressly
(of which there is no evidence at all) or tacitly given the evidence of some
activity undertaken on the islands during this period (see below). As noted
by Fitzmaurice, “once a clean title based on occupation is held to have been
finally and definitively established, it would seem also to result from the Clip-
perton Island case that abandonment, as such, would normally have to be ex-
press or manifest”.119 Far from expressly or manifestly abandoning title, the
118 Ibid., 22.

119 Ibid., 67 (emphasis in original).
504 chapter 8
Qawásim undertook subsequent acts, most prominently the raising of its own
flag on each of the islands in 1903 and the granting of a mineral concession on
one of the islands (Abu Musa) in 1898. It cannot be inferred from these histori-
cal facts that the Qawásim intended to abandon title. Not having abandoned
its title, the Qawásim rights of ownership must be considered to have contin-
ued in effect and, by reason of the effective protests against the hoisting of the
Persian flag in 1904, to have survived the events of the flag incident intact. By
themselves, these facts would prove fatal to any claim of ownership asserted by
Persia which references 1904 as the critical date.
Second, apart from the hoisting of its flag on Abu Musa and Greater Tunb
in 1904, there is no evidence of any activity or claim whatsoever by the Persian
government in the period from 1887 to 1904. As the raising of its flag was ef-
fectively protested against, it is clear that the events of the flag incident them-
selves did not serve to establish any rights of ownership in favor of Persia over
the islands, and on the contrary, left that title in the possession of the Qawásim.
Finally, and although it is not necessarily critical in finding that the previ-
ously established Qawásim title had been maintained, there is some evidence
of continuing Qawásim activity on the islands during the intervening years
from 1887 to 1904. Not only does this activity serve to cut off any argument that
the Qawásim had abandoned title, but it also supports the opposite conclu-
sion, that they had further consolidated that title. The raising of its flag over
the islands in 1903 was perhaps the most notable and symbolic act of sover-
eignty they undertook. Other than that, the most conspicuous measure taken
by the Qawásim during these years was the granting of a concession by the
Ruler of Sharjah for the mining of red oxide on Abu Musa in 1898. The sig-
nificance of the granting of the concession lies in the fact that it was an act
of Sharjah that would appear to have involved the exercise of jurisdiction and
administration over the island, a clear indication of the exercise of sovereign
rights. To explore that assumption, the background of this historical episode,
which is well-documented, merits further discussion.
In April 1898, Salim bin Sultan, acting as the representative of his succes-
sor and nephew Sheikh Suggar bin Khalid, the Ruler of Sharjah, granted a
concession to explore for and mine red oxide in Abu Musa to three Arabs “for
such a period as they may wish to hold the mines provided that they should
pay me 250 French dollars per annum”.120 Another company, Messrs. A. and
120 Toye, Lower Gulf Islands, Vol. 2, 329–337. Ibid., Vol. 3, 5, indicating that the three recipi-
ents of the concession were: (i) Haji Hassan-bin-Ali Samaiyeh, Bahraini by origin but also
British by naturalisation of his father, resident in Lengeh; (ii) Abdulla-bin-Haji Hassan,
son of the first one; and (iii) Esa-bin-Abdul Latif, son of the Residency Agent, Sharjah.
The Period 1887–1971 505
T.J. Malcolm had also approached the British government in May 1898 as the
protecting power of the Sheikhdom of Sharjah to enquire about the possibil-
ity of acquiring a red oxide concession on the island of Abu Musa and other
islands and sea-boards of other independent Sheikhs and to obtain “the good
offices of [the] British Government Agents in those localities in the further-
ance of [its] projects.”121 The British Government of India advised the Resident
to respond to this request positively, although making it clear that the British
government could not show any favoritism towards any particular individual
and to let the local Sheikhs know that the British Resident would “be ready to
help them with advice in respect to any proposals made to them for trading
privileges” in order to “protect the Chiefs from unscrupulous traders.”122 These
enquiries by Messrs. Malcolm led to nothing given that Sheikh Salim had al-
ready (and unbeknownst to the British) granted the concession to the three
Arabs a month earlier.
Soon after the acquisition of the lease by the three partners in April 1898,
they gave a share to a Mr. Nakhoda Ali-ben-Ahmed Saleh, a Persian subject of
Bandar Abbas who was also a British subject after having performed service for
the British for a number of years.123
The reason why the concession was granted by the uncle of the Ruler of
Sharjah and not by the Ruler himself was because the Ruler was absent from
the country, reportedly having left on a pilgrimage to Mecca, leaving his u ncle
to officiate in the Government of Sharjah.124 Upon his return from Mecca,
Sheikh Suggar was informed of the granting of the concession by his uncle
Ibid., Vol. 3, 7, containing a copy of the concession agreement, dated April 10, 1898, signed
by Salim bin Sultan.
121 Ibid., Vol. 2, 273, containing a letter from Messrs. A. and T.J. Malcolm to Captain F.B. Pride-
aux, First Assistant Resident in charge, Bushire, dated May 11, 1898.
122 Ibid., Vol. 2, 273, containing a letter from Sir W.J. Cuningham, K.C. S.I., Secretary to the
Government of India, Foreign Department to Lieutenant-Colonel M.J. Meade, Political
Resident in the Persian Gulf, Bushire, dated July 16, 1898.
123 Ibid., Vol. 3, 47, containing the instrument by which Nakhoda Ali-ben-Ahmed Saleh be-
came a partner. Ibid., Vol. 3, 93, containing “Statement regarding the working of the Oxide
Company, by Esa bin Abdul Latif”, dated February 20, 1908 recounting the history of the
ownership of the shares in the red oxide lease and indicating that after the acquisition
of the lease by the three partners, they gave a share to Nakhoda Ali-ben-Ahmed Saleh.
Ibid., Vol. 3, 96–97, containing a letter from Lieutenant C.H. Gabriel, Assistant Resident
and hbm’s Consul at Bandar Abbas to Major Cox, Political Resident in the Persian Gulf,
Bushire, dated February 17, 1908.
124 Ibid., Vol. 3, 65–68. Sheikh Salim bin Sultan had been the Ruler of Sharjah but he was
deposed in a coup d’état in 1883 by his nephew, Sheikh Suggar bin Khalid.
506 chapter 8
and (it is said out of generosity and through a personal and verbal arrange-
ment) allowed him to enjoy the annual rent fixed for the concession.125 In ad-
dition to this, Sheikh Suggar asked to be given a share in the partnership, which
was admitted by the other partners.126 A few months later, in January 1899,
Sheikh Suggar transferred his interest to Yusuf bin Abdullah, whose share was
bought by Haji Hassan bin Ali Samaiyeh in December 1900.127 Subsequently,
in October 1907, the latter sold his share to Thomas Brown, a British subject of
Lengeh and a few days later Mr. Brown sold the share to the German firm R.
Wönckhaus and Co.128 Equally, a fifth partner, Mr. T.J. Malcolm is said to have
joined the red oxide concession two years after the granting of the original
concession.129
All these details of who were the partners in the concession and how the
different shares were distributed will become more relevant when discussing
what came to be known as the “Wönckhaus Affair”, an Anglo-German dispute
related to Abu Musa which festered from 1906 until 1914. This bilateral dispute
125 Ibid., Vol. 3, 65–68.

126 Ibid., Vol. 3, 10, 12, containing a copy of the document dated August 20, 1898 by which
Sheikh Suggar is admitted as a partner in the Concession of the lease of red oxide mines
at Abu Musa island originally signed with Sheikh Salim bin Sultan. See also, ibid., Vol. 3,
93, containing “Statement regarding the working of the Oxide Company, by Esa bin Abdul
Latif”, dated February 20, 1908.
127 Ibid., Vol. 3, 10, 13.
128 Ibid., Vol. 3, 44.
129 Ibid., Vol. 3, 262, 291, 314, containing various documents that show that the four partners
in the red oxide concession, i.e., Yusuf bin Abdullah, Hassan-bin-Ali Samaiyeh, Abdulla-
bin-Haji Hassan, Esa-bin-Abdul Latif and Nakhoda Ali-ben-Ahmed Saleh granted a Deed
admitting Mr. T.J. Malcolm into partnership. The copy of the deed included in a British
document is dated December 27, 1898. However, a German memorandum of Novem-
ber 1909 indicated that such deed was granted two years after the red oxide concession,
i.e., in 1900. Ibid., Vol. 3, 262. The terms of said deed read: “We do agree and take upon
ourselves … that we have admitted amongst us Mr. Tigrane Malcolm in the company
for the oxide and mica mines in the Bu Musa Island, which we have leased from Shaikh
Salim-bin-Sultan … on the condition that he will use endeavours in disposing of and ship-
ping what is excavated from the said mines in steamers from Bu Musa to other countries
for sale, and afford full assistance for the non-stoppage of the work on the said mines. And
whatever the said expenses may amount to, they will be borne by all the parties, and the
profits will also be (divided) proportionately amongst all. And on this (understanding)
the agreement is concluded; so that it may not be hidden. And it is not open to any one
of the partners to sell his share or to admit any one (therein) except in consultation with
Haji Hassan-bin-Ali Samaieh, and with his signature, together with those of the partners.”
Ibid., Vol. 3, 314.
The Period 1887–1971 507
o riginated in a 1906 four-year contract for the sale of the entire output of red
oxide under the 1898 red oxide concession which had been entered into be-
tween the holder of the concession (Haji Hassan-bin-Ali Samaiyeh on behalf
of him and his partners) and Robert Wönckhaus, a German citizen resident in
Lengeh.130 The events surrounding this dispute and the legal relevance if any
to the sovereignty dispute over Abu Musa island will be analyzed later in this
chapter.
There is little doubt that the 1898 red oxide concession granted by Sharjah
over the island of Abu Musa constituted a display of sovereignty over the is-
land. Even if it was granted by Sheikh Salim while his nephew, the Ruler of
Sharjah, was on pilgrimage in Mecca, the evidence points to the conclusion
that not only did his uncle have the authority to bind the Ruler – having been
delegated the authority to administer the State in the absence of the Ruler –
but his actions were subsequently ratified by the Ruler upon his return from
Mecca.131 This point was made by Sheikh Suggar, the Ruler of Sharjah, in a writ-
ten communication of February 1908.132
130 Ibid., Vol. 3, 24, containing a copy of the Contract between Mr. Hasan C. Semey, Lingah,
owner and holder of the Bu Musa Concession, and Mr. Robert Wönckhaus, Lingah, dated
June 1st, 1906.
131 Ibid., Vol. 3, 74, containing Sheikh Suggar bin Khalid’s explanation of the position in regard
to Abu Musa, dated February 22, 1908. Similarly, Sheikh Salim bin Sultan had indicated in
a communication to Sheikh Suggar, contrary to what Haji Hassan-bin-Ali Samaiyeh was
asserting, that “when I leased the mines of Abu Musa I was officiating on your behalf and
the concession was given by proxy for you and I was well aware that on your return from
the pilgrimage to Mecca, if you considered that any action in the matter of the concession
was good, you would confirm what I had agreed to.” Ibid., Vol. 3, 75, containing a letter
from Salim bin Sultan to Sheih Suggar bin Khalid, Sheikh of Shargah, dated February 21,
1908.
132 Sheikh Suggar wrote that “Then later on in the year 1315 [June 1897 to May 1898] I went on
the Mecca pilgrimage and appointed Shaikh Salim to act for me in the Shargah Govern-
ment and on my return Shaikh Salim informed that he had been afforded an opportunity
and had seen it to our interest to lease the mines of Abu Musa to three persons subject to
the British Government. I did not repudiate it and saw nothing objectionable in it and so
I acquiesced in it; and seen that Shaikh Salim had ceased not to complain that the sum of
400 dollars was not sufficient for his subsistence, I voluntarily set aside the amount of this
rent for him, that it might make up his subsistence, so that the total of what came in to
him yearly might be 600 dollars as before …. I have absolutely not given him any deed in
connection with the island nor in regard to the mines therein; all I did was to relinquish
the income to him, in the way of financial assistance from me to him, and it was done
voluntarily and at my own discretion. And I have not ceased in the days of spring in years
when there has been rain and herbage to send my livestock to the island for grazing
purposes as has been our custom from of old, and my flag ceases not to fly there.” Ibid.,
Vol. 3, 74.
508 chapter 8
Although during the course of the “Wönckhaus Affair” the German gov-
ernment argued that the concession was actually granted by the uncle of the
Ruler of Sharjah in his private capacity, such assertions are inconsistent with
the evidence just noted. For its part, the British government found these le-
gal arguments to be unpersuasive and essentially advanced in an attempt to
support Wönckhaus’ claim, which followed the cancellation of the red oxide
concession by the Ruler of Sharjah, by arguing that the Ruler of Sharjah had
no authority to cancel the concession because he had not granted it in the first
place.
Whatever the merits of those arguments, there is no evidence in the record
which would indicate that there were any protests by the Persian government
against the 1898 concession at the time it was granted. Whether the absence
of protests is of any significance, however, would depend on whether the Per-
sian government was aware of the granting of the concession at that time.
The events surrounding the “Wönckhaus Affair” suggest, albeit indirectly, that
the 1898 red oxide concession likely had come to the attention of the Persian
government, if not when signed then at the end of 1907/beginning of 1908.133
Clearly, if Persia knew about the 1898 red oxide concession and failed to issue a
timely protest at a time when it had otherwise asserted that the island of Abu
Musa was under Persian sovereignty, its silence would amount either to a tacit
abandonment of any ownership rights it may have held or, more likely, acqui-
escence in, or an admission of the validity of, the title of the Ruler of Sharjah.134
While on the basis of the analysis set out above the granting of the 1898
Abu Musa red oxide concession by Sharjah should be considered to constitute
State activity or the exercise of State functions by the Ruler over the island,135
that conclusion is not strictly necessary in support of the Qawásim claim to
Abu Musa given the absence of any competing State activity over the island
on the part of Persia at the time in question. It does, however, evince Sharjah’s
“continued display of authority”136 over the island and buttress its claim of title
previously established through occupation of terra nullius.
133 Ibid., Vol. 3, 112, containing a letter from Mr. Marling to Sir Edward Grey, dated January
6, 1908 (“ACTING on instructions from his Government, German Chargé d’Affaires is en-
deavouring to extract from Persian Government a declaration as to whether Island of Abu
Musa is or is not Persian territory. Do you wish me officially to remind Minister for Foreign
Affairs of 1904 incident and warn him against any endeavour again to put forward Persian
claim to the island? I have already done so privately.”).
135 Ibid., 52.
136 Cf. Legal Status of Eastern Greenland, pcij Ser. A/B No. 53 (1933), 45–46.
The Period 1887–1971 509
Events Following the Critical Dates
Having established that it is not strictly relevant whether the critical date of
the dispute over the three islands is determined to be 1887/8 or 1903/4 as the
Qawásim held title on both of such dates, it remains to be seen whether acts or
omissions of the parties after 1904 affected the existence of the Qawásim title
in any way. As previously indicated, acts of the parties to the dispute after those
dates cannot generally affect the legal position or rights of the parties as they
stood at the critical date.137 However, that of course does not mean that acts
or omissions of the parties following that date cannot be said to have resulted
in the acquiescence by one party to the claim of the other party, or whether a
change of sovereign title may have occurred through prescription, cession or
abandonment.138
The remainder of this chapter will summarize the available evidence and
legal impact of a number of the events which occurred in relation to the is-
lands after the events of 1903/4 and prior to the military action of Iran which
occurred on 30 November 1971 in order to determine whether they reflected a
continuation of the legal status of the islands as it was on the critical date of
1903/4 (or 1887/8), or whether some change to that status was brought about
through some act or omission of the parties. The analysis of the events and
the acts of the parties to the dispute after the identified critical dates will be-
gin with a fairly detailed description of the so-called “Wönckhaus affair”, a
dispute that developed between 1906 and 1914 (with a minor resurface of the
dispute after the end of the First World War) between the British government
(on behalf of the Ruler of Sharjah) and the German government (on behalf of
Wönckhaus) related to the red oxide concession granted by Sharjah in 1898
mentioned above.139 Further events during the twentieth century, and their
impact on the rights of sovereignty over the islands, will then be described, in-
cluding the erection of a lighthouse on Greater Tunb, several other c oncessions
granted by the Ruler of Sharjah for the mining of red oxide on Abu Musa, the
Anglo-Iranian general treaty negotiations and whether another so-called sta-
tus quo agreement emerged during those negotiations, and other various acts
by both parties such as visits to the islands and the sending of ships to inspect
the islands.
138 Ibid., 59–60.
139 Bavand explains that “the appellation ‘The Wönckhaus Affair’ [is] an euphemistic re-
minder of the larger Anglo-German rivalry for influence in Iran and the Persian Gulf.”
Bavand, “Legal Basis”, 97.
510 chapter 8
The Wönckhaus Affair (1906–1914)

While the “Wönckhaus affair” may be seen as a purely commercial dispute
sparked by a simple contract to purchase red oxide mined in Abu Musa, both
the Ruler of Sharjah and the British government protecting Sharjah’s inter-
ests, saw a political threat behind this commercial affair; in particular, that of
opening the way for Germany, through a German firm, R. Wönckhaus & Co., to
establish “a monopoly and foothold in the island of Abu Musa, which might
have been pushed and developed into a political occupation.”140 The fear of
losing the island to German control had been exacerbated by the flag incident
in 1903/1904.141
As noted above, the origin of the “Wönckhaus Affair” was a contract of June
1906 entered into by one Haji Hassan-bin Ali Samaiyeh (a resident of Lengeh
who claimed British citizenship and was one of the three original partners in
the 1898 red oxide concession on Abu Musa) with a German citizen, Robert
Wönckhaus (the principal of R. Wönckhaus & Co.), also resident in Lengeh
at that time.142 Under this agreement, Hassan Samaiyeh agreed, on behalf
of himself and his partners (but apparently without having any authority to
bind them143), to sell and deliver to Wönckhaus the entirety of the red oxide
140 Toye, Lower Gulf Islands, Vol. 3, 223–224, containing minutes drawn by the Foreign Office
respecting Abu Musa, dated February 10, 1910.
141 Ibid., Vol. 3, 228–232, containing “Sketch of the Abu Musa Case from its commencement
up to January 1910, with some comment on German Rejoinder”, by Major Cox, dated Feb-
ruary 12, 1910.
142 Ibid., Vol. 3, 3–4. Ibid., Vol. 3, 7, containing “Memorandum regarding antecedents and na-
tionality of Hassan-bin-Ali Samaiyeh of Lingah” by Major Cox (Political Resident in the
Persian Gulf), dated November 29, 1906, explaining that “Ali-bin-Hamad-bin-Samaiyeh
was a native of Bahrein and emigrated to Lingah 60 years ago, during the Arab occupa-
tion, accompanied by his two sons Hassan and Hamad …. The father Ali died in Lingah,
and Hassan afterwards obtained a certificate of British naturalisation from the Govern-
ment of Bombay. In virtue of that certificate he has been considered as under British
protection by the Persian authorities, and has been given the protection of the Agency.”
143 Ibid., Vol. 3, 24–25, containing “Purport of a letter from Esa bin Abdul Latif to Shaikh Sagar
bin Khalid, Chief of Shargah”, dated February 20, 1907, in which he indicates that Hassan
Samaiyeh had no authority to bind him. See also, ibid., Vol. 3, 78–80, 87–88. Apparently,
sometime in 1907, someone from the German Consulate and “Hassan bin Ali Samaiyeh”
also tried to induce Nakhoda Ali-ben-Ahmed Saleh (a Persian subject of Bandar Abbas
who was also a British subject after having performed service for the British for many
years but who was not one of the original partners in the red oxide concession, having
acquired his share shortly afterwards, as seen supra in text accompanying note 122) to
“sign a document to the effect that he was cognizant of, and consented to, the agree-
ment between Hassan bin Ali Samaiyeh and the German firm of Wönckhaus.” Ibid., Vol. 3,
The Period 1887–1971 511
production from Abu Musa for a period of 4 years and “not to sell or dispose of
otherwise any quantity of Bu Musa [oxide] during the term of this contract”.144
Further, Wönckhaus was granted the right “whenever this contract comes to
an end” to renew the contract “at the same price and conditions or at any rate
at the price of other serious buyer.”145 The terms of this agreement afforded
Mr. Wönckhaus a considerable margin of profit on the original concession.146
Samaiyeh entered into this agreement despite having received a specific warn-
ing against any “ill-considered compact with the German firm” by the British
Residency Agent at Sharjah in December 1904.147 This warning expressed the
British government’s concern about the political importance at the time of
“preventing the acquisition by Germany of vested interests in the Gulf”,148 a
concern which was heightened by rumours that Germany was trying to gain a
port on the Gulf.149
Upon learning of the contract with Mr. Wönckhaus, one of the other part-
ners in the concession lodged a protest with the Ruler of Sharjah in February
1907.150 Shortly thereafter, the Ruler terminated the concession altogether on
the grounds that the output sales agreement with Wönckhaus was, in the ab-
sence of his consent, a violation of the concessionaire’s duty.151 The Sheikh also
expressed his fear that entering into agreements with “strangers from foreign
Powers” could result in his losing control over the island.152
Despite the termination of the concession by the Sheikh, Hassan Samai-
yeh, then acting as Mr. Wönckhaus’s local manager in Abu Musa, refused to
stop mining operations on the island, with the consequence that the Sheikh
96–97, containing a letter from Lieutenant C.H. Gabriel, Assistant Resident and H.B.M’s
Consul at Bandar Abbas to Major Cox, Political Resident in the Persian Gulf, Bushire,
dated February 17, 1908.
144 Ibid., Vol. 3, 24, containing a copy of the “Contract between Mr. Hasan C. Semey, Lingah,
owner and holder of the Bu Musa Concession, and Mr. Robert Wönckhaus, Lingah”, dated
June 1st, 1906. Ibid., Vol. 3, 18, explaining that Mr. Wönckhaus did not have a power of at-
torney from both his junior partners.
145 Ibid., Vol. 3, 24.
146 Ibid., Vol. 3, 18.
147 Ibid., Vol. 3, 5.
148 Ibid., Vol. 3, 6.
150 Toye, Lower Gulf Islands, Vol. 3, 24–25, 88, containing “Purport of a letter from Esa bin
Abdul Latif to Shaikh Sagar bin Khalid, Chief of Shargah”, dated February 20, 1907.
151 Ibid., Vol. 3, 25, 88–89, containing a letter from Sheikh Suggar bin Khalid, to Haji Hassan-
bin-Ali Samaiyeh, dated February 21/23, 1907.
152 Ibid., Vol. 3, 54, containing a letter from Suggar bin Khalid, to Haji Hassan-bin-Ali Samai-
yeh, dated March 26, 1907.
512 chapter 8
considered that force would be necessary to oust him.153 The Ruler was, how-
ever, apprehensive as to the possible intervention of the German government
in aid of Mr. Wönckhaus, as that government had sent him a letter asking him
to withdraw the notice to quit.154 Consulting with the British government, the
Ruler obtained its assistance in sending an armed party to the island (consist-
ing of hms Lapwing, together with a force of the Sheikh’s armed retainers)
which proceeded to surround the camp where the concessionaire’s represen-
tative and workmen were encamped. Faced with the landing of this armed
party at various points on the island, they consented to leave, which they did,
taking all their effects, on October 22, 1907.155 Subsequent to these events, Mr.
Wönckhaus’s representative announced his intention to resort to the German
government for protection.156
In the midst of these events, but following the termination of the Abu Musa
concession and just a short time before the ouster of Wönckhaus’s men from
the island, Samaiyeh had sold some of the shares he held in the concession
to one Thomas Brown, a British subject of Lengeh, and a few days later Mr.
Brown sold those shares to Mr. Wönkhaus’s firm, R. Wönckhaus and Co.157 A
British Foreign Office report in December 1907 described this back-to-back sale
as follows: “Messrs. Wönckhaus, who, it may be stated parenthetically, are the
agents in the Persian Gulf of the Hamburg-American Line, finding themselves
debarred from securing a direct Concession from the Chief of Shargah, then
had recourse to devious methods.”158
153 Ibid., Vol. 3, 17–21, containing “Memorandum on the Red Oxide Concession on the Island
of Abu Musa” from the Foreign Office, dated December 13, 1907.
154 Ibid., Vol. 3, 57–58, containing a letter from Mr. Marling to Sir Edward Grey, dated 31
December 1907, indicating that there had been direct communications between the Ger-
man government and the Sheikh of Sharjah by which the German government refused to
“recognize the cancellation of the Concession, and threaten[ed the Ruler] with a claim for
heavy damages.”
of Abu Musa” from the Foreign Office, dated December 13, 1907.
156 Ibid., referring to events occurring at the end of October/beginning of November 1907.
157 Ibid., Vol. 3, 44.
of Abu Musa” from the Foreign Office, dated December 13, 1907. These devious methods
were further described in correspondence of the British Government circulated inter-
nally in order to prepare a rejoinder to the German arguments on the dispute. Ibid., Vol. 3,
64–103, containing a dossier from Major Cox, Political Resident in the Persian Gulf, to the
Secretary to the Government of India in the Foreign Department, dated March 1st, 1908.
See, in particular, ibid., Vol. 3, 78–80, summarizing the “correspondence showing that
The Period 1887–1971 513
Following the events of October 1907, there ensued a long series of e xchanges
between the German and British governments both on commercial and legal
grounds by which each party defended the interests of their respective na-
tionals or protégés. These exchanges, which took place between 1907 and 1914,
when they were interrupted by the outbreak of the Great War, included the
production of two substantial legal memoranda by each side159 and a note
from Count Metternich of Germany in December 1909 that it was prepared
to submit the dispute to the “Permanent Tribunal in The Hague” (presumably
referring to an arbitration tribunal constituted out of the panel of arbitrators
of the Permanent Court of Arbitration) if the British Government did not ad-
mit the grounds of the German claim and the joint responsibility of the Brit-
ish government and the Ruler of Sharjah for the consequences of the latter’s
actions.160 For our purposes, the following three significant points arising out
of these events and exchanges stand out:
(a) Recognition of Sharjah’s Sovereignty by Britain and Germany

Despite the long and complicated legal dispute which arose out of the
Wönckhaus Affair, it is significant that ultimately the German government
was in accord with the British government that the island of Abu Musa was
territory belonging to the Ruler of Sharjah.161 This conclusion was reached
Hassan Samaiyeh intentionally deceived and kept his third partner in the dark through-
out the proceedings in regard to the deed of agreement with the German Firm.”
159 The formal complaint of the German Firm R. Wönckhaus against the Sheikh of Sharjah
was communicated by the German government to the British government on 31 Decem-
ber 1907 (“First German Memorandum”). See Toye, Lower Gulf Islands, Vol. 3, 44–56 con-
taining a letter from Baron von Stumm to Sir Edward Grey attaching “Complaint of the
German Firm R. Wönckhaus and Co. against the Sheikh of Shargah”, dated December 31,
1907. In the complaint, the German government set out all the relevant facts that, in its
view, related to the dispute, which the German government characterized as originating
in a commercial transaction having no political objectives. Among other arguments, the
German government maintained that Sheikh Suggar of Sharjah had no right to cancel the
1898 concession as it was his uncle, Sheikh Salim, who was the owner of the mines (ibid.,
Vol. 3, 104) and even if Sheikh Suggar had the power to grant the concession, the Sheikh’s
actions in canceling it were characterized as “purely arbitrary, and, from the legal point of
view, absolutely indefensible.” Ibid., Vol. 3, 46.
160 Ibid., Vol. 3, 182, containing the covering letter of Count Metternich to Sir Edmund Grey,
dated December 4, 1909.
161 Ibid., Vol. 3, 44, containing “Complaint of the German Firm R. Wönckhaus and Co. Against
the Sheikh of Shargah”, Berlin, December 1907: “[T]he island of Abu Musa in the Persian
Gulf … appears to be included in the territory of the Shaikh of Shargah.” Ibid., Vol. 3, 64,
containing a letter from Major Cox, Political Resident in the Persian Gulf to the Secretary
514 chapter 8
notwithstanding an initial approach by Germany to Persia seeking to know

whether the island was its sovereign territory (presumably in order to then
assert that the right of the Ruler of Sharjah to cancel the underlying conces-
sion agreement was invalid).162 Britain had learned of and reacted to that ap-
proach by formally reminding the Persian Minister of Foreign Affairs of the
1904 incidents and warning him against any endeavour to put forward a Per-
sian claim to the islands.163 Otherwise, Britain’s stated legal position was that
“the sovereign rights of jurisdiction of the Shaikh of Shargah [over Abu Musa]
gave him the right to cancel the concession”164 and in so doing he “merely ex-
ercised the right which he enjoys, as a law unto himself in regard to his own
territory, by cancelling a concession in what he believed to be the interests of
the partners and himself.”165 Rather than contesting that the island constituted
of the Government of India in the Foreign Department, dated March 1st, 1908, affirming
that “the German case acknowledges the sovereignty of Shargah over Abu Musa.” Ibid.,
Vol. 3, 183–219, containing “Second Memorandum by the German Government respecting
the Abu Musa Incident, November 1909”.
162 In this respect, there is evidence that the German government, before presenting a for-
mal claim to the British government on behalf of Messrs. Wönckhaus, had apparently
attempted to get the Persian government to claim sovereignty over the island of Abu
Musa. Toye, Lower Gulf Islands, Vol. 3, 228, containing “Sketch of the Abu Musa Case from
its commencement up to January 1910, with some comment on German Rejoinder”, by
Major Cox., dated February 12, 1910. Indeed, after receiving the First German Memoran-
dum, the British speculated that the reason to mention therein the share which came to
be held in the concession by a certain Nakhoda Ali, a Persian national, was to be able to
advance a claim that the island was Persian property. Ibid., Vol. 3, 111, containing a tele-
gram from Viceroy to Foreign Secretary, dated March 20, 1908.
163 Ibid., Vol. 3, 112, containing a letter from Mr. Marling to Sir Edward Grey, dated January 6,
1908 (“Acting on instructions from his Government, German Chargé d’Affaires is endeav-
ouring to extract from Persian Government a declaration as to whether Island of Abu
claim to the island? I have already done so privately.”). See also, ibid., Vol. 3, 229, contain-
ing “Sketch of the Abu Musa Case from its commencement up to January 1910, with some
comment on German Rejoinder”, by Major Cox, dated February 12, 1910 (“It is to be noted
that before presenting their claim to us on behalf of Wönckhaus the German Government
apparently attempted to get the Persian Government to claim sovereignty over the Island
of Abu Musa.”).
164 Ibid., Vol. 3, 352.
165 Ibid., Vol. 3, 289. The British legal position also contended that contrary to the German as-
sertion that Sheikh Salim-bin-Sultan was the owner of the island which was why he had
granted the red oxide concession, Sheikh Salim was only acting as a representative of the
Ruler, Sheikh Saggur, at the time of his absence on pilgrimage to Mecca. Ibid., Vol. 3, 119.
The Period 1887–1971 515
sovereign territory of the Ruler of Sharjah, the key matter on which the British
and German governments disagreed was whether Sheikh Suggar had the legal
right to cancel the 1898 concession agreement concluded by his uncle, Sheikh
Salim, and whether the forcible execution of his decision should be regarded
as an illegal act.166 In that respect, the German government maintained that in
entering into the concession agreement, Sheikh Salim was not acting as Regent
of Sheikh Suggar but rather that he had granted the concession in his own
right, as a private owner of the island, and that therefore Sheikh Suggar had no
right to unilaterally terminate that agreement.167 Thus, although the legal posi-
tion of the German government was that the Ruler of Sharjah did not have the
right to terminate the concession, it did not challenge that he held “sovereign
rights of jurisdiction” to adjudicate on matters concerning the political admin-
istration of his country, which encompassed Abu Musa.168 This unity of legal
viewpoint between the two governments following what was undoubtedly a
very thorough legal analysis by each of them, particularly coming from Ger-
many which would have had an interest in arguing that the island belonged to
Persia, must be regarded as significant evidence in itself that sovereign owner-
ship of Abu Musa resided in the Ruler of Sharjah.
(b) Lack of Protest by Persia

The second significant point which arises from the Wönckhaus Affair is the
absence of any evidence of protest by the Persian government to any of the
The British also argued that the lease was legally constituted and that in fact it was not
“an absolute right to the partners to mine oxide on the island for an undetermined period
[but i]t was a mere permit to the partners terminable on either side at any time.” Ibid.,
Vol. 3, 119–120.
166 Ibid., Vol. 3, 184.
167 Ibid., Vol. 3, 184–188.
168 Ibid., Vol. 3, 191. Although in recent times some scholars supporting the Iranian position
have maintained that during “the protracted Anglo-German diplomatic incident … the
German government stated emphatically that Abu Musa and the Tonbs belonged to Iran”
(Bavand, “Legal Basis”, 97), that is plainly unsupported by the position articulated in the
German memorials described above. See Toye, Lower Gulf Islands, Vol. 3, 44, containing
“Complaint of the German Firm R. Wönckhaus and Col. Against the Sheikh of Shargah”,
Berlin, December 1907 (“[T]he island of Abu Musa in the Persian Gulf … appears to be in-
cluded in the territory of the Shaikh of Shargah.”); ibid., Vol. 3, 64, containing a letter from
Major Cox, Political Resident in the Persian Gulf to the Secretary to the Government of
India in the Foreign Department, dated March 1st, 1908, affirming that “the German case
acknowledges the sovereignty of Shargah over Abu Musa.”; ibid., Vol. 3, 183–219, contain-
ing “Second Memorandum by the German Government respecting the Abu Musa Inci-
dent, November 1909”.
516 chapter 8
associated events, despite its apparent knowledge of those events. The evi-
dence which almost certainly establishes the Persian government’s knowledge
of the facts underlying the Wönckhaus Affair, in particular that it dealt with the
granting (and subsequent termination) of a concession by the Ruler of Sharjah
related to mining activities on Abu Musa (a clear act of sovereignty), includes
both the correspondence from the German government in the early stages of
the case requesting the Persian government to indicate whether the island of
Abu Musa was Persian territory and the reminder sent by the British govern-
ment to the Persian Minister of Foreign Affairs about the 1904 incidents and
the warning against any endeavour to put forward a Persian territorial claim to
the island in connection with Wönckhaus’s commercial claim.169 Nor is there
any evidence that Persia protested or reacted in any way to the expulsion from
Abu Musa of the concessionaire and his men with force of arms. Such a lack
of protest in the face of an action by Sharjah to defend its sovereign rights over
the island through armed force reflects not only Persia’s acquiescence in, or
an admission of the validity of, the claim of the Ruler of Sharjah, but it also
constitutes an admission (or evidence) of the non-existence of Persia’s title
over the island and its lack of any effective control. As noted by Fitzmaurice, “a
failure by one party claiming title to territory to protest against acts that would
be encroachments on its sovereignty if title existed, may be evidence of the
non-existence of such title.”170
(c) Continuous Exercise of Sovereign Authority by the Qawásim

The exercise of sovereignty and jurisdiction over Abu Musa through the acts
undertaken by the Ruler of Sharjah during the Wönckhaus Affair may also be
said to have a further, and dual, significance, for on the one hand they demon-
strate and reinforce the continuing pattern of sovereign authority which was
the essential ingredient in his having established an effective occupation of
169 Ibid., Vol. 3, 112, containing a letter form Mr. Marling to Sir Edward Grey, dated January
6, 1908 (“ACTING on instructions from his Government, German Chargé d’Affaires is en-
deavouring to extract from Persian Government a declaration as to whether Island of Abu
claim to the island? I have already done so privately.”). See also, ibid., Vol. 3, 229, contain-
ing “Sketch of the Abu Musa Case from its commencement up to January 1910, with some
comment on German Rejoinder”, by Major Cox, dated February 12, 1910 (“It is to be noted
that before presenting their claim to us on behalf of Wönckhaus the German Government
apparently attempted to get the Persian Government to claim sovereignty over the Island
of Abu Musa.”).
The Period 1887–1971 517
the island during the nineteenth century, while on the other hand they provide
further evidence which would cut off any theoretical argument that the title
which was originally obtained was not kept up or abandoned or lost through
neglect or derelictio. Although “abandonment, as such would normally have
to be express or manifest, and could only be presumed from mere inactivity
if there was a competing claim, or if inactivity was so long continued as to
constitute abandonment or to lead to an irresistible inference of intention to
abandon”, ultimately the determination of whether a State “intended” to aban-
don territory “if latent, is really one of inference from the facts.”171 Far from in-
dicating any such intention, the facts arising from the Wönckhaus Affair point
to the opposite conclusion.
(d) Conclusions from the Wönckhaus Affair

The principal conclusions drawn from the Wönckhaus Affair – that after hav-
ing undertaken serious legal analysis within the context of a very contentious
dispute, both Britain and, more significantly, Germany determined that the
Qawásim Ruler of Sharjah was the sovereign owner of Abu Musa; that Persia
was almost certainly aware of the underlying circumstances involved (most
particularly that Sharjah had granted and then terminated a concession agree-
ment related to the island’s mineral resources, and had exercised armed force
to enforce its authority there) and lodged no protest against these sovereign
measures taken by Sharjah; and that the exercise of authority by the Ruler of
Sharjah over the island in this case fits within a pattern of sovereign displays
over that island as well as the Tunbs by the Qawásim which both precedes
these events and, as described below, follows them – are all broadly consistent
with, and reinforce, the findings set out above that on the two dates which
may constitute the critical date in the dispute (whether that is tied to the pe-
riod 1887/8 or 1903/4) the Qawásim held title to the three islands. Of equal
importance to note, however, is that these events did not result in any change
to the ownership status of the island involved – Abu Musa – as could have been
the case if, for example, those events had evinced some form of acquiescence
by the Ruler of Sharjah to Persian claims or some form of abandonment of
title. Whether any events which occurred after the Wönckhaus Affair may have
effected such a result is analyzed below in this and the following chapter.
(e) The Wönckhaus Affair – post script

On December 6, 1911 the British government submitted its “Second Memoran-
dum to the German Government Respecting the Claim of Messrs. Wönckhaus
171 Ibid., 67.

518 chapter 8
and Co. in connection with the Shipment of Red Oxide from Abu Musa”.172 The
British government’s response also contained a cover letter by Sir Edward Grey
to Count Metternich setting out a suggestion for reaching a settlement of the
dispute in the following terms:
Maintaining in the fullest manner the point of view which they have
already expressed that the Shaikh of Shargah, as an absolute Sovereign,
acted within his rights in cancelling the concession, His Majesty’s Gov-
ernment must insist on the principle that neither they themselves nor
the Sheikh can be considered to have incurred any liability for the losses
suffered by Messrs. Wönckhaus, whose claim lies solely against Hassan
Samaiyeh. His Majesty’s Government undertake, however, to use their
best endeavours to ensure that the firm should receive such sum in com-
pensation as may finally be fixed.173
Based on this suggestion, further negotiations ensued between the company

and the British government, which eventually led, in October 1913, to the par-
ties appearing to have reached a settlement in principle by which Wönckhaus
and Co. would receive a “lump sum in extinction of any rights which they may
have acquired.”174 However, the exact sum to be received by the company was
still to be determined when, at the outbreak of World War I, the negotiations
were halted.175
Requested Mining Concession on the Lesser Tunb (1908)

While the diplomatic exchanges between Germany and Britain in connection
with the Wönckhaus Affair were taking place, a British company in the red oxide
business (Strick and Co.), enquired in September 1908 from the British govern-
ment whether the islands of Sirri and Lesser Tunb belonged to the jurisdiction
of the Ruler of Sharjah with a view to being granted a concession for the min-
ing of red oxide on those islands.176 A year before, the same company had also
approached the British India Office in connection with its interest in securing
172 Toye, Lower Gulf Islands, Vol. 3, 331, containing a letter from Sir Edward Grey to Count
Metternich, dated December 6, 1911.
173 Ibid.
174 Ibid., Vol. 3, 418, containing a letter from the India Office to the Foreign Office, dated
October 2, 1913.
175 Before negotiations were suspended, the British were prepared to offer the lump sum of
£2000 (to be raised to £3000 if necessary) to Wönckhaus. Toye, Lower Gulf Islands, Vol. 3,
439–441, containing Government of India’s minutes, dated October 22, 1921.
176 Ibid., Vol. 3, 136–138.
The Period 1887–1971 519
a red oxide concession on the island of Abu Musa.177 A similar enquiry with
respect to Abu Musa was made by another firm, Messrs. Ellinger and Co., in
February 1909.178 However, in light of the fact that the dispute over Wönkhaus’s
claim was still ongoing, the British government advised that neither of these
requests could be entertained until final settlement of that dispute.179 In reply
to the September 1908 query by Strick and Co. related to Sirri and Lesser Tunb,
the British noted that the islands in question were territory belonging to the
Ruler of Sharjah.180 This position was also reflected in internal British corre-
spondence generated in connection with the query, which noted that Lesser
Tunb’s status was the same as Greater Tunb (despite the fact that the Ruler of
Sharjah had not flown his flag there as it was uninhabited).181 Although Strick
and Co. did not eventually pursue obtaining a concession on Lesser Tunb, the
company was eventually granted a red oxide concession on Abu Musa by the
Ruler of Sharjah at the end of 1922.182
The conduct and position of the British government in connection with
the request of Strick & Co. for a mining concession on Lesser Tunb (that the
island’s ownership was the same as Greater Tunb and therefore under the sov-
ereignty of the Qawásim of Sharjah who would be within their rights to grant
a concession pertaining to the island) is consistent with the evidentiary points
177 Ibid.
178 Ibid., Vol. 3, 163, containing a letter from the Foreign Office to Messrs. Ellinger and Co.,
dated February 12, 1909. Ibid., Vol. 3, 145, containing a letter from Messrs. Franck C. Strick
and Co. to Foreign Office, dated October 7, 1908.
179 Ibid., Vol. 3, 139–140, containing a letter from Government of India to Viscount Morley,
dated July 23, 1908.
180 Ibid., Vol. 3, 138, containing a letter from the Foreign Office to Messrs. Strick and Co.
(Limited), dated September 11, 1908. With respect to Sirri, the British indicated that “the
claim of the Jowasmi Arab Sheikhs to the ownership of the island, which is vested in the
Sheikh of Shargah as their Chief, has never been voluntarily dropped, but His Majesty’s
Government, though they have never in any way admitted nor withdrawn their original
objections to the claim of the Persian Government, have refrained from taking any action
in the matter.” Regarding Lesser Tunb, the British communicated to Messrs. Strick and
Co.: “[Little Tamb] is understood to be a small island 8 miles west of the Island of Tamb
proper, and the status of the island is, in the view of His Majesty’s Government, the same
as that of the larger Island of Tamb.” Ibid. See also, response to Messrs. Ellinger and Co. in
the same sense: ibid., Vol. 3, 163 (“I am to inform you that the Island of Abu Musa is owned
by the Shaikh of Shargah, a Trucial Chief under British protection; that His Majesty’s Gov-
ernment hold no lease of the island; and that there is no question at present of granting
any permanent concession of the mines.”).
181 Ibid., Vol. 3, 137, containing a letter from India Office to Foreign Office, dated September 9,
1908 with a proposed reply to Strick and Co. in those terms.
182 Ibid., Vol. 3, 443.
520 chapter 8
raised in this and the prior chapter showing that during the nineteenth cen-
tury the Greater and Lesser Tunbs were at times regarded as a geographical
unit, with the status of the smaller island following that of the larger island,
and that on the identified critical date (whether 1887/8 or 1903/4) ownership of
both islands was held by the Qawásim. Thus, the position taken by the British
in 1908 is not surprising and does not by itself signal any specific development
which might change that conclusion.
However, this episode is worthy of mention for a different reason, for it was
apparently only following the queries received from Strick & Co. in 1908 that
the Qawásim first raised their flag over Lesser Tunb. Before discussing the sig-
nificance (if any) of that act, it should be noted that one scholar who supports
the Iranian claim over the islands – Mojtahed-Zadeh – asserts that the com-
pany, after scouting the island, had in fact reported to the British government
in 1908 that residents of Sirri had told the company’s representatives that “the
Iranian flag [had been] flying on the island [of Lesser Tunb] for many years”.183
There is, however, no evidence of this assertion, and indeed it contradicts the
communications between the company and the British government cited
above, as well as other contemporaneous evidence indicating that no flag of
any party was flying at Lesser Tunb prior to the hoisting of the Qawásim flag
in 1908. At most, what the company had said was that a few of the inhabitants
of Sirri had told a company representative who had visited the island that they
thought both the islands of Sirri and Lesser Tunb were “under the Government
of Lingah (Persian)”, but no mention of any Persian flag or other activities of
the Persian government on Lesser Tunb was made.184
Notwithstanding the absence of any flag flying over the island in 1908, the
suggestion raised by Mojtahed-Zadeh that it was only as a result of the interest
of Strick & Co. to mine red oxide on Lesser Tunb that the British determined,
on behalf of the Qawásim, that it was necessary to stake a claim to the island
and raise the Qawásim flag, should be addressed.185 In brief, the relevant points
arising out of this episode are the following:
183 Mojtahed-Zadeh, “Perspectives … of the Tonb and Abu Musa Islands”, 46–47.
184 Toye, Lower Gulf Islands, Vol. 3, 145–146, containing a letter from Messrs. Franck C. Strick
and Co. to Foreign Office, dated October 7, 1908, which enclosed an August 28, 1908 report
by Captain F. Paton to the company on the visit to the islands of Sirri and Lesser Tunb.
185 Mojtahed-Zadeh’s assertion is the following: “When the Sheikh of Sharjah hoisted and
rehoisted his flag on Great Tonb in 1903 and 1904, the island of Little Tonb escaped his and
British attention … In 1908, in consequence of the firm of Frank C Strick seeking to obtain
red-oxide concessions on Farur, Sirri, and Little Tonb, the British government found it
necessary to claim Little Tonb also. Even though in its initial inquiries the company had
reported the Iranian flag flying on the island for many years, in October 1908, the British
The Period 1887–1971 521
(a) There is no absolute rule of international law which would require the
hoisting of a flag or the stationing of guards on an uninhabited island in
order to maintain sovereign title over it. Thus, the absence of the Arab
flag or guards on Lesser Tunb prior to 1908 does not by itself signify the
absence of sovereignty.
(b) In any case, the conclusion reached in the previous chapter that, on bal-
ance, the evidence indicates that Greater Tunb and Lesser Tunb formed
a “natural geographical unity” and that title over the larger island was
presumed by all parties to extend to the smaller island, largely disposes of
the argument that it was only in 1908 that the Qawásim “staked a claim”
to the island. That is because the sovereign title which the Qawásim rul-
ers established through effective occupation of Greater Tunb during the
nineteenth century would have, consistent with this conclusion, also ex-
tended to Lesser Tunb, and on that basis, the hoisting of the Arab flag on
Lesser Tunb for the first time in 1908 is not evidence that they did not
already hold sovereign title to the island, but on the contrary, the raising
of the flag should be seen as the exercise of an ownership which was al-
ready in place. Whether that was brought about by the interest expressed
by Strick & Co. in obtaining a concession to mine red oxide on the island
(and some concern by the Qawásim that their ownership of the island
was manifested in a more visible manner) is therefore largely irrelevant.
Construction of a Lighthouse on Greater Tunb (1913)

In parallel with the developments in the Wönckhaus Affair, another episode
that developed around the years of 1908–1913 concerned the erection, at the
expense of the British, of a lighthouse on Greater Tunb to facilitate naviga-
tion to which the Qawásim Ruler of Sharjah had given his consent subject to
the condition that the lighthouse would not interfere with Sharjah’s sovereign
rights over the island. On this point the Ruler was reassured in writing by the
British, who noted that “your sovereignty over the island is recognised and your
political resident in the Persian Gulf, Major Percy Cox, suggested that since Little Tonb
was of the same name as Great Tonb, its status therefore be automatically the same as
the larger island. This formulation was adopted by the British Foreign Office and the com-
pany was advised to contact the Sheikh of Sharjah for a concession. In 1908, the Sheikh
of Sharjah’s flag was raised on Little Tonb.” Mojtahed-Zadeh, “Perspectives … of the Tonb
and Abu Musa Islands”, 46–47.
522 chapter 8
flag flies”.186 At the time of the occurrence of these events, Ras Al Khaimah and
Sharjah were united, a union that lasted from 1900 until 1921.
When the Persian government found out about the plans for the lighthouse,
the Governor of the Gulf Ports protested to the British Political Resident in the
Gulf stating that “the island properly belonged to Persia”, to which the Political
Resident replied that the British government “considered … that it was beyond
doubt that the Sheikh of the Jowasim of Oman owned the island.”187 The Per-
sian Foreign Minister raised the question again in February 1913 with the Brit-
ish Minister to Tehran but again, the response of the British government was
that the island belonged to the Ruler of Sharjah.188 The matter was not pursued
any further by Persia and the lighthouse was finally completed in July 1913.189
With respect to the sovereignty dispute over that island, the significance of
these events is threefold.
First, the events surrounding the erection of the lighthouse would appear
to have constituted an exercise of sovereignty by the Ruler of Sharjah over
Greater Tunb.190 Despite the fact that the original plan for the construction of
186 Toye, Lower Gulf Islands, Vol. 3, 541, containing a letter from Lieutenant Colonel P.Z. Cox,
Political Resident in the Persian Gulf, to the Secretary to the Government of India, For-
eign Department, Simla, dated October 13, 1912. See also, ibid., Vol. 3, 542–543, containing
“Exchange of letters between Lieutenant-Colonel Sir Percy Cox, Political Resident in the
Persian Gulf and Shaikh Sagar bin Khaled, Chief of Shargah”, dated September/October
1912. The October 22, 1912 letter from Lieutenant-Colonel Sir Percy Cox to Sheikh Suggar
bin Khalid indicated: “I understood what you stated and we are obliged for your con-
currence; and in regard to what you requested about there being no interference on the
Island in regard to other matters besides the lighthouse, you need have no fear on that ac-
count. In the first place, your sovereignty over the island is recognised and your flag flies,
and as regards the keepers of the light, they will have no other business except to attend to
their lighthouse duties and they will receive strict orders to that effect. Your interests will
be benefitted and strengthened by the placing of the light at Tanb, and it is not the inten-
tion of Government that any expense should fall on you in connection therewith.” Ibid.,
Vol. 3, 543.
187 Ibid., Vol. 3, 541, containing a telegram from Lieutenant Colonel P.Z. Cox, Political Resi-
dent in the Persian Gulf to Secretary to the Government of India, Foreign Department,
dated October 13, 1912.
188 Ibid., Vol. 4, 123–130, containing “India Office, Status of the Islands of Tamb, Little Tamb,
Abu Musa and Sirri”, dated August 24, 1928, in particular paras. 25–28.
189 Ibid.
190 Cf. Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 54, commenting on the Minqui-
ers and Ecrehos case and the icj’s distinction between acts of administration proper and
“other facts which nevertheless had a bearing on the issue”, which included periodical
visits of the Jersey authorities to the Ecrehos, the carrying out of various works and con-
structions there including a slipway, a signal post and the placing of a mooring buoy.
The Period 1887–1971 523
the lighthouse came from the British government, the lighthouse’s construc-
tion did not proceed until the Ruler of Sharjah had given his consent, which
was forthcoming only once he was assured that it would not interfere with his
sovereignty over the island, and indeed that it would reinforce those sovereign
rights.191 As in the Maritime Delimitation and Territorial Questions between Qa-
tar and Bahrain case, in which the International Court of Justice considered
that the construction of navigational aids such as lighthouses “can be legally
relevant in the case of very small islands” and thus evinced acts à titre de sou-
verain for Bahrain in the island of Qit’at Jaradah,192 by approving the erection
of the lighthouse on Greater Tunb, the Ruler of Sharjah may be said to have
manifested State authority.
Second, in view of the conclusion that the Qawásim held title over the island
through effective occupation on the critical date (whether marked at 1887/8 or
1903/4), this exercise of sovereignty just a few years thereafter cannot be seen
as an act designed “deliberately for the purpose of improving its legal position”
(as that legal position was already established), but rather as “the continuation
of activities previously undertaken”, and may therefore be taken into consid-
eration as further evidence of its sovereignty over the island. In the words of
Judge Huber in the Island of Palmas case, such acts are “indirectly of a cer-
tain interest, owing to the light they might throw on the period immediately
preceding”.193 In this same respect, the response of the British government to
the two protests received from the Persian government – rejecting the grounds
of protest and insisting on the sovereign rights of the Qawásim Ruler of Shar-
jah to the island of Greater Tunb – were in alignment with the position which
the British and the Qawásim Rulers had held for a significant period of time
(in the case of the Qawásim, from at least the mid nineteenth century).
Finally, from the Iranian perspective, the two protests which were lodged by
its government against the construction of the lighthouse in which it repeated
its assertion that Greater Tunb belonged to Persia may have served to preserve,
191 Toye, Lower Gulf Islands, Volume 3, 542–543, containing an exchange of letters between
Lieutenant-Colonel Sir Percy Cox, Political Resident in the Persian Gulf, and Shaikh
Sagar bin Khaled, Chief of Shargah, September/October 1912. In one the letters from
Lieutenant-Colonel Sir Percy Cox to the Ruler of Sharjah, he said: “I have so often warned
you of the importance of keeping your flag flying, but you do not give heed; now, at all
events this Island will be preserved for you by the mere presence of the lighthouse so you
will have no anxiety; still it is always advisable for your own good name and the dignity of
the Jowasim that you keep your flag in order, and fly it when ships pass.”
rain), Merits, icj Reports 2001, 100, para. 197.
193 Island of Palmas Case (Netherlands/United States of America), Award of April 4, 1928,
riaa 2 (1928) 829, 866.
524 chapter 8
pro tanto, its position in that respect. However, as Persia did not hold title to
the island at the time it lodged these protests, they would have had no legal
effect in any case,194 and should be excluded from consideration as they must
be viewed as having no other purpose than to seek to deliberately improve its
legal position.195 As will be noted below, the same conclusion generally applies
to the other attempts made by Persia to encroach upon, protest or claim sover-
eignty over the islands during the period of the twentieth century covered by
this chapter (through November 1971).
It should be added that one scholar has asserted that there is evidence that
in a conversation between the British Minister in Tehran and an unnamed Per-
sian official in February 1913 during which the second of the Persian protests
was delivered, the British Minister purportedly stated that the lighthouse was
needed for navigation and the reason why it was being set up by Great Britain
was because Iran “cannot afford the expenses of such an undertaking”.196 The
implication of this assertion is that the construction of the lighthouse did not
have a legal significance nor could be interpreted as suggesting any Qawásim
ownership of Greater Tunb.197 As the document referred to has not been lo-
cated, nor has any reference to it been found in the British archives, it is not
possible to confirm its existence or the accuracy of its portrayal of events. In
any case, even assuming that such a comment was in fact made by the Brit-
ish government to a Persian official, it would have little legal significance. As
an evidentiary matter as to the views of the British government, the import
and context in which the comment was made is impossible to determine and
any speculation which might be attached to it simply cannot outweigh the
194 As noted by Fitzmaurice, “the protests of one party could not serve to nullify the acts
of the other, for what these were worth as manifestations of sovereignty, but could only
serve to keep alive the claim of the protesting party, and to prevent it lapsing by tacit
abandonment”, so that if the other party held title to the disputed territory, any such pro-
tests were “necessarily without legal effect.” Fitzmaurice, “Law and Procedure of the icj
(Part ii)”, 59; The Minquiers and Ecrehos Case (France/England), icj Pleadings, Vol. ii, 365.
195 Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 23, 39; Jennings, Acquisition of Terri-
tory, 33.
196 Bavand, “Legal Basis”, 100, citing to “Iranian Foreign Ministry: Digest of events of 1913,
Summary of Moazed al-Sultan’s conversation with the British Minister (February 1913)”.
See also, Mirfendereski, “Ownership of the Tonb Islands”, 138. Mirfendereski also recounts
these events in a similar way and also cites to, amongst others, the Summary of Moazed
al-Sultan’s discussions with the British Minister in February 1913. We have not been able
to locate the Persian document to which these authors refer, which they state is housed at
the Iranian Foreign Ministry.
The Period 1887–1971 525
d ocumented evidence of the British reply to the Persian protests, which stated
that it was “beyond doubt” that the island belonged to the Qawásim. More im-
portantly, however, is that at the time the comment was purportedly made,
other than the aborted attempt by the Persian government to hoist a flag on
Greater Tunb in 1904, it had never attempted to exercise any act of sovereignty
there while the Qawásim had done so to an extent sufficient to acquire title to
the island through effective occupation. Under these circumstances, the legal
significance of the construction of the lighthouse as an exercise of existing sov-
ereign rights would clearly stand on its own, and be unaffected by the implica-
tions which might or might not be drawn from any such comment.
Red Oxide Concession on Abu Musa Granted by the Ruler

of Sharjah (1922)
In December 1922, the British Company Strick & Co., which had already sought
to obtain a concession to mine red oxide on Sirri and Lesser Tunb in 1908, was
granted a red oxide concession over Abu Musa by the Ruler of Sharjah for five
years.198 The following year it received an invitation to submit an offer for a red
oxide concession on the Persian island of Hormuz. When engaging in nego-
tiations and correspondence on that opportunity (about which the company
indicated they were not interested given the five-year concession on Abu Musa
they had already obtained directly from the Ruler of Sharjah), the company
learned – and communicated to the British government – that “the Persian
Government are being urged to claim jurisdiction over Abu Musa.”199 Appar-
ently, the Persian government was being encouraged to make such a claim by a
Persian concessionaire of Hormuz oxide, who was also trying to influence the
Persian government to raise a claim to Bahrain and to refer both matters to the
League of Nations.200
198 Toye, Lower Gulf Islands, Volume 3, 444, containing a letter from Strick & Co. Ltd. to the
Under Secretary of State for India, dated December 29, 1922.
199 Ibid., Vol. 3, 445–446, containing a letter from Franck Strick & Co., Ltd. to the Under-
Secretary of State for India, Political Department, India Office, dated April 23, 1923.
200 Ibid., Vol. 3, 447, containing a telegram from Sir. P. Loraine (British Minister, Tehran) to
India Office, dated April 27, 1923. Ibid., Vol. 4, 3, containing a telegram from Sir P. Lorraine,
British Minister, Tehran to Marquees Curzon, Secretary of State for Foreign Affairs, dated
April 27, 1923 (“I learn from a private and confidential source that concessionaire of Hor-
muz oxide concession is urging Persian Government to raise Persian claim to Abu Musa,
couple that to Bahrein, and to refer both matters to League of Nations. As he has consid-
erable political influence he may succeed in persuading Persian Government to send an
agent from a gulf port to endeavour to stop work at Abu Musa. Prime Minister is, however,
526 chapter 8
In light of the information received, on May 16, 1923 the British government
verbally reminded the Persian government of the flag incident which took
place in 1903/04 and indicated that it would be unwise for the Persian gov-
ernment to follow the suggestion it had received from the Hormuzi conces-
sionaire because it would constitute a disruption of the status quo, which His
Majesty’s Government would view unfavourably and which might result in its
taking the measures it had threatened in 1904 (the sending of a warship to the
island to vindicate the rights of the Sheikh of Sharjah) to protect the owner-
ship rights of the Qawásim over Abu Musa.201
Following this warning, the Persian Foreign Minister sent a letter to the
British indicating that the islands of Abu Musa and Tunb were under Per-
sian sovereignty and protesting against the red oxide concession which had
been granted by the Ruler of Sharjah to Strick & Co.202 The British govern-
ment rejected this protest by stating that such a claim was completely in-
admissible in light of the sovereignty of the Ruler of Sharjah over both of
those islands.203 The British government further returned the letter to the
Persian government, treating the protest as “deliberately provocative and as
quite incompatible with the professions of the Persian government of a de-
sire for friendly relations with His Majesty’s Government”.204 It appears that
the Persian government did not react further to this last letter of the British
government.205
As in the case of the requested mining concession on Lesser Tunb in 1908
and the construction of the lighthouse on Greater Tunb in 1913, there are two
broad observations which emanate from the events surrounding the granting
said to be averse to raising these issues, and I think that this is likely, but there is always
danger of his hand being forced by popular outcry engineered through usual channels.”).
201 Ibid., Vol. 3, 451–452, containing a memorandum from Sir P. Loraine read to the Persian
Prime Minister on May 16, 1923.
202 Ibid., Vol. 3, 457, containing a letter from the Persian Minister for Foreign Affairs to His
Majesty’s Minister, dated May 23, 1923 (“According to information received, His Majesty’s
Consul-General at Bushire has attempted to hire the Red Oxide existing in the Islands
of ‘Tamb’ and ‘Abu Musa’ from the Sheikh of Shargah. Owing to the right of sovereignty
(proprietorship) of the Persian Government in these two islands, of which notification
was made to His Majesty’s Legation in the year 1321 (1903–1904), I request your Excellency
to be so good to cause the proper authorities to abstain from meddling with this proposed
illegal lease.”).
203 Ibid., Vol. 4, 8–9, containing a letter from Sir P. Loraine to Mustaufi ul-Mamalek, dated
May 16, 1923.
204 Ibid., Vol. 3, 462–463, containing a letter from Sir. P. Loraine (British Legation, Tehran) to
the Marquess Curson of Kedleston (Foreign Office), dated May 29, 1923.
205 Ibid., Vol. 4, 8–9.
The Period 1887–1971 527
of the red oxide concession by the Ruler of Sharjah over Abu Musa in 1922 and
the Persian government’s protest of the concession which was lodged in 1923.
First, the granting of the concession itself appears to have constituted yet an-
other exercise of State authority by the Qawásim which was consistent with,
and a “continuation of”, the earlier displays of sovereignty they had manifested
over Abu Musa, and which was consistent with the rights of title over the is-
land they had established and sought to maintain. In this respect, the grant-
ing of the concession constitutes further evidence of the legal rights which
the Qawásim held over Abu Musa which may be taken into consideration in
reinforcing the existence of those rights. Second, the protests made by the
Persian government, while not nullifying the acts of the Ruler of Sharjah, may
have been sufficient for the purpose of preserving its position on its claim of
sovereignty to Abu Musa and Greater Tunb. However, as in 1908 and 1913, and
given the continuing absence of any sovereign rights to Abu Musa pertaining
to Persia in 1923, these protests must be viewed as lacking any other legal effect,
and largely as “mere manoeuvre for position”,206 the purpose of which may be
described as seeking to improve its legal position, possibly in the hope of even-
tually effecting a prescriptive acquisition of the island.
Visit of Persian Customs Launch to Abu Musa (1925) and the

Detention of an Arab Dhow Approaching Greater Tunb by Iranian
Customs (1928)
Two further events in the years 1925 and 1928 evince Persia’s continuing inten-
tion to seek to keep its claim of sovereignty to the three islands alive, but doing
so under circumstances which, again, have the appearance of a “manoeuvre
for position”207 designed principally to improve its legal position vis-à-vis the
sovereignty dispute with the Qawásim.
The first of these events occurred in August 1925, when a Persian cus-
toms launch was sent by the Governor of Lengeh to Abu Musa to bring back
a few bags of oxide for inspection, following which a letter from the Persian
Administrator-General of Customs (written at the direction of the Ministry
of the Interior) was dispatched to the British government declaring that the
island of Abu Musa belonged to Persia.208 Faced with this claim, the British
government addressed the Persian Minister for Foreign Affairs to demand an

207 Ibid.
208 Toye, Lower Gulf Islands, Vol. 4, 25, containing a letter from M. Delecroix, for the Admin-
istrator General of Customs, Tehran, to Provincial Director of Customs, Bushire, dated
January 4, 1926.
528 chapter 8
explanation, reminding him of the 1923 exchange between the British govern-
ment and the Persian Ministry for Foreign Affairs by which the British had
clearly communicated to the Persian government that its reassertion of claims
to Abu Musa would not be tolerated.209 The Persian reply was significant. In
that reply, the Persian Minister for Foreign Affairs advised that “the Persian
government was not going to press this question”, that there was no intention
to take any further steps in the matter and that the episode had been originat-
ed within the Ministry of the Interior which had nothing to do with questions
of territorial rights.210
The next incident in the documented history of the islands happened in
1928 when a Dubai dhow approaching Greater Tunb was detained by Iranian
customs officials and was taken to Lengeh. Its small cargo of sugar and dates
was confiscated as “smuggled” and the passengers were imprisoned.211 Upon
the occurrence of this incident, the Ruler of Ras Al Khaimah requested the im-
mediate assistance of the British government under the 1892 Exclusive Agree-
ments and the British government obliged by issuing a strong and immediate
protest to the Persian government, together with a demand for the release of
the dhow with its crew and passengers and intimating that a claim for com-
pensation would be forthcoming.212 A diplomatic crisis then ensued in which
the British accused the Persian government of breaching “international law
and usage” by capturing a boat “within the territorial waters of an independent
Arab sheikh”.213 While Persia relented by releasing the dhow and its passengers
and crew, it accompanied this with yet another and more emphatic written
assertion of sovereignty over Abu Musa and Greater Tunb.214 The British, yet
209 Ibid., Vol. 4, 28–29, containing a letter from Sir P. Loraine to Sir Austen Chamberlain, dated
May 31, 1926.
210 Ibid.
211 Ibid., Vol. 4, 129, containing “India Office, Status of the Islands of Tamb, Little Tamb, Abu
Musa and Sirri”, dated August 24, 1928.
212 Ibid, Vol. 4, 40.
213 Ibid., Vol. 4, 110, containing a letter from Mr Parr to M. Pakrevan, dated August 4, 1928
(“The Island of Tunb belongs to the Arab Sheikh of Ras-el-Khaimah, who is allied to the
family of the Sheikh of Shargah. In capturing a sailing boat belonging to a foreign subject
within the territorial waters of an independent Arab sheikh is an act of ultra vires on
the part of the Persian authorities concerned, and is, moreover, contrary to international
law and usage. In view of the treaties which exist between these Arab sheikhs and His
Majesty’s Government, I have, on the instructions of my Government, to register a serious
protest against this arbitrary act.”).
214 Ibid., Vol. 4, 110–111, containing “Translation of a Note from the Acting Minister for For-
eign Affairs to His Majesty’s Chargé d’Affaires, No. 11024”, dated August 21, 1928 (“You are
The Period 1887–1971 529
again, resolutely denied the Persian claim to the islands, to which the Persian
government responded by reasserting its claim of ownership.215
As both the 1925 and 1928 assertions of sovereignty by the Persian govern-
ment were timely protested by the British on behalf of the Qawásim Rulers,
no adverse legal consequences of acquiescence or preclusion would arise. A
question does arise, however, as to whether the reply of the Persian Minister
for Foreign Affairs (in which he reported that the Persian government would
no longer “press” the question of the inspection of the red oxide deposits on
Abu Musa) could thus have legal consequences of acquiescence as the Persian
government seemed to have accepted its lack of territorial rights over the is-
land. While such an argument might be tenable, it would appear to lack a suf-
ficient foundation in light of the somewhat ambiguous wording of the Persian
government statement and given the many other protests by the Persian gov-
ernment (both before and after the issuance of this statement) in which that
government persisted in claiming sovereignty over the island.
The 1928 “Status Quo Agreement” and the Anglo-Iranian Treaty

Negotiations (1929–1935)
During the negotiations between the British and Persian governments over an
Anglo-Persian General Treaty principally addressing issues of commerce and
navigation and the settlement of mutual problems in the Gulf,216 the parties
discussed the issue of the islands of Abu Musa, Greater Tunb and Lesser Tunb,
and considered the inclusion of an article specifically dealing with the dispute.
The British suggested a draft article concerning the islands, as well as Sirri, by
which the de facto situation of occupation of the different islands would be
recognized in the following way:
The Persian Government recognise that the Islands of Tamb, Little Tamb
and Abu Musa form part of the dominions of the Sheikh of Shargah.
aware that the Islands of Tunb and Abu Musa are inseparable parts of Persian territory
and that the Persian Government does not in any way recognise the sheikh alluded to in
your above-mentioned note as independent and the owner of the said islands. Therefore,
how can it be imagined that the action taken by Persian officials on the coasts and waters
of Persia in regard to those who have carried smuggled goods is an act of ultra vires or is a
breach of international law and usage and that is should form an object of protest on the
part of the British Government.”).
215 Ibid., Vol. 4, 111–112, containing a letter from Mr. Parr to M. Pakrevan, dated September 7,
1928; ibid., Vol. 4, 113, containing a letter from M. Pakrevan to Mr. Parr, dated September 20,
1928.
216 Ibid., Vol. 4, 255–258, containing a draft of the treaty.
530 chapter 8
His Majesty’s Government, on their part, on behalf of the Sheikh of Shar-

gah, hereby
either
(a) relinquish in favour of the Government of the Shah all right and title
in and to the Island of Sirri; or
(b) recognise that the Island of Sirri forms part of the dominions of His
Imperial Majesty the Shah.217
This draft article and similar variations to it218 were rejected by Persia219 as was
a proposal of the British for Persia to offer money for the islands.220 Subsequent
217 Ibid., Vol. 4, 225. Another alternative of the proposal of the British read: “The Persian Gov-
ernment withdraw their opposition to the claims of the Shaikh of Shargah to sovereignty
over/ownership of the Islands of Tamb, Little Tamb and Abu Musa. In recognition of this
friendly act, His Majesty’s Government, acting on behalf of the Sheikh of Shargah, hereby
renounce in favour of the Government of the Shah all right and title in and to the Island
of Sirri.”. Ibid. See also, ibid., Vol. 6, 305, where Mr. Lascelles of the British Foreign Office
in his 1934 Memorandum on the Persian claim to the Tunbs and Abu Musa indicated that
“[i]n the draft Anglo-Persian general treaty … it was proposed to perpetuate the existing
de facto position, Persia recognizing that Tamb and Abu Musa belonged to the Jowasimi
Shaikhs of Oman while His Majesty’s Government (on behalf of the Sheikh of Sharjah)
recognized Sirri as Persian.”
218 Ibid., Vol. 4, 257. Article 8 of the draft treaty read: “The high contracting parties, in the
interest of the friendly relations, which currently exist so happily between them, agree
to consider as solved hereby, on the basis of the current status quo, all outstanding is-
sues regarding the sovereignty on certain islands in the Persian Gulf other than those
mentioned in the articles (Henjan, Basidu, Bahrain) of the present treaty. In particular,
the sovereignty of the Jowazimi Sheikhs of Oman over the islands of Tomb (with Nabiou
Tomb) and Abu Musa is recognized.” (translation from French by the authors).
219 Ibid., Vol. 4, 265, containing a letter from the Persian government to the British govern-
ment rejecting the draft article 8 of the Anglo-Persian treaty dealing with the islands of
Abu Musa and the Tunbs explaining that they could not agree to an article that wanted
to preserve the status quo because Persia believed that the Tunbs and Abu Musa were
Persian. The rejection read: “Regarding Article 8 of the draft treaty, as the islands of Tomb
(with Nabiou Tomb) and Abu Musa belong undoubtedly to Persia, we are committed to
ensuring that we can ourselves impose our authority on those parts of the Empire. It is
consequently useless to speak in the treaty of the current status quo towards the sover-
eignty on certain islands in the Gulf, and of Tomb and Abu-Musa. Especially, the island of
Tomb with Nabiou Tomb are of such considerable importance to us that they cannot be
detached from Persian territory.” (translation from French by the authors).
220 Ibid., Vol. 4, 331–333, containing an exchange of correspondence between Sir R. Clive to
Mr. A. Henderson, dated April 18-May 18, 1930; Mattair, Three Occupied uae Islands, 77.
The Period 1887–1971 531
British documents refer to an agreement in principle by Teymourtache, Minis-

ter of Court of Iran, by which it would abandon its claim to Abu Musa in return
for Greater Tunb, and that he even spoke of a long lease of Greater Tunb.221
However, asked by the British whether he would be willing to sell Greater Tunb
to Iran or make any other concessions, the Ruler of Ras Al Khaimah refused.222
The negotiations over the Anglo-Persian General Treaty did not achieve
much progress between 1929 and 1932, when they ultimately broke down
over the Persian claims to the three islands and the cancellation by the Per-
sian government of the D’Arcy oil concession which led to a crisis over the
Anglo-Persian Oil Company. The negotiations were all abandoned by 1934.223
The fact that the concessions offered by the British were considered illusory,
while the concessions the British demanded of Persia were – at least from the
Persian perspective – of more tangible benefit, led the Persian government
to reject the deal.224 The Persian Prime Minister was said to have explained
the breakdown of the negotiations in the following way: “he was almost sure
221 Ibid., Vol. 5, 590, containing a letter from Mr. Knatchbull-Hugessen to Sir John Simon,
dated April 9, 1935 (“Islands. – We can give way over Sirri, but this is not a great conces-
sion. Correspondingly, I would prefer to remain firm over Abu Musa (Teymourtache was
prepared to abandon Abu Musa claim in return for Tamb, and later even spoke of a long
lese of Tamb. It remains, however, to be seen whether Minister for Foreign Affairs will go
so far).”).
222 Ibid., Vol. 4, 306, containing a telegram from the Political Resident in the Persian Gulf to
the Secretary of State for India, dated May 10, 1930 (“The sheikhs [of Ras al-Khaimah and
Sharjah], after discussion amongst themselves, replied that there was no sum for which
they would agree to sell Tamb to Persia.”). See also ibid., Vol. 6, 326–327.
223 Ibid., Vol. 6, 326–327, containing a letter from the Eastern Department of the Foreign Of-
fice to the British Embassy in Tehran, dated December 1, 1954 which summarizes the ne-
gotiations from 1928 until 1932 over the general Anglo-Persian treaty; ibid., Vol. 6, 280–282,
containing a memorandum prepared by the Eastern Department of the Foreign Office
entitled “Incidents relating to the status of the Island of Sirri (1929–1950)”.
224 Ibid., Vol. 5, 281–313, containing “British Policy towards Persia, Draft Memorandum by Mr.
Rendel”, dated August 11, 1934. The concessions that the British Government was prepared
to offer concerned the remission of the Persian government’s debt to His Majesty’s gov-
ernment, the renunciation of His Majesty’s government of any rights to Basidu and the
transfer to Persia of the Zahedan railway, a line on Persian soil. However, all these conces-
sions were illusory as the debt had already been abandoned by the British Treasury as a
dead loss, the British government did not really possess any legal rights over Basidu which
they could give up and the Zahedan railway was already on Persian territory, so there
was nothing to transfer. The advantage that the British government wanted to obtain was
mainly a “definite renunciation of Persia’s claims on Bahrein, Tanb, Nabiyu Tanb and Abu
Musa.” Ibid.
532 chapter 8
[the treaty] would have been concluded had [the British] agreed to the propo
sal for surrender of Tamb and Abu Musa. In view of Persian Government [the]
present draft did not constitute a fair deal as Persia was expected to give up a
lot and receive very little in return.”225
An informal understanding that arose from the Anglo-Persian General
Treaty negotiations was the so-called 1928 status quo agreement. As with the
alleged 1904 status quo agreement, Iran and the British have contradictory ac-
counts as to its purported scope and meaning. While the Iranians have alluded
to it at times as a formal treaty and rejected its broad scope at other times,226
the British maintained that it was purely an oral agreement “which originated
in 1928 between Teymourtache [Minister of Court of Iran] and Sir R. Clive [Brit-
ish Minister in Tehran]. The understanding was that while Treaty negotiations
were in progress both Persia and His Majesty’s Government would maintain
the status quo in the Gulf, in order to avoid prejudicing the negotiations.”227
According to the same British account, since the negotiations came to an end
in 1935, “thereafter the so-called agreement might … be considered to have
lapsed.”228
As will be seen in the narration of other events occurring in the twentieth
century, the so-called status quo agreement of 1928 was invoked by both parties
on subsequent occasions. As for the significance of the negotiations over the
Anglo-Persian General Treaty, this evinced a willingness of both Iran and the
British on behalf of the Rulers to seek a peaceful resolution of the sovereignty
dispute over the islands. Although some of the exchanges during the negotia-
tions seem to imply that Iran was ready to give up its claim to Abu Musa, it
225 Ibid., Vol. 5, 393. See also, ibid., Vol. 5, 408: “After some further conversation, his Highness
[the Prime Minister of Iran] made the interesting statement that he was virtually certain
that if we had agreed to surrender Tamb and Abu Musa when Teymourtache first sug-
gested it, the treaty negotiations would have gone through.”
226 Ibid., Vol. 4, 549, containing a letter from Mr. Mallet to Sir John Simon, dated October 30,
1933. This letter, commenting on the view of the Persian Government with respect to the
violation of the status quo agreement as a consequence of the visit of a Persian Naval Ship
to Greater Tunb in 1933, indicated: “The Minister for Foreign Affairs [of Persia] told me,
on the 15th October, that he could not find any ‘status quo agreement’ … [W]hen it comes
to questions of detail, the Persian Government please themselves as to the interpretation
which they place upon the agreement, usually by pretending that some particular action
on their part is in accordance with a practice in vogue before the agreement was made.
This is, probably, what they are attempting to do in the present case, rather than to deny
or repudiate the agreement altogether.”
227 Ibid., Vol. 6, 243, containing “Minute Sheet” by British Embassy, Tehran, dated October 25,
1949.
228 Ibid.
The Period 1887–1971 533
would not be likely that any adverse legal consequences could be derived from
these negotiating positions as they were expressed precisely in the course of
negotiations and as such could not be used against it to show that Iran may
have acquiesced in the sovereignty of the Ruler of Sharjah over that island.229
Various Visits by Iranian Authorities to Greater Tunb (1933, 1934 and

1935)
A series of visits by Iranian authorities to Greater Tunb took place while the
Anglo-Persian treaty negotiations were ongoing:
(a) In July 1933, the Persian Navy, in the ship Palang, landed on Greater Tunb
and inspected the lighthouse. The British government issued a strong
protest against this action, indicating that the British did not recognise
the Persian claim to the island of Greater Tunb and that the island was
under the sovereignty of the Sheikh of Ras Al Khaimah.230 The protest
also complained that the landing constituted a violation of the 1928 sta-
tus quo agreement because it occurred while negotiations for a general
treaty were ongoing. However, the Persian government replied saying
that both the Tunbs islands and Sirri were Persia’s both de jure and de
facto and that the status quo agreement did not apply to this case “since
the officials of the Persian Government have always gone [to the island
of Greater Tunb] and have always considered, and still consider, the said
island as Persian territory de facto.”231 Thus, they maintained, the Persian
Government could not be faulted for having inspected the lighthouse on
the island of Greater Tunb, “which they consider their indisputable prop-
erty and an integral part of their territory.”232
(b) In April 1934, the Governor of Bandar Abbas, the Director of Customs
of that port and another Iranian official disembarked on Greater Tunb
and approached the representative of the Ruler of Ras Al Khaimah on
229 Cf. Chittharanjan Felix Amerasinghe, Evidence in International Litigation (Leiden: Marti-
nus Nijhoff, 2005), 174, 176–177 (stating the principle that protects the position expounded
by the parties in settlement negotiations). See also, Sir Gerald Fitzmaurice, “The Law and
Procedure of the International Court of Justice, 1951–1954: General Principles and Sources
of Law”, British Yearbook of International Law 30 (1953): 1–70, 47 (referring to the same
principle).
230 Toye, Lower Gulf Islands, Vol. 4, 526–527, containing a letter from Mr. Mallet to Persian
Minister for Foreign Affairs, dated August 22, 1933.
231 Ibid., Vol. 4, 547–548, containing a letter from the Persian Minister for Foreign Affairs to
His Majesty’s Chargé d’Affaires, dated October 21, 1933.
232 Ibid.
534 chapter 8
the island. The Persian officials interrogated the Ruler’s representative,

asking him whose flag was flying on the island, to which the Ruler’s repre-
sentative replied it was the Ruler of Ras Al Khaimah’s to whom the island
belonged, but the Persians challenged that assertion and indicated that
the island belonged to the Persian government. The Ruler’s representa-
tive was also asked what remuneration he received from the Ruler of
Ras Al Khaimah, with the Persian officials indicating that if the island
became Persian property, they would be willing to keep the representa-
tive’s present situation and double his salary.233 The British did not pro-
test this particular incident despite some internal correspondence that
highlighted the convenience of protesting and the consequences of not
doing so. The Secretary of State for India instructed that a protest was not
necessary mainly because the position of the Rulers articulated by the
British Government was already on record and the nature of the Persian
visit was equivocal. Moreover, no protest was sent in order to avoid any
needless challenge to Persia while the Anglo-Persian General Treaty ne-
gotiations were still going on.234
(c) The ship Palang paid another visit to the Greater Tunb in August 1934,
whereupon the British issued a warning to the Admiral of the Persian
fleet indicating that the island belonged to the Sheikh of Ras Al Khaimah,
which meant that any visits to the island had to be notified in advance to
the British.235 Another Persian warship visited Greater Tunb in Septem-
ber 1934 and again interrogated the representative of the Ruler of Ras Al
Khaimah.236 The captain of the ship denied that he had knowledge of the
previously issued British warning despite the fact that the warning was
repeated and that he had met with the captain of the Palang.237
The repeated incursions of the Persian government on Greater Tunb led the
British to issue a strong warning in September 1934, indicating that it re-
garded this behaviour as incompatible with the principles of the Covenant of
the League of Nations and warning that, until it stopped, the British would
233 Ibid., Vol. 5, 46–47.

234 Ibid., Vol. 5, 57–58, containing a letter from Foreign Office to India Office, dated July 2nd,
1934.
235 Ibid., Vol. 5, 60–69, containing a series of reports of the Senior Naval Officer, Persian Gulf
Division to the Political Resident in Bushire, dated August-September 1934.
236 Ibid., Vol. 5, 73–77, containing a Foreign Office note by Rendel, dated September 14, 1934
(indicating the need for urgent decision on instructions to be sent to British naval au-
thorities in the Gulf in consequence of incidents at Greater Tunb).
237 Mattair, Three Occupied uae Islands, 79; Toye, Lower Gulf Islands, Vol. 5, 60–69, 70, 141–152.
The Period 1887–1971 535
d iscontinue the negotiations for the Anglo-Persian General Treaty. A British

telegram recounting this communication to the Persian government stated the
following:
In view of the occupation of the island by the Arab ruler, these naval visits
without prior notification and these attempts to exercise jurisdiction could
only be regarded as an attempt to “jump a claim” to the island, and we could
not acquiesce in any such procedure. The visits could only mean one of
two things – either the Persian Government wished to invent a fictitious
value for their claim in future negotiations, or else they were unwilling
to make use of the peaceful and legal methods by which it is open to
them to make their claim, if they think there is anything in it, and were
attempting to achieve their object in a manner quite incompatible with
their position as signatories of the Covenant and of the Kellogg Pact. His
Majesty’s Government … could not possibly acquiesce in such a situation
and felt compelled to make it plain that the total cessation of such tactics is
the essential preliminary to the resumption of negotiations.238
Another warning that was communicated to the Persian government stated

that “if Persian ships of war refused to leave these Islands force would be
used.”239 Notwithstanding these warnings, the Persian government thereafter
persisted in reiterating its claim to the islands.240
The back and forth of these incidents, in which attempts by the Iranian
government to assert its sovereignty by sending its representatives to land
on the islands were met with timely protests by the British on behalf of the
Qawásim Rulers, with the Persian attempts at encroachment rebuffed and no
alteration of the possessory status of the islands resulting, reflects what had
become something of a pattern since the flag incident of 1904. Ultimately, given
the titles achieved by the Qawásim over the islands through effective occu-
pation during the nineteenth century and the maintenance of those titles on
the two critical dates (1887/8 or 1903/4), it is difficult not to view each of these
238 Toye, Lower Gulf Islands, Vol. 5, 114, containing a letter from Sir John Simon to Sir R. Hoare
(Tehran), dated September 28, 1934 (emphasis added).
239 Ibid. See also, ibid., Vol. 5, 124–127.
240 Ibid., Vol. 5, 125, containing a telegram from the Foreign Office to Sir R. Hoare (Tehran),
dated October 12, 1934 (“[The Persian Minister] had now received instructions both from
Tehran and from Minister for Foreign Affairs to say that the Persian government regarded
the islands of Tamb and Abu Musa as Persian territory and … as such they had every right
to send ships there. The Persian government could not therefore but regard [the British]
intimation as an unfriendly gesture.”).
536 chapter 8
post-critical date acts of the Persian government as anything other than steps
taken “with a view to strengthening the legal position” of Persia in an attempt
to support “the prosecution of the prescriptive process”,241 or what it hoped
would otherwise result in its taking possession of territories (the islands)
which were legally held by another party (the Qawásim of Sharjah and Ras Al
Khaimah). The protests and other measures (including warnings issued by the
British government that force would be used to defend the territorial rights
of the Qawásim rulers if necessary) that were continuously taken in response
to these Persian attempts effectively defended those territorial rights with the
consequence that no acquiescence or any other legal effect resulted from the
Iranian claims or acts taken.
Red-Oxide Concession over Abu Musa (1934/5)

A British company, Golden Valley Ochre and Oxide Co. Ltd., contacted the Brit-
ish government in 1934 requesting an introduction to the Ruler of Sharjah in
order to seek a concession for the mining of red oxide on the island of Abu
Musa.242 Instead of committing initially to a concession for a number of years,
the company proposed an initial six-month period in which it would be able
to inspect the deposits and have an option to purchase them. Following that
initial period, it would then be able to apply for a concession of an extended
duration.243 The contract for the initial period was signed between the com-
pany and the Ruler of Sharjah on 7 September 1934.244
The company and the Ruler subsequently signed a concession contract on
28 January 1935 for 21 years; the concession included both the islands of Abu
Musa and Sir Abu Nu’ayr.245 While the Persian government does not seem to
have protested against the initial period of six months, after the company se-
cured the 1935 concession, the Persian government did protest, reiterating its
claim to the island of Abu Musa and indicating that the granting of the conces-
sion was a violation of the status quo agreement of 1928.246 The British rejected
the assertion that the granting of a concession by the occupier and, according
243 Ibid., Vol. 5, 181–186.
244 Ibid., Vol. 5, 187, containing “Translation of an Agreement signed by the Shaikh of Sharjah
on the 7th September 1934”.
245 Ibid., Vol. 5, 616–619, containing a copy of the agreement.
246 Ibid., Vol. 5, 614, 623–628, 630–631, 633–634, 639. See also, ibid., Vol. 6, 72–73, containing
a letter from the British legation in Tehran to the Foreign Office, dated June 15, 1937, in
which it is explained that the Iranian government had issued further protests with re-
gards to the red oxide concession.
The Period 1887–1971 537
to the British, sovereign of the island, would be a violation of the 1928 status
quo agreement.247 The British explained their views in a note to the Persian
Minister for Foreign Affairs after reaffirming the sovereignty rights of the Ruler
of Sharjah over the island of Abu Musa:
I am now instructed to inform Your Excellency in reply that His Majesty’s

Government find themselves unable to accept the protest of the Iranian
Government in this matter nor can they agree that Iran has any ground
for complaint in regard to the grant of a concession by the Shaikh of
Sharjah to exploit the deposits of red oxide on Abu Musa. As the Iranian
Government are aware, His Majesty’s Government have never in the past
admitted the Iranian claims to this island nor recognised that Iran has
any rights in respect of it. This attitude His Majesty’s Government are not
prepared to modify…
Your Excellency expressed the view that the grant of this concession
to a British Company constituted a breach of the status quo agreement.
I am to explain in reply that His Majesty’s Government do not feel able
to agree that any question arises of the infringement of the status quo
agreement between them and the Government of Iran. In their view
that agreement cannot be held to preclude an occupant of any territory
from proceeding with the normal commercial development of the terri-
tory in his possession and, as the Imperial Government are well aware,
the concession which has now been granted with the full approval of His
Majesty’s Government in respect of Abu Musa, is only one of a series of
concessions which have been granted over a period of many years by the
legitimate owners of the island.248
Thus, the British viewed the granting of the concession as “merely a part of
the normal activities of the occupying Power”, and distinguished it from the
dispatch of warships to a disputed territory, as Iran had done by sending the
Palang to Greater Tunb in 1933 and 1934, which was seen by the British as a
clear violation of the 1928 status quo agreement249 and “a political action obvi-
ously affecting the political situation.”250 The British letter received a strong
reply from the Iranian Minister for Foreign Affairs on April 30, 1935 dismissing
247 Ibid., Vol. 5, 623–628.

248 Ibid., Vol. 5, 647–648, containing a letter from the British Legation in Tehran to the Iranian
Minister for Foreign Affairs, dated April 16, 1935.
249 Ibid., Vol. 5, 633–634.
250 Ibid.
538 chapter 8
the British protest and reaffirming that Iran viewed the granting of the red
oxide concession as a violation of the status quo agreement.251
In 1936, the same company that obtained the concession on Abu Musa, ex-
pressed an interest in red oxide deposits in Greater and Lesser Tunb. In analyz-
ing this proposal, the India Office advised the Foreign Office that the granting
of a red oxide concession in relation to the Tunbs would be advisable despite
the fact that if this “were to come to the notice of the Persian Government, the
latter would no doubt be inclined to dispute the validity of the concession.”252
The British government would adopt with regards to any Persian protest on
this matter the same attitude as that with respect to Abu Musa as it had never
recognized the de jure claims of the Persian government to these islands.253
The concession to Golden Valley Ochre and Oxide Co. was only granted by the
Ruler of Ras Al Khaimah in 1953.254
Once again, the granting of the 1935 red oxide concession by the Ruler of
Sharjah to Golden Valley Ochre and Oxide Co. Ltd., and the Persian protests
which ensued, followed a familiar pattern which had been established dur-
ing the 1913 Greater Tunb lighthouse affair and the 1922 Abu Musa red oxide
concession. In each of these cases, an exercise of sovereignty by the Qawásim
authorities in relation to one or another of the islands was met with vehement
protests by the Persian government asserting Persian sovereignty, while such
protests were themselves met with even more vigorous protests in reply by
the British government on behalf of the Qawásim rulers, rejecting the Persian
claim and vowing to defend the territorial rights of the Qawásim.255 As in those
251 Ibid., Vol. 5, 649–652. It should be noted that the status quo agreement referred to was
clearly the understanding reached in 1928. See, e.g., Toye, Lower Gulf Islands, Vol. 5, 623–
628, containing “Abu Musa: suggested reply to Persian Minister regarding Red Oxide con-
cession”, undated (“I feel bound to mention that during the five years or so that the status
quo agreement has been in force [i.e., from approximately 1928], your government has
never once that I can remember admitted that it was applicable to any of the cases in
which we appealed to it.”).
252 Ibid., Vol. 6, 64.
253 Ibid.
254 Mohamed Abdullah Al Roken, “Dimensions of the UAE-Iran Dispute over Three Islands,”
in United Arab Emirates: A New Perspective, eds. Ibrahim Al Abed and Peter Hellyer (Lon-
don: Trident, 2001), 183; Mattair, Three Occupied uae Islands, 87.
255 In one of the proposed replies to the Persian government, the British said with respect
of the legal effect of Iranian protests: “We know all about your claim to Abu Musa and
you know all about our opinion of the claim i.e. that it is quite baseless … You may have
thought that if you let the grant of this concession pass without comment, we might at
some future time represent your silence as proof that you had let your claim go by de-
fault. All right you have made your point. We admit that we shall never be able to use
The Period 1887–1971 539
two previous instances, two broad conclusions appear: first, that the act in
question (granting of the concession) constituted a legitimate exercise of state
authority by the Qawásim which further reinforced their territorial rights; and
second, that the protests made by the Persian government achieved nothing
more than preserving an untenable legal position on its claim of sovereignty
to the island.
In this instance, an added consideration was the allegation by the Persian
government that the granting of the concession constituted a violation of the
so-called status quo agreement of 1928. While this allegation raises a number of
interesting academic questions – for example, whether that agreement, even
if oral, constituted a treaty under international law and whether the facts evi-
dence a breach of what the parties agreed they would not do – those questions
do not have to be addressed because even if the granting of the concession was
a violation of such an agreement, that violation would have been unrelated
to the question of sovereignty and would not affect the underlying question
whether the Qawásim held sovereign title over the island at the time that pur-
ported agreement was entered into, nor the conclusion that, as determined in
this work, they did hold such title.
Withdrawal of the Flag of Ras Al Khaimah at Greater Tunb by Order

of the Ruler (1934/5)
Documents contained in the British India Office archives reveal that, in the fall
of 1934, faced with a difficult economic situation arising from the decline of
the pearl trade, the Ruler of Ras Al Khaimah requested the British to lease the
Greater Tunb (paying rent for the lighthouse on the island) and then directly
requested financial help from the British Residency in Sharjah in December
1934.256 Neither request was agreed to, and so the Ruler, apparently in an at-
tempt to attract the attention of the British, lowered the flag of Ras Al Khaimah
on Greater Tunb. In reply, the British gave the Ruler an ultimatum on 19 March
1935, indicating that he had ten days to re-hoist his flag or title to the island
would be transferred to the Ruler of Sharjah, the previous owner when the two
emirates were united.257 Before complying with these instructions, the Ruler
this argument. We also admit that the grant of fifty concessions would not affect the legal
basis of your claim (if it had a legal basis) either one way or the other.” Toye, Lower Gulf
Islands, Vol. 5, 623–628, containing “Abu Musa: suggested reply to Persian Minister regard-
ing Red Oxide concession”, undated.
256 Toye, Lower Gulf Islands, Vol. 5, 415–563, containing documents under the heading “The
actions of the Shaikh of Ras al Khaimah on Tunb island, December 1934-July 1935.”
257 Ibid.
540 chapter 8
wrote to the Political Resident explaining the reasons why the flag had been
taken down and that his representative on the island had left mainly for eco-
nomic reasons brought about by the decline in the pearl trade.258 On 3 April
1935, the Ruler’s flag was rehoisted on Greater Tunb, in accordance with the
instructions of the British.259
Some scholars who support the Iranian claim to Greater Tunb see this epi-
sode as evidence that the Sheikh acknowledged that he did not possess good
title to the island and wished to return it to Iran. One Iranian writer sets out the
following interpretation of the incident:
It is striking that during the period between 1904 and 1971, Britain want-
ed the islands to belong to the sheikhdoms more than the sheikhdoms
themselves. For example, in 1934, the Sheikh of Ras al-Khaimah decided
to surrender possession of the Tonbs to Iran, as he thought that the is-
lands were legitimate Iranian territory. The British intervened to disallow
the move, forcing the sheikhdom to keep its flag on the islands. Naturally,
the islands dispute helped worsen relations between Iran and Britain.
British policy vis-à-vis the islands once again rested on the premise that
Iranian control of the islands may have turned them into a Russian foot-
hold. With the islands under the influence of Britain’s Trucial protector-
ates, Britain exercised more control over them, simultaneously limiting
the influence of the Persian Gulf’s regional powers headed by Iran.260
Another Iranian writer describes the incident as follows:
In addition, in the same year [1934], the Governor of Bandar Abbas and
other Iranian officials visited Great Tonb in a dhow and secret negotia-
tions between Iranian officials and the Sheikh of Ras al-Khaimah led the
sheikh to remove his flagstaff from Tonb Island. When these activities
attracted the attention of the British authorities in the Persian Gulf, the
British government protested against the proceedings.
In seeking the reversal of the Sheikh of Ras al-Khaimah’s restoration of
Great Tonb to Iran, the British government explained the sheikh’s actions
as having been intended “to draw attention to the fact that no rent was
258 Ibid., Vol. 5, 526, containing a translation of a letter from the Ruler of Ras Al Khaimah to
the Political Resident in the Persian Gulf, dated March 29, 1935.
259 Ibid., Vol. 5, 531, 540, containing British reports indicating that the Ruler’s flag was re-
hoisted on Greater Tunb.
260 Amirahmadi, “Colonial-Political Dimension … Iran-uae Dispute”, 6.
The Period 1887–1971 541
received from the British for the use of the lighthouse on Tonb.” This jus-
tification is not comprehensible: Never before or since this incident has a
ruler given up part of his territory to a third country because of financial
differences between the colony and the colonial power. The only accept-
able explanation of this move can be that the Sheikh of Ras al-Khaimah,
aware of the unauthorized occupation of these islands, returned the
Tonbs to their rightful owners as a result of a disagreement with the colo-
nial power and as a result of secret arrangements with Iran. Furthermore,
whatever the explanation, the undisputed fact is that Ras al-Khaimah
returned the Tonbs to Iran when Iran was vigorously campaigning for
the recovery of these islands. The Sheikh did not give up these islands to
Saudi Arabia, Oman, Sharjah, Abu Dhabi or any other neighboring emir-
ate or entity; he gave them back to Iran.261
As seen from both narratives, the parties have very different accounts of the
motivation of the Ruler of Ras Al Khaimah in lowering the flag on Greater
Tunb. In deciphering these accounts, a couple of matters stand out. First, the
Iranian account provides no evidence of the alleged “secret negotiations” or
the supposed intention of the Ruler of Ras Al Khaimah to give up the island
to Iran, which, in any case, he did not do, or his alleged belief that Persia was
the “rightful owner” of the island. It is, therefore, based entirely on speculative
assumptions if not pure invention, unsupported by evidence which, moreover,
are at odds with the historical developments which saw the Qawásim assert
their territorial rights over the Tunbs on numerous occasions prior to and
following this incident. This contrasts with the documented evidence noted
above by which the Ruler of Ras Al Khaimah explained his reasons – financial
deprivation – for lowering the flag, which had nothing to do with a purport-
ed intention to “return” the Tunbs to Persia. In addition, it is undisputed that
the Sheikh in fact re-hoisted the Arab flag after a short period. Thus, not only
does the evidence not support a conclusion that the Ruler of Ras Al Khaimah
wished for some unarticulated reason to transfer sovereign title of the Tunbs
to Persia, but the episode can have no adverse legal consequences for Ras Al
Khaimah in any case. The lowering of the flag was a temporary situation which
was retracted promptly. Even if the flag had not been re-hoisted relatively
quickly on the island, this would not have led to the conclusion that the Ruler
had abandoned sovereignty as abandonment is not to be presumed and must
be clearly manifested through conduct and the relevant facts.262 In this case,
261 Mojtahed-Zadeh, “Perspectives … of the Tonb and Abu Musa Islands”, 51.
262 Sovereignty over Pedra Branca/Pulau Puteh, 43, para. 122; Crawford, Brownlie’s Principles,
233. It has also been noted that on various occasions the British are said to have had to
542 chapter 8
there is no probative evidence that the Ruler intended to abandon sovereignty.

On the contrary, such an assertion is supported only by conjecture and specu-
lation, and is contradicted by the conduct of successive Qawásim Rulers in
consistently resisting Iranian encroachment on the islands.
Iranian Concession for Mineral Exploration in the Area Around the

Islands (1939)
In 1939, the Iranian Ministry of Industry and Mines negotiated a concession
agreement with a Dutch company for mineral exploration in a geographical
area which appeared to encompass the islands of Abu Musa and the Tunbs.263
Within this geographical area, the contract designated “all of the Iranian is-
lands” as included in the concession.264 This prompted a communication from
the British to the Dutch highlighting that given that the islands were not Ira-
nian, the company would not be able to extend its concession to the islands.265
The Dutch replied saying that it was very unlikely that they would take an
insist and remind the Qawásim Sheikhs to keep their flags flying over the islands. See, e.g.,
Bavand, “Legal Basis”, 95 (“One symbolic manifestation of [the British] dominance was in
the form of the Sheikh of Sharjah’s flag flying on the islands, a gesture of little interest to
the Sheikh himself. On one occasion, in 1912, the resident wrote to the Sheikh of Sharjah
saying, ‘I have so often warned you of the importance of keeping your flag flying, but you
do not give heed…”). As with the temporary lowering of the flag, no legal consequences
can be attached to this so-called attitude of the Rulers and the British. In reminding the
Rulers of the need to keep their flag flying, the British were properly fulfilling their role as
the protecting power and making sure they were properly advised as to how best to keep
their rights to their territory undisturbed. As for the Rulers, while carelessness in main-
taining their flag flying at all times on an island may be said to be an unwise practice, it
cannot be said to amount to a renunciation of their right of sovereignty over the islands
as abandonment is not to be presumed and there must be a clear and without doubt
manifestation of the conduct in light of the relevant facts. Moreover, such a practice was
apparently not uncommon in the Gulf during the late nineteenth and early twentieth
centuries. For example, even Persia, probably the most established State on the Gulf lit-
toral at that time, was said to have begun regularly flying its flag at all its Gulf ports and
islands only in the 1890s. See Toye, Lower Gulf Islands, Vol. 2, 26, containing a letter from
the Persian Ministry for Foreign Affairs to Her Britannic Majesty’s Legation at Tehran,
dated March 10, 1888 (“From olden times it was not deemed necessary to set up a flagstaff
at any of the ports of the Persian Gulf. It is now some time that, having deemed it neces-
sary, they have set up flag-staves in all the ports; and they have also done the same at the
Island of Siri, which is a dependency of Lingah.”).
263 The map attached to the contract showed that most probably the islands of Abu Musa
and the Tunbs were comprised in this area. Toye, Lower Gulf Islands, Vol. 6, 132.
264 Ibid., Vol. 6, 134.
265 Ibid., Vol. 6, 131–150.
The Period 1887–1971 543
interest in Abu Musa and the Tunbs but that they had taken note of what the
British Government had said about these islands.266 In light of this response by
the Dutch, the British recorded that “there is [no] danger of the company being
tempted to interfere with the islands.”267 While the British issued these warn-
ings to the Dutch, they did not “consider it necessary, at any rate at this stage,
to make any communication on the subject to the Iranian Government.”268
At least one Iranian author appears to find some legal significance to this
episode, in particular in light of the absence of any protest by the British gov-
ernment to the Iranian government:
In 1939, a bill was introduced before the Iranian parliament to approve

and ratify a contract signed between the Iranian Ministry of Industry and
Mines and Algemeine Exploratie Maatschappij, a Dutch company, for ex-
ploration and exploitation of mineral resources, among other places, in
an area which included Sirri, Abu Musa, and the Tonbs. While knowing of
the grant, the British government did not protest.269
Drawing adverse legal inferences from the absence of a British protest in these
circumstances seems far-fetched, particularly as the concession itself did not
name the islands of Abu Musa or the Tunbs as expressly included within the
concession, referring only to “the Iranian islands” located within the desig-
nated geographical area (which included other islands which were indisput-
ably Iranian). Moreover, in view of the numerous and contentious protests the
British had lodged with the Persian government (including threatening to use
force to defend the islands from Persian encroachment), making it abundantly
clear since the nineteenth century that they regarded the islands as constitut-
ing sovereign territory of the Qawásim of Sharjah and Ras Al Khaimah, it is
simply not possible to interpret the absence of a protest in this case as legally
significant. As noted by Fitzmaurice, “generally … a protest is called for when-
ever failure to make it will, in the circumstances, justify the inference that the
party concerned is indifferent to the question of title.”270 There is no reason-
able way to argue that the British had conducted themselves at this time in a
manner which could lead to an inference that they were “indifferent” to the
question of title over Abu Musa or the Tunbs. Finally, it cannot be forgotten
that the British did communicate with the Dutch with a view to safeguarding
266 Ibid., Vol. 6, 146.

267 Ibid.
268 Ibid., Vol. 6, 144.
270 Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 59, n. 3.
544 chapter 8
the Rulers’ rights over Abu Musa and the Tunbs, making sure that these islands
were not considered by the Dutch company to be included under the “Iranian
islands” mentioned in the contract as they were not Iranian. While these com-
munications did not of course constitute a protest lodged directly with the
Iranian government, they do serve as further evidence of the position of the
British government that the islands were sovereign territory of Sharjah and Ras
Al Khaimah, not Iran. Thus, any inferences about British views on the owner-
ship of the islands which might (in isolation) be derived from the absence of
a formal British protest would be shown as inaccurate by this other evidence
in any case.
Visits of hms Nearchus to Greater Tunb (1942)

In January 1942, the British Political Resident in the Persian Gulf visited Greater
Tunb on board the hms Nearchus. Giving an account of this visit to the Po-
litical Agent in Bahrain, he first noted that there were five houses of Persians
and fifteen of Arabs on the island. The Political Resident further indicated that
some of the Persians who lived on Greater Tunb told him that “about a year
ago the son of the Shaikh of Ras al Khaima came to the Island and took away
his father’s flag [and] that at the same time he recovered Rs. 40/- tribute from
them.”271 They also stated that they expected another visit by the Sheikh’s rep-
resentative with another demand for tribute and enquired from the Political
Resident whether they had to pay it since they could not really afford it.272 The
Political Resident told the Persian inhabitants that he would make enquiries
on these points. When enquiries were made with the Ruler of Ras Al Khaimah,
he indicated that it was not true that his flag had been removed. On the con-
trary, the Ruler acknowledged the importance of hoisting his flag and indi-
cated that he “is always at pains to see that a flag is kept on the Island as soon
as he learns that a new one is needed.”273 Regarding the payment of tribute,
the Ruler confirmed that he did take tribute from the islanders every year, but
“no fixed amount and never an excessive amount” and that “his son did levy
an amount from some of the Islanders who were acting at that time as stor-
ers of goods being smuggled from the coast to Persia.”274 When hms Nearchus
again visited Greater Tunb in March and April 1942, it was confirmed by the
271 Toye, Lower Gulf Islands, Vol. 6, 153–154, containing a memorandum from the Political
Resident in the Persian Gulf to the Political Agent in Bahrain, dated January 9, 1942.
272 Ibid.
273 Ibid., Vol. 6, 155, containing a copy of a demi-official letter from Mr. C.J. Pelly, Political Of-
ficer, Trucial Coast, to the Political Agent, Bahrain, dated January 25, 1942.
274 Ibid.
The Period 1887–1971 545
commander of the ship that on both occasions the flag of the Ruler of Ras Al
Khaimah was flying on the island and that his understanding was that the flag
was kept flying permanently.275
These episodes, including the flying of the flag and the collection of “trib-
ute”, or taxes, from its inhabitants (including from its Persian inhabitants), are
representative of a continuing exercise of State authority by the Ruler of Ras
Al Khaimah over Greater Tunb. When viewed in conjunction with the episodic
accounts during the early to mid twentieth century which are set out in this
chapter, whether those by which the Qawásim exercised sovereignty over one
or other of the islands, or those by which they or the British contested the at-
tempts by Persia to do so, a consistent pattern of State authority and control
over the islands by the Qawásim clearly emerges.
Increasing Assertiveness by Iran (Post-Second World War)

While during the Second World War there were no noticeable confrontations
in the dispute over sovereignty of the three islands which have been recorded,
Iran’s claims to Abu Musa and the Tunbs intensified in the late 1940s.276 It was
believed by British and American officials that this was linked to the discovery
of offshore oil resources in the Gulf.277 Beginning at this time, Iran both pro-
actively sought once again to impose its sovereignty over the islands by taking
a number of measures which were, once again, timely protested by the British
on behalf of the Rulers of Sharjah and Ras Al Khaimah, and (in 1954) approach-
ing the British government with the aim of reaching an accord on Iran’s desire
to obtain control of the islands. As in the pre-war period, the back and forth
of acts and claims of sovereignty by both sides during the late 1940s and 1950s,
coupled with protests at the other side’s conduct, cannot be seen as having ef-
fected any change in the legal status of the islands. Thus, while Iran continued
to assert its ownership of the islands and take various measures to impose its
sovereignty on the ground (summarized below), the British, on behalf of the
Rulers of Sharjah and Ras Al Khaimah, continued to resist such measures, both
through counter-protests of their own as well as by taking steps to ensure that
physical possession and control remained in the hands of the two emirates.
The cumulative effect of these various acts was, as it had been throughout the
post- critical date period, to preserve the established ownership of the islands
by Sharjah and Ras Al Khaimah. As noted previously, as Persia did not hold title
275 Ibid., Vol. 6, 157, containing a memorandum from the Political Resident in the Persian Gulf
to the Political Agent, Bahrain, dated April 23, 1942.
277 Ibid.
546 chapter 8
to any of the islands at the time it lodged these protests or took these measures,
they would have had no legal effect in any case, and should be excluded from
consideration as they must be viewed as having no other purpose than to seek
to deliberately improve its position.278 Also at around this same time, and as a
consequence of the discovery of offshore oil in areas adjacent to their domains
in 1949, the Rulers proclaimed their exclusive jurisdiction and control over
their continental shelves, indicating their willingness to negotiate boundaries
with their neighboring States, including the negotiation of a median line with
Iran.279 Iran, for its part, only claimed its continental shelf in 1955.280
Iranian Intention to Establish Administrative Offices on the Islands

(1948)
As noted, at the end of 1948 the Iranian government, through its embassy in
London, verbally took up the question of ownership of Greater Tunb and Abu
Musa with the British Foreign Office.281 In these discussions, the Iranian gov-
ernment advised the Foreign Office that Iran wished to “establish small admin-
istrative offices on the two islands” as a way to control smuggling and that they
were approaching the British in a friendly manner to make sure there were
no objections.282 The Foreign Office proposed to reply verbally to the Persian
Ambassador indicating that the British government could not “agree to the
Persian Government taking over territory belonging to Arab rulers under [Brit-
ish] protection.”283 A message similar to this was communicated to the Persian
Ambassador in London on 28th February 1949 and to the Iranian Minister for
Foreign Affairs on 19th March of the same year.284 This led to a response from
the Persian government denying any Arab sovereignty over the islands and
278 Fitzmaurice, “Law and Procedure of the icj (Part ii)”, 23, 39, 59; The Minquiers and Ecre-
hos Case (France/England), icj Pleadings, Vol. ii, 365; Jennings, Acquisition of Territory, 33.
279 Mattair, Three Occupied uae Islands, 85; Toye, Lower Gulf Islands, Vol. 6, 313–314, contain-
ing a letter from the Foreign Office to Sir Roger Stevens in Tehran, dated July 8, 1954; Ali
A. Hakim, The Middle Eastern States and the Law of the Sea (Manchester: Manchester Uni-
versity Press, 1979), 31–35.
280 Mattair, Three Occupied uae Islands, 85; Hakim, Middle Eastern States, 31, 35.
281 Toye, Lower Gulf Islands, Vol. 6, 180–182, containing a telegram from the Foreign Office to
the British representation in Tehran, dated December 14, 1948.
282 Ibid.
283 Ibid.
284 Ibid., Vol. 6, 196–197, containing a telegram from the Foreign Office to the British repre-
sentation in Tehran, dated March 2, 1949; ibid., Vol. 6, 198, containing a telegram from the
British Embassy in Tehran to the Secretary of State for Foreign Affairs, dated March 16,
1949.
The Period 1887–1971 547
r easserting the Persian claim285 and a subsequent response of the British reas-
serting the Rulers’ sovereignty over the islands.286
Planting of Iranian Flag on Lesser Tunb (1949)

In view of these exchanges, the hms Nearchus was again dispatched to visit
Greater Tunb island on 23 September 1949. During the visit, the captain of the
ship was informed by the local villagers that a flagstaff had been erected by the
Persian government on Lesser Tunb and that they were intending to establish
a customs post on Greater Tunb.287 Regarding the flagstaff, this rumour was
confirmed by the Senior British Naval Officer in the Gulf who visited Lesser
Tunb on 12 October of the same year. There he found a “twenty foot, well made
flagstaff and tin flag painted with the Persian colours lying at the foot”.288 He
proceeded to throw the flagstaff over the cliff and took the flag with him.289
As for the establishment of a customs post on Greater Tunb, the Naval officer
indicated that there was no truth to it.290
Visit of Iranian Naval Vessel to Abu Musa (1951)

In February 1951, a unit from the Imperial Iranian Navy visited Abu Musa, en-
tering the village and questioning the shop-keeper concerning the ownership
285 Ibid., Vol. 6, 199, containing a translation of a letter from the Iranian Ministry for Foreign
Affairs to the British Ambassador in Tehran, dated April 11, 1949 (“[W]henever the British
Governments put forward the question of ownership of thee islands by Shaikh Sharjeh
and Skhaikh Ra’s-ul-Khaimah the Imperial Government strongly and clearly rejected the
Shaikh’s claims and stated that under no circumstances would they relinquish their rights
in those islands.”).
286 Ibid., Vol. 6, 230–231, containing a letter from the British Embassy in Tehran to the Ira-
nian Ministry for Foreign Affairs, dated August 24, 1949 (“As the Imperial Government
are aware, His Majesty’s Government have never in the past admitted the Iranian claim
to these islands nor recognised that Iran has any rights in respect of them. In the absence
of new evidence to the contrary, His Majesty’s Government therefore see no reason to
depart from the view which has been made fully clear … that the islands in question are
subject to the Sheikhs of Sharjah and Ras ul Khaimah, and are in no way legally or other-
wise subject to the sovereignty of the Imperial Government.”).
287 Ibid., Vol. 6, 236, containing a telegram from Bahrain to Foreign Office, dated September
28, 1949.
288 Ibid., Vol. 6, 242, containing a telegram from Foreign Office to Tehran, dated October 14,
1949.
289 Ibid.
290 Ibid., Vol. 6, 247, containing an extract from a letter from the Persian Gulf Residency, dated
November 7, 1949.
548 chapter 8
of the island and the nature and pay of labour.291 Once this episode became
known to the British, they acted to safeguard the Ruler of Sharjah’s rights
over Abu Musa by sending a protest note to the Iranian Ministry for Foreign
Affairs.292
Tripartite Discussions (1954–55)

Following a series of letters asserting Iranian claims over the islands and other
exchanges, in 1954 the British government began discussing internally ways
to resolve the dispute over the three islands of Abu Musa, Greater and Lesser
Tunb, together with the island of Sirri (already held by Iran since 1887) and the
island of Bahrain, which Iran maintained also belonged to it.293 The Iranian
government also informally communicated to the British its intention to settle
the matter of the islands of Abu Musa, Greater and Lesser Tunbs and Sirri and
urged some of the British officials in charge of the relevant departments at the
Foreign Office to go back and read the correspondence regarding the 1929–1931
discussions on the topic of the islands which took place during the negotia-
tions on the Anglo-Persian General Treaty. Although according to the Iranian
Minister of Foreign Affairs, Abdullah Entezam, this correspondence “con-
tained … a possible solution” to the dispute over the three islands,294 the Brit-
ish were skeptical.295
What emerged from these discussions was an entrenched Iranian position
on the three islands and a maintenance of the position of ownership which
the Rulers of Ras Al Khaimah and Sharjah had held for decades, while for its
part the British Foreign Office began exploring options for what it appeared
to think would be a pragmatic, if not legally-based, resolution to the dispute
which would also seek to resolve simultaneously the Iranian claims to Sirri
(conceding Iranian sovereignty) and Bahrain (insisting on a renunciation of
all Iranian claims). Thus, the Foreign Office first considered, subject to the
consent of the Rulers of Sharjah and Ras Al Khaimah, proposing a settlement
which would provide for: (i) the sale of the Greater and Lesser Tunb to Iran
by the Ruler of Ras Al Khaimah at a price to be fixed between the two; (ii) the
291 Ibid., Vol. 6, 253, containing a telegram from the Political Resident in Bahrain to Foreign
Office, dated March 1st, 1951.
292 Ibid., Vol. 6, 260, containing a letter from the British Embassy in Tehran to the Imperial
Ministry of Foreign Affairs, dated April 26, 1951.
293 Ibid., Vol. 6, 332–333, containing Foreign Office minutes and note outlining the back-
ground to Iranian claims to the islands, dated November 1954 – January 1955.
294 Ibid., Vol. 6, 344–346, containing a letter from the British Embassy in Tehran to the Foreign
Office, dated December 18, 1954.
295 Ibid.
The Period 1887–1971 549
Ruler of Sharjah “to renounce absolutely his de jure claim to Sirri”; and (iii)
“that in return for these concessions the Persians would renounce absolutely
their claim to Abu Musa.”296 This reflected a line of thinking at the Foreign
Office which was arrived at on the basis of various considerations, including
the perceived lack of economic value of the Tunbs islands as no minerals had
been found there, their closer proximity to the Persian coast and the fact that
they were the Persian’s “main preoccupation”, the fact that Abu Musa’s land
contained valuable deposits of red-oxide and the fact that the Ruler of Sharjah
would most likely not have any difficulties in giving up his claim to S irri.297
Resolving the disputes over these four islands in this way would leave the
dispute concerning Bahrain as the only outstanding issue between the Brit-
ish (and their Arab protected states) and the Iranians in the Gulf.298 A subse-
quent internal British memorandum, prepared following a reassessment of the
chances of Persia giving up its claim to Bahrain, revised the proposal by also
requiring a renunciation of the Persian claim to Bahrain as an essential point
in the settlement.299 These proposals also made sense, according to the British
assessment, in a “geographically logical [way] and would observe the median
line between the two coasts”, with the result that Iran would retain the islands
to its side of the median line (Sirri and the Tunbs) while the Qawásim would
retain the one island (Abu Musa) on their side and Bahrain, also on the Arab
side, would remain in the hands of its Arab rulers.300
When the British government consulted the Ruler of Sharjah, he accepted
the proposal to give up Sirri in exchange for Persian recognition of his sover-
eignty over Abu Musa.301 As for the response of the Ruler of Ras Al Khaimah
to the proposal, while at first he indicated that he was prepared to sell the
Tunbs, he soon changed this position in favor of a long lease to Iran for a price
of Rs. 50 million and on which he imposed several other conditions, such
as the preservation of his oil and mineral rights emanating from the island,
the maintenance of control over the lighthouse on the island, the right of his
296 Ibid., Vol. 6, 338–339, containing a Foreign Office memorandum by A.D. Parsons entitled
“The Persian Gulf Islands of Tamb, Little Tamb, Abu Musa, and Sirri,” dated December 7,
1954.
297 Ibid.
298 Ibid.
299 Ibid., Vol. 6, 347–348, containing a Foreign Office memorandum by C.A.E. Shuckburgh,
dated January 7, 1955. See also, ibid., Vol. 6, 357–358, containing a Foreign Office memo-
randum by Leslie Fay, dated January 31, 1955.
300 Ibid., Vol. 6, 347.
301 Ibid., Vol. 6, 362, containing a letter from the Political Agency in Dubai to the British Resi-
dency in Bahrain, dated March 25, 1955.
550 chapter 8
f ishermen and launches to use the island and the abolition of Persian fees such
as customs, with regard to his own subjects.302 These conditions were consid-
ered “ludicrous” by the British Political Agent and very unlikely to be accepted
by the Persian government.303
The ensuing discussions between the British (on behalf of themselves and
the Rulers) and Iranian governments explored a number of avenues for resolv-
ing this basket of disputes, but produced no agreement and, with respect to
the dispute over Abu Musa and the Tunbs, nothing which impacted the legal
status of those islands or the respective positions which the parties had main-
tained in prior years. Thus, while the Persian Minister for Foreign Affairs ap-
peared to assent to the proposition of the British Minister in Tehran that the
Iranian claim to Bahrain was unrealistic when the two had a conversation in
May 1955,304 the Iranian Foreign Minister indicated with respect to Abu Musa
that Iran could not renounce her claim to it as “by sentiment and tradition
[it] was basically Persian.”305 In response to this, the British Ambassador in
Tehran reminded the Iranian Foreign Minister of two things: that Abu Musa
was “more than half way across the Gulf” and not closer to the Persian shore
as the Minister seemed to think and that “an agreement along the lines [the
British were] now outlining had, at one stage, been contemplated from the
Persian side, although not perhaps with full governmental authority, during
the 1929–1931 conversations.”306 The British Ambassador also wanted the Per-
sian Minister to convey to the Shah that the British did not agree to any com-
promise on Bahrain. The Persian Minister replied that he would look into the
matter of the islands but expressed that “he did not appear very hopeful of a
solution at the moment.”307
Upon looking into the matter further, the Persian Foreign Minister main-
tained in August 1955 that the position that the British were adopting with
respect to the four islands “was clouding Anglo-Persian relations”, highlighting
that the Persian parliament and people thought the islands were Persian and
that “[a]s soon as they found out that [the British] claimed the islands on the
302 Ibid.
303 Ibid.
304 Ibid., Vol. 6, 368, containing a letter from the British Embassy in Tehran to the Foreign Of-
fice, dated May 2, 1955.
305 Ibid.
306 Ibid.
307 Ibid.
The Period 1887–1971 551
part of [its] protégés, there would be an explosion.”308 Asked about whether

the Persian government would agree to go to arbitration, the Persian Foreign
Minister replied that they would do so only if the question of Bahrain was in-
cluded too, and that in that regard the Persian government would respect the
wishes of the people of Bahrain expressed in this arbitration. The use of the
word “arbitration” in this way by Iran evinced that what Iran had in mind was
more of “a political enquiry ascertaining the wishes of the inhabitants” rather
than “a legal finding determining the rights of ownership.”309
Again, no major significance can be attached to the negotiations between
the Iranian and British governments in 1954–1955 other than that they evinced
a willingness of both Iran and the British (on behalf of the Qawásim Rulers)
to try and achieve a peaceful solution to the sovereignty dispute over the is-
lands. Compared to the negotiations carried out in 1928–1935, the position of
the Rulers and, in particular, of Iran were as or even more entrenched and the
concessions they were willing to make were few. This notwithstanding, as indi-
cated above, no adverse legal consequences can be derived from any of these
concessions as they were done in the course of failed negotiations and as such
cannot be used against either of the parties to show that they have acquiesced
in the other party’s sovereignty claims over the islands.310
Unconfirmed Reports of Iranian Encroachment on the Islands (1956)

Starting in August 1956, different sources, including persons aboard an Abu
Musa dhow, a Persian traveller from Lengeh and press reports on the po-
sition of the government of Iran, spread various rumours about Iranian ac-
tions planned for or having taken place on the islands of Abu Musa and the
Greater and Lesser Tunb. The first source claimed that Persian officials had
308 Ibid., Vol. 6, 370–371, containing a note of a discussion with Iranian Foreign Minister by Sir.
I Kirkpatrick, dated August 6, 1955; ibid., Vol. 6, 372–374, containing a minute entitled “The
Persian Gulf Islands” by Fry, dated August 12, 1955.
309 Ibid., Vol. 6, 371. According to one author, in 1953, the Iranian Ministry of Foreign Affairs
had set up a commission of enquiry to study the ways in which the dispute over the is-
lands could be resolved and that in the report which it produced, the Ministry recom-
mended to refer the matter to the International Court of Justice, at the same time urging
the Iranian government not to “allow the controversy over the issue to die out”, on the
basis of which the government kept attempting to impose its sovereignty over the islands
and protesting against any British or Arab action on the islands. Mirfendereski, “Owner-
ship of the Tonbs Islands”, 139.
552 chapter 8
landed on Abu Musa with the intention of claiming Iranian sovereignty,311

whereas the second story alleged that the “Persian Government was preparing
to send a number of administrative officials to Abu Musa at the end of August
[of 1956].”312 Finally, various press reports in September 1956 noted that “an
authorized spokesman of the [Iranian] Ministry of Foreign Affairs declared
on September 5 that the Iranian Government is in the process of preparing
to occupy several small islands in the Persian Gulf which belong to Iran, in-
cluding Abu Musa [and that] the Sheikh of Sharjah is shortly going to Tehran
to negotiate.”313 In the event, none of these rumours was substantiated. The
British government had dispatched ships to the islands, which found nothing
to indicate that the reports were accurate, and the Iranian Ministry of Foreign
Affairs flatly denied that the Ruler of Sharjah would be going to Tehran to con-
duct any negotiations over Abu Musa.314 Notwithstanding that they were un-
confirmed, in light of the rumours the British once again “made plain to the
Iranian Government” their position that sovereignty over the islands was held
by Sharjah and Ras Al Khaimah.315
Iranian Military Incursions (1961–71)

Other attempts by Iran to impose its sovereignty over the islands during the pe-
riod analyzed include, among others, an Iranian helicopter landing on Greater
Tunb in May 1961, which provoked a protest by the British on behalf of the
Ruler of Ras Al Khaimah,316 and the occasional patrolling by Iranian warships
in the territorial waters of Greater Tunb between 1968 and 1971. These naval
patrols prompted the British to order overflights, later protested by Iran, which
served “notice on Britain that the Iranian ships now were under orders to fire
on British planes.”317 No such hostile incidents ever occurred.

312 Ibid., Vol. 6, 381.
313 Ibid., Vol. 6, 382.
314 Ibid., Vol. 6, 388, containing a letter from the Foreign Office Department to Golden Valley
Colours Limited , dated November 13, 1956. This company held the red oxide concession
in Abu Musa and raised its concerns with the British Government about the press reports
that indicated that Iran had successfully occupied a series of small islands in the Gulf,
including Abu Musa. See ibid., Vol. 6, 387, containing a letter from Golden Valley Colours
Limited, dated November 5, 1956.
315 Ibid., Vol. 6, 388.
316 Mirfendereski, “Ownership of the Tonb Islands”, 140; Mattair, Three Occupied uae Islands,
91–92; Toye, Lower Gulf Islands, Vol. 6, 429–473.
The Period 1887–1971 553
Conclusions
As laid out in this chapter, there are two possible critical dates on which the
sovereignty dispute over the three islands may be said to have first crystallized:
those dates tied to the events which occurred during 1887/8 and those which
occurred during 1903/4. An analysis of the available documentary e vidence
reveals that on both of these dates the Qawásim of Sharjah and Ras Al Khaimah
held sovereign ownership of the islands as a consequence of having carried out
acts of effective occupation of terra nullius during the nineteenth century and
having maintained its sovereign rights thereafter. There is no probative evi-
dence of any Persian connections with or control over any of the three islands,
nor any claim of ownership, prior to the identified critical dates, and indeed on
the first of these potential critical dates, the evidence indicates something less
than a formal Persian claim to any of the islands. The asserted Persian control
over the islands through the Qawásim rulers of Lengeh prior to those critical
dates, which has been put forward as justifying the Persian claim, is unsupport-
ed by evidence nor has any credible legal basis. Despite the persistent and in-
creasingly assertive nature of the effectivités Iran sought to exercise over one or
more of the islands following these critical dates, and in particular during the
flag incident of 1903/4 and thereafter, none of these acts up to the end of 1971
resulted in the loss of territorial sovereignty by the Qawásim Rulers since in re-
sponse to virtually every attempt of the Iranian government to seek to impose
its sovereignty over the islands, either an unambiguous protest was lodged by
the British government on behalf of those Rulers or other effective counter-
measures were taken in defense of the Qawásim territorial rights. Throughout,
possession of the islands by the Rulers of Sharjah and Ras Al Khaimah was
maintained, under the protection of Britain, with Persia failing to establish any
measure of control over any of the three islands despite its repeated attempts
to do so. Furthermore, throughout the period following the critical dates and
up to the beginning of the 1970s, British officials sent messages to the Rulers
of Sharjah and Ras Al Khaimah confirming Britain’s recognition of their title
to Abu Musa and the Tunbs and communicated those messages to the Persian
government through diplomatic channels. These communications served fur-
ther notice on Persia that its claims were considered invalid and would not be
acquiesced to.
In the following chapter, the events and legal consequences of the Memo-
randum of Understanding (mou) related to Abu Musa, concluded between
Iran and Sharjah at the end of November 1971 will be analyzed, together with
the forcible seizure of the Tunbs by Iran on 30 November 1971 and the sub-
sequent relevant events up to the present. Regarding Abu Musa, the analysis
554 chapter 8
will be undertaken both from the point of view of the legal significance (if
any) of the mou for the sovereignty dispute over that island and to determine
whether the subsequent conduct of either of the parties to the sovereignty
dispute could be said to have amounted to acquiescence or admission of the
validity of the claim of the other party. As for the Tunbs, the legal implications
of the seizure by force of the two islands by Iran will be examined, together
with the subsequent conduct and public manifestations of the parties in order
to determine whether there has been any acquiescence or admission of the
validity of the claim of the other party to the dispute.
chapter 9
The mou Related to Abu Musa, the Seizure of the

Tunbs by Iran on 30 November 1971 and Subsequent
Events up to the Present
This chapter will deal with the historical events during the period that started
with the announcement by the British in January 1968 that they would with-
draw their forces from the Gulf by the end of 1971, and the legal consequences
relating to the sovereignty dispute over the islands which arose out of those
events. As will be reviewed in detail below, the British withdrawal culminated
(in the case of Abu Musa) in the signature of a “memorandum of understand-
ing” (“mou”) between the Ruler of Sharjah and Iran under which the parties
agreed to divide jurisdictional control of the island (without either side recog-
nizing the claim of sovereignty of the other), and (in the case of the Tunbs) in
an armed seizure of the two islands by Iran on 30 November 1971 after the Ruler
of Ras-al-Khaimah refused to entertain any agreement under which the Tunbs
would be ceded or otherwise transferred to Iran. The events of November 1971
marked a watershed in the history of the dispute over the islands on various
levels. For the first time, Iran had come to possess the Tunbs and establish a
presence on Abu Musa. Also for the first time in almost a century, the Brit-
ish retreated from their position of outright defense of the sovereign rights of
Sharjah and Ras Al Khaimah in the dispute, and indeed played a central role
in bringing about their loss of sovereign possession, albeit in circumstances
(their withdrawal from the Gulf) in which it had become far more complicated
for Britain to continue to guaranty the preservation of those sovereign rights.
Finally, and also for the first time, armed force was employed in connection
with the dispute, with Iranian forces taking the Tunbs militarily with a result-
ing loss of life on both sides.
These events must be viewed against the conclusions reached in the last
chapter – that Sharjah and Ras Al Khaimah held sovereign title to the islands
from the nineteenth century and throughout the twentieth century up to
the beginning of the 1970s. Thus, the context in which the outright seizure of
the Tunbs by Iran and the signing of the mou allowing the presence of Ira-
nian forces on Abu Musa occurred was one in which ownership of the islands
did not rest with Iran. For purposes of this work, therefore, it must be deter-
mined whether either of these actions, or any events occurring subsequently,
resulted in a change of sovereign title over any of the islands, whether through

556 chapter 9
acquiescenceor any other legal principles. Finally, whether or not the mou, by
its terms, effected any change of sovereignty over Abu Musa, the legal status
and validity of that document, and (in light of historical events) the conse-
quences of its breach, must still be determined.
With these issues in mind, this chapter will set out a detailed summary of
the negotiations regarding the mou on Abu Musa and the failed negotiations
over the Tunbs which led to the Iranian seizure of those islands, as well as
the relevant historical developments over the following more than 45 years.
Following the review of these historical events, a number of questions will be
addressed:
(i) With respect to the Tunbs, was their seizure a violation of international
law, particularly in light of the rule of non-forcible acquisition of territory,
which prevents the consolidation of title, even in situations where the
territory is disputed, and notwithstanding any such possible violation,
have any subsequent events evinced an acquiescence by Ras Al Khaimah
or the uae to Iranian possession of the islands such that sovereign title
has been acquired by Iran?
(ii) With respect to Abu Musa, did the mou, assuming its validity, or any sub-
sequent events bring about a change in the legal status of the island as a
sovereign possession of Sharjah or the uae?
(iii) What is the legal status and effect of the mou under international law,
particularly in light of the circumstances of its conclusion which show
grounds for considering that it was procured under the threat of the use
of force by Iran against Sharjah?
(iv) Despite the circumstances of its conclusion, have any statements made
by the uae which may have subsequently endorsed the mou, precluded
an argument as to its invalidity?
(v) If the mou, including its provisions dividing jurisdictional control of the
island of Abu Musa, is a valid international agreement, are there circum-
stances in which it may be terminated notwithstanding the absence of
any clause specifying its duration?
Relevant Historical Developments
British Withdrawal from the Gulf

Once the British government decided in early 1968 that it was going to with-
draw from the Gulf and bring to a close the protectorate arrangements it had
in place with various Gulf sheikhdoms, including Sharjah and Ras Al Khaimah,
The mou Related to Abu Musa 557
by the end of 1971,1 it began to consider how that withdrawal was going to af-
fect several key matters, including the formation of a federation of Arab states
in the Gulf (what was to become the United Arab Emirates), the delimitation
of the Gulf’s maritime borders and the several pending territorial disputes be-
tween Iran and other Gulf states, including in particular the disputes related to
Iran’s claim to Bahrain and its claim to the islands of Abu Musa and the Tunbs.
This latter dispute, and Iran’s stated intention to seize the islands by force if
an agreed settlement on transferring their control to Iran could not be found,
presented the British with a predicament, which was succinctly summed up
in a confidential June 1968 Foreign and Commonwealth Office memorandum
which stated in part:
So long as Britain retained her special position in the Persian Gulf, the ex-
istence and persistence of these disputes constituted an irritation but not
a major international problem. Her Majesty’s Government’s decision to
withdraw British forces and, consequentially, to withdraw British protec-
tion from the Persian Gulf States by the end of 1971 has transformed the
situation. It has already alarmed the Iranians about their security once
the British have left. They have no confidence in the ability of the Arab
States concerned to resist radical nationalist subversion or even Com-
munism. It has also given the Shah’s domestic opponents a stick with
which to beat him should he put himself in a position where they could
accuse him of giving up Iranian claims at a time of increased insecurity.
The Shah himself (a point which must on no account be mentioned out-
side the British Service) privately recognises that any settlement which is
to endure must involve a face-saving arrangement for dropping the Ira-
nian claim to Bahrain. He remains obdurate, however, over the islands at
(c) above [i.e., the Tunbs] and, for tactical purposes at least, equally ob-
durate over Abu Musa (he already occupies Sirri de facto). Though wiser
counsels seem to have prevailed for the moment, the Iranians are known
seriously to have considered whether they should not attempt to seize
1 The Prime Minister, Harold Wilson, announced on January 16, 1968 to the House of Commons
that Britain would withdraw all its troops from the Gulf by the end of 1971. See Parliamentary
Debates (Hansard): House of Commons, Official Report, Vol. 756, Columns 1577–620 (“We
have accordingly decided to accelerate the withdrawal of our forces from their stations in
the Far East which was announced in the Supplementary Statement on Defence Policy of
July 1967 (Cmnd. 3357) and to withdraw them by the end of 1971. We have also decided to
withdraw our forces from the Persian Gulf by the same date.”).
558 chapter 9
the islands at (c) above and Abu Musa while the British were still present
rather than be left with the problem of securing control over them after
the British had left.2
During the course of the years leading up to the British announcement, nei-
ther Iran nor the Emirates of Sharjah and Ras Al Khaimah had softened their
respective positions on the islands’ sovereignty, and if anything, those posi-
tions, particularly that of Iran, had become more strident. As the Shah was
reported to have stated, he considered that “it was only the British presence
in the Gulf in support of the Trucial Rulers which prevented Iranian recovery
of the Tunbs and Abu Musa in 1887 at the same time as Qawásim authority on
the Iranian mainland was abolished and Sirri occupied.”3 For that reason, Iran
stated that it could not agree to any discussion on the question of sovereignty
over any of the three islands and claimed that it was entitled, after British with-
drawal from the Gulf, for the islands to be returned to her.4 Moreover, Iran had
signalled its intention as early as 1968 to seize the islands by force upon the
British withdrawal if the Arab Rulers were unwilling to surrender them before
that date through a negotiated settlement. This was captured in an internal
British note written in August 1971:
In the past, Iran’s claims over Abu Musa were not serious. Iran’s demand
to impose its sovereignty on the island openly and by force only became
known to the world after the British Government had announced its de-
sire to withdraw from the Arabian Gulf at the end of 1971. Only after this
announcement did Iran threaten to use force to occupy the island of Abu
Musa if it were not handed over to her peacefully. Up to this time the
Iranian Government has refused to produce any documents in its posses-
sion which support its claims, being content to utter threats from time
to time.5
A further internal British government note prepared in May 1968 laid

out the suggestion made to it by the Iranian government under which an
2 fco 8/56, Memorandum from Arabian and Eastern Department, dated June 1968, 60–61,
para. 4.
3 fco 8/56, Memorandum from the Arabian and Eastern Department of the Foreign Office
entitled “The Persian Gulf Islands”, dated May 21, 1968, 84–85.
4 fo 1016/913, Memorandum attached to Letter from J.F. Walker (hmg’s Political Agency in
Dubai) to the Arabian Department of the fco, dated August 25, 1971, 537.
5 Ibid.
Iranian seizureof the islands would take place after the British withdrawal,
with Britain then “washing its hands” of the matter (a suggestion which the
British viewed somewhat favorably for reasons explained below):
The Iranian Prime Minister, Mr. Hoveyda, suggested in early 1968 that we
and the Iranians might agree to the continuance of the status quo, on
the firm understanding that in 1971 we should wash our hands of the dis-
pute and acquiesce in an Iranian seizure of the islands. This proposition
has the attraction that h.m.g. would be less directly involved than if
the Iranians took unilateral action while we remained in the Gulf. The
difference however would only be one of degree. Even after our military
responsibilities were ended we should be heavily involved in proceedings
at the u.n. as we should be the repositories of the evidence supporting
the Rulers’ case. We would accordingly have to expect odium from both
sides … [W]e must make it clear to the Shah that we cannot wash
our hands of the problem while we are present, and leave any indica-
tion of indifference after 1971 to the most tacit implication, not a clear
understanding.6
Beginning in mid-1968, a wide array of options was discussed internally with-

in the British government and in exchanges with Iran aimed at somehow
accommodating the Iranian claims and insistence in taking control of the
three islands once the British protectorate arrangements with Sharjah and
Ras Al Khaimah came to an end, without seeming to have abandoned the
Sheikhdoms altogether. The options, which the British noted would be subject
to ascertaining the views of the Arab Rulers, included: (i) the purchase of the
islands by Iran; (ii) establishing a “median line” in the Gulf that would effec-
tively leave Sirri and the Tunbs with Iran, Abu Musa with Sharjah and Bahrain
outside the Iranian sphere;7 (iii) establishing a condominium over the islands;8
(iv) establishing an Iranian military base in an area of the Tunbs that the Ruler
of Ras al Khaimah would rent to the Iranians;9 (v) submitting the dispute to
third party settlement, either arbitration, conciliation, mediation or reference
and Bahrain: Possible Solutions, dated May 21, 1968, paras. 44–46.
7 Ibid., para. 23.b.
8 Ibid., paras. 37–38. However, this option was seen as a non-starter by the British because its
subsequent administration would accentuate rather than relieve tension in the area.
9 Ibid., para. 40.
560 chapter 9
to the International Court of Justice;10 and (vi) referring the dispute to the
United Nations under Chapter vi of the un Charter. Following the suggestion
proposed by Iran – that Britain “wash its hands” of the dispute and acquiesce
to an Iranian seizure of the islands following Britain’s withdrawal from the
Gulf – the British government also considered taking – and indeed eventually
did adopt as its policy – such a “Pontius Pilate approach”, but without at first
acknowledging this explicitly to Iran and seeking to achieve prior to its with-
drawal a negotiated solution which salvaged as much of the Rulers’ rights over
the islands as possible.11 Thus, the British Foreign Secretary stated in a Septem-
ber 1971 note to the Prime Minister that “It was of course agreed in July that we
should if necessary, and in the last resort, leave the Shah to seize the Islands as
I am now suggesting.”12
Iran’s position, which the Shah stated was driven by a combination of
“national pride” and “national security”,13 including the need to ensure the pro-
tection of maritime traffic in the Gulf,14 but which lacked any articulated legal
basis other than vaguely-defined claimed historic rights, hardened further
once Iran gave up its claim over Bahrain in 1970 and as the British withdrawal
approached and Iran grew more confident of its leading role and power in the
Gulf. The Shah’s uncompromising attitude was reflected in comments he made
just prior to that withdrawal when warned that there could be serious interna-
tional repercussions if “Iran seized the islands without a settlement”; in reply
he stated that “Iran’s period of weakness was over” and that he was not “afraid
of international pressure over the Islands question.”15 On another occasion,
he explained the grounds for Iran’s claim to Abu Musa as follows: “Sovereignty
over the island of Abu Musa is Iran’s right from ancient times. It was Britain
who took the island from Iran and gave it to Sharjah eighty years ago. Iran
does not agree to the discussion of the question of sovereignty over the island.
10 Ibid., paras. 47–48. However, Iran’s position was that it would never be able to submit the
dispute to binding third party adjudication because the islands are of strategic value to
Iran and could never risk to lose them. Iran would only agree to bilateral negotiations.
11 Ibid., paras. 44–46. The efforts at negotiation are described in the following section.
12 defe 24/576, Secret Note from Foreign Secretary Douglas-Home to the Prime Minister,
dated September 25, 1971, para. 4.
13 fco 1016/915, Summary of Meeting between the Shah and Sir William Luce, dated
October 2, 1971, para 12.
14 fco 8/56, Memorandum of the Arabian and Eastern Departments, Foreign Office, dated
May 21, 1968, para.12 (the Shah “has rationalized his intention to regain the Tunbs by argu-
ing that the islands are necessary to him to ensure the security of maritime traffice in the
Gulf.”).
15 fo 1016/916, Record of conversation in Iran at Babolsar on Thursday 11 November 1971.
…Iran has no doubt on the subject of her sovereignty over the island of Abu
Musa and she therefore refuses to negotiate over this sovereignty.”16 Although
it did not believe Iran’s legal case had any merit, the British Foreign and Com-
monwealth Office recognized the conviction, albeit misplaced, with which
Iranian officials expressed Iran’s claims to the islands, reporting that “[o]ne
possible advantage of more attention being paid to the facts is that the Ira-
nians may come to better realise the weakness of their case, particularly over
Abu Musa. At present the Iranians appear to be complete victims of their own
propaganda”.17
While there does not seem to have been an express linkage or explicit deal
between Britain and Iran under which Iranian claims to the Tunbs and Abu
Musa would be accommodated in exchange for Iran abandoning its claim to
Bahrain,18 the threats by Iran to seize the islands by force became increasingly
aggressive and explicit following the retraction of its claim to Bahrain in May
1970. Statements threatening the use of force to take the islands were made
directly by the Shah himself to the British in July and September 1970,19 by his
16 fo 1016/913, Confidential Memorandum from the Arabian Department, fco, dated Au-
gust 25, 1971.
17 fo 1016/913, Confidential note from the Arabian Department, fco, to the British Political
Resident, Bahrain, dated August 12, 1971.
18 While the two issues of Bahrain and the sovereignty dispute over Abu Musa and the Tun-
bs were unquestionably linked, there does not seem to have been an explicit sovereignty
trade. See, e.g., Richard Schofield, “States Behaving Badly? The unique geopolitics of is-
land sovereignty disputes”, Environment, Politics and Development Working Paper Series,
Paper # 65, Department of Geography, King’s College London, 2014, 48–50 (“There was
… no explicit deal within the arrangement whereby in return for abandoning the claim
to Bahrain, Iranian claims to Abu Musa and the Tunbs would be admitted…. [Y]et it is
probably fair to surmise that Iran, on[c]e it had begun to rescind its claim to Bahrain
… hoped that Britain might play ball by allowing the Tehran government to make good
its claims on the Lower Gulf islands.”). Very similar comments appeared on an earlier
publication by Richard Schofield: Richard Schofield, “Anything but black and white: a
commentary on the Lower Gulf islands dispute” in Security in the Persian Gulf: origins,
obstacles and the search for consensus, eds. Lawrence G. Potter and Gary G. Sick (New York:
Palgrave, 2002), 180–182. Husain M. Al-Baharna, The Arabian Gulf States. Their Legal and
Political Status and their International Problems, 2d Rev. ed. (1975; reprint, Beirut: Librairie
Du Liban,1978); Mojtahed-Zadeh, “Perspectives”, 54 (“It appears that a top-level under-
standing was reached between the Iranian and British leaders on the two separate issues
of Bahrain and the three islands, which loosely linked the two.”)
19 fco 8/1316, Record of a conversation between the Foreign and Commonwealth Secretary
and the Shah of Iran, at the Iranian Embassy in Brussels at 10:00 a.m. on Friday, 10 July 1970;
fco 8/1320, Record of Audience with the Shah of Iran in Tehran on 19 September, 1970.
562 chapter 9
foreign minister in July 1971 (stating that “the Shah was prepared to go to war
to secure his interests” in the islands20) and the following statement attributed
to the Shah and published in September 1971:
Those islands, Abu Musa and Greater and Lesser Tunb, are ours! We need
them. We shall have them. No power on earth will stop us … I have a war
fleet, Phantom aircraft and brigades of paratroopers. I could defy Britain
and occupy the islands militarily.21
Supporting the notion that Iran considered it was entitled, as a sort of quid pro
quo, to gain the islands following the retraction of its claim to Bahrain, a former
British official involved in the negotiations over the islands at that time stated
that the Shah had abandoned its claim to Bahrain “thinking it would enhance
its case on Abu Musa and the Tunbs” and that he “communicated his expecta-
tion to the British that they must pressure the Arabs to this end.”22 The Shah,
who originally supported the creation of the uae in order to maintain stability
in the region after the British withdrawal, also threatened to “sabotage” the
creation of the Union or destroy it politically and to seize the islands by force
unless a solution acceptable to Iran was reached in the dispute over Abu Musa
and the Tunbs.23 In an audience with the British ambassador in Tehran in early
September 1971, the Shah stated that if a settlement giving Iran control of the
islands were not reached, he “would at once oppose and destroy [the Union]
and would deploy all resources to that end. He did not think it would be pos-
sible for the embryonic Union to survive against his opposition”.24 The Shah
added that his support for the establishment of the Union “had only been on
condition that the sovereignty of the islands was settled in Iran’s favour. If not,
then the Union by acquiring Iranian territory [sic] would become Iran’s enemy
and would be destroyed.” The ambassador remarked in a confidential telegram
sent the following day that “I am sure his threat to destroy the Union is not a
20 fco 8/56.
21 Quoted in Thomas R. Mattair, The Three Occupied uae Islands. The Tunbs and Abu Musa
(Abu Dhabi: The Emirates Center for Strategic Studies and Research, 2005), 120.
22 Mattair, Three Occupied uae Islands, 118, citing interview with Julian Walker (October
1997), the British Political Agent in Dubai and a member of the British mediation team
under Sir William Luce.
23 Richard Mobley, “The Tunbs and Abu Musa Islands: Brittan’s Perspective”, The Middle East
Journal 57(4) (2003).
24 fo 1016/913, Telegram from Ramsbothan (Audience with the Shah), dated September
7, 1971.
bluff.”25 The British had summarized the Shah’s position in this respect, as well
as his threat to downgrade relations with Britain, as follows:
The position of the Shah has been consistently clear that if the [British/
Iranian] Luce/Afshar proposals [on the three islands] were not accepted
Iran would destroy the Union of Arab Emirates (uae) and there would be
dire consequences to Anglo-Iranian relations.26
In the period leading up to Britain’s withdrawal, Iran also made its threats clear
to others, both within the region and beyond. Thus, in September 1971, follow-
ing the development of a proposal between Britain and Iran for resolving the
dispute (the Luce/Afshar proposals under which the islands would be handed
over to Iran and the Rulers’ forces and flags would be withdrawn after a pe-
riod of 12 months in exchange for Iranian financial aid to Sharjah and Ras Al
Khaimah – see below), the us Secretary of State, William Rogers, wrote to the
British Foreign Secretary to advise him that “We have received a message from
the Shah indicating that the terms to which he has agreed [i.e., the Luce/Afshar
proposals] are as far as he can go in being accommodating on this question.
He has told us that if the Arab Shaykhs refuse to accept the terms to which the
United Kingdom and Iran have agreed, Anglo-Iranian relations will be seriously
jeopardized. Iran will denounce the proposed federation of Arab Emirates,
and Iran will reserve its right to take such action as it deems necessary to pro-
tect its national interest.”27 On the regional level, Iran also made its intentions
clear, as evidenced by the remarks of its deputy foreign minister to the Kuwaiti
foreign minister in August 1971 in reply to the latter’s urging that Iran refrain
from taking “forceful measures” in resolving the islands dispute: “The Iranians
replied that they wanted good relations with any Union which can be formed
and would like to see a peaceful atmosphere in the Gulf: but they had made
clear their attitude towards the islands and would be obliged to resort to force,
if no negotiated solution could be found.”28
An insight into the underlying considerations motivating Iran to express
such defiance in relation to the three islands was revealed by the Shah in a
25 fo 1016/913, Telegram from Ramsbothan (Audience with the Shah), dated September 8,
1971.
26 defe 24/576, Note by the Defence Policy Staff, dated September 23, 1971, para. 1.
27 fo 1016/913, Telegram from William Rogers to Alec Douglas-Home, dated September 14,
1971.
28 fo 1016/913, Telegram from Ramsbotham, dated August 12, 1971.
564 chapter 9
meeting with the British ambassador to Iran in September 1971 to discuss Iran’s
position on the issue, reported by the latter as follows:
The Shah said he hoped hmg would take his message seriously. He did
not believe in manoeuvring for a bargain. His position had not changed.
The Persian Gulf was Iran’s lifeline. With Britain’s withdrawal and growing
threats of insurgency (e.g. in Oman, and Saudi Arabia’s doubtful future
after Faisal) he could not afford to give up, or be seen to give up, any sov-
ereign claim, especially on the strategically placed islands in the Gulf.
The decision he had taken over Bahrain had met with internal criticism.
If he failed now to assert his sovereignty over these islands, enemies and
critics would pillory Iran as a weakling unable to sustain her historical
rights in the face of the British. Time was getting short. If the Luce offer
now did not succeed, then Iran would have to protect her interests and,
inevitably, as this was essentially a dispute with Britain, relations with us
would be seriously jeopardised.29
The tone of the Iranian insistence on recovering the islands was noted with
respect to Abu Musa in the following terms in an internal British government
memorandum prepared in August 1971:
In face of Sharjah’s peaceable attitude Iran has continued to utter threats

to occupy the island by force on the eve of the withdrawal of British
troops from the Gulf. …
The Shah says that if no agreement is reached concerning the island
of Abu Musa on the above-mentioned basis by the end of 1971, Iran will
occupy this island by force after the withdrawal of British troops from the
Gulf.30
From the British perspective, any forcible seizure of the islands by Iran was
thought likely to occur before the newly-emerging state of the uae became
“fully independent” because “once the States emerge as fully independent,
either separately or as a Union, their title to their existing territories will be
consolidated, and … [Iran] would be exposed to more international difficulty
in contesting that title thereafter”.31 Thus, the British feared that if not resolved
29 fo 1016/913, Telegram from Ramsbotham, dated September 7, 1971.

30 fo 1016/913, Confidential Memorandum from the Arabian Department, fco, dated Au-
gust 25, 1971, 537.
31 fco 8/56, 29, para. 5.
peacefully prior to its Gulf withdrawal, an Iranian seizure of the islands was
almost certain to occur, which would lead to “conflict and disturbances” and
“do very serious damage to our long term interests in the region.”32 An Iranian
seizure of the islands was also feared because of the damage it would do to
Iran’s relationship with the Arab countries: “Iran, by uttering continued threats
to occupy the island of Abu Musa by force by virtue of her being the stron-
gest state in the area risks standing condemned before the opinion of the Arab
world and the international community.”33 Another concern was expressed
by the u.s. ambassador to Iran, who wrote in September 1971 that if the
British – Iranian proposals “failed and the Shah took the islands by force, the
Arab extremists, who were infiltrating into the area, would act violently against
the Iranian communities on the other side of the Gulf, e.g. Dubai. The Shah
would then react by sending forces to the Trucial Coast and an armed con-
frontation would occur, from which only the Russians would gain and Western
interests would suffer.”34
In line with this thinking, the British believed it was essential to encourage
those concerned to look for solutions. Clearly, and given the risks at stake, this
meant seeking compromise between the two diametrically opposed positions,
notwithstanding Britain’s belief that Iran’s claim lacked any legal merit:
Our objective is stability in the area to ensure security for our investments
and commercial interests, and to prevent Soviet penetration. The great-
est danger to stability is an Arab/Iranian confrontation, whether before
or after our departure. It is therefore greatly to our interest to bring
about a settlement of the questions in dispute, as the basis for a system
of security in the Gulf. Otherwise we may in effect be forced into a po-
litical choice between our economic interests in Iran and those in Arab
territory, the latter collectively being the larger. The difficulty we face is
disposing of three sovereign, though protected, States’ property in the
face of demands in all cases by a fourth State [i.e., Iran] whose claims are
held untenable by all except the claimant.35
32 fco 8/56, Telegram from Foreign Office, dated May 29, 1968, 260, para 2.
33 fo 1016/913, Confidential Memorandum prepared by the Arabian Department, fco, dated
August 25, 1971.
34 fo 1016/913, Confidential fco telegram from British Ambassador Ramsbotham, dated
September 11, 1971.
and Bahrain: Possible Solutions, dated May 21, 1968, 82–103, para. 15 (emphasis added).
Another 1968 British memorandum, noting that they had already suffered a “reduction of
566 chapter 9
This view on the merits of the Iranian claim tracked that of Sharjah and
Ras Al Khaimah. Indeed, from the Arab perspective, ownership of the islands
was assumed, and after holding de facto control of them, with British support
and on the basis of historical and legal justifications which had been the sub-
ject of discussion (and confrontation with Iran) since at least 1887, a sacrifice
of their territorial rights was not easily entertained. The Arab position was de-
scribed in a confidential Foreign Office note of May 1968 as “quite simply that
the Tunbs belong to the Ruler of Ras al Khaimah and Abu Musa to the Ruler of
Sharjah, that Her Majesty’s Government have supported their claims consis-
tently, and are obliged to defend the islands by their treaties with the Rulers.”36
There was not much movement from these positions during the ensuing sev-
eral years, even as the Iranian position hardened – and its armed intervention
to seize the islands in the absence of an agreement became almost a certainty
– and as the British applied greater pressure on the Sheikhdoms to accommo-
date Iran so as to avoid the consequences for the region – and for the British
– which an armed confrontation was thought likely to create. Thus, although at
the urging of the British a number of talks were held by the Rulers directly with
Iran from 1968 to 1970 to explore a possible accommodation, the most which
Ras Al Khaimah was reported to have offered during these talks was to lease
the Tunbs to Iran under strict conditions, thus accepting an Iranian military
presence while maintaining Arab sovereignty over the islands. As for Sharjah,
its Ruler had reportedly rejected any compromise over Abu Musa whatsoever.
These positions clearly did not accommodate the Iranian demands, particu-
larly on the question of sovereignty, which it insisted on having, with the result
that these direct negotiations broke down.
influence” in the region by announcing their departure from the Gulf which would make
it difficult to “promote a meaningful negotiation” between Iran and the Arab Rulers, made
clear that “we must try” anyway: “After we have given up our political position in the Gulf,
we shall still depend on the area generally for about half our oil … Political circumstances
involving the deliberate denial of oil, or hostilities affecting its extraction could therefore
have serious economic effects for us. In addition, hostilities among the states concerned,
active or otherwise, could both result in domestic upheavals within the present Protected
States, and also give the Soviet Union and ‘revolutionary’ Arab States such as the uar and
Iraq a chance to do considerable political damage to the general Western interest.” fco
8/56, Memorandum by the Arabian and Eastern Departments. Islands and the Median
Line in the Persian Gulf, dated June 1968, 42–44, para. 6.
36 fco 8/56, The Iranian Claim to the Tunb Islands and Abu Musa, with reference also to
Sirri and Bahrain: Possible Solutions, dated May 21, 1968, 82–103, para. 11.
The nature of these and subsequent direct discussions between Iran and the
Rulers was reflected in a description recounted by the Ruler of Sharjah following
one of those encounters: “[T]he Shah had said nothing new. He had emphasized
that he wanted a peaceful settlement of the problem but had added that he
would seize Abu Musa if no settlement were reached.”37 As a consequence of
the Iranian position, the Ruler was warned by the British that “time was short
and it would not be possible to obtain any improvement of substance in the
present Iranian terms; Shaikh Khalid was therefore faced with the choice of
accepting the proposals in principle or losing his island, and everything that
went with it, in the near future.”38
When, in September 1971, Iran (with British support and urging) proposed
a settlement which had been jointly developed by the British and Iranian
governments (the “Luce/Afshar proposals”, described in greater detail below)
which would see Iranian forces land on the islands, followed by a period of
cohabitation between the parties, after which the Rulers would withdraw
their administration and forces from the islands and lower their flags, all in
exchange for Iranian financial assistance and recognition of the new Union
of Arab Emirates, the Arab position remained uncompromising. The British
Foreign Secretary stated in a note to the Prime Minister at that time that “Luce
[the chief British negotiator] has now reported to me after nearly three weeks
of intensive discussions in the Gulf that there is no chance of the Rulers agree-
ing to a settlement on these lines.”39 Confronted with the unwillingness of the
Arab Rulers to surrender sovereignty through a negotiated settlement while
Iran continued to threaten aggression unless it was granted sovereignty, the
British Foreign Secretary described the resulting “dilemma” for British foreign
policy as follows:
This said, I am very conscious that failure to achieve a settlement accept-

able to the Shah over the islands would have most undesirable conse-
quences, reaching beyond the sphere of Britain’s bilateral relations with
Iran, important though these are. I am anxious to do everything possible
to avoid those consequences coming about, but it is clear that if we were
ourselves to take the islands and hand them over [to Iran], we should
forfeit all chance of future co-operation with the United Arab Emirates,
37 fo 1016/916, Record of Conversation in the Ruler’s Palace, Sharjah, on Wednesday 27 Oc-

tober 1971, para. 5.
38 Ibid., para. 6.
39 defe 24/576, Note from the British Foreign Secretary to the Prime Minister, dated Sep-
tember 25, 1971.
568 chapter 9
on which our hopes for the stability of the area largely depend. It is a real
dilemma.40
A few days after this note was written, and when it became clear that both
Sharjah (in relation to Abu Musa) and Ras Al Khaimah (in relation to the
Tunbs) had not accepted the Luce/Afshar proposals, but that Sharjah had made
a counter-proposal (see below), the British government determined to com-
municate openly with the Shah that if Iran could reach a compromise agree-
ment with Sharjah over Abu Musa, the British would acquiesce in an Iranian
seizure of the Tunbs, and that if a compromise agreement with Sharjah was
not achievable, the Shah could do what he considered necessary regarding that
island as well, including resorting to military force, after Britain’s withdrawal
was complete. Thus, in a note, marked “Secret”, the British Foreign Secretary
wrote to the Prime Minister on 25 September 1971 that in order to “avert” the
“launch [of] a sustained Iranian attack against the uae … that … will include a
general attack on our future plans for contributing to Gulf security”:
I intend to send Luce to Tehran next week to see the Shah, to tell him:
a. That despite our best endeavours and intensive efforts we cannot

get the Rulers to accept the terms offered by Iran. Sharjah however
has made some counter-proposals;
b. That we are prepared to bring about a settlement satisfactory to
Iran over the Tunbs with or without Ras al Khaimah’s agreement, if
the Shah will moderate his requirements in respect of Abu Musa. …
c. That if the Iranians cannot agree to this counter-proposal, then they
will have to decide whether to carry out their stated intention (of
taking the islands by force) after we have completed our military
withdrawal.41
Thus, after almost a century of consistently defending Qawásim sovereign

rights over the islands, the British had openly adopted a decidedly indifferent
position in the face of an Iranian seizure of the islands by force, albeit one
which, as described in this same note, sought to find common ground between
Iran and Sharjah on Abu Musa even as the Tunbs were “sacrificed”:
40 defe 24/576, Confidential note from Foreign Secretary Douglas-Home to the Prime Min-
ister, dated September 22, 1971, para. 3.
dated September 25, 1971, para 3.
We have always considered that, while we might bring about a solution

that involved the sacrifice of the Tunbs, even without the agreement
of the Ruler, e.g., by withdrawing protection, we should not impose a
solution in respect of Abu Musa also. This is because Abu Musa falls on
the Arab side of the southern Gulf median line; the Iranian claim to Abu
Musa is even weaker in law than it is to the Tunbs; and the Gulf Arabs at-
tach more importance to Abu Musa, with its relatively substantial popu-
lation and undoubted rightful possession by Sharjah, than they do to the
virtually uninhabited Tunbs.42
As will be elaborated in the next section, the counter-proposals presented by

Sharjah, by which it sought to accommodate Iran’s wish to establish a military
presence on Abu Musa without sacrificing sovereignty, eventually led to a fur-
ther proposal from Iran (which Iran considered to amount to “less than a com-
plete Iranian takeover of Abu Musa”) which the Ruler was warned he had little
option but to accept: “Sir William pointed out that if Sharjah rejected the pres-
ent Iranian proposals or made unacceptable counter proposals, then Sharjah
would lose everything; the island, the oil and the prospect of Iranian financial
aid – would the people of Sharjah thank the Ruler for that?”43 Following further
negotiations and various amendments, that Iranian proposal formed the basis
of the mou (see following section). However, Iran’s willingness to consider the
terms for Abu Musa which came to be reflected in the mou was conditioned
on acceptance of the so-called “median line” proposal, whereby in exchange
for agreeing to that arrangement for Abu Musa “the Tunbs would go to Iran”.44
Luce described this to the Ruler of Ras Al Khaimah, who the British recognized
as the owner of the two islands, as follows: “Obviously the surrender of the
Tunbs was very difficult for Ras al Khaimah but the present proposals [for Abu
Musa] had only been obtained from the Shah after long negotiations and the
Shah would make no further concessions”, adding that “he knew that these
proposals required a big sacrifice from Ras al Khaimah but Shaikh Saqr should
consider the wider interests of the area.”45 When told that “in exchange” for
surrendering the Tunbs, the Shah was prepared to “offer an aid agreement” and
“should oil be discovered on the Tunbs or within their territorial waters, aid
42 Ibid., para. 4.
43 fo 1016/916, Record of Conversation at the Ruler’s Palace, Sharjah, on Saturday 30 October
1971.
44 fo 1016/916, Record of Conversation in the Ruler’s Palace, Ras Al Khaimah, on Saturday 30
October 1971.
45 Ibid.
570 chapter 9
equivalent to 49% of the revenues” would also be given to Ras Al Khaimah, the
Ruler replied that “what Sir William was offering was not a settlement but sim-
ply a surrender” and that the “Tunbs belonged to Ras al Khaimah and he was
not going to have himself described as the Ruler who gave them away. He was
certainly not going to have anyone say that Saqr sold the islands in exchange
for a few million pounds worth of Iranian aid.” Luce replied to this statement
by again stating that “If there was no agreed solution, the Shah was prepared to
take both the Tunbs and Abu Musa as well by force.”46
A confidential note circulated internally within the British Foreign and
Commonwealth Office explains in stark terms the deal agreed between Britain
and Iran as follows: “The Shah only agreed however to the above arrangements
[for Abu Musa], which represent a considerable retreat from the former Ira-
nian demand for complete sovereignty and control of the island, on condition
that the other group of disputed islands, the Tunbs (Ras al Khaimah), should
pass entirely under Iranian control” and “in order to get agreement [from Iran]
over Abu Musa we accepted in the last resort that the Iranians should occupy
the Tunbs whether or not the Ruler of Ras al Khaimah agreed.”47
As reflected in the documents referenced above, the development of British
policy and the effort to forge an agreement with both Ras Al Khaimah and
Sharjah, initially on the basis of the Luce/Afshar proposals, and subsequently
on the “median line” basis, was primarily driven by pragmatic considerations
tied to the protection of wider British political and commercial interests rather
than consideration of the legal consequences of seizing territory by threat or
use of force, or any other legal considerations. The historical details of how
the Luce/Afshar proposals were developed, the negotiations which ensued and
their ultimate outcome, are discussed further in the following section.
...
In closing this section, it might be of interest to note that British policy and
decision-making with reference to the islands in the months prior to its with-
drawal from the Gulf, and in particular in relation to its pursuance of a negoti-
ated settlement for Abu Musa at the expense of an acquiescence to the Iranian
seizure of the Tunbs, has become much clearer in light of newly-released Brit-
ish Foreign Office records, including some of those referenced above, which
the authors obtained through a freedom of information (foi) request made to
46 Ibid.
47 fo 1016/917, Confidential Foreign and Commonwealth Office telegram, dated November
23, 1971.
the uk National Archives. The foi request was filed in July 2014 with the uk
National Archives in order to be able to access the redacted passages and pages
of fourteen files dealing with the withdrawal of the British from the Gulf, the ne-
gotiations on the mou and the formation of the uae.48 Upon receipt of the foi
request, the foi department at the uk National archives contacted the authors
to indicate that given the large number of files requested to be reviewed it
would conduct the review in batches of five files and that after the final review
of each batch of files, including the consultation with the relevant government
departments, they would respond to us with the decision and then move on to
the next batch of files.49 The review of all the files by the foi team at the uk
National Archives took until the beginning of February 2016 to complete and
in many cases, the foi request was rejected based on the exemption covered
by Section 27 of the Freedom of Information Act 2000 (possible harm to in-
ternational relations). While only a limited number of passages or pages were
made public in light of the foi request, these contain interesting exchanges
that shed some light on the negotiations concerning the mou, and which have
been used in reconstructing the course of those events set out in this work.
For purposes of this work, perhaps the most noteworthy matter arising out
of the foi request was the unambiguous evidence that the agreement con-
tained in the mou (by which, as discussed below, Iran partially retreated from
its position demanding outright transfer of the island of Abu Musa to Iran)
was done at the expense of British acquiescence to the outright Iranian seizure
of the Tunbs “whether or not the Ruler of Ras al Khaimah agreed.”50
48 The foi request by the authors included the following files: fo 1016/905, fo 1016/908, fo
1016/909, fo 1016/910, fo 1016/911, fo 1016/912, fo 1016/913, fo 1016/914, fo 1016/915, fo
1016/916, fo 1016/917, fo 1016/918, fo 1016/919 and fo 1016/920.
49 E-mail from foi enquiry at the uk National Archives to authors, dated July 23, 2014 (on
file with authors).
50 In addition to the evidence cited above, see also, e.g., fo 1016/916, Record of Conversation
in the Ruler’s Palace, Sharjah, dated October 27, 1971, 847 (“The Shah had then put for-
ward the new set of proposals concerning Abu Musa which had already been explained to
Mr. Ely. But these proposals were only put forward by the Iranians on the basis that the Tunbs
would go to Iran.”); fo 1016/916, Record of Conversation at the Ruler’s Palace, Abu Dhabi,
dated October 28, 1971, 848 (The proposals regarding Abu Musa are shared with Shaikh
Zaid of Abu Dhabi and Sir William Luce explained as well that “the terms for Abu Musa had
been offered by the Iranians as part of a settlement on a ‘Median line’ basis; in other words,
the Iranians were offering concessions on Abu Musa on condition that sovereignty over
the Tunbs went completely to Iran.”); fo 1016/917, Telegram (fco) (Gobber) to certain
missions and dependent territories in the Gulf and the Arab world, dated November
23, 1971, 939. Amongst other things, the telegram instructs the delegations to not “reveal
572 chapter 9
Negotiations Leading to the mou and the Seizure of the Tunbs

After the initial discussions between the Shah and the Rulers of Sharjah and
Ras Al Khaimah did not lead to an agreed resolution of the islands dispute prior
to mid-1970. the British Foreign Office appointed a special representative at the
end of July 1970 to mediate in the dispute and to try to find a solution before
the scheduled withdrawal of British forces at the end of 1971.51 The special rep-
resentative was Sir William Luce, who was former Aden Governor and former
Bahrain Political Resident and thus had ample experience in the region. The
main negotiator from the Iranian side was Amir Khosro Afshar, who served
as Iranian Ambassador to the uk from November 1969 until December 1974.
Negotiations would first take place between Luce and Afshar in London and
after reaching a certain understanding, both negotiators would discuss this
with the Shah. After hearing the Shah’s views, Luce would put the proposal
to the Rulers and then brief the British government in London where another
round of talks with Mr. Afshar would resume.52
Following a number of meetings with both Rulers and with the Shah, Sir
William Luce developed a proposal in the spring of 1971 by which Iran would
be entitled to garrison the islands while giving financial aid to the Rulers and
the question of sovereignty would not be raised by either party for an agreed
period of time.53 Another variant which the British Foreign Secretary consid-
ered in June 1971 was to put to the Shah around September of that year a “me-
dian line” solution, by which sovereignty over the Tunbs (lying on the Iranian
side of a southern Gulf median line drawn on international principles) would
go to Iran in exchange for compensation to the Ruler of Ras Al Khaimah while
Iran would acknowledge Sharjah’s sovereignty over Abu Musa (lying on the
Arabian side of the median line) but would be able to garrison troops there.54
that in order to get agreement over Abu Musa [the uk] accepted in the last resort that the
Iranians should occupy the Tunbs whether or not the Ruler of Ras al Khaimah agreed.”
In another passage, at para. 7 the telegram states: “The Shah only agreed however to the
above arrangements, which represent considerable retreat from the former Iranian de-
mand, for complete sovereignty and control of the island, on condition that the other
group of disputed islands, the Tunbs (Ras Al Khaimah), should pass entirely under Ira-
nian control.”
51 Mobley, “Tunbs and Abu Musa Islands”; Mattair, Three Occupied uae Islands, 374.
52 Mojtahed-Zadeh, “Perspectives”, 57–58, quoting from a 1994 interview with Mr. Afshar.
53 Mobley, “Tunbs and Abu Musa Islands”. defe 24/576, Memorandum from Foreign Secre-
tary Alec Douglas-Home to the Prime Minister, dated June 14, 1971. See also, Mattair, Three
Occupied uae Islands, 385–386.
54 defe 24/576, Memorandum from Foreign Secretary Sir Alec Douglas-Home to Prime
Minister, dated June 14, 1971.
However, faced with a hardening of the Iranian position and the unwillingness
of the Rulers to agree to a compromise on sovereignty over any of the islands,
the British decided in June 1971 to let things “run their course” by focusing on
the creation of the Union of Arab states (what was to become the uae) and, in
relation to the islands, by:
keep[ing] the Iranians talking for the rest of the year, urging them to im-
prove their political terms and the Rulers to accept their comparatively
generous financial offers; and to let the [S]hah seize the islands by force,
if he really is determined to do this, after the termination of [the British]
protection at the end of the year, [which] would at least put most of the
odium for an illegal act squarely upon [the Shah].55
The Chiefs of Staff Committee of the British Ministry of Defence echoed this
view in May 1971, while noting both that the islands belonged to the Rulers of
Sharjah and Ras Al Khaimah and that Iran had threatened to seize them by
force:
1. The islands of Abu Musa and the two Tunbs in the approaches to the
Straits of Hormuz are the subject of Iranian claims. The policy of Her
Majesty’s Government is to do nothing to disturb the present status-
quo whilst trying to promote a negotiated settlement of the problem
between Iran and the Rulers of Ras al Khaimah and Sharjah, who own
the islands. …
2. The approaching withdrawal of British forces at the end of the year has
prompted the Iranian authorities to state publicly that they intend to
annex the islands, if necessary by force.56
An assessment of the background and prevailing circumstances in August 1971

by the Foreign and Commonwealth Office noted that the “Iranian claims to the
Islands of Abu Musa (Sharjah) and the Tunbs (Ras al Khaimah) at the Western
mouth of the Straits of Hormuz represent a major unresolved territorial dis-
pute in the Gulf. As such, it complicates our policy of terminating our existing
special position in the Gulf and of replacing it with up-to-date arrangements.”57
55 Ibid.; Mobley, “Tunbs and Abu Musa Islands”.

56 defe 24/576, Military Action to Counter an Arab Guerilla Threat to the Islands of
Abu Musa and the Tunbs, Annex to Note by the Secretary of Defence, dated May 19, 1971.
57 fo 1016/913, Confidential Background Paper No. 3, issued by the Guidance and Informa-
tion Policy Department of the Foreign and Commonwealth Office, dated August 4, 1971.
574 chapter 9
The fco note, which was prepared for the purpose of enabling British officials
to “put the record straight” if “obliged to correct distortions of the true situa-
tion spread by the Iranians in third countries to win support for their point of
view”,58 also noted the following relevant points, among others:
(a) “The Iranians have publicly threatened to seize the Islands by force if no
peaceful settlement of their claim is arranged.”59
(b) “If we support the Arab standpoint we shall merely aggravate the prob-
lem without solving it, since after our departure Iran bids fair to be the
strongest military power in the Gulf. To antagonise Iran in this way would
seriously weaken any capacity we might have for making a contribution
to the stability of the Gulf after our withdrawal, and in the short term the
Shah might be provoked into abandoning his verbal undertaking to us,
as a cento ally, not to seize the Islands before the termination of our
protective responsibility. Such an act could obviously gravely jeopardise
the close co-operation built up over the years between Britain and Iran in
a number of fields.”60
(c) “If … we support the Iranian standpoint, this will amount to a complete
abandonment, for reasons of demonstrable expediency, of the legal
and historical view we are known to have maintained for over eighty
years.”61
(d) “A second serious difficulty” relates to Iran’s refusal “to support the formal
coalescence of the individual shaikhdoms into a Union before the Islands
problem is settled” and Iran’s stated intention “to obstruct all efforts to
achieve the formal establishment of a Union that includes the two states
(Sharjah and Ras al Khaimah) which own the Islands, because Iran claims
that a settlement will be more difficult to achieve with a Union than with
the two states individually.”62
(e) Although the British government has “consistently maintained that
Abu Musa belongs to Sharjah and the greater and lesser Tunb to Ras al
Khaimah”, “we do recognise that after the termination of our protective
responsibilities there will be nothing to prevent the Iranians from seizing
the Islands, and we have accordingly urged the Rulers to come to terms
58 Ibid., Instructions for Use, para. 4.

59 Ibid., The Danger to British Interests, para. 2.
60 Ibid., para. 3.
61 Ibid., para. 4.
62 Ibid., para. 5.
with the Iranians in their own interests and in the interest of the long-
term stability of the Gulf.”63
(f) “The Iranians, to some extent victims of their own propaganda, clearly be-
lieve what they so vociferously put about”, that the Islands were “stolen”
from them in the “colonial period” and should now revert to Iranian sov-
ereignty with “the disappearance of the colonial power”, that is B ritain.
“We do not know on what evidence the Iranian claim to sovereignty is
based since the Iranians refuse to exchange material about the respective
claims or to allow the matter to go to arbitration”.64 “hmg would always
have been glad of an exchange of documents between the parties. They
proposed it in 1887, and again in 1904 and many times since. The Iranian
Government has always refused.”65
(g) “Whatever the validity of his arguments, the Shah appears determined
to possess both sets of islands after our departure and resigned to seiz-
ing them by force if necessary.” Despite the political difficulties Iran
would face at the un and otherwise “at the naked seizure of territory by
force … the Iranians appear determined to pursue their policy, if neces-
sary by force, and there are no signs that they can be deflected from their
chosen objective.”66
By the end of August 1971 the negotiations between Britain and Iran had result-
ed in what was referred to as the “Luce/Afshar proposals”, which were captured
in a document entitled “Proposed elements of a Settlement of the Islands ques-
tion discussed between H.E. Mr. Afshar and Sir William Luce, for putting to the
Rulers Concerned”.67 The key provisions of the Luce/Afshar proposals, which
in their totality constituted an outright surrender of the islands to Iran albeit
packaged within a number of face-saving provisions for the Sheikhdoms, were:
(a) Iranian forces and officials would arrive on the Islands during 1971 at a
date to be agreed. The terms of any statements about this event by Iran
and the two Rulers would be agreed in advance.
63 Ibid., Historical Background, para. 7.

64 Ibid., The Iranian Position, para. 8.
65 Ibid., Annex, para 4.
66 Ibid., Likely Developments, para 11.
67 fo 1016/914, Proposed elements of a Settlement of the Islands question discussed
between H.E. Mr. Afshar and Sir William Luce, for putting to the Rulers Concerned, dated
September 1971.
576 chapter 9
(b) The Rulers would confirm in advance confidentially in writing to hmg

that at the end of a period of twelve months after the arrival of the Ira-
nian forces, the Rulers would withdraw their forces and officials as well as
their flags from the Islands.
(c) The Rulers would also confirm in advance that during this period of
twelve months they would not increase the number of their forces or the
size of their civil administration on the Islands.
(d) Provision would be made if necessary for the regulation of the relation-
ship between the Iranian forces and officials on the islands and the Rul-
ers’ administrations.
(e) Iran and the two Rulers would confirm that, for a period of eighteen
months from the arrival of Iranian forces, they would not initiate public
statements mentioning or otherwise affecting the question of sovereign-
ty over the Islands.
(f) If at any time during a period of three years after the arrival of the Iranian
forces any of the existing inhabitants of the Islands chose permanently to
leave the Islands, Iran would make provision to compensate them for any
loss of property or livelihood.
(g) The other Rulers participating in the intended United Arab Emirates
would declare confidentially in writing in advance that the Union Gov-
ernment would neither do, nor support the doing of, anything directed to
the alteration of the arrangements. Iran for her part would give her posi-
tive support to the Union.
(h) Most of the statements and undertakings mentioned above would be
made to hmg as the Government for the time being responsible for the
conduct of the international relations of the Rulers. hmg would transmit
confidentially the statements and undertakings from the Rulers to the
Iranian Government and from the Iranian Government to the Rulers, and
would declare confidentially that the arrangements are approved and
supported by it.
(i) The only agreement concluded directly between Iran and the Rulers
would be on annual aid and financial assistance (including arrangements
for the Rulers eventually to receive cash equivalent to a percentage of the
oil revenues, if any, from the Islands).68
After the British Ambassador in Tehran, Mr. Ramsbotham, communicated to

the Shah that these proposals would not be taken well by the Rulers and that
Luce considered the chances of their acceptance as “limited”, the Shah indicated
68 Ibid.
that he would not object to one or other of the Rulers, “for reasons of their
own prestige … mak[ing] a public statement asserting their continued sover-
eignty over an island” following the withdrawal (or expulsion) of their officials
and the removal of their flags, but that Iran would be opposed to the whole
Union making the same statement and that if they did so, the Iranian Govern-
ment would be obliged to withdraw the allocation of oil revenue; if through
the claim the Union invoked the Arab League or the un, then Iran would cut
off both the aid and the oil revenue, and “would also adopt a different attitude
towards the Union”.69 The Shah also conveyed the message that he would not
object to “a change of the wording or to the form of the Luce/Afshar agreement
provided that there was no change in the essence or real meaning, so that there
would be no infringement of Iran’s sovereign rights over the islands and so
that the main points of the agreement, such as the withdrawal of the Rulers’
military forces, their officials and flags 12 months after the arrival of Iranian
military forces would not be changed.”70 The Shah was quoted as saying that
“[t]he key point was that the Rulers should remove their flags, forces and
administration. They could keep their schools. But how could Iranian troops
stay on the islands under an alien flag? It would be intolerable. The Rulers
could later assert their claims to sovereignty as much as they liked. It would
not worry him – nor affect the aid arrangements. But their flags and adminis-
tration must go.”71
In early September 1971, Sir William Luce put these proposals to the Rulers
of Sharjah and Ras Al Khaimah, conveying the message that this was the best
that could be extracted from the Shah and making clear that not only were the
Shah’s continuing threats to take the islands by force if these proposals were
rejected to be taken seriously, but that Iran would also take measures to pre-
vent the formation of the uae or to destroy it politically.72 Luce also presented
the proposals to some of the other Rulers of the nascent union, presumably
given the undertaking that Iran expected them to provide under point (g) and
the consequences the Shah had threatened in the event that the “whole Union”
asserted ownership of the islands or sought to involve the Arab League or the
69 fo 1016/913, Memorandum from Ramsbotham to fco, dated September 9, 1971.

70 defe 24/576, Confidential telegram from British Foreign Secretary Douglas-Home, dated
September 24, 1971.
71 fo 1016/913, Telegram from Ramsbotham (Audience with the Shah), dated September 7,
1971.
72 fo 1016/914, Record of Conversation in the Ruler’s Villa, Sharjah, dated September 7, 1971,
597; fo 1016/914, Record of Conversation at the Ruler’s Palace, Ras Al Khaimah, dated
September 7, 1971, 598.
578 chapter 9
un in the dispute.73 In reporting on these discussions, Luce noted that he had

met with each of the Rulers of Ras Al Khaimah and Sharjah separately to con-
vey the terms which had been “authorised by the Shah personally” and which
were “the best terms which could be extracted from the Iranians for a peace-
ful settlement.”74 He emphasized that the transfer of control to Iran over the
islands would not occur immediately (point (b)), which was apparently to try
and soothe the Rulers’ sensibilities about their outright loss of territory:
I pointed out that although the Shah remained adamant on eventual

sovereignty for Iran, he was not now demanding that the Rulers should
accept this at once, nor that they should withdraw their administrations
quickly. There would be no mention of sovereignty for a longer period.
These arrangements would allow time for things to quieten down after
the arrival of Iranian forces and for people to get used to the new situa-
tion. Meanwhile there would be substantial financial benefits for the two
states.
I told the Rulers that they should study and consider these proposals very
carefully, bearing the following points in mind:
…
(B) Their choice lay between acceptance of at least these basic principles,
or total loss of the islands through seizure by Iran, and the forfeiting of all
financial aid from Iran.75
These proposals were conveyed to the Ruler of Ras Al Khaima h (Sheikh Saqr)
by Sir William Luce in the following way:
Sir William emphasised that the Shah would not budge on the question
of sovereignty, and believed that these were virtually the best terms that
it was possible to get from the Iranians; if they were not accepted then
the Shah had said that he would seize the islands once British protec-
tion was withdrawn, and Sir William was convinced that these were not
empty words. Sir William added that, as Shaikh Saqr knew, if the Shah
73 fo 1016/914, Record of Conversation at the Political Agency, Dubai, dated September 8,

1971; fo 1016/914, Record of Conversation at the Ruler´s Beach House, Abu Dhabi, dated
September 9, 1971; fo 1016/914, Record of Conversation at the Ruler´s Palace, Fujairah,
74 fo 1016/913, Telegram (Following from Luce), dated September 8, 1971, 557.
75 Ibid.
was forced to seize the islands, Ras al Khaimah would get no financial aid
from Iran.76
And to the Ruler of Sharjah, Sheikh Khalid, Sir William added the following:
Sir William went on to say that whilst the Shah was prepared to counte-
nance preparatory measures being taken by the Union, he would do all
he could to prevent its formal establishment. If on the other hand the
islands problem could be solved, then the Shah would be ready to rec-
ognise the Union and give it active support. Thus the line that Shaikh
Khalid took over Abu Musa affected not only him but the other members
of the Union and the stability of the area generally. The terms which were
being offered were hard, but they were the best that could be got.77
Luce held several other meetings with the Rulers until 22 September, when he
returned to London.78 In these meetings, he pressured the Rulers to accept the
Iranian package or at least to make a counter-offer. For example, in recounting
Luce’s meeting with Shaikh Khalid, the Ruler of Sharjah, on the morning of
September 16 during which Shaikh Khalid again expressed his objections to
the Iranian demands, it was noted that Sir William had insisted that Sharjah
should accept Iran’s proposals as these “were hard for [Sharjah] but they were
better than total loss of Abu Musa without compensation and all the trouble
which would follow for the Gulf if there were no settlement.”79 Luce also re-
ported that, following the rejection by the Rulers of Ras Al Khaimah and Shar-
jah of the Luce/Afshar proposals, “I then steered the discussion in each case
towards a median line solution, explaining that if I went back to the Iranians
with a flat rejection of their proposals that would be the end of all hope of a
settlement. We must try to work out some reasonable counter-proposals.”80
76 fo 1016/914, Record of Conversation at the Ruler’s Palace, Ras Al Khaimah, dated

September 7, 1971, 598.
77 fo 1016/914, Record of Conversation in the Ruler’s Villa, Sharjah, dated September 7,
1971, 597.
78 fo 1016/914, Record of Meeting in Ras Al Khaimah, dated September 14, 1971; fo 1016/914,
Record of Meeting at Sharjah, dated September 16, 1971, 636; defe 24/576, Telegram from
Political Agency in Dubai (following from Luce) to fco, dated September 17, 1971; fo
1016/914, Record of Meeting in Ras Al Khaimah on Saturday 18 September, 1971, 637.
79 defe 24/576, Telegram from Political Agent in Dubai, dated September 17, 1971.
80 defe 24/576, Telegram from uk Political Agency in Dubai (following from Luce) to fco,
580 chapter 9
The Ruler of Ras Al Khaimah, Sheikh Saqr, remained adamant that he could
not accept the Iranian demands, based on the Luce/Afshar proposals, despite
being told by Luce that they were “the only sure way to a settlement”.81 When
the Ruler mentioned to Luce that he might seek the assistance of the Arab
League or other Arab countries which were “friendly” with Iran, Luce told him
that would be “useless” and “would destroy any hope of a settlement”.82 Luce
added that the “present proposals were only extracted from the Iranians with
great difficulty”, to which the Ruler replied that “he was being asked to sell the
Tunbs for a mere 14 million pounds”, that although “he needed money it must
be obtained honourably” and that “it would be better if Iran took the islands
and paid nothing.”83 To this, he was told that “if the Iranians had to seize the
Tunbs they would very probably claim full effect for the islands on the median
line, thus depriving Saqr not only of his islands but of a large part of his conti-
nental shelf as well.”84 In reporting on the meeting, Luce added the following
comment about Sheikh Saqr’s position and the arguments he (Luce) used to
try and persuade the Sheikh that the Luce/Afshar proposals would not expose
him to blame for the loss of the islands to Iran (which under the proposals was
certain to occur pursuant to point (b)):
Saqr persisted that he could not hand over the islands: the Iranians had
no right whatever to them and were merely talking the language of su-
perior power. I said that under the alternative I was suggesting there was
no question of his handing over the islands. He would agree to the arrival
of Iranian forces, his administration would continue and he would make
an agreement for financial aid from Iran. There was nothing unusual in
any of this. If Iran subsequently ejected his administration nobody could
blame him for that.85
Notwithstanding the threats which Iran had made clear it would carry out if
a “peaceful settlement” were not reached, Luce was unable to persuade the
Ruler of Ras Al Khaimah to accept the Iranian package or to make a counter
offer during the September negotiations. The Ruler of Sharjah, Sheikh Khalid,
pursued a different course. Thus, a few days after Luce had told him that with-
out an agreement Sharjah would lose Abu Musa altogether through seizure by
81 defe 24/576, Telegram from Luce, dated September 15, 1971, para. 1.
82 Ibid.
83 Ibid., para. 2.
84 Ibid.
85 Ibid., para. 4.
Iran and put at risk “the stability of the area generally”, he conveyed a counter-
proposal to Sir William by which Sharjah would grant Iran the right to estab-
lish a military presence on the island, but which otherwise would maintain
Sharjah’s authority and, in effect, its sovereignty over Abu Musa. The terms put
forth by the Ruler were the following:
(a) Sharjah was willing to have Iranian forces on Abu Musa occupying a de-
limited area which would not affect the existing village and the Iranians
could fly their flag and exercise their jurisdiction within that area.
(b) Elsewhere on the island, the Ruler of Sharjah’s authority and administra-
tion would continue.
(c) All mineral rights on the island of Abu Musa and within its territorial
waters of 12 nautical miles would remain with Sharjah, with fishing rights
not affected.
(d) Sovereignty would not be mentioned by either side in perpetuity.
(e) Iran would pay rent, even if only nominal, for using the occupied part of
the island.86
In relation to these counter-proposals, and before putting them to the Shah,

Luce told Sheikh Khalid in another meeting on 21 September that the ques-
tion of some payment on the part of Iran in consideration of the execution of
the agreement (point (e) above) was not worth putting to the Shah because it
would “close the door finally to any further negotiation”.87 The Ruler reluctantly
agreed to take this out of his counter-proposals but in exchange he wanted the
British government to agree that “[Sharjah’s] oil concessionaire, Buttes [Gas
and Oil Co.], should be allowed to operate through the twelve mile territorial
waters belonging to Abu Musa” and that “Iran should recognise Buttes’ exclu-
sive rights of exploration and exploitation within these waters.”88 Luce viewed
this as a further complication to Iran accepting Sharjah’s counter-proposals,
in particular because of Iran’s commitment to Occidental Petroleum.89 Sir
William further stressed to the Ruler that such a condition meant confusing
Sharjah’s dispute with Iran with its dispute with the neighboring sheikhdoms
86 defe 24/576, Telegram from uk Political Agency in Dubai (following from Luce) to fco,
87 defe 24/576, Telegram from Bahrain Residency (following from Luce) to fco, dated Sep-
tember 22, 1971, para. 2.
88 Ibid.
89 Ibid.
582 chapter 9
of Umm Al Qaiwain and Ajman, which claimed the right to grant oil conces-
sions in areas overlapping Abu Musa’s claimed territorial sea.90
After Sir William returned to London on 22 September, he was instructed
by the British Foreign Secretary to meet with the Shah and convey to him the
Ruler of Sharjah’s counter-proposals regarding Abu Musa.91 Even if there was
a risk that the Shah would reject the counter-proposals altogether, the Brit-
ish government considered that “the presentation of counter-proposals will at
least keep the dialogue open, and, more important, gives the Shah a chance
to moderate his demands”, particularly because “there [were] signs that [the
Shah was] increasingly anxious to get a settlement.”92 As noted above, the Brit-
ish Foreign Secretary also instructed Luce at this time to convey the message
to Iran that if an accommodation could be reached with respect to Abu Musa,
Britain would acquiesce in the seizure of the Tunbs after Britain’s withdrawal
from the Gulf, and that if no agreement could be reached concerning Abu
Musa, then the Iranians “will have to decide whether to carry out their stated
intention (of taking the islands by force) after we have completed our military
withdrawal.”93
Sir William met with the Shah in Tehran on 2 October and after hearing
the Ruler of Sharjah’s counter-proposals, the Shah made a counter-offer with
respect to Abu Musa (the terms of which have come to light as a result of the
foi request noted above), conditioned, however, on acceptance of the median
line proposal under which Iran would be allowed to take full control over the
Tunbs whether the Ruler of Ras Al Khaimah agreed or not. The Shah’s proposal
contemplated a sort of choreographed surrender of control and sovereignty by
Sharjah over the island, albeit couched in vague terms which left some room
for Sharjah to continue to claim sovereignty if done so in “moderate terms”
and without “stimulating international activity”. The whole of the Shah’s pro-
posals on Abu Musa as re-stated by Sir William in an October 4, 1971 telegram,
included the following:
90 Ibid. Sir William Luce reported to the fco that if this condition were to be accepted by
Iran, that it would be a price worth paying for a settlement of the major problem and that
“in those circumstances [the British Government] should bring all possible pressure on
Khalid [Ruler of Sharjah] to share any oil revenue with Umm al Qawain and Ajman.” On
the litigation that ensued between Buttes and Occidental, see infra text accompanying
notes 307–308.
91 defe 24/576, Telegram from fco (Douglas-Home) to Gulf Embassies, dated September 24,
1971.
92 Ibid.
dated September 25, 1971, para 3.
1. Iranian troops would arrive on Abu Musa. They would occupy areas the
extent of which would have been agreed in advance on a map.
2. In these areas Iran would have full jurisdiction and the Iranian flag would
fly.
3. Sharjah would retain jurisdiction over the remainder of the island. The
Sharjah flag would continue to fly where it had traditionally flown.
4. Exploitation of oil resources would be conducted by any company des-
ignated by the Ruler under an agreement which must be in conformity
with the relevant laws and regulations of Iran. Iran would recognise the
agreement. The agreement would provide for 50% of oil revenues to be
paid directly by the company each to Iran and Sharjah.
5. An aid agreement would be signed between Iran and Sharjah.
6. Neither Iran nor Sharjah would give up its claim to Abu Musa, nor recog-
nise the other’s claim.
7. After a very short period Iran would send back to the mainland Sharjah’s
police and administration. This would be before the formal establish-
ment of the uae.
8. Despite the eviction of the Ruler’s administration the arrangements for
oil exploitation would continue. The aid agreement would continue pro-
vided the Ruler’s response and the assertion of his claim to sovereignty
over Abu Musa was in moderate terms, and provided he did not stimulate
international activity in this respect.94
According to the British records, in particular with respect to points 4 and 7,

the Shah’s counter-proposals to the Ruler of Sharjah would entail “persuad-
ing the Ruler to give up half his oil and reassuring him that his police and ad-
ministration would remain on Abu Musa, while knowing all the time that the
police and administration would be sent back to the mainland within a month
or even sooner.”95 Concerning the exploitation of the area’s oil, the Shah
explained that:
[H]e could not possibly agree that oil, or any other mineral resources,
should be under the exclusive control of Sharjah. This would be an obvi-
ous admission of Sharjah’s sovereignty. The most he could accept would
be that the Ruler could make an agreement … with any oil company or
94 fo 1016/915, Telegram from Tehran (following from Luce) to fco, dated October 4, 1971,
708.
95 fo 1016/915, Record of Audience with H.I.M. the Shah of Iran in Tehran on 6 October, 1971,
dated October 7, 1971, 766, para. 1.
584 chapter 9
companies he liked, but the terms of the agreement must conform with
the laws and regulations concerning oil agreements made by Iran. Iran
would then recognise and accept the agreement and the oil company
concerned could begin operations … [T]he oil company should pay 50%
to Sharjah and 50% to Iran … Iran did not need the 50% for the sake of
money, which in any case might be quite a small amount; but this was a
matter of principle, and was essential in order not to admit Sharjah’s sov-
ereignty. Iran would probably use most of her share to help other Trucial
Coast Rulers.96
Concerning the issue of ejecting the Ruler’s police and administration out of
Abu Musa “after a very short period” and “before the formal establishment
of the uae”, the Shah openly suggested to the British that if such a condition
would not be acceptable to the Ruler, it should simply not be disclosed to him,
but that it would be imposed by Iran in any event in order to assert its control
(and presumed sovereignty) over the entire island without Sharjah’s advanced
knowledge:
The Shah replied that Iranian sovereignty over Abu Musa was a matter on
which he could not compromise in any way. He had made a great sacrifice
over Bahrain and he had been criticised for it in his own country. Iran’s
national pride required that she should regain her rightful national pos-
session of the Tunbs and Abu Musa and her national security depended
on full and indisputable control of them. He had been prepared to wait
a year after the arrival of Iranian forces on the understanding that the
Ruler of Sharjah would himself withdraw his police and remove his flag,
but if he was not willing to do this then Iran would have to do it for him.
Iran did not wish to get embroiled with a fully established and indepen-
dent uae and therefore he would have to evict the Ruler’s administration
very shortly after Iranian forces arrived, perhaps in a month, or even a
week. [Sir William Luce] said that … the Ruler could not possibly agree
to any arrangement which did not provide for the continued presence
of his administration for an indefinite period. The Shah replied that the
Ruler need not know about Iran’s intention of evicting his police; he could
save his face with his people by protesting … The Shah said that hmg could
be officially as surprised as anyone else when the Ruler’s police were turned
96 fo 1016/915, Note on Audience with H.I.M. the Shah on 2 October, 1971, dated October 5,
1971, 765, para. 3.
out, but [Sir William Luce] pointed out that [the British Government]
could not possibly pretend [that they] did not know what was going to
happen.97
After consultations with the Foreign Office, the British envoy again met the
Shah on 6 October. In that meeting, Luce argued that the Shah would have to
change his position since, in particular, the condition regarding the eviction
of the Ruler’s administration would mean that the British would be put in an
impossible position whereby they would have to convince the Ruler to believe
that his administration would remain permanently on the island when they
knew that Iran would evict them almost immediately.98 Thus, according to the
British, “the Shah is in effect inviting [them] to collude with him in deceiving
[the Ruler of Sharjah].”99 Sir William argued in front of the Shah at his audi-
ence with him on October 6, 1971, that the “package settlement” that the British
were proposing would “give Iran her full security requirements, full sovereignty
in the case of the Tunbs and no prejudice to her claim to sovereignty over Abu
Musa”.100 He went on to say that, given that “the uae’s first priority would be
to establish close and friendly relations with Iran … Iran would have nothing
to lose by allowing Sharjah’s handful of Police and her flag to remain on the
island” and that, in any case, “[i]f a hostile regime was about to take over on the
Arab side, Iran could evict them in a matter of hours, and [the British Govern-
ment] would certainly not blame her in these circumstances.”101 After discuss-
ing these issues, the Shah agreed to modifications under which the expulsion
of the Sharjah police and administration, and the removal of its flag, would not
take place before the establishment of the uae, but he warned that it would
occur sometime thereafter and be carried out “quietly”. Thus, the Shah indicat-
ed to Luce that “Iran would not allow [them] to remain ‘forever’ [but that t]hey
would not (not) be removed ‘one day’ after the establishment of the Union[;]
they might stay for a year, but one day, whenever it was, they would be sent qui-
etly back to Sharjah.”102 The agreement of the Shah to postpone Iran’s removal
of Sharjah’s flag and the expulsion of its police force and a dministration until
97 Ibid., para. 3 (emphasis added).

724.
99 fo 106/915, Telegram from fco to Tehran, dated October 4, 1971, 707.
724, para. 5.
101 Ibid.
102 Ibid., para. 8.
586 chapter 9
after the formation of the uae was, however, subject to the further condition
that the uae itself, as agreed by each of its individual Rulers prior to formation
of the Union, would commit to refraining from raising the dispute or being
concerned with it “in any way”. The Shah and Luce also agreed that:
A. Iranian forces would occupy an area on the western side of the island,
where there is high ground (the promised map has not yet been pro-
duced) and the Iranian flag would be flown in this “compound”[;]
B. The Ruler’s police (up to a dozen or so) could remain on the island and
the Sharjah flag could fly over the police post only as the equivalent of the
Iranian compound (the Shah at first said that the flag must be removed
altogether but relented when [Sir William] argued the point)[;]
C. Each side would continue to claim sovereignty[;]
D. The Union could be formally established with Iran’s support, provid-
ed that the Rulers concerned were all prepared to state publicly not
later than the moment of formal establishment, that the Union would in
no way be concerned with the question of Sharjah’s claim to sovereignty
over Abu Musa, which would remain a matter between Iran and Sharjah
only[;]
E. Arrangements about oil and financial aid would remain as already
proposed.103
At the close of these negotiations, the Shah stated that “this is really as far as he
could go and he hoped hmg would find his proposals generous and sufficient
to produce a settlement” and that “there would be no point in coming back
to him for further discussion of the problem[;] we had now reached the point
where the answer must be either yes or no.”104
The 8-point Iranian counter-proposals set out in the telegram of 4 October
were amended to reflect several key issues agreed during the negotiations be-
tween Sir William and the Shah of 9 October, principally (i) the amendment
of paragraph 7 (“7. No date would be set for Iran to send back to the mainland
Sharjah’s police and administration. However, it would not be before the formal
establishment of the uae or immediately thereafter”) and (ii) the addition of a
new paragraph 8 (“8. Before the formal establishment of the uae the individ-
ual Rulers participating in the intended union would state in writing that the
Union would not be concerned with Sharjah’s claim to Abu Musa and that this
was a matter solely for the Ruler of Sharjah. These written statements would be
103 Ibid., para. 7.

104 Ibid., paras. 9 and 10.
published”).105 Paragraph 8 of the old draft remained almost identical to the

new paragraph 9 of the new draft of the proposals.
Sir William took the Shah’s counter-offer regarding Abu Musa to the Gulf
in October to put to the Rulers “in the form and manner which offered the
best hope of acceptance.”106 What this meant was that, rather than presenting
the full proposal agreed to by the Shah, the terms of the proposal presented
by Luce to the Rulers made no mention of the aspects of the Shah’s proposal
which Luce believed would be most objectionable. These included Iran’s in-
tention eventually “to send back to the mainland Sharjah’s police and admin-
istration” (paragraph 7) and Iran’s warning that its aid agreement to Sharjah
would be withdrawn if the Ruler made more than “modest” assertions of sov-
ereignty over Abu Musa (original paragraph 8, later paragraph 9). Without
these points, the text of the proposal given to the Ruler of Sharjah for con-
sideration was practically identical to what became the final text of the mou,
except in relation to the wording of the clauses relating to the fishing rights
and the exploration of natural resources of the seabed and subsoil, the incor-
poration of a perpetual duration clause to the agreement107 (which interest-
ingly was eliminated from the final draft),108 and the inclusion of paragraph
headings and subheadings which gave some insight into the proper interpre-
tation of the various clauses109 (also eliminated from the version delivered to
105 fo 1016/915, Telegram from fco to Tehran, dated October 9, 1971, 747. See supra note 94
and accompanying text, which refer to the October 4, 1971 proposals contained in fo
1016/915, Telegram from Tehran (following from Luce) to fco, dated October 4, 1971, 708.
106 fo 1016/915, Letter from Sir W Luce (fco) to British Embassy in Tehran, copying Bahrain
Residency, dated October 21, 1971, 781.
107 This draft was attached to fo 1016/915, Letter from Sir W Luce (fco) to British Embassy
in Tehran, copying Bahrain Residency, dated October 21, 1971, 781. This letter is heavily
redacted under Section 27 of the Freedom of Information Act 2000 and the authors’ re-
quest to have the extracts opened to the public was only accepted in part, with some
excerpts having been declassified but which are of no great substance to the key points
discussed here.
108 The language of that provision, entitled “Duration”, was: “No date will be set for the termi-
nation of these arrangements”. fo 1016/915, Letter from Sir William Luce (fco) to British
Embassy in Tehran, copying Bahrain Residency, dated October 21, 1971, 781.
109 The headings were as follows: (i) Paragraph 1 heading: “With respect to the function of
the Island of Abu Musa, in the furtherance of the security of the gulf against aggres-
sion”; (ii) Paragraph 2 heading: “With respect to the jurisdiction of Iran and of Sharjah
on the island”; (iii) Paragraph 3 heading: “With respect to the territorial sea boundaries”;
(iv) Paragraph 4 heading: “With respect to natural resources of the seabed and subsoil”;
(v) Paragraph 5 heading: “Financial assistance.” fo 1016/915, Attachment to Letter from
Sir W Luce (fco) to British Embassy in Tehran, copying Bahrain Residency, October 21,
1971, 781.
588 chapter 9
the Rulers110). The text of the version to be handed to the Rulers was first
shared with Mr. Afshar by Sir William on October 18 and 19 as a “piece of paper
and formulae [which] were merely an indication of the line on which [Sir Wil-
liam] proposed to approach the Rulers.”111 In keeping with the new paragraph 8
of the Shah’s revised counter-proposal, another draft document enclosed with
Luce’s communication to the Rulers was of a letter which the Iranian proposal
required each of the individual Rulers of the several Emirates which would
make up the uae to sign, indicating that the dispute over the Gulf islands was
only between Iran and the respective Rulers of Sharjah and Ras Al Khaimah
and that the Union would not concern itself with that dispute. The alternative
formulations of this draft letter, neither of which was ever signed by any of the
Rulers, read:
I confirm, in my capacity as a member of the future United Arab Emirates,

that the Union Government will not concern itself with the question of
the future status of Abu Musa but will leave the matter to be settled be-
tween the Ruler of Sharjah and the Government of Iran.
alternatively
With reference to unresolved disputes between members of the future

United Arab Emirates and Iran over the sovereignty of Islands in the Gulf
I confirm, in my capacity as a member of the future United Arab Emirates,
that the Union Government will not concern itself with the question of
the future status of any such Islands but will leave the matter to be set-
tled between the Rulers of the States concerned and the Government of
Iran.112
Sir William began his October talks with the Ruler of Ras Al Khaimah by recall-
ing the median line basis of the solution to the islands at their earlier meet-
ing of 18 September, “whereby the Tunbs would go to Iran in exchange for the
Shah agreeing to arrangements which amounted to less than a complete Ira-
nian takeover of Abu Musa” and that “it might make it easier for Shaikh Saqr
110 fo 1016/915, Telegram from Dubai (following from Luce) to fco, dated October 26, 1971
(“At his request I gave [Ely] as an aide mémoire and basis for discussion with Khalid, the
quote Elements of a Settlement unquote without the heading and sub-headings … I also
gave Ely a copy of the map.”).
112 fo 1016/916, Record of Conversation at the Ruler’s Palace, Abu Dhabi, on Thursday 28
October 1971, dated October 29, 1971, 848, para. 1.
[of Ras Al Khaimah] to accept such settlement if hmg were prepared to take
the responsibility.”113 Sir William further indicated that when he communi-
cated to the Shah that the Rulers could not accept Iran’s 18 September propos-
als, the Shah made new proposals pointing out that “the Iranian concessions
over Abu Musa were only offered on condition that sovereignty over the Tunbs
would pass to Iran.”114 Finally, Sir William indicated that he understood that
the surrender of the Tunbs would be very difficult for Ras Al Khaimah but that
“in considering these proposals [Ras Al Khaimah] should think not only of [its]
interests but of the general welfare of the area.”115
These arguments did not sway the Ruler of Ras Al Khaimah, who, as noted
above, rejected the Iranian offer, refusing to give way on any formula which
would result in the occupation of the Tunbs by Iran, describing the proposed
solution as “not a settlement but simply a surrender” and that he would not
“have himself described as the Ruler who gave them away” in exchange “for a
few million pounds worth of Iranian aid.”116 He also added that “he was pre-
pared to go to any court in the world to defend his claim to the Tunbs”, to which
Luce replied that this had frequently been suggested to the Shah but that he
had consistently rejected the possibility. In the face of the Ruler’s position,
Luce stated that “in all honesty, he had to tell Shaikh Saqr that there was no
hope of solving the problem other than by allowing the Tunbs to go to Iran”
and that “[i]f there was no agreed solution, the Shah was prepared to take both
the Tunbs and Abu Musa as well by force.”117 He added that the British govern-
ment “did not agree with the Shah’s views on the islands but it was necessary
to face reality” and that “no-one was able to change the Shah’s mind.”118 When
told by Luce that if he were to acquiesce to the Iranian demands “the world
in general would be thankful [to him] that a solution had been achieved” and
that, as for the possibility of negative reaction among other Gulf Arab coun-
tries for the surrender of “Arab territory” to Iran, “other Arabs in the Gulf did
not much care about the Tunbs”, the Ruler replied that “he was not so much
worried about other Arabs as about the opinion of his own people” and that
he would not behave dishonourably to them.119 Two days after this encounter,
a denunciation of the Iranian proposals by the Ruler of Ras Al Khaimah was
published in a Gulf newspaper, Al Khalij, which stated that:
113 fo 1016/916, Record of Conversation at the Ruler’s Palace, Ras Al Khaimah, dated October
30, 1971, 849.
114 Ibid.
115 Ibid.
116 Ibid.
117 Ibid.
118 Ibid.
119 Ibid.
590 chapter 9
Luce proposed that we should give up the two Islands in exchange for
an annual payment by Iran of 1½ million pounds sterling, in instalments
over 9 years, in addition to giving us 49% of mineral and oil resources
which may be found on the Islands in the future. But we rejected this pro-
posal. We were not ready to enter into bargains for selling our Islands.120
In his discussions with the Ruler of Sharjah over several days, Luce once again
expressed in similar terms the intention of the Shah to seize the islands out-
right if a peaceful settlement could not be reached. Thus, on Iran’s reply to Shar-
jah’s counter-proposal (which had effectively maintained Sharjah’s sovereignty
and control over most of Abu Musa while granting Iran the right to establish a
military garrison there in a limited area for the purpose of preserving security
in the region), Luce reported that the “Shah had said that he could not give way
on the question of sovereignty but would prefer a peaceful solution to having
to seize the islands by force.”121 Luce also stated that “it was important to stick
to the realities; the present proposals were, in their essentials, the farthest that
the Shah was prepared to go” and that “time was short and it would not be
possible to obtain any improvement of substance in the present Iranian terms;
Shaikh Khalid was therefore faced with the choice of accepting the proposals
in principle or losing his island, and everything that went with it, in the near
future.”122 The Ruler acknowledged his understanding of the Shah’s intentions
by referring to a recent direct bilateral meeting between the Ruler and the Shah
in which the Shah had plainly acknowledged that he “had made warlike utter-
ances and felt obliged to take the islands in order to maintain face”123 and that
120 Reproduced in fo 1016/916.

121 fo 1016/916, Record of Conversation in the Ruler’s Palace, Sharjah, 27 October 1971.
122 Ibid.
123 This direct bilateral meeting between the Ruler of Sharjah and the Shah himself took
place during the former’s visit to Iran during the 2,500 year anniversary celebrations of
Cyrus the Great, in which the following exchange took place: “The Shah had continued by
saying that he was very keen that the dispute should be settled peacefully, since trouble
between their two countries would give strength to left-wing parties. However, he had
made war-like utterances and felt obliged to take the islands in order to maintain face.
The Ruler replied that he could not stop the Shah. Iran had been like a big brother to Shar-
jah. The Iranians had always been free to come and go as they pleased. If the Shah now
took the islands it would be a question of Big Brother taking advantage of Little Brother.
The Shah replied that he was sorry and emphasised that he had no personal animosity
towards the Ruler. He would try to think again of a new solution, but it would have to be
one whereby he could save face. The Shah repeated this twice and said that if he found
a new solution the Ruler of Sharjah could expect to hear from him. The Ruler of Sharjah
said that he remained, as always, agreeable to the stationing of Iranian troops on Abu
Musa and saw no reason why this should not solve the problem. However, the Shah said it
“the Shah had said nothing new. He had emphasised that he wanted a peaceful
settlement of the problem but had added that he would seize Abu Musa if no
settlement were reached.” Around this same time, Luce had also come to the
conclusion that “there had been a progressive hardening of the Shah’s attitude,
to the extent that this had now become a question of prestige.”124 During this
late October meeting with the Ruler, Sir William also clarified that the Shah’s
latest proposals concerning Abu Musa “were only put forward by the Iranians
on the basis that the Tunbs would go to Iran.”125
In a further meeting with Luce a few days after these discussions, Sheikh
Khalid had still not come to a decision whether to concede an agreement and,
if so, whether to insist on some modifications to the proposal under consider-
ation. The written record of this conversation evidences the enormous pres-
sure applied on the Ruler throughout the negotiation to accept the Iranian
proposals in order to avoid conflict with Iran and its seizure of Abu Musa by
force. It also makes clear that the Ruler understood that the consequence of
not conceding to the Iranian proposals would be an Iranian resort to force to
seize the island. Thus, it was noted in that record that:
(i) “Sir William Luce replied that the Shah had only agreed to the pres-
ent proposals after long discussion and he would not go any further.”
(ii) In reply to a proposal to limit the Iranian garrison to a small portion
of the island, Luce stated that “if the Shah were told that Shaikh
Khalid was only prepared to offer such a small area, the negotia-
tions would immediately be broken off” and that if “that was Shaikh
Khalid’s final word then the negotiations were finished” and “there
would be no point in proceeding with the negotiations.”
(iii) “Shaikh Khalid asked Sir William whether he believed that Iran
would seize the island if no agreement was reached. Sir William
said that he had no doubt about this, and in reply to a question,
Shaikh Khalid said that he had no doubt either.”
(iv) Luce added that “The choice which faced Shaikh Khalid was be-
tween having a settlement based on the present proposals, or losing
his island.”
was no longer as simple as this. His face was involved and the security of the whole area
must be undertaken by countries bordering the Gulf without any assistance from out-
side.” fo 1016/915, Telegram from the Political Agency in Dubai (Walker) to fco, dated
October 24, 1971, 793.
124 fo 1016/913, Minutes of meeting between the British Foreign Secretary, Sir William Luce
and the Deputy Ruler of Qatar, dated August 1971.
125 fo 1016/916, Record of Conversation in the Ruler’s Palace, Sharjah, on Wednesday 27 Oc-
tober, 1971, 847.
592 chapter 9
(v) “Sir William went on to say that he was convinced that it would not
be possible to get any better proposals from the Shah. The present
proposals were only obtained on the basis that the Tunbs should go
completely to Iran. This was obviously a dif f icult problem for Sharjah
but the fact remained that the Shah was not going to change and
if there was no peaceful solution to the problem, Iran would seize
Abu Musa and Sharjah would lose everything.”
(vi) “Sir William pointed out that if Sharjah rejected the present Iranian
proposals or made unacceptable counter proposals, then Sharjah
would lose everything; the island, the oil and the prospect of Iranian
financial aid – would the people of Sharjah thank the Ruler for
that?”
(vii) Sheikh Khalid told Luce he had convened a meeting of prominent
Sharjah citizens and “[h]e was going to put the choice before them”,
which he described as “either to accept the Iranian proposals in
principle or to lose the island.”
(viii) In reply to Sheikh Khalid’s intention to be “guided” by the views
of the Sharjah notables, Luce stated that “a Ruler should lead his
people and not follow them” and he “repeated once again that the
only way to a settlement was on the basis of the present proposals.
If there was no settlement then Sharjah would lose everything.”126
The evidence indicates that it was after this final meeting with Luce, and hav-
ing then listened to his subjects, that the Ruler of Sharjah decided to agree
in principle to the Iranian proposals. His personal lawyer, Mr. Northcutt Ely
(an American), who was present at these discussions, wrote later of the dif-
ficulty of the decision and the “agitated discussion” which was held between
the Ruler and the Sharjah notables. He also recorded the advice he gave Sheikh
Khalid, which was to concede to the Iranian demands: “If he refused, he would
lose the island to Iran’s overwhelming force. Neither the United States nor
Great Britain would intervene. There was no likelihood that any Arab country
would fight Iran. He and his people would die proud, but poor.”127 That Sheikh
Khalid’s decision to concede to the Iranian position had been made following
Luce’s late October visit is evidenced by the record of the discussion which
Luce then held with the Shah on 11 November to report on his discussions
with the two Rulers. Luce began his report by telling the Shah that the “re-
sults had been encouraging as far as Sharjah and Abu Musa were concerned”,
126 fo 1016/916, Record of Conversation at the Ruler’s Palace, Sharjah, on Saturday 30 Octo-
ber, 1971, 850.
127 Northcutt Ely, “Recollections of the Persian Gulf” (December 5, 1985). Accessed Novem-
ber 19, 2015. http://www.redlandsfortnightly.org/papers/persgulf.htm.
noting that the Ruler of Sharjah “had agreed to all the main points proposed
by Iran”.128
Indeed, following Luce’s late October discussions with the Ruler, all further
negotiations related to Abu Musa, which continued during November and re-
lated to subsidiary, albeit important, details concerning the implementation
and scope of the arrangements, but no longer raised any fundamental dis-
agreement with the basis of those arrangements in principle nor threatened a
complete rejection of the notion of reaching any agreement under which Iran
would be permitted to occupy a portion of the island. The additional matters
raised included the exact area of the island to be occupied by Iranian forces, the
arrangements over oil produced from Abu Musa’s territorial sea and the dispo-
sition of the revenues which were generated, certain “security” arrangements
over the island which Iran requested, and a request by Sharjah that the arrange-
ments related to the island and Iran’s presence there be memorialized in a writ-
ten agreement rather than be left to a verbal understanding as the Shah had
wanted. Regarding this last matter, the Ruler of Sharjah noted that “he would
need quote legal guarantees unquote to cover the proposed arrangements [in
the form of] an agreement between Sharjah and Iran which would be registered
with the United Nations”. According to Sir William, this form would not have
been accepted by the Shah, who only wanted the oil and financial agreements
to be in writing, and that the most he could possibly achieve in terms of form
(although where was no certainty that the Shah would agree to it) would be
for “an exchange of letters through HMG by which each side would accept the
arrangements set out in [the draft] given [to] Ely on the previous day.”129 In re-
sponse, Shaikh Khalid “asked what guarantee he would have, if he accepted the
Iranian proposals, against Iran subsequently taking the whole of Abu Musa”,
a question to which Luce, notwithstanding his awareness that this is exactly
what the Shah had intended to do, did not give an answer other than to say that
the Shah would not agree to it.130 Sir William also added that neither would the
Shah “agree to there being any stated duration for the arrangements proposed”
due to his fear that “some time in the future a radical regime might take over
on the Trucial Coast [and] [i]f the Iranian base on Abu Musa were there by
virtue of a formal agreement with the Government of Sharjah that it might
suffer the same fate as the British and American bases in Libya after the Libyan
128 fo 1016/916, Record of Conversation between the Shah and Sir William Luce, 11 November
1971. It should be noted that the points referenced by Luce included only those which had
found their way into the draft document Luce had prepared for the Rulers (these points
did not include the expulsion of Sharjah’s police and administration).
129 fo 1016/915, Telegram from Dubai (following from Luce) to fco, dated October 26, 1971,
784, para. 2. This form was, in fact, eventually agreed resulting in the mou’s acceptance
being through such an exchange of letters.
130 FO 1016/916, 847, para. 2.
594 chapter 9
revolution of 1969.”131 To this, Sheikh Khalid responded by asking “whether

it was impossible for the reverse to happen; might not a radical regime seize
power in Iran?”132 Again, Sir William gave no reply.
In the audience the Shah had with Sir William Luce on 11 November133 the
Shah stated his readiness to accommodate Sharjah’s proposals on the geo-
graphical area to be occupied by the arriving Iranian forces134 and the oil ar-
rangements.135 This left the matter of Sharjah’s request that the arrangements
be formalized in a written agreement. On this, Luce reported the following af-
ter meeting the Shah on 11 November:
After considerable discussion about Sharjah’s request for a written agree-

ment, the Shah finally agreed to the proposal for an exchange of letters
131 Ibid.
132 Ibid.
133 fo 1016/916, Telegram from Tehran to fco (following from Luce): Audience with the
Shah, dated November 11, 1971, 864. See also, fo 1016/916, Telegram from British Embassy
in Tehran (Ramsbotham) to fco copying various Gulf posts, dated November 15, 1971, 872.
134 As to the geographical division of Abu Musa, the Shah “offered adjustments to the origi-
nal Iranian line to exclude the well, the date garden and the tombs from the Iranian area
and to give Sharjah a fair shore by the deep water approach to the east of the island.” The
British proposed to settle this question by a joint visit on the ground by representatives of
Iran and Sharjah and the Shah accepted this “on condition that, under whatever arrange-
ments were made, Iran must hold the essential strategic points.” fo 1016/916, Telegram
from Tehran to fco (following from Luce): Audience with the Shah, dated November
11, 1971, 864. See also, fo 1016/916, Record of Conversation in Iran at Bobolsar, dated 11
November 1971, 892A.
135 As for the oil arrangements, the Shah indicated that the 1957 Iranian legislation did not
have anything prejudicial of the kind alleged by Sharjah and that Sharjah’s agreement
with Buttes Oil could in principle conform to this and that a protocol to this agreement
could be drafted to conform the agreement with Iranian laws. fo 1016/916, Telegram from
Tehran to fco (following from Luce): Audience with the Shah, dated November 11, 1971,
864; fo 1016/916, Record of Conversation in Iran at Babolsar dated November 11, 1971,
892A, para. 11. On the issue of Umm Al Qaiwain and Ajman, the Shah “was ready to be
generous to Umm Al Qawaim and Ajman out of Iran’s 50% share of the oil revenues”. fo
1016/916, Telegram from Tehran to fco (following from Luce): Audience with the Shah,
dated November 11, 1971, 864, para. 5. The Shah further explained to Sir William Luce that
“if this was to be done he must insist on principle that Sharjah and Iran should share
equally the percentage of revenues to be paid to Umm al Qawain, though he might be
able, by some private arrangement, to reimburse Sharjah for its share of the Umm Al
Qawain payment.” fo 1016/916, Telegram from Tehran to fco (following from Luce): Au-
dience with the Shah, dated November 11, 1971, 864. See also fo 1016/916, Telegram from
Tehran to fco, dated November 17, 1971, 888, explaining what Iran has agreed in terms of
Umm Al Qaiwain: to give them a certain amount of financial aid per annum and if there
is oil discovered in Abu Musa to give them 3/8 of Iran’s 50% share in the oil.
through HMG provided that it was recorded in some way that Iran re-
served the right to take appropriate measures in respect of the Security
of her forces and of the island of Abu Musa if anything happened there
to threaten the security of the island as a whole. He agreed however that
the provision need not be written into the settlement memorandum but
could be mentioned in Iran’s letter to HMG confirming her acceptance of
the arrangements.136
Thus arose a final negotiating issue, which has been described as the “proviso
in Iran’s letter to [the British] accepting the arrangements.” 137
The “proviso” refers to Iran’s communication to the British Foreign Secretary
that Iran’s acceptance of the arrangements relating to Abu Musa was given
“on the understanding that nothing in the said arrangements shall be taken as
restricting the freedom of Iran to take any measures in the island of Abu Musa
which in its opinion would be necessary to safeguard the security of the Island
or of the Iranian forces”, and asking the British Foreign Secretary to convey
this “understanding” to the Ruler of Sharjah.138 With respect to the objective of
having this “proviso”, the Shah explained to Sir William:
The Shah said that he did not wish to evict the Ruler’s people. But if the
Iranians saw trouble one day they wished to be able to assure the secu-
rity of the island. The question of security could involve the question of
flags and police; or political provocation by the inhabitants. Sir William
suggested that the chief Iranian preoccupation appeared to be related
to the security of the island and not to the eviction of the Ruler’s admin-
istration. The Shah agreed. He said he was worried, for example, by the
possibility that Iran might see Ba’athists landing in the Sharjah area or
Sharjah’s police on the island being infiltrated by Ba’athists.139
Before telling the Ruler of Sharjah about Iran’s security proviso, Sir William
indicated to the Foreign Office: “Khalid will certainly not like this but it is the
best we have been able to get. As he will not be required to acknowledge this
proviso and will therefore not be binding himself to acceptance of it, Ely and
136 fo 1016/916, Telegram from Tehran (following from Luce) to fco: Audience with the
Shah, dated November 11, 1971, 864.
137 Ibid., para. 7.
138 See Letter No. 21284 from the Iranian Foreign Minister to the British Foreign Secretary,
dated November 25, 1971, forming part of the final set of documents composing the 1971
mou. See infra note 148 and accompanying text.
139 fo 1016/916, Record of Conversation in Iran at Babolsar on Thursday 11 November, 1971,
dated November 13, 1971, 892A. The quoted passage was part of the excerpts that were
open to the public after the authors’ foi request.
596 chapter 9
I feel that it should just be possible to persuade him to let it pass.”140 Never-
theless, Sir William was worried that the proviso in Iran’s letter would prove
a breaking point on Khalid and so he arranged for another meeting with the
Shah to discuss possible alternatives.141 After that meeting, which took place
on November 16, 1971, the following was agreed with the Shah:
A. Iran’s reply to hmg for transmission to Sharjah would refer only to ac-
ceptance of the settlement memorandum [i.e., the mou].
B. There would be a separate and simultaneous letter from Iran to hmg
containing the proviso … and asking hmg to convey this understanding
to the Ruler of Sharjah in whatever they consider to be the appropriate
manner.
C. hmg would reply to Iran taking note of Iran’s understanding and con-
firming that they had conveyed it to the Ruler.142
Britain’s concern about the proviso and the risk that the Ruler of Sharjah would
react negatively to the notion of Iranian forces taking a more active security
role on the island proved to be misplaced. The record of the meeting between
Sir William Luce and the Ruler of Sharjah on November 17, 1971 noted Luce’s
remark that the “Shah hoped that the proposed arrangements would work”
but “if Ba’athists, guerrillas or other trouble-makers arrived in the Sharjah part
of the island, posing a threat to the security of the island as a whole or to the
Iranian forces, the latter would be bound to take appropriate measures, if nec-
essary on the Sharjah side.” The Ruler’s lawyer, Mr. Ely, replied to this remark by
saying “he supposed that what the Shah meant was that if his forces had to deal
in self defence with the Ba’athists or others in Sharjah’s area, he did not wish
this to be regarded as a breach of the boundary line”, to which Sir William said
that “if the security of his forces or of the island as a whole was threatened the
Shah reserved the right to take whatever military action was necessary.”143 In a
telegram of 18 November 1971 to the Foreign Office reporting on this meeting,
Sir William Luce indicated that “Khalid took this quite calmly and remarked
jokingly that if there was trouble from Ba’athists in his area he would himself
140 fo 106/916, Telegram from Tehran (following from Luce) to fco, dated November 15, 1971,
872. The quoted passage was part of the excerpts that were open to the public after the
authors’ foi request.
141 fo 1016/916, Telegram from Tehran (following from Luce) to fco, dated November 16,
1971, 883. This is another telegram that was declassified in the fall of 2015 in light of our
foi request.
142 fo 1016/916, Telegram from Tehran (following from Luce) to fco, dated November 17, 1971,
888.
143 fo 1016/917, Summary Record of Conversation Between Sir William Luce and the Ruler of
Sharjah on November 17, 1971, 908A, para. 11.
call in the Iranian forces.”144 The legal consequences of the proviso are dis-
cussed later in this chapter.145
As already noted, regarding the form that the arrangements on Abu Musa
would take, despite being reluctant at first to sign an agreement as the Ruler of
Sharjah wanted, the Shah agreed with Sir William Luce’s suggestion for the ar-
rangements to be in the form of an exchange of letters between Iran and Brit-
ain followed by an exchange between Britain and Sharjah.146 This was agree-
able to the Ruler of Sharjah and thus, the Ruler signed a letter on 18 November
1971 addressed to the uk Foreign Secretary accepting the arrangements set out
in the annexed mou.147 The full and final text of the mou reads as follows:
Memorandum of Understanding
Neither Iran nor Sharjah will give up its claim to Abu Musa nor recognise
the other’s claim. Against this background the following arrangements
will be made:
1. Iranian troops will arrive on Abu Musa. They will occupy areas the extent
of which have been agreed on the map attached to this memorandum.
2. (a) within the agreed areas occupied by Iranian troops, Iran will have full
jurisdiction and the Iranian flag will fly.
(b) Sharjah will retain full jurisdiction over the remainder of the island.
The Sharjah flag will continue to fly over the Sharjah police post on the
same basis as the Iranian flag will fly over the Iranian military quarters.
144 fo 1016/917, Telegram British Political Residency in Dubai (following from Luce) to vari-
ous posts in the Gulf, dated November 18, 1971, 894.
146 fo 1016/917, Telegram fco (Gobber) to various Gulf posts, dated November 19, 1971, 909
(indicating how the procedure for signing mou would work, saying that Iran would at-
tach a copy of the mou and map to its letter of acceptance indicating that “a copy of the
Memorandum of Understanding in which the arrangements are set out is annexed to this
letter”). See also, United States National Archives, Telegram from the Embassy in Iran to
the Department of State, dated November 15, 1971, Nixon Presidential Materials, nsc Files,
Box 602, Country Files, Middle East, Iran, Vol. iv (containing an account of the American
Ambassador in Iran of the negotiations relating to the mou as communicated to the Am-
bassador by Sir William Luce).
147 Letter from the Ruler of Sharjah to the British Secretary of State for Foreign and Com-
monwealth Affairs in London, dated November 18, 1971, in Patricia L. Toye, ed., The Low-
er Gulf Islands: Abu Musa And The Tunbs Dispute (Cambridge: Archive Editions, 1993),
Vol. 6, 489. See also, fo 1016/917, Telegram fco (following from Luce) to various posts in
the Gulf, dated November 19, 1971, 901 (“The Ruler of Sharjah last night signed the letter
accepting the proposed arrangements for Abu Musa in the presence of senior members
of his family…. I shall bring the documents to London today.”).
598 chapter 9
3. Iran and Sharjah recognise the breadth of the island’s territorial sea as
twelve nautical miles.
4. Exploitation of the petroleum resources of Abu Musa and of the seabed
and subsoil beneath its territorial sea will be conducted by Buttes Gas
and Oil Company under the existing agreement which must be accept-
able to Iran. Half of the governmental oil revenue hereafter attributable
to the said exploitation shall be paid directly by the company to Iran and
half to Sharjah.
5. The nationals of Iran and Sharjah shall have equal rights to fish in the ter-
ritorial sea of Abu Musa.
6. A financial assistance agreement will be signed between Iran and Sharjah.
Thereafter, a series of letters constituting the exchange agreeing to the mou

followed with the final letter exchanged on 26 November 1971.148 In addition
148 These letters and the other documents annexed or referred to therein included:
(1) Letter from the Ruler of Sharjah to the British Secretary of State for Foreign and Com-
monwealth Affairs in London, dated 18 November 1971, confirming that the Ruler accepts
the arrangements set out in the mou (which was attached) and stating that he “should
be grateful for confirmation that the Iranian Government for its part accepts the arrange-
ments.” (Annex 1 to un Doc. S/2014/759, also published in Toye, Lower Gulf Islands, Vol. 6,
488–504);
(2) Full Text of the Memorandum of Understanding between Sharjah and Iran (Annex
1(A) to un Doc. S/2014/759, also published in Toye, Lower Gulf Islands, Vol. 6, 488–504);
(3) Map of Abu Musa Island attached to the Memorandum of Understanding (Annex 1(B)
to un Doc. S/2014/759 also published in Toye, Lower Gulf Islands, Vol. 6, 488–504);
(4) Letter from the British Foreign and Commonwealth Secretary to the Iranian Minister
of Foreign Affairs, dated 24 November 1971, asking for Iranian acceptance of the mou (An-
nex 2 to un Doc. S/2014/759, also published in Toye, Lower Gulf Islands, Vol. 6, 488–504);
(5) Letter No. 21282 from the Iranian Foreign Minister to the British Foreign Secretary,
dated 25 November 1971, expressing Iran’s acceptance of the arrangements for Abu Musa
as set out in the enclosure to the letter from the British Foreign Secretary of 24 November
1971 (Annex 3 to un Doc. S/2014/759, also published in Toye, Lower Gulf Islands, Vol. 6,
488–504);
(6) Letter No. 21284 from the Iranian Foreign Minister to the British Foreign Secretary dated
25 November 1971, quoting Iran’s letter No. 21282 of the same day, indicating that Iran’s
acceptance of the arrangements relating to Abu Musa was given “on the understanding
that nothing in the said arrangements shall be taken as restricting the freedom of Iran to
take any measures in the island of Abu Musa which in its opinion would be necessary to
safeguard the security of the Island or of the Iranian forces” (i.e., the proviso), and asking
the British Foreign Secretary to convey this “understanding” to the Ruler of Sharjah (only
published in Toye, Lower Gulf Islands, Vol. 6, 488–504 and in Amirahmadi, Small Islands,
Big Politics, 162–175);
(7) Letter from the British Foreign Secretary to the Iranian Foreign Minister dated 26 No-
vember 1971 informing him that, with reference to Iran’s note No. 21284, the understanding
to this exchange of letters constituting the mou, there are a series of related
documents to the mou. These include the financial assistance agreement
between Iran and Sharjah provided for in paragraph 6 of the mou and
correspondence between the company that held the oil concession for the area
of Abu Musa and its territorial sea, Buttes Gas & Oil Co., and the Iranian National
Oil Company concerning the arrangements for the payment of half of the oil
revenues directly to Iran by the concessionaire.149 Following the exchange of
letters constituting the mou, the Ruler of Sharjah made a public statement on
the conclusion of the agreement and thereafter, on 30 November 1971, Iranian
troops landed on Abu Musa.150 They were, by earlier agreement, greeted by
members of the Ruler of Sharjah’s family, headed by the Ruler’s brother.151
on which Iran’s acceptance of the arrangements relating to Abu Musa was given has
been noted and that this understanding was conveyed to the Ruler of Sharjah (only pub-
lished in Toye, Lower Gulf Islands, Vol. 6, 488–504; Amirahmadi, Small Islands, Big Politics,
162–175);
(8) Letter from the British Foreign Secretary to the Ruler of Sharjah dated 26 November
1971 indicating that it is enclosing copies of the correspondence between himself and the
Iranian Minister for Foreign Affairs in which the Iranian government’s acceptance to the
mou is given (only contained as Annex 4 to un Doc. S/2014/759).
149 The full list of these complementary documents is: Letter from the President of Buttes
Gas & Oil Co. to the Chairman of the Board of the National Iranian Oil Company dated
November 26, 1971; Letter from the Chairman of the Board of the National Iranian Oil
Company to Buttes Gas & Oil Co. dated November 27, 1971; Letter from the Minister for
Foreign Affairs of Iran to the Ruler of Sharjah dated November 30, 1971; Letter from the
Minister for Foreign Affairs of Iran to the Ruler of Sharjah dated November 30, 1971; Let-
ter from the Ruler of Sharjah to the Minister for Foreign Affairs of Iran dated December
1st, 1971. All of these documents are published in Toye, Lower Gulf Islands, Vol. 6, 488–504
and in Amirahmadi, Small Islands, Big Politics, 162–175. A copy of a cheque for £587,500
from the Central Bank of Iran to the Ruler of Sharjah, dated November 29, 1971 appears
only in the former publication. Neither the cheque nor the publication where this cheque
is mentioned include any indication of the reason for the payment, but most likely this
payment is under the provisions of the financial assistance agreement between Iran and
Sharjah. It is noteworthy, however, that the date of the cheque predates the entry into
force of the financial assistance agreement. Toye, Lower Gulf Islands, Vol. 6, 502.
150 See fo 1016/918, Statement of the Ruler of Sharjah, 1025. The Ruler announced “the
coming together of [Sharjah’s] viewpoints with those of the Government of the Iranian
Empire in an agreement on the Island of Abu Musa” by which Sharjah “maintain[s] for
Sharjahand its people [its] legal right to a dear portion of [its] good land.” The Ruler of
Sharjah further explained that “the agreement does not affect Sharjah’s view in respect
of its sovereignty over Abu Musa island as the Sharjah flag shall continue to be raised
on the police headquarters and on all government departments on the island, likewise
the citizens of it shall continue to be under the authority and jurisdiction of the Sharjah
government.”
151 See, e.g., Ely, “Recollections of the Persian Gulf”.
600 chapter 9
While the arrangements between Iran and Sharjah related to Abu Musa
were put into place, the circumstances related to the Tunbs remained un-
changed from the status of late October. As noted above, the willingness of
Iran to “moderate” its demands over Abu Musa were only agreed on the basis
that Britain would not oppose Iran’s taking full control of the Tunbs and expel-
ling the administration and forces of Ras Al Khaimah whether or not the Ruler
of Ras Al Khaimah agreed (the so-called median line proposal).152 As the Ruler
firmly rejected any agreement on the median line basis (that is, in effect selling
the Tunbs for approximately £14 million), this meant that as the deadline for
the British withdrawal neared, Iran’s government was faced with the decision
whether or not to carry through with its threat to seize the islands by force. As
this is in fact what occurred, with Iranian troops seizing the Tunbs by force on
30 November 1971 (the same day as Iranian troops landed on Abu Musa pursu-
ant to the mou),153 there can be no doubt that Iran’s threats were serious and
that it fully intended to make good those threats. What is of some historical
interest is that Britain appears to have both sought to pressure the Ruler of Ras
Al Khaimah until the last moment to acquiesce in the Iranian seizure of the
Tunbs in return for the financial assistance offered by the Iranians and at the
same time to have cautioned Iran that its seizure of the islands would likely
cause international difficulties for it. Thus, as late as November 25th, British
representatives had met with the Ruler to seek his acceptance of the Iranian
152 See, e.g., fo 1016/917, Telegram (fco) (Gobber) to certain missions and dependent territo-
ries in the Gulf and the Arab world, dated November 23, 1971, 939 (instructing the uk del-
egations not to reveal “that in order to get agreement over Abu Musa [the uk] accepted in
the last resort that the Iranians should occupy the Tunbs whether or not the Ruler of Ras
al Khaimah agreed.”).
153 The date of landing on both Abu Musa and the Tunbs was known in advance by the Brit-
ish as evidenced by various telegrams of the Foreign Office. Even if some excerpts of these
telegrams are still classified until 2022 on account of the exception of possible harm to in-
ternational relations, the draft of some of these telegrams has not been similarly redacted
so it is possible to see the draft form of the redacted passages, which usually have to do
with the British knowledge of Iran’s landing on the Tunbs and the date of that landing. As
explained above, a foi request by the authors to the u.k. National Archives did not result
in the opening to the public of these particular excerpts. See, e.g., fo 1016/917, Telegram
from Bahrain Residency to fco, dated November 6, 1971, 963 and its draft. The last part of
the telegram which is redacted but not in the draft says: “I should be grateful if you would
confirm by flash telegram that action has been completed, that 29 November remains the
date for the Abu Musa announcement, and that 30 November is still the date on which the
Iranians plan to land both on Abu Musa and on the Tunbs.” (text in italics is the redacted
text in the final telegram). There is no guarantee that the redacted passage in the final
telegram had the exact same wording as the unredacted draft, but it seems likely that its
content was not very different.
demands, but he continued to refuse to acquiesce.154 As for Iran, Luce warned

the Shah earlier in November that “hmg were convinced that there would be
a serious un row if Iran seized the islands without a settlement”, adding that
“[m]any countries had problems with their neighbours and their attitude to a
seizure of the islands would be determined by the effect it might have on their
own interests. He doubted, for instance, if the usa would support the Iranian
action because of the parallel that could be drawn with China and its offshore
island, Taiwan.”155 In reply, the Shah “said he doubted if the Americans would
so easily forfeit friendship with Iran. He would then be forced to seek friends
elsewhere.”156
Upon the seizure of the Tunbs, the Ruler of Ras Al Khaimah issued the fol-
lowing statement in a cable to the Government of Iraq that was later circulated
as a document of the Security Council by that State:
This morning Tuesday the 30th November 1971, Iranian troops have in-
vaded the two islands of Tunb and thus violated the brotherly rights of
neighbourliness and transgressed against our historical and national
rights. The small garrison stationed for the defence of the islands and
composed of six policemen valiantly resisted the invasion; four of them
were killed and the other two injured. The two islands of Tunb are and
have always been, since ancient times, an indivisible part of the territory
of Ras Al-Khaima, and their occupation by Iran is a blatant aggression
not only against Ras Al-Khaima alone, but against all the Arab people
in all their countries. We call upon you to take immediate and effective
measures to repulse the aggressors and to unite in support of Arab rights.
We appeal to you to shoulder your full national responsibilities before
God and history. We request you to submit the call to the United Nations,
the Security Council and the Council of the League of Arab States. Await-
ing your speedy reply, we wish you success.157
154 fo 1016/917, Telegram from Bahrain Residency No. 897 to fco, dated November 25, 1971,
960 (informing that the Political Agent in Dubai, who visited Ras Al Khaimah, had in-
formed the Bahrain Residency by phone that the Ruler of Ras Al Khaimah “was reluctant
even to discuss the Tunbs and refused to budge from the position which he took up when
he last saw Luce.”). See also, fo 1016/917, Telegram from fco to Bahrain Residency Tel No.
681, dated November 27, 1971, 976 (indicating that the Political Agent in Dubai would be
making one further approach to the Ruler of Ras Al Khaimah – who remained unwilling
to consider a deal – before the Iranians landed on the Tunbs).
155 fo 1016/916, Record of Conversation between Luce and the Shah, among others, dated
November 11, 1971.
156 Ibid.
157 Letter dated December 7, 1971 from the Permanent Representative of Iraq to the United
Nations addressed to the Secretary-General, un Doc. S/10434.
602 chapter 9
On December 1, 1971, the protectorate treaties between the British and each of
the seven emirates, including Sharjah and Ras Al Khaimah, were terminated by
mutual agreement,158 and on December 2 the United Arab Emirates (composed
of the six emirates of Abu Dhabi, Dubai, Sharjah, Ajman, Umm Al Qaiwain and
Fujairah) promulgated their Constitution and proclaimed their independence,
with the Supreme Council of the Federation making a statement on the islands
condemning the use of force by Iran.159 As the uae Constitution defines the
territory of the uae as “all the territory and territorial waters lying within the
international boundaries of the Member Emirates”,160 upon Sharjah’s joining
the Union the island of Abu Musa would become part of the new State. The
same is true of the Tunbs as of the moment Ras Al Khaimah joined the Union,
which was on 10 February 1971.
The uae was admitted as a Member State to the United Nations on Decem-
ber 9, 1971.161 On the same day, the Security Council convened to consider the
issue of the occupation by Iran of the islands of Abu Musa, Greater and Lesser
Tunb,162 which had been brought to the attention of the Council by a group of
Arab States (including Iraq, to which the Ruler of Ras Al Khaimah had request-
ed assistance) under Chapter vi of the un Charter,163 with the newly-formed
158 United Nations Treaty Collection, “Exchange of Notes Constituting an Agreement con-
cerning the termination of special treaty relations between the United Kingdom, Shar-
jah and its dependencies. Conclusion Date: December 01, 1971. u.n. Registration Number
I-11938.” Accessed November 19, 2015. http://treaties.un.org. There are similar treaties of
termination between the u.k. and respectively, Ras Al-Khaimah, Dubai, Abu Dhabi, Aj-
man, Umm Al Qaiwain and Fujairah, all registered with the United Nations, terminating
the Protectorate Treaties of 1892 between the British and each of those Emirates.
159 The Statement read: “The Federation condemns the principle of the use of force and it
regrets that Iran has recently occupied part of the Arab nation and it therefore deems it
necessary to honour legal rights and to discuss possible repercussions which might en-
sue because of disputes between nations. Such discussions should be conducted in ways
which are internationally recognized.” Cited in Mattair, Three Occupied uae Islands, 126.
160 See Article 2 of the uae Constitution: “In assuming its responsibilities under the provi-
sions of the Constitution, the uae has sovereignty over all territory and territorial wa-
ters lying within the international boundaries of the member Emirates.” See also, ibid.,
Article 3: “A member Emirate shall exercise sovereignty over its own territories and ter-
ritorial waters in all matters which are not within the jurisdiction of the uae under the
Constitution.”
161 General Assembly Resolution No. 2794 (xxvi), December 9, 1971.
PV.1610.
163 Letter dated December 3, 1971 from the representatives of Algeria, Iraq, the Libyan Arab
Republic and the People’s Democratic Republic of Yemen to the President of the Security
Council, un Doc. S/10409 (requesting an urgent meeting of the Security Council to con-
sider “the dangerous situation in the Arabian Gulf area arising from the occupation by the
State of the uae also invited to participate. The transcript of the Security
Council debate, in which the representatives of Algeria, Iraq, the Libyan Arab
Republic, the People’s Democratic Republic of Yemen, Kuwait, Iran and the
United Arab Emirates were invited to participate, reveals several relevant evi-
dentiary and legal matters:
(a) Comments made by the representative of Kuwait confirmed that in the

months prior to the withdrawal of British forces from the Gulf, Iran had
conveyed its threat to use force to seize the three islands to the Kuwaiti
government if an arrangement for their transfer to Iran was not agreed.
Referring to discussions between Kuwait and Iran, including a meeting
held between their respective foreign ministers, the Kuwaiti represen-
tative noted that “[i]n that meeting, Mr. Zahedi reaffirmed Iran’s de-
termination to occupy the islands, if no other solution consonant with
the Iranian demand was found…. Although Mr. Zahedi expressed his
country’s belief in self-determination and its dedication to the Charter of
the United Nations, he gave no assurance at all that Iran would not resort
to force. On the contrary, he left us with the unmistakable impression
that the Iranian Government was determined to use force to occupy the
Arab islands.”164
(b) Comments by the representatives of both Iraq and Yemen expressed the
assertion that the mou was secured through the threat of force and for
that reason was invalid. Thus, the representative of Iraq stated that “the
alleged agreement between Iran and the Sheikh of Al-Sharjah regarding
the island of Abu Musa is not valid for a number of good reasons. …It was
concluded under duress, and the threat that was carried out against Ras
Al-Khaimah when its ruler refused to submit to those threats and barter
away his territory is a clear example and proof.”165
(c) With respect to the Tunbs, the representative of Iran framed his coun-
try’s seizure of the islands on the grounds that its resort to force was jus-
tified because the islands were “Iranian territory”: thus, he stated that
“[w]ith regard to the Tunb islands we also sought to find a solution by
negotiation. Despite our continuous efforts it failed. We had gone as far
as we could and we were left with no alternative but to establish the
armed forces of Iran of the islands of Abu Musa, the Greater Tunb and the Lesser Tunb,
on November 30, 1971.”).
164 un Doc. S/PV.1610, para. 124.
165 Ibid., para. 105. Iraq also asserted that the mou was void because at the time it was entered
into, the 1892 exclusive agreement between Britain and Sharjah was still in effect, and
under its terms Sharjah was prohibited from entering into “any agreement or correspon-
dence with any Power other than the British Government.” Ibid.
604 chapter 9
exercise of our sovereign rights. It must not be forgotten that this was not
foreign territory; it was Iranian territory. It has always been Iranian ter-
ritory and, let there be no mistake about it, it will always remain Iranian
territory.”166
(d) The remarks by the representative of the uae repeatedly condemned
the unilateral use of force by Iran “to settle a territorial dispute” and in
“occupying the Arab islands in the Gulf”, while stating that as Iran “in-
sisted on taking over those islands and insisted on the view that those
islands were Iranian historically and that, therefore, Iranian sovereignty
had to be restored to them”, all “proposals which were made to the Iranian
Government regarding the possibilities of co-operation between the
Arab sheikhdoms concerned and Iran in respect of these islands were
rejected, and only the surrender of sovereignty of these islands to Iran
was acceptable to the Iranian Government.”167 These broad comments
against Iran’s use of force in “occupying the Arab islands” clearly assert-
ed the uae’s claim of sovereignty over all three islands (“these islands,
in our view, are and have always been Arab”). While, in referring to the
use of force, they also appear to refer to all three of the islands (and, in
light of the historical events, clearly constituted a protest against Iran’s
outright seizure of the Tunbs), it may be argued that their application to
Abu Musa is less clear since Iran did not use force to occupy the Tunbs,
but rather threatened the use of force to establish its occupation of the
island through the mou. Moreover, the remarks of the uae representative
did not, as the representative of Iraq had clearly expressed, specifically
assert that the mou was void for having been secured under duress or
the threat of the use of force. Indeed, it did not refer to the mou at all.
The relevance of these matters is discussed in the legal analysis set out
later in this chapter.
At the conclusion of the Security Council debate no resolution was adopted.

Instead, after both Iran and the uae put forward their positions with respect to
the islands and to the Iranian occupation of them and, upon the suggestion of
the representative of Somalia, the Council deferred consideration of the mat-
ter “to a later date, so that sufficient time is allowed for the [] efforts of quiet
diplomacy to work and to materialize”.168 The issue of the islands has not been
166 Ibid., para. 210.

167 Ibid., paras. 266, 269.
168 Ibid., para. 281.
considered again by the Security Council but it is still listed as an item of which
the Security Council is seized but that has not been considered at recent formal
meetings.169
In January 1972, only a few weeks after signing the mou, the Ruler of Sharjah
was assassinated by his predecessor, his cousin, in an attempted coup.170 It is
not settled whether Shaikh Khalid’s death was connected with his participa-
tion in the 1971 mou or whether it was an act of personal revenge by his cousin,
who had been deposed by Sharjah’s Royal family five years before and deport-
ed by the British,171 but at several times during the mou negotiations the Ruler
had expressed fear for his life.172 In 1972, Buttes Gas & Oil Co. discovered oil in
the territorial sea of Abu Musa, an area disputed between Sharjah, Umm Al
Qaiwain and their respective concessionaries.173
As noted above, Ras Al Khaimah joined the uae on 10th February 1972.174
169 General Assembly Official Records, 70th Session, Supplement No. 2, October 20, 2015, un
Doc. A/70/2, Part v, Matters brought to the attention of the Security Council but not dis-
cussed at meetings of the Council during the period covered. Every year, the uae requests
the Security Council to remain seized of the matter. The latest uae letters are dated January
19, 2015, January 7, 2016 and January 5, 2017. Letter dated January 19, 2015 from the Permanent
Representative of the United Arab Emirates to the United Nations addressed to the Presi-
dent of the Security Council, un Doc. S/2015/39; Letter dated January 7, 2016 from the Per-
manent Representative of the United Arab Emirates to the United Nations addressed to the
President of the Security Council, un Doc. S/2016/18. Letter dated January 5, 2017 from the
Chargé d’affaires a.i. of the Permanent Mission of the United Arab Emirates to the United
Nations addressed to the President of the Security Council, UN Doc. S/2017/17. The Islamic
Republic of Iran systematically opposes the uae’s protests. See, e.g., Letter dated May 15,
2015 from the Permanent Representative of the Islamic Republic of Iran to the United
Nations addressed to the President of the Security Council, un Doc. S/2015/348.
171 Ibid. See also, Buttes Gas Oil & Gas v Hammer, [1982] ac 888, 925, where Lord Wilberforce
indicates that the Ruler’s assassination was “an event which, it is suggested, was connect-
ed with his participation in the 1971 understanding”.
172 See, e.g., fo 1016/914, Record of Meeting between Sir William Luce, C.J. Treadwell, Mr. D.
Slater, Shaikh Zaid, Sayyid Mohamed Habrush, dated September 15, 1971, 635; fo 1016/914,
Summary of conversation between William Luce and Afshar relating to possible peaceful
solutions to islands crisis, dated September 29, 1971, 683.
173 Ali A. Hakim, The Middle Eastern States and the Law of the Sea (Manchester: Manchester
University Press, 1980), 125; Ely, “Recollections of the Persian Gulf”.
174 Mattair, Three Occupied uae Islands, 126–129 (recounting that at first, Ras Al Khaimah
had imposed conditions for joining the Federation of equal representation and making
the issue of the recovery of the islands a matter of the federation but that eventually Ras
Al Khaimah joined without any preconditions).
606 chapter 9
uae Protests
Since its formation as a State and admission as a member of the United
Nations, the uae has issued repeated diplomatic protests and statements con-
cerning the islands, both in relation to the events of November 1971 and to vari-
ous subsequent acts of purported sovereignty exercised by Iran on the islands.
Early Protests (1971–80)

The early protests lodged by the uae, including those registered at the un
Security Council in December 1971 cited above, as well as those issued in 1972,175
1974176 and 1980, also lodged with the un,177 claimed uae sovereignty over all
three of the islands, deplored the use of force exercised by Iran in seizing con-
trol of the islands in 1971 and called on Iran to “restore to its legitimate owners
what was taken away by force”. It may be noted that none of these protests
specifically addressed the mou and whether its validity may be impugned
as a result of the manner (duress or threat of force) by which it was secured,
175 See Letter dated July 17, 1972 from the Permanent Representatives of 15 Arab states, in-
cluding the uae, to the President of the un Security Council, un Doc. S10740 (“We have
the honour to reiterate to the members of the Security Council our position regarding the
question of the three Arab Islands, namely Abu Musa, the Greater Tunb, and the Lesser
Tunb which have been militarily occupied by Iran … We affirm that the Islands are Arab
… and constitute an integral part of the United Arab Emirates”). See also, Statement of
the uae representative, General Assembly Official Records, 27th year, 2055th Meeting,
October 5, 1972, un Doc. A/PV.2055, paras. 263–265 (“Our position has been made clear
on many occasions. The Government of the United Arab Emirates, immediately after the
proclamation of its independence, stated that it considered these islands to be Arab and
that they had always been Arab and deplored the use of force in settling a dispute be-
tween neighbours.”)
176 See Statement of the uae representative, Security Council Official Records, 29th year,
1763th Meeting, February 20, 1974, un Doc. S/PV.1763, para. 25 (“[T]he position of the Gov-
ernment of the United Arab Emirates has been made clear repeatedly, and I wish to state
it again here. We recognize no sovereignty over those islands other than that of the United
Arab Emirates.”).
177 See, e.g., Letter dated August 6, 1980 addressed to the Secretary General of the un by the
uae Minister of State for Foreign Affairs, un Doc. S/14111 (“The government of the United
Arab Emirates had cherished great hopes that the new Iranian Government, in rectify-
ing internal and external situations brought about as a result of expansionist ambitions
under the Shah’s regime, would return those [three occupied] Arab islands to the United
Arab Emirates [and] make restitution to the rightful owners. Consequently, the Govern-
ment of the United Arab Emirates finds itself obliged to re-emphasize its firm attachment
to those islands, which form an integral part of the territory of our State whose sovereign
rights thereover are indisputable and unimpeachable”).
instead dealing with all three of the islands as having been militarily occupied
by Iran at the end of 1971.
Subsequent Protests (1990s – Present)

Following a hiatus during much of the 1980s, the uae adopted a relatively con-
sistent pattern of lodging protests beginning in 1992 (which has continued to
the present day) in which, on a regular basis, it has claimed sovereignty over
the three islands, protested the Iranian “occupation” and called on Iran to re-
solve the dispute through peaceful means. These protests and statements, reg-
ularly noted in its annual speech before the un General Assembly and other
international fora, including the Arab League and the Gulf Cooperation Coun-
cil (which have themselves adopted and issued strongly-worded statements on
behalf and in support of the uae on a regular basis), emphasize, among other
things, that the use of force by Iran to settle a territorial dispute is contrary
to the Charter of the United Nations and offer to engage in meaningful bilat-
eral negotiations with Iran or to submit the sovereignty dispute to the Inter-
national Court of Justice for resolution.178 Numerous other protests have been
lodged by the uae, often in the form of notes verbales directed to the Iranian
government and simultaneously sent to the un Secretary General (see below,
this section).
A general survey of the content of the protests lodged by or on behalf of the
uae from 1992 to the present is set out below.
Request That un Security Council Maintains the Dispute as a

Matter of Which It is Seized
From December 1971, when the dispute over the islands was first raised before
the un Security Council by the governments of Iraq, Algeria, the Libyan Arab
Republic and People’s Democratic Republic of Yemen, until 1996, the matter
remained listed as an agenda item of the Security Council. Beginning in 1996,
and as a result of a un procedure for the periodic removal of matters from the
list of matters of which the Security Council is seized, the uae has requested
on a yearly basis that the dispute over the three islands remain as an agenda
178 See, e.g., General Assembly, 50th Session, 19th plenary meeting, October 4, 1995, un Doc.
A/50/PV. 19, 21; General Assembly, 60th Session, 13th plenary meeting, September 19, 2005,
un Doc. A/60/PV.13, 24; General Assembly, 69th Session, 15th plenary meeting, Septem-
ber 27, 2014, un Doc. A/69/PV.15, 45. The Council of the League of Arab States, the Gulf
Cooperation Council and the eu/gcc Summit also repeatedly expressed the support for
the resolution of the dispute by peaceful means, including the submission of the dispute
to the International Court of Justice.
608 chapter 9
item of the Security Council.179 In these requests, the uae has typically reit-
erated its position on the dispute over the islands and asked that the matter
remain on the agenda of the Security Council “until such time as the Islamic
Republic of Iran terminates its illegal occupation of the [islands] and the Unit-
ed Arab Emirates regains de facto control of the three islands”, adding reasons
such as the following:
(a) The continued illegal occupation by the Islamic Republic of Iran of the
Lesser Tunb and the Greater Tunb is in violation of the Charter of the
United Nations and the principles of international law.
(b) The Islamic Republic of Iran has not ceased to violate the memorandum
of understanding of November 1971 through the measures it has taken
and is continuing to take on Abu Musa with a view to imposing its control
over the island and forcibly annexing it to Iranian sovereignty.
(c) My Government fears that the Islamic Republic of Iran would exploit
the deletion of the item in question from the list of matters of which
the Council is seized in order to perpetuate its occupation of the three
islands and would use it as a pretext to evade the application of the prin-
ciple of the inadmissibility of the acquisition of territory by force.180
Although, as explained below,181 it would appear that notwithstanding these

yearly requests the Security Council is no longer formally seized of the dispute,
179 As an example, the request made in 1999 by the uae states that: “On instructions from
my Government, and in view of the continuing illegal Iranian occupation of the Greater
Tunb, the Lesser Tunb and Abu Musa, three islands belonging to the United Arab Emir-
ates, and of the ongoing attempts by the Government of the Islamic Republic of Iran
forcibly to impose on the islands a fait accompli by implementing numerous unlawful
and illegal measures with a view to annexing them and bringing them under Iranian
sovereignty by coercive means, I hereby inform you that my Government requests the
Security Council to retain the list of matters of which it is seized the item entitled ‘Letter
dated 3 December 1971 from the Permanent Representatives of Algeria, Iraq, the Libyan
Arab Republic and the People’s Democratic Republic of Yemen to the United Nations ad-
dressed to the President of the Security Council (S/10409)’, which relates to the question
of the Iranian occupation of the islands belonging to the United Arab Emirates, until such
time as the Islamic Republic of Iran ends its illegal occupation, and sovereignty over and
de facto control of these islands is restored to the United Arab Emirates.” Letter dated
December 21,1999, un Doc. S/1999/1273.
180 Letter from the uae to the un Secretary General, dated August 26, 1996, un Doc. S/
1996/693.
the content and transmission of the yearly letters would appear to constitute
effective protests. Notwithstanding, and as pointed out elsewhere in this work,
the position stated by the uae in these letters sometimes differs, occasionally
denouncing the “occupation” of all three islands by Iran, and at other times
differentiating between the Tunbs and Abu Musa. For instance, in its request
of 2006, the letter confined its characterization of the dispute as one over the
“occupation by the Islamic Republic of Iran of three islands belonging to the
United Arab Emirates, namely the Greater Tunb, the Lesser Tunb and Abu
Musa”,182 while its request of 1996, though using similar language, added further
detail which called the occupation of the Tunbs a violation of the un Charter
and international law (“[t]he continued illegal occupation by the Islamic Re-
public of Iran of the Lesser Tunb and the Greater Tunb is in violation of the
Charter of the United Nations and the principles of international law”) while
declaring that the conduct of Iran over Abu Musa constituted a violation of
the terms of the mou (“[t]he Islamic Republic of Iran has not ceased to violate
the memorandum of understanding of November 1971 through the measures
it has taken and is continuing to take on Abu Musa with a view to imposing
its control over the island and forcibly annexing it to Iranian sovereignty”).183
Statements by the uae before the un General Assembly

Every year since 1993 until the present (with the apparent exception of 1994),
the uae has made a formal statement of protest over the occupation of the
three islands before the un General Assembly. The content of these statements
occasionally varies, but invariably has re-asserted uae sovereignty over the
three islands and typically condemned “Iran’s military occupation of the three
islands” and its “unlawful measures and practices” on the islands since their
occupation in 1971 “with the aim of entrenching its occupation”, and declared
the uae ready to “settle the dispute by peaceful means”, whether “bilateral
negotiations” or “recourse to the International Court of Justice”.184 Although
the wording used in these protests over the 45 years since the dispute first arose
has varied, the nature of the protests has remained consistent, as excerpts
from various years demonstrates. For instance, the statement read before the
182 Letter from the uae to the un Secretary General, dated February 10, 2006, un Doc.
S/2006/112.
183 Letter from the uae to the un Secretary General, dated August 26, 1996, un Doc.
S/1996/693.
184 Statements of the uae before the 48th and 50th un General Assembly. General Assembly,
48th Session, 15th Plenary Meeting, October 4, 1993, un Doc. A/48/PV.15; General Assem-
bly, 50th Session, 19th Plenary Meeting, October 4, 1995, un Doc. A/50/PV. 19, 21.
610 chapter 9
General Assembly in 1993 noted that the three islands “belong” to the uae,
and that it “rejects Iran’s military occupation of the three islands, that it has
done so since 1971”, that the uae “consider[s] the Iranian presence on the three
islands merely as a military, unlawful occupation that contravenes the Charter
of the United Nations, the rules of international law and the norms of good
neighbourliness”, and that it has “already declared this position in the General
Assembly, in the Security Council and in other United Nations bodies as well as
in other regional organs.”185 In line with these pronouncements, the statement
of the uae before the General Assembly in 1996 included the following:
Twenty-five years have passed since the occupation by the Islamic Repub-
lic of Iran of our three islands, Greater Tunb, Lesser Tunb and Abu Musa.
These are Arab islands, both in their history and in their origin…. Since
the beginning of the conflict, the United Arab Emirates has called on the
Iranian Government to end its occupation of the islands and to enter into
bilateral negotiations or seek the arbitration of the International Court of
Justice. …Despite our declared peaceful intentions, the mediation efforts
of some friendly countries and the good offices of the Secretary-General,
the Iranian Government rejected our peaceful endeavours. It has estab-
lished and equipped facilities on the three islands whose features are
not exclusively civilian. It has built an electrical power plant on Greater
Tunb; and an airport, a refrigeration plant and a fish-processing plant on
Abu Musa. Moreover, Iranian nationals, mostly from the military, have
been settled on the islands. We view this as a clear act of provocation
aimed at changing the demographic character of the islands and impos-
ing a new fait accompli. …This violates not only our country’s national
sovereignty, but also international law and all the international princi-
ples, norms and practices governing relations among States … We there-
fore call on the Government of Iran to dismantle all the illegitimately
established civilian and military facilities on our three islands. We also
call upon Iran to respond to the peace initiatives we have advanced and …
to enter into unconditional bilateral negotiations conducive to a peaceful
settlement of the dispute; or to refer the case to the International Court
of Justice.186
185 Statement from the uae before the un General Assembly, General Assembly, 48th Ses-
sion, 15th Plenary Meeting, October 4, 1993, un Doc. A/48/PV.15.
186 Statement from the uae before the un General Assembly, General Assembly, 51st Session,
17th Plenary Meeting, October 1, 1996, un Doc. A/51/PV.17.
The statement read before the un General Assembly the next year contained
the following language:
The continued occupation since 1971 by the Islamic Republic of Iran of

three islands belonging to the United Arab Emirates – Greater Tunb,
Lesser Tunb and Abu Musa – is a major issue to which we and the other
States of the region attach great importance. That occupation consti-
tutes a source of constant tension, concern and instability in the re-
gion, particularly as the Iranian Government persists in changing the
historic, legal and demographic character of the islands by constructing
military and civilian installations and building bases on them. Examples
of such measures are the construction of a branch of Bayan An-Nour Uni-
versity and two airports on the occupied islands of Abu Musa and Great-
er Tunb. Iran has also resorted to repeated military exercises conducted
in the territorial waters of the United Arab Emirates, including those
off the three islands, thus continuing to consolidate its occupation of the
islands, persisting in its provocative policy and imposing a fait accom-
pli by force…. The United Arab Emirates expresses grave concern about
all such illegal actions and practices, which not only constitute a flagrant
violation of its territorial integrity and an infringement of its nation-
al rights, but are also contradictory to the peaceful inclinations of the
States of the region and the world at large. We therefore renew our
call to the Islamic Government of Iran to fulfil its legal and political
obligations and undo all its unilateral actions in the three Emirates
islands.187
The statement read before the un General Assembly in 2005 noted the
following:
[T]he United Arab Emirates calls upon the Islamic Republic of Iran to
respond to its peaceful initiatives aimed at resolving the issue of Iran’s
occupation of the three islands of the United Arab Emirates – Greater
Tunb, Lesser Tunb and Abu Musa – through bilateral negotiations or by
referral to the International Court of Justice. In that context, we reaffirm
that all actions taken by Iran since its illegal occupation of the three is-
lands in 1971 are null and void, because they contradict the United Nations
187 Statement of the uae Representative before the un General Assembly, General Assembly,
52nd Session, 11th Plenary Meeting, September 25, 1997, un Doc. A/52/PV.11.
612 chapter 9
Charter, international law, the principles of good neighbourliness and the

peaceful coexistence of nations and confidence-building measures.188
The statement read before the un General Assembly in 2009 remarked as

follows:
The United Arab Emirates renews in this forum its disappointment at

the continued occupation by the Islamic Republic of Iran of the three
United Arab Emirates islands: Greater Tunb, Lesser Tunb and Abu Musa
since 1971. The United Arab Emirates demands the return of those is-
lands under conditions of full sovereignty, including their regional wa-
ters, airspace, continental shelf and their exclusive economic zone as
integral parts of the national sovereignty of the United Arab Emirates.
The United Arab Emirates also affirms that all military and administra-
tive measures taken by the Iranian Government on those islands are null
and void and have no legal effect, regardless of how long the occupation
might last [and] we call upon the international community to urge Iran
to respond to the peaceful and sincere initiatives of the United Arab
Emirates [which] . . call for a just settlement of that issue…. This could
be done either through direct and serious negotiations between the two
countries or by referring the issue to the International Court of Justice, in
accordance with the United Nations Charter and the provisions of inter-
national law.189
An interesting feature of these yearly statements before the General Assem-

bly is that they do not typically distinguish the legal circumstances pertain-
ing to the Tunbs from those pertaining to Abu Musa (where the arrival of
Iranian forces occurred following the signing of an agreement in the form
of the mou) or, with one apparent exception – that of 1993 – mention the
mou or address the issue of the validity (or invalidity) of the mou specifically.
Rather, these statements typically characterize the presence of Iran on all of
the islands as an illegal military occupation in violation of the un Charter, the
rules of international law and the sovereign rights of the uae.190 One of the
188 Statement of the uae Representative before the un General Assembly, General Assembly,
60th Session, 13th Plenary Meeting, September 19, 2005, un Doc. A/60/PV.13.
189 Statement of hh Sheikh Abdullah Bin Zayed Al Nahyan before the un General Assem-
bly, General Assembly, 64th Session, 10th Plenary Meeting, September 26, 2009, un Doc.
A/64/PV.10.
190 The statement read before the General Assembly in October 1993 noted that “[o]ver the
past two years, [Iran] has escalated the conflict by resorting to a number of unlawful
latest statements made by the uae before the General Assembly prior to pub-
lication of this work followed this theme, noting that:
The crisis in our region should not distract us from our core national
cause, which is United Arab Emirates sovereignty over its three islands
of Greater Tunb, Lesser Tunb and Abu Musa, which are being occupied
by Iran against the provisions of international law and the Charter of
the United Nations. My country has called on our neighbour Iran time
and time again to return those occupied islands to their rightful owner,
the United Arab Emirates, either voluntarily through peaceful means
or through international justice and arbitration, in order to maintain
friendly, neighbourly relations in the [Arabian] Gulf. We will never give
up our sovereign right over those islands, and our approach is based on
the principles of international law.191
Protests against Specific Acts Taken by Iran

There are records dating from 1992 of repeated protests issued by the uae, or-
dinarily but not always in the form of notes verbale, with the government of
Iran, which are also lodged with the un, protesting a number of specific acts of
presumed sovereignty taken from time to time by Iran on or in relation to one
or other of the islands.
With respect to the Tunbs, these written statements have protested
various acts taken by the government of Iran, including the construction of
an airport,192 the building of an electricity station,193 the construction of a
measures and practices including the use of military force, against the nationals of the
United Arab Emirates on the island of Abu Musa, in violation of the Memorandum of
Understanding of 1971.” General Assembly, 48th Session, 15th Plenary Meeting, October 4,
1993, un Doc. A/48/PV.15, 38.
191 Statement of hh Sheikh Abdullah Bin Zayed Al Nahyan before the un General Assembly,
General Assembly, 71st Session, 21st Plenary Meeting, September 24, 2016, un Doc. A/71/
PV.21. In 2017, the UAE statement at the General Assembly contained similar terms. See
Statement of HH Sheikh Abdullah Bin Zayed Al Nahyan before the UN General Assembly,
General Assembly, 72nd Session, 18th Plenary Meeting, September 22, 2017, UN Doc. A/72/
PV. 18, 17.
192 Note verbale dated 4 May 1997 from the Ministry of Foreign Affairs of the United Arab
Emirates to the Embassy of the Islamic Republic of Iran at Abu Dhabi, un Doc. S/1997/383,
Annex ii.
193 Note verbale dated 22 April 1996 from the Ministry of Foreign Affairs of the United Arab
Emirates addressed to the Ministry of Foreign Affairs of the Islamic Republic of Iran, un
Doc. S/1997/8, 4.
614 chapter 9
dock,194 the naming of Iranian military vessels after the Tunb islands,195 the
conducting of military manoeuvres around the islands196 and the construc-
tion of facilities for the settlement of civilian personnel.197 Typically, these
protests have condemned the acts in question, described them as a violation
of the uae’s sovereignty and international law, and exhorted Iran to refrain
from taking steps to impose “a new fait accompli” by the use of force on the
islands and to “change their demographic character” since to do so constitutes
a clear infringement on the rights of the uae to exercise sovereignty over those
islands.198
With respect to Abu Musa, protests against various acts taken by Iran (listed
below) have also “reaffirmed [uae] sovereignty over Abu Musa”, characterized
the acts taken by Iran as a “flagrant violation” of the terms of the “Memoran-
dum of Understanding of 1971” and declared that they constituted “unlawful
measures and practices” whose aim is to “perpetuate the forcible occupation
of the island” and “bring it under Iranian sovereignty by the use of force” and
which do “not confer any legal rights in the island on the Islamic Republic of
Iran”.199 Over the past more than forty years, the measures taken by Iran on
Abu Musa that the uae has lodged such protests against include:
• Expulsion from Abu Musa of employees of the uae and refusal to allow
teachers to return to the island (1992);200
194 Note verbale dated 20 May 1997 from the Ministry of Foreign Affairs of the United Arab
Emirates addressed to the Embassy of the Islamic Republic of Iran in Abu Dhabi, un Doc.
S/1997/477.
195 Letter dated 1 December 1997 from the Permanent Representative of the United Arab
Emirates to the United Nations addressed to the Secretary-General, un Doc. S/1997/941.
196 Statement of the uae to the General Assembly, General Assembly, 54th Session, 7th Ple-
nary Meeting, September 21, 1999, un Doc. A/54/PV.7.
197 See, e.g., Note verbale dated May 4, 1997 from the Ministry of Foreign Affairs of the United
Arab Emirates to the Embassy of the Islamic Republic of Iran at Abu Dhabi, un Doc.
S/1997/383, Annex ii; Note verbale dated April 22, 1996 from the Ministry of Foreign Affairs
of the United Arab Emirates addressed to the Ministry of Foreign Affairs of the Islamic
Republic of Iran, un Doc. S/1997/8, 4.
198 See, e.g., Note verbale dated April 22, 1996 from the Ministry of Foreign Affairs of the Unit-
ed Arab Emirates addressed to the Ministry of Foreign Affairs of the Islamic Republic of
Iran, un Doc. s/1997/8, 4; General Assembly, 51st Session, 17th plenary meeting, October 1,
1996, un Doc. A/51/PV.17, 2.
199 See, e.g., notes verbale issued by the uae dated 16 December 1996, 12 March 1996 and 22
September 1996, S/1997/8. See also, un Doc. A/48/PV.15, 38.
200 Note verbale dated August 29, 1992 from the Ministry of Foreign Affairs of the United Arab
S/1997/8.
• Use of military force against nationals of the uae (1993);201

• Holding of a football tournament on Abu Musa (1996);202
• Construction of an airfield on Abu Musa (1996);203
• Opening of a cold-storage plant and fish-processing factory on Abu Musa
(1996);204
• Assertion by Iran that the airspace of Abu Musa belongs to the Islamic
Republic of Iran (1996);205
• Construction of an airport on Abu Musa (1997);206
• Conduct of naval exercises by Iran on and around Abu Musa (1997);207
• Opening by Iran of a municipal office and an educational institution on
Abu Musa (1999);208
• Establishment by Iran of a maritime rescue office and an office for the regis-
tration of ships and sailors on Abu Musa (2008);209
• Construction of housing facilities to settle Iranian citizens (2009);210
201 un Doc. A/48/PV.15, 38.

202 Note verbale dated December 16, 1996 from the Ministry of Foreign Affairs of the United
Arab Emirates addressed to the Embassy of the Islamic Republic of Iran in Abu Dhabi, un
Doc. S/1997/8.
203 Note verbale dated March 12, 1996 from the Ministry of Foreign Affairs of the United Arab
Emirates addressed to the Embassy of the Islamic Republic of Iran in Abu Dhabi, un
Doc. S/1997/8.
204 Note verbale dated September 22, 1996 from the Ministry of Foreign Affairs of the United
Doc. S/1997/8.
205 Letter dated August 26, 1996 from the Permanent Representative of the United Arab Emir-
ates to the United Nations addressed to the Secretary General, un Doc. A/1996/692.
206 Letter to United Nations from uae Chargé d’Affaires transmitting copies of two notes ver-
bales sent to the Government of Iran to protest the construction of airports on Abu Musa
and Greater Tunb, May 20, 1997, un Doc. S/1997/383.
207 Letter dated September 16, 1997 from the Permanent Representative of the United Arab
Emirates to the United Nations addressed to the Secretary General, un Doc. A/52/361.
208 Letter dated February 24, 1999 from the Permanent Representative of the United Arab
Emirates to the United Nations Addressed to the Secretary-General, transmitting a copy
of the Note verbale No. 034/04/80-192 dated February 7, 1999 from the Ministry of Foreign
Affairs of the United Arab Emirates addressed to the Embassy of the Islamic Republic of
Iran in Abu Dhabi, un Doc. S/1999/191.
209 Annex to the letter dated August 21, 2008 from the Chargé d’Affaires a.i. of the Permanent
Mission of the United Arab Emirates to the United Nations addressed to the Secretary-
General, un Doc. S/2008/577.
210 See, e.g., Resolution 7016 adopted by the Council of the League of Arab States on 3
March 2009, transmitted to the un Secretary General by letter dated 11 March 2009, un
Doc. S/2009/145.
616 chapter 9
• Raising of the Iranian flag over part of the island of Abu Musa that is allo-
cated to the uae under the mou (2014).211
As noted, virtually all these measures have been referred to by the uae as viola-
tions of the mou and, in various formal protests, have been:
• “[R]egarded as the imposition of an unlawful state of affairs and an attempt

to perpetuate the occupation of the island and to bring it under Iranian sov-
ereignty by use of force” and “regarded as unwarranted acts of provocation
that do not confer any legal rights on the Islamic Republic of Iran with re-
spect to the island”.212
• Carried out “with a view to imposing its control over the island and forcibly
annexing it to Iranian sovereignty”213 or “with a view to bringing the island
under Iranian sovereignty”.214
• “[R]egarded as imposing an unlawful state of affairs and as constituting an
attempt to perpetuate the occupation of the island, alter its demographic
composition and bring it under Iranian sovereignty by force”.215
On two occasions, in August 2008 and July 2014, in response, respectively, to

the establishment of maritime installations on the island of Abu Musa and the
raising of the Iranian flag on the part of the island subject to uae “jurisdiction”
under the mou, the uae went beyond repeating these similarly worded pro-
tests. In its 2008 note verbale it stated:
The Government of the United Arab Emirates strongly protests this il-
legal action and considers it a blatant violation of the Memorandum
211 Letter dated July 14, 2014 from the Permanent Representative of the United Arab Emirates
to the United Nations addressed to the Secretary-General, un Doc. S/2014/496.
212 Note verbale dated September 22, 1996 from the Ministry of Foreign Affairs of the uae ad-
dressed to the Embassy of the Islamic Republic of Iran in Abu Dhabi, un Doc. S/1997/8.
213 Letter dated August 26, 1996 from the Permanent Representative of the United Arab Emir-
ates to the United Nations addressed to the President of the Security Council, un Doc.
S/1996/693.
215 Letter dated February 23, 1999 from the Permanent Representative of the uae to the Unit-
ed Nations addressed to the Secretary-General, transmitting a letter of protest earlier sent
to Iran, un Doc. S/1999/191.
of Understanding, concluded in November 1971, on arrangements con-

cerning legal, administrative and sovereign matters connected with the
island…. In that connection, the Ministry should like to emphasize that
the Memorandum is still in force and that its provisions govern and regu-
late the presence of Iranian forces on Abu Musa. The illegal actions and
measures undertaken by Iran on the island violate the terms of the Mem-
orandum and are an attempt to change the island’s legal status. The Min-
istry should also like to state that the memorandum neither grants the
Islamic Republic of Iran sovereignty over the island, or any part thereof,
nor authorizes it to undertake any security measures on the island. None-
theless, ever since 1980, the Islamic Republic of Iran has persistently and
continuously violated the Memorandum by undertaking measures and
steps that are clearly aimed at imposing its sovereignty over the island of
Abu Musa, which is something that contradicts, in form and in substance,
the fundamental principles and the spirit of the Memorandum … [T]he
United Arab Emirates calls upon the Islamic Republic of Iran to refrain
from undertaking any action on the island that contravenes the Memo-
randum. It further calls upon Iran to rescind any measures already taken
and remove any facilities established on the island, inasmuch as such ac-
tions and facilities constitute a blatant violation of the Memorandum.216
In July 2014, the uae complained of a violation of the mou in the following
way:
The Islamic Republic of Iran has recently raised the Iranian flag over part
of the island of Abu Musa that is allocated to the United Arab Emirates
under the 1971 memorandum of understanding concerning the island.
The Government of the United Arab Emirates strongly protests against
that step, which it considers to be a flagrant violation of the memoran-
dum of understanding that does not affect the legal status of the island.
In that regard, the United Arab Emirates stresses that the 1971 memoran-
dum of understanding did not transfer sovereignty over the island of Abu
Musa or any part thereof to the Islamic Republic of Iran. Since 1980, the
latter has taken measures on Abu Musa that violate the memorandum
216 Note of protest sent from the uae Ministry of Foreign Affairs to the Ministry of Foreign
Affairs of Iran on August 21, 2008 (and conveyed to the un Secretary General on the same
date), un Doc. S/2008/577.
618 chapter 9
of understanding with a view to bringing the island under Iranian sov-

ereignty. The Government of the United Arab Emirates has continued to
protest against those measures.
The Government of the United Arab Emirates hereby calls on the
Islamic Republic of Iran to rescind those measures, immediately remove
the Iranian flag and comply scrupulously with the 1971 memorandum of
understanding.217
When the Iranian President, Mahmoud Ahmadinejad, visited Abu Musa in

April 2012, followed a few days later by an Iranian parliamentary delegation,
the uae strongly protested, stating that the Iranian actions constituted a viola-
tion of its sovereignty. In a letter circulated by the Permanent Representative of
the uae to the un (also acting in his capacity as Chairman of the Arab Group)
shortly after the visit of the Iranian President to Abu Musa, it was stated:
The Arab Group … rejects and strongly condemns the visit of the Iranian
President, considering it to be a serious escalation and provocative step.
That step is one more on a series of illegitimate measures that have been
taken in the islands by Iran with a view to forcibly cementing its occu-
pation thereof and imposing the status quo, in flagrant violation of the
principles of the Charter of the United Nations and rules of international
law.218
In April 2014, the uae issued a letter to the un Secretary General rejecting
the Iranian claim to the islands of Abu Musa and Greater and Lesser Tunb
and reaffirming its position in the sense that the issues at hand are “the ille-
gal Iranian military occupation of the islands … and the Iranian authorities’
systematic and flagrant violation of the 1971 memorandum of understanding
regarding the island of Abu Musa with a view to its forcible annexation under
Iranian sovereignty.”219 Thus, once again, the uae framed its protests over Abu
Musa around asserted violations of the mou by Iran. The uae requested the
Islamic Republic of Iran to resume negotiations between the two countries on
the sovereignty of the three islands “on the basis of the elements proposed by
the United Arab Emirates at the Abu Dhabi meeting of 27 and 28 September
1992 and the Doha meeting of 18 to 21 November 1995”, which, in relation to the
mou, included:
2. There should be no interference in the exercise by the United Arab

Emirates of its jurisdiction over the part of the island of Abu Musa allo-
cated to it under the 1971 memorandum of understanding.
3. All of the measures imposed by the Iranian authorities on the
authorities of the United Arab Emirates and its citizens on Abu Musa
in contravention of the 1971 memorandum of understanding should be
rescinded.220
In reply to Iranian assertions of ownership over all three of the islands

(“…the Islamic Republic of Iran reiterates its consistent and principled po-
sition that it does not recognize the existence of any such dispute between
Iran and the United Arab Emirates; the three islands have been and continue
to be an inseparable part of Iranian territory and, therefore, any claim to the
contrary is categorically rejected”221), themselves responses to prior claims
of ownership by the uae, the representative of the uae before the un issued
similarly-worded protest letters in October 2014222 and March 2016223 which,
among other matters, stated that:
(a) The uae “categorically rejects the completely baseless allegations that
the Islamic Republic of Iran has full sovereignty” over the three islands;
(b) The three islands “are an integral part of the territory of the United Arab
Emirates”;
(c) The presence of Iranian troops on Abu Musa since 30 November 1971
“was sanctioned by the Memorandum of Understanding”, which “is still
in force and binding”, and delineates “the area of Abu Musa that is to be
occupied by those forces”;
(d) The occupation of the Greater Tunb and Lesser Tunb by Iran since 30 No-
vember 1971 is illegal and in “contravention of the Charter of the United
Nations, Article 2, paragraph 4” and “should be brought to an end”; and
220 Ibid.
221 Letter dated 9 February 2016 from the Permanent Representative of the Islamic Republic
of Iran to the United Nations addressed to the Secretary-General, un Doc. S/2016/131.
222 Letter dated 24 October 2014 from the Permanent Representative of the United Arab
223 Letter dated 16 March 2016 from the Permanent Representative of the United Arab Emir-
620 chapter 9
(e) The uae calls for the “dispute regarding the three islands [to be] referred
to the International Court of Justice if the two countries fail to reach a
negotiated solution within an agreed time frame.”
Statements on Behalf of the uae by the Gulf Cooperation Council

On an almost uninterrupted basis beginning in 1992, multiple yearly state-
ments have been issued by the Supreme and Ministerial Councils of the Gulf
Cooperation Council (gcc) on behalf of the uae declaring and “affirming” the
uae’s sovereignty over the Tunbs and Abu Musa (which in statements begin-
ning in or around 2001 was described as including the “territorial waters, air-
space, continental shelf and exclusive economic zone” of each of the islands).
These statements also: condemn Iran’s occupation by force of all three islands
and its taking of continuous actions (including the construction of “instal-
lations” and housing, and the settlement of people) “designed to perpetuate
its occupation” and change the “demographic composition” of the islands in
contravention of the provisions of the Geneva Conventions of 1949; describe
the seizure and occupation of the islands as “incompatible with the principles
and norms of international law, the Charter of the United Nations, the Charter
of the Organization of the Islamic Conference, the principles of good neigh-
bourliness and respect for the sovereignty of the States of the region”; and call
on Iran to “end its occupation” and to “agree to the referral of the issue to the
International Court of Justice”.224 These multiple statements do not typically
make reference to the mou, nor specifically address the validity (or invalidity)
of that document, and in that respect they treat the legal circumstances of Abu
Musa as identical to those of the Tunbs.
Statements on Behalf of the uae by the League of Arab States and

Other Arab Fora
On an almost uninterrupted yearly basis beginning in or prior to 1992,225
strongly worded statements in support of the claim of the uae over the three
islands have been issued by various Arab states’ organizations, most important-
ly the League of Arab States and the Arab Summit Conference. The statements
issued by the Council of the League of Arab States has followed a relatively
224 See, e.g., Excerpt from the final communiqué adopted by the Supreme Council of the Gulf
Cooperation Council at its seventeenth session, held in Doha, 0atar, from 7 to 9 December
1996, Annex to un Doc. S/1996/1057.
225 Statements issued by these organizations in support of the uae began to be lodged and
recorded at the un in 1992.
consistent pattern throughout the years, “reaffirm[ing] without qualification

the absolute sovereignty of the United Arab Emirates over its three islands”;
“denounce[ing] the continued consolidation by the Iranian Government of
its occupation of the three islands and its violation of the sovereignty of the
United Arab Emirates”; “condemn[ing] the building by the Islamic Republic of
Iran of housing facilities to settle Iranians on the three occupied Arab islands”;
“condemn[ing] the Iranian military manoeuvres being conducted also on the
three occupied islands … and in those islands’ territorial waters, airspace, con-
tinental shelf and exclusive economic zone, which constitute an inseparable
part of the United Arab Emirates”; and “appeal[ing] once again to the Iranian
Government to end its occupation of the three islands…, refrain from trying
to impose a fait accompli by force, desist from establishing any installations
there for the purpose of modifying the islands’ demographic structure, revoke
all measures and remove all installations unilaterally executed by the Islamic
Republic of Iran on the three Arab islands, inasmuch as such measures and
claims are null and void, lack any legal effect, do not detract from the estab-
lished right of the United Arab Emirates over its three islands and are acts that
run counter to the provisions of international law and the Geneva Conventions
of 1949; and to call upon the Iranian Government to adopt peaceful means
for resolving the existing dispute over them in accordance with the principles
and norms of international law, including agreement to refer the matter to the
International Court of Justice.”226
General Responses of the Islamic Republic of Iran

Iran has consistently denied that its occupation of the Tunbs constituted a
military occupation, indicating that it was a reassertion of its historical sov-
ereignty over the islands after an interruption as a result of “colonial ploys”
which began in 1904.227 As noted in the previous chapter, despite such general
but unspecified statements, there is no probative evidence of Iran’s historical
attachment to or control over the Tunbs (or Abu Musa) which has come to
light, nor any assertion of claim by Iran to any of the islands prior to the end of
the nineteenth or beginning of the twentieth century. Indeed, its most specific
defense of its occupation of the Tunbs islands was given during the Decem-
ber 1971 Security Council debate in which it asserted no more than that Iran’s
title to the two islands was established through (i) British maps which “marked
the Tunb islands as being Persian”, (ii) a “highly authoritative encyclopedia
226 See, e.g., Resolution 7016 adopted by the Council of the League of Arab States on 3 March
2009, transmitted to the un Secretary General by letter dated 11 March 2009, un Doc.
S/2009/145.
227 See, e.g., un Doc. A/48/PV. 15.
622 chapter 9
published as recently as 1967” which “identified [the Tunbs] as Iranian terri-

tory”, and (iii) the closer geographical proximity of the Tunbs to Iran than to
the uae. Iran also noted during the debate that it “has never ceased to protest”
during the period in which it had “been deprived of the exercise of its sover-
eign rights over those islands”.228 It is demonstrated elsewhere in this work
that none of these arguments have, against the available historical evidence,
any significant evidentiary or legal merit. The unreliability as positive evidence
of the specific map evidence referred to has been addressed in chapter 7, while
the considerations related to evaluating map evidence in territorial disputes
is addressed in more depth in chapter 10. The conclusions reached in those
chapters have been guided by the views of numerous jurists and international
decisions, including the observation of Huber in the Island of Palmas case that
“only with the greatest caution can account be taken of maps in deciding a
question of sovereignty”.229 The “highly authoritative encyclopedia” referred
to by the Iranian representative during the 1971 Security Council debate was
not actually identified and therefore little can be said about it, other than
that it obviously cannot stand as evidence of Iranian title and, in any case, if
it exists presumably amounts to map evidence which would be subject to the
same evidentiary scrutiny and doubts as are maps in general. As for the closer
geographical proximity of the Tunbs to Iran than to the uae, as discussed in
chapter 3, this again has been shown not to constitute a valid independent
basis on which to determine conclusions about sovereign title. This was stated
most succinctly by Huber, who observed that: “[I]t is impossible to show the
existence of a rule of positive international law to the effect that islands situ-
ated outside territorial waters should belong to a State from the mere fact that
its territory forms the terra firma (nearest continent or island of considerable
size).”230
Similarly, Iran has consistently denied that its actions in relation to Abu
Musa were unlawful or not in accordance with the mou. Thus, for example,
the representative of Iran at the Security Council debate of 9 December 1971
stated that “the arrangements made concerning Abu Musa have already met
with the approval and satisfaction of Sharjah”231 (an obvious reference to the
228 un Doc. S/PV. 1610, para. 213.

229 Island of Palmas case (Netherlands/United States of America), Award of April 4, 1928 riaa
2 (1928), 842, 852.
230 Ibid., 854. See chapter 10, text accompanying notes 247–250 and Figure 10.40 for an analy-
sis of the 1967 map referred to by Iran at the 1971 Security Council debate.
231 un Doc. S/PV. 1610, para. 208.
fact that the Ruler of Sharjah signed the mou) and, in relation to the mou, Iran
has consistently asserted that its conduct on Abu Musa has been in accordance
with its terms and that it remained “fully committed to its international obli-
gations, especially those arising from the Agreement of 1971”,232 that the mea-
sures taken on the island of Abu Musa “[did] not contradict the provisions of
the 1971 Memorandum of Understanding” and that it is prepared to discuss any
“misunderstandings” between the two parties “with regard to the implementa-
tion of the 1971 [mou].”233 An example of the language Iran has typically used
to reply to the uae’s protests concerning Abu Musa can be found in a letter
from Iran’s Chargé d’Affaires at its un Mission regarding the protest lodged by
the uae over the visit of the Iranian President to Abu Musa in April 2012:
[T]he recent visit by the President of the Islamic Republic of Iran to Abu
Musa Island and all other measures taken by the Iranian authorities in
those Iranian islands are fully based on the sovereign rights of Iran and
the principle of its territorial integrity.
[T]he Islamic Republic of Iran continues to believe that constructive

negotiations [with] the relevant officials of the United Arab Emirates …
will help to remove any misunderstanding that may arise with regard to
the implementation of the arrangements emanating from the documents
exchanged in 1971 on this issue.234
It should be noted, however, that in recent years, and in particular since

September 2012, Iran has stopped making any mention of the mou and has
developed a new formulation of language which it uses in letters that it issues
in reply to uae protests concerning Abu Musa, Greater and Lesser Tunbs. Thus,
in these replies Iran states in more or less the same words:
232 See, e.g., un Doc. A/50/PV. 19; un Doc. A/48/PV. 15.

un Doc. S/2005/189; Letter dated April 19, 2012 from the Chargé d’affaires a.i. of the
Permanent Mission of the Islamic Republic of Iran to the United Nations addressed to the
234 Letter dated April 19, 2012 from the Chargé d’Affaires a.i. of the Permanent Mission of the
Islamic Republic of Iran to the United Nations addressed to the President of the Security
Council, un Doc. S/2012/241.
624 chapter 9
The Islamic Republic of Iran … reiterates its consistent and principled

position that it does not recognize the existence of any dispute be-
tween the Islamic Republic of Iran and the United Arab Emirates, the
three islands having been an inseparable part of Iranian territory. Thus,
as has been regularly reiterated, the territorial integrity and sovereignty
of the Islamic Republic of Iran over the said islands are not negotiable.
Nonetheless, and to show its utmost respect for the principle of good-
neighbourliness, the Islamic Republic of Iran has always expressed its
readiness to talk with the United Arab Emirates bilaterally with a view to
continuing to strengthen bilateral relations and removing any misunder-
standing that may exist between the two countries.235
These arguments and positions are the subject of the detailed discussion on
the status and validity of the mou set out below in this chapter.
Attempts at Bilateral Negotiations

After the Iranian Revolution in 1979, there was some optimism within the
government of the uae that the new Iranian government would be more flex-
ible on the issue of the islands and that Iran might be ready to review their
status.236 However, the new Iranian government made it clear in diplomatic
correspondence that was circulated through the un that it had no intention
of abandoning its position vis-à-vis the islands, asserting that the islands “have
always been an integral part of Iran”.237
After the dispute over the claimed expulsion from Abu Musa of uae employees
by Iran and the refusal to allow teachers to return to the island in 1992,238 Iran
and the uae engaged in diplomatic negotiations on 27–28 S eptember 1992
235 Letter dated February 28, 2014 from the Permanent Representative of the Islamic Repub-
lic of Iran to the United Nations addressed to the Secretary-General, un Doc. S/2014/143.
See also a similar text in: Letter dated December 11, 2013 from the Permanent Represen-
tative of the Islamic Republic of Iran to the United Nations addressed to the Secretary-
General, un Doc. A/68/57. The last sentence of this letter refers to Iran’s offer to engage in
bilateral negotiations with the uae on any “misunderstandings” but in so doing it states
its readiness to discuss and remove “misunderstandings that may exist on the part of the
uae over Abu Musa island”, without specifically mentioning the mou.
236 Mattair, Three Occupied uae Islands, 132–133.
237 Letter dated November 12, 1980 from the Acting Minister for Foreign Affairs of Iran ad-
dressed to the Secretary-General, un Doc. S/14274.
238 Note verbale dated August 29, 1992 from the Ministry of Foreign Affairs of the United Arab
S/1997/8, Annex, 2.
in Abu Dhabi.239 The uae called for the termination of the Iranian occupation of
the Tunbs, non intervention by Iran in the uae’s exercise of its jurisdiction over
its geographical zone in Abu Musa and the finding of a decisive solution to the
question of sovereignty over Abu Musa.240 However, Iran reportedly refused to
discuss the status of the Tunbs and this led to the collapse of the negotiations.241
Neither would Iran agree to submit the case to the International Court of Justice
for resolution.
Another round of negotiations took place in November 1995 following me-
diation by Qatar, but these negotiations also reportedly failed for similar rea-
sons as the previous ones.242 Other attempts at settlement have also failed.243
Legal Analysis – The Seizure of the Tunbs by Iran
As discussed in chapter 3, conquest is no longer a valid method of acquisition of

territory under international law. As a consequence, mere possession by force
does not found title and a disputed territorial claim cannot be validated by force-
ful possession.244 The illegality of the acquisition of territory by threat or use of
force and the obligation of non-recognition of those acquisitions by un Member
States is reflected in article 2.4 of the un Charter, as well as various Declarations
adopted by the un General Assembly and other un instruments. In this sense,
Article 11 of the 1949 Draft Declaration of Rights and Duties of States provides:
Every State has the duty to refrain from recognizing any territorial
acquisition by another State acting in violation of article 9 [obligation to
refrain from resorting to war as an instrument of national policy or from
the threat or use of force].245
239 Mohamed Abdullah Al Roken, “Dimensions of the uae–Iran Dispute over Three Islands”,
in United Arab Emirates. A New Perspective, ed. Ibrahim Al Abed and Peter Hellyer (Lon-
don: Trident Press, 2001), 196.
240 Ibid.
241 Ibid.
242 Ibid.
243 E.g. in 1999 the Gulf Cooperation Council (gcc) set up a tripartite committee made up of
the foreign ministers of Saudi Arabia, Oman, Qatar and the Secretary General of the gcc
that would encourage direct negotiations between the uae and Iran. However, no results
were achieved with this committee. Al Roken, “Dimensions of the uae–Iran Dispute”, 196.
244 Malcolm Shaw, “Territory in International Law”, Netherlands Yearbook of International
Law 13 (1982): 61–91, 85.
245 General Assembly, Resolution 375 (iv), Draft Declaration on Rights and Duties of States,
u.n. Doc A/RES/375, Article 11.
626 chapter 9
The 1970 Declaration on Principles of International Law concerning Friendly

Relations and Co-operation among States in accordance with the Charter of
the United Nations provides in this respect:
The territory of a State shall not be the object of military occupation

resulting from the use of force in contravention of the provisions of the
Charter. The territory of a State shall not be the object of acquisition
by another State resulting from the threat or use of force. No territorial
acquisition resulting from the threat or use of force shall be recognized
as legal.246
General Assembly Resolution No. 3314 (1974) includes in its definition of ag-
gression “any annexation by the use of force of the territory of another state
or part thereof” and stipulates that “No territorial acquisition or special advan-
tage resulting from aggression are or shall be recognized as lawful.”247 Many
other General Assembly and Security Council resolutions have condemned
the use or threat of force and have affirmed the non-recognition of the acqui-
sition of territory or territorial changes resulting from such threat or use of
force.248 This has also been endorsed as customary international law by the
International Court of Justice.249
246 General Assembly, Resolution 2625 (xxv), Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance with the Char-
ter of the United Nations, un Doc. A/RES/25/2625.
247 General Assembly, Resolution 3314 (xxix), Definition of Aggression, un Doc./A/
RES/29/3314, Articles 3(a) and 5(3).
248 See, e.g., General Assembly, Resolution 2949 (xxvii), un Doc. A/RES/27/2949, December
8, 1972, Preamble and para. 4 (“reaffirming that the territory of a State shall not be the
object of occupation or acquisition by another State resulting from the threat or use of
force” and “declares once more that the acquisition of territories by force is inadmissible
and that, consequently, territories thus occupied must be restored.”); General Assembly,
Resolution 22 (xlii), Declaration on the Enhancement of the Effectiveness of the Principle of
Refraining from the Threat or Use of Force in International Relations, un Doc. A/RES/42/22,
November 18, 1987, para. 10 (“Neither acquisition of territory resulting from the threat
or use of force nor any occupation of territory resulting from the threat or use of force
in contravention of international law will be recognized as legal acquisition or occupa-
tion.”); Security Council Resolution 242 (1967) (“emphasizing the inadmissibility of the
acquisition of territory by war” and requiring the “withdrawal of the Israel armed forces
from the territories occupied in the recent conflict” in order to fulfill the principles of
the Charter); Security Council Resolution 662 (1990), paras. 1 and 2 (Iraqi annexation of
Kuwait has no legal validity and is null and void and must not be recognized).
249 See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Terri-
tory, 136, paras. 117–122 (recalling that, with regard to Palestine, both the Security Council
The justification of Iran and other States that have in the past had recourse
to force to occupy territory rests on the argument that the use of force was used
to recover that to which the State believes it has title.250 If in fact the claim to
sovereignty is justified and the aggressor does have legal title to the territory
in question, then it would not be an illegal use of force.251 However, this logic
has been condemned in previous instances where States have resorted to these
arguments, even by States that supported the sovereignty claims by the aggres-
sor State, which noted that peaceful means should have been used to resolve
the dispute.252
In the case of the Tunbs, and following the conclusions reached above that
title to the islands pertained to Ras Al Khaimah, rather than Iran, prior to the
seizure of the islands by Iran at the end of November 1971, and that the islands
(as well as the rest of the territory of Ras Al Khaimah) became sovereign ter-
ritory of the uae upon Ras Al Khaimah’s joining the Union in February 1972,
such an argument would in any case be irrelevant to the dispute and does not
therefore need to be addressed further.
Despite the universal condemnation of the acquisition of territory by
the threat or use of force, attempts at these types of acquisitions have hap-
pened in practice and the doctrine has thus analyzed whether a subsequent
and the General Assembly have referred to “the customary rule of ‘the inadmissibility of
the acquisition of territory by war’” and concluding that “the construction of the wall [by
Israel] and its associated régime create a ‘fait accompli’ on the ground that could well
become permanent, in which case, and notwithstanding the formal characterization of
the wall by Israel, it would be tantamount to de facto annexation.”).
250 Cf. Jennings, Acquisition of Territory, 66, 72.
251 Ibid.
252 Malcolm Shaw, “Territory”, 85–87. See Christine Gray, International Law and the Use of
Force, 3rd ed. (Oxford: Oxford University Press, 2008), 65 (“[T]he use of force to recover
pre-colonial title (on the basis that the colonial title is invalid and that therefore the use
of force does not violate Article 2(4) because the state using force has title to the ter-
ritory) is not generally accepted. India’s annexation of Goa is the only instance where
the un has eventually acquiesced in the ‘recovery’ of territory by force, despite its initial
condemnation by a majority of states in the Security Council – apparently on the basis
that the Indian action in fact furthered the self-determination of the inhabitants. Sub-
sequent use of this argument based on pre-colonial title has been rejected by the un.
Morocco’s claim to Western Sahara on the basis of a title preceding that of Spain, the
colonial power, and Indonesia’s claim to East Timor on the basis of pre-colonial title pre-
ceding that of Portugal were not regarded as justification for the forcible seizures of these
territories in 1976. Argentina’s use of force in 1982 to terminate the colonial occupation of
the Falklands (Malvinas) by the uk did not meet with support. Even those who backed
Argentina’s claim to the Falklands said that it should have used peaceful means to resolve
628 chapter 9
title to territory independently established can be created under certain

circumstances.253 As explained by Jennings, such subsequent acquisition of
territory may be grounded on a title by “consolidation … acquired through rec-
ognitions or other forms of acknowledgment of the position expressive of the
will of the international community” in which the international community
exercises a sort of quasi-legislative role and in which each case would be ana-
lyzed on its merits with the “several instances of non-recognition show[ing] in
any case that the decision to accord recognition is by no means automatic and
may be refused.”254 As arguable and controversial as this theory may be, key
elements in a title by consolidation as explained by Jennings are the “acquies-
cence of the victim of the aggression” and the “acquiescence and approbation
of third States generally”.255 In the case of the Tunbs, both of those elements
are missing from the factual situation ensuing after Iran forcibly seized and
occupied the islands on 30 November 1971.
No Recognition or Acquiescence by Third States Generally

As far as the authors have been able to determine, no State in the world has
recognized the legality of the Iranian seizure of the Tunbs or acquiesced to
it. Indeed, not only are all members of the gcc and the League of Arab States
on record as condemning the Iranian seizure of the islands and affirming the
uae’s sovereignty over them, but many significant members of the interna-
tional community have either supported the uae’s position or called on Iran
to resolve the dispute peacefully through direct negotiations or by referral of
the dispute to the icj for resolution. These latter States include all permanent
members of the un Security Council, as well as important regional States such
the dispute. Iraq’s invasion of Kuwait in 1990 on the pretext that it had pre-colonial title
was even more strongly condemned. That is, such claims are not treated as a special case;
they have not been treated differently from other claims by states using force that they are
not in breach of Article 2(4) as they are not using force against the territorial integrity of
another state because it is in fact their own territory.”).
253 Robert Y. Jennings, The Acquisition of Territory in International Law (Manchester: Man-
chester University Press, 1963), 61–65; Robert Jennings and Arthur Watts, Oppenheim’s
International Law, 9th ed. (Oxford: Oxford University Press, 1996), 702–705.
254 Jennings, Acquisition of Territory, 63, 67. See also, Jennings and Watts, Oppenheim’s Interna-
tional Law, 705 (“The rule that a state may not now claim a new territorial title by reason of
subjugation, possibly falls short of preventing such a state, after a considerable period of
peaceable possession and administration, and possibly indeed with the acquiescence
of the former sovereign, from being able to claim a title by historical consolidation with
such elements as general recognition, lack of protest, and the like.”).
as Turkey.256 The European Union has also continuously called on Iran to

resolve the dispute in this manner.257
256 Cf. Ministry of Foreign Affairs of the United Arab Emirates, Abu Musa and the Tunbs: Sov-
ereignty Dispute between the uae and the Islamic Republic of Iran. Background Briefing,
Accessed May 10, 2017. https://www.mofa.gov.ae/EN/Documents/9_pdf.pdf. This back-
ground briefing by the uae Ministry of Foreign Affairs also mentions that several key
States (including the five Permanent Members of the Security Council) and organizations
have expressed their support for the uae position of “calling on Iran to resolve and settle
the dispute peacefully through direct negotiations or by referring the matter to the In-
ternational Court of Justice.” On the support for a negotiated solution, see e.g., European
Union (eu)-Gulf Cooperation Council (gcc) Joint Council and Ministerial Meeting, Co-
Chair’s Statement, 23rd gcc-eu Joint Council and Ministerial Meeting, Manama, June 30,
2013 (“The Ministers reiterated their concern at the lack of progress towards resolving the
dispute between the United Arab Emirates and the Islamic Republic of Iran over the three
islands of Abu Musa, Lesser Tunb and Greater Tunb. They reiterated their support for a
peaceful settlement of this dispute in accordance with international law, either through
direct negotiations between the parties or by referring the matter to the International
Court of Justice.”). A debate in the uk House of Commons on June 9, 2009 stressed that
several States and international organizations from the international community have
expressed support for the referral of the dispute to the International Court of Justice (in-
cluding the uk, the eu and the gcc) and that others, including, Italy, Turkey and the
United States have expressly supported the uae’s claim over the islands. See Parliamen-
tary Debates (Hansard): House of Commons, Official Report, vol. 493, Columns 225wh –
232wh (“Abu Musa and the Greater and Lesser Tunbs”), June 9, 2009 (“In recent times,
there have been a number of statements of support from the international community
in favour of referring the issue to the International Court of Justice at The Hague, in ac-
cordance with article 33 of the charter of the United Nations and article 36 of the stat-
ute of the International Court of Justice. Not surprisingly, the Gulf Co-operation Council
countries – including Kuwait, Oman, Saudi Arabia, Bahrain and Qatar – have repeatedly
backed the uae, which is an approach that I endorse. However, there has been wider
support. In April 2009, the eu and gcc reiterated their support in a joint communiqué
for a peaceful settlement of the dispute in accordance with international law through
direct negotiations between the parties or by referring the matter to International Court
of Justice. In January 2009, the Speakers of the Italian and Turkish Parliaments spoke on
the matter. The Speaker of the Italian Parliament said that Abu Musa and the Greater
and Lesser Tunbs belong to the uae and that diplomacy is the way to restore them. The
Speaker of the Turkish Parliament said that he would speak to the Speaker of the Iranian
Parliament, urging the country to speed up the resolution of the dispute. Last year, the us
deputy assistant Defence Secretary for middle eastern affairs, Christopher Straub, sup-
ported the uae’s claim over the islands, accusing Iran of exercising hegemonic behaviour
in the region.”).
257 See, e.g., Statements of the eu/gcc Ministerial Meetings dated 29 April 1998, 22 May
2000, 17 May 2004, 29 April 2009 and 30 March 2010 (“The eu and gcc reiterated their
630 chapter 9
No Acquiescence by Ras Al Khaimah or the uae

As seen in the previous Section, from the time the seizure of the Tunbs by Iran
occurred in November 1971 until the present day, the uae has repeatedly and
unambiguously protested against that action (with Ras Al Khaimah protesting
through the Government of Iraq on one occasion before it joined the Union
in February 1972258 and the uae lodging protests thereafter). In these protests,
the uae has continuously asserted its own sovereignty over the islands, con-
demned the Iranian seizure and subsequent acts of purported sovereignty
thereon as a violation of the Charter of the United Nations and international
law more generally, and has offered to resolve the dispute through direct nego-
tiations or by referral to the International Court of Justice.
When viewed against the requirements established under international law,
there can be very little if any doubt that the timing, specificity and manner
in which the uae has protested the seizure and occupation of the Tunbs by
Iran have kept the uae’s rights of sovereignty over the Tunbs alive and clearly
evidenced the non acquiescence of the uae to Iran’s occupation. To summa-
rize those requirements as developed through international arbitral and judi-
cial decisions, a valid protest under international law should generally comply
with a number of criteria:259
(i) (no ambiguity) a protest should be unambiguously made by or on

behalf of the State adversely affected by the act of another State;
concern at the lack of progress towards resolving the dispute between the United Arab
Emirates and the Islamic Republic of Iran over the three islands of Abu Musa, Lesser Tunb
and Greater Tunb. They reiterated their support for a peaceful settlement of this dispute
in accordance with international law, either through direct negotiations between the par-
ties or by referring the matter to the International Court of Justice.”).
258 Letter dated December 7, 1971 from the Permanent Representative of Iraq to the United
Nations addressed to the Secretary-General, un Doc. S/10434. See supra note 157 and ac-
companying text.
259 Jennings and Watts, Oppenheim’s International Law, 1193–1194 (“A protest is a formal com-
munication from one state to another that it objects to an act performed or contemplated
by the latter … A protest principally serves the purpose of preserving rights, or of making
it known that the protesting state does not acquiesce in, or does not recognise, certain
acts: but it does not nullify the act complained of.”); Ian MacGibbon, “Some Observa-
tions on the Part of Protest in International Law”, British Yearbook of International Law
30 (1953): 293–319, 298 (“A protest constitutes a formal objection by which the protesting
State makes it known that it does not recognize the legality of the acts against which the
protest is directed, that it does not acquiesce in the situation which such acts have created
or which they threaten to create, and that it has no intention of abandoning its own rights
in the premises.”).
(ii) (protecting valid rights) a protest is only effective if the act com-
plained of is a violation of the rights of the protesting State;
(iii) (identify offending act and grounds of protest) a protest should iden-
tify clearly the act which is objected to and clearly articulate the
grounds on which the protest is made;
(iv) (effectively communicated) a protest should be effectively communi-
cated to the offending State, whether directly or through intermedi-
aries, or through raising the issue in a forum in which the offending
State is present or will be made aware of the protest, such as the un
Security Council or the General Assembly;
(v) (further steps) a protest should usually be accompanied by some
further steps as evidence of the seriousness and good faith of the
intention of the State to oppose infringement of its rights (such
as diplomatic negotiations, the reference of the dispute, or the
willingness to refer the dispute, to international arbitration or
adjudication);
(vi) (repetition) if the acts protested against are repeated or continue,
there have to be repeated protests to safeguard rights, isolated pro-
tests would not suffice; and
(vii) (certain immediacy) a protest must be lodged with certain imme-
diacy to the occurrence of the acts protested against.260
As evidenced by the summary of the protests and statements made by the

uae since 1971 which is set out above in this chapter, the protests lodged by the
uae with respect to the seizure of the Tunbs by Iran and the measures taken in
relation to those islands by Iran since 1971 appear to comply with each of these
requirements:
(i) There can be no doubt that the long campaign of protests against
the Iranian occupation of the Tunbs, beginning with the first pro-
tests lodged at the time of the occupation in 1971, have been lodged
by or on behalf of the uae (that is, the State claiming to be adversely
affected by that occupation) and that the protests have as their aim
the condemnation of that occupation and the recovery of the is-
lands to uae sovereignty. In these circumstances, the protests in
question cannot be characterized as suffering from any ambiguity.
(ii) Following the conclusions reached in the previous chapter (that
the Tunbs were sovereign territory of Ras Al Khaimah upon their
260 See MacGibbon, “Some Observations”, 293.

632 chapter 9
seizure by Iran in November 1971 and then became sovereign terri-

tory of the uae – albeit occupied – upon Ras Al Khaimah’s joining
the Union in February 1972), it is clear that the protests lodged by
the uae against the Iranian occupation have been in protection of
valid rights of the protesting State.
(iii) Virtually every protest or statement issued by the uae since 1971
has identified the offending act (whether the original or continuing
forcible occupation of the islands by Iran or the acts of purported
sovereignty exercised by Iran thereon from time to time) as well
as the grounds of protest (whether generally as a violation of uae
territorial sovereignty or as a violation of the un Charter, the 1949
Geneva Conventions or other rules of international law).
(iv) The original protest against the Iranian occupation of the Tunbs was
made to the un Security Council in the presence of representatives
of the Iranian government, and subsequent and repeated protests
have also been made verbally before such representatives during
meetings of the un General Assembly and in writing directed to the
Iranian government. The Iranian government has, moreover, replied
to many of these protests, particularly those presented to the un
Security Council or General Assembly. Under these circumstances,
it is undeniable that these protests were effectively communicated to
the offending State.
(v) The uae has taken a number of further steps which demonstrate
its intention to oppose the infringement of its rights and seek a
peaceful resolution of the dispute, including initiating diplomatic
negotiations with Iran in 1992, 1995 and 1999 aimed at resolving the
dispute, and offering repeatedly to engage in such negotiations with
Iran to resolve the dispute or to refer it to the icj or binding third
party arbitration for resolution.261 The uae has also brought the dis-
pute to the Gulf Cooperation Council and the League of Arab States
261 A typical example of the uae’s call to Iran to resolve the dispute through direct negotia-
tions or the intervention of a third party is that included in the uae Foreign Minister’s
statement to the 55th session of the u.n. General Assembly (15 September 2000) in which
he stated that “At the same time, we call upon the Islamic Republic of Iran to follow the
example of those fraternal States and to respond to our peaceful initiatives that call for
either entering into direct and serious bilateral negotiations aimed at finding a peaceful
solution for ending Iran’s occupation of our three islands Greater Tunb, Lesser Tunb and
Abu Musa, or agreeing to submit the dispute to the International Court of Justice.” un
Doc. A/55/PV.16, p. 15.
for discussion and to consider steps which might resolve the dis-
pute, and through these organizations, the uae has brought the dis-
pute over the islands before other regional groupings, including the
European Union, as well as before other important bilateral part-
ners, such as the United States, the United Kingdom, France, Russia,
China and Turkey, seeking their support.262 The uae has also taken
steps to ensure that the dispute over the three islands has remained
on the agenda of the un Security Council.263
(vi) Far from lodging isolated protests, the record shows that the uae
has mounted a systematic campaign in which its protests against
the occupation of the Tunbs are repeatedly and on a regular basis
lodged before international organizations (principally the un Se-
curity Council, the un General Assembly, the League of Arab States
and the gcc) and in notes verbale or other specific protests directed
to the Iranian government (and typically sent for recording to the
un Secretary General) when it becomes aware of some act of pur-
ported sovereignty by Iran on the islands.
(vii) As for the requirement of a certain immediacy, the uae lodged sev-
eral initial protests within days of the Iranian seizure of the Tunbs,
including before the un Security Council,264 so there can be no
doubt that this requirement has also been met.
Conclusions on the Tunbs

By immediately and repeatedly protesting Iran’s actions in relation to the
Tunbs, including their seizure by Iranian troops and continuing acts of occupa-
tion, and by clearly maintaining its claim to title over the islands, the uae has
ensured that the Iranian occupation of the islands cannot be viewed as “undis-
turbed” or “peaceable”, nor that the uae has “acquiesced” to it. Coupled with
the lack of recognition of the legality of Iran’s occupation by the international
community generally, these protests and the evidence that the uae has not

264 See statement of the Supreme Council of the uae, dated 2 December 1971, condemning
Iran’s use of force and occupation of “part of the Arab nation”; statement by the Presi-
dent of the uae, Sheikh Zayed, dated 5 December 1971, “condemn[ing] the aggression
by a neighbouring and friendly state” and seeking support “to assist us in regaining our
rights”; statement of the Ruler of Ras Al Khaimah, dated 7 December 1971, transmitted to
the un Secretary General, advising of the invasion of the Tunbs islands by Iran, asserting
634 chapter 9
acquiesced to that occupation serve to undermine any argument that the

islands could have become sovereign possessions of Iran through the doctrine
of acquisitive prescription or consolidation, even if such doctrine was deter-
mined to operate under international law.
For much the same reasons, the effect of these protests, and the demonstrat-
ed lack of acquiescence by the uae to Iran’s occupation of the Tunbs, should
be – so long as they are maintained – that Iran’s occupation may not eventually
mature into an effective sovereign title through acquisition of a prescriptive
right of ownership. The uae protests should also serve to prevent any argu-
ment being made that it has waived, or should be estopped, from contesting
the Iranian seizure and occupation of the islands, or that any measures taken
by Iran in pursuance of its occupation of the islands may be considered in
determining its connections or ties with the Tunbs.265
The inevitable conclusion of the considerations discussed above is that the
seizure by Iran of the Tunbs in 1971 was that of an occupation by the use of
force, unlawful under international law, and that the occupation of the islands
at and since that time has been in continuous violation of the uae’s sovereign
rights, which have been fully maintained through the issuance of timely and
effective protests.266
Legal Analysis – Abu Musa, Its Rightful Sovereign and the Legal
Status and Effects of the mou
The succinct conclusion stated immediately above in relation to the Tun-

bs cannot simply be applied to Abu Musa. This is, of course, because of the
Memorandum of Understanding entered into by Iran and the Ruler of Shar-
jah at the end of November 1971, which provided an ostensible legal basis for
Ras Al Khaimah’s sovereignty over those islands and requesting the intervention of the
“the United Nations, the Security Council and the Council of the League of Arab States”;
and statement of the un representative of the uae before the Security Council, dated 9
December 1971 (reproduced in part at text accompanying note 167).
265 Cf. Jennings, Acquisition of Territory, 33. See, generally, chapter 3.
266 The issue of whether the law of occupation applies to the islands of Abu Musa and the
Tunbs and whether Iran is to be considered an occupying power is beyond the scope
of this book. However, it may be noted that the uae in the past has complained of the
violation of the Fourth Geneva Convention of 1949 by Iran in relation to the islands. See
e.g, Note verbale dated March 20, 2001 from the Ministry of Foreign Affairs of the United
Doc. S/2001/319.
the arrival and continuing presence of Iranian military forces over part of the
island. As the questions posed at the beginning of this chapter suggest, the
mou raises a series of legal issues, including whether it should be considered
a valid and legally binding agreement under international law and, if so,
whether, under the prevailing evidentiary circumstances, it may be terminated
due to breach or otherwise. Before analyzing those and related issues, however,
we begin with a discussion of whether the mou itself (assuming its validity),
or any events which have occurred since its conclusion, have resulted in any
change of Abu Musa’s sovereign ownership which, as established in chapter 8,
was held by the Emirate of Sharjah prior to the conclusion of the mou.
Sovereign Ownership of Abu Musa Post-mou
Having concluded in the previous chapter that Sharjah held sovereign owner-
ship of Abu Musa immediately prior to the signing of the mou, and putting
to one side for the moment whether the mou is itself a legally binding agree-
ment, there would appear to be two means by which that sovereign ownership
could have been subsequently lost, i.e., that the terms of the mou resulted in
such a transfer of ownership through cession, or subsequent recognition of
Iranian ownership. Although theoretically possible, it is of course undoubted
that neither of these possibilities is applicable as the preamble of the mou
specifically preserved Sharjah’s claim of ownership over the island: “Neither
Iran nor Sharjah will give up its claim to Abu Musa nor recognise the other’s
claim. Against this background the following arrangements will be made”.
Thus, there is no argument that Sharjah in some manner surrendered or ceded
sovereign ownership over Abu Musa through the terms of the mou itself, and
as it held such sovereign ownership prior to signing the mou, Sharjah (and the
uae as the successor State) would have continued to hold it thereafter, barring
some subsequent act of acquiescence to Iranian claims of sovereignty leading
to its acquisition of title through a theory of consolidation or prescriptive rights
of ownership over part or all of the island.
Those legal theories, and the reasons why they do not apply or have not
resulted in acquisition of ownership of the Tunbs by Iran, have been discussed
in the previous section. The same considerations which lead to the conclu-
sion that Iran has not acquired sovereignty to the Tunbs under either of these
theories – principally the lack of recognition of Iranian sovereignty by the
international community generally, and the lack of acquiescence by the uae
to Iranian claims of ownership over those islands expressed in unambigu-
ous and numerous protests issued upon and since their occupation – are also
636 chapter 9
present in relation to Abu Musa. Thus, as far as the authors have been able to
determine, no state in the world recognizes Iranian sovereignty over any part
of Abu Musa, and as reflected in the continuous chain of protests which the
uae has made since 1971, which consistently proclaim the uae’s sovereignty
over the entirety of Abu Musa, the uae has never acquiesced to a claim of
Iranian sovereignty either. Rather, the uae has all along preserved its rights of
ownership over that island as well.
Legal Status of the mou under International Law
As the arrival and continuing presence of Iranian forces on Abu Musa is gov-
erned by the mou and, as such, does not assume or require that Iran hold sov-
ereignty over the island, the conclusion that the uae remains as the territorial
sovereign of Abu Musa is not necessarily inconsistent with Iran’s continuing
(and possibly indefinite) presence on the island. However, that presence does
assume that the mou is a valid and binding international agreement since
without it there would be no basis on which Iran could legally justify occu-
pying uae territory against the latter’s wishes. The mou’s status as a binding
treaty might be called into question on two general grounds. First, it could be
argued that the mou is simply a non-binding instrument rather than a binding
international agreement. Second, it could be argued that even if it does other-
wise constitute a binding international agreement, the mou is null and void
because it was secured under duress or the threat of force.
From the terms of the mou, the circumstances surrounding its conclusion
and the norms applicable to the law of treaties under international law, it ap-
pears clear that (subject to any arguments that it was secured u
nder the threat
of force and for that reason is null and void ab initio) the mou constitutes
a treaty or more broadly a binding international agreement, as o pposed to
a non-binding instrument. This conclusion is also based on a review of the
various grounds which, in principle, could be used to undermine the binding
nature of that instrument but which, upon analysis, clearly do not.
(a) Initial Considerations – The Vienna Convention on the Law

of Treaties
The Vienna Convention on the Law of Treaties ( “vclt” or the “Vienna Conven-
tion”) “constitutes the basic framework for any discussion of the nature and
characteristics of treaties”.267 Although the vclt does not in itself apply to the
267 Shaw, International Law, 903.

mou because neither the uae nor Iran are parties to it (Iran signed the vclt
when it was adopted in May 1969 but never ratified it268) and the vclt was not
in force when the mou was concluded,269 the provisions of the vclt establish-
ing the elements of the definition of a treaty are widely recognized as reflective
of customary international law and therefore serve as an important guide in
determining the legal status of the mou.270 The elements of the definition of a
treaty are set out in article 2 of the vclt:
[A]n international agreement concluded between States in written form

and governed by international law, whether embodied in a single instru-
ment or in two or more related instruments and whatever its particular
designation.271
Several preliminary observations arise from contrasting the elements of the

definition of treaty under the vclt with the mou. First, the fact that the in-
strument is termed “Memorandum of Understanding” does not necessarily
imply that it is not a treaty since, as stated above, whether or not an instru-
ment constitutes a treaty does not depend on its “particular designation”.272
As noted by Aust, “[c]alling an instrument a Memorandum of Understanding
does not establish its status, since – and most confusingly – some treaties are
also given that name.”273 Second, the fact that the mou is not embodied in a
268 un Treaty Collection. Accessed November 19, 2015. https://treaties.un.org.

269 The Vienna Convention on the Law of Treaties (1969). See un Treaty Collection. Accessed
November 19, 2015. https://treaties.un.org, indicating that the vclt entered into force on
January 27, 1980.
270 See, Pierre Gautier, “Art. 2 1969 Vienna Convention”, in The Vienna Conventions on the Law
of Treaties, eds. Olivier Corten and Pierre Klein (Oxford: Oxford University Press, 2011),
34, 45; Anthony Aust, Modern Treaty Law and Practice (Cambridge: Cambridge University
Press, 2007), 12. The icj in several of its decisions has applied customary rules embodied
in the vclt to treaties made long before the entry into force of the Convention or in cases
where one or more parties to the litigation were not parties to the vclt. See, e.g., Kasikili/
Sedudu Island (Botswana/Namibia), icj Reports 1999, 1045, para. 20: “The Court will now
proceed to interpret the provisions of the 1890 Treaty by applying the rules of interpreta-
tion set forth in the 1969 Vienna Convention.”; Sovereignty over Pulau Ligitan and Pulau
Sipadan (Indonesia/Malaysia), icj Reports 2002, 625, para. 37 (Indonesia was not a party
to the vclt).
271 vclt, Article 2.1.a.
272 See, e.g., South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary
Objections, icj Reports 1962, 319, 331 (“Terminology is not the determinant fact as to the
character of an international agreement or undertaking.”).
273 Anthony Aust, Handbook of International Law (Cambridge: Cambridge University Press,
2005), 54.
638 chapter 9
single instrument but was instead concluded through an exchange of letters

does not deprive it of its potential character of being a treaty since a treaty may
be “embodied in a single instrument or in two or more related instruments”.274
Third, the written form of the mou is obviously established. A fourth prelimi-
nary observation, although not derived from the terms of the treaty definition,
is that the fact that the mou has not been registered before the United Nations
in terms of Article 102 of the un Charter is not conclusive as to its legal nature.
The icj has stated that failure to register a treaty with the un “does not have
any consequence for the actual validity of the agreement, which remains no
less binding upon the parties.”275 As Aust has noted:
Registration of an instrument with the United Nations pursuant to

Article 102 of the un Charter is generally good evidence that the states
concerned regard the instrument as a treaty, although registration
cannot, in itself, confer treaty status if the instrument is not a treaty …
But, equally, failure to register a treaty does not deprive it of treaty status,
even if, in theory at least, the treaty cannot be invoked before an organ of
the United Nations.276
There are two elements of the definition of “treaty” laid out in article 2 of the
vclt which have thus far not been addressed in relation to the mou – whether
the parties to that instrument are States and whether it is “governed by interna-
tional law”, a phrase which embraces the intention of the parties to create legal
relations277 (which has been referred to as the “decisive factor” in d etermining
274 On this point, the International Law Commission indicated in its commentaries to the
Draft Articles on the Law of Treaties when reporting to the General Assembly in 1966:
“Although the term ‘treaty’ in one sense connotes only the single formal instrument, there
are also international agreements, such as exchanges of notes, which are not a single for-
mal instrument, and yet are certainly agreements to which the law of treaties applies.”
ybilc, Vol. ii 1966, 188.
rain), Jurisdiction and Admissibility, icj Reports 1994, 112, para. 29.
276 Aust, Modern Treaty Law, 36.
277 Anthony Aust, “The Theory and Practice of Informal International Agreements”, Interna-
tional and Comparative Law Quarterly 35 (1986): 787–812, 795; Mark E. Villiger, C
ommentary
on the 1969 Vienna Convention on the Law of Treaties (Leiden: Martinus Nijhoff Publishers,
2009), 81. Fitzmaurice and Elias also indicate that another aspect of the term “governed
by international law” is to “exclud[e] from the definition those agreements, even if in-
ternational – and, indeed, even if made between States – which are governed by some
other legal system in the sense that the applicable law is not international law.” Malgosia
whether an instrument is a treaty278) and which is distinguished from an

intention to create merely political, programmatic or personal relations.279
The first of these – statehood – raises for our purposes the most difficult issues.
It is to those issues which we now turn.
(b) Was Sharjah a State or Did It Otherwise Possess Treaty-Making

Capacity in November 1971?
It has been noted above that article 2 of the Vienna Convention defines a treaty
as an international agreement between States. Nevertheless, if an instrument
does not strictly fall within the scope of that definition this does not mean that
it cannot be considered as a treaty or a binding international a greement under
international law or that the interpretative rules of the vclt do not apply to
it. In its Draft Articles on the Law of Treaties, the International Law Commis-
sion made this clear by acknowledging that the fact that other types of treaties
were excluded from the definition of treaty for the purposes of the vclt (e.g.,
treaties concluded by subjects of international law other than States) did not
mean that such treaties did not have legal force under international law.280
This principle was later incorporated into article 3 of the vclt which estab-
lishes that those provisions of the vclt which codify customary international
law rules shall be applied to international agreements entered into by subjects
of international law other than States (and to international agreements not in
written form).281 Thus, even if Sharjah did not constitute a State in November
Fitzmaurice and Olufemi Elias, Contemporary Issues in the Law of Treaties (Utrecht: Elev-
en International Publishing, 2005), 20.
278 Robert Jennings and Arthur Watts, Oppenheim’s International Law, 9th ed. (Oxford
University Press, 1996), 1202 (“It is suggested that the decisive factor is still whether the
instrument is intended to create international legal rights and obligations between the
parties – an element which the International Law Commission regarded as embraced
within the phrase ‘governed by international law’.”). See also, Aust, “Informal Internation-
al Agreements”, 795 and Gautier, “Art. 2 1969”, 43.
279 Villiger, Commentary on vclt, 77.
280 International Law Commission, “Draft Articles on the Law of Treaties”, Yearbook of the
International Law, Vol. ii, (1966), 187.
281 Article 3 of the vclt provides: “The fact that the present Convention does not apply to
international agreements concluded between States and other subjects of international
law or between such other subjects of international law, or to international agreements
not in written form, shall not affect: (a) the legal force of such agreements; (b) the applica-
tion to them of any of the rules set forth in the present Convention to which they would
be subject under international law independently of the Convention; (c) the application
640 chapter 9
1971 in accordance with generally recognized criteria, it may nevertheless still

have had treaty-making capacity as a subject of international law, and thus the
capacity to conclude the mou as a legally effective instrument governed by
international law.282
There is no precise methodology for determining whether an entity other
than a fully-fledged State has an international legal personality and is therefore
capable of entering into treaties, and the legal reasoning on which such a de-
termination has been based can be somewhat circular. Indeed, some commen-
tators would hold that it is not achieving such a status which grants an entity
the capacity to enter into international agreements, but rather the entering
into such international agreements themselves which demonstrates that an
entity is a subject of international law. As noted by Grant:
It is said that international legal personality is the prerequisite for an en-

tity to enter into a treaty; Ago, for example, said that “all subjects of in-
ternational law had, as a rule, the capacity to become parties to a treaty”.
If one determines that an entity is a State – or, for that matter according
to Ago some other “subject of international law” – then treaty-making
capacity follows. However, it has also been said that the practice of treaty-
making indicates international status – i.e., that status is “not a precondi-
tion for holding international obligations or authorizations, but is the con-
sequence of possessing them.” 283
Without delving into the question whether in 1971 Sharjah was a fully-fledged
State or “some other subject of international law”, it should be noted that
whether its treaty-making capacity is said to have derived from one status or
the other would in either case still require determining the impact on that
status of the Exclusive Agreement of 7 March 1892 with Britain (the “Exclu-
sive Agreement” or “Protectorate Treaty”), and in particular paragraph 1 of
that agreement by which the Ruler of Sharjah agreed not to enter into agree-
ments “with any Power other than the British Government”.284 The question
of the Convention to the relations of States as between themselves under international

agreements to which other subjects of international law are also parties.”.
282 See, e.g., Tom Grant, “Who can Make Treaties? Other Subjects of International Law” in
The Oxford Guide to Treaties, ed. Duncan B. Hollis (Oxford: Oxford University Press, 2012),
144. See also, Bouthillier and Bonin, “Art. 3 1969 Vienna Convention”, 66–67.
283 Grant, “Who can Make Treaties?”, 144 (emphasis added).
284 Toye, Lower Gulf Islands, Vol. 2, 137, containing “Protectorate Treaties of 1892”. This treaty
Sharjah, Dubai, Ajman, Umm Al Qaiwain and Ras Al Khaimah.
raised is thus whether Sharjah, by entering into the Exclusive Agreement, had
renounced any treaty-making capacity it may have already held in favor of the
British and in so doing became deprived of its very status as a state or indeed
as another subject of international law capable of entering into treaties and
holding international obligations.
Under the Exclusive Agreements, the Rulers of each of the Gulf Sheikhdoms
(including Sharjah) agreed, on behalf of themselves, their heirs and successors,
to the following:
1st. – That I will on no account enter into any agreement or correspon-

dence with any Power other than the British Government.
2nd. – That without the assent of the British Government I will not
consent to the residence within my territory of the Agent of any other
Government.
3rd. – That I will on no account cede, sell, mortgage or otherwise give for
occupation any part of my territory save to the British Government.285
A number of inter-related considerations are involved in addressing the ques-

tion of the status of Sharjah in 1971 and the closely connected question of
its treaty-making capacity at that time, and in particular its capacity to have
entered into the mou and assumed the international obligations contained
within it. The overarching conclusions which these considerations suggest
are that Sharjah had treaty-making capacity as a subject of international law
prior to its entry into the Exclusive Agreement, that it retained its international
personality and its underlying capacity for treaty making thereafter (albeit
subject to contractual obligations owed to Britain as set out in the Exclusive
Agreement), including the capacity to enter into and assume international
obligations under the mou, and that, even if, arguendo, it did not retain such
capacity, the mou must be considered a legally effective instrument in any
case because of Britain’s consent, indeed urging, that Sharjah conclude that
instrument. A summary of these considerations is set out below.
(c) Sharjah’s Status as a State Prior to the 1892 Exclusive Agreement

Whether Sharjah constituted a State for purposes of international law has been
discussed in chapter 7 in relation to the nineteenth century (prior to its s igning
285 Toye, Lower Gulf Islands, Vol 2, 137, containing “Protectorate Treaties of 1892”. Another
protectorate treaty with identical terms was signed between the British and the Chief
of Bahrain in March 1892. Treaty Between Great Britain and the Chief of Bahrain, March
1892, 176 c.t.s. 467.
642 chapter 9
the Exclusive Agreement with Britain in 1892), where it was concluded that it
held that status to a sufficient extent to have been able to carry out an effective
occupation of Abu Musa as terra nullius. Key to this conclusion was that
the Qawásim rulers governed over a roughly defined territory in which they
exercised independent authority, carried out administrative activities, collected
taxes, conducted trade, dispensed justice, were given allegiance by a relatively
determinate population and assumed a recognized international personality,
including through entering into a series of treaties with the British government
from 1820 to 1879 covering matters of peace and security, slave trade, commer-
cial and criminal affairs.
(d) Sharjah’s Status Following the Conclusion of the Exclusive

Agreement
Leaving aside for the moment the issue of the effect of the Exclusive Agree-
ment on Sharjah’s treaty-making capacity (discussed below), there is no doubt
that, with respect to the elements of statehood which have often been iden-
tified (a defined territory, a permanent population and a government “exer-
cising authority with respect to persons and property within the territory of
the State”286), Sharjah continued to enjoy such attributes following its conclu-
sion of the Exclusive Agreement in 1892, and that by 1971 Sharjah more closely
resembled a modern State, albeit without developed institutions, than it did
in the mid-nineteenth century. In this regard, Crawford notes that there is no
precise definition of what constitutes a State in any of the international con-
ventions that rely on the concept of the State, such as the vclt,287 but that an
entity which is regarded as a State under international law will possess certain
attributes, one of which is its competence “in principle” to perform acts and
make treaties in the international sphere and another of which is to have ple-
nary jurisdiction over internal matters, not subject to the control of any other
State.288 The only definition of statehood in a treaty (yet not completely sat-
isfactory289), which generally reflects these attributes, is contained in the 1933
286 James Crawford, The Creation of States in International Law (Oxford: Oxford University
Press, 2006), 55.
287 Crawford, Creation of States, 38–39.
288 Ibid., 40–42. Other attributes mentioned by Crawford are: the fact that States in principle
are not subject to any compulsory international process, jurisdiction or settlement with-
out their consent, that States are regarded as “equal” under international law and that
derogations from these principles will not be presumed. Ibid.
289 Ibid., 40, 45–62 (explaining the deficiencies of the definition of State taken from the Mon-
tevideo Convention on the Rights and Duties of States).
Montevideo Convention on the Rights and Duties of States, which is still in

force but which only has sixteen State parties, including the United States and
a number of Latin American States.290 The “classical” elements of statehood as
identified in the Montevideo Convention are: (a) “a permanent population”;
(b) “a defined territory”; (c) a “government”; and (d) the “capacity to enter into
relations with other states.”291
Sharjah clearly satisfied the first three elements of this definition notwith-
standing the provisions of the Exclusive Agreement. It had an identifiable,
albeit small, permanent population,292 and a defined territory (including the
island of Abu Musa despite the existence of the sovereignty dispute with Iran),
and albeit subject to some other border disputes with its immediate neighbors,
including Dubai.293 A description of Sharjah’s geographical extension was
depicted in 1959 as follows:
The Shaikhdom extends for about ten miles along the coast between
Dubai and Ajman and includes the coastal villages of Khan and Hirah. It
also claims the coastal village of Hamriyah, north-east of Ajman. Inland
it extends for some fifty miles to the foot of the mountains. It includes
in this area the substantial oasis of Dhaid in the vicinity of which are
the camps of the Bani Qitab, a nomad tribe owing allegiance to Sharjah.
A wedge of territory belonging to Ras al-Khaimah lies between the
Ruler of Sharjah’s domains to the west of the mountains and the former
Shaikhdom of Kalba to the east of the mountains, which has recently been
brought under his rule. Here all the villages occupied by a tribe known
as the Naqibiyin are included in his Shaikhdom. These are interspersed
with Sharqi villages which, as already related, have been recognized as
belonging to the Shaikhdom of Fujairah. Sharjah territory east of the
290 Convention on Rights and Duties of States, adopted at Montevideo, Uruguay on Decem-
ber 26, 1933, oas, Treaty Series No. 37. The Convention was adopted within the Organiza-
tion of American States and is only open for accession by members of that organization.
291 Ibid., Article 1.
292 In 1959, Hay estimated the population of the capital town of Sharjah as 5,000 while a
census taken in 1975 indicated that the number of inhabitants of the entire emirate of
Sharjah was 88,188. Sir Rupert Hay, The Persian Gulf States (The Middle East Institute:
Washington, d.c., 1959), 123–124; The Persian Gulf States, A General Survey, ed. Alvin J.
Cottrell (Baltimore: John Hopkins University Press, 1980), 598. Crawford notes that, with
respect to the criterion of having a permanent population, “no minimum limit is appar-
ently prescribed”. Crawford, Creation of States, 52.
293 Crawford, Creation of States, 48 (“A new State may exist despite claims to its territory, just
as an existing State continues despite such claims.”).
644 chapter 9
mountains marches with Muscat territory on the north and south and
with Ras al-Khaimah territory on the west, but its boundaries with
Muscat are uncertain except on the coast where it extends from Dibah to
Khor Kalba, excluding such villages as belong to Fujairah. This all sounds
very confusing, but such is the patch-work pattern of the Trucial States.
The islands of Bu Musa and Sir bu Na’ir, about 45 and 65 miles from Shar-
jah respectively, are included in the Shaikhdom. The former has wells of
potable water and a small settled population, and a brother of the Ruler
sometimes resides on it as Governor. Sir bu Na’ir is waterless and ordinar-
ily uninhabited. Both islands contain deposits of red oxide. That on Bu
Musa is being worked by a British company, the Golden Valley Colours
Limited, under a concession from the Ruler. A few thousand tons of the
ore are usually exported annually. Work on the Sir bu Na’ir deposit, which
is believed to be of inferior quality, was abandoned by the same company
a few years ago.294
As to the requirement of having a “government”, this has been called “the most
important single criterion of statehood, since all the others depend upon it.”295
Thus, territorial sovereignty is not analogous to concepts of ownership of real
property, but rather is linked to the exercise of effective governance over a
defined territory and population, or “the exercise of authority with respect to
persons and property within the territory of the State”.296 The closely-related
criterion of statehood, that of “independence”, has been said to relate to “the
exercise, or the right to exercise, such authority with respect to other States”.297
As such, independence will not only involve the separate existence of an entity
within a defined territory where the government exercises its authority over
persons and property, but the government will also have to do so to “the ex-
clusion of any other State”.298 This principle was elaborated by Max Huber in
Island of Palmas as follows:
Sovereignty in the relations between States signifies independence. Indepen-

dence in regard to a portion of the globe is the right to exercise therein, to
the exclusion of any other State, the functions of a State. The development
294 Hay, Persian Gulf States, 123–124.

295 Crawford, Creation of States, 56.
296 Ibid., 55, note 85.
297 Ibid.
of the national organization of States during the last few centuries, and,
as a corollary, the development of international law, have established this
principle of the exclusive competence of the State in regard to its own
territory in such a way as to make it the point of departure in settling
most questions that concern international relations.299
The independent authority which the Ruler of Sharjah (and other Gulf States
under British protection) and their appointed officials held to govern over a
“defined territory and population” to the “exclusion of any other State” notwith-
standing the Exclusive Agreement was described in the late 1960s as follows:
The fundamental difference between the Shaikhdoms and the various

British protectorates and protected Sates described above is that, unlike
the latter, the former remained internally independent from British con-
trol. The governments of the Shaikhdoms are, as explained in the Intro-
duction, headed by absolute local Rulers who reserve in their persons the
power to make laws by proclamations and to administer, through rep-
resentatives appointed by themselves, justice, police and other various
functions of government. The British Government, which has no repre-
sentation in the local administration of the Shaikhdoms, exercises no
power of legislation over persons in the Shaikhdoms, other than those
subject to the jurisdiction of British Courts. However, the British Resident
in the Gulf advises the Rulers from time to time on certain governmental
matters when his advice is sought. But the Rulers are, in theory, free to
accept or reject his advice on matters affecting administration over their
own subjects.300
A similar picture is seen from a description written in the late 1950s:
I describe in the next Chapter the political organization of the Shaikh-

doms but wish to emphasize here that so far as their purely internal af-
fairs are concerned they are independent both of each other and of any
outside power. The British Government ordinarily only exercised control
in matters involving negotiations or the possibility of complications with
other foreign powers, such as civil aviation and posts and telegraphs.
299 Ibid. (emphasis added).

300 Husain M. Al-Baharna, The Arabian Gulf States. Their Legal and Political Status and their
International Problems, 2d Rev. ed. (1975; reprint, Beirut: Librairie Du Liban,1978), 83.
646 chapter 9
Constant advice and encouragement are, however, offered to the various

Rulers regarding the improvement of their administrations and the
development of their resources, mostly in an informal manner.301
Although both Al-Baharna and Hay note that the administration of the Gulf
States was “patriarchal” and lacking modern organization (except for Dubai),
they also note the existence of an administrative structure. Thus, the Ruler of
Sharjah maintained a customs house, collected taxes (on fishing, pearling and
agricultural activities) and royalties from mining operations (oil exploration
and red oxide), had established a number of efficient schools, issued travel
documents to those considered subjects of Sharjah, adjudicated in disputes
and regulated the entry of foreign companies.302 There was also an airfield in
Sharjah, whose operation in the late 1950s was described as follows:
The airport is about a mile from the town. The Gulf Aviation Company
maintains daily services to it from Bahrain, except on Fridays; the Aden
Airways’ ferries, between Aden and Bahrain, call once a fortnight, and
it is used by the Royal Air Force and by miscellaneous aircraft on char-
ter flights. It is not a recognized port of call for any international airline.
There is a rest house beside the airfield where accommodation is usually
available for visitors and where International Aeradio Limited maintains
a public telegraph office. Adjoining the airfield are the camps of the Royal
Air Force and the Trucial Oman Scouts.303
The authority of the Rulers of Sharjah to govern their territory as sovereign

notwithstanding the Exclusive Agreement has also been recognized in diplo-
matic, judicial and arbitral fora. In the Dubai/Sharjah Boundary Arbitration,
the tribunal referred to the 1892 Exclusive Agreements and briefly analyzed
whether they empowered the British government to delimit the boundaries
separating the various Sheikhdoms. By reference to the speech of Lord Curzon,
Viceroy of India, during a visit to the region in 1903, in which he made clear that
by entering into the protectorate arrangements the British government had
neither seized nor held the Rulers’ territory or destroyed their independence,
301 Sir Rupert Hay, The Persian Gulf States (The Middle East Institute: Washington, d.c.,
1959), 19.
302 See, generally, Hay, The Persian Gulf States, 28–34, 113–129, and Al-Baharna, Arabian Gulf
States, 16–18.
303 Hay, The Persian Gulf States, 125.
the arbitral tribunal concluded that “the consent of the Rulers concerned was
necessary before [boundary] delimitation [between the Sheikhdoms] could
have been undertaken.”304
For its part, the British government described the Rulers of the Sheikhdoms
(including Sharjah) as “sovereigns of independent States under British Protec-
tion or as ‘States in special treaty relations with the British Government.’”305 In
particular, in the litigation between Buttes Gas & Oil Company and Occidental
Petroleum Corporation in the English courts (in connection with disputes aris-
ing out of their rights as concessionaires of, respectively, Sharjah and Umm Al
Qaiwain), the following certificate by the Foreign and Commonwealth Office
was supplied to the court, from which it is worth citing extensively:
Between September 9, 1969, and December 1, 1971 [the time relevant for
the dispute], Her Majesty’s Government recognised the State of Sharjah as
an independent sovereign State in special treaty relations with the United
Kingdom. By virtue of the special treaty relations, Her Majesty’s Govern-
ment were generally responsible for the conduct of the international
relations of Sharjah and for its defence … Between September 9, 1969,
and December 1, 1971, Her Majesty’s Government recognised His Highness
Shaikh Khalid bin Muhammed al Qasimi as the sovereign Ruler of the State
of Sharjah. Thereafter, between December 2 and 30, 1971, His Highness
continued to be the sovereign Ruler of the State of Sharjah as a member
Emirate of the United Arab Emirates. Her Majesty’s Government did not
during any part of the period between September 9, 1969, and December
30, 1971, exercise or claim any rights of sovereignty over or in relation to the
affairs of Sharjah. However, as indicated in the answer to question 1, Her
Majesty’s Government had, until December 1, 1971, general responsibility for
the conduct of the international relations of Sharjah.306
On the basis of this statement by the British Foreign Secretary, the English High
Court judge (with whom the House of Lords agreed) found that “at the relevant
time Sharjah was an independent sovereign state and the ruler the sovereign
304 Dubai-Sharjah Border Arbitration (Dubai/Sharjah), Award of October 19, 1981, ilr 91
(1993) 543, 567.
305 Al-Baharna, Arabian Gulf States, 78.
306 Cited in Buttes Gas and Oil Co. and another v Hammer and another, [1982] ac 888, 927–928
(per Lord Wilberforce) (emphasis added). See also, Jennings and Watts, Oppenheim’s
I nternational Law, 274; Crawford, Creation of States, 292.
648 chapter 9
ruler of that state [notwithstanding that] … Her Majesty’s Government had

and retained until 1971 control over Sharjah’s foreign relations.”307 The House
of Lords, based on the parties’ submissions, also highlighted that the British
government had given its approval to all the relevant dispositions by Sharjah
and Umm Al Qaiwain and that it regarded the issues between the Sheikhdoms
and their respective concessionaries as issues of international law, involving
difficult problems as to the breadth of the territorial waters and continental
shelf.308
These views accord with decisions of the icj and scholarly writings which
describe the “nature” of a protectorate or protected State. In Case Concerning
Rights of Nationals of the United States of America in Morocco (France v us), the
icj found that under the Treaty of Fez of 1912 (a protectorate agreement signed
307 Buttes Gas and Oil Co. and another v Hammer and another, [1982] ac 888, 928 (per Lord
Wilberforce).
308 Ibid., 928, 930 (per Lord Wilberforce). The House of Lords engaged in all these consid-
erations in the context of its decision concerning the justiciability of an action brought
before the English courts by the two oil companies that claimed rights of exploration in
the sea around the island of Abu Musa. Buttes issued an action against Occidental and
Dr. Hammer (chairman of Occidental’s local subsidiary in the Gulf) claiming damages
for slander, alleging that at a press conference held in October 1970, Dr. Hammer had ac-
cused Buttes of “using improper methods and colluding with the then Ruler of Sharjah
to backdate a decree by the ruler extending the territorial waters of Sharjah, in respect
of Abu Musa, from three miles from the coast of the island to 12 miles so as to obtain for
themselves the benefit of the oil-bearing deposit at the location which he claimed was
discovered by and belonging to Occidental.” Ibid., 928 (per Lord Wilberforce). Occidental
then issued a counter-claim alleging that the President of Buttes had libelled Occidental
in July 1970 “in a report to the shareholders of Buttes in which he said that certain United
States proceedings brought by Occidental against Buttes were, in the opinion of Buttes’s
attorneys, ‘wholly without merit.’” Ibid., 920. In the lawsuit filed by Occidental against
Buttes in the United States, Occidental argued that Buttes had unlawfully and maliciously
acted in concert and conspired. to restrain the interstate commerce of Occidental in the
oil and gas to which it was entitled in the Trucial States. See Occidental Petroleum Corpora-
tion v. Buttes Gas & Oil Company, 331 F. Supp. 92, 110 (c.d. Cal. 1971), aff’d per curiam, 461
F. 2d 1261 (9th Cir. 1972). The Law Lords concluded that the matter was non-justiciable
as the English courts, in order to resolve the companies’ claims, would have had to enter
judgment on international law issues such as the sovereignty dispute over the island of
Abu Musa and as to which State had rights over the territorial waters and continental
shelf of that island, a matter which involved arrangements between Sharjah and Umm Al
Qaiwain and the interests of other States such as Iran. Buttes Gas and Oil Co. and another
v Hammer and another, 930, 931–932, 938 (per Lord Wilberforce, with whom all the other
Law Lords agreed).
between France and the Sultan of Morocco) Morocco had “retained its person-
ality as a State in international law.”309 The Court went on to state:
Under [the Treaty of Fez], Morocco remained a sovereign State but

it made an arrangement of a contractual character whereby France
undertook to exercise certain sovereign powers in the name and on
behalf of Morocco, and, in principle, all of the international relations of
Morocco.310
Similarly, in its 2002 judgment in Land and Maritime Boundar y bet ween Cameroon
and Nigeria, the icj distinguished between the types of protectorate treaties
in which the protected entity retained a previously existing sovereignty un-
der international law (giving as examples Morocco, Tunisia and Madagascar
as French “protectorats” and Bahrain and Qatar as British “protected States”)
and those treaties of protection in sub-Saharan Africa which “were entered
into not with States, but rather with important indigenous rulers exercising
local rule over identifiable areas of territory.”311 This comparison is apt for our
purposes as the historical circumstances of Sharjah were very similar to Qatar
and Bahrain, and the protectorate arrangements of Britain with both Bahrain
and Qatar were virtually identical to those agreed with Sharjah in the Exclusive
Agreement.
In commenting on the Morocco case, Fitzmaurice noted that the Court had
“affirmed the principle that Protected or semi-sovereign States nevertheless
have or retain international personality – are international persons – although
their position within the international community, and their relationship with
other States … is governed by special considerations.”312 He further reasons
that arguing the contrary – that is, that a State which had entered into a pro-
tectorate arrangement had lost its sovereign status or personality as a State in
international law – would in effect mean that such State “would cease to be a
Protected State altogether. It would be a case of absorption or merger, or entry
into a Federation; or alternatively of a reduction to a dependence of the type
309 Case Concerning Rights of Nationals of the United States of American in Morocco (France v.
United States of America), icj Reports, 1952, 185.
310 Ibid., 188.
311 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equa-
torial Guinea intervening), icj Reports 2002, 303, para. 205.
30 (1953): 1–70, 2.
650 chapter 9
that involves no separate external relations – even through the suzerain State –
but only a passive participation in the external relations of the suzerain State
itself.”313 In his view, the Court’s decision affirmed the propositions that “all
States are international persons” and that “not all States are fully independent
sovereign States; and that statehood in the international sense may be pos-
sessed by not fully sovereign entities”.314
The view that a protected State retains international personality was also
supported by Lissitzyn, who in 1968 defined a “protectorate”, including the
“seven Trucial States in the Persian Gulf” (Sharjah among them) as “a dis-
tinct entity which is usually called a ‘State’ and which has some international
standing, but whose foreign relations are normally controlled and conducted
by another State under a treaty or other legal instrument of indefinite duration
which is not unilaterally terminable by the dependent entity.”315 Oppenheim’s
International Law also concludes that “states under protection” generally re-
tain their status as subjects of international law:
But it is characteristic of a protectorate that the protected state always

has, and retains, for some purposes, a position of its own as an interna-
tional person and a subject of international law.316
The retained international personality of a protected State was also noted

by separate and dissenting opinions of the icj in its merits decision in the
Maritime Delimitation and Territorial Questions between Qatar and Bahrain
Case. In considering the special characteristics of the relationship of protec-
tion between the British and the Gulf States (in particular Qatar and Bah-
rain, which had similar protectorate treaties as the 1892 Exclusive Agree-
ment with Sharjah) those opinions concluded that when Qatar and Bahrain
ended the protectorate treaties with the British in 1971, they “(re)gained full
313 Ibid., 3.
314 Ibid., 2.
315 Oliver Lissitzyn, “Territorial Entities other than Independent States in the Law of Trea-
ties”, Recueil des Cours 125 (1968-iii): 1–91, 51. But see, Kamanda, who rejects the notion
that the Gulf States had any separate personality at all (Alfred M. Kamanda, A Study of
the Legal Status of Protectorates in Public International Law, Ambilly-Annemasase, France:
Les Presses de Savoie, 1961, 85–88). According to Crawford, Kamanda’s conclusions were
based on an erroneous assumption that two British statutes authorized plenary inter-
vention of the British government in the affairs of the Gulf States. Crawford, Creation of
States, 292 (referring to the Colonial Laws Validity Act 1865 and the Foreign Jurisdiction
Act 1890).
independence”, not “became independent.”317 The same view is expressed by

Oppenheim’s International Law, which notes that “[w]hen the protectorate ter-
minates the protected state will resume its full sovereign independence, which
has been partially in suspense during the protectorate.”318
This brings us to the fourth element of statehood identified in scholarly writ-
ings, and in the 1933 Montevideo Convention cited above, that of “the capacity
to enter into relations with other states”. As noted previously, the Ruler of Shar-
jah agreed in the first paragraph of the Exclusive Agreement that “I will on no
account enter into any agreement or correspondence with any Power other than
the British Government”. With respect to that commitment, it may be asked
whether Sharjah had renounced its treaty-making capacity altogether in favor
of the British and if, in so doing, Sharjah became deprived of its very status as a
State or as a subject of international law. The answer to this latter question has
in most respects already been addressed above, the consensus being that the
entry into a protectorate arrangement by an entity having international per-
sonality does not constitute a renunciation of its underlying sovereign rights
or deprive that entity of its status as a subject of international law even if the
position of the newly protected State within the international community “is
governed by special considerations”,319 or “defined by the treaty of protec-
tion”,320 including one which restricts the authority of the protected State to
conduct its foreign relations and vests that authority in the protecting State:
rain), Merits, Separate Opinion of Judge Kooijmans, icj Reports 2001, 225, para. 16 (“When
in 1971 the special relations between the United Kingdom on the one hand and Bahrain
and Qatar on the other came to an end, it can be said that the latter two States (re)gained
full independence, but it would be inaccurate to say that they became independent. They
were the same States before and after 1971. This is also recognized in the Court’s Judgment
when it states in paragraph 139 that: ‘The 1939 decision must therefore be regarded as
a decision that was binding from the outset on both States and continued to be bind-
ing on those same States after 1971, when they ceased to be British protected States’.”).
See also ibid., Separate Opinion of Judges Bedjaoui, Ranjeva and Koroma, 145, para. 214
(“[T]he ‘special relationship of protection’ between the United Kingdom and the two
States parties to the present dispute gave rise to a flexible division, evolving over time,
of responsibilities between the protecting Power and the protected State, as a result of
which the State retained its personality; this was not the case for most countries in Africa.
There could be no question of applying the principle of uti possidetis juris, since no new
subject of international law had been created; that is to say, there was no State succession
in the present case.”).
320 Jennings and Watts, Oppenheim’s International Law, 269. Another indication that the
Sheikhdoms had retained treaty-making power was that they and the British concluded
652 chapter 9
So long as an entity is or remains a Protected State (or Protectorate) it

may be dependent, but it is a State and an international person and is
in possession of some degree of external sovereignty, even if that sover-
eignty is exercised mediately – through the agency, or under the aegis, of
a Protecting State.321
(e) The Impact of the Exclusive Agreement on Sharjah’s Treaty-Making

Capacity
While the obligations agreed to by the Ruler of Sharjah in the Exclusive Agree-
ment cannot be said – as a rule of law – to have deprived the Sheikhdom of
its status as a subject of international law and therefore its intrinsic capacity
to enter into treaties, there remains the question of how the restrictions con-
tained, most particularly in paragraph 1 of the Exclusive Agreement, are to be
interpreted. With respect to our circumstances, this question relates to wheth-
er Sharjah, in light of the obligations it agreed to in the Exclusive Agreement,
still had the capacity to enter into the mou with Iran and, if entering into the
mou involved some violation of those obligations, whether that undermines
the enforceability of the mou or leads to some other consequences. There are
treaties in 1971 to bring to an end the protectorate arrangements rather than ending those
arrangements through unilateral British action. In analyzing the British acknowledgment
that the proper way to terminate the Exclusive Agreements was through agreement be-
tween the British Government and the Rulers concerned, Al-Baharna indicated the sig-
nificance of the British Government’s position in the following way: “The acceptance by
the United Kingdom of the principle of negotiations as a basis for termination of her trea-
ties with a state under her protection is significant in that it seems to place indirect empha-
sis on the international character of the relations between her and such a protected state.
The principle of terminating treaties which are of ‘perpetual duration’ by negotiations is
the basis of British normal practice in the field of international law.” Al-Baharna, Arabian
Gulf States, 93 (emphasis added).
321 Fitzmaurice, “General Principles and Sources of Law”, 3. See also, e.g., the views of Al-
Baharna (who, pointing to the restrictions placed on the right of the Sheikhdoms to enter
into political treaties, states that “the Shaikhdoms do not enjoy full international person-
ality similar, in all respects, to that enjoyed by independent sovereign States. But they, or
more accurately some of them, enjoy a considerable measure of international personal-
ity.”) and Lissitzyn (who states that “a ‘protectorate’ for our purpose is a distinct entity
which is usually called a ‘State’ and which has some international standing, but whose
foreign relations are normally controlled and conducted by another State under a treaty
or other legal instrument of indefinite duration which is not unilaterally terminable by
the dependent entity.”) Al-Baharna, Arabian Gulf States, 80; Lissitzyn, “Territorial Enti-
ties”, 51.
several theoretical ways to address these issues, none of which it is submitted

would provide a basis on which to invalidate the mou.
Breach of Treaty but without Effect on Validity of the mou

One approach is to consider the entering into of the mou with Iran as a clear
breach of Sharjah’s obligation under paragraph 1 of the Exclusive Agreement
(“on no account [to] enter into any agreement or correspondence with any
Power other than the British Government”) which, however, does not invali-
date the mou but provides a basis on which Britain could have withdrawn its
own commitments to Sharjah. This approach is consistent with the conclu-
sions reached above that a protected State’s status as a State and subject of
international law is not renounced by virtue of having entered into a treaty of
protection, but in certain respects is merely “suspended” as a condition of the
continued protection of the protecting State. If the protected State breaches its
commitment to refrain from exercising one of its suspended sovereign rights,
the protecting State may withdraw its promised protection. Such an interpre-
tation was made in an 1893 decision of the British Court of Appeal which ana-
lyzed the treaty of protection between the Sultan of Johore (a ruler of one of
the former States of Malay) and the British government, containing a similar
clause to the first clause of the Exclusive Agreement.322 In connection with that
paragraph the court concluded that:
The agreement by the Sultan not to enter into treaties with other Powers
does not seem to me to be an abnegation of his right to enter into such
treaties, but only a condition upon which the protection stipulated for is
to be given. If the Sultan disregards it, the consequence may be the loss of
that protection, or possibly other difficulties with this country.323
This interpretation would mean, in the case of the mou, that it is a perfectly
valid international agreement which could have led to no other consequence
than the potential withdrawal of British protection to Sharjah. No such con-
sequence was, of course, forthcoming as the mou was urged upon Sharjah
by the British themselves and, in any case, the Exclusive Agreement was, by
prior design, formally terminated shortly after the mou was entered into in
any case.324
322 By article 6 of the treaty “the Sultan bound himself not to negotiate treaties or to enter
into any engagement with any foreign state”. Mighell v Sultan of Johore, [1894] 1 qb 149, 150.
323 Mighell v Sultan of Johore, 162 (per Kay, L.J.).
324 A few days after the mou was concluded, each of the Exclusive Agreements was
terminated on a consensual basis by the parties through an Exchange of Notes dated
654 chapter 9
No Breach of Treaty If British Consent Given

A second possible interpretation would hold that although paragraph 1 of the
Exclusive Agreement is stated as an absolute prohibition on the entering into
by Sharjah of any agreement with a State or “Power” other than Britain, this
prohibition would not apply if British consent to the agreement is obtained.
Al-Baharna adopts such a common-sense interpretation by stating that the
Sheikhdoms’ “power to conclude treaties has been conditioned by the consent
of the British Government.”325 As detailed previously in this chapter, the Brit-
ish government not only consented to Sharjah’s signing the mou, but strongly
urged and facilitated Sharjah’s signing of that instrument by acting as the chief
negotiator with Iran and serving as the conduit by which the mou was for-
mally transmitted between the Iranian and Sharjah governments. Supporting
this interpretation, there are a number of examples of other international acts
carried out by the Sheikhdoms (in particular Sharjah and Umm Al Qaiwain)
with the consent and approval of the British government whose validity was
never called into doubt, or was indeed specifically endorsed. Several of these
were described by the House of Lords in the litigation between Buttes Gas Oil
& Gas Company and Occidental Petroleum, including the 1949 proclamations
by the Ruler of Sharjah and Umm Al Qaiwain (following the Truman Proclama-
tion in 1945) that the seabed and subsoil contiguous to their territorial waters
were subject to their jurisdiction and control and the 1964 sea-bed boundary
agreements between Sharjah and Umm Al Qaiwain.326 The British govern-
ment followed a similar approach with other British-protected Gulf States,
most notably Bahrain (whose 1892 Treaty of Protection had identical terms to
that of the Trucial Sheikhdoms327), and on at least one occasion in which Bah-
rain negotiated and concluded a treaty directly with Saudi Arabia without the
intervention of the British government, it expressly endorsed the international
validity of that treaty by waiving the prohibition on Bahrain’s concluding
agreements with foreign powers:
1 December 1971, each of which was registered with the United Nations in accordance
with article 102 of the un Charter. See Exchange of Notes Constituting an Agreement con-
cerning the termination of special treaty relations between the United Kingdom, Shar-
jah and its Dependencies. Conclusion date: December 1, 1971. u.n. Registration Number
I-1193. The following day, six of the seven Gulf Sheikhdoms proclaimed the formation of
the uae as an independent State.
326 Buttes Gas and Oil Co. and another v Hammer and another, [1982] ac 888, 923–924.
327 Treaty Between Great Britain and the Chief of Bahrain, March 13, 1892, 176 c.t.s. 467.
Her Majesty’s Government in the United Kingdom were prepared

formally to waive the provisions of the Agreements of 1880 and 1892 in so
far as the Agreement between the Ruler and King Saud was concerned, and
that, so far as Her Majesty’s Government were concerned, the Agreement
was thereupon given international validity.328
As Britain’s consent to the mou is obviously not in question, such an interpre-

tation would support the conclusion that the mou constituted a legitimate
international agreement notwithstanding the obligations set out in the
Exclusive Agreement.
Acquiescence to a Void or Voidable Treaty

A third interpretative variation, pronounced by the International Law Com-
mission’s Special Rapporteur on the Law of Treaties, Mr. H. Lauterpacht, in
his 1953 Report on the Law of Treaties, would maintain that a treaty entered
into by Sharjah in breach of its obligations under the Exclusive Agreement was
either void or voidable (at the option of the British government), but that “the
absence of protest” by Britain to any such treaty would be considered “as equiv-
alent to acquiescence amounting to a renunciation of the limiting provisions
of the original treaty.”329 The ilc’s statement on the matter was as follows:
While therefore the general capacity of a protected State to conclude

treaties is not at issue, the question which arises under the present article
is that connected with any express limitation or exclusion, by the treaty
establishing the protectorate or any subsequent treaty with the protect-
ing State, of the right of the protected State to conclude treaties….
It is with regard to treaties concluded by the protected State in disregard
of such limitations that the question arises as to the validity of the treaty
thus concluded. There is some authority in support of the view that such
treaties are void….
On the other hand it has been suggested that treaties concluded by
a d ependent State in disregard of its contractual capacity are merely
328 As set out by the British Political Agent in Bahrain in a letter of April 21, 1958, cited in
H. Lauterpacht, “Contemporary Practice of the United Kingdom in the Field of Interna-
tional Law-Survey and Comment”, International and Comparative Law Quarterly 7 (1958):
514–576, 518–519. See also, Al-Baharna, Arabian Gulf States, 102–106.
329 Report on the Law of Treaties by Mr. H. Lauterpacht, Special Rapporteur, Yearbook of the
International Law Commission, vol. ii (1953), 137–138.
656 chapter 9
voidable – apparently at the option of the protecting State…. It is sub-

mitted that, in this case, the distinction is probably without a practical
difference…. As the question is one of status imposed not as the result of
any general operation of a rule of law but in consequence of a – usually
bilateral – treaty, it is probably unnecessary in this case to follow what is
apparently the correct logical conclusion and to hold that a treaty con-
cluded in disregard of the contractual capacity of the dependent State is
unalterably and irremediably void. It is preferable to regard the absence
of protest on the part of the superior State as equivalent to acquiescence
amounting to a renunciation of the limiting provisions of the original
treaty.330
This interpretation would also result in finding that the mou was a valid in-
ternational agreement as there is of course no dispute that the British govern-
ment did not lodge a protest against it and would therefore be considered to
have acquiesced to the agreement’s validity or, in the words of Lauterpacht,
renounced “the limiting provision of the original treaty.”
Treaty Amendment
Even if the terms of the Exclusive Agreement were to be considered as an
absolute prohibition on Sharjah to conclude treaties with third States (with
or without the consent or acquiescence of the British government), a final
interpretative variation would hold that British consent to the conclusion
of the mou (and Sharjah’s acceptance of that consent) would amount to an
amendment to the Exclusive Agreement under the customary rules on the law
of treaties, thus allowing the conclusion of that agreement to proceed.331 This
interpretation would again result in finding that the mou constituted a valid
international agreement.
(f) Did the Parties Intend to Create Legal Relations?

A further, and for our purposes, final element in determining whether the
mou constitutes a binding international agreement (again, subject to the ar-
gument that the mou is null and void ab initio due to having been secured
through the threat of force) is whether it is “governed by international law”, a
330 Ibid.
331 Cf. vclt, Articles 31(3)(a) and 39. Philippe Sands, “Art. 39 1969 Vienna Convention”, in The
Vienna Conventions on the Law of Treaties, eds. Olivier Corten and Pierre Klein (Oxford:
Oxford University Press, 2011), 962. See Aust, Modern Treaty Law, 263.
phrase that embraces the intention of the parties to create legal relations.332
As noted above, the intention of two or more subjects of international law to
create legal relations through an instrument is a decisive factor in determining
whether that instrument is a treaty333 and is distinguished from an intention
to create merely political, programmatic or personal relations that attach to
non-binding international instruments.334
With respect to this matter, mention should be made of the c ontroversy be-
tween authors, including Aust, who, based on the vclt and the ilc’s rejection
of the inclusion of political agreements under the definition of treaty,335
maintain that there is a distinction between binding and non-binding in-
ternational agreements, and those authors, most prominently Jan Klabbers,
who, analysing amongst other things, decisions of the icj, doubt whether
the distinction between binding and non-binding instruments is legally val-
id.336 Aust maintains that treaties or binding international agreements and
332 Aust, “Informal International Agreements”, 795; Villiger, Commentary on vclt, 81.
M. Fitzmaurice and O. Elias also indicate that another aspect of the term “governed by in-
ternational law” is to “exclud[e] from the definition those agreements, even if international –
and, indeed, even if made between States – which are governed by some other legal sys-
tem in the sense that the applicable law is not international law.” Fitzmaurice and Elias,
Contemporary Issues, 20.
333 Jennings and Watts, Oppenheim’s International Law, 1202 (noting: “It is suggested that the
decisive factor is still whether the instrument is intended to create international legal
rights and obligations between the parties – an element which the International Law
Commission regarded as embraced within the phrase ‘governed by international law’.”)
See also, Aust, “Informal International Agreements”, 795 and Gautier, “Art. 2 1969 Vienna
Convention”, 43.
335 Anthony Aust, “Alternatives to Treaty-Making: mous as Political Commitments”, in The
Oxford Guide to Treaties, ed. Duncan B. Hollis (Oxford: Oxford University Press, 2012),
65. See also, Christine Chinkin, “A Mirage in the Sand? Distinguishing Binding and Non-
Binding Relations Between States”, Leiden Journal of International Law 10 (1997): 223–247;
Ian Sinclair, “Book Review and Note: The Concept of Treaty in International Law by Jan
Klabbers”, American Journal of International Law 91 (1997): 748–750.
336 Jan Klabbers, The Concept of Treaty in International Law (The Hague: Kluwer Law Inter-
national, 1996), 216–217. See also, Jan Klabbers, “Not Re-visiting the Concept of Treaty”,
in 40 Years of the Vienna Convention on the Law of Treaties, eds. Alexander Orakhelash-
vili and Sarah Williams (London: British Institute of International and Comparative Law,
2010). This is a recent chapter written by Klabbers for a book edited in 2010 by the British
Institute of International and Comparative Law to commemorate 40 years of the vclt
in which, given the opportunity to reflect on the thesis contained in his 1996 book The
Concept of Treaty in International Law in light of all the critiques he received (in particular,
658 chapter 9
non-binding international agreements exist in parallel and that in order to

distinguish between the two, it is necessary to examine the intent of the nego-
tiating parties, which can be evidenced either through the express provisions
of the instrument’s status, the circumstances that led to its conclusion or, even,
whether it has been registered.337
Klabbers, for his part, has argued that “the existence of instruments that are
not binding in law but would be deemed binding under some other, compet-
ing, normative order is not very plausible.”338 He further maintains that “once
States (or other relevant actors) have reached agreement, international law will
attach certain legal effects to such agreements … [the parties] cannot choose
whether or not to activate the international legal order.”339 Thus, according to
Klabbers, any agreement which is: (i) not made subject to another system of
law (like domestic law); (ii) is of a normative character in so far as it intends to
influence future behaviour; and (iii) is concluded between States (or interna-
tional organizations), is a treaty or a binding international agreement.340
The debate between Aust and Klabbers is a debate between, respectively,
a career diplomat who practises international law and an international law
academic.341 The former criticizes the latter for not giving adequate weight
to State practice that reveals the regular conclusion of non-legally binding
agreements or understandings,342 whereas the latter asserts that his conclu-
sions are irrespective of State practice and that while he does not deny the ex-
istence of the habit of States to conclude non-legally binding instruments,343
he argues that “it is doubtful whether States can simply conclude treaties and
from foreign office diplomats like Aust), Klabbers came to the conclusion that no modifi-
cations to his theory were required. Ibid., 30.
337 Aust, “Alternatives to Treaty-Making”, 47. What Aust really refers to when he mentions
express provisions as to the instrument’s status, is those statements that sometimes (but
not very often) appear in non-binding agreements explicitly declaring that the principles
or provisions set forth in the instruments “shall not be legally binding.” Ibid., 51.
338 Klabbers, “Not Re-visiting the Concept of Treaty”, 29.
339 Ibid.
340 This formulation reflects Aust’s summary of Klabbers’s thesis. Aust, Modern Treaty Law,
49. The relevant parts of Klabbers’s book where he puts forward these elements are Klab-
bers, Concept of Treaty, 245–250.
341 Klabbers, “Not Re-visiting the Concept of Treaty”, 29 (explaining that the main critics of
his theory are Foreign Office lawyers).
342 Aust, Modern Treaty Law, 50; Klabbers, “Not Re-visiting the Concept of Treaty”, 30 (de-
veloping on the main points of criticism to his theories by, in particular, Foreign Office
lawyers from the United Kingdom).
343 Klabbers, “Not Re-visiting the Concept of Treaty”, 30. See also, Klabbers, Concept of Treaty,
129–131.
nevertheless agree that those treaties are not treaties but something else.”344
Thus, for Klabbers:
[Non-legally binding agreements] are drafted with the same care and
intensity as treaties; they often look like treaties; they are supposed to
have the same effects as treaties (meaning that their contents be given
effect); they are subject to rules which look remarkably like the rules of
the law of treaties; and they must be read and interpreted as if they are
treaties. So why not call them treaties?345
According to Klabbers, his thesis is further reinforced by the jurisprudence of

the icj and, in particular, he has argued that the icj’s jurisdictional decisions
in the Qatar v. Bahrain case, “struck the final death blow to theses holding that,
in one way or another, states can conclude agreements outside the legal order.
Any commitment, the Court held, by definition amounts to a legally binding
commitment.”346
In its July 1994 jurisdictional decision in the Qatar v. Bahrain case, the Court
held that the 1990 Doha Minutes of a diplomatic meeting between Qatar and
Bahrain, facilitated by Saudi Arabia, which were signed by the Foreign Minis-
ters of all three States constituted an international agreement creating rights
and obligations for the parties and, together with a 1987 Exchange of letters be-
tween the parties, were the basis upon which the dispute had been submitted
to the Court by Qatar.347 The Court did not determine the whole jurisdictional
question in this decision, but gave the parties time to agree on the terms of
a joint submission to the Court, and as they failed to reach agreement, in its
February 1995 decision it then decided that it had jurisdiction to entertain the
dispute.348
The 1990 Doha Minutes included a reaffirmation of obligations previously
entered into by the parties, entrusting the King of Saudi Arabia with the task of
attempting to find a solution to the sovereignty and maritime delimitation dis-
pute between Qatar and Bahrain during a period of six months, and they ad-
dressed the circumstances under which the Court could be seized after the end
344 Klabbers, Concept of Treaty, 130.

345 Klabbers, “Not Re-visiting the Concept of Treaty”, 34 (footnotes omitted). See also, Klab-
bers, Concept of Treaty, 130.
rain), Jurisdiction and Admissibility, icj Reports 1994, 112.
348 Ibid., para. 38. Maritime Delimitation and Territorial Questions between Qatar and Bahrain
(Qatar v. Bahrain), Jurisdiction and Admissibility, icj Reports 1995, 6.
660 chapter 9
of that period.349 The Court arrived at the conclusion that the Doha Minutes
were an international agreement by having regard to their actual terms and
to the particular circumstances in which they were concluded and despite
the intentions of the parties, in particular, in spite of the fact that the Foreign
Minister of Bahrain had subsequently indicated that he had not intended to
commit Bahrain to a legally binding agreement when he signed the minutes,
but that he was only prepared (and legally authorized by the Constitution of
Bahrain) to subscribe the statement recording a political understanding.350 On
the intention of the parties the Court stated the following:
The Court does not find it necessary to consider what might have been
the intentions of the Foreign Minister of Bahrain or, for that matter, those
of the Foreign Minister of Qatar. The two Ministers signed a text record-
ing commitments accepted by their Governments, some of which were
to be given immediate application. Having signed such a text, the For-
eign Minister of Bahrain is not in a position subsequently to say that he
intended to subscribe only to a “statement recording a political under-
standing”, and not to an international agreement.351
Klabbers has stated with respect to the 1994 Qatar v. Bahrain jurisdictional de-
cision of the icj:
The Qatar v. Bahrain decision is important for two reasons. First, it un-
equivocally makes clear that any commitment is a legal commitment.
Second, it establishes something of a methodology for ascertaining the
true nature of an international instrument: first and foremost are its ac-
tual terms. If the text of an instrument allows the ascertainment of com-
mitments, then it is a legal text and the discussion is effectively closed. It
is only where the text itself is ambiguous that recourse to other indicators
appears justified.352
349 Qatar and Bahrain Case (Jurisdiction and Admissibility), 1994, para. 25.
351 Ibid., para. 27. The Court also rejected Bahrain’s argument in the sense that the subse-
quent conduct of the parties showed that they never considered the Doha Minutes to be
an international agreement, as evidenced, by Qatar’s late submission of the Doha Min-
utes for registration to the un under article 102 of the Charter. The Court indicated: “Non-
registration or late registration, on the other hand, does not have any consequence for
the actual validity of the agreement, which remains no less binding upon the parties. The
Court therefore cannot infer from the fact that Qatar did not apply for registration of the
1990 Minutes until six months after they were signed that Qatar considered, in December
1990, that those Minutes did not constitute an international agreement.” Ibid., para. 29.
On the icj decision and Klabbers’s comments on it Aust says:
Although the decision was almost certainly a compromise to paper over a

difference of opinion between the judges, given the particular facts of the
case the Court’s decision is not so remarkable. The commitments were
written down, the text recording what the parties had “agreed”. The three
foreign ministers signed the minutes. The form of minutes of a meeting
may have been unusual, but the form – as opposed to the wording – does
not determine whether an instrument is a treaty. The minutes may well
be at the other end of a spectrum which begins with treaties drawn up
in the most formal manner, such as the un Charter. Although it is not for
the Court to speculate as to the intention of the parties, it did what any
court has to do, it inferred their intention from the text of the minutes
and the surrounding circumstances, not from what the parties later as-
serted. The Court had previously approached the matter in various ways,
and it would not be right to conclude that the judgment is a significant
departure from basic treaty principles or practice.353
Beyond the dispute between Aust and Klabbers on the Qatar v. Bahrain de-
cision, M. Fitzmaurice and O. Elias note that a close reading of the decision
shows that the Court did not base its decision on the form of the minutes or
the intention of the parties, but on the specific commitment that the Doha
Minutes contained and the corresponding consent of the parties as to the con-
tent of the obligation at hand.354
Ultimately, the Aust-Klabbers debate does not affect the analysis of the
mou. This is because, for the reasons elaborated below, it is clear that the
mou reflects an intention to establish binding commitments rather than an
intention merely to express or establish political principles or undertakings, or
to agree general policy objectives. Thus, the question whether it is necessary
to attach legal effects to what might otherwise be considered a non-binding
agreement does not arise. In making the determination that the mou is re-
flective of a binding agreement intended to create legal relations, reference
can be made to the judgment of the icj in the Aegean Sea Continental Shelf
case, reiterated in Qatar v. Bahrain. In that decision, the Court found it neces-
sary to look at the “actual terms and to the particular circumstances in which
[an instrument] was drawn up” in order to determine whether it constituted a
353 Aust, Modern Treaty Law, 51–52. Reiterated in Aust’s 2012 publication on the same topic.
Aust, “Alternatives to Treaty-Making”, 67.
354 Fitzmaurice and Elias, Contemporary Issues, 31–32, citing to Qatar and Bahrain Case (Ju-
risdiction and Admissibility), 1994, para. 25 referred to above.
662 chapter 9
binding agreement.355 In line with that reasoning, the following factors should
be taken into account in determining whether the mou constitutes a treaty or
binding international agreement: (i) the language of the mou; (ii) the circum-
stances of its conclusion; and (iii) the subsequent actions of the parties.356
(i) The Language of the mou

The language of the mou evinces that the mou was more than a mere politi-
cal undertaking or a formulation of general statements of principle and policy.
Instead, it was aimed at establishing specific and identifiable rights and obliga-
tions. As indicated by Münch:
[A] legally relevant promise must be formulated with a certain measure

of precision in order to determine, in case of a dispute, to what specific
conduct each party is obligated…. [W]here the aim of the agreed upon
mutual conduct must be achieved by means of an indefinite number
of yet unspecified measures the expediency of which is normally to be
determined at a later point in time, no legally binding obligation arises.
That is the situation with declarations of intent and agreements regard-
ing general policy.357
The legally relevant rights and obligations in the mou are formulated with
a certain measure of precision, namely: the identification of certain delin-
eated areas on the island (noted on an attached map) which Iranian troops
will occupy, and in which Iran is entitled to fly the Iranian flag and exercise
“full jurisdiction”, and other delineated areas in which Sharjah would have
“full jurisdiction” and fly its flag; the recognition by both sides that the island’s
territorial sea would be established as twelve nautical miles; the continued ex-
ploitation of the petroleum resources around the island through an identified
oil company (Buttes Gas and Oil Co.) and the equal distribution of the gov-
ernment revenue attributable to those exploitation activities to each party;
and the granting of rights of fishing in the territorial sea of Abu Musa to both
Iranian and Sharjah nationals.
Notwithstanding the fact that certain of the words used in the mou such as
“will” or “arrangements” have been generally associated to denote something
355 Aegean Sea Continental Shelf case (Greece v. Turkey), Jurisdiction, icj Reports 1978, 3, para.
96. Qatar and Bahrain Case (Jurisdiction and Admissibility), 1994, para. 23.
356 Cf. Chinkin, “A Mirage in the Sand?”, 31; Aust, “Alternatives to Treaty-Making”, 46.
357 Fritz Münch, “Comments on the 1968 Draft convention on the Law of Treaties. Non-
binding Agreements”, ZaöRV Bd 29 (1969) 1, 8–9.
less than a binding instrument,358 these words are used in the mou in com-
bination with generally imperative language and terms such as “agreed” and
“shall” (each on two occasions) and “recognise”, which are further reflective of
its binding character.
Moreover, there is no express statement indicating that the mou does not
constitute a legally binding instrument, as non-binding instruments some-
times contain.359 Even if the omission of such a clause is not definitive as to
the binding character of the mou,360 coupled with the other evidence which
will be described in the following paragraphs, it contributes towards conclud-
ing that the mou was intended by the parties to have a binding character.
(ii) The Circumstances of the Conclusion of the mou

As evidenced from the history of the negotiations between Sharjah and
Iran conducted through the British, the mou was concluded in the midst of
repeated threats by Iran to seize Abu Musa through the use of force. The mou
was, therefore, the written instrument through which the threat or use of force
by Iran was abated, and it is clear that its conclusion was intended to grant Iran
real and tangible benefits (principally a physical presence on the island), not
merely to establish non-binding principles or general expressions of mutual
understanding. Indeed, the mou would not have been acceptable to Iran if its
terms had been limited in such a way. Under such circumstances, the mou can
only be understood as having the aim of establishing binding commitments.
(iii) The Subsequent Behaviour of the Parties

The subsequent actions of the parties can evidence the parties’ original inten-
tions at the time of entering into the agreement, can be construed as deny-
ing the existence of a binding agreement or can constitute actions that are
incapable of altering an already determined legal status.361 In the case of the
mou, the conduct of both Iran and the uae subsequent to its conclusion
cannot be interpreted otherwise than that they both regarded the mou as a
binding instrument. This is apparent not only from the content of each party’s
mutual correspondence and statements before the un Security Council and
General Assembly (in which the uae has indicated that Iran had taken several

359 Ibid., 34–35. Aust, “Alternatives to Treaty-Making”, 51 (indicating that certain non-binding
agreements sometimes explicitly declare that the principles or provisions set forth in the
instruments “shall not be legally binding.”).
360 Cf. Aust, Modern Treaty Law, 35.
361 Chinkin, “A Mirage in the Sand?”, 237–241.
664 chapter 9
easures that constituted “violations” of the mou and that the “mou was still
m
in force”,362 while Iran has expressly stated that it remained “fully committed
to its international obligations, especially those arising from the Agreement of
1971”,363 and insisting that the measures it had taken on the island of Abu Musa
“[did] not contradict the provisions of the 1971 Memorandum of Understand-
ing”),364 but also from their execution of various obligations set out in the mou
itself. Thus, most specifically, Iranian troops did “arrive on Abu Musa” and
“occupy” the areas designated on the map attached to the mou (para 1) wherein
Iran has exercised jurisdiction (para 2(a)), while Sharjah retained jurisdiction
over the rest of the island (para 2(b)); the revenues from the Buttes Gas and
Oil Co. agreement were paid in equal parts to the parties following the mou’s
execution (para 4); and the financial assistance agreement between Iran and
Sharjah was duly signed (para 6). It would not be reasonably possible to inter-
pret conduct of the parties in executing the very terms of the mou as somehow
reflective of a denial by either or both of those parties that the mou contains
binding obligations. On the contrary, such conduct only reinforces the conclu-
sion that the parties considered the mou as a treaty with binding effect.
Although it has no consequences for the binding character of the instru-
ment, it should also be mentioned that the failure of either of the parties to
have submitted the mou for registration to the un under Article 102 of the
Charter365 does not affect its validity or binding character. As the icj stated in
Qatar v. Bahrain:
362 E.g., Letter from the UAE Ministry of Foreign Affairs to the Ministry of Foreign Affairs of
Iran, dated August 21, 2008, un Doc S/2008/577.
363 un Doc. A/50/PV. 19. However, as also reviewed above, in the last couple of years, in par-
ticular since late 2012, Iran has stopped making express mention of the mou and in every
letter that it exchanges with the uae on the dispute as to the sovereignty over Abu Musa,
Greater and Lesser Tunbs, Iran indicates that it does not recognize the existence of a
dispute and that it is only willing to engage in negotiations with the aim of “removing
any misunderstanding that may exist between the two countries” (see, e.g. Letter dated
February 28, 2014 from the Permanent Representative of the Islamic Republic of Iran to
the United Nations addressed to the Secretary-General, un Doc. S/2014/143), or that “may
exist on the part of the uae over Abu Musa island” (Letter dated December 11, 2013 from
the Permanent Representative of the Islamic Republic of Iran to the United Nations ad-
dressed to the Secretary-General, un Doc. A/68/657).
364 See various notes verbales and statements cited supra in note 233.
365 Neither Sharjah (or its successor, the uae) nor Iran registered the mou with the u.n.
under article 102 of the Charter. As such, the text of the mou is drawn from the Ira-
nian Ministry of Foreign Affairs files and academic publications that have included a
copy of the mou and the exchange of letters that constituted the agreement. See, Toye,
Non-registration or late registration … does not have any consequence

for the actual validity of the agreement, which remains no less binding
upon the parties.366
(g) Conclusion
The analysis set out above has determined that (subject to any arguments that
it is null and void ab initio for having been secured under the threat of force by
Iran in violation of international law – discussed below) the mou constitutes a
binding international agreement entered into between Iran and Sharjah prior
to the formation of the uae. For purposes of this work, however, it must also be
determined whether the uae has, pursuant to the principles of State succes-
sion to treaties, succeeded to the mou and is bound by its terms.
Succession of the uae to the International Treaties of Sharjah
State succession, or the “replacement of one State by another in the responsi-

bility for the international relations of territory”,367 can happen in a number
Lower Gulf Islands, Vol. 6, 488–504; Hooshang Amirahmadi, ed., Small Islands, Big Politics.
The Tonbs and Abu Musa in the Gulf (New York: St. Martin’s Press, 1996), 162–175. Both
of these sources have included the letters and the mou as drawn from the Iranian Ar-
chives since at the date of publication of those books, the British Archives were still clas-
sified. However, despite not being registered with the United Nations, in October 2014 the
uae transmitted a copy of the exchange of letters constituting the mou to the Secretary
General of the un as an annex to a letter responding to the Islamic Republic of Iran’s
allegations concerning the islands and requested that the Secretary-General circulate it
as a document of the Security Council. Letter dated October 23, 2014 from the Perma-
nent Representative of the United Arab Emirates to the United Nations addressed to the
Secretary-General, un Doc. S/2014/759. As indicated supra in note 148 and accompany-
ing text, the different sources which have published the mou include additional letters
which were not included in the documents annexed to the uae letter of October 2014.
The documents missing from the October 2014 uae letter are: Letter No. 21284 from the
Iranian Foreign Minister to the British Foreign Secretary dated November 25, 1971 and Let-
ter from the British Foreign Secretary to the Iranian Foreign Minister dated November 26,
1971. Equally, the 2014 uae letter to the un encloses an additional letter from the British
Foreign Secretary to the Ruler of Sharjah dated 26 November 1971 which does not appear
in any other previous publications of the mou. This is the Letter from the British Foreign
Secretary to the Ruler of Sharjah dated November 26, 1971.
366 Qatar and Bahrain Case (Jurisdiction and Admissibility), 1994, para. 29. See also, Aust,
“Alternatives to Treaty-Making”, 52–53.
367 Definition of “succession of States” in Article 1 of the Vienna Convention on Succession of
States in Respect of Treaties (1978).
666 chapter 9
of different circumstances. These include the secession of part of a State to

create a new State,368 the merger of two States,369 the independence of a for-
mer overseas territory from a colonial power or the independence of a former
“protected” State from a “protecting power”, and the formation of a newly in-
dependent State (such as the uae) from two or more States which were pre-
viously under the protection of another State (in this case, the uk).370 In the
absence of agreement of the predecessor and successor States, as well as the
relevant third party States, different general rules – to the extent such rules can
reliably be discerned – may apply to deal with the legal consequences which
the succession in each case may have on any treaties which were in force be-
tween such parties or in relation to the relevant territory on the date of suc-
cession. Thus, the general rule under Article 16 of the 1978 Vienna Convention
on Succession of States in Respect of Treaties (“1978 Vienna Convention” or
“vcssrt”) for instances of State succession which involve the birth of a newly
independent State (defined roughly as a previously “dependent territory” whose
international relations had been, prior to independence, the responsibility of
another State) is that it is held to be freed from any international obligations
(the “tabula rasa”, or clean slate principle). In relation to bilateral treaties, ap-
plication of this principle is qualified through Article 24.1 by stipulating that
those treaties which the newly independent State and the other State party
either “expressly agree” to maintain in effect or maintain in effect “by reason
of their conduct” will remain in force.371 Other instances, such as the merger
of two independent States unburdened by colonial or protectorate status, pre-
sume the continuation by the newly formed State of the international obliga-
tions of each of the predecessor States (the rule of continuity).372
Aust has noted that the rules of customary international law on treaty
succession, including with respect to new States, “are not easy to state, the
circumstances varying widely and the subject being politically charged.”373
368 See, e.g., Eritrea’s separation from Ethiopia in 1993. Gerhard Hafner and Gregor Novak,
“State Succession in Respect of Treaties” in The Oxford Guide to Treaties, ed. Duncan B.
Hollis (Oxford: Oxford University Press, 2012), 396, 406.
369 See e.g., merger in 1958 of Egypt and Syria to form the United Arab Republic (uar), in 1964
Tanganyika and Zanzibar joined to form one State, the United Republic of Tanzania and
in 1990 the Yemen Arab Republic and the State of the People’s Democratic Republic of
Yemen also merged. Hafner and Novak, “State Succession”, 405–406.
370 After the Second World War, more than 100 overseas territories gained independence,
mostly during the main era of decolonization from 1945 to 1980. See Anthony Aust,
Handbook of International Law (Cambridge: Cambridge University Press, 2005), 391.
371 vcssrt, Article 24.
372 Hafner and Novak, “State Succession”, 412.
373 Aust, Handbook of International Law, 394.
He goes on to state that “[a]s far as bilateral treaties are concerned, in practice
much depends on what can be agreed, expressly or tacitly, between the succes-
sor state and third states.”374 Although he views the 1978 Vienna Convention
as “not a reliable guide to such rules of customary law on treaty succession”,
his (and various other scholars’) views on succession to bilateral treaties ap-
pear to be broadly consistent with the relevant provisions of that Conven-
tion, particularly Article 24 which establishes that a newly independent State
will succeed to those bilateral treaties which were in effect over its territory
and which are accepted by that State and the relevant third party State either
“expressly” or “through conduct”. Other scholars, however, view the 1978 Vi-
enna Convention as generally representative of customary international law or
at least as constituting an emerging customary rule.375 Whatever the doctrinal
merits of these contrasting positions, whether applying the applicable provi-
sions of the 1978 Vienna Convention as reflective of customary international
law376 or determining what has been agreed, “expressly or tacitly”, by the uae
and Iran outside of the Convention’s provisions, would lead to the same result,
specifically that the uae succeeded to the rights and obligations of Sharjah un-
der the mou. To frame this analysis, therefore, a review of the relevant articles
of the 1978 Vienna Convention will first be made, followed by an application
of the general principles of succession derived from the Convention and from
generally accepted State practice to the facts of the case.
The Case of “Protectorates”

Before discussing the specific rules of the 1978 Vienna Convention that would
be applicable to the mou, and whether, as a newly independent State, the uae
should be considered to have succeeded to that instrument and be bound by
its terms, it should be noted that no distinct rule was drafted into the 1978
Vienna Convention to address succession of treaties in the case of newly
created States arising from the termination of protectorate arrangements such
as those which were in place with Sharjah and the other Gulf Sheikhdoms.
The inclusion of such a sui generis rule was, in fact, considered by the Special
Rapporteur of the ilc on the topic of succession of States in respect to treaties,
374 Ibid., 395.

375 Hafner and Novak, “State Succession”, 412. Brigitte Stern, “La Succession d’États”, Recueil
des Cours 262 (1996): 9–437.
376 In this respect, it should be noted that neither the uae nor Iran are parties to that Con-
vention and that the uae was formed as a State and would have succeeded to the mou
prior to its entry into force. The application of the 1978 Vienna Convention to the uae’s
succession to the mou would, therefore, have to be based on the Convention’s reflection
of customary international law.
668 chapter 9
Mr. Waldock, who had proposed in his Fifth Report to the ilc a draft article
entitled “Former protected States, trusteeships and other dependencies”.377 In
connection with the consideration of such a rule, the Special Rapporteur ana-
lyzed many instances of former protected States becoming independent and
the practice of those States in dealing with the treaties signed during the dura-
tion of the protectorate.378
In accordance with the proposed draft article, treaties concluded by a pro-
tected State prior to the commencement of the protectorate would continue in
force both during the period of protection and after the end of the protectorate
unless expired or terminated by their own provisions.379 With respect to trea-
ties concluded by the protecting State on behalf of the protected State or in
relation to its territory during the protectorate, the Special Rapporteur noted
that former protected States held divergent views as to whether they should be
bound by such treaties and that, in order to discern which of those treaties it
might be legitimate to consider as treaties of the protected State itself, a sepa-
rate examination of the circumstances in which each treaty was concluded or
applied would have to be carried out, which presented difficulties.380 In light
of these difficulties, it was proposed that the general rule concerning newly
independent States (i.e., the tabula rasa principle) should also apply to States
which had previously been subject to protectorate arrangements, except for
treaties to which the protected State had become a party “in its own name
and by its own will” during the period of protection, which would continue in
force.381
377 ybilc, Vol. ii (1972), 3–10. The text of the draft article read: “Article 18 – Former protected
States, trusteeships and other dependencies. 1. Where the succession has occurred in
respect of a former protected State, Trusteeship, or other dependent territory, the rules
set out in the present draft articles apply subject to the provisions of paragraph 2. 2. Un-
less terminated or suspended in conformity with its own provisions or with the general
rules of international law: (a) A treaty to which a State was a party prior to its becoming a
protected State continues in force with respect to that State; (b) A treaty to which a State,
when a protected State, became a party in its own name and by its own will continues in
force with respect to that State after its attainment of independence.”
378 Ibid. However, with respect to the Gulf States, Waldock specifically indicated that given
that their independence was very recent, their position with regard to treaties was not
yet apparent but that they had not “entered into any devolution agreement or made any
declaration.” Ibid., 8.
379 Ibid., 9.
380 Ibid., 9–10.
381 Ibid., 3–10.
As noted above, and for various reasons (including difficulties in applica-

tion, some inconsistent State practice and the practical irrelevance of the
problem for the future382) such a draft article was ultimately not included
in the 1978 Vienna Convention. Instead, the ilc concluded that rules related
to the succession to treaties by a new State emerging from a protectorate ar-
rangement were to be subsumed under the rules of State succession for “newly
independent states” more generally.383 Thus, notwithstanding the ilc’s ac-
knowledgement that “in the traditional law of succession of States, protected
States have in some degree been distinguished from other dependencies of a
State”, particularly in having maintained a separate legal personality, the ilc
did not think that the codification of the law of succession of States needed or
should provide separately for the case of protected States.384
Newly Independent States

A “newly independent State” is defined in the 1978 Vienna Convention as “a
successor State the territory of which immediately before the date of the suc-
cession of States was a dependent territory for the international relations of
which the predecessor State was responsible.”385 In this definition, the “pre-
decessor State” refers to the State which, prior to independence, had “the
responsibility for the international relations of [the] territory” of the newly
independent State. Recalling in particular the first provision of the Exclusive
Agreements between Britain and Sharjah (as well as the other Gulf Sheikh-
doms), which stated that the Ruler would “on no account enter into any agree-
ment or correspondence with any Power other than the British Government”,
the definition of a newly independent State thus encompasses those States such
as Sharjah which were, prior to independence, under protectorate arrange-
ments in the form of the Exclusive Agreements. The main principle adopted in
terms of treaty succession by a “newly independent State” is that of the clean-
slate rule, set out in article 16 of the 1978 Vienna Convention. This translates
into the newly independent State “not [being] bound to maintain in force, or
to become a party to, any treaty by reason only of the fact that at the date of the
382 Crawford, Creation of States, 309. See also, International Law Commission, “Draft Articles
on Succession of States in respect of Treaties with commentaries”, Yearbook of the Inter-
national Law Commission, vol. ii (1974) Part One, 176.
383 ybilc, Vol. ii (1974), 176.
384 Ibid.
385 vcssrt, Article 2.1 (f).
670 chapter 9
succession of States the treaty was in force in respect of the territory to which
the succession of States relates.”386
Thus, with respect to bilateral treaties, the 1978 Vienna Convention stipu-
lates that their continuation in force as between the newly independent State
and the “other State party” is a matter of agreement, express or tacit, between
those parties.387 This rule is expressed under Article 24.1 of the 1978 Vienna
Convention in the following terms:
24.1 A bilateral treaty which at the date of a succession of States was in

force in respect of the territory to which the succession of States relates
is considered as being in force between a newly independent State and
the other party when:
(a) they expressly so agree; or
(b) by reasons of their conduct they are to be considered as having so
agreed.
Under article 30 of the 1978 Vienna Convention, both the general clean slate
rule reflected in article 16 and the specific rule related to bilateral treaties set
out in article 24.1 also apply to cases of newly independent States which are
formed from two or more previously dependent territories.388 This situation
must be contrasted to the case of the union or merger of two or more already
existing fully independent States to form a new State, which is governed by
article 31 of the 1978 Convention and is subject to the general rule of continuity
of the obligations of the predecessor State in the successor State.389
It should also be borne in mind that the classification in the law of suc-
cession with respect to treaties between a “newly independent State” created
386 Ibid., Article 16. In the case of multilateral treaties, this principle is coupled with the
choice given to new States to become parties to such treaties entered into by the prede-
cessor State thorough the facility of issuing notifications of succession. Ibid., Article 17.
See Malcolm N. Shaw, International Law, 6th ed. (Cambridge: Cambridge University Press,
2008), 978–979.
387 Shaw, International Law, 979.
388 vcssrt, Article 30 is entitled “Newly independent States formed from two or more
territories”.
389 vcssrt, Article 31 stipulates that treaties in force continue in effect unless: “(a) the suc-
cessor State and the other State party or States parties otherwise agree; or (b) it appears
from the treaty or is otherwise established that the application of the treaty in respect of
the successor State would be incompatible with the object and purposes of the treaty or
would radically change the conditions for its operation.”
from one or more previously dependent territories (including ex-protected

States) to which the clean slate rule applies and a “new State” created from
two or more previously existing and independent States to which the principle
of continuity applies was conceived from the point of view of whether the
successor State had a right (applied to newly independent States) or an obliga-
tion (applied to previously independent States) of considering itself a party to
the treaties of the predecessor State after succession.390 The ilc’s Special Rap-
porteur concluded that the general rule regarding newly independent States
should be applied to ex-protected States despite these being regarded as hav-
ing a measure of separate personality to allow these States to have the right
and not the obligation to continue all of the treaties that had been extended to
them or their territory by the protecting State.391
Finally, beyond the customary legal rules that exist for different categories
of State succession, some treaties create certain legal regimes that, under the
1978 Vienna Convention, are not affected by State succession.392 These include
boundary treaties (Article 11, 1978 Vienna Convention)393 and so-called “ter-
ritorial”, “dispositive”, “real” or “localized” treaties394 (Article 12, 1978 Vienna
Convention, entitled “Other Territorial Regimes”395). This latter category of
treaties mainly refers to treaties by which a State “grants a right to use terri-
tory, or to restrict its own use of territory, which is intended to attach to ter-
ritory of a foreign State or, alternatively, for the benefit of a group of States or
390 ybilc, vol. ii (1970), 31–32.

391 ybilc, vol. ii (1972), 9–10.
392 Hafner and Novak, “State Succession”, 419.
393 vcssrt, Article 11 provides with respect to boundary regimes: “A succession of States does
not as such affect: (a) a boundary established by a treaty; or (b) obligations and rights
established by a treaty and relating to the regime of a boundary.”
394 ybilc, vol. ii (1974), 196.
395 vcssrt, Article 12: “1. A succession of States does not as such affect: (a) obligations relat-
ing to the use of any territory, or to restrictions upon its use, established by a treaty for
the benefit of any territory of a foreign State and considered as attaching to the territories
in question; (b) rights established by a treaty for the benefit of any territory and relating
to the use, or to restrictions upon the use, of any territory of a foreign State and consid-
ered as attaching to the territories in question….” While confirming that article 12 of the
vcssrt was customary international law, the icj in the Gabčikovo-Nagymaros case held
that the regime on the Danube established by a 1977 treaty between Hungary and Czecho-
slovakia established “a territorial regime within the meaning of Article 12.” Gabčikovo-
Nagymaros Project (Hungary/Slovakia), icj Reports 1997, 7, para. 123. This was so since
“[i]t created rights and obligations ‘attaching to’ the parts of the Danube to which it
relates” and “thus, the Treaty itself could not be affected by a succession of States.” Ibid.
672 chapter 9
of all States generally”.396 The ilc gave as examples of these types of treaties,
those “concerning water rights or navigation on rivers”, treaties providing
for the “neutralization and demilitarization of a particular territory, treaties
according freedom of navigation on international waterways or rivers, treaties
for the equitable use of the water resources of an international river basin”.397
Treaties of a personal or political character, such as military agreements, are
not included in the category of “other territorial regimes” and thus, are usually
affected by a succession of States.398
Application of the Principles of State Succession to the mou

In accordance with the principles on succession set out in the 1978 Vienna
Convention, there appears to be little room for doubt that the uae succeeded
to the mou (assuming it was not void ab initio) and therefore became bound
by its terms, and that Iran, through its conduct, agreed to remain bound by the
MOU following the UAE’s succession to the agreement. The explanation for this
conclusion is as follows:
(i) It is clear that the termination of the protectorate arrangements

established under the several Exclusive Agreements between Brit-
ain and the Sheikhdoms that were to make up the uae, which was
formalized by agreements entered into by the British with each
Sheikhdom on 1 December 1971, occurred in the expectation, in-
deed certainty, that those Sheikhdoms would then at once together
establish the unified State, which in fact took place the next day
upon the signing of the uae Constitution by the Rulers of six of the
Sheikhdoms and the promulgation of their independence on 2 De-
cember 1971.399 Under those circumstances, it appears self-evident
that the uae was “formed from two or more [dependent] territories”
as mentioned in article 30.1 of the 1978 Vienna Convention, with the
396 ybilc, vol. ii (1974), 206. See also, Hafner and Novak, “State Succession”, 420.
397 ybilc, vol. ii (1974), 203, 204.
398 vcssrt, Article 12.3: “The provisions of the present article do not apply to treaty obli-
gations of the predecessor State providing for the establishment of foreign military
bases on the territory to which the succession of States relates.” See also, ybilc, vol. ii
(1974), 203.
399 The seventh Sheikhdom, Ras Al Khaimah, did not adhere to the uae Constitution
until February 1972. See also Jennings and Watts, Oppenheim’s International Law, 274
(note 7), reaching the same conclusion: “As to the Trucial States, their protected status
was terminated contemporaneously with the establishment as a sovereign and indepen-
dent state of the Union of Arab Emirates, of which all the Trucial States (with the excep-
tion of Ras al Khaimah) were members.”
resulting application of the rules on succession (principally article

24.1) described immediately above.
(ii) As such (and as Abu Musa was part of the territory of Sharjah,
which became part of the new State of the uae under the uae
Constitution), under article 24.1 of the 1978 Vienna Convention the
uae would have succeeded to the mou (as it was a “bilateral treaty
which at the date of succession of States was in force in respect of
the territory to which the succession of States relates”) if both the
uae and Iran “expressly so agree” or “by reason of their conduct
they are to be considered as having so agreed.”
(iii) Although Iran and the uae never “expressly agreed” in any single
instrument or statement that they both wished that the mou would
remain in effect between them following the termination of the
protectorate treaties with Britain and the formation of the uae as
a successor State, and notwithstanding the occasionally inconsis-
tent pattern of statements made by the uae with regard to the mou
over the following 45 years,400 a persuasive argument may be made
on the basis of the available evidence that both parties have at
distinct moments agreed through their conduct that the mou re-
mained in effect following the formation of the uae as the succes-
sor State of Sharjah and that the mou constitutes a binding agree-
ment between Iran and the uae. Such evidence includes most
specifically the repeated official statements made by each of their
governments in international fora (most often the un General As-
sembly) or in written statements or notes verbales copied to the
un Secretary General, either specifically confirming its adherence
and commitment to the mou (reflective of numerous statements
made by Iran) or, in the case of statements most commonly made
by the uae, asserting that the other party (Iran) has not fulfilled its
obligations under the mou and protesting incidents of purported
violations of its terms.401 In relation to Iran, these statements also
400 For example, a statement by the uae Foreign Minister, Rashid Abdullah, before the un
General Assembly on 30 September 1992 stated that the mou “lacks equality and justice
as it was imposed by coercion and the threat of force” (General Assembly, 47th Session,
19th plenary session, September 30, 1992, un Doc. A/67/PV.19) while a number of other
formal statements have appeared to recognize the existence and effectiveness of the mou
by protesting Iran’s purported failure to adhere to its terms or by stating outright that the
mou “is still in force and binding”. See, e.g., Letter dated July 14, 2014 from the Perma-
nent Representative of the United Arab Emirates to the United Nations addressed to the
Secretary-General, UN Doc. S/2014/496.
401 See statements and notes verbales cited supra in notes 208–216 and 232–234.
674 chapter 9
include a number in which it seeks to engage the uae in discussions

over the implementation of the mou (typically to discuss “misun-
derstandings” in relation to its provisions) or in which it responds
directly to the uae’s protests or criticisms.402
Further evidence that the uae considers itself to have succeeded
to the mou and that it regards the mou to be in effect with Iran in-
cludes the more elaborate statements made in letters addressed to
the Ministry of Foreign Affairs of Iran in 2008403 and to the un Sec-
retary General in 2014404 and 2016.405 The last two of these letters
state in similar language that the “1971 Memorandum is still in force
and binding, and is the only legal basis for the presence of Iranian
forces in the area allocated to them on the island.” Further docu-
mentary support for the conclusion that the uae regards itself as
having succeeded to the mou may be found in a 1992 statement by
its Federal Supreme Council (the highest governmental body of the
country) during a meeting to discuss the issue of Abu Musa in which
it noted (albeit without mentioning the mou specifically) that the
commitments of each member of the Union before 1971 were to be
treated as commitments of the Union as a whole.406 This position is
consistent with the framework of the uae Constitution, which pro-
vides that the Union shall have exclusive jurisdiction in foreign affairs
(with each Emirate having only the capacity to conclude limited
agreements of a local and administrative nature with neighbouring
States, subject to the consent of the Union) and that enactment of the
402 See statements and notes verbales cited supra in note 233.
date), un Doc. S/2008/577. The letter states that “the Ministry should like to emphasize
that the Memorandum is still in force and that its provisions govern and regulate the pres-
ence of Iranian forces on Abu Musa.”
to the United Nations addressed to the Secretary-General, un Doc. S/2014/496. Among
other points, this letter calls on Iran to “comply scrupulously” with the mou.
405 Letter dated March 14, 2016 from the Permanent Representative of the United Arab Emir-
406 Cited in Mattair, Three uae Occupied Islands, 176 (citing Official Gazette, no. 240, July
1992). It should also be noted that Article 147 of the uae Constitution provides for the
continuance of the obligations of the Emirates in the newly formed Federation: “Nothing
in the a pplication of this Constitution shall affect treaties or agreements concluded by
member Emirates with states or international organisations unless such treaties or agree-
ments are amended or abrogated by agreement between the parties concerned.” Consti-
tution of the United Arab Emirates, December 2, 1976 as subsequently amended.
Constitution would not affect treaties or agreements concluded by

member Emirates with other States.407 Such s tatements by the uae,
reinforcing the view that it has succeeded to the mou, and pro-
testing Iran’s violation of the MOU, have been made with a certain
degree of consistency over many years. By asserting the right to pro-
test Iran’s purported violation of the mou, a logical presumption is
raised that the uae has at least through its conduct, regarded itself
as having succeeded to the mou and that it considers the instru-
ment to have remained in effect. These presumptions are, more-
over, confirmed by the 2008, 2014 and 2016 statements referenced
above. Thus, in view of the positions reflected in these various state-
ments, it appears that both States have, albeit at different times and
in different ways, fulfilled the requirements of article 24.1 of the 1978
Vienna Convention for considering the mou “as being in force” be-
tween them.
(iv) For much the same reasons as stated in (iii) above, the documented
conduct of both Iran and the uae over the years following the con-
clusion of the mou in expressly or tacitly consenting to keeping the
mou in effect between them would appear to fit squarely within what
the Ninth Edition of Oppenheim’s International Law describes as
“a widespread view, reflecting considerable state practice” whereby
“newly independent former dependent territories continue in force
many of the treaties which had previously been extended to them,
although – at least as regards bilateral treaties – this practice may
not so much establish that continuity is required as a matter of law
but rather reflect the consent of the parties, given either expressly
or by conduct, in the interests of stability and continuity of legal
relations.”408
(v) It is also theoretically possible to interpret the application of the
1978 Vienna Convention to the question whether the uae suc-
ceeded to the mou in other ways, but which also lead to the same
result as that reached above.409 Under one theoretical alternative
interpretation, it might be considered that the formation of the
uae was essentially a two-step process, beginning initially with the
407 uae Constitution, Articles 120, 123 and 147.

408 Jennings and Watts, Oppenheim’s International Law, 228–229 (emphasis added).
409 Article 12 (1)(a) of the 1978 Vienna Convention (“Other territorial regimes”) provides that
“a succession of States does not as such affect … obligations relating to the use of any ter-
ritory, or to restrictions upon its use, established by a treaty for the benefit of any territory
of a foreign State and considered as attaching to the territories in question.” A similar
676 chapter 9
emergence of each of the Sheikhdoms as a newly independent State,

which then led to the uniting of the various Sheikhdoms, each as in-
dependent States, into the uae as the successor State. U nder these
circumstances, the rules on succession with respect to the mou
would have initially involved a determination whether, pursuant
to article 24.1, Sharjah, as a newly independent State, and Iran had
in the single day between the time the protectorate treaty was
terminated and the uae was established either expressly agreed or
agreed through conduct to maintain the mou in force. There can
be little doubt that such agreement can be inferred from their both
having signed the instrument only a few days previously and having
abided by its terms, and from neither of them having raised any im-
mediate objections to its effectiveness. Upon the formation of the
uae by the various and now – independent Sheikhdoms (including
Sharjah) on 2 December 1971, the rules on succession of the mou
from Sharjah to the uae would be governed by article 31.1 of the
1978 Vienna Convention. That rule, which applies “when two or
provision relating to the “rights” emanating from such a treaty is established in article 12
(1)(b). While it may be argued that article 12 (1) might apply to the mou as it relates to the
“use of territory” (i.e., Abu Musa) by Iran (and thus was not affected by the succession of
States when the uae was formed), this interpretation is unlikely and does not appear
to be consistent with the intention of the provision. As the ilc noted in its commentar-
ies on the 1978 Vienna Convention, “[t]he evidence does not, however, suggest that this
category of treaties should embrace a very wide range of so-called territorial treaties. On
the contrary, this category seems to be limited to cases where a State by a treaty grants a
right to use territory, or to restrict its own use of territory, which is intended to attach to
territory of a foreign State” (emphasis added). Shaw gives as examples of such territorial
regimes “demilitarized zones, rights of transit, port facilities and other servitudes gener-
ally” (emphasis added). Shaw, International Law, Sixth Edition, 968. This description is
consistent with the examples given by the ilc, which include treaties “concerning water
rights or navigation on rivers”, treaties providing for the “neutralization and demilitariza-
tion of a particular territory, treaties according freedom of navigation on international
waterways or rivers, treaties for the equitable use of the water resources of an interna-
tional river basin”. ybilc, vol. ii (1974), 203, 204. See also the decision of the icj in the
Gabčikovo-Nagymaros Project case, para. 123. The mou can’t be said to “attach” to any ter-
ritory of a foreign State or to be in the nature of a “servitude”. Moreover, article 12 speci-
fies in its paragraph 3 that the article does not apply to treaty obligations related to the
“establishment of foreign military bases”. Although the mou deals with issues beyond the
presence of Iranian military forces on Abu Musa, the arrival of those forces and their oc-
cupation of the island is the predominant feature not only of the text of the mou, but was
also a driving motivation for Iran’s insistence in concluding that instrument.
more States unite and so form one successor State”, provides that
“any treaty in force at the date of the succession of States in respect
of any of them continues in force in respect of the successor State
unless: (a) the successor State and the other State party or States
parties otherwise agree; or (b) it appears from the treaty or is other-
wise established that the application of the treaty in respect of the
successor State would be incompatible with the object and purpose
of the treaty or would radically change the conditions for its opera-
tion.” As neither of these exceptions to the rule of continuity laid
out in article 31.1 applies to the mou (it is certainly not the case
that Iran and the uae have ever “agreed” that the mou should not
be succeeded to by the uae, nor can it be reasonably stated that
such a succession would either be “incompatible” with the mou’s
object and purpose or “radically change” its operation), the result
of applying this two-step succession process would also lead to the
conclusion that the uae succeeded to the mou.
(vi) While there may be more than one methodology for concluding
that the mou was succeeded to by the uae, a further consideration
which reinforces this conclusion relates to the manner in which the
negotiations of the mou were conducted and concluded. Although
the British government conducted those negotiations instead of the
Ruler of Sharjah or his officials (apparently at Iran’s insistence), the
British government did not formally sign the mou but rather acted
as a diplomatic conduit for the exchange of notes between Iran and
Sharjah which constituted the mou. Moreover, the British would
not consent to the mou’s conclusion without the approval of the
Ruler of Sharjah. Thus, Sharjah itself entered into the mou (albeit
under enormous pressure and subject to unambiguous threats),
rather than the British government on its behalf. Although perhaps
not precisely what the Special Rapporteur of the 1978 Vienna Con-
vention contemplated in the draft article he proposed with respect
to protected States, these circumstances are at least close to the ex-
ception to the clean slate rule he suggested under which a newly
independent State which had previously been a protected State
would continue with those treaties to which it had become a party
“in its own name and by its own will”.410
410 See supra note 381 and accompanying text, citing to ybilc, Vol. ii (1972), 9–10.
678 chapter 9
Conclusions on the mou’s Binding Nature and uae Succession

The analysis set out above has determined that the mou constitutes a bind-
ing international agreement or treaty (even if, for the sake of argument, not
necessarily within the scope of application ratione personae of the Vienna
Convention, which is limited to treaties concluded amongst “States”), which
was succeeded to by the uae upon its formation by the several Sheikhdoms
previously under protectorate arrangements with Britain (bringing the mou
under the scope of application ratione personae of the Vienna Convention).
This analysis, however, assumes that the mou is a valid and enforceable inter-
national agreement in the first instance. Such a conclusion is at least question-
able in light of the circumstances in which the mou was secured. As recount-
ed in detail previously in this chapter, there is a clear record of intimidation
and threat of force which the government of Iran applied against Sharjah in
obtaining its consent to the mou. The following section addresses whether
those threats of force were of such a nature and “depravity”411 to have rendered
the mou invalid ab initio under principles of international law.
Is the mou Null and Void Ab Initio for Having Been Procured by the
Threat of Force?
Background and Overview

The account of the negotiations over the mou set out previously in this chapter
reveals the extent to which, particularly during the several months prior to the
conclusion of the agreement, Iran repeatedly made clear its intention to seize
Abu Musa by force at the end of the British protectorate if no agreement could
be reached with the Ruler of Sharjah which accommodated Iran’s demand that
control of the island be transferred to it. Iran made similar threats to the Ruler
of Ras Al Khaimah with respect to the islands of Greater and Lesser Tunb and,
as its Ruler refused to consent to any arrangement with Iran, the Shah carried
out this threat by occupying those islands by force. The action taken on the
Tunbs occurred on the same day that Iranian troops arrived on Abu Musa on
the basis of the mou with Sharjah.
After the mou was concluded, various Arab States questioned its interna-
tional validity on the grounds that Iran pressured the Ruler of Sharjah into
signing it by threatening to take the island by force if no agreement was
reached.412 The uae has, on certain occasions, also publicly referred to the
411 See infra note 419.

mou as having been procured by coercion, including in a statement made to

the un General Assembly in 1992 in which it called the mou “null and void”
on those grounds.413 Twenty years earlier, at the Security Council meeting of
December 9, 1971, the uae representative also made reference to the many
months of continued threats by Iran to seize the three islands by force and pre-
vent the formation of the uae if Sharjah and Ras Al Khaimah did not surrender
sovereignty over them.414 The representative of Iran did not deny that force
was used to seize the Tunbs (instead asserting that it was Iran’s right to recover
them by force as its “sovereign territory”) and, with respect to Abu Musa, he did
not refute the allegations of the uae and other Arab states that Iran had openly
threatened to seize the island by force if no agreement was reached with the
Ruler of Sharjah. Instead, he simply made passing reference to the mou as
reflecting an agreement which he asserted the Ruler of Sharjah had been “sat-
isfied” to sign. Several scholarly works supporting the uae’s position with re-
spect to sovereignty over the islands have also voiced arguments with respect
to the invalidity of the mou based on the allegedly coercive acts of Iran.415
413 See United Arab Emirates Yearbook 1996 (London: Trident Press, 1996), 46–47 (referring
to a statement of the uae Foreign Minister Rashid Abdullah on September 30, 1992
before the un General Assembly indicating that “this Memo was signed under duress
which according to international law makes it null and void.”) The English translation of
the speech delivered at the UN General Assembly as it appears in the official records of
the General Assembly reads: “[T]he Memorandum of Understanding, which, in effect,
lacks equality and justice as it was imposed by coercion and the threat of force.” UN Doc.
A/47/PV.19, 49–50. See also, United Arab Emirates Yearbook 2000/2001 (London: Trident
Press, 2001), 86 (“In the case of Abu Musa, the Ruler of Sharjah was coerced into signing
a memorandum of Understanding (mou) under which Sharjah and Iran instituted an
administrative division of the island. Neither side relinquished their claim to sovereignty,
although the threat of coercion from Iran was in contravention of international law.”).
414 un Doc. S/PV. 1610, paras. 262–274.
415 See, e.g., Al Roken, “Dimensions of the uae–Iran Dispute”, 193–194. (“[A] purely legal ex-
amination of the Memorandum of Understanding shows it to be null and void. This nul-
lification stems from a defect of substance relating to a signatory party (Sharjah), which
signed the Memorandum under duress … [I]t can be seen that the ruler was not acting
of his own free will, and that he signed the Memorandum under an Iranian threat to
use force[.] … Under such threats, the Memorandum of Understanding may be deemed
abrogated as a contradiction of international law, on the basis Article 52 of the Vienna
Convention on the Law of Treaties (1969).”); Mattair, Three Occupied uae Islands, 175 (“The
record clearly shows that Sharjah signed the MoU with Iran under duress, which makes it
an invalid document. In February, June and August 1971, the Shah explicitly threatened to
occupy the islands by force unless a resolution satisfactory to Iran was reached.”).
680 chapter 9
Notwithstanding its occasional condemnation of the mou as having been

secured through the threat of force and therefore invalid, the record re-
veals a number of instances in which the uae government has flatly stated
that it considers the mou to be in force. These instances include letters of
October 2014 and March 2016 addressed to the un Secretary General in which
the permanent representative of the uae to the un stated that the mou was
“still in force” and “binding”.416
These seemingly contradictory positions taken by the uae along with the
well-documented evidence of Iran’s threats to seize the island by force and the
fact that the uae has not officially sought to invalidate the mou on the grounds
that it was secured through the threat of the use of force, are all key consider-
ations in analyzing whether, more than forty five years after the conclusion of
the agreement, it could still be struck down on that basis under international
law. Added to those considerations is another important matter. While the uae
has made several formal statements affirming the mou’s effectiveness, it has
not done so through the medium of “concluding a new agreement of similar
content”.417 This is a relevant factor in light of the widely accepted view that
the only way to resuscitate an international agreement procured through the
threat of force is for the parties to execute a new agreement once the element
of coercion is no longer present. As stated by the ilc:
The Commission further considered that a treaty procured by a threat or

use of force in violation of the principles of the Charter must be charac-
terized as void, rather than as voidable at the instance of the injured party.
The prohibitions on the threat or use of force contained in the Charter
are rules of international law the observance of which is legally a mat-
ter of concern to every State…. If, therefore, the treaty were maintained
in force, it would in effect be by the conclusion of a new treaty and not by
the recognition of the validity of a treaty procured by means contrary to the
most fundamental principles of the Charter of the United Nations.418
The majority position in the ilc was expressed elsewhere as follows:
The majority, however, considered that the threat or use of force to ex-
tort the consent of a State to be bound by a treaty must be considered a
matter of such depravity as to call for complete voidness and not mere
voidability. Once nullified, the subject-matter of such a treaty could be

417 Villiger, Commentary on vclt, 647. See infra note 489 and accompanying text.
418 ybilc, vol. ii (1966), 247 (emphasis added).
revived only by means of another treaty freely entered into when all the
parties are once again on an equal footing with regard to treaty-making.419
These and other similar commentaries were made with reference to arti-
cles 51420 and 52 of the vclt, which articulate the two forms that coercion as a
vitiating factor of consent to conclude treaties can take.
Article 51 provides that coercion directed against the representative
of a State will invalidate a treaty: “The expression of a State’s consent to be
bound by a treaty which has been procured by the coercion of its represen-
tative through acts or threats directed against him shall be without any legal
effect.”421
Article 52 provides that coercion of a State by the threat or use of force
against it will invalidate a treaty: “A treaty is void if its conclusion has been
procured by the threat or use of force in violation of the principles of interna-
tional law embodied in the Charter of the United Nations.”422
As is apparent from the wording of each of these articles (“shall be without
any legal effect” and “is void”), both categories of coercion constitute grounds
for absolute invalidity of a treaty.423 Moreover, both of these provisions have
been found to reflect customary international law, thus “binding upon States
even in the absence of any ratification” of the vclt.424 The core meaning of
article 52 was summed up by the icj in the Fisheries Jurisdiction case as follows:
419 Taslim Olawale Elias, “Problems Concerning the Validity of Treaties”, Recueil des Cours 134
(1971): 333–416, 382 (emphasis in original).
420 Distefano notes that, in relation to article 51, “the State-victim – if we may call it that –
may not subsequently approve a treaty in relation to which it had previously been tied to
by an act of its representative performed under coercion. …Analogously, the same State,
as well as any State party or State that participated in the negotiation, never loses its right
to invoke the invalidity of an international treaty, which is to say there is no time limit for
making such a claim. However, as Mr Yaseen rightly pointed out, ‘[i]f the State considered
that the treaty might be to its interests, it could always conclude a fresh treaty similar to the
one procured by coercion.’” (emphasis added). Distefano, “Art. 51”, 1969 “Vienna Conven-
tion” in The Vienna Conventions on the Law of Treaties, eds. Olivier Corten and Pierre Klein
(Oxford: Oxford University Press, 2011), 1197.
421 vclt, Article 51.
423 See generally, Distefano, “Art. 51”; Olivier Corten, “Art. 52 1969 Vienna Convention” in The
Vienna Conventions on the Law of Treaties, eds. Olivier Corten and Pierre Klein (Oxford:
Oxford University Press, 2011). See also, Jan Klabbers, “The Validity and Invalidity of Trea-
ties” in The Oxford Guide to Treaties, ed. Duncan B. Hollis (Oxford: Oxford University
Press, 2012), 567.
424 The ilc itself in its commentaries to the Draft Articles on the Law of Treaties had in-
dicated that “[t]here is a general agreement that acts of coercion or threats applied
682 chapter 9
There can be little doubt, as is implied in the Charter of the United

Nations and recognized in Article 52 of the Vienna Convention on the
Law of Treaties, that under contemporary international law an agree-
ment concluded under the threat of force is void.425
Notwithstanding the existence of two independent grounds for asserting the

invalidity of treaties based on coercion,426 it is clear that there is some overlap
between the two, in particular when there is a threat to use force,427 and that
both forms of coercion can also sometimes be combined.428
Concerning article 51 and the consequence of coercion on the representative
of a State, the ratio juris of this ground for invalidating a treaty has traditionally
rested on the theory of representation, i.e., the State, as an abstract entity can
only express its own will through physical persons who represent it.429 Thus,
if a State representative is “coerced [in his personal capacity] into accepting a
treaty, the treaty [is] not a manifestation of the consent, properly understood,
to individuals with respect to their own persons or in their personal capacity in order to
rocure the signature, ratification, acceptance or approval of a treaty will unquestionably
p
invalidate the consent so procured” and that it considered that “the invalidity of a treaty
procured by the illegal threat or use of force is a principle which is lex lata in the interna-
tional law of today.” ybilc, vol. ii (1966), 245–246 (emphasis in original). Dubai-Sharjah
Border Arbitration, 569 (“vclt, Art. 51 and 52 reflect … customary international law which
are binding upon States even in the absence of any ratification of that Convention.”).
The icj in the Fisheries Jurisdiction case recognized that vclt, Art. 52 was a codification
of customary international law. Fisheries Jurisdiction (United Kingdom v. Iceland), icj
Reports 1973, 3, para. 24. Distefano, “Art. 51”, 1185.
425 Fisheries Jurisdiction (United Kingdom v. Iceland), icj Reports 1973, 3, para. 24.
426 Until the Charter of the United Nations, given that recourse to force in international
relations was admissible, consent obtained in pursuance of using force against a State
as a means of compulsion to sign a treaty was not tainted with invalidity. Only violence
against a State representative (and not against the State) was considered as a ground for
nullifying a treaty. See Jennings and Watts, Oppenheim’s International Law, 1290; Diste-
fano, “Art. 51”, 1181–1182.
427 During the early debates in the ilc, Mr. Verdross (one of the members of the ilc) indi-
cated: “If an organ of a State had acted under physical duress, or if a State was the victim
of aggression, matters were clear enough; but the two forms of coercion were virtually
indistinguishable where there was merely a threat to use force. The representative of a
State might be threatened with reprisals against himself or his family and simultaneously
with disaster to his country, or he might be promised personal gain while his country was
simultaneously threatened with bombardment.” ybilc, vol. 1 (1963), 50.
428 ybilc, vol. ii (1966), 246.
429 Distefano, “Art. 51”, 1183–1184.
of the State.”430 The coercive act “must induce fear [on the representative
himself] which becomes the motivating factor behind the conclusion of the
treaty”.431 The “personal interests” of the representative must be at stake rather
than threats against the State itself communicated through the representative
(which would be addressed more obviously by article 52), and although it is
disputed among commentators whether both moral and physical violence are
contemplated by article 51,432 the coercive act “inducing fear” must “affect the
private sphere of the individual-organ: his life, his affections, his patrimony,
the lives of others that are dear to him, his reputation, his dignity, his career,
etc.”433 Moreover, there must be “precise proof” of “a causal link between the
coercion and the consent: the State representative must have been forced to
sign or ratify a treaty which he or she would never have done in the absence of
such threats.”434 The ilc and commentators have given examples of treaties
the signature or ratification of which has been procured by coercion on the
negotiators of a State or members of legislatures, the most notorious of which
is the coercion exercised against the President of Czechoslovakia by Germany
in 1939 in order to procure the conclusion of a treaty creating a German protec-
torate over Bohemia and Moravia.435
As for article 52, it is essentially conceived as a sanction for the commission
of an illegal act rather than only a defect in expressing consent to conclude a
430 Ibid., 1183.

432 Distefano, “Art. 51”, 1192–1194 (concentrating on the fact that the travaux préparatoires
of article 51 focus on the concept of fear to conclude that “only moral violence may be
invoked” in applying that article and stating that if a treaty is concluded by a State repre-
sentative under a form of physical violence, this will be a cause for non-existence of the
act); Villiger, Commentary on vclt, 633 (reading Article 51 as including “physical force or
moral pressure of different kinds (including blackmail) directed against a State represen-
tative … or close persons (e.g., family members)”).
433 Distefano, “Art. 51”, 1191–1192.
434 Villiger, Commentary on vclt, 633–634.
435 See ybilc, vol. ii (1966), 245–246; Distefano, “Art. 51”, 1185–1189; Jennings and Watts, Op-
penheim’s International Law, 1290–1291. Concerning the coercion exercised against the
President of Czechoslovakia by Germany in 1939 in order to procure the conclusion of
a treaty creating a German protectorate over Bohemia and Moravia, Hitler had made
threats directed against the person of the President of Czechoslovakia and its Foreign
Minister, who “had been locked up without food and subjected to constant threats until
they signed”. ybilc, vol. i (1966), Part ii, 308, para. 22 (Sir Humphrey Waldock). Because
Hitler had also threatened to bomb Prague, this case is seen as an example of both types
of coercion. Distefano, “Art. 51”, n. 42. Oliver Dörr and Kirsten Schmalenbach eds., Vienna
Convention on the Law of Treaties: A Commentary (Berlin: Springer Science & Business
Media, 2011), 865–866.
684 chapter 9
treaty.436 Dörr and Schmalenbach have described the “object and purpose” of
article 52 as being twofold:
[T]he provision aims at safeguarding the principle of free consent and

preventing the coercing party from extracting contractual advantages
from the unlawful use of force.437
Sanctioning with invalidity a treaty procured by the illegal threat or use of

force is an expression of the general principle of law ex injuria jus non oritur.438
Conversely, if a treaty is procured by a legal use or threat of force, not in v iolation
of the principles of international law embodied in the un Charter, then the
invalidity of the treaty will not be at stake.439 Under article 52, which follows in
436 Corten, “Art. 52”, 1202. Several instances of treaties procured by the threat or use of force
have been alleged in State practice but there has never been an international tribunal
which has declared a treaty void on this basis. Cf. Serena Forlati, “Coercion as a Ground
Affecting the Validity of Peace Treaties” in The Law of Treaties Beyond the Vienna Conven-
tion, ed. Enzo Cannizzaro (Oxford: Oxford University Press, 2011), 321. International cases
in which force against the State has been adduced as procuring the consent to be bound
by a treaty concerned acts that took place before the prohibition of the threat or use of
force became a positive norm of international law (e.g., the icj in the Territorial and Mari-
time Dispute between Nicaragua and Colombia appeared to assume (without expressly ad-
dressing it) that the coercion alleged by Nicaragua as vitiating its consent to be bound by
a 1928 bilateral treaty with Colombia was not prohibited at the time. Case Concerning the
Territorial and Maritime Dispute (Nicaragua v. Colombia), icj Reports 2007, paras. 79–80).
Cf. Forlati, “Coercion as a Ground”, 323; Sarah Heathcote and Marcelo Kohen, “Art. 45 1969
Vienna Convention” in The Vienna Conventions on the Law of Treaties, eds. Olivier Corten
and Pierre Klein (Oxford: Oxford University Press, 2011), 1075, n. 47. In other cases claimed
after 1945, alleged coercion was not held to qualify as a threat or use of force under the
Charter (either in terms of their scope or their lack of proof) and thus outside the scope
of article 52 of the vclt. E.g., in the Dubai-Sharjah Border Arbitration, the Ruler of Dubai
argued that he had been coerced by the British to give his consent to the British deciding
on the boundary with Sharjah but the arbitral tribunal concluded that no concrete evi-
dence of such coercion had been produced. Dubai-Sharjah Border Arbitration, 569. There
have, however, been a few instances in which national courts have assessed the invalidity
of treaties on the ground of coercion. Benedetto Conforti and Angelo Labella, “Invalidity
and Termination of Treaties: The Role of National Courts”, European Journal of Interna-
tional Law 1 (1990): 44–66, 51 (giving examples of these cases).
437 Dörr and Schmalenbach, Vienna Convention, 881 (Art. 52, mn 1–4).
438 Corten, “Art. 52”, 1202. See also, Forlati, “Coercion as a Ground”, 320.
439 This includes peace treaties imposed by a State that acted in self-defense against an
aggressor State or when recourse to force is decided by the Security Council acting un-
der Chapter vii of the Charter. Corten, “Art. 52”, 1211; Villiger, Commentary on vclt, 657;
Forlati, “Coercion as a Ground”, 321. See also vclt, Article 75.
this respect article 2.4 of the un Charter, the threat of force is treated as being
equally grave to the actual use of force.440 In order for a threat to use force to
be illegal and produce its coercive effects, it must be “proffered by one State
against another in a specific situation; it does not relate to a general or vague
threat” and “the threat must be clearly established, an uncertain threat does
not come within the ambit of this prohibition.”441 These principles indicate
that the criteria to be used on a case by case basis to assess whether there has
been a threat to use force in violation of article 2.4 of the un Charter include:
(i) acts or declarations containing threats having been advanced by the highest
authorities of the State; (ii) that the threat has been effectively communicated
to the other State; and (iii) that the threat has a certain degree of credibility,
which involves having the military capacity for the threat to be translated into
action with certain immediacy.442 As in the case of article 51, there must also
be specific evidence of the alleged threats to use force, as well as evidence of a
“direct causal relationship between coercion and the conclusion of the treaty,
i.e., the treaty would not have been concluded if there had not been a threat or
use of force”.443 The most relevant evidence of this “causal relationship” relates
to “the behaviour of the States during the treaty-making process”.444
With this background, it is apparent that determining whether a case could
be made that the mou is still subject to being struck down on the basis that it
was procured by coercion or the threat to use force would require an analysis
of a number of key issues:
(i) Whether an assertion that the mou was procured by coercion or

the threat of force should in principle be pursued under article 51 or
article 52 of the vclt;
(ii) Whether the threat to use force made by Iran was legal by virtue of
having some foundation under international law and which would
result in the non-applicability of article 52;
(iii) Whether there is precise and specific evidence that Iran made cred-
ible and serious threats to use force to seize control of Abu Musa,
440 Dörr and Schmalenbach, Vienna Convention, 886 (Art. 52, mn 33). Brownlie has defined
“threat to use force” as “consist[ing] in an express or implied promise by a government of
a resort to force conditional on non acceptance of certain demands of that government”.
Ian Brownlie, International Law and the Use of Force by States (Oxford: Clarendon Press,
1963), 364–365.
441 Olivier Corten, The Law Against War: The Prohibition on the Use of Force in Contemporary
International Law, (London: Bloomsbury Publishing, 2010), 94, 108–110.
442 Ibid.
444 Ibid., 646.
686 chapter 9
and whether such threats were of the sort which, prima facie, could
invalidate the mou under either article 51 or article 52 of the vclt;
(iv) If so, whether the evidence also supports the conclusion that there
was a direct causal link between such threats and the conclusion of
the mou by the Ruler of Sharjah, i.e., whether the mou would not
have been concluded if such threats had not been made; and
(v) Whether the uae has lost its right to invoke the invalidity of the
mou pursuant to articles 51 or 52 of the vclt by having issued a
number of formal and unambiguous statements expressing the
position that the mou is binding and in force, or for any other
reason, including the passage of time.
Article 51 or 52?
Although the potential consequences of procuring a treaty through an exercise
of coercion against a State representative under article 51 or through the threat
of force against the State itself under article 52 are the same for practical pur-
poses – i.e., the absolute invalidity of the treaty – it is of course important to
determine whether the established evidence points to one route or the other
(or perhaps both) in order to set out the logical and legal basis of the claim and
to determine whether the evidence supports the assertions made. In his com-
mentary to article 51 of the vclt, Distefano mentions the mou as an example
of a treaty procured through coercion exercised against a State representative:
One may also recall the coercion exerted against the Emir of Sharjah,
Sheik Khalid M. Al-Qasimi, head of state of the homonymous Emirates
in order to make him accept a treaty (‘Memorandum of Understanding’)
concluded in Tehran with the Iranian government on 29 November 1971.
According to the terms of this treaty, the Emir of Sharjah authorized the
establishment of Iranian troops on the Abu Musa islands – over which
there had already been a violent disagreement over its territorial sover-
eignty. The Arab League, as well as the United Arab Emirates, has since
invoked coercion against the Emir of Sharjah as the ground for voiding
the treaty of November 1971.445
Other scholars refer to the conclusion of the mou as a case of coercion on

the State, which would fall under article 52 of the vclt.446 Distefano d isagrees
445 Distefano, “Art. 51”, 1188–1189.

446 Ibid. Amongst the authors that maintain that the coercion exercised on the Ruler of
Sharjah falls under Article 52 of the vclt see Al-Baharna, Arabian Gulf States, 345–347;
with this view and further indicates that authors who take that position
“grossly misinterpreted the legal situation”.447 Still other scholars, in particular
those who support the Iranian claims over the islands, dispute that the mou
was procured by any type of coercion.448 In doing so, these authors, in particu-
lar Mojtahed-Zadeh, point to the “cordiality” with which the arriving Iranian
forces were received by the Sharjah officials on Abu Musa and the “exchange
of quid pro quo” between the parties, including the financial and economic
assistance that Sharjah received from Iran under the mou.449 Whether such
arguments are well-founded and whether the evidence supports a claim of
coercion sufficient to make out a claim under either article 51 or 52 of the vclt
is discussed later in this chapter.
As for the question whether, in principle, a claim to invalidate the mou
would more properly be targeted at article 51 or article 52, the particular cir-
cumstances of the case indicate that both of such provisions might apply, but
that article 52 appears more naturally applicable to the circumstances. As
noted previously in this chapter, the threats which were made by Iran against
Sharjah were clearly and most specifically focused on Iran’s threat to seize Abu
Musa through armed force if certain Iranian demands were not met, and in so
doing deprive the Sheikhdom not only of the island’s territory but also of the
economic benefits derived from it, most importantly the oil resources in the
seabed of its territorial sea, but also any other mining and fishing resources
which had been associated with the island. Following one of his meetings with
the Shah, Sir William Luce described the “choice” faced by the Ruler of Shar-
jah as “accepting the [Iranian] proposals in principle or losing his island, and
everything that went with it, in the near future.”450 At virtually the same time,
the Shah gave the same message directly to the Ruler of Sharjah, reportedly
stating that “he would seize Abu Musa if no settlement were reached.” The
threat embodied in this “choice” clearly reflects the threat to use force against
the State (and not the Ruler personally) in order to “procure” the Ruler’s con-
sent to the mou, and thus brings article 52 squarely into play.
With respect to a hypothetical claim to invalidate the mou under article 52,
it might also be added that in addition to the specific threats which were made
Al Roken, “Dimensions of the uae–Iran Dispute”, 193–194; Mattair, Three Occupied uae
Islands, 175.
447 Distefano, “Art. 51”, 1189, n. 59, referring to the extensive work conducted by Mattair, Three
Occupied uae Islands, 175.
448 See, e.g., Mojtahed-Zadeh, “Perspectives”, 60–61.
449 Ibid., 60.
450 fo 1016/913, Confidential telegram (Following from Luce), dated September 8, 1971.
688 chapter 9
to use force to seize Abu Musa if Sharjah refused to reach agreement, Iran also
made threats to attack and destroy the Union of Arab Emirates or to prevent
the political formation of the Union altogether.451 Although these threats are
documented as having been issued from the highest levels of the Iranian gov-
ernment and were clearly communicated to the Ruler of Sharjah in order to
pressure him to agree terms with Iran, they were not as clearly defined as the
Iranian threat to militarily seize the island of Abu Musa and expel the Sharjah
administrative apparatus there. In contrast to the very specific evidence relat-
ed to the threat of armed seizure aimed against Abu Musa itself, the evidence
related to these broader threats does not specify how they were to be carried
out or in what manner Iran intended to “sabotage” the formation of the uae
as a new State. For that reason, such threats might be considered somewhat
“vague” or “generalized”, and thus not capable of establishing a basis for the
application of article 52. Whatever the merits of such an argument, it would
not be necessary to assert it as an independent basis for a claim of invalidity
under article 52 given the far more specific and clearly established basis which,
in principle, exists with respect to the threats which were made to seize Abu
Musa itself by force.
While the threat to use force to seize Abu Musa which was directed by Iran
against Sharjah in order to procure its agreement to the mou seems to pro-
vide a clear basis in principle for applying article 52, constructing an argument
under which article 51 might be considered applicable is also possible, but less
clear. Such an argument would, it appears, be based on the role played by the
Ruler of Sharjah as his own chief representative in the negotiations over the
fate of Abu Musa and the fact that the territory of the island and the economic
benefits derived from it which Iran threatened to take away were to a certain
extent considered to be his family’s personal property. Thus, the threats by Iran
to seize the island and “everything that went with it” unless its demands were
met also may be said to have put the Ruler’s personal interests at stake. While
bringing a claim of coercion under article 51 on such a basis might therefore
be plausible, the evidence related to the events which preceded the signing
of the mou by the Ruler of Sharjah do not suggest that Iran made any physi-
cal or other personal threat to the Ruler himself nor appear to indicate that
“the motivating factor” behind his agreement to conclude the mou was the
“fear” of prejudicing his personal interests or “the private sphere of the indi-
vidual”.452 Rather, the threats that the evidence suggests primarily motivated
the Ruler to consent to the mou were the threats by Iran to use force to seize

452 See Distefano, “Art. 51”, 1191–1192.
Abu Musa and bring about the occupation of part of Sharjah’s territory. Thus,
although it is possible to speculate that the Ruler may have feared losing part
of his personal patrimony unless he agreed to the demands of Iran, there is no
specific evidence to support such speculation. Therefore, the foundation of the
argument for invalidity raised under article 52, with respect to which no specu-
lative assumptions must be made as the threats by Iran to use force are clearly
established in the evidence, must be considered to be significantly more viable
than the arguments required to make out a claim under article 51.
Illegality of the Threat to Use Force

It has been concluded in chapter 8 and in this chapter that Abu Musa constitut-
ed territory belonging to Sharjah since at least the latter half of the nineteenth
century and up until the moment when the mou was entered into in Novem-
ber 1971, and that no lawful claim to the island by Iran prior to signing the mou
can be established on the available evidence. The threats by Iran to seize the
island by force that were made prior to signing the mou had, therefore, no
legal basis whatsoever.453 On the contrary, those threats must be considered in
principle to have been a breach of article 2.4 of the un Charter, which provides
that “[a]ll Members shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the United Na-
tions.”454 Arguing that article 52 should not apply to the threats Iran made to
seize Abu Musa by force on the grounds that they constituted a “legal use or
threat of force” would not therefore be credible.
Evidence of Iranian Coercion and Threats to Use Force

As suggested by the discussion set out in the previous two sections, as well
as the documentary evidence of the history of the events leading to the con-
clusion of the mou reviewed in detail in this chapter, there is overwhelming
evidence in the record that the leadership of Iran made a series of very serious,
specific and credible threats to use military force to seize Abu Musa if Sharjah
refused to accede to certain demands, principally focused on allowing Iranian
forces to establish possession and control of the island. There was no ambigu-
ity to the threats. Given the detailed documentary evidence which is available,
Iran would have great difficulty denying that these threats were made, and
453 As mentioned supra in note 439 and accompanying text, instances in which the use of
force would not be considered to be a breach of the un Charter include when a State acts
in self-defense and when force is authorized by the un Security Council.
454 un Charter, Article 2.4.
690 chapter 9
indeed does not appear to contest that they were. Rather, its arguments have
repeated the mistaken assertion that Abu Musa constituted Iranian territory,
and that presumably any threats to re-establish its control of the island were
therefore legitimate. The analysis set out in this book demonstrates that such
arguments have no credible historical or evidentiary basis.
As for the threats to resort to armed force to seize the island, there can be
little doubt that these threats were of the sort which, prima facie, would pro-
vide a basis for invalidating the mou under article 52 of the vclt, i.e., that they
constituted a threat to use force prohibited under article 2.4 of the un Charter.
While significant debate has occurred around whether article 52 contemplates
the invalidity of treaties procured through the threat of military force alone,
or whether economic or political coercion should also be considered a ground
on which a treaty might be invalidated,455 the merits of that debate are not
relevant to the case of the mou as military force was openly threatened by
Iran. It is not therefore necessary to rely on threats Iran may have made to
assert economic or political pressure against Sharjah or the uae should its de-
mands not be met. A number of criteria have been identified as establishing
that a particular and demonstrable threat to use force falls under the scope
of the prohibition in the un Charter, and thus is contemplated by article 52 of
the vclt.456 In relation to the mou, these factors include the following: (i) that
the threat to use force in seizing Abu Musa had been advanced by the highest
authorities of Iran, including most specifically (and repeatedly) the Shah, as
well as his chief negotiator and foreign minister; (ii) that those threats were
clearly communicated to the Ruler of Sharjah, either through the British gov-
ernment or, on at least one occasion, by the Shah himself; and (iii) that Iran’s
threats were undeniably credible. On this last point, the British government
repeatedly stressed to the Ruler their conviction that there was “no doubt” that
Iran’s threats would be carried out, a conclusion the Ruler himself came to
acknowledge.457 That the British and Sharjah governments were correct in this
assessment was demonstrated by the fact that Iran proved itself willing and
capable of carrying out its threat to take the Tunbs by military force in light of
its Ruler’s refusal to accede to any of Iran’s demands.458
455 See, e.g., Villiger, Commentary on vclt, 644; Dörr and Schmalenbach, Vienna Convention,
883–885.
456 Corten, Law Against War, 94, 108–110.
457 See, e.g., fo 1016/916, Record of Conversation at the Ruler’s Palace, Sharjah, 30 October
1971.
458 As discussed previously in this chapter, many of the British Foreign Office records on
the mou negotiations show that Iran threatened to use force if Sharjah did not agree to
the mou. See, e.g., fo 1016/913, Memorandum attached to Letter from J.F. Walker (hmg’s
Causal Link between the Threats of Force and the Conclusion of the
mou
Although it is undeniable that the Ruler of Sharjah was subjected to credible
and repeated threats by Iran to use armed force to seize the island of Abu
Musa, it remains to be seen whether the conclusion of the mou may properly
be described as having been “procured” by such threats. The need to establish a
causal link between an act of coercion and the conclusion of a treaty has been
Political Agency in Dubai) to the Arabian Department of the Foreign & Commonwealth
Office, August 25, 1971, 537 (“In the face of Sharjah’s peaceable attitude Iran has contin-
ued to utter threats to occupy the island by force on the eve of the withdrawal of British
troops from the Gulf. Now Iran has begun to raise its conditions for solving the problem….
The Shah says that if no agreement is reached concerning the island of Abu Musa on the
above-mentioned basis by the end of 1971, Iran will occupy this island by force after the
withdrawal of British troops from the Gulf.”); fo 1016/914, Memorandum entitled “Britain,
Iran and ‘the Islands’: the Carrot and the Stick” from P. Ramsbotham (British Ambassa-
dor in Tehran) to fco (Sir Alec Douglas-Home), dated September 9, 1971, (“The Shah has
declared publicly, (though recently he has left the field to quiet diplomacy) that he will
exercise his sovereignty and reoccupy the Islands by force if he does not get them peace-
fully.”); fo 1016/914, Telegram from Ramsbotham (British Ambassador in Tehran) to fco,
dated September 21, 1971 (when conveying a message from the Shah to the British, there
is reference to the threat of use of force by Iran if Sharjah does not accept the proposals
by Iran: “[O]nly the Luce/Afshar proposals could satisfy Iran. If Khalid would not accept
them, there were no other proposals which the Shah would consider[;] Iran would then
take Abu Musa by force.”); fo 1016/915, Telegram from Political Agency in Dubai to fco
re: Gulf Islands, dated October 18, 1971, 771 (“Ruler of Sharjah informs me that he (alone
of the Trucial Shaikhs) had, at his own request, a half hour innocuous interview with the
Shah while in Iran. The Shah informed him that he had discussed the islands with Luce
and that if there were no peaceful settlement Iran would seize Abu Musa. Khalid asked
the Shah why he wished to take territory from his brothers.”); fo 1016/915, Telegram from
British Residency in Bahrain to fco Arabian Department, dated October 30, 1971, 810 (“In
February of this year [1971] both the Shah of Iran and his Foreign Minister made public
statements about the Iranian intention to take over the islands, by force i[f] necessary,
after our military withdrawal from the Gulf at the end of 1971. During the same month
there were signs of increased Iranian naval activity around the Greater Tunb, including
the temporary landing of personnel on the island.”); fo 1016/916, Record of Conversation
in the Ruler’s Palace, Sharjah, dated October 27, 1971, 847 (“Shaikh Khalid said that he
had talked to the Shah in Shiraz; the Shah had said nothing new. He had emphasised that
he wanted a peaceful settlement of the problem but had added that he would seize Abu
Musa if no settlement were reached.”); fo 1016/916, Record of Conversation in the Ruler’s
Palace, Sharjah, dated October 30, 1971, 850 (faced with the Ruler’s question, Sir William
Luce indicated that “he had no doubt” that Iran would seize the island if no agreement
was reached and he reiterated that “the choice which faced Shaikh Khalid was between
having a settlement based on the present proposals or leaving the island.”). The same
692 chapter 9
called “the crux of Art 52”.459 In the case of the mou, establishing this causal
link would require demonstrating that Iran’s threat to use armed force created
such pressure on the Ruler of Sharjah to conclude the treaty that his freedom
of choice in the matter may be described as having been inhibited, or at least
that such threats had a decisive influence on his decision to accede to Iran’s de-
mands.460 The nature of the causality between the coercion or threats and the
conclusion of the treaty required by article 52 has also been reduced to the fol-
lowing but for description: “the treaty would not have been concluded if there
had not been a threat or use of force.”461 Others have proposed distinct but
similarly restrictive standards, including that “the State the consent of which
is required had no other choice but to conclude the treaty”462 and, alternatively,
that the coerced state had “been reduced to such a degree of impotence as to
be unable to resist the pressure to become a party to a treaty.”463 Still others,
however, have suggested that the less restrictive standard – that the coercion
threats were given by the Shah to the Ruler of Ras Al Khaimah, evidenced by British For-
eign Office Records. See, e.g., fo 1016/914, Record of conversation at the Ruler´s Palace,
Ras al Khaimah, dated September 7, 1971, 598 (“Sir William emphasised that the Shah
would not budge on the question of sovereignty, and believed that these were virtually
the best terms that it was possible to get from the Iranians; if they were not accepted then
the Shah had said that he would seize the islands once British protection was withdrawn,
and Sir William was convinced that there were not empty words. Sir William added that,
as Shaikh Saqr knew, if the Shah was forced to seize the islands, Ras al Khaimah would get
no financial aid from Iran.”).
459 Dörr and Schmalenbach, Vienna Convention, 880.
460 These are the two sides of the spectrum of the causal link that needs to be established in
order to prove under vclt, Articles 51 and 52 that a treaty has been “procured by” coer-
cion. A narrow interpretation of the causal link, as confirmed in the Aminoil arbitration,
would mean that causality would only be established when the State, as a result of the
threat or use of force, had no other choice than to conclude the treaty, whereas a broader
interpretation of the causal link would translate into being enough to establish a decisive
influence of the coercion, without having to show a total absence of choice by the victim.
There is no uniformity of criterion as to which causal link would apply. Corten, “Art. 52”,
1213; Distefano, “Art. 51”, 1192 (indicating that, like the situation with article 52, it is not nec-
essary “that the coercion is alone in determining the expression of the representative.”);
Dörr and Schmalenbach, Vienna Convention, 880. See also The Government of Kuwait v.
American Independent Oil Company (Aminoil), 21 ilm (1982) 976, para. 44 (“The whole
conduct of the Company shows that the pressure it was under was not of a kind to inhibit
its freedom of choice.”).
462 Corten, “Art. 52”, 1212.
463 Sir Hersch Lauterpacht, Report of 24 March 1953, A/CN.4/63, yilc, 1953, vol. ii, p. 149,
para. 7 (cited in Corten, “Art. 52”, 1212) (emphasis added).
had a decisive influence on the decision of the coerced State to conclude the
treaty – should be sufficient: “The text of Article 52 demands that the conclu-
sion of a treaty ‘has been procured’ – and not has been either ‘exclusively’ or
‘essentially’ procured – by an act of coercion. As a result, the establishment of
a causal link in the broad sense of the expression would seem sufficient.”464 As
noted above, the most relevant evidence of this “causal relationship”, however
it may be defined, relates to “the behaviour of the States during the treaty-
making process”.465
In light of the evidence reviewed in this chapter, the causal link between
the threats made by Iran to use force to seize Abu Musa and the conclusion
of the mou by the Ruler of Sharjah appears to be readily established under
any of the standards articulated above, including those which reflect a more
restrictive interpretation of article 52. Taking each of these briefly in turn:
(a) Would mou Have Been Signed in Absence of Threats?

On the basis of the documentary evidence reviewed above, it cannot seriously
be doubted that the Ruler of Sharjah would not have signed the mou in the
absence of Iran’s threats to use force to seize Abu Musa. If anything, that evi-
dence demonstrates that the only reason he signed the mou was due to the
Iranian threat of armed aggression aimed against the island (and possibly also
due to the threats directed against the Union itself). This would appear self-
evident as prior to implementing the mou Sharjah had held complete and un-
disputed possession of Abu Musa for well over a hundred years and the Ruler
had no reason to desire a loss of sovereignty or control over it nor to engage in
any discussions having such an objective. He did not invite those discussions
or willingly participate in them, rather they were forced on him as a result of
Iran’s demand, transmitted through the British, to take possession of the island
away from Sharjah. Nor was he receptive, for obvious reasons, to the notion of
losing control over Abu Musa under any circumstances. Indeed, the evidence
demonstrates that it was only when the threat by Iran to use force became
truly imminent that the Ruler finally relented. While it is of course not sur-
prising that the Ruler would not have been a willing participant in surrender-
ing part of Sharjah’s territory, it is worth noting that the island had become
an important part of what Sharjah considered to be its sovereign territory. By
1971 Sharjah had an established permanent population on the island, and had
already resisted, under British protection, numerous Iranian attempts to en-
croach on the island’s possession for over 80 years. The Ruler’s own family had
464 Corten, “Art. 52”, 1213.

694 chapter 9
used the island for economic, recreational and other purposes for generations,
and a number of economic activities centered around or on the island were
ongoing. Such economic activities included, most significantly, oil exploration
and production brought about by the signing of the oil concession agreement
with Buttes Gas & Oil Company in 1969, the concession area of which included
the island’s territorial waters. Under these circumstances, it would be bizarre
and misconceived to consider it possible that Sharjah would have signed the
mou, handing over partial control of Abu Musa and its off-shore fishing and
half of its oil reserves to Iran, if Iran had not threatened to use armed force to
seize the island outright.
(b) No Other Choice

The evidence also makes it very clear that the Ruler had “no other choice” but
to concede to Iran’s demands if its threat to resort to force in seizing Abu Musa
was to be avoided. Sir William told the Ruler this in unambiguous terms on sev-
eral occasions in September, October and November 1971 and the Shah himself
had stated the same to the Ruler in person in October 1971. The Ruler’s belief
that he had no other option for avoiding the threatened Iranian aggression
but to agree terms with Iran was in fact recorded in a further meeting with Sir
William at the end of October 1971 in which he told Sir William that “he had
no doubt” that “Iran would seize the island if no agreement was reached.”466
At that same meeting, Sir William had stated that he also had “no doubt about
this” and that “[t]he choice which faced Shaikh Khalid was between having
a settlement based on the present proposals, or losing his island.”467 He also
stated at the same meeting that unless the Ruler agreed to the Shah’s p roposals,
“Iran would seize Abu Musa and Sharjah would lose everything.”468 The events
which occurred in relation to the Tunbs, where Iran proceeded to use mili-
tary force to seize the two islands in light of the refusal of the Ruler of Ras Al
Khaimah to agree any terms with Iran, demonstrates that the Ruler of Sharjah
was not mistaken in believing that Iran would have carried through its threat
to seize Abu Musa by force if an agreement had not been reached.
(c) “Inhibited” Freedom of Choice

In view of the evident conclusion that the Ruler of Sharjah had no choice but
to agree terms with Iran to avoid its threats being put into action and that the
mou would not have been signed in the absence of such threats, it may be
466 fo 1016/916, Record of Conversation at the Ruler’s Palace, Sharjah, 30 October 1971.
467 Ibid.
468 Ibid.
assumed that those threats inhibited or restrained his freedom of choice in

determining whether or not to consent to entering into the agreement with
Iran. Indeed, more than inhibiting his freedom of choice, it seems undoubted
that those threats were likely the only reason he engaged in discussions on the
matter at all and ultimately agreed to Iran’s demands.
(d) Inability to Resist

Lauterpacht’s phraseology that to demonstrate the applicability of article 52
the coerced State would have to show that it had “been reduced to such a de-
gree of impotence as to be unable to resist the pressure to become a party to
a treaty” is particularly apt to the circumstances surrounding the negotiation
and conclusion of the mou. Not only was Iran a formidable political and mili-
tary power with highly modernized armed forces at that time, but the dispute
over Abu Musa had come to the fore due to the imminent departure of Shar-
jah’s protecting power, the British government. Without the protection of the
British government and its armed forces, Sharjah had no ability whatsoever to
resist an armed attack by Iran. The fact that the British themselves had made
it clear to the Ruler of Sharjah that Britain would be unable to defend Sharjah
under such circumstances had certainly further reduced the Ruler’s capacity to
resist such pressure. The “reduced” state in which Sharjah found itself and its
obvious impotence in the face of Iran’s overwhelming strength was reflected
throughout the discussions held over Abu Musa. This was perhaps nowhere
more apparent than in a personal exchange between the Ruler and the Shah
in October 1971 in which the Ruler had openly acknowledged that “he could
not stop the Shah” and that “Iran had been like a big brother to Sharjah…. If
the Shah now took the islands it would be a question of Big Brother taking ad-
vantage of Little Brother.”469 In another revealing exchange, this one between
the Ruler and his own legal adviser in early November, the Ruler was urged to
concede to Iran’s demands on the grounds that “[i]f he refused, he would lose
the island to Iran’s overwhelming force. Neither the United States nor Great
Britain would intervene. There was no likelihood that any Arab country would
fight Iran. He and his people would die proud, but poor.”470
(e) Were Threats “decisive influence” on Conclusion of the Treaty?

The standard reflected in this wording – that Iran’s threat to use force had a
“decisive influence” in bringing about the decision of the Ruler of Sharjah to
469 fo 1016/915, Telegram from the Political Agency in Dubai (Walker) to fco, dated October
24, 1971, 793.
696 chapter 9
agree terms with Iran – is clearly a less restrictive standard than those discussed
above. For obvious reasons, such as the evidence which demonstrates that the
Ruler would not have agreed a treaty at all with Iran if it had not threatened to
seize Abu Musa by force in the absence of agreement, there is little difficulty in
finding that such threats also had a “decisive influence” on the Ruler’s decision
to concede to the Iranian demands.
Existence of Quid Pro Quo Benefits

While applying the various standards discussed above to the conduct of the
parties during the process of negotiating the mou leaves little doubt that, on
its terms, article 52 would serve to invalidate the mou if such a claim were to
be heard, there is a further aspect involved in applying article 52 which must
be also considered. Some authors have posited the suggestion that the causal
link between the coercive act (in our case the threats by Iran to use force to
seize Abu Musa) and the treaty (in our case, the mou) might not be sufficiently
established where the coerced State had “room to negotiate” or “succeeds in
negotiating the coercing state into a compromise”.471 This theory is relevant
to our case as the evidence related to the negotiation of the mou reveals that
its final terms represented a compromise from the demands which Iran had
originally made. Most importantly, the mou allowed Sharjah to retain physical
control over approximately half of Abu Musa and economic control over half
of the revenues derived from oil production in the territorial sea of the island,
both of which Iran had originally intended to seize through outright aggres-
sion if they were not handed over “peacefully”. Moreover, Iran agreed in the
mou to extend to Sharjah a “financial assistance” agreement over a period of
nine years. Finally, Iran also agreed to memorialize the terms of its agreement
with Sharjah in the form of the mou, while its original position, reflected in the
Luce/Afshar Proposals of August 1971, was that none of such matters would be
reduced to writing except the financial assistance agreement.
In analyzing whether these considerations would undermine the applica-
bility of article 52 of the VCLT, it should be noted that any conclusions drawn
from such an analysis involve significant speculation as there is no jurispru-
dence which defines the criteria which would have to be taken into account
in reaching such a result. The authors who have advanced this theory point to
instances of State practice in which treaties – including the accords stemming
from the conference of Rambouillet related to Kosovo or the Lusaka Agree-
ment concerning the Congo – which could have theoretically been challenged
on the basis of article 52, were not challenged. The theory posited is therefore
471 Dörr and Schmalenbach, Vienna Convention, 882; Corten, “Art. 52”, 1213.
that the failure of the “victim” States (i.e., Yugoslavia and the Congo) to chal-
lenge such treaties may have been due to a belief that since both had retained a
“certain freedom of choice” in what became the final terms which were agreed,
“it could be said that the causal link between the illicit coercion and the conclu-
sion of the treaty was not sufficiently established … which could explain why the
extreme measure to nullify the treaties was not taken.”472 Such an hypothesis,
although of theoretical interest, would appear to be too speculative and ill-
defined to apply with any level of certainty as an interpretative guide in rela-
tion to article 52. This is particularly the case where, as with the mou, although
Iran agreed to less than it had originally demanded, its threat to use force was
never retracted and the causal link between those threats and the consent of
Sharjah to conclude the mou remained unambiguously clear.
In this respect, it is important to note that the authors who explore or ref-
erence this hypothesis also acknowledge that it should not serve to defeat
the e stablishment of “causality” between a coercive act and a treaty where
the treaty is “manifestly unbalanced”473 or where “the coercing State’s initial
objectives partly prevail and the coerced States would not have concluded the
compromise but for the force.”474 The same authors note that when assessing
whether the applicability of article 52 should be affected because the coerced
State had “room to negotiate”, “one has to bear in mind that the purpose of
Article 52 is not only to protect the principle of free consent but also to prevent
the coercing State from harvesting the fruits of its aggression.”475
With these observations in mind, one can point to a number of basic r easons
which suggest that this theoretical argument would not overturn the applica-
bility of article 52 to the circumstances in which the mou was concluded:
(a) Perhaps most fundamentally, notwithstanding Iran having moderated

some of its original demands (which were tantamount to a complete
Iranian takeover of Abu Musa) by agreeing that the Sharjah police and
administration would retain jurisdiction over part of the island, the R
uler
of Sharjah still did not concede to Iran’s revised proposals until after
meetings with the British representative at the end of October 1971 in
which he emphatically reiterated to the Ruler that his “choice” was either
to accept Iran’s revised proposal or “lose his island”. Thus, Iran’s modi-
fied demands were not somehow acceptable to the Ruler and a basis on
472 Corten, “Art. 52”, 1219 (emphasis added).

473 Ibid.
474 Dörr and Schmalenbach, Vienna Convention, 882–883.
475 Ibid., 883.
698 chapter 9
which he was prepared to freely and willingly enter into an agreement.

Those demands still resulted in a surrender of Sharjah’s territory and had
to be backed up by a continuing threat of force in order to bring the Ruler
to relent. In the words cited above, causality in terms of article 52 con-
tinues to be established notwithstanding compromise terms where the
coerced State “would not have concluded the compromise treaty but for
the force.”476 This was obviously the case with respect to Sharjah and the
mou notwithstanding the modified demands it contained.
(b) Also of fundamental relevance is that, notwithstanding the retraction of
certain of its original demands, the mou remained a “manifestly unbal-
anced” instrument in which Iran’s “initial objectives” were substantially
achieved. Thus, from holding sole possession of Abu Musa and its ter-
ritorial sea (including the fishing and oil and mineral resources therein),
Sharjah was forced to surrender possession of roughly half of Abu Musa’s
territory (including its militarily significant “high-ground”) and half of
the oil resources of its territorial sea to Iran in order to avoid Iran’s threat-
ened use of force. Iran was also permitted to take (ill-defined) security
measures throughout the island. Therefore, the outcome of the negoti-
ations achieved a significant part of what Iran, as the “coercing State”,
had originally demanded, most importantly the surrender of part of the
island’s territory and the establishment of an Iranian military presence
there.
(c) Following both of the previous points, it cannot be disputed that through
the mou Iran “harvest[ed] the fruits of its aggression” (i.e., the surrender
to it of part of the territory of Abu Musa and the establishment of an
Iranian military presence), the very result that article 52 was designed to
prevent.477
(d) With respect to quid pro quo benefits received by Sharjah in the course
of the negotiations, it must be remembered that most of the compro-
mise terms offered by Iran did not, in fact, represent benefits positively
extended by Iran to Sharjah. Rather, they reflected Iran’s agreement to
seize less of Sharjah’s property and rights. Thus, instead of seizing all of
Abu Musa’s territory, Iran took only half, and instead of seizing all of the oil
resources located in its territorial sea, Iran again took only half. A quid pro
quo is a “reciprocal exchange” or “something given in c ompensation.”478
476 Ibid., 882–883.

477 Ibid., 883.
478 Collins Concise English Dictionary, s.v. “Quid pro quo”, accessed May 30, 2017, https://
www.collinsdictionary.com/dictionary/english/quid-pro-quo.
Neither of these compromise terms represented, in that sense, a quid pro

quo since neither the island’s territory nor its oil resources were Iran’s to
give. In any case, as already noted, notwithstanding Iran’s willingness to
moderate its demands, it is evident that it was only the threatened use of
force by Iran and the obvious consequence of those threats (that “Iran
would seize Abu Musa and Sharjah would lose everything”479) which
persuaded the Ruler of Sharjah to consent to the mou. To this can be
added the point made in (c) above, that however Iran’s moderation of its
original demands is characterized, deeming the mou as a valid agreement
would very clearly allow Iran to harvest the fruits of its illegal aggression.
(e) That leaves for consideration the financial assistance agreement that
Iran extended to Sharjah pursuant to the mou. Under that arrangement,
Sharjah was to receive from Iran two semi-annual payments of a maxi-
mum of £750,000 Sterling each for 9 years, subject to reduction (or elimi-
nation) where Sharjah’s revenues from “commercial exploitation of oil,
gas or mineral deposits on the Island of Abu Musa and beneath its ter-
ritorial waters” exceeded certain limits. It is unclear from the available
written evidence how much financial assistance Sharjah received under
this arrangement. Whatever the case, it would appear to be very difficult
for Iran to argue, even on a theoretical level, that its threatened use of
force to procure the mou should not result in that instrument’s invalid-
ity under article 52 on the basis that the financial assistance agreement
represented a quid pro quo benefit received by Sharjah in exchange for
its surrender of territory and rights, making it a “synallagmatic network
of relatively balanced rights and obligations”.480 For the same reasons
elucidated in subparagraphs (a), (b) and (c) above, a result which legally
sanitized the mou due to the financial assistance agreement would be
inappropriate because: (i) the moderated proposals of Iran which includ-
ed the financial assistance agreement were themselves clearly procured
only through the threat of force; (ii) notwithstanding the financial assis-
tance agreement, under the terms of the mou Iran substantially achieved
its initial unlawful objectives in a “manifestly unbalanced” treaty; and
(iii) allowing the mou to pass as a valid agreement under such circum-
stances would result in Iran “harvest[ing] the fruits of its aggression”, the
very result that article 52 was designed to prevent.
479 fo 1016/916, Comments of Luce to Sheikh Khalid, Ruler of Sharjah, Record of Conversa-
tion at the Ruler’s Palace, Sharjah, 30 October 1971.
480 Corten, “Art. 52”, 1219.
700 chapter 9
To these reasons may be added another consideration. There is simply no evi-

dence that Sharjah considered the financial assistance agreement to represent
a quid pro quo benefit which it was willing or demanded to receive in exchange
for the surrender of the island and its associated rights. The evidence clearly
shows that the financial assistance arrangement was not extended at the insis-
tence or request of Sharjah as part of a negotiated bargain, but that it formed
part of the initial terms under which Iran proposed to take over the island al-
together (the Luce/Afshar Proposals), which the Ruler of Sharjah rejected.481
Moreover, although the financial assistance agreement remained tacked on to
Iran’s various successive proposals (which all had the threat of force looming
over them), the evidence also reveals no significant concern by the Ruler of
Sharjah that his resistance to agreeing terms with Iran might jeopardize his
receipt of that financial assistance. Indeed, there is no evidence that he was
overly concerned about it at all or that it figured in any decisive way in his
decision whether or not to conclude the mou. On the contrary, what the evi-
dence shows is that his overriding concern was “losing the island” and the oil
resources located in its territorial waters if Iran were to carry out its threat of
seizing Abu Musa. As the financial assistance agreement seemed to be of little
relevance to him, its inclusion in the mou cannot therefore be said to have
created a network of “relatively balanced rights and obligations” between the
parties, nor to reflect Sharjah’s “room to negotiate” a quid pro quo benefit in ex-
change for the sacrifices it made under the mou. Thus, elevating it to a reason
for validating an otherwise invalid agreement procured by the threat of force
would reflect a perverse logic at odds with even those who might advocate in
favor of the theoretical proposition that the causal link between a coercive act
and a treaty might be broken where the coerced state “succeeds in negotiating
the coercing state into a compromise” or had “room to negotiate”.482
Loss of the Right to Invoke Invalidity

Having established the causal link between the coercion and the conclusion
of the mou, what remains to be analyzed is whether the fact that Sharjah’s
successor, the uae, has expressly stated on several occasions that the mou is
binding and remains in force means that the uae has lost its right to invoke the
invalidity of the mou under article 52. The orthodox answer to this question
on the basis of widely accepted pronouncements under international law is
481 In fact, the evidence suggests that Iran had originally wished to provide such support
to Sharjah and other emirates in any case as a means of creating a measure of stability,
which Iran viewed as in its national interest.
482 Dörr and Schmalenbach, Vienna Convention, 882; Corten, “Art. 52”, 1213.
that a treaty procured by the threat of force is “void” and not merely “voidable”,
and that it is never possible to cure the vice of coercion by subsequent express
agreement or acquiescence. Such a conclusion is based in the first instance on
the language of article 52 itself:
The terms of Article 52 are clear. A treaty concluded under coercion is

simply “void”; and not “voidable” or “subject to being invalidated”. The
penalty of absolute nullity is perfectly understandable if one recalls
that the provision was intended to be linked to the most fundamental
principles of international law, and that consequently, it expressed a prin-
ciple of “international public order”. Some members of the ilc even con-
sidered that the provision benefitted the international community as a
whole.483
The absolute invalidity of a treaty procured by the threat of force and the
impossibility of curing such invalidity is also supported by the fact that ar-
ticle 45 of the vclt, which sets out the circumstances under which a State
loses the right to invoke the invalidity of a treaty, does not apply to the grounds
of invalidity established by article 52 (or article 51) of the vclt.484 In this
regard, Villiger notes that “subsequent approval of the treaty procured by coer-
cion does not appear possible [which] is confirmed by Article 45 … which, by
omitting Article 52 in its introductory sentence, excludes the possibility of the
coerced State from expressly agreeing to or acquiescing in the treaty’s valid-
ity.”485 Distefano echoes this conclusion with respect to article 51:
The second attribute of this invalidity concerns the impossibility for

a State-victim to cure and rehabilitate the defect in its contents, and
consequently the impossibility to keep and to resuscitate the treaty in
483 Corten, “Art. 52”, 1214. See also, Villiger, Commentary on vclt, 635–636, 646 (“Ex iniuria ius
non oritur. The conclusion of a treaty procured by coercion of a State shall be void. In view
of the serious nature of coercion, Article 52 provides for automatic nullity.”) (emphasis in
original).
484 Article 45 provides that: “A State may no longer invoke a ground for invalidating, terminat-
ing, with drawing from or suspending the operation of a treaty under articles 46 to 50 or
articles 60 and 62 if, after becoming aware of the facts: (a) It shall have expressly agreed
that the treaty is valid or remains in force or continues in operation, as the case may be;
or (b) It must by reason of its conduct be considered as having acquiesced in the validity
of the treaty or in its maintenance in force or in operation, as the case may be.” On vclt,
Art. 45, see generally, Heathcote and Kohen, “Art. 45”.
485 Villiger, Commentary on vclt, 635–636, 647.
702 chapter 9
conformity with Article 45 of the Convention. This is perhaps the essen-

tial attribute of the notion of absolute invalidity.486
In line with this reasoning, express or implied ratification of the validity of a

treaty procured through the threat of force and the purge of the original vice
will not be possible and the coerced State will never lose the right to invoke
the invalidity of the treaty.487 Professors Kohen and Heathcote explain that
the ilc’s decision to exclude treaties procured by coercion from article 45
of the vclt “means that the victim State, even if it has at some stage expressly
accepted the validity of the treaty or if by its conduct it should be considered
as having acquiesced in its validity, will be able at a later stage to come back on
its acceptance or its acquiescence and invoke the invalidity of the treaty.”488
As a consequence, the only way for a victim State to retain in effect the sub-
stance of a coerced treaty is to conclude a new agreement with the coercing
State once it is no longer under coercion:
However, once liberated from the influence of force, the aggrieved State
is free to conclude a new agreement of similar content.489
Thus, under these various pronouncements and interpretations, regardless of

the various statements issued by the uae confirming the mou’s continuing ef-
fectiveness, the uae would still be entitled to invoke its invalidity under either
Articles 51 or 52 of the vclt.
Notwithstanding the clarity with which this issue has been dealt with in
the vclt and by scholarly writing generally, whether a defect of coercion can
be cured by acquiescence of the coerced State once it has been liberated from
the coercive circumstances has been brought into question by the jurisdic-
tional decision of the icj in the Territorial and Maritime Dispute (Nicaragua v
C
olombia) case.490 In that decision, the icj indirectly dealt with the invalidity
486 Distefano, “Art. 51”, 1195–1196.

487 Ibid., 1197.
488 Heathcote and Kohen, “Art. 45”, 1074.
489 Villiger, Commentary on vclt, 635–636, 647; See also Distefano, “Art. 51”, 1197; ybilc, vol.
ii (1966), 247; Dörr and Schmalenbach, Vienna Convention, 867, 890–891. With respect to
article 51, Distefano states that although the victim-State “never loses its right to invoke
the invalidity of an international treaty”, “[i]f the State considered that the treaty might
be to its interests, it could always conclude a fresh treaty similar to the one procured by
coercion.” Distefano, “Art. 51”, 1197.
490 Case Concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia), Prelimi-
nary Objections, icj Reports 2007 832, paras. 62–81, 142.1(a).
of a 1928 bilateral treaty between Nicaragua and Colombia which Nicaragua

alleged was invalid because it was signed “in manifest violation of the Nicara-
guan Constitution” and because it was signed while Nicaragua “lacked com-
petence to freely conclude treaties due to occupation by the United States.”491
Regarding this second ground for invalidating the treaty, Nicaragua argued
that, as a consequence of the u.s. military occupation, it “was precluded from
concluding treaties that ran contrary to the interests of the United States and
from rejecting the conclusion of treaties that the United States demanded it to
conclude” and that “Colombia was aware of this situation and ‘took advantage
[of it] to extort from her the conclusion of the 1928 treaty’.”492 In its decision,
the Court noted that “for more than 50 years, Nicaragua has treated the 1928
Treaty as valid and never contended that it was not bound by the Treaty, even
after the withdrawal of the last United States troops at the beginning of 1933”
and that Nicaragua had “in significant ways, acted as if the 1928 Treaty was
valid”, including an instance where it argued that the treaty and its protocol
“did not affect a maritime delimitation.”493 On the basis of this analysis, the icj
by thirteen votes to four, upheld Colombia’s first preliminary objection, find-
ing that Nicaragua could not “be heard to assert that the 1928 Treaty was not in
force in 1948” and that “the 1928 Treaty was valid and in force on the date of the
conclusion of the Pact of Bogotá in 1948”, the relevant date for the purposes of
establishing whether the Court’s jurisdiction could be founded on Article vi of
the Pact of Bogotá.494 No further elaboration of the reasons underpinning its
decision was provided.
Given the paucity of words used by the Court and the specific c ircumstances
of the case, it is not possible to conclude on the basis of the decision alone
that the Court intended to hold that, under certain circumstances, a defect of
coercion may be cured by acquiescence contrary to what is established in Ar-
ticle 45 of the vclt.495 This is particularly the case as there are other plausible
491 Ibid., paras. 75–76.

493 Ibid., paras. 78–79.
494 Ibid., paras. 80–81, 142.1(a).
495 However, see Forlati, “Coercion”, 330, who argues – based on her analysis of the peace
agreements at issue in the icj’s decision in the Armed Activities on the Territory of the Con-
go and the Kosovo Advisory Opinion, together with the Territorial and Maritime Dispute
(Nicaragua v. Colombia) case – that: “The victim of coercion seems to be entitled to waive
its claim as to the validity of the treaty in the same terms as those set forth by Article 45
of the Vienna Convention, provided that the choice is the result of a free determination
of its best interest.”
704 chapter 9
explanations for the Court’s decision to declare that Nicaragua could not “be
heard to assert that the 1928 Treaty was not in force in 1948”.496 As reflected
in several of the concurring and dissenting opinions, it could be, for instance,
that the Court considered that neither the vclt nor customary international
law of treaties applied to a treaty concluded in 1928, or that a treaty procured
by coercion in 1928 did not lead to its invalidity or that such a treaty was only
subject to a relative invalidity in 1928 which could be cured by subsequent rati-
fication or acquiescence.497
Although it is not possible to conclude that the icj intended to establish
a principle that a defect of coercion in the formation of a treaty may, consis-
tently with the vclt, be cured by acquiescence of the victim State over a long
period of time, the decision raises the question whether, under modern treaty
law, either an explicit acceptance by the victim State of the validity of a co-
erced treaty or its voluntary execution of the coerced treaty once it is no longer
under coercion may constitute its consent to be bound by a new treaty “mir-
roring the content of the void treaty”.498 Assuming this line of thought is juridi-
cally sound, it could be said that through the various statements in which the
uae has expressly acknowledged that the mou “is still in force and binding”
496 Territorial and Maritime Dispute (Nicaragua v. Colombia), para. 80. Amongst the criticisms
expressed in the dissenting opinions, see ibid., Dissenting Opinion of Vice-President
Al-Khasawneh, 880–881 (indicating that the Court failed to consider the “important and
relevant question of inter-temporal law, namely whether by 1928, the strong body of opin-
ion which held ‘treaties brought about by the threat or use of force should no longer
be recognized as legally valid’, had attained the status of customary law”, consideration
which would have been indispensable given that Nicaragua was challenging the validity
of the 1928 Treaty itself); ibid., Dissenting Opinion of Judge Bennouna, 925–926 (noting
that the Court should have postponed the decision on the validity of the 1928 Treaty to
the merits in order to allow Nicaragua to fully develop its legal arguments on the issue,
which would have afforded an opportunity for the Court to undertake an “investigation
into whether or not coercion was exerted on the State”, including by analyzing “the rel-
evance of the rule prohibiting the threat or use of force in 1928, a date concomitant with
the adoption of the Pact of Paris or Kellogg-Briand Pact.”).
497 Ibid., Separate Opinion of Judge Abraham, paras. 43–49. See also, Corten, “Art. 52”,
1216–1217.
498 Cf. Dörr and Schmalenbach, Vienna Convention, 890–891 (who argue that “depending on
the circumstances of the particular case, the voluntary execution of the ‘void’ treaty can
be interpreted as the newly formed consent, this time freely given” and that “[t]he legal
device to construe a valid oral treaty mirroring the content of the void written one cush-
ions the ridged and in some ways unrealistic legal effects procured by Art. 52, Art. 44,
para. 5 and Art. 69.”).
(as recently as October 2014 and March 2016499) it has manifested its consent
to the conclusion of a new treaty with Iran on the same terms as the mou.
A related question, particularly in light of the icj’s decision in the Territorial
and Maritime Dispute (Nicaragua v Colombia) case, is whether the passage of
a long period of time during which the victim State has not formally sought to
invoke the invalidity of the treaty (this period being over 45 years in the case
of the mou) is a relevant factor in finding whether the victim State’s conduct
was tantamount to its acceptance of a new treaty containing the same terms
as the void treaty.
There are no ready answers to these questions. What is clear, however, is
that if the uae were to seek at some point to invoke the invalidity of the mou
on the basis of article 52 of the vclt,500 it would be able to make out a prima
facie case on the strength of the evidence reviewed in this chapter. It would,
therefore, ultimately fall to Iran (if it so chose) to contest the applicability of
article 52 and to bear the burden of establishing that, notwithstanding its in-
validity ab initio, the considerations noted above should lead to the conclusion
that the mou had been agreed anew by the parties at some date subsequent
to November 1971. In addressing that assertion, arguments and evidence would
have to be put forward demonstrating, among other matters, at what point the
“new” mou purportedly came into effect, including evidence supporting a con-
clusion that at that time Sharjah was “no longer under coercion”, and whether
Iran itself has consented to such new arrangement, including the necessary
finding that it accepts that the original mou was void. Taking such a position
would likely be very difficult for Iran because, although it might serve to “legal-
ize” the mou, it would at the same time constitute an acknowledgement that
its threats against Sharjah were unlawful and unfounded, and therefore further
prejudice its underlying claim of sovereignty over Abu Musa altogether, or in-
deed constitute an admission that its claim is invalid.
Although this chapter is focused on the history and substantive valid-
ity (or invalidity) of the mou and will not address the procedures which the
uae would, if it so elected, have to follow in order to bring a claim to invali-
date the mou, a few final points on that topic are merited. First, although the
499 Letter dated October 23, 2014 from the Permanent Representative of the United Arab
Emirates to the United Nations addressed to the Secretary-General, un Doc. S/2014/759;
Letter dated 14 March 2016 from the Permanent Representative of the United Arab Emir-
ates to the United Nations addressed to the Secretary-General, un Doc S/2016/245.
500 It should be noted that Iran, as the coercing State, would not be entitled to invoke the
invalidity of the mou on the basis of article 52. See, e.g., Villiger, Commentary on vclt, 635
(“[t]he coercing State, on the other hand, would appear to be excluded from [impeaching
the treaty] (ex turpi causa jus non oritur).”).
706 chapter 9
c onsequence of having procured a treaty through the threat of force is that the
treaty is void, ab initio (not merely voidable) and has “no legal force”,501 such
“invalidity, even absolute invalidity, does not exist de plano; the State bring-
ing a claim must follow a procedure.”502 Other consequences arising out of
a void treaty which are enshrined in the vclt, and generally recognized as
either reflecting customary international law or “crystallising into customary
international law”,503 include that the party to which the coercion is not imput-
able may require the other party to “establish as far as possible … the position
that would have existed” if the acts performed in reliance on the treaty had
not been performed.504 Under this provision (article 69.2 (a) vclt), in theory
at least, the uae could require Iran to evacuate Abu Musa. The vclt (article
69.2 (b)) also provides that “acts performed in good faith [by the party to which
the coercion is not imputable] before the invalidity was invoked” shall not be
rendered unlawful. Again, however, these consequences do not exist de plano,
and require that the invalidity of the treaty first be “established”. Although ar-
ticle 65 of the vclt provides procedures for invoking the invalidity of a treaty
due to coercion, it cannot be assumed that these procedures reflect a rule of
customary international law (and thus would be applicable to States such as
Iran and the uae which are not signatories to the vclt),505 although in the
Gabčíkovo case the icj recognized that articles 65–67 “at least generally reflect
customary international law and contain certain procedural principles which
are based on an obligation to act in good faith.”506
Moreover, neither the application of article 65 nor its companion article 66,
would lead to a binding resolution in cases in which one of the parties c ontests
501 Under Article 69.1 of the vclt, “A treaty the invalidity of which is established under the
present Convention is void. The provisions of a void treaty have no legal effect.”
502 Distefano, “Art. 51”, 1198. Distefano also notes Mr Ago’s statement that “[i]n the case of
coercion … whether it was directed against a person or against the State, or whether it
involved conflict with a jus cogens rule, the Commission had not wished the nullity to
depend on the will of one party; it took effect ex lege and erga omnes. Of course some form
or procedure for recognition of the fact would also have to be followed in the latter case;
but the distinction was fundamental and it should not be lost sight of merely because
there was a procedure to be followed.” Ibid.
504 Article 69.2 (a) of the vclt.
505 “Since 1969, States and international courts have given mixed signals as to the custom-
ary basis of Articles 65 and 66. At most, therefore, these provisions can be considered
as crystallising into customary rules of international law.” Villiger, Commentary on
vclt, 813.
506 icj Reports (1997), p. 3, para. 109, as noted by Aust, Modern Treaty Law, 300.
that the treaty in question was procured through coercion.507 Thus, under
article 65.3, if, following the provision of notification from the party seeking to
invoke the invalidity of a treaty (which must set out in writing the grounds on
which the claim is made), the other party raises an objection, “the parties shall
seek a solution through the means indicated in Article 33 of the Charter of the
United Nations”, which generally calls upon the parties to engage in peaceful
means of dispute resolution “of their own choice”. As noted by Villiger, “[s]ince
reference is made to a ‘solution’ rather than a ‘dispute’, Article 65 emphasises
a diplomatic process and leaves open whether a dispute will at all arise.”508
Article 66, which applies when “no solution has been reached within a period
of 12 months following the date on which the objection was raised” under ar-
ticle 65.3, allows either of the disputing parties to “set in motion the procedure
specified” in an annex to the vclt. That procedure envisions the appointment
of a conciliation commission (out of a list maintained by the Secretary General
of the un) which “shall hear the parties, examine the claims and objections,
and make proposals to the parties with a view to reaching an amicable settle-
ment of the dispute.”509 The findings of the commission, however, “shall not
be binding upon the parties and it shall have no other character than that of
recommendations submitted for the consideration of the parties in order to
facilitate an amicable settlement of the dispute.”510 Thus, even if the proce-
dures set out in articles 65 and 66 of the vclt were applicable to a dispute over
the validity of the mou, those procedures would almost certainly not lead to a
binding declaration that the mou is invalid unless Iran willingly participated.
Finally, what would be the consequences for the sovereignty dispute over
Abu Musa if the uae were to successfully invoke the invalidity of the mou on
the grounds that it was procured by coercion? Assuming the substantive and
procedural hurdles reviewed above were overcome, which would almost cer-
tainly require that the parties had mutually agreed to submit the dispute to the
507 Article 65.2 provides, however, that if within a period of no less than 3 months “no party
has raised any objection”, the party which has given notice of its invocation of the invalid-
ity of the treaty may “carry out the measures which it has proposed.”
508 Villiger, Commentary on vclt, 810. Villiger also quotes Waldock: “Para. 3 of Article 65 on
its own – as originally proposed by the ilc – contains as a major weakness the risk of a
deadlock” and “[o]ther than referring the matter to the un Security Council or General
Assembly, the parties may remain helpless.” Ibid., 811.
509 vclt, Paragraph 5 of the Annex to Article 66.
510 Ibid., Paragraph 6 of the Annex to Article 66. Villiger notes that, as “Rosenne pointed out,
Article 66 was most likely inserted into the Convention for political purposes; its practical
importance may not be very great, but it was a salutary development that the Conference
adopted this provision.” Villiger, Commentary on vclt, 823.
708 chapter 9
icj or other third party dispute resolution, and the mou was declared invalid,
then the legal status of the occupation of Iran on Abu Musa would be that of
a military occupation, the same status as that which prevails in the Greater
and Lesser Tunbs. This is so since Iran would not be able to benefit from or
“legalize” any acts (including the arrival of Iranian troops on the island) taken
pursuant to the mou on the basis of article 69.2 of the vclt.
Interpretative Analysis of the mou, Asserted Breach and

Consequences
As reviewed earlier in this chapter, the uae has lodged numerous protests
against various measures taken by the government of Iran on or in relation to
Abu Musa.511 These protests largely reflect an assumption that, contrary to the
view that the mou was void ab initio for having been procured by the threat of
force, the mou has been in effect and that its provisions have been binding on
the parties. Further to such an assumption, in this final section the rights and
obligations arising out of each of the specific provisions of the mou will be re-
viewed and deconstructed in light of the relevant rules of treaty interpretation
under the vclt. Following this exercise, an analysis will be made of whether
any of the actions taken by Iran on Abu Musa which the uae has described as
breaches of the mou should be interpreted as such, and if so, what the conse-
quences of those breaches might be.
(a) Scope and Meaning of the Rights and Obligations Arising out of
the mou
The mou between Iran and Sharjah did not solve or shed any light on the mer-
its of the sovereignty dispute over the island of Abu Musa as it was concluded
without prejudice to the parties’ respective claims of sovereignty. However, it
created a “complicated formula”512 by which the administration of the island
of Abu Musa was effectively divided between Iran and Sharjah, with each party
entitled to exercise “full jurisdiction” and fly its flag on its respective part of the
island and other ancillary provisions regarding the breadth of the territorial
sea, the sharing of oil revenues and the right of nationals of both parties to fish
in the island’s territorial sea.
As seen when addressing the negotiations over the mou, several options
were discussed within the British government and with Iran as to how to

512 David E. Long, The Persian Gulf: An Introduction to its Peoples, Politics and Economics
(Boulder: Westview Press, 1976), 44.
r esolve the dispute arising out of Iran’s assertion of sovereignty over Abu Musa
(and the Tunbs), including the establishment of a condominium or a long
lease granted by the Qawásim Rulers to Iran.513 None of these proposals were
accepted and what ensued was the military occupation by Iran of the Tunbs
and the arrival of Iranian forces on Abu Musa on the basis of the mou.
Each of the provisions of the mou is analyzed below.
(i) Terms Establishing the Division of Abu Musa

The preamble, or chapeau, of the mou states as follows:
Neither Iran nor Sharjah will give up its claim to Abu Musa nor recognise
the other’s claim. Against this background the following arrangements
will be made:514
The mou contains six paragraphs, all of which derive from these two pream-
bular sentences. Taken as a whole, the chapeau is designed to make clear that,
although the parties have agreed on certain arrangements concerning the
conduct of activities on the island in which they both have consented to the
granting of control of certain areas to the other party, that agreement should
not be interpreted to mean that either State has renounced its own claim to
sovereignty over the entire island or recognized the sovereignty claim of the
other party.
Similar provisions to the chapeau of the mou are found in State practice, in
particular in areas subject to a sovereignty dispute over which States have es-
tablished a condominium515 or where maritime delimitation is made difficult
by ongoing territorial disputes and where States establish a joint development
zone to maintain their claims but at the same time gain access to the resources
in the disputed area.516 The Antarctic treaty, which provides for the governance
and Bahrain: Possible Solutions, 250, paras. 37–40.
514 Full Text of the Memorandum of Understanding between Sharjah and Iran (Annex 1(A) to
un Doc. S/2014/759). See supra note 148 and accompanying text.
515 See, e.g., the sovereignty dispute between the United Kingdom and the United States over
the Canton and Enderbury Islands, over which the two States entered into an agreement
in 1938 by which they provided for the joint control over the islands “without prejudice
to their respective claims” to them. Article i, Agreement between the United States of
America and Great Britain concerning a joint administration of Canton and Enderbury
Islands in the South Pacific Ocean. Effected by exchange of notes signed April 6, 1939, 196
l.n.t.s. 343 (1939).
516 See, e.g., specifically concerning a sovereignty dispute over a group of islands, the cooper-
ation in the waters around the Falkland/Malvinas, South Georgia and the South Sandwich
710 chapter 9
of Antarctica, also contains a clause freezing all of the signatories’ respective

claims to territorial sovereignty over the Antarctic region. That treaty elabo-
rates in relatively greater detail what appears to have been the basic intention
of the mou’s preamble.517
Although the chapeau of the mou modifies all of the paragraphs of the
mou which contain the different arrangements arrived at concerning the is-
land of Abu Musa, perhaps its most important effect is on the arrangements
islands between the uk and Argentina. Joint Declaration Co-operation over Offshore Ac-
tivities in the South West Atlantic between Argentina and the United Kingdom, Interna-
tional Journal of Marine and Coastal Law 11 (1996): 113–118, 113 (“(1) Nothing in the content
of the present Joint Declaration or of any similar subsequent Joint Statements and meet-
ings shall be interpreted as: …(c) recognition of or support for the position of the United
Kingdom or the Argentine Republic with regard to sovereignty or territorial and maritime
jurisdiction over the Falkland Islands, South Georgia and the South Sandwich Islands and
the surrounding maritime areas. (2) No act or activity carried out by the United King-
dom, the Argentine Republic or third parties as a consequence and in implementation
of anything agreed to in the present Joint Declaration or in any similar subsequent Joint
Statements and meetings shall constitute a basis for affirming, supporting, or denying
the position of the United Kingdom or the Argentine Republic regarding the sovereignty
or territorial and maritime jurisdiction over the Falkland Islands, South Georgia and the
South Sandwich Islands and the surrounding maritime areas.”). This Joint Declaration
established a Joint Commission composed of delegations from both sides for coopera-
tion in the exploration for and exploitation of hydrocarbons in a specified area. Masahiro
Miyoshi, “The Joint Development of Offshore Oil and Gas in Relation to Maritime Bound-
ary Delimitation”, ibru Maritime Briefing 2(5) (1999): 1–51, 24–27. The Joint Declaration is
no longer in force.
517 Antarctic Treaty (1959), 402 u.n.t.s. 71, Article iv: “1. Nothing contained in the present
Treaty shall be interpreted as: (a) a renunciation by any Contracting Party of previously
asserted rights of or claims to territorial sovereignty in Antarctica; (b) a renunciation or
diminution by any Contracting Party of any basis of claim to territorial sovereignty in Ant-
arctica which it may have whether as a result of its activities or those of its nationals in
Antarctica, or otherwise; (c) prejudicing the position of any Contracting Party as regards
its recognition or non-recognition of any other State’s rights of or claim or basis of claim
to territorial sovereignty in Antarctica. 2. No acts or activities taking place while the pres-
ent Treaty is in force shall constitute a basis for asserting, supporting or denying a claim
to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica.
No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica
shall be asserted while the present Treaty is in force.” The regime created by the Antarctic
Treaty is sometimes referred to as a condominium-like arrangement. Fred L. Morrison,
“Condominium and Coimperium” in Max Planck Encyclopedia of Public International Law,
Online ed., ed. Rüdiger Wolfrum, para. 16.
c oncerning the division of the island into two areas, addressed in paragraphs
1 and 2. Thus, the existence of the chapeau means that the fact that Iran was
allowed under the mou to land troops, raise its flag and exercise “full jurisdic-
tion” over part of the island (and that Sharjah consented to this arrangement)
will have no legal relevance in any determination of whether Iran has sover-
eignty over the island and cannot therefore be pointed to by Iran as evidence to
demonstrate its connection to the islands or to support its general sovereignty
claim. Equally, the fact that Sharjah was allowed under the mou to continue to
have “full jurisdiction” over the remainder of the island and to fly its flag there
(and that Iran consented to this arrangement) shall have no relevance in any
argument that the uae is the lawful sovereign.518
In effect, therefore, the chapeau makes clear that notwithstanding their
agreement to share control of the island, each of the parties has reserved
its rights to sovereignty over the entire island and does not acknowledge the
rights of sovereignty of the other party, and any analysis or determination of
which State has sovereignty over Abu Musa must be based on considerations
and arguments which are independent of the mou and its performance by the
parties thereto.
Paragraphs 1 and 2 of the mou, which provide for the basic division of the
island into two distinct geographical areas and as such constitute the most
important provisions of the agreement, read as follows:
1. Iranian troops will arrive on Abu Musa. They will occupy areas the extent
of which have been agreed on the map attached to this memorandum.
2(a). Within the agreed areas occupied by Iranian troops, Iran will have
full jurisdiction and the Iranian flag will fly.
2(b). Sharjah will retain full jurisdiction over the remainder of the island.
The Sharjah flag will continue to fly over the Sharjah police post on the
same basis as the Iranian flag will fly over the Iranian military quarters.519
518 As discussed in chapter 8, the most likely “critical dates” for determining the existence
of the parties’ respective sovereign rights over the island occurred at the end of the nine-
teenth century (1887/1888) and the early twentieth century (1904/1905). At either of these
time periods, the evidence demonstrates Sharjah’s ownership of the island, and equally
an almost complete lack of any connection between Iran and the island.
519 Full Text of the Memorandum of Understanding between Sharjah and Iran (Annex 1(A)
to un Doc. S/2014/759); Map of Abu Musa Island attached to the Memorandum of Under-
standing (Annex 1(B) to un doc. S/2014/759). See supra note 148 and accompanying text.
712 chapter 9
These provisions establish a type of common administration of the island

of Abu Musa, albeit dividing the island into two agreed areas in which the
administrative authority of each of the parties is to be exclusive. Thus, in their
respective areas each of Iran and Sharjah will have “full jurisdiction” and their
respective flags will fly.
It is noteworthy that the agreed presence of Iran on the island is through
the arrival of military troops and their “occupation” of designated areas. This
military aspect of the mou is consistent with the “proviso” letter sent by Iran
immediately following its signing of the mou, in which it purported to condi-
tion its acceptance of the arrangements over Abu Musa on its freedom “to take
any measures in the island of Abu Musa which in its opinion would be neces-
sary to safeguard the security of the island or of the Iranian forces”,520 which
is reviewed in more detail below.521 Taken together, paragraphs 1 and 2 of the
mou, along with the “proviso”, demonstrate that Iran’s presence on the island
was principally focused on military security on and around the island, presum-
ably including the nearby Strait of Hormuz. This interpretation is confirmed
by the travaux préparatoires of the mou, in particular an October 1971 draft
circulated by Sir William Luce which contains a heading for paragraph 1 of the
mou entitled “With respect to the function of the Island of Abu Musa, in the
furtherance of the security of the gulf against aggression.”522 This heading did
not make it to the final text of the mou but the text of the paragraph under-
neath it remained almost identical in the final version of the mou.523 Thus, the
heading seems to confirm that the landing of Iranian military troops was done
with the underlying aim of protecting the security of the Gulf against aggres-
sion. Such an interpretation is also consistent with various statements made
by the Shah during the negotiations over the mou in which he highlighted
the security concerns underlying Iran’s insistence on taking over Abu Musa
and the Tunbs, calling the Gulf “Iran’s lifeline” and noting that with “Britain’s
withdrawal and growing threats of insurgency … he could not afford to give
up, or be seen to give up, any sovereign claim, especially on the strategically
520 Letter No. 21284 from the Iranian Foreign Minister to the British Foreign Secretary, dated
25 November 1971, published in Toye, Lower Gulf Islands, Vol. 6, 488–504 and in Amirah-
madi, Small Islands, Big Politics, 162–175. See supra note 148.
522 fo 1016/915, Letter from Sir William Luce (fco) to British Embassy in Tehran, copying
Bahrain Residency, October 21, 1971, 781.
523 Draft paragraph 1 read: “Iranian troops will arrive on Abu Musa. They will occupy areas
the extent of which will have been agreed in advance on a map” whereas the final text of
this paragraph reads: “Iranian troops will arrive on Abu Musa. They will occupy areas the
extent of which have been agreed on the map attached to this memorandum.”
placed islands in the Gulf.”524 On another occasion just prior to the signing of
the mou, the Shah’s “main worry” was said not to be “sovereignty” but rather
“security”.525
Regarding paragraph 2, the term “full jurisdiction” raises questions of in-
terpretation for which it is necessary to refer to the rules of interpretation of
treaties under customary international law codified in the vclt. Under Article
31 of the vclt, the first point of departure in interpreting treaty terms is the
“ordinary meaning to be given to the terms of the treaty in their context and in
light of its object and purpose”.526 What then is the ordinary meaning of “full
jurisdiction” in its context and in light of the object and purpose of the MOU?
The Oxford English Dictionary defines “full” as “Complete, entire, perfect”
or “Complete in number, quantity, magnitude or extent; reaching the specified
or usual limit” or “Complete scope, entire range; entire amount or sum total;
completeness, fullness”.527 The Collins dictionary defines “full” as “with no part
lacking; complete” and “with all privileges, rights, etc.; not restricted”. In the
Collins thesaurus, “complete, replete, entire” are listed amongst the synonyms
for “full”.528 Thus, “full”, seems to have a clear and determinative meaning529
as an adjective modifying “jurisdiction”. Amongst the different definitions of
“full” reviewed, they all denote the idea of something complete, unqualified,
not restricted.
Regarding the ordinary meaning of “jurisdiction”, its dictionary definition530
is too general for the purposes of treaty interpretation. Therefore, it is neces-
sary to resort to specialized dictionaries in international law or doctrine which
define “jurisdiction”. Under international law, there is no univocal meaning
of “jurisdiction”, but most of the definitions of “jurisdiction” reviewed denote
524 fo 1016/913, Telegram from Ramsbotham, dated September 7, 1971.

525 As noted in fo 1016/917, Summary Record of Conversation Between Sir William Luce and
the Ruler of Sharjah on November 17, 1971, 908A.
526 vclt, Article 31.1.
527 Oxford English Dictionary, s.v. “Full”, accessed December 02, 2015, http://www.oed.com/
view/Entry/75327?rskey=c18SER&result=5#eid.
528 Collins Dictionary Online, s.v. “Full”, accessed December 02, 2015, http://www.collins
dictionary.com/dictionary/english/full?showCookiePolicy=true.
529 Richard Gardiner, Treaty Interpretation (Oxford: Oxford University Press, 2008), 165–166.
530 See, e.g., Oxford English Dictionary, s.v. “Jurisdiction”, accessed December 02, 2015, http://
www.oed.com/view/Entry/102156?redirectedFrom=jurisdiction#eid (“1. Administration
of justice; exercise of judicial authority, or of the functions of a judge or legal tribunal;
power of declaring and administering law or justice; legal authority or power. 2. Power
or authority in general; administration, rule, control. 3. The extent or range of judicial or
administrative power; the territory over which such power extends. 4. A judicial organiza-
tion; a judicature; a court, or series of courts, of justice.”).
714 chapter 9
an exercise of certain State powers (whether legislative, executive or enforce-

ment) whose purpose is to regulate conduct531 which does not necessarily take
place in a territory where the State exercises sovereignty532 but in areas where
the State exercises some “effective control”.533
531 James Crawford, Brownlie’s Principles of Public International Law. 8th ed. (Oxford: Ox-
ford University Press, 2012), 204 (“The competence of states in respect of their territory
is usually described in terms of sovereignty and jurisdiction, but the terminology is not
employed very consistently even in legal sources. At the same time, some uniformity of
usage may be noted. The normal complement of state rights, the typical case of legal com-
petence, is described commonly as ‘sovereignty’: particular rights, or accumulations of rights
quantitatively less than the norm, are referred to as ‘jurisdiction’. In brief, ‘sovereignty’ is
shorthand for legal personality of a certain kind, that of statehood; ‘jurisdiction’ refers to
particular aspects of the substance, especially rights (or claims), liberties, and powers.”)
(emphasis added); Jennings and Watts, Oppenheim’s International Law, 456–457 (“State ju-
risdiction concerns essentially the extent of each state’s right to regulate conduct or the con-
sequences of events. In practice jurisdiction is not a single concept. A state’s jurisdiction may
take various forms. Thus a state may regulate conduct by legislation; or it may, through its
courts, regulate those differences which come before them, whether arising out of the
civil or criminal law; or it may regulate conduct by taking executive or administrative
action which impinges more directly on the course of events, as by enforcing its laws or
the decisions of its courts. The extent of a state’s jurisdiction may differ in each of these
contexts…. Jurisdiction is not coextensive with state sovereignty, although the relationship
between them is close[.]”) (emphasis added); Bernard H. Oxman, “Jurisdiction of States”,
in Max Planck Encyclopedia of Public International Law Online ed., ed. Rüdiger Wolfrum,
para. 1 (“In its broadest sense, the jurisdiction of a State may refer to its lawful power to
act and hence to its power to decide whether and, if so, how to act, whether by legislative,
executive, or judicial means.”).
532 For the distinction between the concepts of “sovereignty” and “jurisdiction” see supra
note 531. See also, Crawford, Creation of States, 32 (“The term ‘sovereignty’ has a long and
troubled history, and a variety of meanings. In its most common modern usage, sover-
eignty is the term for the ‘totality of international rights and duties recognized by interna-
tional law’ as residing in an independent territorial unit – the State. It is not itself a right,
nor is it a criterion for statehood (sovereignty is an attribute of States, not a precondition).
It is a somewhat unhelpful, but firmly established, description of statehood; a brief term
for the State’s attribute of more-or-less plenary competence…. As a legal term ‘sovereignty’
refers not to omnipotent authority – the authority to slaughter all blue-eyed babies, for
example – but to the totality of powers that States may have under international law.”) (em-
phasis added).
533 For the distinction between sovereignty and effective or physical control over terri-
tory, see Legal Consequences for States of the Continued Presence of South Africa in Na-
mibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory
Opinion, icj Reports 1971, 16, para. 118; Human Rights Committee, General Comment
Therefore, the ordinary meaning of “full jurisdiction” designates a complete,

unqualified, non-restricted exercise of State powers (whether legislative, ex-
ecutive or enforcement) in regulating particular conduct in an identified area.
On its face, granting Iran the unqualified right to regulate conduct within the
areas where its troops were to be stationed seems uncontroversial. Indeed,
during the mou negotiations the Shah had stated that it would be “intolerable”
for his troops to stay on Abu Musa under an “alien flag”.534 Seen in this way,
the grant of “full jurisdiction” to Iran in those areas which Iranian troops were
to occupy appears to mean nothing more than that it would fall exclusively to
Iran to regulate and control the conduct of those forces in those areas, and to
do so under its own flag. This conclusion is supported by the fact that the text
of the mou limited Iran’s presence on the island to the introduction of its mili-
tary forces in an identified part of the island. Thus, other than the activities
of those forces within those areas, there is no other activity which the mou
permits Iran to undertake on the island which would require regulation and
control.
This interpretation of the meaning of “full jurisdiction”, including its corol-
lary that Iran’s presence on Abu Musa was meant to be limited to the presence
and activities of its military forces, is also supported by other considerations
and evidence which take account of the circumstances under which the mou
was concluded as well as its object and purpose. These include the accumula-
tion of evidence cited above which demonstrates that Iran’s justification for
requiring a physical presence on Abu Musa was entirely focused on the role
its military forces would have in safeguarding “the gulf against aggression”
and Iran’s perceived “lifeline” with the outside world.535 Iran had no civilian
population on the island nor was the introduction of such a population, or the
development of civilian infrastructure, ever broached during the negotiations.
Another indication that the understanding of the parties was that Iran’s
presence on Abu Musa would be limited to its military forces is reflected in the
No. 31, un Doc. CCPR/C/21/Rev. 1/Add. 13 2004, para. 10. See also, Coard et al. v United
States, Inter-American Commission on Human Rights, Case 10.951, Report No 109/99, Sep-
tember 29, 1999, para. 37; Loizidou v Turkey, European Court of Human Rights, Judgment
on the Preliminary Objections, March 23, 1995, para. 62; Banković et al. v. Belgium, Czech
Republic, et al., European Court of Human Rights, Grand Chamber, Decision as to the Ad-
missibility of Application No. 52207/99, December 12, 2001, para. 71; Legal Consequences
of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, icj
Reports 2004, 136, paras. 108–111.
534 fo 1016/913, Telegram from Ramsbotham (Audience with the Shah), dated September 7,
1971.
716 chapter 9
account of Mr. Ely, the Ruler’s American lawyer who was involved in the mou
negotiations, who later wrote about the formula agreed in the preamble and
paragraphs 1 and 2 of the mou that:
The settlement document would say that neither party recognized the
sovereignty of the other, but that against this background Iran could
maintain a garrison at one end of Abu Musa. A map was to be annexed,
showing the small area that this garrison would occupy. Sharjah’s flag
would continue to fly everywhere else, and Sharjah’s police and school
system would remain.536
That the scope of the activities on the island which, under the mou, Iran was
permitted to carry out, and over which it would have “full jurisdiction”, was
intended to be narrowly prescribed in such a manner (thus excluding its en-
titlement to carry out other activities such as the establishment of civilian
infrastructure and the settlement of a civilian population) is also indicated by
another consideration. As the basis of the mou, set out in its preamble, is the
preservation by both parties of their respective rights to claim sovereignty over
the entire island, it is self-evident that the object and purpose of the mou was
not to settle once and for all the dispute over sovereignty to the island by ef-
fectively agreeing to disagree and dividing the island into two parts forever.
Rather, the language used in the preamble, preserving the parties’ respective
rights to claim sovereignty, and (applying the supplementary means of inter-
pretation set out in article 32 of the vclt) the circumstances in which the
mou was concluded, most particularly Iran’s threats to use force to seize the
island as a way of resolving the dispute, suggest that its overriding purpose
was to establish an interim arrangement on the island intended principally to
avoid an outbreak of violence between the two parties. The interim nature of
the arrangement is also apparent from the lack of any provision declaring that
it was to be of an unlimited duration. Indeed, a proposed clause to that effect
was purposefully eliminated from the text of the final draft of the mou, lead-
ing to an assumption that the arrangement was not intended to be unlimited
in time.537
In light of the interim nature of the arrangement and the specific reserva-
tion of rights of sovereignty by both parties established as the very f oundation
of the mou in its preamble, as well as the limited scope of the activities which

537 The proposed clause, headed “Duration”, read “No date will be set for the termination of
these arrangements.” See supra note 108.
Iran was specifically entitled to carry out on the island pursuant to the mou,
it follows that once Iranian forces had landed and “occupied” the areas des-
ignated for them, a form of status quo arrangement was expected to take
effect, with neither party being entitled to take further measures on the island
which would prejudice a final determination on whose claim of sovereignty
is superior. For Iran, this would principally entail exercising “full jurisdiction”
exclusively over those activities in its allocated part of the island which are
related to the maintenance of its military forces, and for Sharjah, this would
principally entail exercising “full jurisdiction” over the activities which it had
historically carried out on the island prior to the conclusion of the mou. Inter-
preting the mou otherwise would lead to a nonsensical and incoherent result
in which, under cover of the mou, either party could take whatever measures
they wished in their respective areas of the island even though such measures
were not authorized by the mou and even though in doing so they would un-
dermine the very foundation on which the mou was based – the preservation
of their respective rights to claim sovereignty.
(ii) Terms that Establish the Breadth of the Territorial Sea

Paragraph 3 of the mou relates to the recognition by both parties of the breadth
of Abu Musa’s territorial sea, as follows:
3. Iran and Sharjah recognise the breadth of the island’s territorial sea as
twelve nautical miles.538
Per se, the terms of this clause do not provide any interpretative difficulties as
the concept of the “territorial sea” was already fairly well-established under
customary international law in 1971. The issue at the time, as evidenced as well
from this clause, was the extension by States of the breadth of their territorial
sea from three to twelve nautical miles. With respect to the territorial sea of
Abu Musa, it seems that the only purpose of including this provision in the
mou was to put an end to the dispute with several of Sharjah’s neighbouring
Sheikhdoms on the breath of Abu Musa’s territorial sea and in particular with
respect to the rights over oil resources found in that off-shore area (dealt with
in paragraph 4 of the mou), without regard to whether Iran or Sharjah was
considered the rightful sovereign of the island.539
539 Iranian law at the time recognized a twelve-mile territorial sea. See fo 1016/916, Record of
Conversation in Iran at Babolsar, dated November 11, 1971, 892 A, para.8.
718 chapter 9
The background of that dispute arose during the 1960s, when Umm Al Qaiwain,
Ajman and Sharjah agreed that Sharjah owned the island of Abu Musa, but
they disagreed on the extent of the island’s seabed and territorial sea, with
Sharjah maintaining that it extended to twelve nautical miles.540 As noted
above when discussing the litigation between Buttes Gas & Oil Co. and Occi-
dental Petroleum, the Rulers of Sharjah and Umm Al Qaiwain had granted oil
concessions to these two American oil companies in 1969 (Umm Al Qaiwain
to Occidental and Sharjah to Buttes Gas & Oil Co.).541 The concessions were
approved by the British Foreign Office in light of the latter’s responsibilities
under the 1892 Protectorate Treaties.542 In terms of the geographical extension
of each of the concessions, the 18 November 1969 agreement between Umm
Al Qaiwain and Occidental extended to the “territorial and offshore water of
Umm Al Qaiwain”,543 whereas the concession agreement between Sharjah and
Buttes Gas & Oil Co. defined the concession area as “all the territorial waters of
the mainland of Sharjah within the jurisdiction of the Ruler, all islands within
the jurisdiction of the Ruler and the territorial waters of the said islands and
all the area of the sea bed and subsoil lying beneath the waters of the Arabian
Gulf contiguous to the said territorial waters over which the Ruler exercises ju-
risdiction and control.”544 In relation to the areas around Abu Musa, the Foreign
Office’s approved maps showed the island had a territorial sea of three nautical
miles, whereas the concession of Occidental included the sea bed to the east
of Abu Musa beyond those three nautical miles.545 Presumably for this reason,
the British had not seen the two concessions as overlapping. In 1970, however, a
drilling location within nine miles off Abu Musa sparked the dispute between
Sharjah, Umm Al Qaiwain and their respective concessionaries. Each Sheikh-
dom claimed that the drilling location fell within its respective concession-
aire’s concession area. Umm Al Qaiwain argued that it had agreed with Sharjah
through a 1964 sea boundary agreement that Abu Musa had a three-mile ter-
ritorial sea, whereas Sharjah asserted that this agreement was not about “sea
bed boundaries” and that the breadth of the territorial sea of Abu Musa was
twelve miles, as established in a decree issued by the Ruler on 10 September
1969, which antedated the concession granted to Occidental by approximately
540 Cf. Hakim, Middle Eastern States, 122–128; fo 1016/916, Record of Conversation in Iran at
Babolsar, dated November 11, 1971, 892 A.
541 See supra notes 306–308 and accompanying text, referring to Buttes Gas and Oil Co. v.
Hammer and Occidental Petroleum Corporation v. Buttes Gas & Oil Company.
542 Hakim, Middle Eastern States, 124.
543 Ibid., 123–124.
544 Concession Agreement between the Ruler of Sharjah and Buttes Gas & Oil Co. and Clayco
Petroleum Corporation, dated December 29, 1969.
545 Hakim, Middle Eastern States, 124.
two months.546 Occidental then challenged the validity of that decree, alleging
that it had been fraudulently backdated by the Ruler of Sharjah.
Because of these competing claims, and faced as well with Iran’s reiteration
of its claim to Abu Musa in May 1970 and its demands that no exploration or
other activities take place in the disputed area, the British imposed a morato-
rium on drilling in the disputed area.547
In light of its dispute with the neighboring Sheikhdoms, when Iran demand-
ed in its proposed terms for the mou to receive half of the oil revenues from
Abu Musa’s territorial sea, Sharjah faced the possibility of having to share its
half of those oil revenues with Umm Al Qaiwain and Ajman, possibly leaving
it with a very small proportion of the total revenue. Because of this, Sharjah
requested that Iran shoulder some or all of this burden from its share of the
oil revenues under the mou, and Iran agreed.548 Umm Al Qaiwain and Ajman,
even though not parties to the mou, then recognized Abu Musa’s territorial
sea at twelve nautical miles (in line with the position of both Iran and Sharjah
enshrined in the mou) and in return were given part of the oil revenues from
Abu Musa and the subsoil and seabed beneath its territorial sea out of Iran’s
share of those revenues.549
(iii) Terms that Establish the Joint Exploitation of Petroleum Resources

Paragraph 4 of the mou reflects the parties’ agreement that the revenues de-
rived from the exploitation of petroleum resources of Abu Musa and its territo-
rial sea would be divided equally between Sharjah and Iran:
4. Exploitation of the petroleum resources of Abu Musa and of the seabed

and subsoil beneath its territorial sea will be conducted by Buttes Gas and
Oil Company under the existing agreement which must be a cceptable to
Iran. Half of the governmental oil revenues hereafter attributable to the
said exploitation shall be paid directly by the company to Iran and half
to Sharjah.550
546 Ibid., 124–125.

548 fo 1016/916, Record of Conversation in Iran at Babolsar, dated November 11, 1971, 892 A.
549 Ibid.; fo 1016/917, 939 (“Sharjah’s concessionaire will exploit the offshore zones that have
been in dispute since April 1970 between Sharjah, Umm Al Qaiwain and Ajman. However
the Shah has promised to give generous financial aid to the latter two states next year, and
thereafter out of Iran’s share of the revenue from Abu Musa if oil is found. It is thus hoped
that a settlement of this inter-trucial state dispute acceptable to all concerned will also be
found.”).
720 chapter 9
Again, this does not present interpretative difficulties other than the phrase
“which must be acceptable to Iran”, discussed below. The paragraph is also
linked to some of the related documents to the mou, specifically (i) the Buttes
Gas Concession Agreement itself, (ii) the letters of Buttes Gas & Oil Company
and the National Iranian Oil Company accepting the concession agreement
and the equal division of governmental revenues between Sharjah and Iran
derived from that agreement, and (iii) the financial assistance agreement be-
tween Iran and Sharjah, which was to be suspended if Sharjah’s revenues from
oil production activities on or around Abu Musa under the Buttes concession
agreement exceeded certain levels.551 In terms of the vclt, these documents
form part of the context of the mou for the purposes of its interpretation un-
der Article 31.2 of the vclt.
According to secondary sources, the division of oil revenues set out in
paragraph 4 was duly observed over the 40 years of the duration of Buttes’
concession agreement, except possibly during part of the Iran-Iraq war
in the 1980s.552 Buttes handed over the Mubarek Field (off Abu Musa) (the
field developed by Buttes under the concession agreement) operations and
facilities to the Ruler of Sharjah on December 28, 2009 in accordance with the
551 See supra notes 149 and 544 and accompanying text.
552 The Middle East, February 1994. Accessed December 15, 2014. http://www.thefreelibrary
.com/Oil%3A+making+independence+pay.-a015150156 (“The war of words between Iran
and the uae has not affected the day-to-day operations of the Mubarek field [10 km off
the island of Abu Musa], whose revenues Sharjah shares with Iran.”); “Abu Musa and the
Tumbs: The Dispute that Won’t Go Away, Part Two”, The Estimate, Vol. xiii(13), July 24,
2001, Accessed December 03, 2014. http://www.theestimate.com/public/072401.html (link
no longer available, article on file with authors) (“[T]he sharing of oil revenues agreed to
in 1971 apparently continued without interruption”). The webpage of Crescent Petroleum
(which traces its origins to Buttes Gas & Oil Co. International Inc., a wholly owned subsid-
iary of Crescent Petroleum and holder of the Concession granted in 1969 by the Sharjah
Government, pursuant to which the Mubarek Field was discovered offshore Sharjah in
the early 1970s) does not specifically refer to the sharing of oil revenues between Iran
and Sharjah, but indicates the origin of the company when it was granted the conces-
sion in 1969 and notes that “the generated Governmental revenues from the 1969 Conces-
sion granted to Crescent have contributed significantly to the development of Sharjah”,
Accessed December 03, 2015. http://www.crescentpetroleum.com/html/mubarek_field
.html. However, there are also reports that during the 1980s Iran ceased transferring
to Sharjah its half share of oil revenues because of the financial drain arising from the
war with Iraq. In 1988, Iran attacked the Mubarak field facilities which caused their clo-
sure for two months. See Helem Chapin Metz, ed. Persian Gulf States: A Country Study
(Washington: gpo for the Library of Congress, 1993), Accessed December 03, 2015. http://
countrystudies.us/persian-gulf-states/85.htm.
termination provisions of the agreement.553 Thereafter, the Sharjah National

Oil Corporation (snoc) seems to have taken over the projects formerly oper-
ated by Buttes.554
It will be noticed that some of the language used in paragraph 4 (in par-
ticular that the Buttes concession agreement “must be acceptable to Iran”) is
somewhat confusing and ambiguous. The ordinary meaning of these words
denotes that the agreement is something that ought to be “capable or worthy of
acceptance; pleasing, agreeable, welcome” or even “tolerable or allowable; not
a cause for concern; within prescribed parameters”555 to Iran. Sharjah’s legal
representative, Mr. Ely, had noted during the negotiations of this clause that
the phrase “must be acceptable to Iran” was confusing, and raised questions
such as whether Iran was obliged to accept the Buttes concession agreement
as it was or whether it could demand that certain changes be made for it to be
agreeable to Iran, and whether it was intended that Iran have any supervision
powers over Sharjah’s concessionaire.556 The historical record, most specifi-
cally the Summary Record of a Conversation between Sir William Luce and the
Ruler of Sharjah on 17 November 1971, clarifies that this ambiguous language was
deliberately used:
553 Sky Petroleum Reports on Events Related to Mubarek Field: Buttes provides notice of
termination of Mubarek Field Participation Agreement, January 7th, 2010, Accessed
December 03, 2015. http://www.businesswire.com/news/home/20100107007085/en/
Sky-Petroleum-Reports-Events-Related-Mubarek-Field.
554 The u.s. Energy Information Administration notes with respect to the creation of the
snoc: “In November 2010, the ruler of Sharjah, Shaikh Sultan bin Muhammad al-Qasimi,
issued a decree which created the Sharjah National Oil Corporation (snoc). The new firm
is owned by the emirate of Sharjah and has legal, financial and administrative indepen-
dence to carry out operations in the upstream and downstream markets, as well as invest-
ing in other firms engaging in similar activities. snoc manages those projects formerly
operated by Crescent Petroleum in the emirate.” Accessed December 03, 2015. http://
www.eia.doe.gov/cabs/UAE/Oil.html. There does not seem to be any public information
concerning whether any arrangements have been made with Iran as to the division of the
revenues deriving from oil produced from Abu Musa’s territorial sea, or indeed if that pro-
duction has been depleted. It seems unlikely that snoc would have entered into a con-
tinuing arrangement with Iran on the same terms as those referred to in the mou since, in
any case, the concession agreement terminated in 2009 and the clause in the mou on the
sharing of oil resources was exclusively tied to this concession lasting 40 years.
555 Oxford English Dictionary, s.v. “Must”, accessed April 25, 2015, http://www.oxford
dictionaries.com/definition/english/must; Oxford English Dictionary, s.v. “Accept-
able”, accessed April 25, 2015, http://www.oed.com/view/Entry/1008?redirectedFrom=
acceptable#eid.
Sharjah on November 17, 1971, 908A, paras. 3–4.
722 chapter 9
Mr Ely explained that after long and difficult negotiations the Iranians
had agreed to new language for the paragraph in the proposed Memoran-
dum of Understanding dealing with oil. Sharjah’s requirements as to the
operating company had been met. There was now no mention of Iranian
laws and regulations in the paragraph. There was no requirement for a
new Iranian contract for Buttes. Operations would be carried on under
the company’s existing contract. It was stipulated that this contract must
be acceptable to Iran. Admittedly this amounted to confusing language.
When pressed as to whether the language meant that Iran could demand
changes in the existing contract, the Iranians had said no. They had said
that they would be satisfied with the existing contract if it was amended
(a) to pay half the governmental revenue to Iran; (b) to conform with the
1971 Tehran price agreement and (c) to give Iran the right of auditing the
company’s books. It was therefore contemplated that Buttes and Sharjah
should amend their concession agreement as follows (Iran would take
no responsibility for this). Mr Ely then summarised the letter to be writ-
ten by Buttes to nioc. In answer to a question Mr Ely said that the Shah
had instructed his Ministers to reject the idea that a separate agreement,
which would require submission to the Majlis, should be pursued. The
bad English in paragraph 1(b) of Buttes’ proposed letter to nioc, i.e., “un-
der the existing agreement which must be acceptable to Iran” constituted a
deliberate compromise between Iran’s desire to have a way in the contract
under which exploitation would occur, and yet not to have a direct contract
between Iran and the operating company which would require submission
to the Majlis. Mr Ely continued that he had pressed the Iranians hard on
whether the words “acceptable to Iran” conferred on Iran a continuing right
to interfere in the company’s operations. The Iranians had said no. They
had listed a few alterations to be made to the existing contract, e.g. con-
formity with the 1971 price agreement.
The Ruler said he wished for further clarifications on whether the ambigu-
ous text concealed an intention on Iran’s part to interfere with the Company’s
affairs. Mr Ely said that an assurance had been given by the M inister of
Finance of Iran that there would be no further demands by Iran on the
company. They had refused to put this in writing on the grounds that this
would require submission to the Majlis. …The arrangements were the best
that could be obtained. There were two minor points which he [Mr. Ely]
should mention: Buttes would no longer be in a position to fly the Shar-
jah flag on its installations and would have to permit Iranian inspection
to ensure that the company was acting on an honest basis. The Ruler
said that he had no objection to this: the latter provision was in his
interest.557
Some of the letters that form part of the context of the mou confirm that Iran,
through its national oil company (nioc), accepted the provisions of the con-
cession agreement by Buttes Gas & Oil Company, after Buttes agreed to make
the payments due under the mou directly to Iran and agreed to the terms of
the Tehran Oil Price Agreement of 14 February 1971 which the company would
adhere to.558
(iv) Terms that Establish Fishing Rights

Paragraph 5 of the mou reflects the agreement of Iran and Sharjah that their
nationals would have equal rights to fish in the area within twelve nautical
miles of Abu Musa:
5. The nationals of Iran and Sharjah shall have equal rights to fish in the
territorial sea of Abu Musa.559
An interpretation of the term “equal rights” in light of the rules of treaty in-
terpretation again presents little interpretative difficulty, meaning simply that
nationals of both Iran and Sharjah will have the same legal entitlement to fish
in the territorial sea of Abu Musa.560
557 Ibid. (emphasis added).

558 Letter from the President of Buttes Gas & Oil Co. to the Chairman of the Board of the Na-
tional Iranian Oil Company, dated November 26, 1971, by which Buttes Gas agrees to make
payments deriving from exploitation of petroleum resources of Abu Musa (as set forth in
the mou) directly to the Government of Iran and seeks confirmation that the National
Iranian Oil Company, on behalf of Iran, accepts that Buttes Gas can proceed with opera-
tions under the terms of this letter; Letter from the Chairman of the Board of the National
Iranian Oil Company to Buttes Gas & Oil Co., dated November 27, 1971 advising that the
National Iranian Oil Company on behalf of the Government of Iran accepts that Buttes
Gas or its subsidiaries can proceed with operations under the terms of its letter. See supra
note 149 and accompanying text.
560 In terms of the ordinary meaning of the words, “equal” is defined in the Oxford English
Dictionary as: “Possessing a like degree of a (specified or implied) quality or attribute; on
the same level in rank, dignity, power, ability, achievement, or excellence; having the same
rights or privileges.” Oxford English Dictionary, s.v. “Equal”, accessed December 03, 2015,
724 chapter 9
One observation that might be highlighted from this paragraph is that the
fishing rights pertaining to nationals of both Iran and Sharjah/uae are to be
exercised in any part of the territorial sea of Abu Musa. Thus, there was no
attempt to link such rights to specific parts of the island’s territorial sea which
might be said to attach to the respective land areas of the island in which Iran
and Sharjah exercise full jurisdiction. Notwithstanding the rights established
under this provision, there have been occasional reports of both Iranian and
uae fishing boats being detained or denied their rights to fish in the territorial
sea of Abu Musa.561
(v) Reference to the Financial Assistance Agreement

Paragraph 6 of the mou refers to a financial assistance agreement to be en-
tered into between Iran and Sharjah, the terms of which emerged shortly after
the mou was signed:
6. A financial assistance agreement will be signed between Iran and

Sharjah.562
The financial assistance agreement, which is one of the related instruments to

the mou, provided for Iran to make semi-annual payments to Sharjah in the
amount of £750,000, initially for a period of nine years. These payments were
to cease if Sharjah’s revenues from oil production activities occurring in Abu
Musa’s territorial sea reached £1.5 million a year.563 In addition, the Iranian
http://www.oed.com/view/Entry/63695?rskey=r8ZsXF&result=6&isAdvanced=false#,
Meaning 2.a. “Right” is defined as “Legal entitlement or justifiable claim (on legal or moral
grounds) to have or obtain something, or to act in a certain way; the advantage or profit
deriving from this.” Oxford English Dictionary, s.v. “Right”, accessed December 03, 2015,
http://www.oed.com/view/Entry/165853?rskey=HtCOig&result=1&isAdvanced=false#
eid, Meaning II.8.
561 See, e.g., Pirouz Mojtahed-Zadeh, “eu-gcc resolution main source of encouragement
for attack on Iranian fishing boat in Persian Gulf” (June 10, 2004). Accessed Decem-
ber 03, 2015. http://www.persiangulfstudies.com/en/index.asp?P=NEWSVIEW&ID=43
(mentioning “an armed assault on [an] Iranian boat in the territorial waters of Abu
Musa on Thursday June 3rd 2004, in spite of the fact that Abu Musa’s territorial waters
are under joint Iranian-Sharjah sovereignty.”); Aljazeera, “Iran ‘seizes uae fishing boats
in Gulf’” , (June 20, 2013), Accessed December 03, 2015. http://www.aljazeera.com/news/
middleeast/2013/06/2013620185428157823.html.
563 Letter from the Minister for Foreign Affairs of Iran to the Ruler of Sharjah dated Novem-
ber 30, 1971 making proposals in relation to the financial assistance agreement referred to
in the last paragraph of the mou and indicating that if these proposals are acceptable to
government included a provision within the terms of the financial assistance

agreement in which it is stated that Iran would be entitled to terminate or sus-
pend the payments under the agreement if Sharjah took any action inconsis-
tent, in Iran’s view, with “friendly relations” between Iran and Sharjah.564 The
intended purpose of the agreement was to support Sharjah’s ability to develop
even if oil was not immediately discovered on and around the island. It is un-
clear from publicly available documents the total amounts which were paid to
Sharjah under this agreement and the period in which it remained in effect.
(b) The Iranian “Proviso” and Its Legal Effect

As revealed by the history of the negotiations of the mou and the exchange
of letters that are included in some of the publications that contain the mou,
two letters were issued to the British government by Iran on 25 November 1971,
one accepting the arrangements for Abu Musa as set out in the mou (letter No.
21282565) and another subsequent letter (letter No. 21284) in which the I ranian
government requested the British Secretary of State for Foreign and Com-
monwealth Affairs to convey to the Ruler of Sharjah that “Iran’s acceptance of
the arrangements relating to Abu Musa … is given on the understanding that
nothing in the said arrangements shall be taken as restricting the freedom of
the Ruler of Sharjah, that the exchange of letters shall be regarded as constituting an
agreement between Iran and Sharjah, entering into force on the date of Sharjah’s reply;
Letter from the Minister for Foreign Affairs of Iran to the Ruler of Sharjah dated November
30, 1971 referring to the financial agreement constituted by exchange of letters between
them and stating that the Iranian Government “will regard itself as entitled to terminate
or suspend payments under the said agreement if [Sharjah] takes any action inconsistent,
in Iran’s view, with friendly relations between Iran and Sharjah” and that this letter con-
stitutes an integral part of the financial agreement; Letter from the Ruler of Sharjah to the
Minister for Foreign Affairs of Iran dated December 1st, 1971 accepting Iran’s proposals for
the financial agreement – the text of which is copied in this letter – and indicating that
the exchange of letters constituting the agreement shall enter into force on the date of
Sharjah’s letter December 1st, 1971. See supra note 149 and accompanying text.
564 Letter from the Minister for Foreign Affairs of Iran to the Ruler of Sharjah dated Novem-
ber 30, 1971. This provision appeared to be intended to address the condition Iran had
sought to include in the arrangements whereby it could withdraw financial assistance
to Sharjah if the Ruler “stimulated international activity” over his claim of sovereignty to
Abu Musa. See supra note 94 and accompanying text.
565 Full text of the body of the letter from the Minister for Foreign Affairs of the Iran to the
Secretary of State for Foreign and Commonwealth Affairs of the uk reads: “I confirm
that my Government accepts the arrangements for Abu Musa as set out in the enclosure
to your letter of 24th November 1971. A copy of the Memorandum of Understanding in
which the arrangements are set out is annexed to this letter.” Letter No. 21282 from the
Iranian Foreign Minister to the British Foreign Secretary, dated 25 November 1971 (Annex
3 to un Doc. S/2014/759, also published in Toye, Lower Gulf Islands, Vol. 6, 488–504).
726 chapter 9
Iran to take any measures in the island of Abu Musa which in its opinion would
be necessary to safeguard the security of the island or of the Iranian forces”.566
The British government replied by a letter dated 26 November 1971 saying
that they “have taken note of the understanding on which [the Iranian] gov-
ernment’s acceptance of the arrangements relating to Abu Musa is given and
have conveyed that understanding to the Ruler of Sharjah.”567 However, as far
as can be established, there is no record of any written acceptance by the Ruler
of Sharjah of Iran’s “understanding” set out in its letter No. 21284. This warrants
an analysis of the legal relevance of Iran’s second letter and whether the so-
called “Iranian proviso” modifies in any way the provisions of the mou.
It should initially be noted that Iran had already accepted the terms of the
mou in its first letter (letter No. 21282), attaching a copy of the mou and with-
out indicating any further conditions upon which its acceptance was based.
This acceptance, by itself, means that the process of conclusion of the mou
was already completed. Furthermore, because the mou was in force upon
Iran’s issuance of its first letter (letter No. 21282) confirming “acceptance” of
the arrangements set out in the mou, any subsequent conditions imposed by
Iran on its consent to be bound by the mou would either be considered as an
attempted interpretative declaration or as an amendment proposal after the
entry into force of the mou.568
An “interpretative declaration” is a “unilateral statement, however phrased
or named, made by a State … whereby that State … purports to specify or clarify
the meaning or scope of a treaty or of certain of its provisions.”569 Such a decla-
ration can be made at any time in the life of a treaty, is not binding on the other
party unless accepted (either explicitly or tacitly), and is simply intended to
inform the other party of the meaning and scope which the author attributes
to the provisions of the treaty.570 Thus, if it were to constitute an interpretative
566 Letter No. 21284 from the Iranian Foreign Minister to the British Foreign Secretary, dated
November 25, 1971 (only published in Toye, Lower Gulf Islands, Vol. 6, 488–504; Amirah-
madi, Small Islands, Big Politics, 162–175). See supra note 148 and accompanying text.
567 Letter from the British Foreign Secretary to the Iranian Foreign Minister, dated November
26, 1971, published in Toye, Lower Gulf Islands, Vol. 6, 488–504 and Amirahmadi, Small
Islands, Big Politics, 162–175. See supra note 148 and accompanying text.
568 It could not be considered as a “reservation” because it was made after consent to be
bound by the mou was expressed and also because in bilateral treaties, reservations are
really a renegotiation of the treaty. Aust, Modern Treaty Law, 131–132. See also, General
Assembly Official Records, 66th year, Supplement No. 10, “Report of the International law
Commission”, un Doc. A/66/10/Add.1, Chapter iv, “Reservations to Treaties”.
569 “Reservations to Treaties”, 62, Guideline 1.2.
570 Ibid., 68–69. See also, Aust, Modern Treaty Law, 126–128.
declaration, all that Iran’s second letter would do is state Iran’s interpretation
of the mou, but that interpretation would not be binding on Sharjah or the
uae unless they had (explicitly or tacitly) accepted it.
It would not appear to be possible to regard the Iranian proviso as an in-
terpretative declaration because its effect is to modify the mou rather than
interpret any of its provisions. This is apparent when considering that the mou
grants Sharjah “full jurisdiction” over its designated part of Abu Musa while
the proviso purports to give the Iranian security forces the authority to act in
Sharjah’s designated area, a clear violation of Sharjah’s “full jurisdiction” in that
area. As noted by Aust, “[p]rovided unilateral declarations do not attempt to
modify a bilateral treaty, they raise no problem of principle.”571 As the Iranian
proviso would attempt to modify the mou by giving Iran a level of jurisdictional
authority in Sharjah’s designated area, it certainly raises a “problem of principle”.
Indeed, in this sense, the proviso appears to be more of an attempted reserva-
tion (which “adjusts a treaty’s effects by specifying that certain of its terms are to
be excluded or modified with effect from the moment when the reserving state
becomes bound”572) than an attempted interpretative declaration. However,
the proviso also fails as a reservation because it was made after Iran’s a cceptance
of the mou was already formalized, and in any case, as noted by Aust:
[A] “reservation” … cannot be made to a bilateral treaty given [the] na-

ture of such a treaty. Since there are only two parties, a bilateral treaty is
more like a contract, all the terms of which must be agreed before it can
bind the parties. Making a “reservation” to a bilateral treaty amounts to a
request for a modification of it, usually in favour of the requesting state.
The treaty cannot therefore be binding unless and until the other state
accepts.573
It may also be suggested that the Iranian proviso constituted a c onditional

interpretative declaration which was delivered simultaneously with its
companion letter accepting the arrangements set out in the mou.574 Unlike an

572 Gardiner, Treaty Interpretation, 87.
573 Aust, Modern Treaty Law, 131–132 (emphasis in original).
574 The Report of the ilc defines a conditional interpretative declaration as “a unilateral
statement formulated by a State or an international organization when signing, ratifying,
formally confirming, accepting, approving or acceding to a treaty, or by a State when mak-
ing a notification of succession to a treaty, whereby the State or international organiza-
tion subjects its consent to be bound by the treaty to a specific interpretation of the treaty
or of certain provisions thereof.” “Reservations to Treaties”, 84.
728 chapter 9
interpretative declaration, which does not seek to condition acceptance of the

legally binding effects of a treaty on a particular interpretation of its terms, a
conditional interpretative declaration would “seek to produce a legal effect on
the application of the provisions of the treaty, which the State or international
organization accepts only on condition that the provisions are interpreted in
a specific way”.575 The Iranian proviso does not appear to constitute a condi-
tional interpretative declaration for the same reason that it does not consti-
tute a simple interpretative declaration: it does not, in fact, seek to interpret
any particular provision of the mou or indeed the entirety of the document.
Rather, it seeks to add a new provision (allowing Iranian forces to intervene on
the Sharjah area of the island) which is moreover completely inconsistent with
paragraph 2(b) of the mou, which grants Sharjah “full jurisdiction” over that
area. In essence, therefore, the proviso was an attempt by Iran to modify the
mou altogether, that is an attempt to impose a reservation disguised as a con-
ditional interpretative declaration. As an attempted reservation, the proviso
would fail to have any legal effects for the same reasons as noted above in rela-
tion to interpretative declarations. That the proviso was delivered in a separate
letter, and not in the same letter in which Iran fully accepted the terms of the
mou, only highlights that Iran must be held to have accepted the mou’s terms,
as is, and only then attempted to impose an inconsistent reservation, or alter-
natively, to propose a modification to the mou, to which we now turn.
As for whether Iran’s second letter containing the proviso may constitute a
proposed modification to the mou, that proposal would have had to have been
accepted by Sharjah or the uae to become effective. There is no record in the
archives reviewed of any letter or written confirmation by the Ruler of Sharjah
which reflects such acceptance. The conclusion that no written acceptance of
the proviso was made by Sharjah appears to be confirmed when noting that
the exchange of letters constituting the mou which was circulated through the
un by the uae in October 2014 did not include the letter containing the Iranian
proviso nor any letters of Sharjah accepting that proviso.576
Notwithstanding the absence of any written confirmation of the Ruler’s
knowledge or acceptance of the Iranian proviso, the negotiations on the
mou and, in particular, the newly declassified British Foreign Office files that
have been reviewed as a consequence of the foi request referenced above,
show that the Ruler was aware of its terms. Whether he specifically accept-
ed those terms or regarded them as an amendment to the mou is, however,
575 Ibid., 87.

576 Letter dated October 23, 2014 from the Permanent Representative of the United Arab
unclear, as revealed by this record of the conversation between the Ruler and
Sir William Luce held on 17 November 1971 in which the latter raised the matter:
Sir William said that he had one very important point to put to the Ruler.
The Shah had previously been preoccupied chiefly about the question of
sovereignty. Now his main worry appeared to be security. The Shah hoped
that the proposed arrangements would work. But if Ba’athists, guerrillas
or other trouble-makers arrived in the Sharjah part of the island, posing
a threat to the security of the island as a whole or to the Iranian forces,
the latter would be bound to take appropriate measures, if necessary on
the Sharjah side. The Shah hoped of course, that this situation would
not arise. The Ruler said he was himself as afraid of the Ba’athists as Iran
was. Sir William said that the Shah had been insistent that this message
should be conveyed to the Ruler. The Ruler said that he welcomed the
Shah’s preoccupation with security. He himself would feel more secure
for that reason, and, as a result be a ready visitor to the island. Mr Ely said
that he supposed that what the Shah meant was that if his forces had to
deal in self defence with the Ba’athists or others in Sharjah’s area, he did
not wish this to be regarded as a breach of the boundary line. Sir William
said that if the security of his forces or of the island as a whole was threat-
ened the Shah reserved the right to take whatever military action was
necessary. The Ruler said that if anything like that happened he himself
would call in the Iranian troops to deal with it.577
Assuming that Iran’s letter No. 21284 of 25 November 1971 in which the proviso
was set out in writing may be considered as a proposed modification to the
mou, the question arises whether the Ruler’s remarks concerning the proviso
made a week earlier during his conversation with Luce on 17 November 1971
may be considered as his acceptance of that amendment. For several reasons
this does not appear to be possible:
(i) Perhaps most fundamentally, the Ruler would only have been in a position
to accept the purported amendment once it had been formally proposed
on 25 November 1971. As noted above, there is no record of Sharjah’s (or
the uae’s) acceptance – whether in writing or orally – of the proviso fol-
lowing its presentation. It cannot therefore be concluded that anything
had been finally agreed between the parties. The previous exchanges
Sharjah on November 17, 1971, 908A.
730 chapter 9
b etween Sir William Luce and the Ruler of Sharjah on the Iranian proviso
are not, in that sense, relevant to whether the Ruler accepted an amend-
ment to the mou formally presented the following week.
(ii) The remarks by the Ruler, as recorded by the British, are ambiguous at
best. While he praises the Shah’s “preoccupation with security” and states
that he was “as afraid of the Ba’athists as Iran”, he never accepts the prop-
osition that Iran should have the authority to police and operate on the
Sharjah side of the island at its sole discretion. Indeed, his remark (appar-
ently made in jest) that if there was a security threat on the Sharjah side
of the island “he himself would call in the Iranian troops to deal with it”
can be read to mean that he objected to Iran having the authority to act
on its own initiative and that his prior permission would be required for
the entry of those troops into the Sharjah area. In summary, even if these
remarks which antedated the presentation of the purported amendment
could in principle constitute an acceptance by the Ruler of the amend-
ment, they do not clearly reflect his acceptance and thus raise doubts as
to whether anything had been agreed at all.
(iii) Even if it is assumed for the sake of argument that the remarks of the
Ruler of Sharjah constituted his agreement to an amendment to the mou
allowing – as it was put to him – Iran to take appropriate measures on
the whole of the island if there were threats against the security of the
island or the Iranian forces, the trigger for those measures as reflected
in the Ruler’s remarks was conditioned on the occurrence of attacks by
Ba’athist guerrillas or similar acts of aggression against the island. The
language used in the proviso appears to be much broader, allowing Iran
to take “any measures” on Abu Musa which it considers “necessary to
safeguard the security of the island or of the Iranian forces” without con-
ditioning such Iranian action on the occurrence of an act of aggression.
Thus, what the Ruler may arguably have agreed to was not what Iran pro-
posed, again making it difficult to consider that the parties had actually
agreed on anything.
In summary, the manner in which the Iranian proviso was presented and the
content of the proviso, which is inconsistent with the mou’s division of “full
jurisdiction” over the island, demonstrate that it does not constitute either an
interpretative declaration (or conditional interpretative declaration) or a mod-
ification of the mou. On that basis, the proviso has no legal effect on the mou.
Following from this last point, it is of historical interest to note that there
is evidence in the record which indicates that Iran may very well have for-
mulated and intended to use the “proviso” to justify an eventual expulsion of
the Sharjah police and administration on Abu Musa and an Iranian take-over
of the entire island.578 Moreover, the recently declassified files of the British
Foreign Office reveal that the British government was not only aware of Iran’s
intentions, but in fact worked with Iran in facilitating its plans by explaining
the proviso to the Ruler of Sharjah in a manner which masked Iran’s true in-
tentions and by devising the formulation of presenting two letters to the Ruler
of Sharjah related to the mou, one which unconditionally accepted its terms
and the other which purported to accept the mou on the “understanding” that
Iran would be allowed to take measures throughout Abu Musa to “safeguard
the security of the island or of the Iranian forces”. It was apparently believed
that an unambiguous statement by Iran in the first letter accepting the terms
of the mou would soften or obscure the impact of the proviso set out in the
second letter, thus putting the Ruler of Sharjah at ease in case he was to suspect
that Iran harbored ulterior motives or intended to use the proviso to expel the
Ruler’s police and administration.
Be that as it may, although Iran has not attempted to completely expel the
uae administration or population from Abu Musa, it has taken a number of
measures since (at least) 1992 which have encroached on the uae’s side of the
island in one way or another, and which have resulted in the settlement of
Iran’s civilian population and the development of civilian infrastructure on the
areas of the island under Iran’s jurisdiction. In the following section, an analy-
sis will be made as to whether these measures have violated the mou, whether
or not the Iranian proviso is considered to constitute a part of that agreement,
and what the consequences of such a violation would be. An analysis will also
be made as to whether, independently of any such breach, any grounds for
unilateral withdrawal or termination of the mou exist.
(c) Conduct of Iran on Abu Musa

In the decades since Iranian military forces arrived on Abu Musa pursuant to
the mou, the government of Iran has undertaken numerous activities on the
island which the uae has condemned, variously describing them as a means of
“forcibly cementing its occupation”579 or as “an attempt to change the island’s
578 See, e.g., fo 1016/916, Record of Conversation in Iran at Babolsar on Thursday 11 November
1971, 892A; fo 1016/916, Telegram from Tehran (following from Luce) to fco, dated No-
vember 16, 1971, 883; fo 1016/916, Telegram from fco to British Embassy in Tehran, dated
November 16, 1971, 886; fo 1016/916, Telegram from Tehran (following from Luce) to fco,
dated November 17, 1971, 888.
732 chapter 9
legal status”580 whose aim is to “perpetuate the forcible occupation of the

island”.581 The uae has also called many of such activities a “blatant violation
of the Memorandum of Understanding” by Iran which are “aimed at impos-
ing its sovereignty over the island of Abu Musa”.582 The activities in question
include many which are manifestly designed to establish a civilian presence
on the areas of the island in which the mou gives Iran jurisdiction, some
which have physically encroached on the areas of the island in which the mou
gives the uae jurisdiction, and still others which allegedly impede the uae’s
access to or ability to freely use the island. The uae has also protested against
the conduct of Iranian military exercises on or around the island’s territorial
waters, calling them a flagrant violation of uae sovereignty.583 The continuing
protests lodged by the uae against all of these specific sorts of activities have
been reviewed previously in this chapter.
In the final section of this chapter, and in light of the nature of the mou and
the activities and conduct of Iran on Abu Musa over the last 45 years, the fol-
lowing questions will be addressed. First, have such activities resulted in giving
title to Iran over the areas of Abu Musa in which it exercises jurisdiction under
the mou pursuant to the principle of acquisitive prescription? Second, and
assuming that this is not the case, have the Iranian activities on Abu Musa con-
stituted a breach of the mou which entitles the uae to terminate the mou or
take some other related action? Finally, independently of any possible breach
of the mou, could either of the contracting parties unilaterally terminate the
agreement?
(d) Acquisitive Prescription

The various questions involved in determining whether Iran may have ac-
quired sovereign title to the areas of Abu Musa under its jurisdiction pursuant
to the mou under the principle of acquisitive prescription have been analyzed
elsewhere in this work. That such a suggestion may be dismissed is perhaps
date), un Doc. S/2008/577.
581 See, e.g., Notes verbale issued by the uae dated 16 December 1996, 12 March 1996 and 22
September 1996, S/1997/8; see also, un Doc. A/48/PV.15, 38.
582 See, e.g., Note of protest sent from the uae Ministry of Foreign Affairs to the Ministry of
Foreign Affairs of Iran on August 21, 2008 (and conveyed to the un Secretary General on
the same date), un Doc. S/2008/577.
583 See, e.g., Statement of Mr. Al-Noaimi before the un General Assembly, 25 September 1977,
un Doc. A/52/PV.17.
best explained by first referring to one of the definitions of acquisitive pre-

scription referenced in chapter 3:
[T]he means by which, under international law, legal recognition is given

to the right of a state to exercise sovereignty over land … where that state
has, in fact exercised its authority in a continuous, uninterrupted, and
peaceful manner over the area concerned for a sufficient period of time,
provided that all other interested and affected states (in the case of land
territory the previous possessor…) have acquiesced in this exercise of
authority.584
In the case of Iran’s presence on Abu Musa since November 1971, it is both the
terms of the mou which authorized the arrival of its troops and their occupa-
tion of roughly half of the island as well as the history of protests by the uae
against Iran’s presence and activities on the island which foreclose the possi-
bility that Iran could overcome the legal condition that its exercise of authority
has been “peaceful” or that the uae (the “previous possessor”) has acquiesced
in that exercise of authority. Thus, under the preamble of the mou, although it
allowed Iranian forces to arrive and occupy part of the island, Sharjah (and the
uae as the successor State) neither gave up its claim to the entire island nor
recognized Iran’s claim. As the very treaty allowing the presence of Iran on Abu
Musa made clear that this presence was not recognized as sovereign in nature,
it would not be possible for Iran to argue that by having allowed it to arrive and
occupy part of the island the uae has acquiesced to Iran’s exercise of sovereign
authority.585 For that reason, Iran’s presence cannot be said to have formed
the basis of a prescriptive title. In equal measure, the continuous and specific
protests which the uae has lodged against Iran’s activities on Abu Musa and
584 D.H.N. Johnson, “Acquisitive Prescription in International Law”, British Yearbook of Inter-
national Law 27 (1950): 332–354, 353.
585 As seen in chapter 3, in the Chamizal arbitration, the claim of the United States based on
acquisitive prescription failed because on the facts its possession of the Chamizal tract
(lying between the old bed of the Rio Grande and the new bed, formed by the action of
the water on the banks of the river and causing the river to move into Mexican territory)
has not been “undisturbed, uninterrupted and unchallenged.” One of the elements taken
into account by the tribunal to deny acquisitive prescription by the United Sates was the
conclusion of a treaty with Mexico which had as its object “to fix the rights of the two
nations with regard to the changes brought about by the action of the waters of the Rio
Grande”. The arbitral tribunal concluded that “The very existence of that convention pre-
cludes the United States from acquiring prescription against the terms of their title.” The
Chamizal Case (Mexico, United States), Award of June 15, 1911, riaa 11, 309, 328–329.
734 chapter 9
in which it has consistently rejected Iranian claims of title while reiterating

the uae’s rights of sovereignty over the entire island further emphasize that
Iran’s presence on Abu Musa cannot be described as either “peaceful” or
“uninterrupted”, two of the fundamental conditions for founding a title through
acquisitive prescription. As stated by Jennings, “[i]f the latter [i.e., the original
sovereign] keeps its claim alive by protest or the bringing of an action, there
will not be that undisturbed or ‘peaceable’ possession which alone enables a
State to prescribe a title.”586
(e) Nature of the Territorial Regime Established by the mou

In considering the terms of the mou and whether it may be concluded that
either of the contracting parties may unilaterally terminate the agreement, or
whether (as asserted by the uae) measures taken by Iran on or in relation to
the island may have breached the mou and therefore given rise to a right of
termination by the uae, the nature of the territorial regime established by the
mou over the island, and whether that regime itself provides any d octrinal
answers to these questions, should first be determined. The most obvious
types of regimes which the mou might be said to resemble are those simi-
lar to a condominium over territory created as a means of settling, at least
temporarily, an international sovereignty dispute,587 a perpetual or long-term

587 Condominium exists when two or more States “exercise sovereignty conjointly over a ter-
ritory.” Jennings and Watts, Oppenheim’s International Law, 565. However, the notion of
sovereignty is particularly ill-suited to describe a condominium given that there are no
individual rights of ownership over parts of the territory subject to condominium but
rather, under a condominium created by an international agreement, each State party
needs the consent of the other/s in order to perform acts of disposition and usually there
is even an arrangement where joint action of the States is required with respect to the
territory subject to condominium. Daniel O’Connell, “The Condominium of the New
Hebrides”, British Yearbook of International Law 43 (1968–1969): 71–146, 79, 81; Vincent P.
Bantz, “The International Legal Status of Condominia”, Florida Journal of International
Law 12 (1998): 77–152, 86–87. Under a condominium arrangement the condomini usually
set up joint organs that have authority to decide certain issues in the condominial area
and the individual condomini may reserve the exercise of jurisdiction over certain mat-
ters, like over their nationals. Moreover, one thing that is particular about a condominium
arrangement is that neither of the members of the condominial community has the right
to dispose of the territory, with said right vested in the condominial community. Bantz,
“International Legal Status”, 132. Finally, an important function of condominia has been to
serve as “a pacific means of dispute settlement”, particularly because “the setting up of an
international condominial community is often the result of a failure to allocate a territory
to a single state.” Ibid, 150.
lease588 or a type of special territorial regime in which a sovereign State has

given its consent for its territory to be administered by a foreign power, while
retaining nominal or residual sovereignty.589
In brief, none of these special regimes appears to resemble the regime es-
tablished over Abu Musa. With respect to a condominium, even though these
kinds of arrangements resemble the mou insofar as they have in the past been
created as a means of settling, at least temporarily, an international sover-
eignty dispute,590 incorporating without prejudice formulas safeguarding the
parties’ sovereignty claims,591 such arrangements typically treat the territory in
question more as an integral whole and therefore contain joint administration
588 Yaël Ronen, “Territory, Lease” in Max Planck Encyclopedia of Public International Law
Online ed., ed. Rüdiger Wolfrum, para. 1 (“A lease of territory under international law is
an agreement by which a subject, ordinarily a State, grants another subject of interna-
tional law, also ordinarily a State, the right to use and exercise control over part of the
former’s territory. When territory is leased, sovereignty over it remains with the lessor and
is divorced from jurisdiction, which is granted to the lessee. Lease of territory is usually
granted in return for an annual fee.”). The terms of each lease depend upon the terms of
the treaty setting it up. Ibid. There are certain types of lease where the grantee State only
retains residual sovereignty and these can be of a fixed or perpetual duration. Crawford,
Brownlie’s Principles, 207–208. Examples of the latter include both the lease granted by
Panama to the United States in 1903 over the Panama Canal Zone and the lease granted by
Cuba to the United States in 1903 over Guantánamo Bay. Maurizio Arcari, “Panama Canal”
in Max Planck Encyclopedia of Public International Law Online ed., ed. Rüdiger Wolfrum,
paras. 13–15; Alfred de Zayas, “Guantánamo Naval Base” in Max Planck Encyclopedia of
Public International Law Online ed., ed. Rüdiger Wolfrum, paras. 12–24.
589 See, e.g., Jennings and Watts, Oppenheim’s International Law, 567; Crawford, Brownlie’s
Principles, 207. Examples of this regime include Japan’s agreement in 1951 for the United
States to “exercise all and any powers of administration, legislation and jurisdiction over
the territory and inhabitants [of the Nanpo Shoto and other islands], including their terri-
torial waters”, pending their placement under the un trusteeship system. Treaty of Peace
with Japan, signed at San Francisco, September 8, 1951, 136 unts 45, Article 3. In a subse-
quent agreement between Japan and the us, the us relinquished these powers and Japan
re-assumed “full responsibility and authority for the exercise of all and any powers of
administration, legislation and jurisdiction over the territory and inhabitants of the said
islands.” Japan-United States Agreement on Return of Certain Islands to Japan, 7 ilm 554
(1968).
590 Cf. Bantz, “International Legal Status”, 150. See supra note 587.
591 E.g., Agreement between the United States of America and Great Britain concerning a
joint administration of Canton and Enderbury Islands in the South Pacific Ocean. Ef-
fected by exchange of notes signed April 6, 1939, 196 l.n.t.s. 343 (1939), Article i, which
provided for the joint control over the islands “without prejudice to [u.s. and u.k.’s] re-
spective claims” to them.
736 chapter 9
o rgans, comprised of each of the condomini, and set up a complicated struc-

ture for the joint management of the territory under condominium.592 Such
a joint administration is absent from the mou, which effectively divided the
island of Abu Musa in two areas and provided for a separate administration of
each area, rather than joint administration.
Neither can the arrangements set out in the mou be considered a perpet-
ual or long-term international lease, mainly because of the absence of a clear
grantor and grantee of the rights set out in that instrument, a point highlighted
by the fact that the mou was concluded without prejudice to sovereignty and
because there aren’t any provisions for the payment of rent on the part of the
grantee State, which is usually present in international leases.593 While exten-
sive jurisdictional powers were granted to both Iran and Sharjah over distinct
parts of the island, the mou does not specify which of them is the grantor of
those rights and which is the grantee, as would ordinarily be the case in agree-
ments where rights of jurisdiction are granted to a foreign State (the “grantee”)
with the consent of the territorial sovereign (the “grantor”).594 Clearly, the
grantor was not specified in the case of the mou because that would have pre-
supposed the issue of which State was the rightful sovereign (the core question
which, at the time of its conclusion, was sought to be avoided). While the fail-
ure to mention which State is the grantor and which is the grantee is thus un-
derstandable, by deviating from the standard paradigm for such arrangements
it makes an analysis of the rights conferred on both parties under the mou as
a legal instrument (including the potential rights which might be impliedly
given to the grantor in a similar arrangement, for example, to terminate the ar-
rangement under certain circumstances) somewhat ambiguous and unsettled.
Finally, the mou cannot properly be placed under a special territorial regime
in which the administration of a territory belonging to one State is granted by
the sovereign of that territory to another State.595 The most clear reason for
excluding this possibility is that, again, the mou does not specify which State
592 See supra note 587.

593 See supra note 588. As seen from the summary of the negotiations on the mou, the Ruler
of Sharjah had proposed that Iran pay rent for the stationing of its military troops in Abu
Musa but the British prevailed on the Ruler to withdraw this demand as it would have led
to the breakdown of the negotiations given the Shah’s opposition to the idea. See, defe
24/576, Telegram from Bahrain Residency (following from Luce) to fco, dated September
22, 1971.
594 As it would be the case in international leases where the grantor retains residual sover-
eignty. See supra note 588.
is sovereign, reserving each party’s claim in that respect. Without establishing

this basic point, a special regime paradigm under which one sovereign State
has given its consent to another State for it to administer the first State’s recog-
nized sovereign territory would not be applicable.
Ultimately, the territorial regime established by the mou is sui generis.
Although it has elements of a condominium and a perpetual lease (but with-
out sharing all of the fundamental characteristics that these special territorial
regimes usually have), the mou must be evaluated pursuant to its own terms
and the circumstances of its conclusion. In light of the chapeau of the mou
reserving the parties’ claims over the island, the mou appears to have created a
terminable grant of jurisdiction which would come to an end when the parties
somehow agreed which of them was the rightful sovereign of the entire island
or were otherwise subject to a third party judgment awarding sovereignty over
the entire island to one or the other. Once that dispute is resolved in favor of
one of the contesting states, however, this would lead to the inevitable conclu-
sion that the mou could be terminated and the grant of jurisdiction to the
non-sovereign State withdrawn. Such an interpretation, however, does not
address whether either party may unilaterally terminate the mou prior to a
resolution of rightful sovereignty, or whether a breach of the mou might allow
it to be terminated prior to the issuance of any such resolution. It is to those
questions which we now turn.
Unilateral Termination of the mou in the Absence of Breach
In light of the absence of any clause in the mou specifying its duration or the
grounds on which it may be terminated, either party to the mou wishing to
terminate the agreement unilaterally (the parties could always terminate a
treaty by mutual agreement596) would appear to be constrained to do so e ither
under the specific conditions set forth in article 56 of the Vienna Convention597
596 vclt, Article 54.

597 Ibid., Article 56: “Denunciation of or withdrawal from a treaty containing no provision re-
garding termination, denunciation or withdrawal. 1. A treaty which contains no provision
regarding its termination and which does not provide for denunciation or withdrawal
is not subject to denunciation or withdrawal unless: (a) it is established that the parties
intended to admit the possibility of denunciation or withdrawal; or (b) a right of denun-
ciation or withdrawal may be implied by the nature of the treaty. 2. A party shall give not
less than twelve months’ notice of its intention to denounce or withdraw from a treaty
under paragraph 1.”
738 chapter 9
or if certain situations arose, such as supervening impossibility of performance,

fundamental change of circumstances598 or breach599 (this last category is ana-
lyzed below).
Strict rules apply in the law of treaties to govern circumstances in which
an international agreement does not contain any provisions concerning its
termination or withdrawal and one party wants to terminate it unilaterally.
Article 56 of the vclt prohibits a party from terminating a treaty lacking a
termination provision unless one of two conditions is met. The first condition
is that the parties “intended to admit” the possibility of denunciation or with-
drawal.600 Such an intention must be established through the application of
the rules of interpretation of treaties codified in the Vienna Convention.
In one sense, it would appear almost self-evident that each of the parties to
the mou must have intended to admit the possibility of a withdrawal or termi-
nation of the mou if it was the other party which carried out the withdrawal
or termination by voluntarily removing its forces and/or administration from
Abu Musa.601 In such circumstances, the party that remained on the island
would fulfill its claim – reserved in the mou’s preamble – of sovereignty. As it is
more than clear from the evidence derived from the history of the negotiations
that neither party wished the other party to maintain any established presence
on the island at all, it cannot be doubted that such a unilateral withdrawal by
either of them, bringing with it the termination of the mou, would not be op-
posed by the other, indeed it would have been greatly welcome. Although it is
unclear, the possibility of such a scenario in which the mou might be brought
to an early or abrupt end might have been the reason for the elimination from
the final text of the mou of a perpetual duration clause, entitled “Duration”
which read: “No date will be set for the termination of these arrangements”.602
In another sense, however, there is no evidence which would support a
conclusion that the parties intended to “admit the possibility” of a unilateral
withdrawal or termination of the mou by either of them without such with-
drawal or termination also resolving the question of sovereignty or which left
the parties’ physical division of the island intact. There is no evidence that any
598 Ibid., Articles 61 and 62. Not relevant for the present analysis with respect to the mou.
600 Ibid., Article 56.1(a).
601 Of course, if such a voluntary withdrawal was carried out by one of the parties, it may very
well be done with the prior agreement or consent of the other party, in which case the
termination of the mou would presumably be by mutual agreement.
such circumstances were ever discussed or contemplated by the parties, and

moreover, such a scenario would be entirely at odds with the purpose of the
mou, which was to find a formula, in the absence of agreement on which of
the parties was sovereign, for allowing both of them to maintain some agreed
presence on the island. Permitting a unilateral withdrawal from or termina-
tion of that agreement without resolving the issue of sovereignty would wholly
undermine that purpose. It would be, therefore, far-fetched to conclude that
the parties somehow intended to admit such an interpretation of the mou.
The second alternative condition to be satisfied under Article 56 of the
Vienna Convention in order to support unilateral termination of a treaty is
when “a right of denunciation or withdrawal may be implied by the nature of
the treaty”.603 Examples given of treaties that by their nature are considered
to allow for denunciation or unilateral termination are: commercial or trad-
ing treaties; treaties of alliance or military co-operation; treaties for technical
co-operation in economic, social, cultural, scientific, communications or any
other such matter; and treaties of arbitration, conciliation or judicial settle-
ment.604 Treaties that by their nature are not considered to allow for denun-
ciation or unilateral termination are treaties establishing a boundary between
two States, or effecting a cession of territory, or a grant of rights in or over
territory; treaties establishing an international regime for a particular area, ter-
ritory, river, waterway or airspace; treaties of peace, of disarmament, or for the
maintenance of peace; treaties effecting a final settlement of an international
dispute; and human rights treaties.605
Given the sui generis nature of the mou, an analysis based on a comparison
with these other types of treaties is not necessarily appropriate. As the mou
establishes that it was concluded without prejudice to the claims of s overeignty
of both parties, with neither party recognizing the claim of the other party and
the grant of “full jurisdiction” in paragraphs 1 and 2 not entailing a cession of
territory or a similar permanent territorial regime, it would seem sensible to
603 vclt, Article 56.1.b. As indicated by Villiger in his commentary to the Vienna Conven-
tion: “What is the relationship between the exceptions in subparas. 1(a) and (b)? The text
(“or”) demonstrates that they are intended as alternatives. This will be of relevance in the
following situation: interpretation according to subpara. 1(a) may disclose that no renun-
ciation or withdrawal was intended, whereas an interpretation of the nature of the treaty
according to subpara. 1(b) may reveal the contrary. Given the independence of subpara.
(b), the latter will prevail, and unilateral termination will be possible (unless, of course
there is a clause in the treaty excluding denunciation or withdrawal altogether[)].”Villiger,
Commentary on vclt, 703–704.
605 Ibid.
740 chapter 9
conclude that once the issue of sovereignty was somehow resolved the nature
of the mou would permit the undisputed sovereign party to unilaterally termi-
nate the arrangements. Indeed, both parties have consistently maintained the
right to hold exclusive control over Abu Musa and it would be expected that
once that issue was resolved, the sovereign party would wish and expect that it
would be entitled to exercise that right. Again, however, as a resolution of the
issue of sovereignty would most likely occur either with the prior agreement
of both parties or as a result of a third party judicial or arbitral decision to
which the parties had voluntarily submitted, it may not be highly pertinent to
state that once the issue of sovereignty was resolved the prevailing party would
have the right to terminate the mou and require the other party to withdraw
from the island. That matter would have almost certainly either formed part
of whatever agreement the parties had already reached or been contemplated
among the legal issues which had been voluntarily submitted to the judicial or
arbitral body responsible for resolving the dispute.
Breach of the mou by Iran and Its Consequences
Another basis for the unilateral termination (or suspension) of a treaty is a

termination which follows the treaty’s breach, as reflected in the provisions
of Article 60 of the Vienna Convention. With respect to bilateral treaties (as
would be the case of the mou), Article 60.1 of the Vienna Convention provides:
“A material breach of a bilateral treaty by one of the parties entitles the other
to invoke the breach as a ground for terminating the treaty or suspending its
operation in whole or in part” and “material breach” is further defined in para-
graph 3 of the same article as: “(a) a repudiation of the treaty not sanctioned
by the present Convention; or (b) the violation of a provision essential to the
accomplishment of the object or purpose of the treaty.” The customary nature
of paragraph 1 dealing with bilateral treaties has been noted by a number of
scholars, including Villiger who states that it “presents a clear and well estab-
lished picture.”606
As reviewed above in this chapter, the uae has alleged through public state-
ments issued on various occasions that Iran has breached the mou. The alleged
breaches include measures Iran has undertaken both on its allocated areas of
the island which the uae asserts exceed the rights granted to Iran under the
606 Villiger, Commentary on the vclt, 750. Aust also notes that in “Gabčíkovo, the icj held that
in many respects Articles 60-2 represented customary international law.” Aust, Modern
Treaty Law, 293.
mou (most particularly the development and construction of c ivilian infra-

structure and the transfer and settlement of Iran’s civilian population on Abu
Musa) and other measures taken by Iran which physically infringe upon the
areas of Abu Musa allocated to the uae or which inhibit the uae’s freedom of
access to those areas. The uae has also lodged protests against the use of the is-
land’s territorial sea by Iran for military purposes, which the uae has described
as a violation of uae sovereignty. Iran has consistently rejected the assertions
that its actions constitute breaches of the mou, and instead has stated its will-
ingness to discuss any “misunderstandings” between the two parties “with re-
gard to the implementation of the 1971 [mou].”607 There does not appear to be
any evidence that Iran has ever accused the uae of any specific violation of the
mou, let alone a breach which could be characterized as material. Under ar-
ticle 60 of the vclt it is only the non-breaching party (or the “innocent party”)
which may seek to invoke a breach as a ground for suspending or terminating
the treaty in question. Therefore, an analysis whether the mou could be sus-
pended or terminated due to a material breach would ultimately depend on
whether the uae sought to invoke such a breach for that purpose.
An assessment as to whether any of the measures allegedly taken by Iran
amount to a material breach of the mou which would justify its suspension
or termination would require an evaluation of the evidence which purports to
demonstrate that Iran has in fact taken such measures and a determination of
what it is the mou (and in particular paragraphs 1 and 2 of that instrument)
permits Iran to do (or prohibits it from doing) on or in relation to Abu Musa.
Only if it can be established that the acts alleged to have occurred did occur,
and, if so, whether those acts constitute a material breach of the mou could
the treaty’s suspension or termination potentially proceed on the basis of the
provisions set out in article 60.1 of the vclt.
The first of these matters – whether Iran has in fact taken the measures
alleged to be violations of the mou – would require access to the evidence on
which the uae has based the factual allegations set out in its various protests.
This evidence has not been available to the authors, although it does not ap-
pear that Iran has ever denied carrying out such measures and, on the contrary,
has asserted its right to take virtually any measures on the island it wishes.
un Doc. S/2005/189; Letter dated April 19, 2012 from the Chargé d’Affaires a.i. of the Per-
manent Mission of the Islamic Republic of Iran to the United Nations addressed to the
742 chapter 9
Whether Iran has materially breached the mou over the course of the
last 46 years would, if the matter was ever to be subject to adversarial legal
proceedings, undoubtedly generate highly contested arguments and counter-
arguments. The focus of these arguments would almost certainly be paragraphs 1
and 2 of the mou, under which Iranian forces were permitted to arrive and
occupy specific areas of Abu Musa in which Iran was to have “full jurisdiction”,
and under which the uae was to “retain” “full jurisdiction” over the remainder
of the island.608 To a significant extent, whether Iran’s activities have violated
paragraphs 1 and 2 has already been addressed above, where it was concluded
that the grant of “full jurisdiction” to Iran in the areas on Abu Musa which its
military forces were allowed to occupy meant “nothing more than that it would
fall exclusively to Iran to regulate and control the conduct of those forces in
those areas, and to do so under its own flag” and that “Iran’s presence on Abu
Musa was meant to be limited to the presence and activities of its military
forces”.609 Thus, carrying out other activities not specifically allowed under
the mou, particularly those which would prejudice a final determination on
whose claim of sovereignty is superior, including most importantly the estab-
lishment of civilian infrastructure and the settlement of a civilian population,
were not encompassed within or permitted by this grant of “full jurisdiction”.610
If this interpretation is correct, it follows that many of the activities appar-
ently carried out by Iran, including in the areas of the island in which it has “full
jurisdiction”, against which the uae has lodged protests have clearly been in
violation of the mou. These include, among others, the construction of hous-
ing facilities to settle Iranian citizens on the island, the opening of a municipal
office, the establishment of an educational institution, the construction of a
civilian airport, the opening of a cold-storage plant and fish processing factory
and the establishment of an office for the registration of ships and sailors. That
such breaches of the mou should be considered “material” also appears clear.
As noted above, article 60.3(b) of the vclt defines materiality as “the viola-
tion of a provision essential to the accomplishment of the object or purpose
of the treaty.” Villiger has pointed out that whether a breach affects the object
and purpose of a treaty “depend[s] on the subjective judgment of the innocent
608 Although there have been occasional protests related to the exclusion of uae fishermen
from the territorial waters of the island (a potential breach of paragraph 5), neither that
paragraph, nor paragraphs 3 (related to the breadth of Abu Musa’s territorial waters), 4
(related to the division of revenues from the exploitation of oil resources from beneath
the island’s territorial sea) or 6 (related to the financial assistance agreement extended to
Sharjah by Iran) have figured into the history of the uae’s protests concerning the mou
or Iran’s activities on Abu Musa in any significant or decisive way.
parties” and that “it is not the provisions themselves, but their function within
the treaty regime, which Article 60 requires to be essential.”611 Aust states that
“[d]etermining what is a ‘material breach’ depends on the precise facts and
circumstances of each case.”612 In the case of Iran’s development of civilian
infrastructure and the settlement of a civilian population on Abu Musa,
such activities undermine (particularly from the uae’s perspective) perhaps
the most essential aspect of the mou reflected in its preamble, which was to
preserve the parties’ respective claims of sovereignty over the entire island,
presumably until some resolution of that dispute was to occur. Iran’s develop-
ment of the island and its settlement of its civilian population there effectively
ignore and pre-judge the question of sovereignty, or make an eventual resolu-
tion of that question much more problematic. Moreover, such activities are
wholly incompatible with the circumstances in which the mou was negoti-
ated, which was focused on the concern of Iran to station military forces on
Abu Musa for purposes of Gulf security, and the language of article 2, which
solely permits the presence of military forces on the island. The notion that
Iran would, under cover of the mou, develop the island for civilian purposes
or settle its civilian population there was never addressed or suggested, and
cannot simply be read into the agreement.
Other than the various measures taken by Iran on its allocated areas of Abu
Musa which appear to have constituted material breaches of the mou, the uae
has also asserted that Iran has physically infringed the areas of the island al-
located to the uae, and obstructed its free access to those areas on various
occasions. Such measures have included the raising of the Iranian flag over the
uae areas of the island, prohibiting the delivery of building and construction
materials to those areas to repair houses and other buildings, obstructing the
construction of a medical clinic by the uae government for its residents of the
island and the general interference by Iran in the uae’s exercise of its jurisdic-
tion over the part of the island allocated to it. Assuming the factual accuracy
of these assertions is supported by evidence, there is little doubt that these
measures would constitute a material breach of paragraph 2(b) of the mou.
Indeed, reserving its claim of sovereignty while retaining jurisdiction over half
of the island, including the maintenance of Sharjah’s administration in areas
where the uae population resided and where the Ruler’s house and the cem-
etery in which certain of the Ruler’s ancestors were buried, had been perhaps
the most crucial element in persuading the Ruler to relent in signing the mou
rather than opting for the course taken by the Ruler of Ras Al Khaimah and
611 Villiger, Commentary on the vclt, 742–743.

744 chapter 9
“lose the island” instead of succumbing to the Iranian threats. Infringing that
jurisdiction therefore goes to the heart of the agreement.
The determination that Iran has materially breached the mou under Article
60 of the vclt does not, however, lead to the inevitable conclusion that the
uae may unilaterally suspend or terminate the agreement. This is due to two
significant considerations:
Loss of Right to Terminate or Suspend

Article 45 of the vclt, which is widely regarded as codifying a customary rule
of international law,613 provides that a State “may no longer invoke a ground
for invalidating, terminating, withdrawing from or suspending the opera-
tion of a treaty under articles 46 to 50 or articles 60 and 62 if, after becoming
aware of the facts: (a) it shall have expressly agreed that the treaty is valid or
remains in force or continues in operation, as the case may be; or (b) it must
by reason of its conduct be considered as having acquiesced in the validity
of the treaty or in its maintenance in force or in operation.” Thus, while the
“material breach” provisions of article 60 of the Vienna Convention seem to
clearly apply to Iran’s conduct on Abu Musa, the uae may have lost the right
to invoke article 60 as a basis for suspending or terminating the mou for these
past breaches since it has, following its acknowledgement of the occurrence
of many, if not all, of them, expressly stated that the mou remains in force. Of
particular note in this regard is the statement made in March 2016, in which
the Permanent Representative of the uae to the un conveyed the view of the
uae government that the “1971 Memorandum is still in force and binding, and
is the only legal basis for the presence of Iranian forces in the area allocated
to them on the island.”614 Thus, under article 45(a) of the Vienna Convention,
the uae may have lost its right to seek the suspension or termination of the
mou for past violations by Iran of which it was aware since “after becoming
aware of the facts”, it has “expressly agreed that the treaty is valid or remains in
force”. The loss of rights resulting from the application of article 45 would not,
however, preclude the uae from seeking to invoke article 60 of the vclt for
past material breaches by Iran of which the uae was not aware when it stated
that the mou remained in effect, or for future material breaches of the mou by
Iran, if these were to occur.615
613 See, e.g., Villiger, Commentary on the vclt, 579.

614 Letter dated 14 March 2016 from the Permanent Representative of the United Arab Emir-
ates to the United Nations addressed to the Secretary-General, un Doc S/2016/245.
615 It should also be noted that losing the right to invoke a ground for termination because
of breach under the combination of articles 45 and 60 of the vclt does not preclude
the right of the uae to invoke the international responsibility of Iran for breaches of the
Procedural Requirements
Of more fundamental relevance is to recognize that, notwithstanding a mate-
rial breach by Iran, a suspension or termination of the mou under article 60
of the vclt could not occur through unilateral action by the uae even if it
wished to pursue such a course of action:
The innocent party may not unilaterally and directly suspend or termi-
nate the treaty. Article 60 provides that that party is merely entitled to
invoke the breach as a ground for these courses of action … [and] that
the innocent party must pursue its rights within the framework provided
by Articles 65–68, and that suspension and termination are merely the
results of these procedures.616
The procedures for suspending or terminating a treaty set out in articles 65

and 66 of the vclt have been alluded to above in connection with the discus-
sion over the threat of the use of force by which Iran secured the mou, and
whether the uae could seek to invalidate the mou on that basis. In brief, even
if these procedures were to be applicable between Iran and the uae (which
is not certain as they are not parties to the vclt) it was noted that activating
them would not lead to a binding resolution in cases in which one of the par-
ties contests that valid grounds for such an action exist. Thus, if after giving
Iran notice of its claim “and the measures proposed to be taken” (the first step
in the procedure under article 65), Iran were to raise an objection (for instance,
that its actions were not in violation of the mou, which may very well be ex-
pected in light of its consistent denials that its actions have violated the mou),
article 65.3 requires the parties “to seek a solution through the means indi-
cated in Article 33 of the Charter of the United Nations.” In turn, article 33 of
the un Charter calls on disputing parties “to seek a solution” through “a whole
panoply of methods of settlement from which the parties are free to choose
whatever means they wish”.617 Importantly, however, none of these methods
mou. See, vclt, Article 73 (“The provisions of the present Convention shall not prejudge
any question that may arise in regard to a treaty from a succession of States or from the
international responsibility of a State or from the outbreak of hostilities between States.”).
However, there may also be issues concerning the loss of the right to invoke responsibility
by the uae under the law of State Responsibility that would need to be analyzed on a case
by case basis. See International Law Commission, Articles on Responsibility of States for
Internationally Wrongful Acts, Yearbook of the International Law Commission, 2001, vol. ii
(Part Two), Article 45 (“Loss of the right to invoke responsibility”).
616 Villiger, Commentary on the vclt, 741 (emphasis in original).
617 Ibid., 810.
746 chapter 9
obligates a recalcitrant party from resisting a solution (or even from agreeing
a method, let alone a binding method, of settlement). If such a deadlock con-
tinues for 12 months, then article 66(b) of the vclt provides that either of the
parties may “set in motion” procedures which envision the appointment of a
conciliation commission to “hear the parties, examine the claims and objec-
tions, and make proposals to the parties with a view to reaching an amicable
settlement of the dispute.”618 As the findings of the commission are not bind-
ing, and “have no other character than that of recommendations submitted for
the consideration of the parties in order to facilitate an amicable settlement
of the dispute,”619 even if Iran was to cooperate in that procedure it would not
necessarily bring the dispute to an end.
If, notwithstanding the obstacles reviewed above, the uae were ever to suc-
cessfully invoke the termination of the mou, Article 70 of the vclt provides
that the termination would release the parties from any further obligation to
perform the treaty but that the termination will not affect any right, obligation
or “legal situation” of the parties created through the execution of the treaty
prior to its termination.620 This means that “the termination does not affect
the validity of the acts of the parties performed during the treaty’s existence
and prior to its termination”.621 Thus, in contrast to the consequences of a dec-
laration of invalidity, which would have retroactive effect (ex tunc), the conse-
quences of a termination only apply prospectively (ex nunc).622 Examples of
rights not affected by the termination of a treaty are those of nationality that
has been granted, or payments which have been made or territory which has
been ceded.623 Since the provisions of the mou dividing jurisdictional control
of the island of Abu Musa did not assign sovereignty to either party or effect a
cession of territory, but rather merely granted jurisdictional authority to each
of the parties over a part of the island, this division of the island would most
likely not be considered as a “legal situation” created through the execution of
the treaty prior to its termination which could continue to have an existence
of its own beyond the termination of the mou.

620 vclt, Article 70.1 (“1. Unless the treaty otherwise provides or the parties otherwise agree,
the termination of a treaty under its provisions or in accordance with the present Con-
vention: (a) releases the parties from any obligation further to perform the treaty; (b)
does not affect any right, obligation or legal situation of the parties created through the
execution of the treaty prior to its termination.”).
621 Villiger, Commentary on the vclt, 873.
622 Ibid.
623 Ibid., 874.
Thus, if the mou were to be declared terminated, neither Iran nor the
uae would thereafter be entitled to legally justify its continuing presence on
Abu Musa on the basis of the jurisdictional grant they each received under
that agreement. Instead, they would each have to fall back on their respective
claims of sovereignty and the rights of title each of them can establish as of
the relevant critical date. This would presumably be determined on the basis
of the parties’ respective connections and ties with the island as of that critical
date (most likely the period 1887/1888 or 1903/1904624), and most importantly
for Iran, would exclude any purported sovereign measures it had taken on the
island following the signing of the mou. Exclusion of such measures from con-
sideration is not only due to the provision in the mou that it was entered into
without prejudice to the claimed rights of sovereignty of both parties (mean-
ing that Iran cannot argue that the uae has acquiesced to Iran’s activities on
the island), but also because the uae has consistently protested the measures
taken on the island by Iran, particularly with regard to the establishment of
civilian infrastructure and the settlement of a civilian population, which it
considered went beyond the rights given to Iran under the mou.625
In this respect, even if (improbably) the procedures contemplated by ar-
ticle 65 were, with the consent of Iran, to result in a binding resolution which
declared that Iran had materially breached the treaty and that the uae was
therefore entitled to bring it to an end, this would not resolve the core dispute
over sovereignty to the island. It may, on the contrary, lead to an anomalous cir-
cumstance in which Iran, albeit declared in breach of the mou, could reassert
its claim of sovereignty over Abu Musa freed from any restrictions imposed by
the mou (principally the obligation to confine its jurisdiction to its designated
areas and to observe the uae’s jurisdiction over the remainder of the island)
and demand that the uae withdraw its administration and police force from
those areas entirely as a “foreign” occupier. Obviously, the uae would take the
opposite position and, based on its view (which is in line with the conclusions
reached in this work) that it is the rightful sovereign of Abu Musa, demand that
Iran withdraw completely from the island. How such a confrontation would be
resolved is difficult to say with any certainty, but that it is fraught with p
otential
624 See generally chapter 8.

625 Cf. Jennings, Acquisition of Territory, 33. See also Fitzmaurice, “Law and Procedure of the
International Court of Justice, 1951–1954: Points of Substantive Law, Part ii”, British Year-
book of International Law 32 (1955–6); 20–96, 59, indicating with respect to protests made
when a dispute over territory exists that, while these will not nullify the acts which are
manifestations of sovereignty of the other party, they will serve “to keep alive the claim of
the protesting party, and to prevent it lapsing by tacit abandonment.”
748 chapter 9
danger to the maintenance of peace and security in the Gulf seems to be an

understatement. It is to that matter, and the potential involvement of the un
through the procedures for pacific settlement of disputes under Chapter vi of
the Charter to which we now turn.
Potential Role of the United Nations
The procedures under the un Charter which may be used by Member States
to bring a matter to the attention of the Security Council and/or the General
Assembly begin with article 35 (1) of the Charter, which provides that “any
member of the United Nations may bring any dispute, or any situation of the
nature referred to in article 34 [the continuance of which is likely to endanger
the maintenance of international peace and security], to the attention of the
Security Council or of the General Assembly.”
Article 35 of the Charter is the sole legal basis that allows States to formally
bring these matters to the attention of these un organs.626 This provision is re-
ferred to as giving Member States a “power of initiative of their own.”627 Once
a matter has been brought to the attention of the Security Council or the Gen-
eral Assembly by a Member State through article 35.1 of the un Charter, both
the Rules of the Security Council and of the General Assembly and certain
articles of the un Charter have specific provisions to deal with the steps that
follow.
The Security Council

As for the implementation of the right of initiative before the Security Coun-
cil, the practice at the un indicates that “initiatives are submitted in the form
of letters or telegrams”, which “allows the conclusion that a written form is
required.”628 These initiatives “are regularly directed to the President of the
Security Council, but they may also be communicated to the S[ecretary]
G[eneral].”629 It must be highlighted that the “letters to the President of the sc,
which merely convey information but do not connect the request to circulate
this information ‘as a document of the sc’ with a request to convene a meeting
of the sc, cannot be qualified as an exercise of the power of initiative.”630
626 T. Schweisfurth, “Article 35”, in The Charter of the United Nations. A Commentary, ed.
B. Simma, H. Mosler et al. (Oxford: Oxford University Press, 2002), 612.
627 Ibid., 609.
628 Ibid., 614.
629 Ibid., 615.
630 Ibid., 613.
Rule 3 of the Rules of Procedure of the Security Council indicates that: “The
President shall call a meeting of the Security Council if a dispute or situation
is brought to the attention of the Security Council under Article 35 … of the
Charter.”631 This would seem to automatically entail the right of every Mem-
ber State to have a matter considered before the Security Council once it has
brought it to the attention of that organ. However, as Prof. Conforti explains
with respect to this procedure:
Obviously, this concerns only the convocation of the organ. Once it has
met, the Council must ascertain whether the conditions necessary for
the exercise of its functions exist. If the conditions do not exist, it will not
include the matter referred to on its agenda.632
The “conditions necessary for the exercise of its functions” means that the
Council must satisfy itself that the matter brought to its attention endangers
international peace and security. Prof. Conforti goes on to describe the role of
the President of the Council when a matter has been brought to the attention
of the organ under article 35:
It may be said that the Council President is authorized to carry out a

prima facie investigation to exclude cases that are of manifest inadmis-
sibility, for example, cases that have already been rejected by the Council
and presented again within a very short time without any change of cir-
cumstances. This is all the more true since it is customary in the Council
for the President to consult all the members before calling a meeting.633
This prima facie power of the President of the Council to investigate amongst
the Security Council members in order to decide whether to convene a meeting
does not exist if it is a member of the Council which requests the meeting. In
that case, the President is “obligated to convoke the Council”.634 This, as Prof.
Conforti points out, is reflected in “the interpretation given to [Rule] 2 [of the
Rules of Procedure of the Council635] in practice.”636
631 See full text of the Rules at: http://www.un.org/en/sc/about/rules/.

632 Benedetto Conforti, The Law and Practice of the United Nations (Leiden: Martinus Nijhoff
Publishers, 2005), 153.
633 Ibid.
634 Ibid.
635 Rule 2 of the Rules of Procedure of the Council provides: “The President shall call a meet-
ing of the Council at the request of any member of the Security Council.” Available at:
http://www.un.org/en/sc/about/rules/.
636 Conforti, Law and Practice of the United Nations, 153–154.
750 chapter 9
When a Member State brings a matter to the attention of the Security Coun-
cil, it can also request the organ to exercise a series of functions under Chapter vi
of the un Charter in order to achieve a pacific settlement of the dispute, or
these functions can be exercised by the Council ex officio. These include the
following:
(i) Under article 33.2, the Security Council “shall, when it deems neces-
sary, call upon the parties to settle their dispute by such means” [i.e.,
negotiation, enquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or arrangements, or other
peaceful means].
(ii) Under article 34, the Security Council “may investigate any dispute”
or any situation which “might lead to a dispute” in order to deter-
mine whether its continuation is likely to threaten international
peace and security.
(iii) Under article 36.1, the Security Council may “at any stage of a dis-
pute [the continuance of which is likely to endanger the mainte-
nance of international peace and security] or of a situation of like
nature, recommend appropriate procedures” for the settlement of
the dispute. Article 36.3 specifies that, in making any such recom-
mendation, the Security Council should take into consideration
“that legal disputes should as a general rule be referred by the par-
ties to the International Court of Justice”.
(iv) Under article 37, any dispute which “endangers the maintenance of
international peace and security” and which the parties are unable
to settle “shall” be referred to the Security Council. If the Security
Council agrees that the dispute does in fact endanger the mainte-
nance of international peace and security, it shall determine w hether
to recommend a dispute resolution procedure under Article 36, such
as referral of the matter to the International Court of Justice, or such
other terms of settlement “as it may consider appropriate”.
This provision, which is closely linked to article 36, requires parties
to a serious international dispute which they “fail to settle” to refer
that dispute to the Security Council, and ensures that the Security
Council will consider the matter and take whatever action it deems
appropriate.
(v) Under article 38, the Security Council “may … make recommenda-
tions to the parties with a view to a pacific settlement of the dis-
pute.” However, this power is subject to the condition that “all the
parties to any dispute so request.”
Certain States that have brought matters to the attention of the Security Coun-
cil through article 35 of the Charter have specifically requested the Council
to resort to specific measures under the abovementioned provisions of the
Charter.637 Historically, when recommending a procedural mechanism to dis-
puting parties to resolve a pending dispute, the most frequent suggestion of
the Security Council has been for the parties to engage in negotiations. For
example, this happened in the sovereignty dispute concerning the Falklands/
Malvinas islands between the United Kingdom and Argentina (Resolution 502
of 1982).
The Security Council has on only one occasion (in the dispute over the na-
tionalization of the Suez Canal) suggested having the dispute determined by
an arbitral tribunal (Resolution 118 of 1956). In two cases, the Security Council
recommended involving the icj. The first of these cases was the incident con-
cerning the Corfu Channel between Albania and the u.k., in which the Council
“recommend[ed] that the United Kingdom and Albanian government should
immediately refer the dispute to the International Court of Justice in accor-
dance with the provisions of the Statute of the Court” (Resolution 22 of 1947).
The other occasion in which the Security Council recommended a judicial
solution to the dispute was in the Greek-Turkish dispute over the Aegean Sea,
where the Security Council “invite[d] the governments of Greece and Turkey …
to continue to take into account the contribution that appropriate judicial
means, in particular the International Court of Justice, are qualified to make to
the settlement of any remaining legal differences which they may identify in
connexion with their present dispute” (Resolution 395 of 1976).
The General Assembly

When a matter is brought to the attention of the General Assembly, the
“Assembly exercises the same identical peaceful settlement function as does
637 For instance, Guatemala sent a formal request for convening a meeting of the Security
Council, on the basis of article 35 of the Charter and article 3 of the Rules of Procedure, to
examine its dispute with the United Kingdom regarding the territory of Belize on 10 Sep-
tember 1981. In that presentation, it requested the Council to “investigate the dispute be-
tween Guatemala and the United Kingdom” in accordance with article 34 of the Charter,
to “consider [in accordance with article 38 of the Charter] whether there is need for it to
make recommendations to the parties with a view to a pacific settlement of the dispute.”
Letter dated 10 September 1981 from the Permanent Representative of Guatemala to the
United Nations Addressed to the President of the Security Council, un Doc. S/14683. The
Security Council did not, however, convene a meeting to deal with this issue, but this pre-
sentation shows that a Member State can specifically ask the Security Council to adopt
measures under articles 34, 36, 37 and 38 of the Charter.
752 chapter 9
the Council on the basis of Chapter vi of the Charter.”638 However, the Gen-
eral Assembly’s function in the peaceful settlement of disputes has a broader
scope of application than that of the Security Council,639 which focuses on the
settlement of disputes which threaten international peace and security. Under
article 14 of the Charter, the General Assembly “may recommend measures for
the peaceful adjustment of any situation … which it deems likely to impair
the general welfare or friendly relations among nations, including situations
resulting from a violation of the provisions of the present Charter setting forth
the Purposes and Principles of the United Nations.” This provision in article 14
absorbs the more specific one in article 11.2 of the Charter, according to which
“The General Assembly may discuss any questions relating to the maintenance
of international peace and security brought before it by any Member of the
United Nations, or by the Security Council … and … may make recommenda-
tions with regard to any such questions to the state or states concerned or to
the Security Council or to both.” Therefore, according to Prof. Conforti:
The very general terms of Article 14 … allow for the peaceful settlement
function of the Assembly to cover all the measures which could be ad-
opted by the Security Council under Articles 33, para. 2, 36, 37 and 38 of
the Charter. The Assembly may therefore use any instrument, as long as
it is non-binding, that may bring about agreement between the parties
involved in an international dispute or crisis or directly concerned in a
situation. It may recommend recourse to one of the procedures under
Article 33, or indicate terms of settlement … or provide for the establish-
ment or directly establish (making use of Article 22 on subsidiary organs)
organs of good offices, mediation, conciliation, and so on.
…
Does the Assembly have a power of investigation more or less similar to
the one granted to the Security Council in Article 34? The answer must
be yes. It is a power that is implicit in the peaceful settlement function,
indispensable to the organ in establishing what measures of peaceful
adjustment are to be recommended for a specific case, and it unquestion-
ably can be deduced from the broad formulation of Article 14.640
It should be noted that the peaceful settlement function of the General

Assembly can be exercised by this organ as long as the Security Council is not
638 Conforti, Law and Practice of the United Nations, 217.

639 Ibid.
640 Ibid., 218, 220–221.
exercising its authority in respect of the same situation i.e., as long as the Secu-
rity Council is “not seized” of the matter. This is in accordance with article 12.1
of the Charter which provides that “While the Security Council is exercising in
respect of any dispute or situation the functions assigned to it in the present
Charter, the General Assembly shall not make any recommendation with re-
gard to that dispute or situation unless the Security Council so requests.”
Regarding the inclusion in the agenda of the General Assembly of the topic
brought to its attention by a Member State, Rule 3 (e) of the Rules of Proce-
dure of this organ provides that “all items proposed by a Member of the United
Nations” shall be included in the provisional agenda of a regular session of the
Assembly. This Rule is linked to Annex iv, paragraph 18 of the Rules which fur-
ther indicates that “Member States requesting the inclusion of an item should,
if they deem it advisable, make a suggestion concerning its referral to a Main
Committee [of the General Assembly] or to the Plenary Assembly.” When pro-
posing an item to be included in the agenda, Rule 20 specifies that the proposal
for inclusion of such item in the agenda “shall be accompanied by an explana-
tory memorandum and, if possible, by basic documents or by a draft resolu-
tion.” Rule 21 further provides: “At each session the provisional agenda and the
supplementary list, together with the report of the General Committee there-
on, shall be submitted to the General Assembly for approval as soon as possible
after the opening of the session.” Concerning the amendment and deletion of
items, Rule 22 indicates “Items on the agenda may be amended or deleted by
the General Assembly by a majority of the members present and voting.”
In contrast to the historical involvement of the un in other long-standing
international disputes, such as the Falklands/Malvinas dispute, there are no
un Resolutions addressing the issue of Abu Musa and the Tunbs, nor is the
dispute between the uae and Iran, as a procedural matter, on the permanent
agenda of either the General Assembly or the Security Council at this time.641
With respect to the involvement of the Security Council in the dispute over
641 Indeed, there are several key differences between the Falkland/Malvinas dispute and the
dispute over the Gulf islands with respect to the involvement of the United Nations: (i) in
the case of the Falklands/Malvinas, there have been several resolutions of the General As-
sembly encouraging the parties to negotiate and the topic of the islands is included in the
permanent agenda of the General Assembly; (ii) the Falklands/Malvinas islands are in-
cluded in the list of non self-governing territories and thus the Decolonization Committee
of the General Assembly is involved; (iii) because of Argentina’s occupation of the Falk-
lands/Malvinas in 1982, the Security Council issued a series of Resolutions declaring that
there has been a breach of the peace, whereas there has never been any Security Coun-
cil Resolution (nor General Assembly Resolution) concerning Abu Musa and the Tunbs;
and (iv) in the case of the Falklands/Malvinas, the other party to the dispute (u.k.) is a
754 chapter 9
the three Gulf islands, it has been noted previously that when the dispute was
dealt with by the Security Council in December 1971 pursuant to article 35 of
the Charter in a meeting requested by four Member States (Iraq, Libya, Algeria
and Yemen), no action was taken by the Security Council at that time.642 This
can be seen in the transcript of that meeting, in which the closing remarks
were pronounced by the representative of Somalia, then a non-permanent
member of the Council. He indicated with respect to the role of the Council in
the dispute between the uae and Iran:
[Mr. Farah (Somalia)] 277. The parties in this dispute are all concerned
with the well-being of the people of the region, some directly, others indi-
rectly. With this common factor, and having regard to circumstance and
the historic ties of friendship that bind them, it is essential that these
States settle their dispute amicably so that the region may be assured of
peace, security and stability.
278. In discharging its responsibilities in matters so sensitive and delicate
as this matter of which we are seized, the Council must always act in
strict conformity with the letter and spirit of the Charter.
…
280. Chapter vi of the Charter provides for the peaceful settlement of
disputes and sets out the procedures which States should follow. Article
36 states:
“The Security Council may, at any stage of a dispute of the nature
referred to in Article 33 or of a situation of like nature, recommend ap-
propriate procedures or methods of adjustment.”
In the view of my delegation it would be precipitate at this stage to rec-
ommend any recourse under Article 36. I say this because my delegation
understands that some States friendly to both the complainants and Iran
have initiated contacts, at government level, in an attempt to bring both
sides together so that the matter might be resolved without acrimony and
with justice.
281. There is much to be said for the workings of quiet diplomacy. This
procedure might well bring about results which public debates at this
stage would fail to achieve. My delegation would therefore suggest that the
Council defer consideration of this matter to a later date, so that sufficient
permanent member of the Security Council, meaning that any Security Council Resolu-
tion addressing the matter in a way adverse to the u.k. position is ensured of an automatic
veto.
642 un Doc. S/PV.1610. See supra notes 163–169 and infra notes 645–650 and accompanying
text.
time is allowed for these efforts of quiet diplomacy to work and to material-
ize. Naturally, should these third-party efforts fail, the Council could, at the
request of the complainants, or by exercising its own discretion should the
situation so demand, resume consideration of the complaint. The interven-
ing period will enable the Council to study carefully the facts of the situation
as presented to us this afternoon by the representatives.643
Since there were no objections from the members of the Council in that meet-
ing, the President of the Council went on to say:
282. The president: Members of the Council have heard the suggestion
made by the representative of Somalia that the Council defer consider-
ation of this matter to a later date, so that sufficient time is allowed for
thorough third-party efforts to materialize.
283. As there are no objections; we will proceed accordingly.644
Despite the fact that the Security Council (by not objecting to the proposal by
the delegate from Somalia) recognized that the Council “could, at the request
of the complainants, or by exercising its own discretion should the situation so
demand, resume consideration of the complaint” and that “[t]he intervening
period [would] enable the Council to study carefully the facts of the situation”,
the dispute was never considered again, either in the Security Council or in
the General Assembly. All that either the uae or Iran have done since then
is to issue public statements at the opening session of the General Assembly
and transmit through the Secretary General their letters of protest or replies
thereto, but neither has tried to address the dispute by re-activating the provi-
sions of Chapter vi of the Charter.
In this regard, it should be noted that the annual request made by the uae
(since 1996) for the Security Council to remain seized of the dispute (prior to
1996, the matter was automatically listed as an agenda item of the Security
Council) does not have the effect of activating the provisions of Chapter vi
of the Charter. Moreover, as a procedural matter, and notwithstanding these
annual requests, it seems, despite the fact that every year the UAE brings the
matter of the islands to the attention of the Security Council, that the Secu-
rity Council is in fact no longer seized of the matter. Although in 1996 the uae
began to issue an annual request to the Security Council to “remain seized” of
the issue of the occupation of the islands, this came about only in response
643 un Doc. S/PV.1610, paras. 277–281 (emphasis added).

644 Ibid., paras. 282–283.
756 chapter 9
to a Note issued by the President of the Security Council on 22 August 1996645

which proposed a simplification of the list of matters of which the Security
Council was seized and proposed the deletion of the issue of the islands
(among other matters) “from the list of matters of which the Security Council
[was] seized.”646 This Note allowed for States to protest a proposed deletion, in
which case the Security Council would remain seized of the matter for another
year but “if at the end of one year the matter [had] still not been considered by
the Council, it [would] be automatically deleted.”647 The uae protested such
deletion initially in 1996 (and has repeatedly done so on a yearly basis thereaf-
ter) but the matter was not considered by the Council during the ensuing year,
so it must be presumed that, as a procedural matter, the islands dispute was
deleted from the list of matters of which the Security Council is seized. Indeed,
in the annual report of the Security Council, any letters filed by the UAE or the
League of Arab States on the matter are included under “matters brought to the
attention of the Security Council but not discussed at meetings of the Council
during the period covered.”648 As explained above with respect to the distribu-
tion of functions between the Security Council and the General Assembly un-
der Article 12.1 of the UN Charter, while the Security Council “remains seized”
of a matter, the General Assembly may not deal with that matter. 649 The dele-
tion of the dispute from the agenda of the Security Council, however, has no
substantive legal impact on the dispute itself, as made clear by paragraph 4 of
the Note by the President of the Security Council of 22 August 1996:
The removal of a matter from the list of matters of which the Security
Council is seized has no implication for the substance of the matter and
does not affect the exercise by Member States of its right to bring matters
to the attention of the Security Council in conformity with Article 35 of
the Charter of the United Nations. The Council may at any time decide to
include any matter in the agenda of a meeting of the Council, whether or
not it is mentioned in the list.650
645 Note by the President of the Security Council, Simplification of the list of matters of which
the Security Council is seized (Rule 11 of the provisional rules of procedure of the Security
Council), dated August 22, 1996, un Doc. S/1996/603.
646 Ibid., para. 2.
647 Ibid., para. 3.
648 See, e.g., Report of the Security Council to the General Assembly, 1 August 2010–31 July
2011, un Doc. A/66/2.
650 un Doc. S/1996/603, para. 4. Moreover, as noted above, these periodic letters appear to
constitute effective and continuing protests by the uae which have, along with its other
As for the activity of the uae before the General Assembly, it has been restricted
to an annual public statement by the Minister of Foreign Affairs in the open-
ing session of the General Assembly in September.651 Iran has typically replied
to these statements with a declaration that the three islands properly belong
under its sovereignty, and that with respect to Abu Musa, it has complied with
the mou but is prepared to discuss any “misunderstandings” which may have
arisen.652 No General Assembly resolutions have been introduced or adopted
concerning the islands.
As the dispute over the three Gulf islands has, notwithstanding the persis-
tent and emphatic protests and diplomatic efforts made by the uae over the
course of some 46 years, come no closer to resolution than it was prior to the
events of November 1971, and indeed in certain respects has disappeared from
international attention, the question arises whether the mechanisms available
through the un Charter, and in particular Chapter vi of the Charter, might
serve to facilitate or at least encourage both parties to seriously discuss or pur-
sue a resolution. Of the two disputing parties, it is clearly only the uae which
would have interest in pursuing a resolution through these mechanisms. Iran
has not only effectively denied that any international dispute actually exists
in relation to the islands (it having “regained” possession over the Tunbs in
1971 and agreed the mou in relation to Abu Musa, which it appears content to
continue in effect), but it has consistently failed to reply to the repeated calls of
the uae to submit the dispute to the icj or some other form of third party reso-
lution. Under these circumstances, the uae could consider taking additional
steps within the framework of established un procedures under Chapter vi
which would, if successful, lead to the Security Council or the General Assem-
bly either “calling upon” (the language used in article 33) or “recommending”
(the language used in articles 36 and 37) to the parties that they settle the dis-
pute in the manner which the Security Council or the General Assembly pre-
scribes. This chapter therefore concludes with a brief summary of such steps:
(i) The uae could seek to bring the matter to the attention of the
General Assembly under article 35 of the Charter and request the
General Assembly to include the topic in its agenda and to adopt
any of the measures of articles 34 (un investigation of the dispute),
periodic protests, kept its claim of sovereignty over the three islands alive. See supra notes
185–187 and 260–264 and accompanying text.
652 But, as noted above, Iran has since 2012 stopped making specific references to the mou in
its replies to the uae protests. See supra notes 232–235 and accompanying text.
758 chapter 9
36 (recommending to the parties appropriate procedures for reach-

ing settlement, including referral to the icj), 37 (referral of the
dispute to the Security Council if deemed to constitute a threat to
international peace and security) and 38 (recommendations to the
parties, at their request, for reaching a pacific settlement of the dis-
pute) of the Charter described above.
(ii) The uae could seek to bring the matter to the attention of the
Security Council under article 35, specifically requesting the Coun-
cil to convene a meeting for the purpose of considering the dispute
and further requesting the Council to exercise its powers under ar-
ticles 33.2, 34, 36, 37 and 38 of the Charter. In particular concerning
article 36, the uae could utilize it as a basis for the Council to “rec-
ommend” that Iran and the uae submit the islands dispute to the
icj. Although any such recommendation would not be binding on
Iran, it would express the Security Council’s wish that the dispute
be resolved through the icj. It would also then clearly confirm that
the islands dispute has international dimensions and would put it
in a prominent position on the international agenda. Whether the
uae could achieve such a recommendation is of course uncertain,
but, as all the permanent members of the Security Council have
been reported as supporting the resolution of the dispute through
the icj,653 it is certainly not inconceivable that a recommendation
calling for the same thing would be supported by such States if
introduced at the Security Council.
(iii) As an alternative to (ii) above, the uae could seek to have one of the
members of the Security Council which supports the uae’s position
bring the matter to the attention of the Council and thus guarantee
that a meeting of the Council will be convened to deal with the mat-
ter. Once dealing with the matter, the Council could also adopt any
of the measures of articles 33.2, 34, 36, 37 or 38 discussed above.
653 See supra note 256. See also, Statements by the uk (Baroness Hayman: u.k. sup-
ports uae on islands issue, January 28, 2009, available at https://www.highbeam.com/
doc/1G1-192704474.html) and China (China backs uae stand on three Gulf islands, June 20,
2001, available at: http://gulfnews.com/news/gulf/uae/general/china-backs-uae-stand-on
-three-gulf-islands-1.419334).
Chapter 10
Evidentiary Value of Maps in Sovereignty Disputes

over Territory
The conclusions reached in this work on the parties’ respective claims of

sovereignty over Abu Musa and the Tunbs have not relied on map evidence,
and in certain cases, have rejected that evidence as unreliable or unpersuasive.
This was the case, for example, with respect to an 1886 British War Office map
which colored the islands in the same color as the Persian mainland that was
handed to the Shah in July 1888. Indeed, it is the case that Iran has specifically
relied on the asserted existence of map evidence (including most particularly
the 1886 map) to support its claim of sovereignty over the islands.1 During the
Security Council debate over the islands that took place on 9 December 1971,
the Iranian representative stated that “[f]or more than a century, beginning
in 1770, British maps marked the Tunb islands as being Persian.”2 A number
of scholars who support the Iranian claim have also referenced numerous of-
ficial, semi-official and unofficial maps (one particular scholar has cited up to
twenty-eight maps) from the eighteenth, nineteenth and twentieth centuries
which they claim all confirm that all three islands belong to Iran.3 Another
1 E.g., Patricia L. Toye, ed., The Lower Gulf Islands: Abu Musa and The Tunbs (Slough, England:
Archive Editions, 1993), Vol. 2, 79, containing a message from the Shah dated August 1888;
ibid., Vol. 2, 121, with a message from Sir Drummond Wolff to the Marquis of Salisbury, dated
September 7, 1888 highlighting that “with regard to the Island of Sirri the Shah has quoted the
map in which that Island is marked in the Persian colours as a bar to any argument on our
part in favour of the Chiefs who lay claim to it.”
PV.1610, 18.
3 Pirouz Mojtahed-Zadeh, Security and Territoriality in the Persian Gulf (1999; reprint, London:
Routledge-Curzon, 2003), 236–238; Farhang Mehr, A Colonial Legacy. The Dispute Over the
Islands of Abu Musa, and the Greater and Lesser Tunbs (Lanham, Maryland: University
Press of America, 1997), 196–200; Davoud H. Bavand, “The Legal Basis of Iran’s Sovereignty
over Abu Musa Island,” in Small Islands, Big Politics. The Tonbs and Abu Musa in the Persian
Gulf, ed. Hooshang Amirahmadi (New York: St. Martin’s Press, 1996), 87–89. See also, Pirouz
Mojtahed-Zadeh, “The United Arab Emirates and the Iranian Islands of Tunbs and Abu Musa,”
in The Three Iranian Islands of the Persian Gulf. Based on Documents and Historical Evidence,
ed. Ali Rastbeen (Paris: Institut International D’Études Stratégiques, 2008), 81–84 (where
some of the same maps included in previous publications of the same author are mentioned).

760 Chapter 10
scholar has referred to other maps that depict the Tunbs as Iranian,4 although
he noted with respect to the statement of Iran at the Security Council men-
tioned above that his “research has not uncovered any map, British or other,
which might be viewed as a cartographical representation of the status of the
Tambs, Persian or other, in so early a date as 1770.”5
In light of the reliance which has been placed on map evidence by Iran and
its supporters, we have sought to locate and review as many of the maps they
have cited as possible.6 The results of this exercise, including high resolution
images of the maps which were found, are set out below. As will be seen, far
from confirming that the three disputed islands are and have been consistently
associated with Persian/Iranian sovereignty since the eighteenth century, in
their totality these maps paint an inconsistent and contradictory picture. Thus,
while several of the maps cited as supporting the Iranian claims do color one or
another of the islands in the color of the Persian coastline, others color one
or more of the islands in the color of the Arabian coastline, yet the majority of
the maps cited do not tie the ownership of the islands to any State or power
at all. Moreover, of the maps which color one or another of the islands in the
color of the Persian coastline, it appears that in a number of cases the coloring
was added at a later stage and not as part of the original work, making it un-
likely that the original cartographer intended to associate an island with Persia
in any case. Although it will not be considered in any detail here, it is also rel-
evant with regard to the maps cited from the eighteenth and nineteenth cen-
turies that the coastal areas of the Persian mainland in proximity to the islands
4 Guive Mirfendereski, “The Ownership of the Tonb Islands: A Legal Analysis”, in Small Islands,
Big Politics. The Tonbs and Abu Musa in the Persian Gulf, ed. Hooshang Amirahmadi (New
York: St. Martin’s Press, 1996), 126–134.
5 Guive Mirfendereski, “The Tamb Islands Controversy, 1887–1971: A case Study in Claims to
Territory in International Law” (PhD diss., Fletcher School of Law and Diplomacy, Tufts Uni-
versity, 1985), 396.
6 While the authors were successful in locating the vast majority of the maps relied upon by
scholars in the works referenced, it is of course not possible to have absolute certainty that
the maps viewed are the exact same maps – or versions of those maps – that those scholars
have themselves had in front of their eyes. Indeed, in many cases the discrepancy as to what
is depicted in the maps found and other versions of the same maps further reinforces that
no definite conclusions as to who is the proper sovereign of Abu Musa and the Tunbs can
be derived from cartographic evidence. Moreover, it is important to note that the fact that
we believe that the research we carried out in many cases evinces discrepancies as to what
scholars supporting the Iranian position claim a certain map depicts in no way is an accusa-
tion of academic partiality against these scholars. Again, the results of our archival research
simply show that the maps of the islands are not to be relied upon to derive conclusions as to
which State is the sovereign of the islands.
Evidentiary Value of Maps 761
were not during much of that time under the effective control of the Persian
government in any case7 making a color association on a map between an is-
land and that coast even more speculative. This inconsistent landscape should,
by itself, undermine any argument under accepted international legal princi-
ples that the evidence represented by these maps provides a sufficient basis
on which to draw any presumptions or conclusions on the sovereign owner
of the three disputed islands, let alone that such sovereign owner was Persia.
It should also be noted that the review set out in this chapter has been lim-
ited to testing on its face the accuracy of the map evidence put forward by Iran
and its supporters which they contend support the Iranian claims. The results
of this exercise should, by itself, serve to discredit the proposition that this map
evidence might prove to be important in making out those claims. No inde-
pendent effort has been made to search for other maps which might specifi-
cally contradict those claims, although as mentioned above, some of the maps
which are claimed to support the Iranian position or which were located in the
course of finding those maps actually associate one or other of the islands with
the Arab coast instead and those will be noted in the review. Finally, it should be
added that no investigation has been made or view taken as to the basis of the
information and geographical data used by each cartographer nor “the impar-
tiality with which he paints his picture.”8 Thus, whether any of the maps cited
by Iran and its supporters could be impugned on the basis that their makers did
not have or use accurate information in compiling them will not be addressed.
In summary, the results of this review of map evidence presented in support
of the Iranian claims show that: (i) in their totality, the maps present a con
tradictory depiction of the islands as Persian or Arab, with most of the maps
not associating the islands with any sovereign at all; (ii) in the cases where
some association with a sovereign appears to exist, this is typically a result of
color association (e.g., an island painted in the color of one of the opposite
coastlines), and in a number of those maps the color appears to have been ap-
plied by hand at a second stage, leading to contradictions of different versions
of the same maps; (iii) the evidentiary value of those maps suggesting through
color association a sovereign connection between Persia and one or other of
the disputed islands is further diminished in that, as found in this work, such a
conclusion is not consistent with any “corroborative evidence” that Persia held
title to such islands which has been “arrived [at] by other means unconnected
with the maps”, the accepted standard for giving legal value to maps other than
7 See, generally, chapters 6 and 7.

8 Charles Cheney Hyde, “Maps as Evidence in International Boundary Disputes”, American
Journal of International Law 27 (1933): 311–316, 314.
762 Chapter 10
those attached to treaties or otherwise expressing the “physical expression of

the will of the state”;9 and (iv) none of the maps submitted are annexed to
a treaty or are the clear expression of the will of the states concerned (Iran
and the uae, or their respective predecessors), which, under international
law, would serve as perhaps the only circumstance in which a map would have
independent legal force.
Following these points, and to explain why the map evidence presented in
support of Iranian sovereignty over the islands has not been relied upon in
reaching the conclusions on sovereignty made in this work, this chapter will
also review the value of maps as evidence in territorial sovereignty disputes
under international law, analyzing scholarly writing and the case law on the
topic, both of international arbitral tribunals and the icj. It is to those issues
which we now turn.
Evidentiary Value of Maps under International Law
Maps, which are “a portrayal of geographical facts, and usually also of political
facts, associated with them”10 have been generally classified into two types:
private (or unofficial) and official.11 As explained by Akweenda in his compre-
hensive review of the legal significance of maps:
Prima facie, the [private map] indicates that the map has been prepared
by a private individual, whereas the [official map] refers to a map pre-
pared by an official surveyor or cartographer of a State, its agent or by any
person under its auspices.
…
[A]n official map is “drawn by order and under the care of the state”
[quoting from the Clipperton Island case]. But in some cases the divid-
ing line is very thin. The mere fact that the official surveyors or cartogra-
phers prepared the map or compiled the data relating to it while in the
course of their duties may not necessarily be sufficient to render the map
9 Frontier Dispute (Burkina Faso/Republic of Mali), icj Reports 1986, 554, para. 54. The Court
went on to state that “[t]he only value” such maps “possess is as evidence of an auxiliary
or confirmatory kind”.
10 Hyde, “Maps as Evidence”, 311.
11 Sakeus Akweenda, “The Legal Significance of Maps in Boundary Questions. A Reappraisal
with Particular Emphasis on Namibia”, British Year Book of International Law 60 (1989):
205–255, 205–206.
o fficial. Certain additional constitutional requirements have to be com-

plied with. The Canadian case of Price Bros. & Co. v. R (1924) may illustrate
this point clearly. In that case Messrs Beaubien and Tache, respectively
the Commissioner and Assistant Commissioner of Crown Lands, pre-
pared certain Departmental maps in 1870 and 1880 depicting the disput-
ed Lake Metis. In addition to these, further maps of the disputed territory
were prepared by that Department until 1916. Some of these maps were
erroneous, in that they showed only one lake, Metis, instead of three.
Mr Justice Gibsone held that none of those departmental maps could
bind the Crown, since they had not been sanctioned by an Order in
Council. A map prepared by an officer of the State or by his order for
private use is not an official map. In determining whether a given map is
private or official, the printers are of less significance, since both classes
of maps are usually printed by cartographical firms. The publication and
printing of maps is a technical work, and some governments do not pos-
sess adequate technology.12
Despite the distinction between official and private maps and the fact that in-
ternational tribunals tend to be more cautious in admitting private maps than
official maps,13 in reality, as stated by Professor Brownlie, “a map has probative
value proportionate to its technical qualities”.14 This means that if the techni-
cal quality of a private map is high, it can have as much significance as an of-
ficial map.15
Other than official and private maps, reference is sometimes made to “semi-
official” maps, but no specific definition of this concept has been agreed either
by doctrine or case law.16
12 Akweenda, “Legal Significance of Maps”, 206–207.

13 Ibid., 219.
14 Ian Brownlie, African Boundaries: A Legal and Diplomatic Encyclopaedia (London: C.
Hurst, 1979), 5 (“In matters of evidence, logic and common sense are the best guides. Thus
a map has probative value proportionate to its technical qualities. A privately published
map may have as much significance as an official map if its technical quality is high. It
follows that the presence of disclaimers on maps will not reduce their value as expert
evidence, at least in any substantial degree. The disclaimer will have the particular effect
of avoiding any assertion that the government publishing the map has become bound
to accept the alignments shown by the virtue of legal concepts of estoppel, admissions,
acquiescence or recognition”.).
15 Akweenda, “Legal Significance of Maps”, 205, 207.
16 E.g., Island of Palmas case (Netherlands/United States of America), Award of April 4, 1928,
RIAA 2 (1928), 852 refers to “official or semi-official maps”.
764 Chapter 10
In assessing the technical quality of maps, maps produced by cartographers

ignorant of essential topographical facts, which may even have copied mis-
takes of previous maps and which are not based on original or primary sur-
veys of the area, are scrutinized with extreme care by tribunals.17 Similarly, the
impartiality of the geographer also plays a role in assessing the reliability of
maps.18
What is then, the probative value of maps in boundary or territorial dis-
putes? The Chamber of the icj that decided the Frontier Dispute (Burkina
Faso/Mali) case stated:
Whether in frontier delimitations or in international territorial conflicts,

maps merely constitute information which varies in accuracy from case
to case; of themselves, and by virtue solely of their existence, they cannot
constitute a territorial title, that is, a document endowed by international
law with intrinsic legal force for the purpose of establishing territorial
rights. Of course, in some cases maps may acquire such legal force, but
where this is so the legal force does not arise solely from their intrinsic
merits: it is because such maps fall into the category of physical expres-
sions of the will of the State or States concerned. This is the case, for ex-
ample, when maps are annexed to an official text of which they form an
integral part. Except in this clearly defined case, maps are only extrinsic
evidence of varying reliability or unreliability which may be used, along
with other evidence of a circumstantial kind, to establish or reconstitute
the real facts.19
The Chamber of the icj went on to explain that the actual weight to be given
to maps depended on the factors outlined above, i.e., technical reliability and
the neutrality of the sources used in preparing the map.20 However, even with
respect to maps regarded as complying with these factors, the Chamber went
on to say:
[M]aps can still have no greater legal value than that of corroborative
evidence endorsing a conclusion at which a court has arrived by other
means unconnected with the maps. In consequence, except when the
17 Hyde, “Maps as Evidence”, 313; Akweenda, “Legal Significance of Maps”, 213.
18 Hyde, “Maps as Evidence”, 314 (“When a cartographer possessed of requisite geographi-
cal data proceeds to make a map setting out political as well as physical situations his
trustworthiness as a witness must depend upon the impartiality with which he paints his
picture.”).
19 Frontier Dispute (Burkina Faso/Republic of Mali), icj Reports 1986, 554, para. 54.
20 Ibid., paras. 54–56.
maps are in the category of a physical expression of the will of the State,
they cannot in themselves alone be treated as evidence of a frontier,
since in that event they would form an irrebuttable presumption, tanta-
mount in fact to legal title. The only value they possess is as evidence of
an auxiliary or confirmatory kind, and this also means that they cannot
be given the character of a rebuttable or juris tantum presumption such
as to effect a reversal of the onus of proof.21
Thus, in general, maps will serve to corroborate information regarding title ar-
rived at by an international tribunal by other means but will not in themselves
be treated as evidence of the establishment of territorial rights. The exception
to this is when maps are “the physical expression of the will of the State or
States concerned”, as indicated by the Chamber of the icj.22
One of the ways that maps express the will of the States concerned is by
their incorporation into an official text, such as a treaty, particularly treaties of
delimitation. This incorporation can be either by including the map as part of
the treaty itself or by attaching the map to the treaty for illustrative purposes.23
In the former situation, the map has the same legal force as the treaty itself24
and may be said to adopt the character of primary or original evidence.25 In-
terpretative questions arise in both situations, for which the rules of interpre-
tation of treaties are to be resorted to. Particular problems become apparent
when there are discrepancies between the terms of the treaty and the map
contained therein. In these cases, the map will serve as context for the purpos-
es of interpretation under Article 31(2) of the Vienna Convention on the Law
of Treaties. However, in some cases, treaties contain specific rules that indicate
that either the treaty or the map prevails.26
An example of a treaty which has a map incorporated into it is the 1971 mou
between Sharjah and Iran, although, as discussed in chapter 9, this was not a
21 Ibid., para. 56.

22 Ibid., paras. 54, 56.
23 Sebastian tho Pesch, “Maps” in Max Planck Encyclopedia of Public International Law
Online ed., ed. Rüdiger Wolfrum, paras. 4–5; Akweenda, “Legal Significance of Maps”,
209–211.
24 Sovereignty over Certain Frontier Land (Belgium/Netherlands), icj Reports 1959, 209, 220.
25 Akweenda, “Legal Significance of Maps”, 209.
26 Ibid., 211, mentioning as an example Article 29 of the Peace Treaty of Versailles which
provides that: “The boundaries as described above are drawn in red on a one-in-a- million
map which is annexed to the present Treaty (Map No. 1). In the case of any discrepancies
between the text of the Treaty and this map or any other map which may be annexed, the
text will be final.”
766 Chapter 10
delimitation treaty but a treaty done without prejudice to sovereign territorial

claims which merely allocated jurisdiction to Iran and Sharjah in different ar-
eas of the island of Abu Musa.
When maps are not incorporated into treaties, these can still become bind-
ing on the disputing parties by their subsequent conduct through the concepts
of estoppel, admission, acquiescence or recognition. One such example is the
Temple of Preah Vihear case where the icj held that Thailand was bound, due
to acquiescence, by a map which was disadvantageous to it.27 The facts and
circumstances of this case will be reviewed in more detail in the next section
analyzing international case law regarding maps.
To avoid being estopped, admitting, acquiescing or recognizing boundar-
ies drawn on maps, States sometimes issue disclaimers.28 However, these dis-
claimers are not always effective as shown by the interpretation of the icj in
the Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/
Singapore) case. In its decision, the Court held that the disclaimer contained
in Malaysian maps which showed Pedra Branca/Pulau Batu Puteh as belonging
to Singapore which said that “the map must not be considered an authority on
the delimitation of international or other boundaries” could not extend to a
disclaimer of a distinct island which was otherwise considered by Malaysia as
falling under the sovereignty of Singapore.29
International Case Law
The treatment of maps as evidence in international cases has undergone an

evolution over time.30 Most of the case law relates to boundary disputes, not
27 Temple of Preah Vihear (Cambodia v. Thailand), icj Reports 1962, 6.

28 Akweenda, “Legal Significance of Maps”, 211.
Singapore), icj Reports 2008, 12, para. 271.
30 Tho Pesch, “Maps”, para. 9; Akweenda, “Legal Significance of Maps”, 212. See Beagle
Channel dispute between Argentina and Chile case (Argentina/Chile), Award of February
18, 1977, RIAA 21 (1977), 53, para. 137: “Historically, map evidence was originally, and un-
til fairly recently, admitted by international tribunals only with a good deal of hesita-
tion: the evidence of a map could certainly never per se override an attribution made,
or a boundary-line defined, by Treaty, and even where such an attribution or definition
was ambiguous or uncertain, map evidence of what it might be was accepted with cau-
tion. Latterly, certain decisions of the International Court of Justice have manifested a
greater disposition to treat map evidence on its merits.”, citing to: “Minquiers and Ecrehos
to disputes over islands. However, there are a few cases that do refer to islands,
which will be noted in the following paragraphs.
Early cases showed a marked reluctance to base a decision over sovereignty
on maps in light of their geographic inaccuracy and unreliability. This is what
Arbitrator Max Huber had to say about the evidence of maps in the Island of
Palmas case, where the parties had relied on several maps dating from 1599 to
1898 to support their respective claims to sovereignty over the island:
A comparison of the information supplied by the two Parties shows that

only with the greatest caution can account be taken of maps in decid-
ing a question of sovereignty, at any rate in the case of an island such
as Palmas (or Miangas). Any maps which do not precisely indicate the
political distribution of territories, and in particular the Island of Palmas
(or Miangas) clearly marked as such, must be rejected forthwith, unless
they contribute—supposing that they are accurate—to the location of
geographical names. Moreover, indications of such a nature are only of
value when there is reason to think that the cartographer has not merely
referred to already existing maps—as seems very often to be the case—
but that he has based his decision on information carefully collected for
the purpose. Above all, then, official or semi-official maps seem capable
of fulfilling these conditions, and they would be of special interest in cas-
es where they do not assert the sovereignty of the country of which the
Government has caused them to be issued.
If the Arbitrator is satisfied as to the existence of legally relevant facts
which contradict the statements of cartographers whose sources of in-
formation are not known, he can attach no weight to the maps, however
numerous and generally appreciated they may be.
The first condition required of maps that are to serve as evidence on
points of law is their geographical accuracy. It must here be pointed out
that not only maps of ancient date, but also modern, even official or
semi-official maps seem wanting in accuracy ….
…
Anyhow, a map affords only an indication—and that a very indirect
one—and, except when annexed to a legal instrument, has not the value
of such an instrument, involving recognition or abandonment of rights.31
(France/United Kingdom), icj Reports 1953, 1; Sovereignty over Certain Frontier Land, (Bel-
gium/Netherlands), 209); and Temple of Preah Vihear, 6.” Ibid.
31 Island of Palmas case, 852–853. See also, Honduras Borders (Guatemala/ Honduras),
Award of January 23, 1933, RIAA 2 (1933), 1307, 1325 (“Statements by historians and others,
768 Chapter 10
In the Clipperton Island case, in order to support its claim to the island based
on succession from Spain, Mexico relied on a map printed from the Archives
of the Mexican Society of Geography and Statistics “where the island figures
as comprised with the ‘Political and Military Governments of Spain North
America’.” However, the arbitral tribunal rejected the notion that this map
constituted an “official” map:
But the official character of this map cannot be affirmed, because it is

not certain that it was drawn by order and under the care of the state
or because the manuscript memorandum which one read there, namely,
that it was used at the Royal Tribunal of the consulate of Mexico, does not
confer official character upon it.32
In the Minquiers and Ecrehos (France v. uk) case, the parties relied heavily on
map evidence in their sovereignty dispute over this group of islets. However,
the icj did not deal in any detail with this evidence and it was Judge Levi Car-
neiro in his separate opinion that referred to the relevance of the evidence of
maps in the following way, concluding that he would not take the evidence
of maps into account:
Maps. It is necessary to say something on the evidence supplied by maps.

I know that such evidence is not always decisive in the settlement of le-
gal questions relating to territorial sovereignty. It may however constitute
proof of the fact that the occupation or exercise of sovereignty was well
known. The Parties have admitted this and have based certain conten-
tions on documents of this kind. The United Kingdom Government has
cited the map by Stieler, editions of 1905 and 1933, which show the disput-
ed islets as British. The French Agent has submitted several other maps
(Oral Arguments); some of these regard the Ecrehos as British but make
no reference to the Minquiers. Still other maps omit both groups, or in
some cases show the Ecrehos as falling outside the British zone. A search-
ing and specialized study would be required in order to decide which
of the contending views in respect of maps should prevail. At any rate,
maps do not constitute a sufficiently important contribution to e nable a
of repute, and authenticated maps, are also to be considered, although such descriptive
material is of slight value when it relates to territory of which little or nothing was known
and in which it does not appear that any administrative control was actually exercised.”).
32 Difference Relative to the Sovereignty over Clipperton Island Arbitration, Award of January
29, 1931, AJIL 26 (1932) 390, 393.
decision to be based on them. I shall not take the evidence of maps into
consideration.33
In Sovereignty over Certain Frontier Land (Belgium/Netherlands)34 the Court

attached an “unusually significant value … to maps in comparison with ear-
lier cases.”35 The main holdings in this case regarding maps concerned a map
incorporated by reference in a treaty, although the Court also placed reliance
on a Belgian military map to defeat the Dutch claim that it had exercised sov-
ereignty over the disputed area since 1843 and to negate evidence submitted
by the Dutch of exercise of governmental activities in the area.36 The case con-
cerned a sovereignty dispute over two plots of land between Belgium and the
Netherlands. Without entering here into the intricate details of the history of
the delimitation of the borders between the two countries and the way it was
entrusted to a Mixed Boundary Commission, it will suffice to say for our pur-
poses that the first maps analyzed by the Court, which were the survey maps
prepared by the Mixed Boundary Commission attributing the disputed plots
to Belgium, were designed to become and became part of the 1843 Boundary
Convention between Belgium and the Netherlands and that, in accordance
with Article 3 of that Convention, “had the same legal force as the Convention
itself”.37 On this first point, the Court concluded that “the Boundary Conven-
tion was intended to determine, and did determine, as between the two States,
to which State the various plots in each commune belonged. Under its terms,
the disputed plots were determined to belong to Belgium.”38
In rejecting the alternative argument of the Dutch that “even if the Bound-
ary Convention purported to determine the sovereignty over the disputed
plots, this was vitiated by mistake and did not carry out the intention of the
Parties”,39 the Court also referred to the survey map prepared by the Mixed
Boundary Commission, highlighting that it had been approved by the mem-
bers of the Commissions of both countries:
33 Minquiers and Ecrehos (France/United Kingdom), Separate Opinion of Judge Levi Carnei-
ro, icj Reports 1953, 85, para. 20.
34 Sovereignty over Certain Frontier Land, 209.
35 Guenter Weissberg, “Maps as Evidence in International Boundary Disputes: A Reapprais-
al”, American Journal of International Law 57 (1963): 781–803, 790.
36 Sovereignty over Certain Frontier Land, 227. Weissberg, “Maps as Evidence”, 791; Tho Pesch,
“Maps”, para. 9.
37 Sovereignty over Certain Frontier Land, 220.
38 Ibid., 222.
39 Ibid., 217.
770 Chapter 10
In the detailed map which was drawn up pursuant to the decision of the
Mixed Boundary Commission at its 225th Meeting and which was to be-
come part of the Boundary Convention, it was shown clearly, and in a
manner which could not escape notice, that the disputed plots belonged
to Belgium. They stood out as a small island in Netherlands territory co-
loured to show, in accordance with the legend of the map, that they did
not belong to the Netherlands but to Belgium. The situation of those
plots must have immediately arrested attention. This map, signed by the
members of the respective Commissions, of its very nature must have
been the subject of check by both Commissions against original docu-
ments and surveys.40
Thus, on the second contention of the Dutch government, the Court conclud-
ed that “no case of mistake has been made out and that the validity and bind-
ing force of the provisions of the Convention of 1843 in respect of the disputed
plots are not affected on that account.”41
Finally, with respect to the last alternative argument of the Dutch, that “if
sovereignty over the disputed plots was vested in Belgium by virtue of the
Boundary Convention, acts of sovereignty exercised by the Netherlands since
1843 have established sovereignty in the Netherlands”,42 the Court analyzed
whether Belgium had lost its sovereignty “by non-assertion of its rights and
by acquiescence in acts of sovereignty alleged to have been exercised by the
Netherlands at different times since 1843.”43 On this point, the Court placed
emphasis on Belgian military staff maps first published in 1874 which showed
the plots as Belgian territory and on survey records which did the same.44
In evaluating the weight to be given to the acts alleged by the Netherlands
(such as the incorporation of the plots in a Dutch survey, to which Belgium
had protested and entry into Dutch registers of land transfer deeds and regis-
trations), the Court highlighted that the “background of the complex system
of intermingled enclaves which existed” and the “difficulties confronting Bel-
gium in detecting encroachments upon, and in exercising, its sovereignty over
these two plots, surrounded by Netherlands territory” had to be taken into ac-
count.45 The Court concluded that the alleged acts by the Netherlands were
40 Ibid., 226.
41 Ibid., 227.
42 Ibid.
43 Ibid.
44 Ibid.
45 Ibid., 229.
“largely of a routine and administrative character performed by local officials

and a consequence of the inclusion by the Netherlands of the disputed plots
in its Survey, contrary to the Boundary Convention.”46 As such, these acts were
“insufficient to displace Belgian sovereignty established by that Convention.”47
The Court also relied on an 1892 unratified Convention between the parties
which purported to cede the plots from Belgium to the Netherlands. Although
this Convention was never ratified and did not become binding, it showed,
together with the contemporaneous events, that “Belgium at that time was as-
serting its sovereignty over the two plots, and that the Netherlands knew it was
so doing.”48
In the Temple of Preah Vihear (Cambodia v. Thailand) case,49 which was also
reviewed in chapter 3 when dealing with the effect of estoppel and acquies-
cence in boundary and sovereignty disputes, a map was at the heart of the
sovereignty dispute over the region of the Temple of Preah Vihear situated at
the border of the two countries. A 1904 treaty between Siam (as Thailand was
then called) and France (on behalf of Cambodia which was at the time part of
the protectorate of French Indo-China) had set the frontier in the area, to be
delimited by a joint frontier commission. The final maps implementing the
decision of the commission were executed by the French authorities in 1907
upon the request of the Siamese Government which did not have adequate
means for such technical work.50 The French officers entrusted with the map-
ping completed their work in 1907 and produced eleven maps –in due course
communicated to the Siamese government– covering a large part of the fron-
tiers between the parties, including the portions material to the case before
the Court.51 One of these maps, filed by Cambodia as Annex i of its Memorial
before the Court, was principally relied upon by Cambodia in her claim of sov-
ereignty over the Temple. Thailand contested any claims based on this map
on various grounds, one of which was because the map was never formally
approved by the Mixed Commission established by the 1904 Convention.52
The Court agreed with Thailand’s contention that given the fact that the map
had not been approved by the Mixed Commission, it had no binding character.
46 Ibid.
47 Ibid.
48 Ibid.
49 Temple of Preah Vihear, 6.
50 Ibid., 18–20. In the meantime, the parties signed a second boundary treaty in March 1907
which provided for a second Mixed Commission of Delimitation to be set up but the areas
for delimitation did not include the region of the Ibid., 19.
51 Ibid., 20.
52 Ibid., 21.
772 Chapter 10
However, the Court remarked with respect to the qualities of the map and its
provenance:
The record does not show whether the map and the line were based on
any decisions or instructions given by the Commission to the surveying
officers while it was still functioning. What is certain is that the map must
have had a basis of some sort, and the Court thinks there can be no rea-
sonable doubt that it was based on the work of the surveying officers in
the Dangrek sector. Being one of the series of maps of the frontier areas
produced by French Government topographical experts in response to
a request made by the Siamese authorities, printed and published by a
Paris firm of repute, all of which was clear from the map itself, it was
thus invested with an official standing; it had its own inherent technical
authority; and its provenance was open and obvious.53
Thailand’s second contention with respect to the map was that it embodied a
material error, which was that the frontier line indicated on the map was not
the true watershed line as mandated for in the 1904 Treaty. Thailand main-
tained that “a line drawn in accordance with the true watershed line would
have placed, and would now place, the Temple area in Thailand.”54 However,
the Court indicated that the real issue was not whether any departures from
the watershed line may have fallen within the Commission’s discretionary
powers or not, but rather “whether the Parties did adopt the Annex I map, and
the line indicated on it, as representing the outcome of the work of delimita-
tion of the frontier in the region of Preah Vihear, thereby conferring on it a
binding character.”55
The Court held that Thailand had acquiesced through its conduct in the
demarcation of part of its frontier with Cambodia, which included the ruins of
the Temple of Preah Vihear. Several instances of Thailand’s conduct amount-
ed to acquiescence of the sovereignty of Cambodia over the area in question:
(i) Thailand’s lack of reaction for a long period of time towards the frontier
marked on the Annex I map produced by the French authorities in 1907 which
placed the Temple on Cambodia’s territory;56 (ii) the lack of pronouncement,
53 Ibid.
54 Ibid.
55 Ibid., 22.
56 Ibid., 23. The Court observed: “[I]t is clear that the circumstances were such as called for
some reaction, within a reasonable period, on the part of the Siamese authorities, if they
wished to disagree with the map or had any serious question to raise in regard to it. They
at the time they received the maps, by the Siamese members of the Mixed
Commission who should have spoken up to the Siamese authorities if they had
any doubts that the map did not reflect the work of the Mixed Commission;
and (iii) the fact that the Siamese authorities thanked the French for the maps
and even requested further copies for transmission to Siamese provincial Gov-
ernors.57 Furthermore, the Court analyzed the subsequent conduct of Thai-
land and described several instances in which it had the opportunity of rais-
ing with French authorities the issue of the Annex I map (of which Thailand
became aware in 1934–1935 after conducting its own survey in the region) but
failed to do so.58 The Court also held that a 1930 visit of a “quasi-official charac-
ter” to the Temple by the Prince of Siam, at which he was “officially received …
with the French flag flying” also demanded a reaction on behalf of the Siamese
authorities but none was forthcoming.59 The Court remarked that all of the in-
stances of Thailand’s conduct amounted to acquiescence or tacit recognition
of the sovereignty of Cambodia over the Temple60 and assigned preclusive or
estoppel consequences to Thailand’s conduct.61 The Court, however, pointed
out that it considered that Thailand had – already in 1908–1909 – accepted the
Annex I map “as representing the outcome of the work of delimitation, and
did not do so, either then or for many years, and thereby must be held to have acquiesced.
Qui tacet consentire videtur si loqui debuisset ac potuisset.”
57 Ibid., 24.
58 Ibid., 27–29.
59 Ibid., 30.
60 Ibid., 23 (“[I]t is clear that the circumstances were such as called for some reaction, within
a reasonable period, on the part of the Siamese authorities, if they wished to disagree
with the map or had any serious question to raise in regard to it. They did not do so, ei-
ther then or for many years, and thereby must be held to have acquiesced.”); ibid., 30–31
(“Looking at the incident [of the Prince’s visit] as a whole, it appears to have amounted to
a tacit recognition by Siam of the sovereignty of Cambodia (under French Protectorate)
over Preah Vihear, through a failure to react in any way, on an occasion that called for a
reaction in order to affirm or preserve title in the face of an obvious rival claim.”).
61 Ibid., 32 (“The Court will now state the conclusions it draws from the facts as above set
out. Even if there were any doubt as to Siam’s acceptance of the map in 1908, and hence
of the frontier indicated thereon, the Court would consider, in the light of the subsequent
course of events, that Thailand is now precluded by her conduct from asserting that she
did not accept it. She has, for fifty years, enjoyed such benefits as the Treaty of 1904 con-
ferred on her, if only the benefit of a stable frontier. France, and through her Cambodia,
relied on Thailand’s acceptance of the map. Since neither side can plead error, it is imma-
terial whether or not this reliance was based on a belief that the map was correct. It is not
now open to Thailand, while continuing to claim and enjoy the benefits of the settlement,
to deny that she was ever a consenting party to it.”).
774 Chapter 10
hence recognized the line on that map as being the frontier line”.62 As a re-
sult of this acceptance, the Court remarked that the map entered “the trea-
ty settlement” and became “an integral part of it.”63 Thus, as a last point, the
Court held that, as a matter of “ordinary treaty interpretation” of the Treaty of
1904, it would have arrived at the same conclusion it reached by analyzing the
tacit acceptance of the map by Thailand. The reasons for arriving at that con-
clusion “as a matter of treaty interpretation” was because of the primary object
of the treaty of 1904 of achieving stability and finality in the frontier between
them, an objective which “would never be reached so long as possible errors
still remained to be discovered.”64
In the Rann of Kutch arbitration (India v. Pakistan),65 India relied heavily
on several maps and surveys to support its claim to the boundary in the area
known as Rann of Kutch, “a unique geographical feature having the charac-
teristics of a desert in the dry season and of a lake in the wet season, and thus
largely unsuitable for human habitation.”66 Before the independence of India
in 1947, the predecessors in the area of Rann of Kutch of the two contending
sovereign parties to the arbitration were Rao of Kutch, a vassal Indian State,
predecessor of India, and the British Government in Sind, predecessor of
Pakistan.
The arbitral tribunal, by majority, decided that approximately ninety per-
cent of the disputed area was under the sovereignty of India and the rest under
Pakistan’s sovereignty.67
62 Ibid., 32.
63 Ibid., 33.
64 Ibid., 34.
65 The Indo-Pakistan Western Boundary (Rann of Kutch) between India and Pakistan (India,
Pakistan), Award of February 19, 1968, RIAA 17, 1.
66 Muhammad Nawshad Zamir, “Rann of Kutch Arbitration (Indo-Pakistan Western Bound-
ary)” in Max Planck Encyclopedia of Public International Law Online ed., ed. Rüdiger Wol-
frum, para. 1. See also J. Gillis Wetter, “The Rann of Kutch Arbitration,” American Journal
of International Law 65 (1971): 346–357.
67 Rann of Kutch Arbitration, 569–572. The majority was composed of Chairman Gunnar
Lagergren and Nasrollah Entezam, the arbitrator appointed by Pakistan. However,
Mr. Entezam had initially filed an individual opinion considering that “Pakistan had made
out a clear title to the northern half of the area shown in the Survey Maps as the Rann”
but he later endorsed the judgment of the Chairman after having had the advantage of
reading it. Ibid., 571. Aleš Bebler, the arbitrator appointed by India, appended a dissenting
opinion in which he awarded the whole of the area in dispute to India, placing consider-
able weight on the evidence of the Survey of India maps and characterizing the grazing
of cattle by Sind in the areas that the majority awarded to Pakistan as a private act rather
than as a display of State authority. Ibid., 430–526.
In reaching that conclusion, the tribunal divided the evidence in different

categories and analyzed each of them: “maps, non-cartographical evidence,
such as official pronouncements and statements in the form of administration
reports, etc., incidents when boundaries in the region were put in issue, and ex-
ercise of acts of authority in disputed territory.”68 In light of this evidence, the
tribunal indicated that it had to resolve three main issues, namely: (i) “wheth-
er the boundary in dispute is a historically recognised and well-established
boundary”; (ii) “whether Great Britain, acting either as territorial sovereign, or
as Paramount Power, must be held by its conduct to have recognised, accepted
or acquiesced in the claim of Kutch that the Rann was Kutch territory, thereby
precluding or estopping Pakistan, as successor of Sind and thus of the territo-
rial sovereign rights of Great Britain in the region, from successfully claiming
any part of the disputed territory”; and (iii) “whether the British Administra-
tion in Sind and superior British authorities, acting not as Paramount Power
but as territorial sovereigns, performed acts, directly or indirectly, in assertion
of rights of territorial sovereignty over the disputed tract which were of such a
character as to be sufficient in law to confer title to the territory, or parts there-
of, upon Sind, and thereby upon its successor, Pakistan; or, conversely, whether
such exercise of sovereignty on the part of Kutch and the other States abutting
upon the Great Rann, to whose rights India is successor, would instead operate
to confer title on India to the territory, or to parts thereof.”69
With respect to the first issue, the tribunal concluded after analysing the
different types of evidence that “there did not exist … a historically recognised
and well-established boundary in the disputed region.”70 In relation to the evi-
dence of maps concerning this issue, the tribunal went through the different
maps presented and drew certain conclusions. Regarding the pre-survey maps
(i.e., the maps produced before the first survey concerned with the Rann of
Kutch area which was carried out in the years 1855–1870, or maps that were un-
influenced by the survey maps71), the tribunal stated: “Because of demonstra-
ble inaccuracy, vagueness and inconsistencies, they are generally such as not
to be accorded great weight.”72 As for the maps emanating from the different
surveys and the nature of those surveys, the tribunal concluded that “none of
the original survey maps made of the disputed territory depict [an established
boundary between Sind and Kutch]” and that “the maps issued by the Survey
68 Ibid., 535.
69 Ibid., 531.
70 Ibid., 547.
71 Ibid., 98.
72 Ibid., 535.
776 Chapter 10
of India were not as such regarded as instruments by which either the British
Government or Indian States were bound, or which could per se be viewed as
constituting authoritative acts determining sovereign rights.”73 Thus, having
concluded that these maps could not have independent significance, the tri-
bunal went on to analyze whether any “extraneous circumstances, such as ex-
press approval or other forms of official sanction by authorities outside and
above the Survey Department, invested the maps with a greater degree of au-
thority than would be conferred upon them by the mere fact of their issue.”74
This was answered in the negative by the tribunal.75
A further issue analyzed with respect to the significance of the maps was
whether “the cumulative effect of the publication of official maps in conjunc-
tion with other acts or omissions by the British authorities, and the interpreta-
tion placed on the maps by th[o]se concerned at the time, might be such that
the maps must be given decisive weight in determining the issues confronting
this Tribunal.”76 This was examined as part of the second issue that the tri-
bunal had identified, that is, whether Pakistan was estopped by acts of Great
Britain. On this point, the tribunal noted that the maps arising from the Survey
of India did “depict with striking uniformity a conterminous boundary lying
above the northern edge of the Rann” and that some of these maps had been
“approved by the highest British authorities.”77 Moreover, numerous annual
administration reports of Kutch had treated Rann as Kutch territory, both im-
plicitly and explicitly, and these reports were never contradicted by any of the
superior British authorities, including the political agent in Kutch, the Govern-
ment of Bombay, the Government of India and the India Office in London.78
The tribunal indicated that these maps and acts taken together could either be
73 Ibid., 540–541.
74 Ibid., 541.
75 Ibid., 547 (“A review of the evidence summarised in Chapter viii therefore shows that
the Secretary of State in London proposed that no Schedule and map should be used and
adopted and that the previous boundaries, whatever they may have been, should remain.
The other high British authorities who were consulted, viz., the Commissioner in Sind
and the Government of Bombay, both by way of endorsement, did not undertake an ex-
amination which went beyond formally comparing the Schedule and the Index Map with
previously existing Survey of India maps. Nor were the views of Indian States concerned
solicited, which would have been required if in the event a determination of Province or
State boundaries had been contemplated.”).
76 Ibid., 541.
77 Ibid., 553.
78 Zamir, “Rann of Kutch Arbitration”, para. 10; Rann of Kutch arbitration, 550–553.
interpreted as acquiescence in, or acceptance of, the claim by Kutch or other

Indian States that the Rann was Indian States territory or they “may amount
to a voluntary relinquishment, whether conscious or inadvertent, of British
territorial rights in the Rann.”79 The tribunal highlighted that “the acts consti-
tute a relinquishment of potential rights rather than an explicit acceptance of
claimed rights … [and should be thus] restrictively interpreted in favour of the
conceding party and its successor in title.”80 The determination of the precise
legal effects of these acts was left open until after the analysis of the third issue
set out by the tribunal to be examined, i.e., which of the acts in assertion of ter-
ritorial sovereignty of the disputing parties’ predecessors conferred title to the
territory or to parts of it to one party or the other.81
Regarding the third and last issue, the tribunal analyzed the evidence of the
various acts of sovereignty performed in the disputed area, bearing in mind
the agricultural nature of the societies at issue and the special characteristics
of the Rann, in which “the requirement of possession cannot play the same
important role in determining sovereign rights therein as it would have done
otherwise.”82 In light of this, the tribunal highlighted that “special significance
must be accorded to display of other State activities and to attitudes expressed
or implied by one or several of the sovereign entities abutting upon the Rann
in regard to the actual extension of their respective dominions.”83 The differ-
ent categories of acts of sovereignty included “customs, police surveillance and
police jurisdiction, criminal jurisdiction” and acts relating to an area of the
79 Rann of Kutch arbitration, 553.

80 Ibid.
81 Ibid., 553–554.
82 Ibid., 563. See also, ibid., 554 (“The rights and duties which by law and custom are inher-
ent in, and characteristic of, sovereignty present considerable variations in different cir-
cumstances according to time and place, and in the context of various political systems.
The sovereign entities relevant in this case prior to Independence were, on both sides of
the Rann, agricultural societies. The activities and functions of Government – leaving
aside the military organisation – were in their essence identical in Sind and Kutch, be-
ing limited mainly to the imposition of customs duties and taxes on land, livestock and
agricultural produce in the fiscal sphere, and to the maintenance of peace and order by
police and civil and criminal courts and other law enforcement agencies in the general
public sphere. In these societies, at the times relevant in these proceedings, the borders
between territories under different sovereignty still marked a strict division of economic
rights as well as of Government functions. Significantly, ownership by an Indian ruler of
agricultural property could imply and carry with it such a measure of sovereignty over it
as to include taxing authority, and civil criminal jurisdiction.”).
83 Ibid., 563.
778 Chapter 10
Rann called Dhara Banni and Chaad Bet, which contained extensive grazing
grounds.84
Analyzing the combined strength of the evidence as a whole and comparing
the relative weight of the evidence, in which the “acknowledgment in various
forms by higher British authorities to the effect that the Rann of Kutch was
Kutch territory” played an important role, the tribunal pronounced in favour of
India “[i]n respect of those sectors of the Rann in relation to which no specific
evidence in the way of display of Sind authority, or merely trivial or isolated
evidence of such a character, supports Pakistan’s claims.”85 That amounted to
approximately ninety percent of the disputed area and the tribunal considered
that Pakistan had been able to prove continuous and effective exercise of ju-
risdiction in the remaining area, comprising Dhara Banni and Chaad Bet and
other marginal areas.86 In arriving at this conclusion, the tribunal analyzed the
three grounds upon which India’s case rested.87 On the third point, namely,
that the acknowledgment by the British that the Rann of Kutch was Kutch ter-
ritory had taken, since the beginning of the nineteenth century and until inde-
pendence, “a more precise form of the depiction on maps of a conterminous
boundary between Sind and Kutch … roughly in accordance with India’s claim
line”,88 the tribunal made several observations on the weight to be given to the
map evidence at issue. This evidence consisted of maps published by the Sur-
vey of India from 1907 onwards which were widely distributed to the highest
British authorities.89 It is worth citing at some length from the observations of
the tribunal on this evidence:
84 Ibid., 557, 560.

85 Ibid., 568–569.
86 Ibid., 569–570.
87 Ibid., 564 (“The case of India rests in essence upon three grounds. The first is the fact that
the assertions made by the Rao of Kutch that the Rann was his territory were not contra-
dicted by the British authorities for a period of about 75 years prior to Independence. The
second ground is that for a long period of time, extending over three-quarters of a century,
Great Britain as Paramount Power in the subcontinent took official action by which it ac-
knowledged that the Rann of Kutch was Kutch territory. Third, in more recent times, as
from about the beginning of this century and until the eve of Independence, such a ction
on the part of the British Government in India gradually assumed the more precise form of
the depiction on maps of a conterminous boundary between Sind and Kutch, or between
Sind and the States of Western India, along the northern edge of the Great Rann, roughly
in accordance with India’s claim line. This evidence will now be appraised.”).
88 Ibid.
89 Ibid., 566.
Because of the nature of the depiction, there could hardly be any doubt in
the minds of those examining the maps that they implied and expressly
acknowledged that British territory ended on the northern side of the
Great Rann, and that the Great Rann formed part of Kutch or of other
Indian States abutting on the Rann.
However, they were maps, and in the context of the political system in
India during British times, the evidence on record leaves no room for
doubt that none of the maps produced in this case was a conclusive and
authoritative source of title to territory, except Indian Map B-44, on which
the boundary determination made in the Resolution of 1914 was authori-
tatively depicted … An overall assessment of the evidence on record con-
cerning the methods applied in making ground surveys and in preparing
basic maps, and the processes by which such maps, and particularly the
subsequent compiled maps, were produced, examined, approved and
continuously modified gives a clear picture of the true status of the rel-
evant maps. This may be said to have been that the boundary in dispute
as depicted cannot have been intended to offer more than a rather tenta-
tive indication of the actual extension of sovereign territorial rights …
When, however, the true extension of sovereignty over a territory became
the subject of investigation and inquiry, and especially of an exhaustive
judicial inquiry, the evidentiary value of the maps was lessened as far as
the relevant boundaries were concerned, and they were made to yield to evi-
dence of superior weight, particularly evidence of exercise of jurisdiction …
Persuasive evidence though the maps showing a conterminous boundary
may be at first glance for the proposition that they constituted a relin-
quishment by the British of such territorial rights in the Rann as – absent
the maps and the statements previously referred to – the British might
have asserted on legal grounds in the disputed territory, they are therefore
in the circumstances of the present case not conclusive support for a posi-
tive claim to sovereign title on the part of Kutch and the other Indian States
abutting upon the Rann.90
In light of these assertions regarding the evidence of maps, the tribunal, in

order to find (although with caution and relying on a restrictive interpretation
in favour of Pakistan) that the British had relinquished such territorial rights
as Sind might have asserted in the Rann, considered “the combined strength
of the evidence relied upon by each side”, with particular emphasis on the acts
displaying sovereign authority in the region, in addition to the assertions of
90 Ibid., 566–567 (emphasis added).

780 Chapter 10
the Rao of Kutch, the acknowledgement by the British that the Rann of Kutch
was Kutch territory and the depiction of the boundary in maps from 1907
onwards.91
In the previous section, reference was made to several passages of the Fron-
tier Dispute (Burkina Faso/Mali) case92 in which a Chamber of the icj estab-
lished widely accepted standards in relation to the probative value of maps.93
When analyzing the maps produced in the case by the parties and their pro-
bative value, the Chamber remarked that none of the maps submitted by the
parties were annexed, referred to or enclosed in the administrative documents
which the Chamber of the Court had to interpret. In fact, when the adminis-
trative instruments at issue in the case (such as decrees and regulations of the
former colonial administration of the territories that now constitute Burkina
Faso and Mali) did refer to maps as annexed or enclosed, those very maps were
missing in the parties’ submissions. Thus, the Chamber indicated that “spe-
cial vigilance” was required when examining the maps submitted by the par-
ties.94 Of the maps submitted by the parties, the Chamber noted that there
was one map in particular, a map of West Africa issued by the French Institut
Géographique National (“ign map”) published between 1958 and 1960 which
enjoyed the general approval of both Parties in the depiction of the topogra-
phy, although the parties disagreed as to the correctness of the depiction of the
frontier. The Chamber referred to documents submitted by the parties which
explained how the ign map had been compiled, which relied both on the ad-
ministrative texts referring to the border and where these were inconclusive,
“the actual frontier was … recorded in the light of information supplied by the
head of the frontier districts and according to information gathered on the
spot from the village chiefs and local people.”95 Based on these considerations
and the fact that the ign was a “body neutral towards the Parties to the present
dispute”, the Chamber stated:
[A]lthough [the ign map] does not possess the status of a legal title, it is
a visual portrayal both of the available texts and of information obtained
91 Ibid., 569. See also, Zamir, “Rann of Kutch Arbitration”, paras. 13, 18.
92 Frontier Dispute (Burkina Faso/Mali), 554.
93 See also, the Frontier Dispute (Benin/Niger), icj Reports 2005, 90, para. 44, in which anoth-
er chamber of the icj resolving the frontier dispute between Benin and Niger endorsed
the terms in which the probative value of maps was described in Frontier Dispute (Burkina
Faso/Mali).
94 Frontier Dispute (Burkina Faso/Mali), 584.
95 Ibid., paras. 61–62.
on the ground. This in itself is not sufficient to permit the Chamber to

infer that the frontier line depicted in the form of small crosses, whether
in a continuous or a broken series, in the successive editions of the ign
map, corresponds entirely with the boundary inherited from the colonial
administration. It has to consider how far the evidence offered by this or
any map corroborates the other evidence produced. The Chamber can-
not uphold the information given by the map where it is contradicted
by other trustworthy information concerning the intentions of the co-
lonial power. However, having regard to the date on which the surveys
were made and the neutrality of the source, the Chamber considers that
where all other evidence is lacking, or is not sufficient to show an exact
line, the probative value of the ign map becomes decisive.96
The arbitral tribunal in the Eritrea/Yemen Arbitration,97 while it did not

base its decision on map evidence, analyzed in a fair amount of detail the
cartographical evidence presented by the parties and observed that map
evidence would have been of greater importance had there been no other
evidence in the record.98 Despite not basing its decision on map evidence,
the arbitral tribunal did highlight with respect to the Zuqar-Hanis group of
islands that were awarded to Yemen that “Yemen has a marginally better case
in terms of favourable maps discovered, and looked at in their totality the
maps do suggest a certain widespread repute that these islands appertain to
Yemen.”99
The arbitral tribunal divided the maps presented by the parties into the dif-
ferent periods in which they were produced and drew conclusions on each
period. With respect to the maps of the eighteenth and nineteenth centuries
(pre-1872), which were adduced by Yemen in support of its ancient or historic
title, the arbitral tribunal highlighted that “there is no attribution of the terri-
tory of the Islands to Yemen, as such” even if the islands were more identifiable
96 Ibid., para. 62.

97 Territorial sovereignty and Scope of the Dispute (Eritrea/Yemen), Award of October 9, 1998,
RIAA 22 (1998) 211.
98 Ibid., para. 375 (“However, since the Tribunal has arrived at its legal conclusions about the
status of the Islands on the basis of the diplomatic record and agreements entered into
between 1923 and 1939, the map evidence – whilst supportive of and consistent with the
conclusions reached – is not itself determinative. Were there no other evidence in the
record concerning the attitude or intentions of Italy, this evidence would be of greater
importance.”).
782 Chapter 10
with the Arabian rather than with the African side of the Red Sea.100 In refer-
ring to the maps of this period, the arbitral tribunal remarked that “conclusions
based on this material would be tenuous at best”, in particular because the
colour of maps was applied by hand at a second stage, which made it impos-
sible to “evaluate the colour of maps” produced in this period.101 In addition,
the tribunal highlighted that “there is no evidence that Southern Arabian rul-
ers themselves ever saw or authorized these maps.”102
The next period of maps analyzed by the arbitral tribunal was from
1872–1918 and the tribunal noted that the parties were in agreement that the
map evidence confirmed that the Ottoman Empire was sovereign over the
islands.103 The maps of the inter-war period between 1924 and 1939, which
consisted mainly of official Italian maps which did not consider the islands
under Italian sovereignty, were treated by the arbitral tribunal as not being
in themselves determinative but “supportive of and consistent with the con-
clusions reached” by the tribunal “on the basis of the diplomatic record and
agreements entered into between 1923 and 1939.”104 Regarding a 1950 United
Nations map in which the islands were in the same colour as Yemen, the tri-
bunal observed that “[i]t is well accepted that, in the United Nations practice,
its publication of a map does not constitute a recognition of sovereign title to
territory by the United Nations” and that the map could not “affirmatively prove
that the islands were Yemeni, even if they bear the same colour as Yemen.”105
The maps presented by the parties in the period 1950–1990 included maps
produced by third parties “in order to demonstrate that informed opinion rec-
ognized the Islands as respectively forming part of Ethiopia, or of Yemen.”106
On the legal value of this evidence, the tribunal remarked:
Although the Tribunal must be wary of this evidence in the sense that
it cannot be used as indicative of legal title, it is nonetheless “important
evidence of general opinion or repute” in the sense advanced by Yemen
[quoting from Sir Gerald Fitzmaurice] …
The evidence for this period is beset with contradictions and uncertain-
ties. Each Party has demonstrated inconsistency in its official maps. The
general trend is, however, that Yemeni map evidence is superior in scope
100 Ibid., para. 369.

101 Ibid., para. 370.
102 Ibid. See also, ibid., para. 388.
103 Ibid., para. 371. See also, ibid., para. 388.
104 Ibid., para. 375. See also, ibid., para. 388.
105 Ibid., paras. 377–378. See also, ibid., para. 388.
106 Ibid., para. 380.
and volume to that of Eritrea. However, such weight as can be attached

to map evidence in favour of one Party is balanced by the fact that each
Party has published maps that appear to run counter to its assertions in
these proceedings.107
Finally, with respect to the period from 1992 to 1995, the tribunal noted the
following:
[E]vidence is in the record showing broadly-publicized official and semi-

official Eritrean cartography shortly after independence which shows the
Islands as non-Eritrean if not Yemeni. The evidence is, as in all cases of
maps, to be handled with great delicacy.108
In the Kasikili/Sedudu Island (Botswana/Namibia) case, an 1890 treaty between

Great Britain and Germany divided their spheres of influence in Africa, includ-
ing in southwest Africa, and its interpretation was at the heart of the decision
of the Court to delimit the frontier between Botswana and Namibia “follow-
ing the line of deepest soundings in the northern channel of the Chobe River
around Kasikili/Sedudu island.”109 Although article iii, paragraph 2 of the 1890
treaty stated that “[t]he course of the … boundary is traced in general accor-
dance with a map officially prepared for the British Government in 1889”,110
the Court noted that “[n]o boundary line is drawn on this map, and it was not
annexed to the 1890 Treaty … there was no map appended to the 1890 Treaty of-
ficially expressing the intentions of Germany and Great Britain with regard to
the course of the boundary between their respective possessions in the area.”111
Thus, the Court went on to analyze the maps presented by the parties as “sub-
sequent practice” of the parties for the interpretation of the 1890 Treaty. In this
respect, it was pointed out that some of the maps presented showed the bound-
ary in the south channel of the River but that the reason for that was most
likely linked to the use of the Kasikili/Sedudu island by a local tribe and that
local officials on each side had agreed and communicated to their superiors
that that depiction of the boundary did not accord with the main channel of
the river.112 The Court, making reference to the declaration on the evidentiary
107 Ibid., paras. 381, 388.

108 Ibid., para. 388.
109 Kasikili/Sedudu Island (Botswana/Namibia), icj Reports 1999, 1045, para. 104.
784 Chapter 10
value of maps by the Chamber in the Frontier Dispute (Burkina Faso/Mali) case,
concluded with respect to the cartographic material in the case:
In view of the absence of any map officially reflecting the intentions of the
parties to the 1890 Treaty and of any express or tacit agreement between
them or their successors concerning the validity of the boundary depicted
in a map (cf. Temple of Preah Vihear, Judgment, Merits, I.C.J. Reports 1962,
pp. 33–35), and in the light of the uncertainty and inconsistency of the
cartographic material submitted to it, the Court considers itself unable
to draw conclusions from the map evidence produced in this case. That
evidence cannot therefore “endors[e] a conclusion at which a court has
arrived by other means unconnected with the maps” (Frontier Dispute
(Burkina Faso/Republic of Mali), I.C.J. Reports 1986, p. 583, para. 56),
nor can it alter the results of the Court’s textual interpretation of the 1890
Treaty.113
The Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indo-
nesia v. Malaysia) is one of the most recent icj decisions to have dealt with the
evidence of maps in a sovereignty dispute over islands.114 Both parties relied
on several maps to support their claims of sovereignty to the two islands of
Ligitan and Sipadan.115 Most of the maps relied on by the parties were put for-
ward in order to support their respective interpretations of an 1891 Convention
between Great Britain and the Netherlands “for the purpose of ‘defining the
boundaries between the Netherland possessions in the Island of Borneo and
the States in that island which [were] under British protection’.”116
Based on its interpretation of the 1891 Convention, Indonesia’s position was
that the 4° 10’ parallel dividing line established in its Article iv – which was
described in that article as continuing “across the island of Sebatik”, was an
allocation line which was intended to extend and prolong “out to sea” beyond
that island and thus serve as a boundary line between the parties’ respective
possession of islands on the high seas; given that the disputed islands lay to
the south of that theoretical extension of the dividing line, title to the islands
vested in the Netherlands and now in Indonesia. The Court rejected Indone-
sia’s arguments. It engaged in the interpretation of the 1891 Convention under

114 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/ Malaysia), icj Reports 2002,
625.
115 Ibid, para. 81–91.
the rules of treaty interpretation and concluded that the text of Article iv, read
in its context and in light of the object and purpose of the Convention, could
not be interpreted as establishing an allocation line determining sovereignty
over the islands out to sea, to the east of the island of Sebatik.117
The Court further analyzed each of the maps “of various natures and ori-
gins” presented by the parties “in support of their respective interpretations of
Article iv of the 1891 Convention.”118 The Court recalled its holding on the legal
value of maps in the Frontier Dispute (Burkina Faso/Mali) case,119 observed that
“no map reflecting the agreed views of the parties was appended to the 1891
Convention” and concluded that “the cartographic material submitted by the
Parties is inconclusive in respect of the interpretation of Article iv of the 1891
Convention”.120 In so concluding, the Court observed that “each of the[] maps
was produced for specific purposes and it is therefore unable to draw from
those maps any clear and final conclusion as to whether or not the line defined
in Article iv of the 1891 Convention extended to the east of Sebatik Island.”121
Two maps, however, were subject to a separate analysis by the Court. The
first one was a map of the area encompassed by the 1891 Convention which
accompanied a Dutch Explanatory Memorandum annexed by the Dutch to
“the draft Law submitted to the States-General of the Netherlands with a view
to the ratification of the 1891 Convention and the ‘purpose of [which] was to
explain to the States-General the significance of a proposed treaty, and why
its conclusion was in the interests of the Netherlands’.” This map contained 4
differently colored lines, representing the boundaries initially claimed by the
Netherlands and the British North Borneo Company, the line proposed by
the British government and the line eventually agreed (this last line appearing
in red). Only the red line extended out to sea for a significant distance beyond
Sebatik island. The Court noted that no explanation was given for the exten-
sion of the red line out to sea, no islands were shown to the south of that line
on the map itself and “there is nothing in the case file to suggest that Ligitan
and Sipadan, or other islands such as Mabul, were territories disputed between
Great Britain and the Netherlands at the time when the Convention was con-
cluded”. For these reasons, the Court concluded that, as argued by Malaysia,
the map (and its red line) could not serve as evidence that “the red line was
117 Ibid., paras. 39–52.

118 Ibid., para. 81. The sources of these maps included various atlases, as well as Indonesian,
Malaysian, Dutch and British government-produced maps.
119 Frontier Dispute (Burkina Faso/Mali), para. 54.
120 Sovereignty over Pulau Ligitan and Pulau Sipadan, para. 91.
786 Chapter 10
extended in order to settle any dispute in the waters beyond Sebatik, with the
consequence that Ligitan and Sipadan were attributed to the Netherlands.”122
The Court also rejected Indonesia’s argument that the fact that the Dutch
Memorandum containing the map had been transmitted by a representative
of Great Britain to the British Foreign Office and that the Foreign Office did
not react to this internal transmission constituted Britain’s acquiescence to the
line drawn on the map.123 In this regard, the Court noted that the Dutch gov-
ernment itself had never transmitted the memorandum and map to the British
government, but rather these documents had been sent by a British diplomatic
agent in The Hague to the Foreign Office after he had seen them published in
the Official Journal of the Netherlands.
The second map separately analyzed by the Court to which it gave a specific
evidentiary value was annexed to a subsequent agreement (1915 Agreement)
signed between Great Britain and the Netherlands “relating to ‘the boundary
between the State of North Borneo and the Netherlands possessions in Bor-
neo’”, which was entered into pursuant to the 1891 Convention.124 By the 1915
Agreement, the Netherlands and Great Britain approved and confirmed a joint
report incorporated into that Agreement and the map annexed thereto. The
report and the map had been drawn up by a mixed Commission. The map
once again set out the agreed dividing line, showing it as ending at Sebatik is-
land, with no seaward extension beyond that point. The Court concluded, after
examining the terms of the 1915 Agreement and the joint report of the Com-
mission, that the map, which “is the only one which was agreed between the
parties to the 1891 Convention”, served as probative evidence that “reinforces
the Court’s interpretation” of the 1891 Convention as not having extended the
122 Ibid., para. 47 (“The Court notes that the map shows only a number of islands situated
to the north of parallel 4º 10’; apart from a few reefs, no island is shown to the south of
that line. The Court accordingly concludes that the Members of the Dutch Parliament
were almost certainly unaware that two tiny islands lay to the south of the parallel and
that the red line might be taken for an allocation line. In this regard, the Court notes that
there is nothing in the case file to suggest that Ligitan and Sipadan … were territories dis-
puted between Great Britain and the Netherlands at the time when the Convention was
concluded. The Court cannot therefore accept that the red line was extended in order to
settle any dispute in the waters beyond Sebatik, with the consequence that Ligitan and
Sipadan were attributed to the Netherlands.”)
124 Article v of the 1891 Convention provided that the parties would in the future be able to
define the course of the boundary line more exactly. This was done by subsequent con-
ventions, one in 1915 and one in 1928. Sovereignty over Pulau Ligitan and Pulau Sipadan,
paras. 70–73.
boundary line beyond Sebatik island and, for that reason, not having deter-
mined sovereignty over the two disputed islands.125
In the Case concerning Territorial and Maritime Dispute Between Nicara-
gua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), the icj also
briefly dealt with the evidentiary value of the maps presented by the parties.
In addressing the cartographic evidence in the case (which mostly referred to
maps of the twentieth century), the Court cited from two early arbitral awards
(the Arbitration between Guatemala and Honduras of 1933 and the Island
of Palmas case) and from the Chamber of the Court in the Frontier Dispute
(Burkina Faso/Mali) case, all of which stressed “the limited scope of maps as a
source of sovereign title.”126 The Court concluded with respect to the maps in
this case:
In this case, the submission of cartographic material by the Parties es-

sentially serves the purpose of buttressing their respective claims and
of confirming their arguments. The Court finds that it can derive little
of legal significance from the official maps submitted and the maps of
geographical institutions cited; these maps will be treated with a certain
reserve. Such qualification is contained in a previous pronouncement by
the Chamber of the Court … (Frontier Dispute (Burkina Faso/Republic of
Mali), Judgment, I.C.J. Reports 1986, p. 583, para. 56)[.]
None of the maps submitted by the Parties was part of a legal instrument
in force nor more specifically part of a boundary treaty concluded be-
tween Nicaragua and Honduras.
The Court concludes that the cartographic material that was presented
by the Parties in the written and oral proceedings cannot of itself support
their respective claims to sovereignty over islands to the north of the 15th
parallel.127
With this background, and to give some context to the review of maps cited by
Iran, a number of early maps of the Gulf area around the islands which were
produced by the Dutch East India Company will be looked at. Each of these
maps, which are primarily dated in the seventeenth century, thus pre-dates the
eighteenth, nineteenth and twentieth century maps reviewed further below.
As such, they provide a useful antecedent to a review of those later maps.

126 Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), icj Reports 2007, 659, paras. 215.
127 Ibid., paras. 217–219.
788 Chapter 10
Seventeenth and Eighteenth Century Maps Produced by the Dutch

East India Company – An Early Window on the Islands
The Dutch East India Company began charting the Gulf in 1645 during the
aiden voyage of its trading vessels from Bandar Abbas to Basra. While the maps
m
it produced based on the information obtained during these voyages are inter-
esting from an historical point of view, and establish that the islands’ existence
was well-known to Dutch mariners at the time, the cartographical accuracy of
these maps appears somewhat unreliable and inconsistent. For example, the
number of islands may change from map to map, as may their precise loca-
tions, their sizes, the proximity of the islands to each other and their names.
Indeed, in certain maps the Dutch have named certain Gulf islands after the
names of their own vessels (e.g., Delffshaven or Rijnsburgh) or by names which,
in Dutch, denote some characteristic of the island in question (e.g., Slangen
Eijland/Eylant or “Snake Island”, a name bestowed on one of the Tunbs given
the reported presence of numerous snakes there). These names might change
in a subsequent map, or be replaced by the islands’ proper names or a version
thereof (e.g., Thom instead of Tunb). These early Dutch maps demonstrate that
even when drawn with information apparently gathered by those on expedi-
tions to the Gulf itself, an accurate geographical depiction of the area and its
islands did not necessarily result. More relevant, however, is that none of these
maps have associated ownership of any of the islands in dispute with Persia, the
Qawásim Arabs, Oman or any other identifiable State or regional power.
One of the first Dutch maps in which the islands appear is a 1646 manu-
script entitled “Chart of the Persian Gulf” (the “Karlsrühe chart”), shown
in Figures 10.1 to 10.3.128 These three images show: (i) the whole map (Figure
10.1), (ii) a close-up image of the area around the islands (Figure 10.2), and (iii)
the same close-up image with the transcriptions of the important toponyms in
Dutch written out in bold letters (Figure 10.3).129 The name “t’oppershoetjen” in
the map appears to correspond to the island of Abu Musa,130 while the two is-
lands which, from a geographical perspective, would appear to be Greater and
Lesser Tunb, are unnamed.131 As can be seen from this map, the geographical
128 Karlsruhe, Badische Landesbibliothek, Cod. Karlsruhe 478, fol. 3v/4r.

129 The bold lettering was added by the author of a report prepared in connection with the
writing of this book by the Dutch archivist, G.G.J. Boink: Report on the Occurrence of In-
formation about the Islands of Greater Tunb, Lesser Tunbs and Abu Musa in the Holdings
of the Dutch National Archives (Nationaal Archief ) at The Hague, June 2014 (on file with
authors).
130 Meaning a type of headdress or possibly “the small hat of the chief”. Ibid., 8.
131 This is somewhat curious, as the daily log of the first voyage by the Dutch from Bandar Ab-
bas to Basra itself noted that the crew appear to have spotted the Tunbs (“… saw directly
position of the islands is misplaced and so is their scale, with some of the is-
lands (as well as other Gulf islands) being depicted in a much bigger size than
they are in proportion to each other in reality. The names in this and other
Dutch maps were a by-product of the expedition to Basra of 1645 and other
expeditions organized by Wollebrand Geleynssen de Jongh of the Dutch East
India Company, in which many of the islands were given the names of the
ships that navigated the Gulf.132 Some of these names survived on later Dutch
maps as will be seen from the images set out below.133 As may be appreciated
by reviewing these images, there is no discernible indication on the map which
might assign or suggest ownership of any of the disputed islands to any entity
or power.
Another Dutch manuscript map of the Persian Gulf circa 1650–1700 shows
the location of the islands in a slightly different way and gives different names
to them, as seen from Figures 10.4 to 10.6,134 again showing first the whole
map, then a close-up image and the same close-up image with the transcrip-
tions of the important toponyms written in bold lettering.135 In this map, the
name “Slangen Eylant” appears to correspond to the Greater Tunb, whereas
“Delfshaven” appears to correspond to the Lesser Tunb. Finally, Abu Musa ap-
pears to have been included in the map and named “RensBurgh”, although this
might refer to Sirri island as both islands were on occasion referred to by the
Dutch after the Dutch ship Rijnsburg.136 Again, this map illustrates how distor-
tions in the Gulf’s geography appeared in early map-making even when such
maps were presumably prepared on the basis of first-hand information. More
importantly for our purposes, this map reveals no indication of who the title
holders of the disputed islands may have been.
An additional Dutch map of the Gulf is contained in the manuscript “Chart
of the coast of Persia”, dated 1646/1665–1670 (Figure 10.7).137 This map contains
in front of us two small islands. One (the smallest) named Nabuzon, the other (fairly big)
named Thom, where – as our pilot has it – there is good water, but which is impossible
to be collected because of the manifold occurrence of snakes. Thus we named this island
Slangen Eijland.” Ibid., 14. On the return voyage from Basra, there is also a log notation of
having spotted “the island of Thom, or Snake Island”. Ibid., 17.
132 Ibid., 9; B.J. Slot, The Arabs of the Gulf 1602–1784 (The Hague: Leidschendam, 1993), 157.
133 Boink, Report Dutch National Archives (on file with authors).
134 Bibilothèque Nationale de France. “De Perziaensche Golf. Manuscript, ca. 1650–1700”,
DCP SH 18 PF209 DIV2 P6, [Anoniem].
135 Map with transcription of the toponyms as they appear in Boink, Report Dutch National
Archives (on file with authors).
136 Slot, Arabs of the Gulf, 157. See also, Boink, Report Dutch National Archives (on file with
authors).
137 Österreichische Nationalbibliothek. “Chart of the coast of Persia. Manuscript, 1646/1665–
1670, Vienna, Atlas Blaeu-Van der Hem 38:12, Johannes Vingboons, after Hendrick
790
Figure 10.1 Chart of the Persian Gulf. Manuscript, 1646

Chapter 10
Figure 10.2 and 10.3 Close-up images of “Chart of the Persian Gulf”. Manuscript, 1646 (left
with original toponyms and right image with transcriptions of the most
important toponyms)
Figure 10.4 “The Persian Gulf”. Manuscript, c. 1650–1700

792 Chapter 10
Figure 10.5 and 10.6 Close-up images of “The Persian Gulf”. Manuscript, c. 1650–1700 (left
with original toponyms and right image with transcriptions of the
most important toponyms)
additional geographical inconsistencies and appears to use different names

for the three islands. Thus, from our knowledge of the islands’ respective lo-
cations, it would appear that Greater Tunb has been named “Heijloij werde”
while Lesser Tunb has been named “Delfs Haven”. An island placed in a loca-
tion which could correspond to Abu Musa’s geographical location has been
named “Lange Eijlandt”. Once again, the distortion of the geography of the is-
lands and the Gulf is evident and there is no indication that the colors used for
the islands reflect their ownership.
The next map, a mid-eighteenth century (1761) map prepared by the Dutch
East India Company (Figure 10.8),138 continues to contain geographical distor-
tions (e.g., Lesser Tunb drawn as large as Greater Tunb and larger than, and
in non-realistic proximity to, Abu Musa), but using names closely resembling
the three islands’ proper names, albeit the Tunbs are translated to their Dutch
Martens Bloem.” Accessed May 8, 2017. http://www.atlasofmutualheritage.nl/en/

Map-north-coast-Persian-Gulf-view-fort-Kismis.7430.
138 Dutch National Archives, “NA 4.VELH Rec. No. 156.2.14”. Accessed May 8, 2017. http://
www.gahetna.nl/collectie/archief/inventaris/gahetnascan/eadid/4.VELH/inventarisnr/
156.2.14/afbeelding/NL-HaNA_4.VELH_156.2.14.
Evidentiary Value of Maps
793
Figure 10.7 Chart of the Coast of Persia ( Johannes Vingboons, after Hendrik Martens Bloem). Manuscript, 1646/1665–1670
794 Chapter 10
Figure 10.8 Close-up image of “Map of Persian Gulf (Gerrit de Haan)”. Manuscript, 1761
equivalent. Thus, the map shows Abu Musa (“Bomosa”), Greater Tunb (“Groot
Tombo”) and Lesser Tunb (“Kleyn Tombo”). As in the other Dutch maps, there
is no indication, whether in the colors used or otherwise, as to the ownership
of the islands as the coasts of both sides of the Gulf and the islands as well are
all bordered in the same green color.
Maps Relied on by Iran and Scholars Supporting Iran’s Claims

of Sovereignty
Public pronouncements by Iran within the United Nations have referred to

the purported existence of maps since 1770 marking the Tunbs as being Per-
sian and an Iranian representative has later talked of “[a] veritable library … of
official documents and maps that attest to Iran’s sovereignty over [the three]
Islands”,139 but no specific list of the maps referred to has ever been made
139 Letter dated 26 May 1980 from the Minister for Foreign Affairs of Iran addressed to the
Secretary-General, un Doc. S/13987.
public by the Iranian government. In various historical documents, however,

the Iranian government has relied on one particular map created by the British
War Office in 1886 and handed to the Shah by a representative of the British
government in 1888.140 This map marked the islands in the same color as the
Iranian mainland. The reliance on maps to support the Iranian claims over the
islands is taken a step further by several scholars supporting the Iranian posi-
tion who have referred to a series of maps – one particular scholar has identified
up to twenty-eight maps – (official, semi-official and unofficial) from the eigh-
teenth, nineteenth and twentieth centuries – all of which they claim confirm
that all three islands of Abu Musa, Greater and Lesser Tunbs belong to Iran.141
To test the accuracy of these claims and to verify the evidentiary value of
these maps against the generally accepted parameters of international law, the
authors have sought to locate and review as many of them as possible. Given
that the sources of the maps relied on by Iran and more particularly these vari-
ous scholars are not in each case explicitly identified, this undertaking, largely
carried out through national archives, libraries and online services, may not
have led in each case to precisely the same maps on which those scholars rely.
However, every effort has been made to do so and our conclusion is that a ma-
jority of the referenced maps has been found and reviewed. The results of this
review, which is primarily to determine whether they all in fact “confirm …
the islands of Greater Tunb, Lesser Tunb and Abu Musa as belonging to Iran”,
are set out below. It is hoped that this review will explain to the reader, purely
from an evidentiary point of view, why it has been determined that little or no
reliance can be placed on this map evidence in reaching conclusions over sov-
ereignty to the islands. The reasons which underpin the rejection of this evi-
dence under international law will be set out in the final section of this chapter.
In his book, Security and Territoriality, Prof. Pirouz Mojtahed-Zadeh enu-
merated twenty-eight “official, semi-official and unofficial maps from the eigh-
teenth, nineteenth and twentieth centuries, confirming the islands of Greater
Tunb, Lesser Tunb and Abu Musa as belonging to Iran.”142 The following
sections will critically evaluate this assertion and the assertions of other schol-
ars, as well as the government of Iran, that the historical maps they cite serve
140 Toye, Lower Gulf Islands, Vol. 2, 79, containing a message from the Shah dated August 1888.
See infra Figure 10.25 and accompanying text.
141 Mojtahed-Zadeh, Security and Territoriality, 236–238; Mehr, Colonial Legacy, 196–200; Ba-
vand, “Legal Basis”, 87–89; Mirfendereski, “Ownership of the Tonb Islands”, 126–134. See
also, Mojtahed-Zadeh, “The United Arab Emirates and the Iranian Islands of Tunbs and
Abu Musa”, 81–84 (where some of the same maps included in previous publications of the
same author are mentioned).
142 Mojtahed-Zadeh, Security and Territoriality, 236.
796 Chapter 10
as credible evidence of Iranian ownership of the islands, whether as a factual

matter or under principles of international law. The first part of this exercise,
which will review the factual accuracy of the characteristics which these schol-
ars attribute to each of these maps by viewing high-resolution images of most
of the maps themselves, will be undertaken following the chronological list of
maps put forward by Prof. Mojtahed-Zadeh, which is the most extensive one of
maps said to support the Iranian claims.143 Where other scholars have referred
to the same maps, this will be noted. Further maps mentioned by other schol-
ars will also be included in the review carried out. Finally, it should be noted
that while Prof. Mojtahed-Zadeh has divided his list of maps into “official”,
“semi-official” and “unofficial maps”, no explanation is given as to the reasons
justifying the classification given to each map, which in certain instances ap-
pears to be inaccurate. For instance, some maps included under the classifica-
tion of “official” maps do not appear to have been made “by order and under
the care of” a State, and certainly none of such maps, even if attributable to
the organ of a State, were made “by an authority connected with one of the
Governments concerned”, the most relevant official maps in relation to any
dispute.144 These considerations will be taken into account in the analysis of
the evidentiary value of the maps under international law which is set out in
the final section of this chapter.
Maps of the Eighteenth Century

Three maps of the late eighteenth century are referred to by Prof. Mojtahed-
Zadeh as purportedly showing all three of the islands in the same colors as the
Persian coastline. These are, as described by him, one “official” map, the “Carte
du golphe persique: compiled in 1764 by French Foreign Ministry, in colour, the
islands coloured as Iranian territories”; and two “semi-official” maps: “A Map of
the Empire of Persia: compiled in 1770 by Mr. D’Anville; the islands are c oloured
like Iran’s mainland” and “A new Map of the Empire of Persia: compiled in 1794
by Mr D’Anville, first Geographer to the Most Christian King, showing the three
islands in the same colour as the rest of the Iranian territories.”145
143 Ibid., 236–238.

144 Akweenda, “Legal Significance of Maps”, 219, citing from the Privy Council case Labrador
Boundary case (Boundary between Canada and Newfoundland) (1927). An example of a
map that, albeit made by an arm of a State, is classified as official by Prof. Mojtahed-Zadeh
but which was not made by either of the parties to the dispute, or with their a pparent
knowledge, is the Carte du Golphe Persique (Figure 10.9) which he asserts was compiled in
1764 by the French Foreign Ministry. Mojtahed-Zadeh, Security and Territoriality, 236. As
will be seen in the next section, our research indicates that this map seems to have actu-
ally been compiled by the French Depository of Maps and Plans of the Navy.
145 Mojtahed-Zadeh, Security and Territoriality, 236–237.
Upon review of the copies of these maps which the authors have obtained,
none of these assertions appears to be factually accurate.
The first map, the “Carte du Golphe Persique” of 1764, was located through
two sources and, contrary to the assertion of Prof. Mojtahed-Zadeh, the map
found in both is not colored, rather, as can be seen from Figures 10.9 and 10.10
(the entire map and a close-up image of the area around the three islands), it is
black and white and thus makes no color association between the islands and
either Gulf coast. While from a geographical appreciation, the map appears to
show the three islands, albeit Greater Tunb is named I. Raze and Lesser Tunb
is named I. Nabejou, there is no indication of ownership of the islands in any
way set out on the map. Moreover, although Prof. Mojtahed-Zadeh indicates
that this map was “compiled in 1764 by the French Foreign Ministry”, no such
compilation by that foreign ministry in that year has been located after con-
sulting several sources, including the French Foreign Ministry itself.146 Instead,
the map with that title and that date that our searches have found is a 1764 map
by Jacques Nicolas Bellin, who was a maker of maps for the French Depository
of Maps and Plans of the Navy.147
We were unable to locate the “semi-official” map purportedly made by
D’Anville in 1770, although there are numerous other maps of the Gulf made by
D’Anville between 1728 and 1776 which were found and reviewed. Most of these
146 E-mail correspondence with Jean-Pierre Pirat of the Archive Department of the French
Ministry of Foreign Affairs, dated September 7, 2015 (on file with authors). Mr. Pirat con-
firmed that the archives of the Ministry of Foreign Affairs did not contain a copy of “Carte
du Golphe Persique, 1764”. However, he explained that during the Second World War the
premises of the Quai d’Orsay, where diplomatic archives had been stored, were occupied
by the German forces and that some of those archives had disappeared at that time. Thus,
he could not be completely certain that this map was not part of the diplomatic archives
before 1945.
147 This map was consulted from both the collection of the Bibliothèque Nationale de France
and from David Rumsey Map Collection. The cataloguing information of the Biblio-
thèque Nationale de France indicates that the author of the map is the French “Dépôt des
cartes et plans de la marine”, i.e., Depository of maps and plans of the Navy and that its
date of publication is 1764. This catalogue adds that the inscription “Tome iii, n° 8” (Vol-
ume iii, No. 8) corresponds to the “Petit atlas maritime” of Jacques Nicolas Bellin, Paris,
[ca] 1764, presented in five volumes. The information in David Rumsey Map C ollection
confirms this, further indicating that “Bellin was an important maker of chartes for the
French Depot de la Marine”. See Bibliothèque Nationale de France. “Carte du Golphe Per-
sique”, Dépôt des cartes el plans de la marine, 1764, Accessed May 19, 2017. http://gallica
.bnf.fr/ark:/12148/btv1b59004216; David Rumsey Map Collection. “Carte du Golphe Per-
sique (Paris: J.N. Bellin, 1764).” Accessed May 19, 2017. http://www.davidrumsey.com/luna/
servlet/detail/RUMSEY~8~1~233108~5509553:Carte-du-Golphe-Persique. The map that
appears in Figures 10.9 and 10.10 was obtained from David Rumsey Map Collection.
798
Chapter 10
Figure 10.9 Carte du Golphe Persique, 1764

Figure 10.10 Close-up Image of “Carte du Golphe Persique, 1764”
maps are in black and white, thus not attributing the islands to either Iranian
or Arab ownership through color association (or otherwise).148 In the case of
D’Anville’s maps from this period that color the coasts of the mainland areas,
none of them color the islands, leaving them in black and white.149 Several of
the maps published in 1758 and a number of earlier ones, including one from
1728, do not even seem to show Abu Musa.150 These discrepancies of color and
148 E.g., Bibilothèque Nationale de France. “Perse entre Bassorah, El-Toub, Asnid, Fahrag et le
golfe Persique, Jean-Baptiste d’Anville, France, 1758.” Accessed May 19, 2017. http://gallica.
bnf.fr/ark:/12148/btv1b53009204v; Bibilothèque Nationale de France. “Pour le Mémoire de
M. D’Anville sur le Golfe Persique, 1758.” Accessed May 20, 2017. http://gallica.bnf.fr/
ark:/12148/btv1b8469786f.
149 E.g., David Rumsey Map Collection. “Première Partie de la Carte D’Asie contenant La Tur-
quie, L’Arabie, La Perse, L’Inde en deça du Gange et de la Tartarie ce qui est limitrofe de
la Perse et de l’Indie, Jean Baptiste D’Anville, 1751.” Accessed May 20, 2017. http://www
.davidrumsey.com/luna/servlet/detail/RUMSEY~8~1~4416~410005:Asie-1-?sort=date&
qvq=q:Premiere%2Bpartie%2Bde%2Bla%2Bcarte%2Bd’Asie;sort:date;lc:RUMSEY~8~1&
mi=0&trs=.
150 E.g., Bibilothèque Nationale de France. “Esquisse du golfe Persique par Jean-Baptiste D’Anville,
1758.” Accessed May 20, 2017. http://gallica.bnf.fr/ark:/12148/btv1b53009296g; Bibilothèque
800 Chapter 10
Figure 10.11 A new map of the Empire of Persia from Monsr. D’Anville, First Geographer
to the most Christian King, with several additions and emendations, 1794
geography are perhaps explained by the cartographer David Rumsey, whose

website houses an extensive collection of maps by D’Anville, who notes: “Most
of D’Anville’s atlases were made up for the individual customer, so it appears
that no two are alike.”151 Moreover, because all of D’Anville’s maps that are in
color have been painted by hand (apparently at the instruction of each cus-
tomer), the coloring of the country boundaries among different versions of the
same map can vary and these variations make the information contained in
Nationale de France. “Carte de la péninsule d’Arabie et des autres pays situés sur la mer
Rouge et sur le golfe Persique: dressée sur une étude particulière tant des geographes
orientaux que des voyageurs modernes, et même avec le secours de l’Ancienne géogra-
phie, le tout soutenu d’un assés grand nombre de latitudes observées par les voyageurs,
ou données par les orientaux, et même de plusieurs longitudes données par l’Academie
r[oya]le des sciences / par le S[ieu]r d’Anville, geographe ord[inai]re du roi, 1728.”
Accessed May 20, 2017. http://gallica.bnf.fr/ark:/12148/btv1b53009281t.
151 David Rumsey Map Collection. “Publisher’s Note to Golfe Persique (Dressé en 1758 et pub-
lié en 76 par le Sr. D’Anville, Prém[ier] Géogr[aphe] du Roi.” Accessed May 20, 2017. http://
www.davidrumsey.com/luna/servlet/detail/RUMSEY~8~1~3026~410025:Golfe-Persique
Figure 10.12 Close-up Image of “A new map of the Empire of Persia from Monsr. D’Anville,
First Geographer to the most Christian King, with several additions and
emendations”, 1794
them, including with respect to the attribution of sovereignty over Gulf islands,
particularly unreliable and inconclusive. In light of this background, if there is
a D’Anville map which colors one or more of the disputed islands in the color
of mainland Persia, it would appear to be exceedingly difficult to consider that
as probative or reliable evidence of Persian ownership of such islands or to
draw any conclusions from that fact alone. That the coastal areas of the Persian
mainland in proximity to the islands were not under the e ffective control of
the Persian government in any case during much of the eighteenth and nine-
teenth centuries diminishes further the reliability of any such map evidence.
With regard to the other semi-official map purportedly made by D’Anville in
1794 and referred to by Prof. Mojtahed-Zadeh as “showing the three islands in
the same colour as the rest of the Iranian territories”,152 it should first be noted
-?sort=date&qvq=w4s:/where%2FAsia;q:D’anville;sort:date;lc:RUMSEY~8~1&mi=18&
trs=28.
802 Chapter 10
for the sake of precision that D’Anville died in 1782 and this 1794 map was there-
fore not in fact compiled by him, but rather was based on an Atlas described as
“the last edition of D’Anville and Robert (de Vaugondy)” with “several additions
and emendations” by Major James Rennel and other geographers (Figures 10.11
and 10.12).153 While this 1794 map does show the two Tunbs islands in the color of
the Iranian mainland, the island of Abu Musa is not colored in that man-
ner, but rather appears in the same black and white shades as the Arab coast
(Figures 10.11 and 10.12). It is unknown whether this particular map, like most
other maps of D’Anville, was a “one-off” version made for a particular client,
but it would seem to be a fair assumption that it was.
Maps of the Nineteenth Century

The vast majority of the maps put forward by the various scholars supporting
Iran’s claims over the islands pertain to the nineteenth century. These will be
reviewed chronologically under the three categories they are placed into by
Prof. Mojtahed-Zadeh, i.e., official, semi-official and unofficial maps.
(a) “Official” Maps

The earliest “official” map of the nineteenth century which is cited is a map
entitled “The Persian Empire” which is referred to by Prof. Mojtahed-Zadeh as
“compiled in 1813 by John Macdonald Kinner [sic], Political Adviser to Sir John
Malcolm in his mission to Iran, in black and white; printed in colour in 1832 by J.
Arrowsmith, showing the islands and Iran in the same colour”.154 The map that
we located is a map of 1813 made by John Macdonald Kinneir for Sir John Mal-
colm Knight, which was printed in 1813 by Aaron Arrowsmith (Figure 10.13)155
153 David Rumsey Map Collection. “A new map of the Empire of Persia from Monsr. D’Anville,
First Geographer to the most Christian King, with several additions and emendations.
(London: Laurie & Whittle, 53, Fleet Street, as the act directs May 12th, 1794).” Ac-
cessed May 20, 2017. http://www.davidrumsey.com/luna/servlet/detail/RUMSEY~8~1~
31564~1150043:Persia-?sort=date&qvq=q:A%2Bnew%2Bmap%2Bof%2Bthe%2Bempire
%2Bof%2BPersia;sort:date;lc:RUMSEY~8~1&mi=0&trs=6.
155 The full inscription in this map reads: “Map of the countries lying between the Euphrates
and Indus on the East and West, and the Oxus and Terek and Indian Ocean on the North
and South. Inscribed to Brigadier General Sir John Malcolm Knight of the Royal Persian
Order of the Lion and Sun by John Macdonald Kinneir. London. Published 1st January 1813
by A. Arrowsmith No. 10 Soho Square Hydrographer to H.R.H. the Prince of Wales.” (See Fig-
ure 10.13). This map was found in David Rumsey Map Collection and at the British Library.
See David Rumsey Map Collection. “Composite: Map of the Countries lying between the
Euphrates and Indus.” Accessed May 29, 2017. http://www.davidrumsey.com/luna/servlet/
detail/RUMSEY~8~1~233572~5509711:Composite--Map-of-the-Countries-lyi?sort=pub
_date%2Cpub_list_no_initialsort&qvq=q:Euphrates%2Band%2Bindus%2Bon%2Bthe
(not John), the Hydrographer to the Prince of Wales from around 1810 and sub-
sequently to the King of England in 1820.156
This map was produced to accompany a book entitled “Geographical
Memoir of the Persian Empire” by John Macdonald Kinneir which was first
published in 1813.157 Davoud Bavand, another scholar supporting the Iranian
claim to the islands, also refers to the 1813 Kinneir map and his Geographical
Memoir and indicates that “in the second edition of this book the colorized
map of the area depicted the Tonbs and Abu Musa as Iranian territory.”158
Although the 1813 version of the map we found has the provinces of the
different countries in Asia (including Persia) bordered in color, the islands of
Greater and Lesser Tunbs are not in color, as seen from Figure 10.13, thus not
suggesting any inclusion of those islands within the territory of Persia. With
respect to Abu Musa, although the name of the island appears on the map,
apparently because of the way the map was assembled in two sheets, its shape
appears to have been somehow excluded from the map, or at least from the
image of the map obtained.
Our searches have also identified a number of additional maps of the Gulf by
Kinneir, which give inconsistent indications of ownership of the Gulf islands. For
example, a map by Kinneir which was printed in 1832 by Aaron Arrowsmith (not
John), which seems to be the one referred to by Prof. M
ojtadeh-Zadeh, shows the
islands of Greater and Lesser Tunb in the same color as Persia (Figure 10.14).159
Abu Musa is referred to by name on the map, but again because of the way the
%2Beast%2Band%2Bwest;sort:pub_date%2Cpub_list_no_initialsort;lc:RUMSEY~8~1&
mi=0&trs=5; John Macdonald Kinnear, A Geographical Memoir of the Persian Empire
(London: 1813) (British Library Reference ORW.1986.b.9/1-2). The map that appears in
Figure 10.13 was obtained from David Rumsey Map Collection.
156 As indicated in the Oxford Dictionary of National Biography, “The Arrowsmith was a fam-
ily of cartographers. Aaron Arrowsmith (1750–1823) established himself as a mapmaker
and publisher, becoming hydrographer to the Prince of Wales around 1810 and then to
the King in 1820. After his death, his sons Aaron and Samuel carried on with his business
until 1839 when Aaron’s nephew, John Arrowsmith (1790–1873), continued with the busi-
ness.” Oxford Dictionary of National Biography Online, s.v. “Arrowsmith, Aaron, the elder
(1750–1823)”. Accessed May 9, 2017. http://www.oxforddnb.com/view/article/698; Encyclo-
pedia Britannica, s.v. “Aaron Arrowsmith”, accessed May 9, 2017. http://www.britannica
.com/biography/Aaron-Arrowsmith.
157 Qatar Digital Library. “About this Item.” Accessed May 29, 2017. http://www.qdl.qa/en/
archive/81055/vdc_100025910014.0x000002.
159 Qatar Digital Library. “Map of the Countries lying between the Euphrates and Indus on
the East and West, and the Oxus and Terek and Indian Ocean on the North and South.
by John Macdonald Kinneir’ [1r] (1/2), British Library: Map Collections, IOR/X/3100/1”,
Accessed May 29, 2017. http://www.qdl.qa/en/archive/81055/vdc_100025910014.0x000002.
804
Figure 10.13 Close-up image of “Map of the Countries lying between the Euphrates and Indus on the East and West, and the Oxus and Terek and Indian
Ocean on the North and South. By John Macdonald Kinneir”, 1813
Chapter 10
Ocean on the North and South. By John Macdonald Kinneir”, published in 1832 by A. Arrowsmith
805
806
Ocean on the North and South. By John Macdonald Kinneir”, lithographed by Order of the Supreme Government of India at the Surveyor Gen-
eral’s Office in 1856
Chapter 10
map was assembled in two sheets, its shape appears to have been excluded
from the map.
However, another version of the same map published in 1856, lithographed
by Order of the Supreme Government of India at the Surveyor General’s Office,
which colors the territory of Persia leaves the Tunbs islands in black and white
(with the same omission of depicting Abu Musa apparently because of the fact
that the map is in two pages), thus again not suggesting any sovereign connec-
tion between the islands and Persia. A close-up image of this map appears in
Figure 10.15.160
Other maps printed by Aaron Arrowsmith that we came across in our
searches also differ in their color-depiction of the islands of Abu Musa and
the Tunbs. For instance, there is an 1828 map of “Persia with a part of Cabul
and adjacent countries” published by Aaron Arrowsmith (s) in Veteribus
Noti Descriptio. A Comparative Atlas of Ancient And Modern Geography, From
original Authorities, and upon a New Plan For The Use Of Eton School.161 In this
map, reproduced in Figure 10.16, while Iran is colored in pink and the Trucial
States are colored in orange, the three islands of Abu Musa and the Tunbs are
not assigned either color, whereas some other islands are assigned either the
Iranian (e.g. Qishm) or Arabian (e.g. Zara [Sir Abu Nu’ayr]) colors.
A number of other maps printed by John Arrowsmith are discussed below in
the section of “semi-official” maps.
Another official map referred to by Mojtahed-Zadeh and Bavand is entitled
“Gulf of Persia”. Prof. Mojtahed-Zadeh states that this map was “compiled in
1829 by Captain G.B. Brucks on the instructions of the East India Company,
the islands coloured as Iranian territories and named in the covering notes
as Iranian owned.”162 Bavand concurs with this description.163 This map arose
from the first survey of the Gulf commissioned by the Bombay Government in
160 Qatar Digital Library. “Map of the Countries lying between the Euphrates and Indus on
the East and West, and the Oxus and Terek and Indian Ocean on the North and South. By
John Macdonald Kinneir.” Accessed May 29, 2017. http://www.qdl.qa/en/archive/81055/
vdc_100025910027.0x000002.
161 David Rumsey Map Collection.“Persia with a part of Cabul and the adjacent countries, A.
Arrowsmith, London, 1828.” Accessed May 24, 2017. http://www.davidrumsey.com/luna/
servlet/detail/RUMSEY~8~1~251655~5517582:Persia-with-a-part-of-Cabul-and-the?sort
=pub_list_no_initialsort%2Cpub_date%2Cpub_list_no%2Cseries_no&qvq=q:map
%2Bof%2Bpersia%2Band%2Bcabul;sort:pub_list_no_initialsort%2Cpub_date%2
Cpub_list_no%2Cseries_no;lc:RUMSEY~8~1&mi=0&trs=2#.
163 Bavand, “Legal Basis”, 84 (“The survey identified the Tonbs, Abu Musa (Bumausa) and Sirri
(Surdy) as islands under the administration of the Province of Fars and the map accom-
panying it, which was also compiled by Brucks, depicted the Tonbs and Abu Musa in the
same color as Iran.”).
808
Chapter 10
Figure 10.16 Close-up image of “Map of Persia with a part of Cabul and adjacent countries”, A. Arrowsmith, 1828
1820. George Barnes Brucks “was recruited as an assistant to Captain Guy on

board the East India Company’s vessel Psyche, one of the three ships engaged
on an expedition to survey the coastal waters of the Gulf.”164 In apparent con-
tradiction to the assertions of Mojtahed-Zadeh and Bavand, none of the maps
that arose from this survey that we were able to locate are in color, as can be
seen in the map in Figures 10.17 and 10.18.165 Thus, neither through association
by color or otherwise does this map suggest that any of the islands may have
belonged to Persia.
With respect to the comment of Prof. Mojtahed-Zadeh that the islands were
“named in the covering notes as Iranian owned”,166 the accompanying notes
to the chart written by George B. Brucks were based on the notes he made in
his private journals during the expedition and were published posthumously
in 1856.167 These notes make clear that the aim of the survey was to give an
“account of, and directions for, navigating the Gulf of Persia”, an account giv-
en by a sailor and for which he could only “vouch for the accuracy of what is
there marked relative to navigation.”168 There was no intention that the survey
164 Mark Hobbs, “George Barnes Brucks and the First English Survey of the Gulf”, Accessed
May 20, 2017. http://www.qdl.qa/en/george-barnes-brucks-and-first-english-survey-gulf.
165 Qatar Digital Library. “Chart of the Gulf of Persia. Constructed from the Trigonometrical
Surveys Made by Order of The Honble the Court of Directors of the United English East
India Company; by George Barnes Brucks, Commander H.C. Marine. 1830. Engraved by R.
Bateman, 85 Long Acre’ [15r] (3/4), British Library: Map Collections, IOR/X/3630/19/1-2.”
Accessed May 27, 2017. http://www.qdl.qa/en/archive/81055/vdc_100023868004.0x00001e.
See also another version of the chart in: Qatar Digital Library. “REDUCED COPY OF CHART
OF THE GULF OF PERSIA. Constructed from the Trigonometrical Surveys. Made by Or-
der of THE HONBLE THE COURT OF DIRECTORS OF THE UNITED ENGLISH EAST IN-
DIA COMPANY and to whom it is Respectfully Dedicated by their most obedient Servant
GEORGE BARNES BRUCKS Commander H.C. Marine. 1830’, British Library: India Office
Records and Private Papers, IOR/R/15/1/732, 531A.” Accessed May 27, 2017. http://www.qdl.
qa/en/archive/81055/vdc_100022950124.0x000001. This same chart was consulted at the
British Library in a publication by Archive editions that contains Bruck’s Memoir and all
the charts arising from the survey of the Gulf: Andrew S. Cook, ed., Survey of the shores and
islands of the Persian Gulf, 1820–1829 (Cambridge: Archive Editions, 1990). The map that
appears in Figures 10.17 and 10.18 was obtained from the British Library Board.
167 Mark Hobbs, “George Barnes Brucks and the First English Survey of the Gulf”. Accessed
May 20, 2017. http://www.qdl.qa/en/george-barnes-brucks-and-first-english-survey-gulf.
168 Qatar Digital Library. “Memoir Descriptive of the Navigation of the Gulf of Persia; with
brief notices of the manners, religion, commerce, and resources of the people inhabiting
its shores and islands prepared by the Late Captain George Barnes Brucks, Indian Navy”,
in Selections from the Records of the Bombay Government[531] (575/733), (British Library:
India Office Records and Private Papers, IOR/R/15/1/732)”. Accessed May 28, 2017. http://
www.qdl.qa/en/archive/81055/vdc_100022870193.0x0000b0, 532.
810 Chapter 10
Figure 10.17 “Chart of the Gulf of Persia”. Constructed from the Trigonometrical Surveys
Made by Order of The Hon.ble the Court of Directors of the United English East
India Company; by George Barnes Brucks, Commander H.C. Marine. 1830
identify ownership of islands and, contrary to the assertions of Mojtahed-

Zadeh and Bavand, it certainly did not do so with respect to Abu Musa, Greater
Tunb or Lesser Tunb, as confirmed by the language Brucks used when describ-
ing these islands.169
169 Ibid., 601–602 (“Little Tonb. The centre of the Little Tomb is in lat. 26°14’50”N., long. 55°16’E.
It is moderately elevated, is about a mile and a half in length, and has irregular soundings
Figure 10.18 Close-up image of “Chart of the Gulf of Persia” (George Barnes Brucks, 1830)
The next map on the official list of maps cited by Prof. Mojtahed-Zadeh is
entitled “Central Asia Comprising Cabool, Persia, the River Indus and coun-
tries Eastward of it”, which he describes as having been “compiled in 1834 by
Lieut. Alexander Burnes on the basis of ‘Authentic Maps’, printed by Arrow-
smith in colour, showing the islands in the colour of the Iranian territories.”170
The 1834 map published by John Arrowsmith that matches the description by
Mojtahed-Zadeh which we have been able to locate does not color the islands
of Greater Tunb, Lesser Tunb and Abu Musa in the color of the Iranian coast, as
seen from Figures 10.19 and 10.20.171 Moreover, while the three disputed islands
from twenty-eight to five fathoms. There is no danger near it. Great Tomb. The north point
of the Great Tomb is in lat. 26°16’28”N., long. 55°24’E. The island is of an irregular triangle,
the three sides being about two and a half miles each. The island is well stocked with
antelopes, and there is good water on it. A banian tree stands in about the centre of the
southern side. The anchorage is pretty good to the south-east and est, but on the northern
part a spit runs off about three quarters of a mile, otherwise that part is steep. To the chan-
nel between it and two and a half fathoms, on the Bassadore flat, is seven and a quarter
miles, but the safe channel is not more than six and a half, as the bank shoals very sud-
denly at this part. Bomosa. The Peak or Saddle of Bomosa is in lat. 25°55’N., long. 55°8’50”
E. This island is low, except the remarkable saddle peak, and some small hummocks. It is
surrounded by a reef near a mile off, and indifferent anchorage may be found under it.”).
171 David Rumsey Map Collection. “Central Asia; comprising Bokhara, Cabool, Persia, the Riv-
er Indus, & countries eastward of it. Constructed from numerous authentic documents,
812
Figure 10.19 Close-up image of 1834 Map of “Central Asia; comprising Bokhara, Cabool, Persia, the River Indus, & countries eastward of it”, constructed prin-
cipally from the original m.s. surveys of Lieut. Alex. Burnes and printed by J. Arrowsmith
Chapter 10
are not colored, leaving them in the same black and white coloring of the Arab
coast, several other Gulf islands (e.g., Kishm and Angam) are colored in the
color of mainland Persia.
The next two maps referred to by Prof. Mojtahed-Zadeh as official maps are
described by him as related to the limits of the maritime activities in the Gulf
which the tribes of the “Pearl Coast” were allowed to carry out. One of them
is indicated as having been “compiled in 1835 by Captain S Hennell, showing
Figure 10.20 Another close-up image of 1834 Map of “Central Asia; comprising Bokhara,
Cabool, Persia, the River Indus, & countries eastward of it”, constructed
principally from the original m.s. surveys of Lieut. Alex. Burnes and
printed by J. Arrowsmith
but principally from the original M.S. surveys of Lieut. Alex. Burnes, F.R.S. to whom this
map is most respectfully dedicated, by his obliged servant, J. Arrowsmith. June 1834.
London, pub. June 16 by J. Arrowsmith, 35 Essex Street, Strand.” Accessed May 20, 2017.
http://www.davidrumsey.com/luna/servlet/detail/RUMSEY~8~1~33877~1170029:Central
-Asia-?sort=pub_list_no_initialsort%2Cpub_date%2Cpub_list_no%2Cseries
_no&qvq=q:Bokhara;sort:pub_list_no_initialsort%2Cpub_date%2Cpub_list
_no%2Cseries_no;lc:RUMSEY~8~1&mi=0&trs=7.
814 Chapter 10
the islands in the Iranian side of the dividing line of the Persian Gulf” and the
other as “compiled in 1838 by Major Morrison, British Political Resident in the
Persian Gulf, showing the islands in the Iranian side of the dividing line within
Iranian jurisdiction.”172 As has already been discussed in chapter 7, drawing
conclusions about sovereignty over Gulf islands on the basis of the events, and
related maps, stemming from the so-called “restrictive line” (or “Hennell Line”)
referred to by Prof. M ojtahed-Zadeh is obviously misconceived. In brief, the
creation of the restrictive line was first suggested by Captain Hennell, the Brit-
ish Political Resident in the Persian Gulf, who proposed that, for the protection
of Gulf trade, a geographical line be drawn in the southern Gulf area beyond
which Arab war vessels would not be permitted to cruise.173 The purpose of
this measure was to control maritime-based confrontations and had nothing to
do with defining sovereignty over islands. While, contrary to the claim of Prof.
Mojtahed-Zadeh, Abu Musa and Sirri were originally on the “Arabian” or south-
ern side of the line as drawn by Captain Hennell, in 1836 the new Resident,
Major James Morrison, modified the restrictive line to place it just to the south
of those islands after it had been pointed out to him that “Abu Musa and Sirri
were notorious pirate lairs”.174 The Tunbs were beyond both the original 1835
line and the amended 1836 line. As described by Kelly, “[t]he new line ran from
Sha‘am, on the western side of the Musandam peninsula, to a point ten miles
south of Abu Musa and onwards to the island of Sir Abu Nu’air.”175 One map
that depicts the limits of the 1836 restrictive line is published in the book Brit-
ain and the Persian Gulf. 1795–1880 by J.B. Kelly to which the reader is referred.176
While these two maps may qualify as official since they were prepared by the
British government, that status is not relevant in this case in relation to de-
termining ownership of the islands because, as explained in chapter 7, the es-
tablishment of the restrictive line and its depiction on maps had nothing to
do with recognizing territorial sovereignty over any islands, whether they fell
on one side of the line or the other. Moreover, there is no evidence that the
Qawásim rulers, or other tribal chiefs, ever accepted the establishment of the
restrictive line (in fact, there is evidence that they never did so) or indeed that
the restrictive line was ever enforced.177

173 J.B. Kelly, Britain and The Persian Gulf 1795–1880 (Oxford: Clarendon Press, 1968), 359.
174 Ibid.
175 Ibid., citing amongst others from India Office Records, Précis of Gulf Correspondence,
1801–1853, 195–196, Morison to Chief Secy. Bombay, Jan. 21, 1836.
176 Kelly, Britain and The Persian Gulf, 866–867.
177 See chapter 7.
Mehr refers to an 1870 British map contained in The Persian Gulf Pilot, a Brit-
ish Admiralty publication which he indicates depicts the three islands as Ira-
nian.178 While the first edition of The Persian Gulf Pilot dates from 1870,179 the
map arising from this survey that we have been able to locate is dated 1860, and
that map does not depict the islands in the color of mainland Iran; it is again, a
black and white map, as shown from the image in Figure 10.21.180 The informa-
tion set out on the map (not shown on the close-up of the image displayed in
Figure 10.21) reads: “Asia. Persian Gulf. Compiled by Commr. C.G. Constable
and Lieut. A.W. Stiffe, I[ndian] N[avy]. 1860. The principal Points, Islands, &
Landmarks in this Chart have been laid down from Positions determined by
Commr. C.G. Constable & A.W. Stiffe I.N. between September 1857 & March
1860. The intervening Coast & Soundings supplied from the Surveys of Cap-
tains J.M. Guy and G.B. Brucks E[ast] I[ndia] C[ompany] Marine 1821–9.”181
The next map listed by Prof. Mojtahed-Zadeh as an official map is an 1876
map of the “Persian Gulf” which he indicates was “[c]ompiled by C.B.S. St. John,
under the auspices of the Indian Government, Bombay 1876, in which the Tun-
bs and Abu Musa were depicted in the same colour as the Iranian mainland.”182
Davoud Bavand makes reference to the same map and also indicates that the
islands were in Iranian colors.183 Contrary to these assertions, the map that we
were able to locate which fits this description and is part of the India Office
Records at the British Library, is a map in black and white, thus not suggesting
any ownership of the islands by any littoral State through color association, or
indeed otherwise (Figure 10.22).184
178 Mehr, A Colonial Legacy, 197, citing to British Admiralty Publication imfa, File No.
33/150A.
179 We have consulted the compilation by Archive Editions: The Persian Gulf Pilot, 1870–1932
(Cambridge: Archive Editions, 1989). Volume I of this compilation contains the first edi-
tion of The Persian Gulf Pilot as dated 1870 although the cover of the book originally issued
by the Admiralty in London and indicating that it is compiled by Captain C.G. Constable
and Lieutenant A.W. Stiffe of “H.M. late Indian Navy” indicates that the original date of
publication is 1864.
180 British Library Map Collection. “Asia. Persian Gulf. Compiled by Commr. C.G. Consta-
ble and Lieut. A.W. Stiffe, 1860. Sheikh Sháyb Anchorage. By Commr. C.G. Constable.
[Admiralty Chart].” Accessed May 10, 2017. http://www.bl.uk/onlinegallery/onlineex/
maps/asia/4931477uau1862.html.
181 Ibid.
184 Qatar Digital Library. “Persia compiled principally from original authorities by Captain
(Local Major) O.B.C.ST. John, (Royal Engineers) by order of H.M. Secretary of State for
India’ [1r] (1/2), British Library: Map Collections, IOR/X/3103/1-6”, Accessed May 2 2017.
http://www.qdl.qa/en/archive/81055/vdc_100023700349.0x000002, (indicating that the
816 Chapter 10
Figure 10.21 Close-up image of “Asia. Persian Gulf. Compiled by Commr. C.G. Constable and
Lieut. A.W. Stiffe, 1860”
Next in the list of British maps mentioned by Mehr is an 1881 map of Persia,
Afghanistan and Ballochestan by Edward Weller, Fellow of the Royal Geo-
graphical Society in which the three islands are said to be in the color of
Iran.185 We have identified a map by Weller of this area of 1882, not 1881, which
map was created in 1876). The same map with the reference IOR/W/L/PS/21/B4 was con-
sulted at the British Library.
Figure 10.22 Close-up image of Map entitled “Persia compiled principally from original authorities” by Captain (Local Major) O.B.C. St.
John, (Royal Engineers) by order of H.M. Secretary of State for India, 1876
817
818 Chapter 10
Figure 10.23 Close-up image of Map entitled “Persia, Afghanistan and Bellochistan” by
E dward Weller, 1882
was published in the Comprehensive Atlas & Geography of the World by W.G.
Blackie (see Figure 10.23).186 In that map, while the Persian and Arab coasts are
in color, as are various islands (including Kishm, Larack and Ormuz), the three
islands of Abu Musa, Greater and Lesser Tunb are colorless. Once again, the
assertion made does not match the reality of the map itself.
Curiously, another map drawn and engraved by Weller published in the
same Atlas by Blackie but depicting “Arabia, the Red Sea and Persian Gulf”
shows the Tunbs in the color of the Persian mainland and Abu Musa in the
186 David Rumsey Map Collection. “Persia, Afghanistan and Beloochistan. The Comprehen-
sive Atlas & Geography Of The World: Comprising An Extensive Series Of Maps, A Descrip-
tion, Physical And Political, Of All The Countries Of The Earth; A Pronouncing Vocabulary
Of Geographical Names, And A Copious Index Of Geographical Positions ... Compiled And
Engraved From The Most Authentic Sources, Under The Supervision Of W.G. Blackie Ph.D.,
F.S.A. Scot. B. & S. Lucem Libris Disseminamus. London: B lackie & Son, 49 & 50 Old Bailey,
E.C.; Glasgow, Edinburgh, And Dublin. 1882. (on verso) Glasgow: W.G. Blackie And Co.,
Printers, Villafield.” Accessed May 28, 2017. http://www.davidrumsey.com/luna/servlet/
detail/RUMSEY~8~1~272632~90046434:Persia,-Afghanistan-and-Beloochista?sort=pub
_list_no_initialsort%2Cpub_list_no_initialsort%2Cpub_list_no_initialsort%2Cpub
_date&qvq=q:Edward%2BWeller%2BPersia;sort:pub_list_no_initialsort%2Cpub_list_no
_initialsort%2Cpub_list_no_initialsort%2Cpub_date;lc:RUMSEY~8~1&mi=0&trs=1.
color of Trucial Oman.187 Mirfendereski also refers to an 1881 map by Weller in

which “Great Tamb (little Tamb is not depicted at all) [is shown] in the same
colour (pink) as Persia.”188 We were not able to locate this map.
Mehr also mentions an 1884 British map published in the Royal Atlas of Mod-
ern Geography as coloring the three islands in the same color as Iran.189 While it
is accurate to say that the 1884 version of this map by Keith Johnston190 shows
the islands in the color of Iran, a previous (1879) and a later (1893) version of
the same Atlas show only the Tunbs in the color of the Iranian coast while Abu
Musa (and Sirri) are either not colored or colored in the light tan color of the
Arabian coast.191 The 1879 version of this map can be seen in Figure 10.24.192
187 David Rumsey Map Collection. “Arabia, the Red Sea and Persian Gulf. The Compre-
hensive Atlas & Geography Of The World: Comprising An Extensive Series Of Maps, A
Description, Physical And Political, Of All The Countries Of The Earth; A Pronouncing
Vocabulary Of Geographical Names, And A Copious Index Of Geographical Positions ...
Compiled And Engraved From The Most Authentic Sources, Under The Supervision
Of W.G. Blackie Ph.D., F.S.A. Scot. B. & S. Lucem Libris Disseminamus. London: Black-
ie & Son, 49 & 50 Old Bailey, E.C.; Glasgow, Edinburgh, And Dublin. 1882. (on verso)
Glasgow: W.G. Blackie And Co., Printers, Villafield.” Accessed May 27, 2017. http://www
.davidrumsey.com/luna/servlet/detail/RUMSEY~8~1~272631~90046435:Arabia,-the-Red
-Sea-and-Persian-Gul?sort=pub_list_no_initialsort%2Cpub_list_no_initialsort%2Cpub
_list_no_initialsort%2Cpub_date&qvq=q:Edward%2BWeller%2Barabia;sort:pub_list
_no_initialsort%2Cpub_list_no_initialsort%2Cpub_list_no_initialsort%2Cpub_date;lc:
RUMSEY~8~1&mi=0&trs=1.
188 Mirfendereski, “Tamb Islands Controversy”, 401, citing to “Edward Weller, F.R.G.S., Persia,
Afghanistan and Baloochistan, (London: George Philip & Son, 1881)”.
190 A.K. Johnston, The Royal Atlas of Modern Geography (Edinburgh: W. & A.K. Johnston,
1884).
191 David Rumsey Map Collection. “Persia and Afghanistan by Keith Johnston, F.R.S.E. Keith
Johnston’s General Atlas. Engraved, Printed, and Published by W. & A.K. Johnston, Ed-
inburgh & London (1879).” Accessed May 25, 2017. http://www.davidrumsey.com/luna/
servlet/detail/RUMSEY~8~1~37178~1210155:Persia-and-Afghanistan-?sort=pub_list_no
_initialsort%2Cpub_date%2Cpub_list_no%2Cseries_no&qvq=w4s:/where%2FAfghan
istan;q:johnston;sort:pub_list_no_initialsort%2Cpub_date%2Cpub_list_no%2Cseries
_no;lc:RUMSEY~8~1&mi=1&trs=5; David Rumsey Map Collection. “Persia and Afghanistan.
T.B. Johnston, Geographer to the Queen. Keith Johnston’s General Atlas. Engraved, Printed,
and Published by W. & A.K. Johnston, Edinburgh & London (1893).” Accessed May 27, 2017.
http://www.davidrumsey.com/luna/servlet/detail/RUMSEY~8~1~37978~1210991:Persia
-and-Afghanistan-?sort=pub_list_no_initialsort%2Cpub_date%2Cpub_list_no%2Cseries
_no&qvq=w4s:/where%2FAfghanistan;q:johnston;sort:pub_list_no_initialsort%2Cpub
_date%2Cpub_list_no%2Cseries_no;lc:RUMSEY~8~1&mi=3&trs=5.
192 David Rumsey Map Collection. “Persia and Afghanistan by Keith Johnston, F.R.S.E.
Keith Johnston’s General Atlas. Engraved, Printed, and Published by W. & A.K. Johnston,
820
Figure 10.24 Close-up image of “Map of Persia and Afghanistan by Keith Johnston, F.R.S.E.”, included in Alexander Keith Johnston, Royal Atlas of Modern
Geography (Edinburgh: W. & A.K. Johnston, 1879)
Chapter 10
Another map on the “official” list of maps cited both by a number of schol-
ars who support the Iranian claims and by the government of Iran is an 1886
British War Office map, which was republished in 1891, and which is said to
show the three islands in the color of Iran.193 The copy of this map (a close-
up image of which is set out in Figure 10.25) which was obtained through the
British Library confirms this account.194 There is also evidence that a copy of
the 1886 map was presented in 1888 to the Shah of Iran on the instructions of
the Marquis of Salisbury, the British Foreign Secretary, as confirmed by British
Foreign Office records.195
Given the reliance which Iran and its supporters have placed on this map in
buttressing Iran’s claims over all three of the islands, it will be analyzed in detail
in the final section of this chapter when evaluating the overall legal significance
of the map evidence presented in defense of the Iranian claims. It is worth not-
ing at this point, however, that in presenting the three islands in the color of
Iran, the 1886 War Office Map of Persia contradicted stated British views on
the islands’ sovereignty. Indeed, the error reflected in the map and continued
maintenance of Britain's view that the islands belonged to the Qawásim was
not only brought to the attention of the Persian government soon after the map
was presented, but led to a complaint from the Shah himself, who noted this
contradictory representation of sovereignty reflected in the map.196 Perhaps
more significantly, however, is that this map does not corroborate, and indeed
is contradictory to, the evidence related to the islands’ ownership which exists
independently of the map itself. This evidence, which has been reviewed else-
where in this work, reveals that Persia had not exercised any effective control
Edinburgh & London (1879).” Accessed May 25, 2017. http://www.davidrumsey.com/luna/

servlet/detail/RUMSEY~8~1~37178~1210155:Persia-and-Afghanistan-?sort=pub_list_no
_initialsort%2Cpub_date%2Cpub_list_no%2Cseries_no&qvq=w4s:/where%2FAfghan
istan;q:johnston;sort:pub_list_no_initialsort%2Cpub_date%2Cpub_list_no%2Cseries
_no;lc:RUMSEY~8~1&mi=1&trs=5.
193 Mojtahed-Zadeh, Security and Territoriality, 236–237; Mehr, A Colonial Legacy, 196–200;
Bavand, “Legal Basis”, 87–89.
194 British Library Map Collection “Map of Persia. Compiled in the Intelligence Division,
War Office. 1886. Revised 1891, mainly from material supplied by the Surveyor General
of India.” Accessed May 21, 2017. http://www.bl.uk/onlinegallery/onlineex/maps/asia/
4864189u5u1891.html.
195 Toye, Lower Gulf Islands, Vol. 2, 115–122, containing correspondence concerning the pre-
sentation as a gift of an 1886 War Office map of Persia (in 6 sheets) by the British Govern-
ment to the Shah of Persia, August-September 1888.
196 See chapter 8.
822 Chapter 10
Figure 10.25 Close-up image of “Map of Persia. Compiled in the Intelligence Division, War
Office. 1886. Revised 1891”
or possession of the islands up to that time, and that, on the contrary, the Qa-
wásim had done so since at least the mid-nineteenth century.
Prof. Mojtahed-Zadeh next mentions the “Official Map of Persia (in six
sheets): Compiled in 1897 in the Simla Drawing Office, Survey of India, Admin-
istration of Topography of the Indian Foreign Office [in which t]he Tunbs and
Abu Musa are shown in the colours of the Iranian mainland.”197 A hard copy
of this map, in six sheets, was consulted at the British Library and appears to
confirm this assertion (Figure 10.26).198 It should, however, be mentioned that

198 British Library Map Collection. “Map of Persia (in Six Sheets) compiled in the Simla
Drawing Office, Survey of India (1897)”, British Library Maps 50970.(22), BLL01004864204.
several of the same observations made in relation to the 1886 War Office Map
of Persia noted above – particularly that the map contradicts stated British
views on the islands’ sovereignty at that time and is not corroborated by any
evidence which exists independently of the map – are equally applicable to
this 1897 map.
A final map from the end of the nineteenth century relied on by Prof.
Mojtahed-Zadeh is described by him as “Map of Persia: Compiled in 1897 by
Colonel T.H. Holdich, Superintendent, Survey of India, British India Office
Library W/L PS/21/B22, the three islands shown in Iranian colour.”199 This map,
with the reference to the India Office Library provided, was consulted at the
British Library and it appeared to be the same map as the 1897 Simla Drawing
Office map referred to in Figure 10.26 and the previous paragraph.200
Figure 10.26
Close-up image of Sheet No.
5 of “Map of Persia (in Six
Sheets) compiled in the Simla
Drawing Office, Survey of
India (1897)”

200 British Library Map Collection, “Map of Persia (in Six Sheets)”, Compiled under the orders
of Colonel Sir H.R. Thuillier K.C.I.E., R.E., and of Major General C. Strahan R.E., Surveyors
General of India, by Colonel Sir T.H. Holdich K.C.I.E., C.B., R.E., Superintendent, Survey
of India. Photozincographed at the Office of the Trigonometrical Branch, Survey of India,
Dehra Dun, April 1898, IOR/W/L/PS/21/B22.
824 Chapter 10
(b) Semi-official Maps

The first of the two nineteenth century “semi-official” maps cited by Prof.
Mojtahed-Zadeh is “Map of Persia and Cabul”, which he describes as having
been “compiled in 1837 by Mr. J. Arrowsmith in London; the three islands are co-
loured as Iranian.”201 While it was not possible to identify an 1837 map by John
Arrowsmith, we note that other contemporaneous maps of the Gulf published
by John Arrowsmith, namely one entitled “Central Asia Comprising Cabool,
Persia, the River Indus and countries Eastward of it” printed in 1834 which was
reviewed above (see Figures 10.19 and 10.20), and a Map of Persia and Cabul
published in John Arrowsmith’s 1842 edition of The London Atlas of Universal
Geography, do not color the islands in the color of the Persian coast.202 Once
again, this demonstrates either that these maps show no association between
Persia and the islands or, assuming the 1837 map cited above exists in the form
noted, an inconsistent depiction by the same cartographer.
The other “semi-official” map cited in support of the Iranian claim is de-
scribed as an 1891 map of Persia, Afghanistan and Baluchistan “by the Royal
Geographical Society under the supervision of Lord George Curzon MP, and
attached to Curzon’s Persia and the Persian Question (1892) [and in which
t]he islands are coloured the same as the rest of Iran.”203 It is correct that this
map appears to color the islands in the same color as the Persian mainland, as
seen in Figure 10.27.204 It is not correct, however, to describe the map as “semi-
official” as made clear by Curzon in the preface to his book: “Finally, let me
add that the whole of these two volumes, with the exception of the chapter on
Persepolis, was already in print when I became officially connected with the
India Office; and that the views expressed are therefore, in every case, those of
a private individual only, and have been formed in entire independence of of-
ficial authority or inspiration.”205 Elsewhere in the preface to his book, Curzon
made what appears to be an insightful remark with respect to the accuracy of
his map, which he stated “doubtless contains many errors” resulting from “data
201 Mojtahed-Zadeh, Security and Territoriality, 237 (italics in original).

202 John Arrowsmith, The London Atlas of Universal Geography (London: 1842).
204 Qatar Digital Library. “Persia and the Persian Question by the Hon. George Nathan-
iel Curzon, M.P.” [641] (710/714) , British Library: India Office Records and Private Pa-
pers, IOR/L/PS/20/C43/1.” Accessed May 27, 2017. http://www.qdl.qa/en/archive/81055/
vdc_100023583815.0x000072.
205 George N. Curzon, Persia and the Persian Question (London: Longmans, Green and Co.,
1892), Vol. 1, xi–xii.
as yet in many parts imperfect”, and the collection of information generally in

Persia and other “Eastern” countries, which is relevant to the evaluation of map
evidence during this period generally:
If, in the handling of these [maps], or still more, of the political and gen-
eral branches of my subject, about which I shall have something to say
in an introductory chapter, my readers, comparing this book with simi-
lar ones on Western countries, finds conspicuous defects of treatment
or information, may I beg of them to remember that in the East there
are no official sources of knowledge accessible to the public, no blue
books, no statistics scientifically compiled, no census, no newspapers, no
periodicals – none of that magnificent paraphernalia of which it is still
doubtful whether it adds to the sum of human happiness or is the parent
of intellectual confusion.206
(c) Unofficial Maps

The first of the “unofficial” maps of the nineteenth century which several sup-
porters of the Iranian claims assert as showing the three islands in the same
color as Persia is a German map of 1804 housed at the Harvard College Library
Map Collection.207 Quite on the contrary, this map depicts virtually the entire
northern coast of the Gulf – set off in a separate color from that used for Persia –
as constituting the “Independent Arab States” (Unabhängige Arabische Staat-
en) and colors all of the islands in the same color as those Independent Arab
States (see Figure 10.28).208 In depicting the northern littoral of the Gulf as
constituting Independent Arab States which controlled a number of Gulf is-
lands independently of Persia, this map echoes the findings of various eigh-
teenth century travellers, including van Kniphausen and Carsten Niebuhr, who
both noted this historical phenomenon.209
Mehr refers to another German map dated 1811 and printed in Prague which
he also claims has colored all three islands in the same color as Persia.210 This
is again inaccurate. Just as with the 1804 map, the copy of this map housed at
206 Ibid., x.
207 Mehr, A Colonial Legacy, 197, referring to Harvard College Library No. 2276/8. See also,
Mirfendereski, “Tamb Islands Controversy”, 399.
208 Harvard College Library, Map No. 2276/8.
209 See A Brief Note About Nomenclature – “The Gulf”, notes 2–3 and accompanying text.
210 Mehr, A Colonial Legacy, 197 and Mirfendereski, “Tamb Islands Controversy”, 399, refer-
ring to Harvard College Library Map No. 2276/10.
826
Figure 10.27 Close-up image of “Map of Persia, Afghanistan and Baluchistan” in Persia and the Persian Question by the Hon. George Nathaniel Curzon, M.P.
Chapter 10
Figure 10.28 Close-up image of “Persien nach seinem neuesten Zustande in das Oestliche und Westliche Reich eingetheilt und entworfen von C.G. Reichard”
(Weimar, 1804)
827
828
Figure 10.29 Close-up image of “Charte von Persien (Prag, 1811)”

Chapter 10
the Harvard College Map Collection (Figure 10.29) shows the coastal areas of
the northern Gulf in a separate color from that used for Persia, and depicts
those coastal areas as constituting the Independent Arab States (Unabhängige
Arabische Staaten). The disputed islands are colored in the same color as that
used for the Independent Arab States.211
Another unofficial map referred to by Prof. Mojtahed-Zadeh is “The Map
of Persia”, which he describes as having been “compiled in 1818 in England for
Thomson’s New Grand Atlas [in which] the three islands are coloured like the
Iranian mainland.”212 Our searches have identified a map with these charac-
teristics in a publication entitled Thomson’s New General Atlas published in
1817. The full image of the map and a close-up of the Gulf area appear in Figure
10.30 and Figure 10.31.213 The assertion that “the three islands are coloured like
the Iranian mainland” in this map also appears to be inaccurate as the Persian
coast and mainland around the islands are colored in distinct shades of green
while the islands appear in the same color as the Gulf waters, which is a pale
blue/green. That no color association between the Persian mainland and the
three islands was intended is clear when noting that the color given to other
islands offshore of Arabia appear in the same pale/blue color.
The next unofficial map cited by Prof. Mojtahed-Zadeh is the “Map of Per-
sia”, which he describes as having been “[c]ompiled 1828 by Sidney Hall in Lon-
don [in which] the three islands are coloured as belonging to Iran.”214 From
the copy of this map we located (Figure 10.32), this assertion is not entirely
accurate as it can be seen that while Greater Tunb is colored over in the same
color as the Persian coast, Lesser Tunb is not named or colored at all.215 As
for Abu Musa, while it would appear from its geographical location that the
211 Harvard College Library, Map No. 2276/10 (See Figure 10.29).
213 David Rumsey Map Collection. “Persia. J. & G. Menzies sculpt., Edinr. (Drawn & engraved
for Thomson’s New general atlas, 1817).” Accessed May 21, 2017. http://www.davidrum
sey.com/luna/servlet/detail/RUMSEY~8~1~28368~1120797:Persia-?sort=Pub_List_No
_InitialSort%2CPub_Date%2CPub_List_No%2CSeries_No&qvq=q:Thomson%2BMap
%2Bof%2BPersia;sort:Pub_List_No_InitialSort%2CPub_Date%2CPub_List_No%2C
Series_No;lc:RUMSEY~8~1&mi=0&trs=3.
215 David Rumsey Map Collection. “Persia. By Sidney Hall. London, published by L ongman,
Rees, Orme, Brown & Green, Paternoster Row, August 1828.” Accessed May 21, 2017.
http://www.davidrumsey.com/luna/servlet/detail/RUMSEY~8~1~21806~670039:Persia
-?sort=Pub_List_No_InitialSort%2CPub_Date%2CPub_List_No%2CSeries_No&qvq=
q:Sidney%2BHall%2BPersia;sort:Pub_List_No_InitialSort%2CPub_Date%2CPub_List
_No%2CSeries_No;lc:RUMSEY~8~1&mi=2&trs=4.
830 Chapter 10
Figure 10.30 Map of Persia (Drawn & engraved for Thomson’s New General Atlas, 1817)
cartographer has colored it in the same color as the Persian coast, the island
is unnamed. Additional confusion about the accuracy of this map may be ap-
preciated by noting that a number of other Gulf islands closely abutting the
Persian coast which were under Persian control at that time, most conspicu-
ously “Ormuz”, are also not colored as pertaining to Persia.
The map of “Persia and Part of the Ottoman Empire: compiled in 1831 by
G. Long and published by the Society of Expanding Useful Education in
England” is referred to by Prof. Mojtahed-Zadeh as having “the three is-
lands … coloured as Iranian owned.”216 The copy of this map which we were

Figure 10.31 Close-up image of “Map of Persia (Drawn & engraved for Thomson’s New General
Atlas, 1817)”
Figure 10.32 Close-up image of “Map of Persia. By Sidney Hall. London, published by
Longman, Rees, Orme, Brown & Green, Paternoster Row, August 1828”
832 Chapter 10
Figure 10.33 Close-up image of “Map of Persia and Part of the Ottoman Empire by G. Long,
M.A., 1831”
able to locate shows that Prof. Mojtahed-Zadeh’s assertion is again not ac-
curate as none of the islands is colored in the color of the Iranian coastline
(Figure 10.33).217
In his list of British maps in support of the Iranian claims, Mehr references
an 1853 map which he asserts shows that “the islands of the two Tumbs and
Abu Musa bear the same color as Iran and not that of the Arab coast.”218 He
does not give more information about this map but he indicates that it is lo-
cated at Harvard College Library under No. 2275/1853. The map identified with
that reference belonging to the collection of the Harvard College Library is a
map whose full title is: The Eastern Part of the Ancient Persian Empire, by G.
Long, M.A., 1831, published under the superintendence of the Society for the
217 David Rumsey Map Collection. “Persia with part of the Ottoman Empire, by G. Long, M.A.,
1831. Published under the superintendence of the Society for the Diffusion of Useful Knowl-
edge. Engraved by J. & C. Walker. London, published by Baldwin & Cradock, 47 Paternoster
Row, November 10th, 1831 (London: Chapman & Hall, 1844).” Accessed May 21, 2017. http://
www.davidrumsey.com/luna/servlet/detail/RUMSEY~8~1~20917~530018:Persia,-Otto
man-Empire-?sort=Pub_List_No_InitialSort%2CPub_Date%2CPub_List_No%2CSeries
_No&qvq=q:Persia%2BLong;sort:Pub_List_No_InitialSort%2CPub_Date%2CPub_List
_No%2CSeries_No;lc:RUMSEY~8~1&mi=1&trs=8.
Diffusion of Useful Knowledge, engraved by J. & C. Walker and published in

London by John Cox on January 1st 1853.219 As suggested by its title, this map
does not depict Persia and the Gulf in the mid-nineteenth century, but rather
in antiquity. The cataloguing information communicated to us by Harvard
College Library confirms this, indicating that the map depicts the area of the
Gulf in 300 b.c.220 Notwithstanding its irrelevance to Iran’s claim to have ex-
ercised sovereignty over the islands in the nineteenth century, it is interesting
to note that different versions of this map were published with different color
schemes. The 1853 version of the map cited by Mehr colors the islands of Great-
er and Lesser Tunb (albeit unnamed) in the same color as Harmozeia, which
was then a sub-region or a vassal kingdom of Carmania, in turn a vassal State
of Persia,221 but Abu Musa (which is also unnamed and has been depicted out
of scale with its size in reality) has been left colorless.222 A close-up image of
the 1853 map is shown in Figure 10.34.223
However, an earlier version of the same map, published by Baldwin & Gra-
dock on 1st December 1831 and reprinted in “Maps of the Society for the Diffu-
sion of Useful Knowledge, Vol. 1 (London: Chapman and Hall, 186, Strand) in
1844” uses distinct colors to outline the presumed borders of the Eastern Part
of the Ancient Persian Empire and does not color the islands of Abu Musa or the
Tunbs in that color, or indeed at all, as seen in Figure 10.35.224
The next two maps in the list of unofficial maps noted by Prof. Mojtahed-
Zadeh are said to be included in the “Black Atlas” published in 1840225 and
219 Obtained from Harvard College Library. Map No. 2275/1853 (See Figure 10.34).
220 E-mail correspondence with Jonathan Rosenwasser of the Harvard Map Collection, dated
August 21, 2015 (on file with authors).
221 K.E. Eduljee, “Hormozgan’s History & Zoroastrian Connections.” Accessed May 27, 2017.
http://heritageinstitute.com/zoroastrianism/hormozgan/index.htm.
222 Mirfendereski in his PhD thesis circumscribed to the sovereignty dispute over the Tunbs
properly accounts for what this map depicts: “the Tambs bear the same colour (yellow) as
the Persian Coast.” Mirfendereski, “Tamb Islands Controversy”, 400.
223 Harvard College Library. Map No. 2275/1853.
224 David Rumsey Map Collection. “The eastern part of the ancient Persian Empire, by
G. Long, M.A., 1831. Published under the superintendence of the Society for the Diffu-
sion of Useful Knowledge. Engraved by J. & C. Walker. Published by Baldwin & Cradock,
47 Paternoster Row, Decr. 1st. 1831. (London: Chapman & Hall, 1844).” Accessed May 27,
2017. http://www.davidrumsey.com/luna/servlet/detail/RUMSEY~8~1~20916~530017:The
-eastern-part-of-the-ancient-Per.
225 Geographicus. “Rare Antique Maps, Map of Persia.” Accessed May 28, 2017. http://www
.geographicus.com/P/AntiqueMap/Persia-black-1840. This atlas was also consulted at the
British Library by the authors but given that the format of the atlas was in microfilm, no
colour was shown in the map. Black’s General Atlas (S. Hall: Edinburgh, 1840).
834
Figure 10.34 Close-up image of Map “The Eastern Part of the Ancient Persian Empire”, by G. Long, M.A., 1831, published in 1853 under the Society for the
Diffusion of Useful Knowledge
Chapter 10
Figure 10.35 Close-up image of Map “The Eastern Part of the Ancient Persian Empire”, by G. Long, M.A., 1831, published in 1831 by Baldwin & Gradock and
appearing in “Maps of the Society for the Diffusion of Useful Knowledge”, 1844
835
836 Chapter 10
1844,226 with the three islands “shown as belonging to Iran” in both of them.227
These two maps (not included herein), which are essentially the same map
published in the same Atlas on two occasions, show the Greater Tunb and Abu
Musa in the same color as Laristan, but the Lesser Tunb seems to be uncolored.
Prof. Mojtahed-Zadeh also refers to the “Map of Persia & Cabul”, which he
states was “compiled 1844 by A.K. Johnston for the National Atlas, published in
England”.228 With regard to this map, he goes on to note that “the three islands
are coloured like the rest of Iran.”229 This description accords with the copy of
the map that we were able to consult at the British Library but which is not
included as a separate image in this chapter.230 Prof. Mojtahed-Zadeh also lists
another map by A.K. Johnston compiled in 1860 for the General Atlas in which
“the three islands are coloured like the rest of Iran”.231 This description also ac-
cords with the map by Johnston that we were able to locate (not included here-
in), although the publication date of the map consulted was 1861, not 1860.232
At the same time, it must be noted that this A.K. Johnston map is similar to
the 1884 Johnston map that appears above in Figure 10.24, in relation to which
it was found that earlier (1879) and later (1893) versions of the same Johnston
map of the Gulf did not color Abu Musa in the color of Persia, but rather left
that island uncolored or colored in the tan color of the Arabian coast.233
The list of British maps given by Mehr includes a map he states dates from
1861 and identifies by Harvard College Library Map No. 2276/17.234 Although he
appears to refer to the same map by Johnston mentioned by Prof. Mojtahed-
Zadeh, according to the cataloguing information of Harvard College Library,
226 Geographicus. “Rare Antique Maps, Maps of Persia” Accessed May 28, 2017. http://www
.geographicus.com/P/AntiqueMap/Persia-black-1844. The hard copy of the Atlas con-
sulted at the British Library by the authors confirmed this image. Black’s General Atlas
(S. Hall: Edinburgh, 1844).
228 Ibid.
229 Ibid.
230 Alexander Keith Johnston, The National Atlas of Historical, Commercial and Political Geog-
raphy (Edinburgh: John Johnston and W. & A.K. Johnston, 1845).
232 David Rumsey Map Collection. “Persia and Afghanistan by Keith Johnston, F.R.S.E. En-
graved & printed by W. & A.K. Johnston, Edinburgh. William Blackwood & Sons, Ed-
inburgh & London, in The royal atlas of modern geography, (1861)”, Accessed: May 24,
2017. http://www.davidrumsey.com/luna/servlet/detail/RUMSEY~8~1~21325~620025:
Persia,-Afghanistan-?sort=Pub_List_No_InitialSort%2CPub_Date%2CPub_List_No
%2CSeries_No&qvq=q:Persia%2BJohnston;sort:Pub_List_No_InitialSort%2
CPub_Date%2CPub_List_No%2CSeries_No;lc:RUMSEY~8~1&mi=0&trs=5.
Figure 10.36 Close-up image of Map entitled “Persia and Afghanistan by Keith Johnston, F.R.S.E.”, 1880
837
838 Chapter 10
this reference is of a map printed in 1880.235 This 1880 version of the John-
ston map is almost identical to the 1861236 and 1884237 Johnston maps and does
show all three islands in the same color as the Persian coast, as shown in Figure
10.36.238
A further unofficial map listed by Prof. Mojtahed-Zadeh is a map of Persia
“compiled in 1851 by J. Rapkin for the John Tallis Atlas in London” in which
he states that “the three islands are shown as Iranian”.239 This is not what the
map with these references that we were able to find showed. In the 1851 map
of Persia drawn and engraved by J. Rapkin and published by Tallis in London
and New York, while Laristan and some of the islands off its coastline (such as
Kishm, Keish, Larrack, Ormuz and others) are shown in the same yellow color,
the islands of Abu Musa and the two Tunbs are, like the Arab coast of Oman,
not colored, as seen from the image in Figure 10.37.240
Figure 10.37 Close-up image of “Map of Persia Drawn and Engraved by J. Rapkin” (1851)
235 E-mail correspondence with Jonathan Rosenwasser of the Harvard Map Collection, dated
August 21, 2015 (on file with authors), regarding Map. No. 2276/17 of Harvard College Li-
brary. Mirfendereski also cites this same map housed at Harvard College Library. See Mir-
fendereski, “Tamb Islands Controversy”, 400.
236 See supra note 232.
237 See supra notes 191–192 and 232 and accompanying text, referring to Figure 10.24.
238 Harvard College Library, Map. No. 2276/17.
240 David Rumsey Map Collection. “Persia. Drawn & Engraved by J. Rapkin (London and
New York: J. & F. Tallis, 1851).” Accessed May 24, 2017. http://www.davidrumsey.com/luna/
servlet/detail/RUMSEY~8~1~813~60118:Persia-?sort=Pub_List_No_InitialSort%2CPub
Another unofficial map of the nineteenth century relied on by Prof. Moj-

tahed-Zadeh is a map of Persia and Afghanistan “compiled in 1854 by A.P.C.
Black for the University of Edinburgh” in which he states that “the three i slands
are shown as Iranian”.241 Our searches identified a map with this information
which was published around that date in E dinburgh by Adam and Charles
Black in 1854 in General Atlas of the World.242 This map does not distinctively
show the islands as being in the color of the Iranian coast (Laristan) as the col-
ors used for Laristan (pale yellow) and the “Pirate Coast” (cream color) in the
map are very similar. The scale to which the map is drawn, showing the whole
of Persia and Afghanistan, also makes it difficult to distinguish whether the
colors used to mark the islands are those of the Iranian or Arabian mainland.
A close-up image of this map is included in Figure 10.38.243
Figure 10.38 Close-up image of “Map of Persia and Afghanistan Published by A. &. C. Black
(1854)”
_Date%2CPub_List_No%2CSeries_No&qvq=q:Rapkin%2BPersia;sort:Pub_List_No
_InitialSort%2CPub_Date%2CPub_List_No%2CSeries_No;lc:RUMSEY~8~1&mi=0&trs=1.
242 David Rumsey Map Collection. “Persia and Afghanistan. Edinburgh, Published by
A. &. C. Black (Edinburgh, 1854).” Accessed May 24, 2017. http://www.davidrumsey.com/
luna/servlet/detail/RUMSEY~8~1~37586~1210571:Persia-and-Afghanistan-?sort=Pub
_List_No_InitialSort%2CPub_Date%2CPub_List_No%2CSeries_No&qvq=q:Black%2
BPersia;sort:Pub_List_No_InitialSort%2CPub_Date%2CPub_List_No%2CSeries
_No;lc:RUMSEY~8~1&mi=1&trs=8.
243 Ibid.
840 Chapter 10
Two American maps are cited by Mehr as evidence of support of the Iranian
claim of ownership. One map is said to be published in Edward Stack’s Six
Months in Persia, published in 1882, and the other one is an 1885 map housed
in the Harvard Map Collection.244 Regarding the first map referenced by Mehr,
the publication by Stack with these characteristics that we consulted contains
a map of Persia (not included in this chapter) in which what appear to be the
three islands in dispute (although these islands are not identified by name) are
colored in the same color as Iran.245 However, we note that, while the copy of
the book that Mehr seems to have consulted was published in New York, this
map is not an American map as Edward Stack was British. The copy of the sec-
ond American map that we obtained from Harvard Map Collection (see Figure
10.39) shows Greater Tunb in the color of the Iranian coast but does not color
Abu Musa or, it would appear, Lesser Tunb.246
Maps of the Twentieth Century

Several maps of the twentieth century are relied upon by a number of authors
who support Iran’s assertions of sovereignty over the islands, including one
labelled as an official map and a number of others labelled as unofficial maps.
The “official” map relied upon is a Map of Iran, Afghanistan, and West Pak-
istan, in World Atlas, Plate Nos. 143–144, compiled under the supervision of
the Council of Ministers of the Soviet Socialist Republics in 1967 on the oc-
casion of the 50th anniversary of the October Revolution. In relation to this
map, Prof. Mojtahed-Zadeh notes that “the name ‘Iran’ appears next to the is-
lands in question.”247 In the debate that took place at the Security Council on
9 December 1971, the representative of Iran most probably was referring to this
same map when he spoke of “a highly authoritative encyclopedia, published as
recently as 1967 to cover the events of the last 50 years, by another major Power
[in which] the Tunbs have been identified as Iranian territory. The map shows
the islands having the same colour as the mainland and, in addition, they are
expressly marked as being Iranian.”248 The accuracy of these assertions is ques-
tionable, as evidenced by the map shown in Figure 10.40.249
244 Mehr, Colonial Legacy, 197, citing to “Edward Stak[sic], Six Month[sic] in Persia (New
York:1882); Harvard College Library 2276/21”. Mirfendereski also refers to these two Amer-
ican maps as depicting “the Tambs” in the same colour as Persia. Mirfendereski, “Tamb
Islands Controversy”, 402.
245 Edward Stack, Six Months in Persia (London: Sampson Low, 1882), Vol. 1.
246 Harvard College Library 2276/21.
247 Mojtahed-Zadeh, Security and Territoriality, 237. See also, Mirfendereski, “Ownership of
the Tonb Islands”, 141.
248 UN Doc. S/PV.1610, 18.
249 David Rumsey Map Collection. “Map of Iran, Afghanistan, West Pakistan, in Chief Ad-
ministration of Geodesy and Cartography under the Council of Ministers of the ussr.
Figure 10.39 Close-up image of “Map of Persia, Afghanistan and Beluchistan” (1885)
841
842 Chapter 10
Figure 10.40 Close-up image of “Map of Iran, Afghanistan, West Pakistan”,

in World Atlas (Moscow, 1967)
First, there is no color association between Iran and the islands at all as the
map is topographical, using colors to denote geographical depths and heights,
and marking national boundaries with a broken line overlaid in a maroon col-
ored hue. The name “(Iran)” does, however, appear below the islands of G reater
Tunb, Abu Musa, Sirri and Banifurur.250 But the significance of this designa-
tion is unclear as no similar indication is placed below any of the other nearby
Gulf islands which are recognized as Iranian territory, raising the question as
The World Atlas. Second Edition. Moscow. 1967, Nos. 143–144.” Accessed May 24, 2017.
http://www.davidrumsey.com/luna/servlet/detail/RUMSEY~8~1~208265~3001961:143
-144--Iran,-Afghanistan,-West-Pa?sort=Pub_List_No_InitialSort%2CPub_Date%2CPub
_List_No%2CSeries_No&qvq=w4s:/when%2F1967;q:map%2Bof%2Biran%2C%2
Bafghanistan%2Band%2Bwest%2Bpakistan;sort:Pub_List_No_InitialSort%2CPub
_Date%2CPub_List_No%2CSeries_No;lc:RUMSEY~8~1&mi=1&trs=2.
250 It should be noted that Plate 143–144 may be in error in marking “(Iran)” under the island
of Banifurur as Plate 152–153 of the same Atlas (Arabian Peninsula and Bahrain) marks
“(Iran)” under Lesser Tunb instead of Banifurur. David Rumsey Map Collection. “Map of
Arabian Peninsula. Bahrein (Bahrain) Islands, in Chief Administration of Geodesy and
Cartography under the Council of Ministers of the ussr. The World Atlas.
to why, if the assumption is that all of those islands (marked and unmarked)
are Iranian territory, only these particular islands were distinguished with the
label “(Iran)”. Moreover, similar indications are placed below Bahrain (but stat-
ing “(Brit, Iran)”), as well as below Qatar, Oman and “Trucial Oman” (stating
only “(Brit)”). While Bahrain, Qatar and “Trucial Oman” were all still under
the treaty protection of Britain in 1967, which could explain the reference to
Britain under each one, Iran neither possessed nor had any treaty relationship
with Bahrain, with its only connection to Bahrain being its disputed claim of
ownership. As Iran had similar disputed claims of ownership to Greater Tunb
and Abu Musa but did not possess the islands, noting “Iran” under each more
logically appears to have signified the existence of the Iranian claim rather
than an assertion that the islands constituted Iranian territory.
Further confusion and inconsistencies are created by the official legend of
the Atlas, in which it is noted that placing a country’s name in parenthesis be-
low a territory means “Country Possessing Given Territory”.251 Taken literally,
this could not have applied to the islands of Greater Tunb, Lesser Tunb, Abu
Musa or Bahrain since Iran did not possess any of these islands in 1967, but
rather only claimed them. The fact that the indication “(Iran)” was similarly
noted below the island of Sirri, which had been (unlike these other islands)
in the de facto possession of Iran since 1887, albeit contested by Britain and
Sharjah, adds further confusion to the meaning of that designation. On the
other hand, taken as an assertion of presumed territorial title, this could not
have applied to any of the places under which Britain’s name appears in that
form (Bahrain, “Trucial Oman”, Qatar or Oman) as Britain did not, nor aspired
to, hold territorial title to any of these places. In sum, reaching a firm conclu-
sion as to what these designations – whether “Iran”, “Brit” or “Brit, Iran” – were
intended to mean would involve a significant degree of speculation.
The “unofficial” maps of the twentieth century relied on by Prof. Mojtahed-
Zadeh and other supporters of the Iranian claims include one described as
“Map of Persia, Afghanistan and Baluchistan in Hammond’s Modern Atlas of
Second Edition. Moscow. 1967, Nos. 152–153.” Accessed May 29, 2017. http://www.davi
drumsey.com/luna/servlet/detail/RUMSEY~8~1~208291~3001970:152-153--Arabian-Pen
insula--Bahrein?sort=pub_list_no_initialsort%2Cpub_list_no_initialsort%2Cpub_list
_no_initialsort%2Cpub_date&qvq=w4s:/when%2F1967;q:arabian%2Bpeninsula;sort:
pub_list_no_initialsort%2Cpub_list_no_initialsort%2Cpub_list_no_initialsort%2Cpub
_date;lc:RUMSEY~8~1&mi=2&trs=3.
251 David Rumsey Map Collection. “The World Atlas. Second Edition. Moscow. 1967, Abbre-
viations of Geographical Terms.” Accessed May 29, 2017. http://www.davidrumsey.com/
luna/servlet/detail/RUMSEY~8~1~207969~3001817?qvq=q%3Apub_list_no%3D%221603
.000%22%3Blc%3ARUMSEY~8~1&mi=10&trs=262. The full Atlas can be consulted at the
David Rumsey Map Collection.
844 Chapter 10
the World, C.S. Hammond & Co., 1909, p. 96 which depicts the islands of Tunb
and Abu Musa as Iranian territory.”252 This assertion is, again, simply not accu-
rate, but in this case only partially so. There are various editions of Hammond’s
Modern Atlas of the World and other similar Atlases by the same publisher
in the first half of the twentieth century either containing a map of Persia,
Afghanistan and Baluchistan or a general map of Asia in which these coun-
tries are included.253 All of these maps up to 1917, including the 1909 version
relied on by scholars supporting the Iranian position (except for the maps of
Asia which are done at such a scale in which the islands are not depicted) are
consistent in appearing to color the Tunbs as Iranian territory and Abu Musa in
the colors of the Trucial States, or “Oman”.254 Nevertheless it is notable that the
1948 edition of Hammond’s New World Atlas shows both Abu Musa and Greater
Tunb (Lesser Tunb does not seem to appear on this map) in the same colors as
the Trucial States (see Figure 10.41).255 This map also contains a legend under
the names of these islands that reads “(Br.)”, which is not explained but in the
252 Mojtahed-Zadeh, Security and Territoriality, 238. See also Mirfendereski, “The Ownership
of the Tonb Islands”, 141, although restricting his assertion regarding the color of the Tun-
bs as Iranian.
253 The editions we have been able to identify and their respective pages for the maps of
Persia, Afghanistan and Baluchistan or a more general map of Asia in which these coun-
tries are included are: Hammond’s Modern Atlas of the World (New York: C.S. Hammond
& Co., 1905), 94 (“Persia, Afghanistan and Baluchistan”); Hammond’s Handy Atlas of the
World (New York: C.S. Hammond & Co., 1909), 96 (“Persia, Afghanistan and Baluchistan”);
Hammond’s Handy Atlas of the World (New York: C.S. Hammond & Co., 1912), 86 (“Map of
Asia”); Hammond’s Comprehensive Atlas of the World (New York: C.S. Hammond & Co.,
1913), 78 (“Persia, Afghanistan and Baluchistan”); Hammond’s Comprehensive Atlas of the
World (New York: C.S. Hammond & Co., 1917), 50 (“Persia, Afghanistan and Baluchistan”);
Hammond’s New World Atlas (New York, C.S. Hammond & Co., 1948), 97 (“Iran (Persia),
Afghanistan and Baluchistan”).
254 Hammond’s Modern Atlas of the World (New York: C.S. Hammond & Co., 1905), 94 (“Per-
sia, Afghanistan and Baluchistan”); Hammond’s Modern Atlas of the World (New York:
C.S. Hammond & Co., 1909), 96 (“Persia, Afghanistan and Baluchistan”). We were unable
to obtain high resolution images of these two maps in order to include herein. These
can, however, be consulted at https://archive.org/details/hammondsmodernat00newy
(1905 edition) and http://babel.hathitrust.org/cgi/pt?id=nyp.33433000032882;view=1up;
seq=132 (1909 edition). Accessed May 20, 2017.
255 David Rumsey Map Collection. “Iran (Persia), Afghanistan, and Baluchistan, Ham-
mond’s New World Atlas (Garden City Publishing Company, Inc. Garden City, n.y.,
u.s.a. 1948)”. Accessed May 27, 2017. http://www.davidrumsey.com/luna/servlet/detail/
RUMSEY~8~1~206088~3002887:Japan-and-Korea--Iran--Persia-,-Afg?sort=Pub_List_No
_InitialSort%2CPub_Date%2CPub_List_No%2CSeries_No&qvq=q:Hammond%2Bmap
%2Bof%2Biran;sort:Pub_List_No_InitialSort%2CPub_Date%2CPub_List_No%2CSeries
_No;lc:RUMSEY~8~1&mi=0&trs=1.
Figure 10.41 Close-up image of “Map of Iran (Persia), Afghanistan and Baluchistan” (C.S. Hammond & Co., 1948)
845
846 Chapter 10
context most likely refers to the British protectorate arrangements which were
in place with the Sheikhdoms possessing those islands.
The next three maps listed under the “unofficial” list of maps set out by
Prof. Mojtahed-Zadeh are maps from various World Atlases. The first one is
described as: “The Map of Iran: in Rand McNally’s Cosmopolitan World At-
las, Centennial Edition: 1856–1956, compiled by Rand McNally & Co., 1956, p.
157A. Here the islands are indexed as Iranian.”256 While we could not locate
the 1956 edition of this Atlas, the 1959 edition consulted at the British Library
confirmed this information.257 The second Atlas relied on is the Atlas Inter-
national Larousse, (Politique et Economique), I. De Janchy & S. Rado eds.,
Paris: Librairie Larousse 1965, map no. 13A, which is described as including a
map of South West Asia “in which the islands are depicted in the same co-
lour as the Iranian mainland.”258 Despite our best efforts, we were not able to
find and consult the 1965 edition of this Atlas. The 1950 version of this Atlas
was, however, found at the British Library and it did not contain a detailed
map of South West Asia, leaving the Gulf to be included in the more gener-
al map of Asia, the scale of which was too large to allow for a depiction of
the islands.
Finally, the last Atlas of the twentieth century relied on by Prof. Mojtahed-
Zadeh is the Atlante Internazionale 8th edition, Touring Club Italiano, Milan
1968. Prof. Mojtahed-Zadeh asserts that “the islands are depicted in the
same colour as the Iranian mainland” in “map no. 92” which is a map of Iran,
Afghanistan, West Pakistan.259 The copy of this Atlas consulted at the British
Library showed the Greater Tunb and Abu Musa in the color of the Iranian
coast in this map (map plate no. 92, Figure 10.42), while the Lesser Tunb was
not, in fact, drawn on the map.260 Another map contained in the same Atlas
(the map of the Arabian Peninsula, map plate no. 91, Figure 10.43), however,
contradicts this by coloring Abu Musa in the same color as the Trucial States
and leaving Greater Tunb in the color of Iran, with the Lesser Tunb again not
being drawn on the map at all.261
257 Rand McNally Cosmopolitan World Atlas (Chicago: Rand MacNally & Co., 1959) Image not
included herein.
260 Atlante Internazionale 8th ed. (Milan: Touring Club Italiano, 1968), Map Plate No. 92.
261 Atlante Internazionale 8th ed. (Milan: Touring Club Italiano, 1968). Map Plate No. 91.
Mirfendereski has noted this map in his work, pointing out that “the gulf is referred to as
Figure 10.42 Close-up image of “Map of Iran, Afghanistan, Pakistan (West)”

in Atlante Internazionale, 8th Edition (Milan: Touring Club
Italiano, 1968) (Map Plate No. 92)
Assessment of the Evidentiary Value of the Maps Presented by Iran

and Its Supporters
The reliance by Iran and various scholars who support Iran’s claims over the
three disputed islands on map evidence purportedly showing the islands as
part of Persian/Iranian territory appears to be seriously misplaced. This con-
clusion is evident both from a purely evidentiary perspective (as the survey
undertaken above demonstrates) and from the perspective of widely-accepted
principles of international law, which have established that map evidence
must be viewed with great caution and “delicacy” and, except in limited cir-
cumstances not present in connection with the maps relied upon, are not
typically seen as authoritative evidence when determining sovereignty over
territory. The following considerations are the most relevant.
the Arabian Gulf but the Tonbs are still in Iran’s color (light green).” He doesn’t mention
that Lesser Tunb is not drawn on the map, nor that Abu Musa is shown in the color of the
Trucial States. Mirfendereski, “Ownership of the Tonb Islands”, 142.
848 Chapter 10
Figure 10.43 Close-up image of “Map of Arabiyah, Misr El Bahri” in Atlante

Internazionale, 8th Edition (Milan: Touring Club Italiano,
1968) (Map Plate No. 91)
No Map Attached to Treaty

None of the maps cited are attached to a treaty or some other official text which
would endow them “with intrinsic legal force for the purpose of establishing
territorial rights.”262 Under such circumstances, the maps constitute “only ex-
trinsic evidence of varying reliability or unreliability, which may be used, along
with other evidence of a circumstantial kind, to establish or reconstitute the
real facts.”263
Maps are not Corroborative of Other Evidence of Territorial Rights

As they have no “intrinsic legal force”, the evidentiary value of such maps,
assuming they are otherwise reliable, is of “an auxiliary or confirmatory
kind”, essentially limited to corroborating “evidence endorsing a conclusion
at which a court has arrived by other means unconnected with the maps.”264
262 Frontier Dispute (Burkina Faso/Republic of Mali), icj Reports 1986, 554, para. 54.
263 Ibid.
With regard to those specific maps that color one or more of the islands in the
color of the Persian mainland, their evidentiary value is effectively negated not
only because they are inconsistent with the documentary evidence otherwise
available, which, as has been determined in this work, supports the territorial
claims of the uae rather than Iran, but also because, assessing the totality of
the maps referenced in purported support of Iran’s claims, they are highly in-
consistent and, on their face, simply not reflective of any general recognition
that Iran held ownership of the islands. This lack of uniformity or consistency
(discussed further below) leads to the unavoidable conclusion that this map
evidence is unreliable and generally of little legal significance.
No Admissions against Interest

Although it is unclear whether Iran would formally advance such an argument,
it is important to note that none of the maps pointed to (including those that
color one or more of the disputed islands in the color of Persia) were issued or
otherwise approved, authorized or consented to by the uae or its relevant pre-
decessor Sheikhdoms (Sharjah and Ras Al Khaimah). Nor is there any evidence
that they were so much as aware of the existence of any of these maps, includ-
ing the 1886 British War Office map or the 1892 “Curzon” map discussed further
below. For these reasons alone, none of the maps cited by Iran or the scholars
supporting its position would constitute evidence of an admission of any sort
by the uae or its predecessors which could be used to argue that the uae (or
its predecessors) had acquiesced to, or are estopped from denying, Iran’s claim
of sovereignty over the islands. In any event, even if they were aware of such
maps, the leaders of Sharjah and Ras Al Khaimah, and (once established) the
uae, have consistently contested Iran’s claims since they were first suggested
or made in 1887 and, on the contrary, have both before and after that time reaf-
firmed ownership of the islands themselves. This conduct itself would under-
mine any argument that the issuance of various maps by third parties which
from time to time colored the islands in the same color as the Persian littoral
have had the effect of prejudicing the Arab claims over the islands through a
theory of acquiescence or estoppel simply because that conduct, which funda-
mentally challenges any suggestion that the islands pertain to Iran, clearly did
not reflect an admission to that state of affairs.
The 1886 British War Office Map and the Curzon Map
These conclusions also apply to the 1886 British War Office map (Figure 10.25),
which was given to the Shah in July 1888, as numerous pieces of documentary
evidence dated before and after that event show that the Qawásim leaders’
claims of ownership to the islands, and denunciation of Persia’s claims,
remained unchanged throughout. Thus, even if those leaders had been aware
850 Chapter 10
of the issuance of that map, it is clear that they did not acquiesce to its errone-
ous depiction of the islands as part of Persian territory. This can be appreci-
ated by reading the contents of just a few of the various letters of protest and
correspondence sent by the Qawásim leaders of Sharjah and Ras Al Khaimah
to the British government in the years just before and after the map had been
handed to the Persian government. For example, in a protest sent in October
1887, which was issued upon learning of the erection of a Persian flagstaff on
the island of Sirri and the rumor that Persia intended also to hoist its flag on
Greater Tunb, the Ruler of Sharjah reaffirmed in a letter to the British Politi-
cal Resident in the Gulf that all three of the islands of Abu Musa, Greater and
Lesser Tunb, as well as the island of Sirri, were historically used by and be-
longed to the Qawásim tribes of the Arab coast.265 Then in August 1888, just a
month after the map was presented to the Shah, the British held a conversa-
tion with him during which they related that the “Arab tribes who claim these
islands as theirs are within the radius of our jurisdiction and influence, and
have appealed to us against the action of the local authorities in the Gulf in
265 The following letter of protest, sent by the Ruler of Sharjah to the British Political Resi-
dent in the Gulf, Colonel Ross, on 16 October 1887, reflects this insistence and requests
the British Government to take effective measures to protect their sovereign rights to the
islands: “I have the honour to inform Your Excellency that the Island of Sirri, as is known
to you, is a dependency of the El-Kowasim tribe and that when our cousins and other
relatives were on the Persian mainland, and Lingah was in their hands, there was no dif-
ference between us, our affairs and our property were one and the same. Now you have
heard of the proceedings of the Persians, and what they have done at Lingah. After that
we learned that the Persians sent to Sirri erected a flagstaff there, and we had no knowl-
edge of this until after the event. This has done us a grievous wrong, and since the affairs
of the sea are referrible, first to God and then to you, it has become incumbent on us to
report the matter to your Excellency. Our earnest hope and extreme desire is that you will
exert yourself to annul this proceeding and cause the removal of the flagstaff. In like man-
ner, according to reports we have received from Lingah, it is said that the Malik intends
to put up a flagstaff on the Island of Tomb, and you are aware that those Islands belong to
the El-Kowasim, in the same way as do the Islands of Seer-bu-Na’eer, Sirri, and Bu-Musa.
We beg therefore you will take effective measures to prevent this happening, and to frus-
trate their design of hoisting their flag on Tomb. For we, the El-Kowasim, will not consent
to this so long as we are in existence, and it is certain disturbances will occur on the sea
if the British Government are indifferent to these matters. I have therefore submitted
this for your information, and hope you will send a reply; and we have full confidence
in you, and are at your orders.” Toye, Lower Gulf Islands, Vol. 1, 732, containing “Trans-
lated purport of a letter from Sakar Bin Khalid, chief of Shargah, to Colonel E.C. Ross,
Political Resident in the Persian Gulf and Her Majesty’s Consul-General for Fars”, dated
October 16, 1887.
hoisting a flag on their island.”266 Several years later, in 1898, the position of the
Qawásim Rulers was unchanged, as noted by a British official who document-
ed similar protests in which the Ruler of Ras Al Khaimah had written to him
“maintaining conclusively that the island of Tamb belongs to the section of the
tribe of which he is the head” and in which that official concluded that “I think
it is quite clear that Sirri really belongs to the Joasmi Tribe, & that the chiefs of
that [ ] who live on the Arab coast & are under our protection have a distinct
claim to it & deserve our support against the Persian Govt whose occupation
is distinctly a case of usurpation.”267 Thus, even if they were aware of it – of
which there is no evidence – the rendering and presentation of the War Office
map to the Persian government in July 1888 cannot be said to have somehow
led to any admission or acquiescence by the Qawásim leaders to Persia’s claims
of sovereignty over the islands.
Regarding the 1886 War Office map (Figure 10.25) and the 1892 “Curzon” map
(Figure 10.27), while neither could establish a basis for making out a claim of
acquiescence directly against the uae, a related question is whether British
acquiescence to Persian claims of sovereignty over the islands reflected by the
issuance of these or other maps – if established – could have been binding on
the Sheikhdoms, and thus the uae as their successor. There appear to be two
reasons why this could not be the case. First, notwithstanding the protectorate
arrangements which were in place between Britain and the Sheikhdoms, at no
time was their territory seized or held by the British,268 and moreover under
those arrangements the British did not have the power to delimit or alienate
the Rulers’ territory or take decisions regarding their territorial sovereignty
without their consent.269 In line with this reasoning, it could not be argued
that Britain’s acquiescence to Persia’s territorial claims over islands belonging
to the Qawásim Sheikhdoms would have any legal effect or would prejudice
the Sheikhdoms’ territorial rights.

267 Ibid., 255.
268 See, e.g., speech of Lord Curzon in 1903, cited in Dubai-Sharjah Border Arbitration (Dubai/
Sharjah), Award of October 19, 1981, ilr 91 (1993) 543, 561.
269 See Dubai-Sharjah Arbitration, 567. See also Maritime Delimitation and Territorial Ques-
tions between Qatar and Bahrain (Qatar v Bahrain), Merits, Separate Opinion of Judge
Kooijmans, icj Reports 2001, 225, para. 28 (“Neither the Treaties of 1880 or 1892 with Bah-
rain [similar to the 1892 Exclusive Agreements with the Trucial States] nor the Treaty of
1916 with Qatar conferred upon the Protecting Power, Great Britain, the right to unilater-
ally determine the boundaries of the sheikhdoms or to decide upon matters of territo-
rial sovereignty. Such decisions could therefore only be made with the consent of the
protected States themselves and this seemed not to be in dispute between the Parties.”).
852 Chapter 10
The other reason why such a scenario would not apply is that it does not
appear that a case could be made out that Britain acquiesced to Persia’s claims
over the islands notwithstanding the issuance of these maps which reflected,
through color association, Persian ownership of those islands. With respect
to the 1892 Curzon map, as noted above, the book in which it was contained
(Persia and the Persian Question) was not a product of the British government,
having been in print prior to Lord Curzon’s becoming “officially connected
with the India Office”, and reflecting his views “as a private individual only …
formed in entire independence of official authority or inspiration.”270 As this
map was not issued or “drawn by order or under the care of”271 the British gov-
ernment, nor, as far as the evidence reviewed indicates, subsequently adopted
or approved by it, the map could have no preclusive effects against the British
government. Moreover, just as with the 1886 War Office map, the publication of
the Curzon map occurred during a period (the end of the nineteenth and be-
ginning of the twentieth centuries) when the British government was actively
defending the claims of the Qawásim over those same islands, and challenging,
if not repudiating altogether, the claims of Persia. Thus, even if the map had
been issued or adopted by the British government, its evidentiary value would
be negated by the evidence of the government’s contemporaneous conduct
which, in actively contesting the Persian claim over the islands, was entirely at
odds with the map in that respect.272 Further reinforcing the conclusion that it
would be wrong to interpret the Curzon map, and its coloring the islands in the
color of the Persian littoral, as reflecting the official position of the British gov-
ernment, the exact same map but showing the islands without colors, and thus
not associated with either the Persian or Arab coast, was reproduced the same
year (1892) by the Intelligence Division of the War Office. The relevant part of
this map, which is also housed at the British Library, is shown in Figure 10.44.273
With respect to the 1886 British War Office map that was presented to the
Shah in July 1888, while it was undoubtedly the product of the British govern-
ment, no preclusive effect against the British government can be drawn from
270 George N. Curzon, Persia and the Persian Question (London: Longmans, Green and Co.,
1892), Vol. 1, xi–xii. See supra notes 205–206 and accompanying text.
271 Sovereignty over Clipperton Island case, 390, 393.
272 See Temple of Preah Vihear, 21–32.
273 British Library Map Collection. “Persia, Afghanistan and Beluchistan. Compiled under
the supervision of Hon. G. Curzon, M.P. by W.J. Turner, F.R.G.S. 1891, Intell. Div: No. 885.
This map which was issued with the Proceedings of the Royal Geographical Society for
February 1892 was reproduced in the Intell. Div. W. O. under the direction of Lieut. Col. C.J.
Dalton R. A.D.A.A.G. from transfers kindly supplied by the Council R. G. S.”, British Library,
Maps 51140.(23.).
Figure 10.44 Close-up image of “Map of Persia, Afghanistan and Baluchistan compiled under the supervision of Hon. G. Curzon, M.P. by W.J. Turner F.R.G.S.,
853
1891, Intelligence Division W.O. No. 855 (1892)”

854 Chapter 10
its coloring the three disputed islands (along with Sirri) in the same color as
the Persian coast, nor would that be relevant to the dispute between Iran and
the uae in any case. First, it is relevant to note that the reason for p resenting
the government of Iran with the map was to provide geographical informa-
tion to Iran during discussions about the Perso-Afghan frontiers.274 Thus, the
focus and purpose of the map was not to delimit the areas of sovereignty be-
tween Iran and the Arabs of the opposite coast. More importantly, however,
at precisely the same time as the map was presented to the Shah, rather than
supporting Persia’s sovereignty over the three disputed islands, the British
government was engaged in repeatedly defending the Qawásim claims of
ownership of those same islands and Sirri and challenging the Persian govern-
ment to provide proof of its assertion of title. For example, (i) in March 1888,
the British legation in Teheran sent a note of protest to the Persian foreign
ministry stating that “Her Majesty’s Legation would be glad to know on what
ground the Persian Government have annexed an island [i.e., Sirri] which is
the property of the Joasimee Chiefs who are under British protection”;275 (ii) in
March 1888, the British Legation in Teheran again wrote to the Persian foreign
ministry stating that the “Joasimee Sheikhs have had traditional rights over the
Island of Siri which were never disputed and generally recognised [and] the
hoisting of the Persian flag altered the existing status”;276 (iii) on 28 April 1888,
an internal British note written by the Gulf Resident stated that “[t]he claim
now put forward [by Persia] to the island of “Bu Moosa” [i.e., Abu Musa] has no
justification whatsoever [and] any attempt to assert Persian authority there in
a practical form would probably lead to disturbances”;277 and (iv) on 15 August
1888, in a document entitled “Persian Occupation of the island of Sirri”, the
Government of India noted that the British Resident had stated “that Sirri and
Tamb are beyond the zone of Persian interference, that the islands belong to
Arab chiefs under British protection in common with Arabs of the Persian lit-
toral; and that the action of Persia was likely to give rise to events which would
necessitate interference on the part of the British Government.”278
274 Muhhamad Morsy Abdullah, The United Arab Emirates: A Modern History (London:
Croom Helm, 1978), 242. See also, Toye, Lower Gulf Islands, Vol. 2, 78–81, containing ex-
changes between Sir H. Drummond Wolff and the Marquis of Salisbury in August 1888 in
relation to the Perso-Afghan frontier dispute; ibid., Vol. 2, 116–117, containing a letter from
Sir Drummond Wolff to the Persian Minister of Foreign Affairs, dated July 27, 1888 high-
lighting that the map was being offered to Persia as “His Majesty has on several occasions
asked to be supplied with geographical information.”
276 Ibid., Vol. 2, 27.
277 Ibid., Vol. 2, 28–29.
278 Ibid., Vol. 2, 67.
Thus, the conduct and views of the British government directly contradict-
ed, and actively so, the erroneous depiction of the islands, including Greater
Tunb, Abu Musa and Sirri, as Persian territory on the map. A subsequent report
prepared by the India Office noted that the “error” of the presentation of the
map was “extremely regrettable” and that it could not be taken “as a formal
declaration by His Majesty’s Government of their view of the status of the is-
lands.”279 A later British report also expressed a similar conclusion:
There are other maps which do not show the islands in Persian colours
and the fact is that the 1888 map was prepared in 1886 before Persia had
laid claim to islands in the Gulf and before significance attached to these
tiny islands. The fact that the map was handed over at a time when the Brit-
ish Government were strongly asserting the title of the Arab Rulers to the
islands shows that the colouring of the islands on the map was simply an
unfortunate mistake. The map was designed to show a much more gener-
al area and was not directed to the specific question of the islands. It was
not produced in or by the Foreign Office or the Government of India.280
It is also relevant to note that the contradiction between the War Office map
and Britain’s conduct and position regarding ownership of the islands was
clear to the Persian government, which specifically pointed this out “with as-
tonishment” during a discussion between British officials and the Shah at the
end of August 1888. During that discussion the British had asked for proof of
the Persian claim to Sirri and suggested that a commission composed of the
British Resident and the Governor of Bushire settle the dispute. In reply, the
Shah had complained that for the British to deny Persia’s rights over that is-
land contradicted the British War Office map: “what better proof do I want
than the Maps you lately sent me. In those Maps these islands are coloured
279 Ibid., Vol. 4, 129, containing “Status of the Islands of Tamb, Little Tamb, Abu Musa, and
Sirri,” confidential India Office Memorandum, dated August 24, 1928.
280 See FO 1016/913, 509, containing document entitled “Commentary on Arguments used to
Support Iranian Claims to the Gulf Islands of Abu Musa (Sharjah) and the Tunbs (Ras al
Khaimah)”, attached to “Background Paper No. 3. The Gulf Islands Claimed by Iran” from
the Guidance and Information Policy Department of the Foreign and Commonwealth
Office, dated August 4, 1971 (emphasis added). See further, Toye, Lower Gulf Islands, Vol. 6,
300–306, containing Memorandum by Mr. Lascelle entitled “Persian Claim to Tamb and
Abu Musa”, dated September 4, 1934 in which he indicated: “Point (1) [regarding the War
Office map presented to the Shah in 1888] is unfortunate, but its importance as an argu-
ment is largely counteracted by the fact that both before and after the date on which the map
was presented the Persian claim was emphatically and officially repudiated by His Majesty’s
Government.” (emphasis added).
856 Chapter 10
with the Persian colour.”281 Elsewhere, in a note dated 14 August 1888, which
was signed by the Shah, regarding the islands of “Sirri and Tumb”, the Shah
again complained that “[i]t is very strange that the English Legation should
make out an island, which has been for years in the possession of the Persian
Government, to belong to the Beni Jevassem [Qawásim]” and that in “the very
Map which the English Minister lately sent us both islands have been painted
with the Persian colour, and have been included in Persian territory.”282 The
memorandum added that “[i]t is very strange and wonderful that these islands
are drawn and written in the Map as included within Persian territory, and it
is the case, but still they [i.e., the British] put forward claims in favour of those
islands belonging to the Beni Jevasem. It is so astounding that the intensity of
the astonishment prevents the hearing of such a thing.”283 Thus, the Persian
government was fully aware of Britain’s position on ownership of the islands
and that this contradicted the depiction, in error, of the islands as Persian ter-
ritory on the 1886 War Office map.
Figure 10.45 Close-up image of “Map of Persia, Compiled from the Map of Persia, in 6 Sheets,
by the Intelligence Branch, War Office. [Accompanying Aitchison’s “Treaties, etc.
relating to India.” Third edition], 1893”

282 Ibid., Vol. 2, 79.
283 Ibid., Vol. 2, 79–80 (emphasis added).
There is an additional map which also underpins the lack of significance for the
sovereignty dispute over the three Gulf islands of both the 1886 War Office map
and the 1892 Curzon map. This is a Map of Persia which the authors encountered
during the cartographical research carried out at the British Library and which
is published in the third edition of Maps accompanying Aitchison’s Treaties,
1893 (Figure 10.45). The information contained in this map indicates that it was
“[c]ompiled from the Map of Persia in 6 sheets by the Intelligence Branch, War
Office, 1886” and that “[t]he boundary has been taken from the map of Persia
compiled under the supervision of Hon. G.C. Curzon, M.P., and published for
the Proceedings of the Royal Geographical Society in 1892.”284 The informa-
tion on the map further indicates that it is “published under the direction of
Colonel H.R. Thuiller, R.E., Surveyor General of India. May 1893.”285 As can be
observed from Figure 10.45, this map of Persia depicting the borders of that
country and its islands does not even show the three disputed Gulf islands, or
Sirri, in the map of what is supposed to be Persian territory.
Contradiction and Inconsistency

To summarize our conclusions, it is clear from the survey of the maps cited by
Iran and its supporters undertaken in this chapter that (i) none of such maps
has “intrinsic legal force” or may be described as reflecting the expression of
the will of the State or States concerned, with the consequence that the pro-
bative value of the maps is only as confirmatory or corroborative evidence of
conclusions reached on the basis of other legally relevant facts;286 (ii) none
of the maps which associate one or more of the islands with Persia by color-
ing them in the same color as the Persian mainland or coast constitute “cor-
roborative evidence endorsing a conclusion” which is derived “by other means
unconnected with the maps”287 for the reason that the conclusions derived
from such “other means”, that is the available documentary evidence in the dis-
pute, point to sovereignty of the islands belonging to the uae and not Iran, and
it is to that documentary evidence which such contradictory map evidence
284 Sir C. U Aitchison, Maps accompanying Aitchison’s, “Treaties, etc. relating to India.” 3rd ed.
(Calcutta: 1891–1893), Map of Persia [Scale, 1 inch = 80 miles.] Compiled from the Map of
Persia, in 6 Sheets, by the Intelligence Branch, War Office.
285 Ibid.
286 Sovereignty over Certain Frontier Land, paras. 214–216. See also, Island of Palmas case, 852–
853 and Rann of Kutch arbitration, holding that in determining sovereignty over territory
“the evidentiary value of maps was lessened as far as the relevant boundaries were con-
cerned, and they were made to yield to evidence of superior weight, particularly evidence
of exercise of jurisdiction.” Ibid., 566–567.
287 Frontier Dispute (Burkina Faso/Mali), para. 56. See also, Rann of Kutch case, 566–567.
858 Chapter 10
must yield;288 and (iii) none of the maps serve as a basis for concluding that
the uae, or either of its relevant predecessor Sheikhdoms (Sharjah and Ras Al
Khaimah), has acquiesced to Iran’s ownership of any of the islands, principally
because their conduct – in consistently reaffirming their own ownership of
those islands – never evinced an acceptance of any contrary position, and for
the additional reason that there is no evidence that they were even aware of
such cartographical materials.
There is yet one additional reason for discounting the evidentiary value of
the referenced maps: their overall inconsistency. Of the numerous maps relied
on by Iran and Iranian scholars as purportedly affirming Iranian sovereignty
over all three islands of Abu Musa, Greater and Lesser Tunbs that we were able
to locate,289 a majority of them do not in fact reflect the characteristics attrib-
uted to them, either because (i) they are in black and white and do not there-
fore indicate through color any association between the islands and Persia; or
(ii) even if mainland Persia is marked in color, the islands themselves are not
colored; or (iii) one or all of the islands are in fact colored in the color of the
Trucial States or the “Independent Arab States” which existed on the north-
ern littoral of the Gulf during the eighteenth and nineteenth centuries. In still
other cases, one of the islands might be colored in the color of the Persian
littoral while another island is colored in the color of the Arabian littoral or
not colored at all, thus giving a mixed indication of ownership. Finally, there
are the anomalous maps, such as the 1968 map produced in the Soviet Union,
the interpretation of which is difficult to decipher, or the maps whose color-
ing is simply unclear. Added to these inconsistencies are other cartographical
and historical considerations. These include the doubts as to whether maps
associating Gulf islands with Persia which were produced in the periods of
the eighteenth or nineteenth century when Persia did not exercise effective
control over its Gulf littoral or Gulf waters may be relied upon as evidence
of Persian possession or ownership of these islands. A further consideration
involves the instances in which there are different versions of the same map
published in different years, with one version coloring the islands as pertaining
to Persia and another version coloring them as pertaining to the Arab coast or
288 The rejection of such map evidence also follows the pronouncement of Judge Huber in
the Island of Palmas case, where he stated that “[i]f the Arbitrator is satisfied as to the ex-
istence of legally relevant facts which contradict the statements of cartographers whose
sources of information are not known, he can attach no weight to the maps, however
numerous and generally appreciated they may be.” Island of Palmas case, 852–853.
289 Out of approximately forty-seven maps relied on by Iranian scholars (including those
only addressing the Tunbs islands like the ones relied on by Mirfendereski), our searches
allowed us to locate approximately thirty-four.
to neither side. In this respect, it is relevant to recall the remarks of the arbitral
tribunal in the Eritrea/Yemen case that conclusions based on old maps (in that
case, pre-1872 maps) can be “tenuous at best”, in part because “it is not possible
to evaluate the colour of maps produced during periods when hand-colouring
had to be applied to maps at a second stage.”290
In light of the inconsistent and contradictory picture derived from this map
evidence, and quite apart from the conclusions set out at the beginning of this
section, arguing that this evidence is sufficiently probative to support the ter-
ritorial claims of Iran or that any conclusions as to the territorial sovereign of
the disputed islands may be based on that evidence could not withstand seri-
ous scrutiny. This conclusion finds support in various pronouncements made
in relation to the presentation of contradictory or inconsistent map evidence
by both the icj and prominent arbitral tribunals,291 and indeed would seem
to be demanded by application of the international law standards developed
by the icj and international tribunals in relation to map evidence, which have
290 Eritrea/Yemen case, para. 370.

291 For example, in the Minquiers and Ecrehos case, contradictory maps were presented by
France and Britain, each purporting to show the disputed islands as part of their respec-
tive national territories. In his separate opinion, Judge Carneiro stated that while a spe-
cialized study would be required to determine which of the “contending views” should
prevail, this was unnecessary as “maps do not constitute a sufficiently important contri-
bution to enable a decision to be based on them. I shall not take the evidence of maps
into consideration.” Minquiers and Ecrehos (France/United Kingdom), Separate Opinion
of Judge Levi Carneiro, icj Reports 1953, 85, para. 20. In the Rann of Kutch arbitration, the
tribunal rejected considerable map evidence, holding that “[b]ecause of demonstrable
inaccuracy, vagueness and inconsistencies, they are generally such as not to be accorded
great weight.” (Rann of Kutch arbitration, 569–572). In the Kasikili/Sedudu island case,
faced with inconsistent maps, and in “view of the absence of any map officially reflecting
the intentions of the parties”, a Chamber of the icj held that “in light of the uncertainty
and inconsistency of the cartographic material submitted to it, the Court considers it-
self unable to draw conclusions from the map evidence produced in this case.” Kasikili/
Sedudu Island (Botswana/Namibia), icj Reports 1999, 1045, para. 104. And in the Case Con-
cerning Territorial and Maritime Dispute Between Nicaragua and Honduras in the Carib-
bean Sea (Nicaragua v. Honduras), the icj noted in relation to inconsistent cartographic
materials submitted by the parties for “the purpose of buttressing their respective claims
and confirming their arguments”, that “[n]one of the maps submitted by the Parties was
part of a legal instrument in force” and that, in light of “the limited scope of maps as a
source of sovereign title”, it could “derive “little of legal significance from the official maps
submitted and the maps of geographical institutions cited”. Territorial and Maritime Dis-
pute Between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), icj
Reports 2007, 659, para. 217–219.
860 Chapter 10
consistently treated such evidence with caution, highlighting that “special vigi-
lance” is required in evaluating maps and that evidence derived from maps
should be “handled with great delicacy”, especially when the maps are not at-
tached to any instrument such as a treaty or where there are many contradic-
tory maps.292 Neither could it be concluded, due to such inconsistencies, that
the map evidence put forward would constitute “evidence of general opinion
or repute” that Persia exercised sovereignty over the islands.293 Thus, although
international case law has remarked that maps produced by third parties can
at times constitute such evidence, there is so much contradiction and incon-
sistency in the numerous maps issued by third parties analyzed in this chapter
that no discernible trend, whether favouring the Iranian or Arab claim, emerg-
es. These inconsistencies and contradictions would almost certainly be further
evident if a rigorous search were carried out to locate cartographical materials
which specifically supported the Qawásim/uae claim.294
292 See Frontier Dispute (Burkina Faso/Mali), para. 58; Eritrea/ Yemen case, para. 388.
293 Eritrea/ Yemen case, para. 381.
294 As indicated at the beginning of this chapter, such a rigorous research was not under-
taken by the authors as it was beyond the aim of the chapter, which was to test on its face
the accuracy of the map evidence relied upon by Iran and its supporters.
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Index
Page numbers in italics refer to illustrations.
à titre de souverain 164, 175, 357–359, 387, occupying half of 126, 140

410, 414–416, 442 ownership of
abandonment, of territory 158–159, 226–227 absence of protests against
Abdulhamid ii, Sultan of Ottoman Qawásim claims 515–516
Empire 63, 119 claims on 369–370, 479–481,
Abdullah, Morsy 409n131, 433n228 527–529
Abu Musa evidence for 90–91
burglaries on 101, 404, 418 Persia/Iran’s views on 194
crime on 404 strategic interest in 128–130
descriptions of 11–13, 322 threats of seizing 685–690
division of 711–712, 715–717 and Qawásim sheikhs (Lengeh
and Dubai, Rulers of 400, 401–402, 405, branch) 401
420, 428 and Qawásim sheikhs (Sharjah branch)
exercise of jurisdiction over 418 flag planting on 119, 120–123, 491–493
flag planting on mining concessions granted by
Arab (Qawásim) 119, 120–123, 1934/5 536–539
491–493, 504 uk’s views on ownership of 121–122
Persian 52, 63–64, 115–116, 490, and Qawásim sheikhs (Sharjah/Ras
494–496 Al Khaimah branch)
and Germany 513–514 flag planting on 504
and Hennell Line 406–408, 813–814 mining concessions granted by
historical uses of 5 in general 12
identification of 83 1898 13–15, 64–65, 422
infrastructure on 403, 418–419 1922 525–527
maps of. See maps trade in 504–506
mining concessions on ownership of
in general 12 in general 408–410
1898 13–15, 64–65, 422 and à titre de souverain 414–416
1922 525–527 claims on 481–482
1934/5 536–539 conclusion 425
trade in 504–507 and control of access to 419
Wönckhaus Affair 14, 64, 506–507, division between Sharjah and Ras
510–518 Al Khaimah 422–424
Nestorian monastery on 77 through effective
oil concessions off occupation 410–422
in general 15, 694 evidence for 399–404
dispute over 581–582, 605, 647–648, and exercise of jurisdiction 101,
717–719 404, 418
joint exploitation of 598–599, 719–723 The Persian Gulf Pilot on 56, 401,
and Persia/Iran 403, 408
administrative offices on 546–547 and private acts 414–417
conduct on 614–620, 731–732 recognition of 513–514
flag planting on 52, 63–64, 115–116, and sovereign acts 414–422,
490, 494–496 504–508, 516–517
Index 879
uk’s views on 121–122 Alboquerque, Alfonso d’ 17, 25–26,

See also Memorandum of 272–273, 281, 288–290, 294,
Understanding 296, 297
Salim bin Sultan living on 404–405 Alboquerque, Pero d’ 281
as seasonal base 11–12, 121, 353 Alexander the Great 74–75, 257, 258
strategic importance of 5–6 Ali Shah, Mullah 34–35
territorial sea around 717–719 Amerasinghe, Chittharanjan Felix 221, 223
and uk 513–514 Amin-es-Sultan 474, 478n56
value of 18 ancient title. See historic title
visits to/sightings of Antarctic treaty 709–710
by Iranian navy 547–548 Anvile, Monsieur d’ 797, 799–802,
by Iranian president 618, 623 800, 801
of Persian customs launch 527–528 Arab Summit Conference 620
See also Gulf islands (in general); Arabian Gulf. See Gulf
Memorandum of Understanding Aram, Abbas 129
accretion, of territory 153 Arrian 74–75, 237, 252–253
Achaemenid Empire 249–252, 257, 258 Arrowsmith, John 804–805, 807, 808, 811,
acquiescence 812, 813, 813, 824
and title to territory 179–182 Atlante Internazionale (Touring Club
acquisition Italiano) 846, 847
of territory Atlas International Larousse 846
in general 150–151 Aust, Anthony 638, 657–658, 661, 666–667,
by accretion 153 727, 743
and acquisitive prescription authority
161–164 of Qawásim sheikhs (Lengeh branch)
by cession 153–154 as deputy governors 362, 385–386
and contiguity 171 in Gulf 27–28, 35
and effectiveness 172–177 of Qawásim sheikhs (Sharjah
by occupation. See occupation branch) 645–648
by subjugation/conquest 159–161, al-Baharna, Husain M. 645
625–628
acquisitive prescription Bahrain
definitions of 161–163, 733 and Hormuz, Kingdom of 279–280,
elements of 163–166 281
example cases for 165 Persia/Iran’s claim to 65, 105, 549–551,
in Gulf Islands dispute 200, 469, 491 560–561
and historical consolidation and uk 650, 654–655
of title 167 Bandar Abbas
and mou 732–734 leasing of 22
two types of 163 Mullah Ali Shah, seizing of 34
administration, and effective Oman presence at
occupation 156 in general 19
Aegean Sea Continental Shelf (Greece v. expulsion from 44–45
Turkey) case 661–662 lease agreement with Persia/
Afshar, Amir Khosro 572, 575, 588 Iran 45–47
See also Luce/Afshar proposals Bandar-e Lengeh
agreements. See treaties and Persia/Iran
Ahmadi, Kourosh 199 seizing control of 41–42, 52–53, 102,
Ajman sheikhs 718–719 469–471
Akweenda, Sakeus 762–763 sovereignty over 38–39, 42
880 Index
Bandar-e Lengeh (cont.) Carneiro, Levi 768–769

Qawásim (Lengeh branch) at Carré, Abbé 21–22, 33, 79–80, 321
in general 19, 27, 32–35 Carte du Golphe Persique 797, 798–799
contractual basis for 43–44, 48, Case Concerning Rights of Nationals
333–336, 341, 359–360, 383–385 of the United States of America in
independence of 39–41, 48 Morocco 648–649
livelihood of 28–29, 36–37 causality, between coercive act and
motivations for 36–38 treaty 691–700
Bani Ma’in 44–45 cession, of territory 153–154
Barbosa, Duarte 17, 79, 85, 274–276, Chamizal case 165
281, 282 Chart of the Coast of Persia
Bastaki, Sheikh Mohammad Khan 332–333, (Vingboons) 789, 792, 793
341, 383 Chart of the Gulf of Persia (Brucks) 807,
Bavand, Davoud H. 266, 334, 349, 499, 803, 810, 811
807, 809–810, 815 Chart of the Persian Gulf (Karlsrühe
Beeman, William 38 chart) 788, 790–791
Belgian customs agents 63–64, 115–116 Charte von Persien (Prag, 1811) 828
Belgium 769–771 Charte von Persien (Weimar, 1804) 827
Blum, Yehuda Zvi 182–183 Chronicles of the Kings of Hormuz 86
Boink, G.G.J. 8n13 clean slate rule 669–670
Book of Duarte Barbosa 79, 85, 274–276, 282 Clipperton Island case. See Sovereignty over
Borneo 215, 784–786 Clipperton Island case
Botswana 783–784 Cochrane-Baillie, Charles, 2nd Baron
Boudaen, Elias 320 Lamington 105–106
Britain and the Persian Gulf. 1795–1880 coercion
(Kelly) 814 and mou
British East India Company and causal link between threats
maps compiled by 807, 809–810, 810, 811 and 691–700
See also United Kingdom validity/invalidity of 138–139,
British War Office map (1886) 108, 112, 144–145, 603, 606, 636, 678–679,
486–487, 488, 821, 822, 849–851, 685–700
852, 854 and treaties
Brownlie, Ian 763 in general 680–684
Brownlie’s Principles of Public International curing of 680, 702–704
Law 357 invalidity of 684–685
Brucks, George B. 427, 809 Colombia 703
burden of proof, in international colour coding (on maps) 795, 801, 803, 807,
litigation 221 813, 818–819, 824–825, 829–830, 833,
burglaries 101, 404, 418 836, 839–840, 844, 846, 849, 852, 854
Burkina Faso 780–781 Commentaries of Ruy Freyre de Andrada 301
Burnes, Alexander 811, 812, 813, 813 Commentaries of the Great Alfonso
Buttes Gas and Oil Co. v. Hammer case D’Alboquerque 272–273, 290, 294,
647, 654 296, 297
Buttes Gas and Oil Company 15, 581, competing claims 452–453
598–599, 605, 647–648, 694, 718, Comprehensive Atlas & Geography of the
720–723 World (Blackie) 818
condomini 734–736
Cambodia 771–774 Conforti, Benedetto 749–750, 752
Canton and Enderbury Islands 709n515 conquest, of territory 159–161, 625–628
Index 881
Constable, C.G 815, 816 of Greater Tunb

contiguity 170–172, 306–307, 345–351, in general 7–11
457–458 by Brucks, Captain 427
continuity in captain’s journals 8
and effective occupation 171–172 of Nearchus 251–253
and historic title 200, 203–211, 232–234, by Seton, David 97, 425–426, 427, 432
256–260, 263–264, 267, 285 by Whitelock, Lieutenant 97, 426
and sovereignty 422 of Lesser Tunb
Corfu Channel (United Kingdom of Great in general 6–7, 455
Britain and Northern Ireland v. Albania) by Seton, David 425–426
case 223, 239, 355, 751 discovery, and effective occupation 156–157
Cosmopolitan World Atlas, Centennial Edition Distefano, Giovanni 682n427, 683n432,
(Rand McNally) 846 686–687, 701–702
counter-inferences 246–249 Dörr, Oliver 684
Crawford, James 285, 357, 642 Douglas-Home, Alec 136
critical dates Draft Articles on the Law of Treaties 639
in general 182–183, 373 Dubai, Rulers of 400, 401–402, 405, 420, 428
determining of 183–185, 463–465 Dubai/Sharjah Border Arbitration (Dubai/
in Gulf Islands dispute Sharjah) case 397–398, 419,
1887/8 448–449, 646
in general 53, 114, 469–471, Dutch East India Company (voc)
471–479 captain’s journals from 8, 80
for Abu Musa 479–482 in Gulf 26, 80
for Greater Tunb 489–490 identification of islands by 83–84
for Lesser Tunb 489–490 maps compiled by 84, 792, 794, 795
1903/4 469–471, 480, 502–509 and Persia/Iran 325–332
emergence of 93–94 reports of
and termination of mou 747 in general 71–72
importance of 94–95 on Greater and Lesser Tunb 17
Curzon, George Nathaniel 21, 42–43, Dutch Republic. See Dutch East India
76, 646 Company (VOC)
Dambrain, Monsieur 115, 495 Eastern Greenland case. See Legal Status of

Darius i 75 Eastern Greenland (Denmark/Norway)
De Visccher, Charles 167–168 case
Declaration on Principles of International effectiveness
Law concerning Friendly Relations and of occupation
Co-operation among States (1970) 626 in general 156–157, 172–176, 208,
declarations 209–211, 318–319, 338–340, 395–396,
conditional interpretative 727–728 410, 419
interpretative 726–727 and contiguity 171–172
Delimitation of the Maritime Boundary in the and intertemporal law 226–227
Gulf of Maine Area (Canada/United States and regional conditions 396–398
of America) 180 subsequent conduct of other
Della Valle, Pietro 314 States 177–178
Denmark 172, 203–206, 225, 228, 233, 310 of terrae nullius 336–338
deputy governors 362, 385–386 and title to territory 176–177
descriptions effectivités 173–178, 443, 553
of Abu Musa 11–13, 322 El Salvador 458–459
882 Index
Elphinston, Mountstuart 313 Exclusive Agreements (1892) 50, 62, 104, 114,

Ely, Northcutt 127, 138–139, 592–593, 596, 126, 602, 641–656
716, 721–722 extent
Emirate of Sharjah. See Sharjah, of Hormuz, Kingdom of 270–274,
Shaikhdom of 279–280
Encyclopaedia Iranica 288 of Sharjah, Shaikhdom of 643–644
Eritrea 783
Eritrea/Ethiopia Boundary farming. See tax farming
Commission 175–176 Fars Province 332–333, 336–337,
Eritrea/Yemen arbitration 218–220, 340–343
259–260, 308, 410, 458, 780–781 financial assistance agreement
Erythraean Sea 250–251 (in mou) 724–725
estoppel, and title to territory 179, 181–182 Fisheries case (uk v. Norway) 167–168,
European Union (eu) 629 181n156
evidence Fisheries Jurisdiction (uk v. Iceland)
archaeological 240, 241–243 case 681–682
and burden of proof 221–222 Fitzmaurice, Gerald 94, 95, 183–184,
evaluation of 222 205–206, 217, 222–223, 228, 232, 233,
inferential 256n197, 262, 263, 264, 339, 346–347,
in general 212–221 353, 358, 373, 379, 384–385, 387n59, 412,
admissibility of 221–223 414, 415, 418, 451n280, 452–454, 457,
of ownership of islands 458, 463–464, 465, 468, 483, 502, 503,
direct 71 649–650
by Hormuz, Kingdom of 85–86, flag incident (1903/4) 63–64, 115–123,
274–283 490–509
maps as. See maps flags
by Persia/Iran planting of
in general 229–232 on Abu Musa
through acts of Qawásim Arab (Qawásim) 119, 120–123,
362–364, 380–389, 394–395 491–493, 504
and continuity, lack of 256–260, Persian 52, 63–64, 115–116, 490,
263–264 494–496
and counter-inferences 246–249 on Greater Tunb
and Gulf as Persian lake 245–246 Arab (Qawásim) 119, 120–123,
inferential 88–92, 197, 238–254, 491–493, 504, 520–521
260–261 Persian 52, 63–64, 115–116, 125,
lack of 234–238, 254–256, 473, 490, 494–496, 520
257–258, 374–376, 380 on Lesser Tunb
and letters of Yusuf bin Persian 520, 547
Muhammad 57, 377–379 on Sirri
as part of Fars Province 340–343 Persian 102, 367–369, 409, 472, 473
and sovereign acts 262, 263–264 withdrawal of
and xivth Satrapy 249–254 from Greater Tunb
by Qawásim Arab (Qawásim) 539–542
in general 399–406 Floor, Willem 34–35, 37, 288, 292, 297, 301,
before establishment at 325–326, 334, 359n130, 360, 363n140,
Lengeh 353–355 383, 386
inferential 92–93 foi request 570–571
and tax collection 54, 57, 112 xivth Satrapy 237, 249–254
Index 883
France historical uses of 5

and Mexico and Hormuz, Kingdom
Clipperton Island case 157–158, ownership of
208–209, 227, 453–454, 503 in general 70, 198
and Thailand Barbosa’s views on 17, 79, 85
Temple of Preah Vihear case 771–774 evidence for 274–283
and uk identification of 83–84
Minquiers and Ecrehos case 169n96, maps of. See maps
184n173, 212–214, 254, 450n279 and Persia/Iran
freedom of information (foi) administrative offices on 546–547
request 570–571 claims on 52–53
Frontier Dispute (Burkina Faso/Mali) detention of Dubai dhow 528–529
case 152, 176–177, 188, 190, 764, 780–781 ownership of
full jurisdiction absence of protests against
definitions of 712–714 Qawásim claims 484–485
in mou 712, 715–717, 727, 742 and British War Office map
486–487, 488
Gazetteer of the Persian Gulf, Oman and claims on 52–54, 56, 369–370,
Central Arabia (Lorimer) 7, 10, 12–13 482–484, 533–536
General Assembly Resolution No. 3314 evidence for 91, 388, 484–487
(1974) 626 and letters of Yusuf bin
General Atlas of the World Muhammad 378–380
(A. & C. Black) 839 Persia/Iran’s views on 195–196
General Treaty of Peace (1820) 30, 32, Qawásim’s views on 444
391–392, 413 and uk’s acquiescence 487–489
General Treaty with the Arab Tribes of the and uk’s documentation
Persian Gulf (1820) 32 485–486
geographical doctrines 170–172, 305–306, seizure of
345–351, 457–458 in general 58, 126, 140–141, 601
Germany legal analysis of 625–628
and Abu Musa 513–514 no acquiescence of 631–633
and uk 64–65, 506–507, 510–518 no recognition of 628–629
Grant, Tom 640 strategic interest in 128–130
Great Britain. See United Kingdom violations of uae’s sovereignty
Greater Tunb over 613–614
descriptions of visits of authorities to 533–536
in general 7–11 and Qawásim (in general)
by Brucks, Captain 427 ownership of
in captain’s journals 8 in general 54
of Nearchus 251–253 evidence for 425–438
by Seton, David 97, 425–426, 427, 432 Kniphausen’s view on 323
by Whitelock, Lieutenant 97, 426 Niebuhr’s view 323–324
flag planting on in The Persian Gulf Pilot 429
Arab (Qawásim) 119, 120–123, voc’s views on 17
491–493, 504, 520–521 and Qawásim sheikhs (Lengeh branch)
Persian 52, 63–64, 115–116, 125, 473, ownership of
490, 494–496, 520 contested by Ras Al Khaimah
flag withdrawal from branch 430–431, 433–438, 444
Arab (Qawásim) 539–542 and effective occupation 448–449
884 Index
Greater Tunb (cont.) during reign of Darius i 75

evidence for 445–448 from 16th to 19th century 81–82
native agent’s views on 434–437, Hormuz, Kingdom of in 269–270, 293
443, 445, 446–448 maps of. See maps (of Gulf)
partial 449–451 migration culture around 313–314
Persia/Iran’s views on 444 Persia/Iran in
uk’s views on 443–444 in general 75–77, 128
and Qawásim sheikhs (Ras Al Khaimah destabilizing power of 131–132
branch) supremacy of 195–196, 199,
ownership of 245–246
in general 9–10 unimportance of 113, 258–259
and competing claims 452–453 Portugal in
conclusion 451–454 in general 25–26, 81
contested by Lengeh branch arrival of 198, 258
430–431, 432–438, 444 first explorations 281
and effective occupation 442–443 power dynamics in 59–63, 81–82,
and exclusion other States 454 127–128, 248, 257, 471–472
and sovereign acts 438–442, 454 Qawásim in 27–28, 35
and Qawásim sheikhs (Sharjah/Ras Al See also Bandar-e Lengeh
Khaimah branch) Russia in 62–63, 105, 128
ownership of uk in
and lighthouse in general 26, 102
construction 521–525 concern over position in 105–107
uk’s views on 522 Persia/Iran’s effort to oust 59–63
as seasonal base 2, 7, 10, 353 strategic interest in 104
strategic importance of 5–6 withdrawal from 126, 130–134,
as terra nullius 277–278, 439–440 556–565
and uk 521–525 Gulf Arab rulers
as unit with Lesser Tunb 455–457, and Persia/Iran
460–461 treaties between 59–60, 472
value of 18 and uk
visits to/sightings of treaties between
in general 8–9, 80, 319–322, 426 in general 104–105
of Iranian authorities 533–536 Exclusive Agreements 62, 104, 114,
of hms Nearchus 544–545, 547 126, 602, 641
of Palang 533–534, 537 Treaty of Peace (1853) 98–99, 400,
See also Gulf islands (in general); 409, 413, 428, 432, 435
Lesser Tunb Gulf Cooperation Council (gcc) 143,
Greenland 172, 203–206, 225, 228, 233, 309 620, 628
See also Legal Status of Eastern Gulf Islands dispute
Greenland (Denmark/Norway) case acquisitive prescription in 200, 469, 491
Gulf critical dates in. See critical dates
Dutch East India Company (voc) in 26, differences between islands in 1–2
80 historical circumstances 15–17
history of history of
in antiquity pre-1887 96–101
in general 72–78, 240–242 1904 115–123
and expedition of between 1904–1971
Alexander 74–75 before 1945 510–545
Index 885
before 1971 123–126 as archipelagic entity 315, 333

after 1945 545–552 history of
1971 126–144 from 16th to 19th century 78–84
after 1971 142–149 from 18th and 19th century 96
before icj 67–68 in antiquity 77–78
before League of Nations 65–67 and Hormuz, Kingdom of. See Hormuz,
legal questions about 15–17 Kingdom of
maps in. See maps identification by voc 83–84
outside powers involvement in 2–3 maps of. See maps
protests in. See protests mining concessions. See mining
and sources on history of Gulf/Gulf concessions
islands naming of 8, 788–789, 792, 797
usefulness of 77–78, 84–85 oil concessions off. See oil concessions
and uk, resolutions proposed by ownership of. See ownership
in general 559–560 and Persia/Iran. See Persia/Iran
Luce/Afshar proposals 135–138, 563, and Portugal. See Portugal
567–570, 575–597, 600–601, 696, 700 and Qawásim. See Qawásim
median line proposal 134, 549, 559, and Qawásim sheikhs. See Qawásim
569, 570, 572, 582, 600 sheikhs
See also Memorandum as terrae nullius 154, 200, 263, 283–284,
of Understanding 316–318, 336, 374
and un and uk. See United Kingdom
in general 753 use of 87
mou, non-registering views on
of 664–665n365 of Teixiera, Pedro 278
and Qawásim sheikhs (Ras Al Khaimah of uk 92–93
branch) 140–141 in writings of travelers 82–83
before unsc visits to/sightings of 8–9, 80, 319–323
as agenda item 143, 607–608, 755–756 See also Abu Musa; Greater Tunb;
Arab States, protests lodged by Kishm; Qeshm; Sir Abu Nu’ayr; Sirri
141–142, 602–603 al-Gurg, Easa Saleh 35–36n51
Iraq’s views on 603
Kuwait’s views on 603 Haan, Gerrit de 84, 794
no action taken 67, 143, 604–605, Hall, Sidney 829–830, 831
753–754 Hall, William Edward 286, 357–358
Persia/Iran’s views on 191–193, Hardinge, Arthur 118–119, 495–498
603–604 Hawley, Donald 27
Somalia’s views on 754–755 Hay, Rupert 645–646
uae’s possibilities 758 Heathcote, Sarah 702
uae’s views on 142, 604, 755 Hennell, Samuel 406, 813–814
uk’s views on 142–143 Hennell Line 406–408, 813–814
Yemen’s views on 603 Herodotus 237, 249–253
views on Higgins QC, Dame Rosalyn 187–188
of eu 629 historic title
of gcc 628 and continuity 200, 203–211,
of League of Arab Nations 628 232–234, 256–260, 263–264,
See also under specific islands; 267, 285
under specific participants and inferential evidence 212–221
Gulf islands (in general) loss of
886 Index
historic title (cont.) and Gulf islands (in general)

in general 224–228 ownership of
consequences of 228–229 in general 266–267, 268–269
of Persia/Iran to islands 229–260 evidence for 274–283
in general 191–203 and geographical doctrines
challenges in establishing of 199–203 305–306, 310–312, 314–315
continuity in 232–234, 267, 285 independence of 269–271
evidence for and Persia/Iran
in general 229–232 aborted takeover by, of 290, 291
and continuity 256–260, 263–264 conquest by, of 302–305
and counter-inferences 246–249 vassal to
and Gulf as Persian lake 245–246 in general 25–26, 197–198,
inferential 88–91, 197, 238–254, 267–268
260–261 evidence for 287–293
lack of 234–238, 254–256, 257–258 and Portugal
and sovereign acts 262, 263–264 conquest by, of
and xivth Satrapy 249–254 in general 25, 86, 267, 278–279,
and sovereign acts 223–224 283–285, 293–295
historical consolidation, of title 166–169 status of Hormuz territory
history after 295–297
of Gulf Persia/Iran’s cession to, of 297–298
in antiquity 72–78, 240–242 treaties between 278–279, 293–294,
from 16th to 19th century 81–82 295, 296
of Gulf Islands dispute vassal of 295, 296
pre-1887 96–101 views on
1904 115–123 of Barbosa, Duarte 274–276
between 1904–1971 in Commentaries of the Great Alfonso
before 1945 510–545 D’Alboquerque 272–273
before 1971 123–126 of Ibn Batuta 272
after 1945 545–552 of Teixiera, Pedro 271–272
1971 126–144 Huber, Max 95, 157, 174, 180, 186–187,
after 1971 142–149 209, 220–221, 222, 225, 226–227, 232,
of Gulf islands (in general) 244–245, 264, 275, 299, 306–309, 318,
in antiquity 77–78 337–339, 344, 346–347, 387, 395–396,
from 16th to 19th century 78–84 412, 419, 421, 422, 454, 457–458, 461,
from 18th and 19th century 96 464, 523, 622, 644–645, 767–768
sources on. See sources Hulst, Jan van der 22, 87
Hoare, Samuel 66
Honduras 458–459, 787 Ibn Batuta 272
Hormuz, Kingdom of identification, of Gulf islands 83–84
and Bahrain 279–280, 281 illegality, of conquest of territory 625–628
extent of 270–274, 279–280 India 774–780
and Greater Tunb Indonesia 784–787
ownership of infrastructure, on Abu Musa 403, 418–419
in general 70, 79, 198 Institut Géographique National
Barbosa’s views on 17, 79, 85 (ign) 780–781
evidence for 85–86, 274–283 International Court of Justice (icj) 67–68
in Gulf 269–270, 293 See also under specific cases
Index 887
interpretative declaration 726–727 Land, Marine and Frontier (El Salvador/

intertemporal law 95–96, 186–188, Honduras: Nicaragua intervening)
226–227 case 458–459, 460–461
Iran. See Persia/Iran Land and Maritime Boundary between
Iraq 603 Cameroon and Nigeria (Cameroon v.
Island of Palmas case 95, 153, 157, 165, 171, Nigeria: Equatorial Guinea intervening)
174, 180, 186–187, 209–210, 220–221, case 168–169, 649
222, 225, 226–227, 232, 244–245, 264, Landsdowne, Henry Petty-Fitzmaurice 6th
275, 299, 306–309, 318, 337–339, 344, Marquess of 106–107
346–347, 387, 395–396, 419, 421, 422, language, of mou 662–663
454, 457–458, 464, 523, 622, 644–645, Lauterpacht, H. 655–656, 695
767–768 League of Arab States 620–621, 628
islands League of Nations 65–67
unity in group of 307–308 lease agreements
See also Gulf islands; under specific Bani Ma’in-Persia 44–45
islands Oman-Persia 45–47
Qawásim-Persia 43–44, 48, 333–336, 341,
Jennings, Robert Y. 163, 172–173, 178, 300, 359–360, 383–385
628, 734 Legal Consequences of the Construction
John Tallis Atlas 838 of a Wall in the Occupied Palestinian
Johnson, D. 162 Territory 161n52
Johnston, Keith 819, 820, 836, 837, 838 legal relations 656–658
Jongh, Wollebrand Geleynssen de Legal Status of Eastern Greenland (Denmark/
8n13, 789 Norway) case 172, 183n172, 203–206, 225,
jurisdiction, full. See full jurisdiction 227–228, 229, 233, 275, 309–310, 318–319,
395–396, 398, 416, 421, 422, 438, 452
Kasikili/Sedudu Island (Botswana/Namibia) Lesser Tunb
case 164, 783–784 descriptions of
Kelke, W.H.H. 286 in general 6–7, 455
Kellogg-Briand Pact 159 by Seton, David 425–426
Kelly, J.B. 28, 33, 312, 814 historical uses of 5
Kennet, Captain 18 and Hormuz, Kingdom 70, 79, 198
Khalaf, Sulayman 50–51 identification of 84
Khalid Mohammed al-Qasimi, Sheikh. See maps of. See maps
al-Qasimi, Sheikh Khalid mining concessions on 518–519
Mohammed and Persia/Iran
Al Khalij 589–590 flag planting on 125, 520, 547
Khan, Haji Ahmed 472, 476 ownership of
Kinneir, John Macdonald 802, 804–805 in general 53–54, 56
Kishm. See Qeshm inferential evidence for 91
Klabbers, Jan 657–659, 660 seizure of
Kniphausen, Tido Frederik van 22, 33, 87, in general 58, 126, 140–141, 601
322, 323, 355 legal analysis of 625–628
Kohen, Marcelo 203n27, 702 no acquiescence 630–633
Kuwait 603 no recognition of 628–629
strategic interest in 128–130
Lamington, Charles Chochrane-Baillie 2nd violations of uae’s sovereignty
Baron 105–106 over 613–614
888 Index
Lesser Tunb (cont.) Map of Asia. Persian Gulf (Constable &

and Qawásim sheikhs (in general) Stiffe) 815, 816
flag planting on 520–521 Map of Central Asia Comprising Bokhara,
ownership of Cabool, Persia, the River Indus and
in general 455–456 countries Eastward of it (Burnes) 811, 812,
conclusion 459–460 813, 813
evidence for 455–456 Map of Iran, Afghanistan, and West Pakistan
Kniphausen’s view on 323 (in World Atlas, Moscow ) 1967
Niebuhr’s view on 323–324 840, 842–843, 842
in The Persian Gulf Pilot 429 Map of Iran, Afghanistan, Pakistan (West)
uk’s views on 519–520 (in Atlante Internazionale) 846, 847
voc’s views on 17 Map of Persia (accompanying Aitchison’s
as seasonal base 353 Treaties) 856, 857
strategic importance of 5–6 Map of Persia, Afghanistan and
as unit with Greater Tunb 455–457, Baluchistan (C.S. Hammond &
460–461 Co., 1948) 843–844, 845, 846
value of 18 Map of Persia, Afghanistan and Baluchistan
visits to/sightings of 80, 321–322 (Curzon) 824–825, 826, 851–852
See also Greater Tunb; Gulf islands Map of Persia, Afghanistan and Bellochistan
(in general) (Weller; 1882) 816, 818–819, 818
lighthouses 521–525 Map of Persia, Afghanistan and Beluchistan
Ligitan 215, 784–787 (1885) 840, 841
Lissitzyn, Oliver 650 Map of Persia and Afghanistan
Lockhart, L. 325 (A. & C. Black) 839
The London Atlas of Universal Geography Map of Persia and Afghanistan
(Arrowsmith) 824 (Johnston) 819, 820, 836, 837,
Long, G. 830, 832–833, 832, 836 838
Lorimer, J.G. 7, 10, 12–13, 31, 40, 62, 392, Map of Persia and Cabul (Arrowsmith) 824
422–423, 456–457 Map of Persia and Part of the Ottoman Empire
loss (Long) 830, 832
of territory Map of Persia compiled principally from
in general 152 original authorities (St. John) 815, 817
by abandonment/ Map of Persia (Hall) 829–830, 831
relinquishment 158–159, 226–227 Map of Persia (Holdich) 823
of title 224–229, 451n280 The Map of Persia (in Thomson’s New General
Louter, M.J. de 286 Atlas) 829, 830, 831
Luce, William 135–138, 568–569, 572, 575, Map of Persia (Rapkin) 838, 838
576–597, 601, 687, 694, 729–730 Map of Persia with a part of Cabul and
See also Luce/Afshar proposals adjacent countries (Arrowsmith)
Luce/Afshar proposals 135–138, 563, 807, 808
567–570, 575–597, 600–601, 696, 700 Map of Persian Gulf (de Haan) 84, 792,
794, 795
MacArthur, Douglas, ii 127–128 Map of the Countries lying between the
Malaysia 174–175, 215–217, 766, 784–787 Euphrates and Indus on the East and West,
Malcolm, A. 13, 504–505 and the Oxus and Terek and Indian Ocean
Malcolm, T.J. 13, 504–505, 506 on the North and South (Kinneir) 802,
Mali 780–781 804–805
Map of Arabiyah, Misr El Bahri (Touring Club Map of the Eastern Part of the Ancient Persian
Italiano) 846, 847 Empire (Long) 832, 834–835, 836
Index 889
maps French
as evidence in general 18th century 796–801, 798–799
binding nature of 20th century 846
outside of treaties 766, 848 German
in treaties 765–766 19th century 825, 827, 828, 829
in case law 767–787 Italian
classification of 762–763 20th century 846, 847
expressing will of States 765 Persia/Iran’s reliance on
probative value of 764–765 in general 794–796
technical quality of 764 18th century 796–802
of Institut Géographique 20th century 840–847
National 780–781 evidentiary value of 847–860
maps (of Gulf) inconsistencies in 848, 857–860
compiled by official 19th century 802–823
British East India Company 807, 810, semi-official 19th century 824–825
811 unofficial 19th century 825–840
Burnes, Alexander 811, 812, 813, 813 Russian
Constable & Stiff 815, 816 20th century 840, 842–843, 842
D’Anvile, Monsr. 797, 799–802, voc 84, 792, 794, 795
800, 801 See also under specific maps
Hall, Sidney 829–830, 831 naming of Gulf islands on 788–789,
Hennell, Samuel 813–814 792, 797
Johnston, Keith 819, 820, 836, 837, 838 published by
Kinneir, John Macdonald 802, A. & C. Black 839, 839
804–805 Arrowsmith, John 804–805, 807, 808,
Long, G. 830, 832–833, 832, 834–835, 811, 812, 813, 813, 824
836 C.S. Hammond & Co. 843–844,
Mixed Boundary 845, 846
Commission 769–770 Larousse 846
Morrison, James 814 Rand McNally & Co. 846
Simla Drawing Office 822–823, 823 Touring Club Italiano 846, 847
St. John, C.B.S. 815, 817 un’s views on 782
voc 84, 794 Maritime Delimitation and Territorial
Weller, Edward 816, 818–819, 818 Questions between Qatar and Bahrain
as evidence ownership islands (Qatar v. Bahrain) case 175, 189–190n198,
in general 324–325, 759–762 398, 523, 650–651, 659–661
British materiality 742–743
19th century 108, 112, 486–487, Mattair, Thomas R. 353, 430n215
488, 802–825, 804–805, 808, 810, 811, Mauritania 207
812, 813, 816, 817, 818, 820, 822, 823, McNair, Arnold, 1st Baron 287, 416
829–841, 830, 831, 832, 834–835, 837, Meanguera 459, 461
838, 841, 849–857 Meanguerita 458–459, 461
20th century 843–844, 845, 846 median line proposal 134, 549, 559, 569, 570,
colour coding on 795, 801, 803, 807, 572, 582, 600
813, 818–819, 824–825, 829–830, 833, Mehr, Farhang 815, 816, 819, 825, 832–833,
836, 839–840, 844, 846, 849, 852, 854 836, 840
Dutch Memorandum of Understanding (mou)
17th and 18th century 84, 788–794, in general 1–2, 3–4, 126–127, 138–139,
790–792, 793–794 635–636
890 Index
Memorandum of Understanding (cont.) and treaty succession 666, 667, 672–677

conclusion of 663 and uae
documents related to 598–599, 720 ambivalence over 144–145, 679–680
final text of 597–598 loss of right to invoke
full jurisdiction in 712, 715–717, invalidity 700–708
727, 742 protests against Persia/Iran’s
language of 662–663 violations 741–742
legal status of violations of 139–140
and legal relations 656–657, 661–662 and un, non-registering at 664–665n365
validity/invalidity of views on 603
in general 612, 663–665 Mendez, Manuel 9
and coercion 138–139, 144–145, Mexico 157–158, 208–209, 227, 453–454,
603, 606, 636, 678–679, 685–700 503, 768
and Exclusive migration, culture of 313–314
Agreements 652–656 mining concessions
uae’s loss of right to on Abu Musa
invoke 700–708 in general 12
and vclt 636–639 1898 13–15, 64–65, 422
letter exchange on 598–599 1922 525–527
map in 765–766 1934/5 536–539
negotiations leading to trade in 504–507
overview 575–597 Wönckhaus Affair 14, 64, 506–507,
and quid pro quo benefits 696–700 510–518
and Persia/Iran around Gulf islands 542–544
conduct on Abu Musa on Lesser Tunb 518–519
in general 614–620, 731–732, Persia/Iran’s protests against 525–527,
740–742, 743 536–539
and acquisitive on Sir Abu Nu’ayr 536
prescription 732–734 Minquiers and Ecrehos (France/United
proviso letter of 712, 725–731 Kingdom) case 85, 94, 169n96,
territorial regime established 175, 184n173, 185, 212–214, 225, 227,
by 734–737 233–234, 254, 260–261, 339, 415, 418,
violations of 139–140, 614–620, 450n279, 452–453, 464, 469, 768–769
622–623, 734, 740–744 Mirfendereski, Guive 77, 249, 334–335,
preamble to 709–711, 716–717 498–499, 819
rights and obligations in 708–725 Modern Atlas of the World (C.S. Hammond &
division of Abu Musa 711–712, Co.) 843–844, 846
715–717 Mojtahed-Zadeh, Pirouz 520, 687, 796–797,
financial assistance 801–802, 807, 809–811, 813–814, 815,
agreement 724–725 822–824, 829–830, 832, 838, 839,
fishing rights 723–724 843–844, 846
oil exploitation 719–723 Monnox, Edward 303
territorial sea 717–719 Montevideo Convention on the Rights and
termination of Duties of States 643
in absence of breach 737–740 moqarrariyeh 288, 297
by breach of Persia/Iran 740–744 Morocco 207–208, 218, 242, 649
and critical dates 747 Morrison, James 814
loss of right to 744–747 mou. See Memorandum of Understanding
Index 891
Mutual Agreement (1853) 409 by Qawásim 395

Mutual Agreement (1856) 409 of territory
Mutual Agreement (1879) 413 effectiveness of
in general 156–157, 172–176, 208,
Nadjmabadi, Shahnaz Razieh 45, 335, 209–211, 318–319, 338–340, 395–396,
359–360n131 410, 419
Namibia 783–784 and contiguity 171–172
naming, of Gulf islands 8, 788–789, 792, 797 and intertemporal law 226–227
National Archives (uk) 571 and regional conditions 396–398
National Iranian Oil Company (nioc) 720, subsequent conduct of other
722–723 states 177–178
Naus, Monsieur 116 of terrae nullius 336–338
Nearchus 74–75, 251–253 and title 176–177
hms Nearchus 544–545, 547 Official Map of Persia 822–823, 823
nemo plus juris transferre potest quam ipse oil concessions
habet principle 153 off Abu Musa
Nestorian monasteries 77, 236 in general 15, 694
Netherlands dispute over 581–582, 605, 647–648,
and Belgium 718–719
Sovereignty over Certain Frontier Land joint exploitation of 598–599,719–723
(Belgium/Netherlands) case 769–771 Oman
and uk at Bandar Abbas
Convention (1891) between 784–787 in general 19
mining concessions 542–544 expulsion from 44–45
and usa lease agreement with Persia/
Island of Palmas case 220–221 Iran 45–47
See also Dutch East India Company at Kishm island 46–47
(VOC) Onley, James 50–51
Nicaragua 703–704, 787 Oppenheim’s International Law 152, 153, 154,
Nicolson, Arthur, 1st Baron Carnock 483 159, 161–162, 286, 419, 650, 651
Niebuhr, Carsten 23, 33, 37, 39, 87–88, 314, Ottoman Empire
322, 323–324, 355 and Qawásim as subjects of 86, 102
Norway 309 views on ownership islands 63, 119–120
ownership
Occidental Petroleum 647–648, 718 of Abu Musa
Occidental Petroleum Corporation v. Buttes in general
Gas & Oil Company case 647–648 critical dates for 479–482
occupation dearth of references to 18
of Abu Musa post-mou 635
by Qawásim pre-1887 99–101
through effective by Persia/Iran
occupation 410–422 claims of 369–370, 479–481,
of Gulf islands 527–529
in general 154–159 evidence for 90–91
by Persia/Iran Persia/Iran’s views on 194
direct 380 in The Persian Gulf Pilot 56
indirect 351–352, 356, 359–365, See also Memorandum of
380–389, 394–395 Understanding
892 Index
ownership (cont.) by Qawásim sheikhs (in general)

by Qawásim sheikhs (Sharjah/Ras Al in general 54
Khaimai) evidence for 425–438
and control of access to 419 Kniphausen’s view on 323
by Qawásim sheikhs (Sharjah/Ras Al Niebuhr’s view 323–324
Khaimaih) in The Persian Gulf Pilot 429
in general 408–410 voc’s views on 17
and à titre de souverain 414–416 by Qawásim sheikhs (Lengeh branch)
claims of 481–482 contested by Ras Al Khaimah
conclusion 425 branch 430–431, 433–438, 444
division between Sharjah and Ras and effective occupation 448–449
Al Khaimah 422–424 evidence for 445–448
through effective native agent’s views on 434–437,
occupation 410–422 443, 445, 446–448
evidence for 399–404 partial 449–451
and exercise of jurisdiction 101, Persia/Iran’s views on 444
404, 418 uk’s views on 443–444
The Persian Gulf Pilot on 56, 401, by Qawásim sheikhs (Ras Al Khaimah
403, 408 branch)
and private acts 414–417 in general 9–10
recognition of 513–514 and competing claims 452–453
and sovereign acts 414–422, conclusion 451–454
504–508, 516–517 contested by Lengeh branch
uk’s views on 121–122 430–431, 432–438, 444
See also Memorandum of and effective occupation 442–443
Understanding and exclusion other States 454
of Greater Tunb and sovereign acts 438–442, 454
in general by Qawásim sheikhs (Sharjah/Ras Al
dearth of references to 18 Khaimaih)
pre-1887 97–101 and lighthouse
during Sasanid period 243 construction 522–525
critical dates for 489–490 uk’s views on 522
by Hormuz, Kingdom of of Gulf islands
in general 70, 79, 198 in 1970/ 1
Barbosa’s views on 17, 79, 85 uk’s views on 130–135, 142–143,
evidence for 274–283 573–575
by Persia/Iran Claimant States 70–71
absence of protests against evidence for. See evidence
Qawásim claims 484–485 by Hormuz, Kingdom of
and British War Office map in general 266–267, 268–269
486–487, 488 evidence for 274–283
claims of 52–54, 56, 369–370, and geographical doctrines
482–484, 533–536 305–306, 310–312, 314–315
evidence for 91, 388, 484–487 during Parthian period 243–244
and letters of Yusuf bin by Persia/Iran
Muhammad 378–380 absence of protests against
Persia/Iran’s views on 195–196 Qawásim claims 508
Qawásim’s views on 444 through acts of Qawásim
and uk’s acquiescence 487–489 351–352, 356, 359–365, 380–389,
and uk’s documentation 485–486 394–395
Index 893
through cession by Ottoman Empire’s views on 63,

Portugal 299–301 119–120
claims, challenges in Persia/Iran’s views on
establishing 199–203 368–370, 372
claims, theories in The Persian Gulf Pilot 429
underlying 332–336 Persian protests/military incursions
claims of 102–103, 545–552, against 123–126
557–564 Qawásim’s views on 3, 56, 110–113
through conquest of uae’s views on 4, 142
Hormuz 302–305 uk’s views on 3, 65–67, 92–93,
critical dates 469–471 103–104, 110–113, 354, 477–478
through direct occupation 380 of Lesser Tunb
evidence for. See evidence critical dates for 489–490
and geographical dearth of references to 18
considerations 345–346, 348–351 by Hormuz, Kingdom of 70, 79, 198
historic title to. See historic title by Persia/Iran
and incidents between in general 53–54, 56
1904–1971 123–126 evidence for 91
through inclusion in Fars by Qawásim sheikhs (in general)
Province 332–333, 336–337, in general 455–456
340–343 conclusion 459–460
Persia/Iran’s views on 3, 4, 54, Kniphausen’s view on 323
67–68, 108–110 Niebuhr’s view on 323–324
in The Persian Gulf Pilot 56 in The Persian Gulf Pilot 429
Qawásim’s views on 368–370, during Sasanid period 243
372, 566 views on
uk’s views on 108–109, 368–370, of uk 519–520
476–477, 560–562, 565 of voc 17
by Portugal See also ownership, of Greater Tunb
through conquest 295–297 of Qeshm 312
and geographical doctrines of Sirri
305–306, 310–312, 314–315 by Persia/Iran
through occupation 299 claims of 53–55, 57–58, 370–371,
pre-1887, overview 96–101 472–475, 548–549
by Qawásim sheikhs (Lengeh Persia/Iran’s views on 55
branch) by Qawásim (in general)
in general 51–52, 54 claims of 54–55
evidence for 88, 92–93 uk’s views on 54–56, 473–475
Kniphausen’s view on 323–324 See also possession; sovereignty;
Niebuhr’s view 33, 39, 88, 323–324 title
through occupation 395
Qawásim’s views on 3–4 Pachachi, Adnan 67
uk’s views on 56–57, 58–59, 342 Pakistan 774–780
by Qawásim sheikhs (Sharjah/Ras Al Palang (ship) 533–534, 537
Khaimah branch) Parthian period 243–244
in general 54 pearl fishery 37
claims of 503–507 Pelly, Lewis 36–37, 40, 41, 42
before establishment at perpetual lease 734
Lengeh 352–356 Persia and the Persian Question
evidence for 475 (Curzon) 824–825, 826, 852
894 Index
Persia/Iran and uk’s documentation 485–486

and Abu Musa seizure of
administrative offices on 546–547 in general 58, 126, 140–141, 601
flag planting on 52, 63–64, 115–116, legal analysis of 625–628
490, 494–496 no acquiescence of 631–633
occupying half of 126, 140 no recognition of 628–629
ownership of strategic interest in 128–130
absence of protests against violations of uae’s sovereignty
Qawásim claims 515–516 over 613–614
claims on 369–370, 527–529 visits of authorities to 533–536
Persia/Iran’s views on 194 in Gulf
strategic interest in 128–130 in general 75–77, 128
threats of seizing 685–690 destabilizing power of 131–132
violations of uae’s sovereignty supremacy of 195–196, 199, 245–246
over 614–620 unimportance of 113, 258–259
and Bahrain and Gulf Arab rulers
claims of 65, 105, 549–551, 560–561 treaties between 59–60, 472
and Bandar-e Lengeh and Gulf islands
control of 102 military incursions 552
seizing control of 41–42, 52–53, 102, ownership of
469–471 absence of protests against
sovereignty over 38–39, 42 Qawásim claims 508
and Bani Ma’in 44–45 through acts of Qawásim 351–352,
coastal areas of 356, 359–365, 380–389, 394–395
control of through cession by
in general 19, 24, 39–41, 87–88 Portugal 299–301
recovering of 41–42, 52–53, claims, challenges in
59–60, 102 establishing 199–203
See also Persian littoral claims, theories
customs administration of 63–64, 115 underlying 332–336
and Greater Tunb claims of 557–564
administrative offices on 546–547 claims on 102–103, 545–552
claims of 52–53 through conquest of
detention of Dubai dhow 528–529 Hormuz 302–305
flag planting on 52, 63–64, 115–116, critical dates 469–471
125, 473, 490, 494–496, 520 through direct occupation 380
ownership of evidence for. See evidence
absence of protests against and geographical
Qawásim claims 484–485 considerations 345–346, 348–351
and British War Office map historic title to. See historic title
486–487, 488 and incidents between
claims on 52–54, 56, 369–370, 1904–1971 123–126
482–484, 533–536 through inclusion in Fars
evidence for 91, 388, 484–487 Provence 332–333, 336–337,
and letters of Yusuf bin 340–343
Muhammad 378–380 and maps. See maps
Persia/Iran’s views on 195–196 Persia/Iran’s views on 3, 4, 54,
Qawásim’s views on 444 67–68, 108–110, 191–193
and uk’s acquiescence 487–489 in The Persian Gulf Pilot 56
Index 895
Qawásim’s views on 368–370, and Qawásim sheikhs (Sharjah branch)

372, 566 flag incident (1904)
uk’s views on 108–109, 368–370, in general 116–118, 491–496
476–477, 560–562, 565 as critical date 502–509
seizure of, threats to 561–562, mou between. See Memorandum of
564–565 Understanding
unconfirmed reports on encroachment negotiations about islands 566–567
of 551–552 threats of seizing Abu Musa
and Hormuz, Kingdom of in general 685–689
aborted takeover of 290, 291 evidence for 689–690
conquest of 302–305 illegality of 689
vassal of revolution of 1979 624
in general 25–26, 197–198, 267–268 and Russia 60, 62–63, 105, 117
evidence for 287–293 sea power of
and Lesser Tunb lack of 75–77, 113, 200, 248, 325–326
flag planting on 125, 520, 547 and reliance on foreign
seizure of powers 325–332
in general 58, 126, 140–141, 601 and Sirri
legal analysis of 625–628 flag planting on
no acquiescence of 630–633 in general 102, 409, 472, 473
no recognition of 628–629 legal significance of 367–369
strategic interest in 128–130 ownership of
violations of uae’s sovereignty claims on 53–55, 57–58, 370–371,
over 613–614 472–475, 548–549
and Oman 45–47 Persia/Iran’s views on 55
and Portugal succession wars in 34–35
cession of Hormuz to, by 297–298 and uae
cession of islands by, to 299–301 bilateral negotiations (1979) 624–625
defeat of, by 302–305 and establishment of uae 562–563,
treaties between 577, 585–586
in general 290 protests lodged by, against
1625 267–268, 300–301 circumstances of 145–147
president of 618 Persia/Iran’s replies to 147–149
and Qawásim sheikhs (Lengeh branch) since 1971, 142–147
administering of Gulf islands for 4, at unsc 141–142, 145
17, 51–52, 54, 108–110, 472 and seizure of islands by Persia/Iran
claiming of islands for 351–352, 356, no acquiescence of 631–633
359–365, 386–389 no recognition of 628
independence of 39–41, 48, 87 and uk
lease agreement between 43–44, 48, Anglo-Persian General Treaty 124,
333–336, 341, 359–360, 383–385 529–531
ousting of 41–42, 52–53, 389 dhow incident 528–529
Persianization of 48–49, 54, 109–110 efforts to oust uk from Gulf 59–63
relations between 389–390 and erroneous color coding of
as subjects of 48–49, 54, 109–110, 381 islands 850–851, 852, 854–855
and Qawásim sheikhs (Ras Al Khaimah flag incident (1904) 116–123, 494–502
branch) Luce/Afshar proposals 135–138, 563,
negotiations about islands 566–567 567–570, 575–577, 580–588,
seizure of Tunbs 601 594–597, 601
896 Index
Persia/Iran (cont.) in general 25–26, 81

and Persia/Iran’s claims to Abu arrival of 198, 258
Musa 527–529 first explorations 281
protests against lighthouse 522–525 and Hormuz, Kingdom of
protests against mining conquest of
concessions 525–527 in general 25, 86, 267, 278–279,
status quo agreement of 1904 283–285, 293–295
in general 118–119, 120, 493, status of Hormuz territory
495–496 after 295–297
correspondence about 496–500 Persia/Iran’s cession of 297–298
violations of 500–501 treaties between 278–279, 293–294,
status quo agreement of 1928 295, 296
in general 532 vassal to 295, 296
violations of 533, 536–539 ownership by
Tripartite discussions 548–551 of Gulf islands
and voc 325–332 through conquest 295–297
See also Persian littoral and geographical doctrines 305–
Persian Gulf. See Gulf 306, 310–312, 314–315
The Persian Gulf Pilot through occupation 299
on Abu Musa 11 and Persia/Iran
on Greater Tunb 9 cession of Hormuz by, to 297–298
on Lesser Tunb 7 cession of islands to, by 299–301
maps in 815, 816 defeat by, of 302–305
on ownership Abu Musa 56, 401, treaties between
403, 408 in general 290
on ownership islands 429, 476 1625 267–268, 300–301
on Qawásim chiefs 412n145 possession
Persian littoral à titre de souverain 164
Arab settlements on and effective occupation 156
in general 19–21 immemorial. See historic title
autonomy of 21–23 publicity of 164
Oman 19 time factor in 165 See also ownership
Qawásim. See Bandar-e Lengeh Potter, Lawrence 24, 313–314, 389
European powers in 20, 25, 27 Potts, D.T. 240–241, 242, 244, 249–251, 253
Persia/Iran’s control of Price Bros. & Co. v. R case 763
in general 19, 24, 39–41, 87–88 private acts 357–358, 394, 414–417
recovering of 41–42, 52–53, See also sovereignty, acts of
59–60, 102 protection-seeking 50–51
Persian littoral Protectorate Treaties (1892) 50, 62, 104, 114,
Arab settlements on 126, 602, 641–656 See also Exclusive
explanation for 24 Agreements (1892)
petroleum. See oil concessions protectorates
Petty-Fitzmaurice, Henry, 6th Marquess of definitions of 648–650
Landsdowne 106–107 and treaty succession 667–669
Piacentini Fiorani, Valeria 268–271 protests
piracy 31–32, 36 basic criteria for 466–468, 630–631
political culture, Arabian 50–51 definitions of 465–466
Portugal failure to 468
in Gulf in Gulf Islands dispute
Index 897
in general 468–469 pearl fishery 37

absence of 484–485, 508, 515–516 motivations for 36–38
by Persia/Iran and Mullah Ali Shah 34–35
in general 123–126 and Ottoman Empire
against lighthouse subjects of 86, 102
construction 522–525 piracy by 31–32, 36
against mining concessions 525– See also Qawásim sheikhs (Lengeh
527, 536–539 branch)
against violation of status quo Qawásim sheikhs (in general)
agreement 500–501 and Greater Tunb
by Qawásim 492, 504 ownership of
by uae in general 54
in 1971 142–144 evidence for 425–438
1971–80 606–607 Kniphausen’s view on 323
1980-present 606–621 Niebuhr’s view 323–324
before gcc 143, 620 in The Persian Gulf Pilot 429
Persia/Iran’s reponses to 621–624 voc’s views on 17
Persia/Iran’s responses to 147–149 and Lesser Tunb
before several Arab fora 143, 145, ownership of
620–621 in general 455–456
since 1971 144–147 conclusion 459–460
against specific acts of Persia/ Kniphausen’s view on 323
Iran 613–620 Niebuhr’s view on 323–324
before unga 609–613 in The Persian Gulf Pilot 429
before unsc 143, 607–608 Qawásim sheikhs (Lengeh branch)
by uk 494–495, 534–536, 548 and Abu Musa 401
proximity 170–171, 305–307, 457–458 authority of
as deputy governors 362, 385–386
Qalhati, Mahmud 269–270 in Gulf 27–28, 35
al-Qasimi, Sheikh Khalid Mohammed and Greater Tunb
assassination of 605 ownership of
coercion in signing mou 685–699 contested by Ras Al Khaimah
negotiations with Luce 138, 579, branch 430–431, 432–438, 444
590–591, 593 and effective occupation 448–449
negotiatons with Luce 567 evidence for 445–448
and Persia/Iran’s proviso letter to native agent’s views on
mou 729–731 434–437, 443
al-Qasimi, Sheikh Sultan bin partial 449–451
Muhammad 28–29, 31–32 Persia/Iran’s views on 444
Qatar 650 and Gulf islands
Qawásim (Lengeh branch) ownership of
at Bandar-e Lengeh in general 51–52, 54
in general 19, 27, 32–35 evidence for 88, 92–93
contractual basis for 43–44, 48, Kniphausen’s view on 323–324
333–336, 341, 359–360, 383–385 Niebuhr’s view 33, 39, 88,
independence of 39–41, 48 323–324
livelihood of through occupation 395
in general 28–29, 36 Qawásim’s views on 3–4
commercial activities 36–37 uk’s views on 56–57, 58–59, 342
898 Index
Qawásim sheikhs (cont.) and Tripartite discussions 548–549

tax farming on 42–43, 51 and uae, joining of 141, 605
international recognition of 29 and uk
loyalties/allegiances of 48–50, 102, and erroneous color coding of
361–362, 390 islands 849–851
and Persia/Iran and flag incident (1934/5) 539–542
administering of Gulf islands for 4, Luce/Afshar proposals 568–570,
17, 51–52, 54, 108–110, 472 576–580, 588–590, 600
claiming of ownership of islands and United Nations 140–141
for 351–352, 356, 359–365, 386–389 Qawásim sheikhs (Sharjah branch)
independence from 39–41, 48, 87 and Abu Musa
lease agreement between 43–44, 48, flag planting on, by 119, 120–123,
333–336, 341, 359–360, 383–385 491–493
ousting by 41–42, 52–53, 389 mining concessions granted
Persianization by 48–49, 54, 109–110 by 536–539
relations between 389–390 ownership of
as subjects of 48–49, 54, 109–110, 381 uk’s views on 121–122
and Qawásim sheikhs (Sharjah/Ras Al and Ajman sheikhs 718–719
Khaimah branch) authority of 645–648
administering of Gulf islands for and Persia/Iran
111, 113 flag incident (1904)
relations between 109, 361–362, 389, in general 116–118, 491–496
392–393 as critical date 502–509
and Sirri 55 mou between. See Memorandum of
and uk Understanding
confrontations between 29–32, 104, negotiations about islands 566–567
390–391 threats of seizing Abu Musa
treaties between in general 685–689
Exclusive Agreements (1892) 50 evidence for 689–690
General Treaty with the Arab Tribes illegality of 689
of the Persian Gulf (1820) 32 reunion with Ras Al Khaimah
Treaty of Peace (1806) 29, 40, 361 branch 522
Qawásim sheikhs (Ras Al Khaimah branch) separation from Ras Al Khaimah
and Greater Tunb branch 422–423, 429, 432, 439
flag withdrawal on 539–542 and Tripartite discussions 548–549
ownership of and uae’s succession to treaties of 666,
and competing claims 452–453 667, 672–677
conclusion 451–454 and uk
contested by Lengeh branch and erroneous color coding of
430–431, 432–438, 444 islands 849–851
and effective occupation 442–443 Exclusive Agreements (1892)
and sovereign acts 438–442, 454 between 641, 642–656
and Persia/Iran Luce/Afshar proposals 567–570,
negotiations about islands 566–567 576–578, 580–588, 590–597
seizure of Tunbs 601 and Umm Al Qaiwain sheikhs 718–719
reunion with Sharjah branch 522 Qawásim sheikhs (Sharjah/Ras Al Khaimah
separation from Sharjah branch branch)
422–423, 429, 432, 439 and Abu Musa
Index 899
flag planting on, by 504 uk’s views on 3, 65–67, 92–93,

mining concessions granted by 103–104, 110–113, 354, 477–478
in general 12 and Lesser Tunb
1898 13–15, 64–65, 422 flag planting on 520–521
1922 525–527 and Persia/Iran
trade in 504–506 mou between. See Memorandum of
ownership of Understanding
in general 408–410 and Qawásim sheikhs (Lengeh branch)
and à titre de souverain 414–416 administering of Gulf islands for
conclusion 425 111, 113
and control of access to 419 relations between 109, 361–362, 389,
division between Sharjah and Ras 392–393
Al Khaimah 422–424 reunion of 522
through effective separation of 422–423, 429, 432, 439
occupation 410–422 and Sirri 54–55
evidence for 399–404 and uk
and exercise of jurisdiction 101, confrontations between 29–31, 104,
404, 418 390–391
The Persian Gulf Pilot on 56, 403 treaties between
and private acts 414–417 in general 413–414
recognition of 405–406 Exclusive Agreements 62, 114,
and sovereign acts 414–422, 414, 602
516–517 General Treaty of Peace (1820) 30,
uk’s views on 121–122 32, 391–392
See also Memorandum of General Treaty with the Arab
Understanding Tribes of the Persian Gulf
deposing of 101, 404–405 (1820) 32
and Greater Tunb Mutual Agreements 409, 413
lighthouse construction on See also Qawásim sheikhs (Lengeh
521–525 branch); Qawásim sheikhs (Ras
ownership of Al Khaimah branch); Qawásim
and lighthouse sheikhs (Sharjah); under specific
construction 522–525 rulers
and Gulf islands Qeshm
ownership of Oman presence at 45, 46–47
in general 54 ownership of 312
claims on 503–507 uk’s presence on 426
before establishment at visits to/sightings of 320–321
Lengeh 352–356 quid pro quo benefits 696–700
evidence for 475
Ottoman Empire’s views on 63, Rann of Kutch arbitration 774–780
119–120 Rapkin, J. 838, 838
Persia/Iran’s views on Ras Al Khaimah, Emirate of. See Qawásim
368–370, 372 sheikhs (Sharjah/Ras Al Khaimah branch)
in The Persian Gulf Pilot 429 Ras Al Khaimah (town) 30
Persian protests/military incursions Rawlinson, George 75
against 123–126 recognition
Qawásim’s views on 3, 56, 110–113 of ownership Abu Musa 513–514
900 Index
recognition (cont.) See also Qawásim sheikhs (Sharjah

of Persia/Iran’s seizure of branch); Qawásim sheikhs
islands 628–629 (Sharjah/Ras Al Khaimah branch);
of Qawásim sheikhs (Lengeh branch) 29 under specific rulers
and title to territory 178, 181–182 Sharjah National Oil Corporation
red oxide concessions. See mining (snoc) 721
concessions Shaw, Malcolm 415–416
regional conditions, and effective Siam 771–774
control 396–398 sightings. See visits/sightings
relinquishment, of territory 158–159 Singapore 215–217
“Report on the Law of Treaties” Sipadan 215, 784–787
(Lauterpacht) 655–656 Sir Abu Nu’ayr 536
reservations, to treaties 727 Sirri
revolt 152 Persian flag planting on 102, 367–368,
right to self-determination, and uti possidetis 409, 472, 473
juris principle 190 and Qawásim sheikhs 54–55
Rogers, William 559–560 Six Months in Persia (Stack) 840, 841
Roobacker, Cornelis Cornelisz 8, 80, 320 sources
Ross, Colonel E.C. 405–406, 476, 479, 483 on history of Gulf/Gulf islands
Royal Atlas of Modern Geography 819 from 16th to 19th century
Rumsey, David 800 in general 78–84
Russia use in solving dispute 84–85
in Gulf 62–63, 105, 128 18th and 19th century 96
and Persia/Iran 60, 62–63, 105, 117 in antiquity
in general 72–77
Saleh, Nakhoda Ali-ben-Ahmed 14 use in solving dispute 77–78
Salim bin Sultan, Sheikh 101, 404–405, sovereignty
504–505 acts of
Samaiyeh, Haji Hassan-bin-Ali 14, in general 174–176, 262, 337–339,
506–507, 510 357–358
Saqar bin Khalid, Sheikh 101, 404–405 and historic title 223–224
Sasanian Empire 246, 257, 258 by Persia/Iran
Sasanid period 243 lack of 262, 263–264, 379
Satrapy, xivth 237, 249–254 by Qawásim
Savory, Roger M. 75–76, 246 in general 412–422, 504–508,
Schmalenbach, Kirsten 684 516–517
Sebatik 784–787 actual display of 420–421
Seton, David 29, 97, 425–426, 427, 432 competing acts of 419–420
Sharjah, Shaikhdom of continuous display of 422
airport in 646 peaceful display of 419–420
extent of 643–644 sufficient display of 412–413
status as State See also à titre de souverain; private
in 1971 639–641 acts
after Exclusive Agreements and continuity 422
(1892) 642–652 See also ownership; title
before Exclusive Agreements Sovereignty over Certain Frontier Land
(1892) 641–642 (Belgium/Netherlands) case 769–771
treaty making capacity of Sovereignty over Clipperton Island case
impact of Exclusive Agreements (1892) 157–158, 208–209, 227, 395, 410, 421, 422,
on 652–656 441–442, 453–454, 503, 768
Index 901
Sovereignty over Pedra Branca/Pulau Batu Gulf islands as

Puteh, Middle Rocks and South Ledge in general 154, 200, 263, 283–284,
(Malaysia/ Singapore) case 179–180, 316–318, 336, 374
215–217, 766 Greater Tunb 277–278, 439–440
Sovereignty over Pulau Ligitan and Pulau Pedra Branca/Pulau Batu Puteh
Sipadan (Indonesia/Malaysia) case as 215–217
174–175, 215, 784–787 Western Sahara as 207
Spain 155, 209, 218, 220–221, 768 Territorial and Maritime Dispute Between
St. John, C.B.S. 815, 817 Nicaragua and Honduras in the
State acts. See sovereignty, acts of Caribbean Sea (Nicaragua v. Honduras)
States/statehood case 185n182, 787
continuity of 665–666 Territorial and Maritime Dispute (Nicaragua v
criteria for 644, 651 Colombia) case 702–703, 705
definitions of 412, 642–643 territorial disputes, critical dates in 94–95
under protection 648–650 territorial sea 717–719
status of Sharjah 641–652 territory
and treaty succession. See treaties acquisition of
status quo agreement (1904) 118–119, 120, in general 150–151
493, 495–500 by accretion 153
status quo agreement (1928) 532, 533, and acquisitive prescription 161–164
536–539 by cession 153–154
Stiffe, A.W. 815, 816 and contiguity 171
Stimson doctrine 159 and effectiveness 172–177
subjugation, of territory 159–161, 625–628 by occupation. See occupation
subsequent acts 464–465 by subjugation/conquest 159–161,
succession of States 625–628
to treaties loss of
in general 665–667 in general 152
and newly independent States by abandonment/
in general 669–671 relinquishment 158–159, 226–227
exceptions to 671–672 title to
and protectorates 667–669 in general 152
and uae 666, 667, 672–677 and acquiescence 179–182
Sultan bin Suggur, Sheikh 361, 399–401, and effectivités 176–177
422–423, 428, 432, 505–506 and estoppel 179, 181–182
suzerainty, definitions of 285–287 and geographical doctrines 170–171,
Sweet, Louise 38 306–310
historical consolidation of
tax collecting 54, 57, 112 166–169
tax farming 42–43, 51 and recognition 178, 181–182
Tehran Oil Price Agreement (1971) 721–722 Thailand 771–774
Teixeira, Pedro 86, 271–272, 275, 278, 314 Thévenot, Jean de 8–9, 277, 321
Temple of Preah Vihear case 181–182, 766, Thirlway, Hugh 162
771–774 Thomson’s New General Atlas 829
terrae nullius title
in general 154–158, 282–283 to territory
and à titre de souverain 357–359 in general 152
changes in law on 210–211 and acquiescence 179–182
effectiveness of occupation of 336–338 and effectivités 176–177
and geographical doctrines 306, 308 and estoppel 179, 181–182
902 Index
title (cont.) in 1971, 142–144

and geographical doctrines 170–171, 1971–80, 606–607
306–310 1980-present 606–621
historical consolidation of 166–169 before gcc 143, 620
loss of 451n280 Persia/Iran’s reponses to 621–624
and recognition 178, 181–182 Persia/Iran’s responses to 147–149
See also historic title; ownership; before several Arab fora 143, 145,
sovereignty 620–621
treaties since 1971, 145–147
binding/non-binding 657–660 against specific acts of Persia/
breach of 740, 742–743 Iran 613–620
and coercion before unga 609–613
in general 680–684 before unsc 143, 607–608
curing of 680, 702–704 views of 142, 604
invalidity of 684–685 and mou. See Memorandum of
definitions of 637 Understanding
and inability to resist 695 and Persia/Iran
maps in 765–766 bilateral negotiations (1979)
mou as treaty 636–639 624–625
reservations to 727 and establishment of uae 562–563,
succession of States 577, 585–586
in general 665–667 protests lodged against
and newly independent States circumstances of 145–147
in general 669–671 Persia/Iran’s replies 147–149
exceptions to 671–672 since 1971, 142–147
and protectorates 667–669 at unsc 141–142, 145
of uae 666, 667, 672–677 and seizure of islands by Persia/Iran
termination of 744, 745–746 no acquiescence of 631–633
See also under specific treaties no recognition of 628
Treaties, etc. relating to India and Qawásim sheikhs (Ras Al Khaimah
(Aitchinson) 857 branch)
Treaty of Peace (1806) 29, 361 joining of 141, 605
Treaty of Peace in Perpetuity (1853) 98–99, and Qawásim sheikhs (Sharjah branch)
400, 409, 413, 428, 432, 435 succession to treaties of 666, 667,
Treaty of Protection (1892) 650, 654–655 672–677
See also Exclusive Agreements (1892), views on ownership islands 3–4,
Protectorate Treaties (1892) 67–68, 142
tribute system 50–51 United Kingdom
See also moqarrariyeh and Abu Musa 513–514
Tripartite discussions 548–551 and Bahrain 650, 654–655
Tunbs. See Greater Tunb; Lesser Tunb and Germany
dispute over mining concessions
Umm Al Qaiwain sheikhs 718–719 64–65, 506–507, 510–518
United Arab Emirates (uae) and Greater Tunb
constitution of 602, 674n406 lighthouse construction on 521–525
establishment of 67, 131–132, 141, view’s on ownership of 522
562–563, 573, 577, 585–586, 602 in Gulf
and Gulf Islands dispute in general 26, 102
protests in concern over position in 105–107
Index 903
Persia/Iran’s effort to oust 59–63 in general 118–119, 120, 493,

strategic interests 104 495–496
withdrawal from 126, 130–134, correspondence about 496–500
556–565 violations of 500–501
and Gulf Arab rulers status quo agreement of 1928
treaties between in general 532
in general 104–105 violations of 533, 536–539
Exclusive Agreements 62, 104, 114, Tripartite discussions 548–551
126, 141, 602, 641 and Qawásim sheikhs (Lengeh branch)
Treaty of Peace (1853) 98–99, 400, confrontations between 29–32, 104,
409, 413, 428, 432, 435 390–391
and Gulf Islands dispute treaties between
protests in 494–495, 534–536, 548 Exclusive Agreements (1892) 50
resolutions proposed by General Treaty with the Arab Tribes
in general 559–560 of the Persian Gulf (1820) 32
Luce/Afshar proposals 135–138, Treaty of Peace (1806) 29, 40, 361
563, 567–570, 575–597, 600–601, and Qawásim sheikhs (Ras Al Khaimah
696, 700 branch)
median line proposal 134, 549, and erroneous color coding of
559, 569, 570, 572, 582, 600 islands 849–851
and Lesser Tunb 519–520 and flag withdrawal (1934/5) 539–542
Minquiers and Ecrehos case 169n96, Luce/Afshar proposals 136–138,
184n173, 212–214, 469 568–570, 576–580, 588–590, 600
National Archives 571 and Qawásim sheikhs (Sharjah branch)
and Netherlands and erroneous color coding of
Convention (1891) between 784–787 islands 849–851
mining concessions 542–544 Exclusive Agreements (1892)
and Persia/Iran between 641
Anglo-Persian General Treaty 124, an Qawásim sheikhs (Sharjah branch)
529–531 Exclusive Agreements (1892)
dhow incident 528–529 between 642–656
efforts to oust them from Gulf 59–63 and Qawásim sheikhs (Sharjah branch)
and erroneous color coding of is- Exclusive Agreements (1892)
lands 850–851, 852, 854–855 between 642–656
flag incident (1904) Luce/Afshar proposals 136–138,
in general 116–123, 494–502 567–570, 576–578, 580–588, 590–597
Luce/Afshar proposals 135–138, and Qawásim sheikhs (Sharjah/Ras Al
563, 567–570, 575–577, 580–588, Khaimah branch)
594–597 confrontations between 29–31, 104,
and mou. See Memorandum of 390–391
Understanding relations with 61
and Persia/Iran’s claims to Abu treaties between
Musa 527–529 in general 413–414
protests against lighthouse 522–525 Exclusive Agreements (1892) 62,
protests against mining 114, 414, 602
concessions 525–527 General Treaty of Peace (1820) 30,
sovereignty over Bandar-e 32, 391–392
Lengeh 38–39 Mutual Agreements 409, 413
status quo agreement of 1904 and Qeshm 426
904 Index
United Kingdom (cont.) uae’s possibilities 758

Rann of Kutch arbitration 774–780 uae’s views on 142, 604, 755
and uae 573 uk’s views on 142–143
views of Yemen’s views on 603
on ownership Abu Musa 121–122 procedures for settlement of
on ownership Greater Tunb 443–444, disputes 748–751
487–489 United Nations (un)
on ownership islands Gulf Islands dispute
in general 3, 142–143 in general 753
in 1970/1 130–135, 142–143, mou, non-registering
568–569 of 664–665n365
by Persia/Iran 108–109, 368–370, and Qawásim sheikhs (Ras Al Khaimah
476–477, 560–562, 565 branch) 140–141
by Qawásim 56–57, 58–59, 65–67, views on maps of 782
92–93, 103–104, 110–113, 342, 354, United States of America 209, 220–221, 299,
477–478, 573 453–454, 703
on ownership Sirri 54–56, 473–474 usucapio concept 163
on Persia/Iran’s effort to oust them uti possidetis juris principle
from Gulf 60–61 in general 188–189
on Rulers of Shaikhdoms 647 and right to self-determination 190
United Nations Charter
article 2.4 160, 625, 684–685, vassals
689–690 definitions of 285, 287
article 33, 707, 745, 750, 752, 754, 758 of Persia
article 35, 171, 748–749, 751, 754, 756, Hormuz as 25–26, 197–198, 267–268,
757–758 287–293
article 36, 750, 754, 758 of Portugal
Chapter vi of 135, 141, 143, 560, 750, 754, Hormuz as 295, 296
755, 757 Verdross, Mr. 682n427
United Nations General Assembly (unga) Vienna Convention on Succession of States
Gulf Islands dispute in Respect of Treaties (vcssrt) 666,
in general 757 667, 669–670, 672–673, 675–677
uae statements before 609–613 Vienna Convention on the Law of Treaties
uae’s possibilities before 757–758 (vclt)
procedures for settlement of in general 636–637
disputes 751–753 Article 31 765
United Nations Security Council (unsc) Article 45 702, 744
Gulf Islands dispute before Article 51 681–682, 685–689, 701–702
as agenda item 143, 607–608, 755–756 Article 52 154, 681–690, 692–693, 695,
Arab States, protests lodged by 696, 705
141–142, 602–603 Article 56 737–739
Iraq’s views on 603 Article 60 740–742, 743, 744–745, 745
Kuwait’s views on 603 Article 65 706–707, 745, 747
no action taken 67, 143, 604–605, Article 66 706–707, 745
753–754 Article 69.2 706, 708
Persia/Iran’s views on 191–193, Article 70 746
603–604 Villiger, Mark E. 701, 707, 740, 742–743
Somalia’s views on 754–755 Vingboons, Johannes 793
Index 905
visits/sightings Weller, Edward 816, 818–819, 818

to/of Abu Musa Western Sahara case 155, 207–208, 218,
by Iranian navy 547–548 241–242, 397, 411
by Iranian president 618, 623 Whitelock, Lieutenant 97, 427
of Persian customs launch 527–528 Wilson, Arnold T. 27, 75, 246
to/of Greater Tunb Wilson, F.A. 92
in general 8–9, 80, 319–322, 426 Wönckhaus, Robert 14, 64, 507, 510
of Iranian authorities 533–536 Wönckhaus Affair 14, 64, 506–507, 510–518
of hms Nearchus 544–545, 547
of Palang 533–534, 537 Yapp, Malcolm 28, 31, 81
to/of Gulf islands 8–9, 80, 319–323 Yemen 218–220, 259–260, 603, 781
to/of Lesser Tunb 80, 321–322 Yusuf bin Muhammad 57, 377–379,
to/of Qeshm 320–321 437, 474
Vosoughi, Mohammad B. 265n2, 268–270,
363n140
Waldock, C. Humphrey 170–171, 306,

308, 318, 337–339, 357–358, 394,
410, 416n162, 419, 441–442, 454,
458, 668

The Iran-UAE Gulf Islands Dispute

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The Iran-UAE Gulf Islands Dispute

Queen Mary Studies in

The titles published in this series are listed at brill.com/qmil

Charles L.O. Buderi

Names: Buderi, Charles L.O., author. | Ricart, Luciana Teresa, author.

Copyright 2018 by Koninklijke Brill nv, Leiden, The Netherlands.

This book is printed on acid-free paper and produced in a sustainable manner.

1 Origins and Nature of the Dispute 19

2 The Gulf Islands Dispute in Historical Perspective 70

The Events of 1904 115

3 Modes of Acquisition and Effective Control of Territory 150

4 The Pre-Sixteenth Century Period and the Existence of Historic Rights

5 The Kingdom of Hormuz, Its Conquest by Portugal in 1515 and Portugal’s

6 The Early Seventeenth Century to the End of the Eighteenth Century:

7 The Seeds of Conflict: 1800 until 1887 – Effective Occupation 367

Evidentiary Framework – Abu Musa 399

8 The Period 1887–1971: The Possible “Critical Dates” in the Sovereignty

The “Flag Incident” of 1903/4: Factual Background 490

General Responses of the Islamic Republic of Iran 621

Interpretative Analysis of the mou, Asserted Breach and

10 Evidentiary Value of Maps in Sovereignty Disputes over

by Charles L.O. Buderi

As it developed, the book’s historical and international law aspects were

is a question of considerable legal interest whether, for various historical and

as to the islands’ ownership. Indeed, throughout the research conducted for

It is scarcely less difficult to discover the traces or existence of a Persian

This use of the expression “Arabian Gulf” warrants an immediate pre-

­fundamental truths. This misrepresentation of facts demonstrates a spir-

While nomenclature may be important for historical and national sensibili-

0.1 Map of the Arabian Peninsula (Reprinted by Permission of HarperCollins

10.43 Close-up image of “Map of Arabiyah, Misr El Bahri” in Atlante Internazionale,

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004236196_002

existence at times appear to be much more than a localized territorial dispute,

constitutes a valid international agreement, it does not affect uae sovereignty

The Islands – “A Pile of Rock”?

Against the repetition of argumentation which is consistently used by the

ownership or the considerations involved in determining which State should

An island in the Persian Gulf, 8 miles west of the island of Tunb. It is

island, 50 kilometers from Lengeh and 70 kilometers from Ras Al Khaimah.11

In his description of the island published in 1908, Lorimer provides this

It is roughly circular in outline, but flattened on the south side; in diam-

Abu Musa is roughly circular or rhombus in shape with a maximum diameter

Upon inquiries by the British Political Resident in Bushire as to the status of

21 Ibid., Vol. 4, 240–241, containing a letter from Lieutenant-Colonel Barrett (Political

In English formerly called “Bomosa.” An island in the Persian Gulf, a

25 Ibid., Vol. 2, 333–334.

26 Toye, Lower Gulf Islands, Vol. 2, 625–626.

32 Ibid., Vol. 2, 329, and Vol. 3, 22, containing Reprint of Agreement.

concession granted by the Ruler of Sharjah and, therefore, a determination of

Fundamental Legal Questions

Understanding the historical circumstances in which the dispute over own-

• Could a successful argument be made by Iran under international law that

These scattered and somewhat legally unreliable references, centuries apart,

Origins and Nature of the Dispute

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004236196_003

A British government report, written by its political agent at Qishm in 1821,

European travellers to the Gulf in the seventeenth and eighteenth centuries

4 Perry, Karim Khan Zand, 151.

Our geographers are wrong, as I have elsewhere remarked, in represent-

the third century, inhabited by Arab communities.12 While there is disagree-

16 Alfonso de Albuquerque, The Commentaries of the Great Alfonso Dalboquerque, Trans-

17 Ibid., Vol. 1, 145.

As Persia experienced a period of fracture, partition and central government

fundamental truths. This misrepresentation of facts demonstrates a spir-

0.1 Map of the Arabian Peninsula (Reprinted by Permission of HarperCollins

10.43 Close-up image of “Map of Arabiyah, Misr El Bahri” in Atlante Internazionale,

© koninklijke brill nv, leiden, ��8 | doi 10.1163/9789004236196_002

© koninklijke brill nv, leiden, ��8 | doi 10.1163/9789004236196_003

Hitherto, historians have explained the Gulf Arab rulers’ ever-changing

s urvival strategy in the face of Arabia’s ever-shifting power dynamics. The

Cooperation Council (“gcc”)142 or the League of Arab States,143 has repeatedly

© koninklijke brill nv, leiden, ��8 | doi 10.1163/9789004236196_004

a s overeignty dispute between the competing parties, as well as the respective