Legal Treaties in Force At Site
Both interior and territorial waters are generally defined in respect to the tidal low-water mark by international treaties. However, the incident took place closer to Iranian than Iraqi land above the high-water mark.
The Algiers Agreement, ratified by both nations in 1976, remains in force. It defined the Iran-Iraq international boundary in the Shatt al-Arab by a series of precisely defined turning points closely approximating the 1975 thalweg or deepest channel, ending at point "R". Point "R", at 29°51′16″N 48°44′45″E / 29.85444°N 48.74583°E / 29.85444; 48.74583 (WGS84) is about 8.6 nautical miles (16 km) southeast of the tip of Iraq's Al-Faw peninsula at high tide. Point "R" is where the thalweg in 1975 was adjacent to the furthest point of exposed mud flats at "astronomical lowest low tide." Point "R" thus constitutes the end of the land boundary of the two nations, despite being under water at all but the lowest tides.
According to analysis by the International Boundary Research Unit (IBRU) at the UK's Durham University, the location provided by the Ministry of Defence for the location of the seizure is 1.7 nautical miles (3.1 km) southwest of this Point "R" boundary terminus and 1.6 nautical miles (2.9 km) south of this international boundary line. Thus the university says: "The point lies on the Iraqi side of…the agreed land boundary." This has been challenged by Iran, whose second set of released co-ordinates were inside its waters. But the location provided by the British government is not in disputed territory according to IBRU, which says the boundary is disputed only beyond Point "R" (to the east and southeast). Confirming this, Richard Schofield, an expert in international boundaries at King's College London, stated "Iran and Iraq have never agreed to a boundary of their territorial waters. There is no legal definition of the boundary beyond the Shatt al-Arab."
The Algiers Agreement came into effect after being signed by both states in 1975 and ratified by both states in 1976. Under international law, one state cannot unilaterally reject a previously ratified treaty, and the treaty had no clause providing for abrogation by one state only. A joint commission should conduct a survey of the Shatt al Arab at least every 10 years. No such survey appears to have taken place, so there could be a dispute as to whether the boundary follows the line defined in 1975 or the current thalweg of the river. The IBRU contends that "it would need a dramatic reconfiguration of the coastline marked on current charts for the median line to run to the west of the point" at which MoD has stated the incident occurred, and so be in Iranian waters.
A year after the incident a British MoD investigation report was released which stated that the area in which the incident took place was not covered by any internationally agreed delineation. U.S. forces had defined an operational boundary, but that had not been published to Iran, and Iranian forces crossed this operational boundary an average of 12 times per month. Since the 1975 Algiers Agreement the Shatt al-Arab channel had shifted in favour of Iran, and any Iranian notional boundary was not known to the U.S. coalition. While innocent passage is permitted in each other's waters, boarding and compliance inspections in another state's waters would not be lawful.
Read more about this topic: 2007 Iranian Seizure Of Royal Navy Personnel
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