THE DISPUTE OVER THE SHATT AL-ARAB

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP08C01297R000600010049-4
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 42
• Document Creation Date: December 27, 2016
• Document Release Date: December 11, 2012
• Sequence Number: 49
• Publication Date: January 22, 1960
• Content Type: REPORT

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NED4P-O
-MTh:C. MR'S OFFICE
DEPT. OF STATE
FEB PM 3
---gttlirs-TAC2ZORN
3
Copylo.
Intelligence Report 25xi
No. 8208
THE DISPUTE OVER THE
SHATT AL-ARAB
Fo 1reue71tj,.J
Co
BUREAU OF INTELLIGENCE
AND RESEARCH
January 221 1960 ?
= = =
hTrrrmT
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1960.
This -report is based on information available through January 15,
TABLE OF CONTENTS
Page
Abstract
I. Introduction 1
Treaties and Agreements Relating to the Shatt al-Arab . . 1
A. Treaties and Agreements. 3etween Persia and the Ott-Oman
Empire 1
1. The Treaty of Erzerum of 1847 . ? OOOOOOO 1
2. The Tehran Protocol of 1911 and the Protocol of
Constantinople of 1913 Li
3. The Minutes of the Turco-Persian Frontier Delimi-
tation commission 1913-1914 7
4. The general:Iranian attitude toward treaties . . . .
10
B.
The Treaty of 1937 Between Iran and Iraq
11
1. Events leading up to the conclusion of the Treaty Of
1937
11
2. The stipulations of the 1937 Treaty ,
12
III.
Developments from the Conclusion of the 1937 Treaty to the
Iraqi Revolution of 1958
15
A.
The Question of the Thalweg and of the Additional
Convention
15
B.
The Problem of Pilotage and of River Administration
15
IV.
Developments Since the Iraqi Revolution of 1958 . .
17
A.
The Origin of the Dispute
17
B.
Dispute over Flag and Pilotage Rules
18
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TABLE OF CONTENTS (Cont' d,)
Page
C. The Contentions of the Two Parties in November -
December 1959 .19
V. Evaluation of the Basic Issues Involved 26
A. The Boundary Line in the Shatt al-Arab and its
Implications 26
1. The low water mark as boundary generally 26
2. The low water maTk as boundary in the Shatt al-Arab .28
B. The Shatt al-Arab asan International Waterway 29
1. The problem of free navigation 29
2. The issue of pilotage and of dues 30
3. The importance of the ports on the Shatt al-Arab . . 32
C. The Problem of the Validity of the Treaties Governing
the Shatt al-Arab 33
LIST OF NAPS
1. Iran-Iraq Boundary Along the Shatt al-Arab 36
ii
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Abstract
The dispute over the Shatt al-Arab between Iran and Iraq, which
recently has again become acute, has its roots in the contest for
Mesopotamia between Persia and the Ottoman Empire. The frontier
between these two powers in the Shatt al-Arab region was first defined
in the Treaty of Erzerum of 1847. To Persia this Treaty assigned '
Muhammarah (present day Khorramshahr) and several islands, but apparently
left the river itself under Ottoman sovereignty. In spite of British
and Russian endeavors to achieve a delimitation of the boundary, so as
to stabilize the frontier between the Ottoman Empire and Persia, no
progress was made until 1911, when the two countries agreed on the
establishment of a commission to delimit the boundary on the basis of
the Treaty of Erzerum of 1847. On November 4, 1913 this commission .
signed the so-called Constantinople Protocol, which defined the boundary
in Considerable detail. In 1914 the boundary was delimited on the
ground by a commission consisting of Persian, Turkish, British, and
Russian members. The boundary as then established traced the frontier
at the low-water mark on the left (Persian) bank ? of the Shatt al-Arab ,
with the exception of the Muhammarah region, where the boundary followed/
the thalweg from the ccnfluence of the Karun river and the Shatt al-Arab
to the point where the boundary leaves the Shatt. Muhammarah and a
number of islands in the river were confirmed as being under Persian
sovereignty.
After World War I, in 1919, the British occupation authorities
in Iraq established a Basra Port Authority with jurisdiction over all
of the Shatt al-Arab between Basra and the sea, including pilotage.
Only within harbor limits was pilotage assigned to the harbor masters.
In the inter-war eriod increasin friction _arose between Iraq and Iran
over estion and sill:241E2g in ae ? at al-Arab; is
culminated in a complaint to the League of Nations by Iraq in 1934. In
the debate before the League Council Iran challenged the validity of the
Treaty of Erzerum and cf the Constantinople Protocol. Negotiations
between the parties ensued, and in 1937 they concluded a treaty which
reaffirmed the boundary in the Shatt al-Arab region as established by
the Constantinople Protocol and the Minutes of the boundary commission
of 1914 with the exception of the area off Abadan, where the boundary
was shifted from the low-water mark to the thalweg. This met one of
the main Iranian grievances, namely, that the jetties at Abadan were in
Iraqi waters. The treaty declared that there should be free navigation
for merchant vessels of all countries and stipulated that a convention
should be concluded between the parties dealing with pilotage, collection
of dues, and other questions concerning the administration of the Shatt
al-Arab. Until the conclusion of this convention Iraq was to continue
to be responsible for the administration of the river, including pilotage.
This convention has not been concluded so far and Iraq thus has retained
the right to administer the river.
111
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Negotiations between the two countries for a convention were
attempted at various times after 1937, but they had not led to a
conclusion at the time of the revolution in Iraq in 1958. Although
the new Iraqi regime did not change the regime of the Shatt al-Arabl
the ouster of British personnel from the Basra Port administration
and their partial replacement with Soviet technicians contributed to
Iranian apprehensions about the control of the river by a potentially
hostile regime. The present conflict d around the iroblem
of pilotao.e and t e ranian fla by-vessels bound for
ranian or s a bell as the e use b Iran of its Dort
osrowabad. While shipping actually does not appear to have
Eanered appreciably, the dispute was exacerbated on both sides by
the raising of fundamental issues. However, neither side has
seriously questioned the validity of the 1937 Treaty although Iran
contended that Iraq had, by its activities, abrogated that Treaty.
An abrogation of the Treaty would. hardly benefit either side, since
it would put in doubt not only the location of the boundary, but also
the administration of the river by Iraq and continued freedom of
navigation. Iran has renewed its demands that the boundary be shifted
to the thalweg _along the whole course of the Shatt al-Arab. While the
traeing of the boundary along one shore of a river is not as unique
as Iran contend.::" the thalweg as boundary would be more in accord with
modern international law principles. However, the shift of the boundary
to the thalweg would entail the conclusion of a new Treaty and might be
even more difficult to achieve under present circumstances thanan
implementation of the Treaty of 19:37 relative to the convention on
administration of the Shatt al-Arab.
iv
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THE DIspum OVER THE SHATT AL-ARAB
T. INTRODUCTION ,
In recent months, the latent dispute between Iraq and Iran over
the administration et" the Shatt al-Arab has again become acute. The
reasons for. the latest flare-up lie basically in the reorientation of
Iraqi policy following the revolution of July l41 1958. Iran never
liked the idea that the administration .of.the,river, which is the only
access to its main ports, should be. solely in Iraqi hands and during
the Nuri as-Said regime in Iraq?various_attempts at settlement of this
question were made. Progress was.very slow and no solution had yet
been reached when Nurits-regite was overthrown although negotiations
were then under way. The new Iraqi regime did not change the established
administration of the Shatt- al-Arab. However, the ouster of Bri.,ti,'sh,
personnel from the Basra port administration and theax_mar.tial replace-
ii?t wi ovie echnicians, coupled-with the general anti-Western and
=
hension over the control of_rayigatia al-Arab
wEin was potentia o ilea The most recent disputes have_genteredis
as ave earlier ones, on the issue of pilotage and use of flag. New
elementS-have been added, however, through the use of Khosrowabad on
the Iranian shore by ships ,of the Pan American International Oil
Company, Iranian attempts to force Iraqi certification of Khosrowabad
as a port, and Iraqi te=itorial claims.
II. ? TREATIES AND AGRE=ENTS RELATING TO THE SHATT AL-ARAB
A. Treaties and Agreements Between Persia and the Ottoman Empire.
1. ,- The Treaty of Erzerum of 1847. Since the beginning of the
16th century the border between Persia and the Ottoman Empire had been
the cause of constant disputes andfrequent wars. Various attempts
were made in peace. treaties -which punctuated the disputes to arrive
at a definition of the frontier. The specific - "' of control over
the Shatt al-Arab ? came into rominence in 16 whe 1
and demolished EUhammarah
resent Khorr
t ey eared a it .was ?ecoming a thriving'comMercial sort and would
ea en t e iApor a asra. ran claimed an'indemnity of
L1,10007077-777777777777777rpart, Asserted that both Euhammarah
and Abadan were Turkish 'territory. The British Russian goVernmentsl-
who by then constituted the-predominant?Poreign influence in the ?region,
intervened in the dispute to prevent the outbreak of war, and in the
treaty concluded at Erzerum in 1847 the frontier .between- the Ottoman
Empire and Iran along the Shatt al-Arab was defined in geographical
terms.
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,The pertinent portions, of Article 2 of-that treaty read:-
,
The Ottoman Government formally.
recognizes the unrestricted sovereignty of
the Persian Government over the city and port
of Muhammara, /re sent day Khorramshahr7the
island of Khizr, the anchorage, and the land
on the eastern bank -- that is to say, the
left bank -- of the Shatt al-Arab, which are
in the possession of tribes recocmized as
belonging to Persia. Further, Persian-,
vessels shall have the right to navigate
freely without let or hindrance on the
Shatt al-Arab from the mouth of the same to
the point of contact of the frontiers of the
two Parties.
The provisions of this treaty relating to the Shatt al-Arahl however,
cannot be read without the context. On April 26, 1847 more than a '
month before the signature of the treaty (May 31, 1847), the British
and Russian Ambassadors at Constantinople, representing the mediating
oowers, addressed a note to the Sublime Porte. In this note they
answered certain questions raised by the Porte relating to the
Lnterpretation-ef specific treaty provisions. With regard to the
?rovisions of Article 2 which are pertinent to this discussions, the
note stated:
The anchorage of Huhammara is the port
situate opposite the city of Muhammara in the
Haffar Canal, -and this definition is not
susceptible of any other interpretation.
The, text here used is that of the English translation of the treaty
given by Iraq in its submission to the League of Nations in 1935. The
text contained in the Iranian submission is identical. See League of
Nations Official Journal, February 1935, pp. 197 and 226, In his
?iegislation Ottomane (Constantinople 1874) Aristarchi Bey 'provides a
2rench translation of this treaty from the Tur1ish1Which does not
oontain the words "without let and hindrance." In other regards,
too, this translation differs from the text given above. Khizr is
.7prarently another name for Abadan island. ?
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The undersigned Representatives are
further in agreement with the Ottoman Minister'
in the view that, in ceding to Persia in the
region in question the city, port and anchorage
of Huhammara and the island of Khizr, the
Sublime Porte is not ceding any other
territory or any other ports there may be in
this region.
The undersigned Representatives
further declare that Persia will not be
entitled on any pretext whatsoever to put
forward claims in regard to the regions
situate on the right bank of the Shatt
al-Arab, or to the territory on the left
bank belonging to Turkey, even where Persian
tribes or parts of such-tribes are established
, on the said bank or in the said territory.
The Porte formally, accepted this note and stated that
His Majesty, the Sultan, having complete. .
confidence in the.two Mediating Courts and
in their.Repretentatives, has ordered in the.
exercise of His Sovereign Will that instructions
,should be issued to His, Excellency Enver Effendi,
Plenipotentiary of the Sublime Porte at Erzerum,
to.sign.the draft Treaty submitted by the .
Commissioners of 'the two Mediating Courts ..
without amendment, on the understanding that
the Court of Persia will accept the assurances
which have been given by the Representatives
of the two Mediating Courts to the effect
that it will raise no claim going counterto. .
those assurances, and on the further under-
standing that, in the- event of any such claim:
being raised, the Treaty will be deemed to be
null and void.
. In a note of January 19, 1848, the Persian representative declared
that he "concurred entirely with the explanations given to the Porte by
the Representatives of the two Mediating Powers."' The value of this
acceptance has been put inAuestion by Iran., .During the discussion of
the Shatt al-Arab dispute, before the Council of the League of Nations in
1935 the Iranian Government contended that the Persian representative
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had been authorized by his government-merely to ratify the treaty
consisting of nine articles. Iran claimed that the Persian Government
of the day had not been informed of the exchange of notes between the
Mediating Powers and the Sublime Porte and that the Persian envoy had
accepted the explanatory note upon the urgent request Of the Porte
without authorization and had thereby exceeded "his instructions and
his powers." The Iran ia4 Government argued in 1935 that the Treaty of
Erzerum thus was "ratified without having been accepted."' The Iranian
Government further stated that since the Porte had made acceptance of
the explanatory note an essential condition for.its acceptance of the
treaty and since Persia had not accepted the note, the treaty should
be regarded as "null and void."1
This Iranian.argumentation-As in.line with
on the part of Iran to try to prove 'that:a-treaty Provision is null
and void or had been agreed to under dureSs wheneverit?is felt as
onerous or as counter to the Iranian interests ofthe moment.. It is,
of course, impossible :today to establish, without the use of the
Iranian archives, what, authorization the Iranian envoy actually had in
1848 and whether the. contention of the Iranian Government is correct
that it had no knowledge of the explanatory, note. -Etter) if the Iranian,
contention-is? correct, the further question .might arise as to whether'.
the other party had any reason to suspect. that the envoy was not
empowered to accept the note. .However, there is a patent flaw in the
Iranian argument made. in.1935. :The,Iranian representative' himself
stated before the League of Nationsthat'the Erzerum Treaty with the
explanatory note was accepted by the Iranian Governmentin1912. He
pleaded, however, that-this,Was'done "under the pressureOf-Rassian
influence. "2 The question of thefvalidity-of .the Treaty of Erzerum is
not merely academic, since:that-treaty-constitutes the basicinstrument
on which later agreements have been based.. -
2. The Tehran Protocol of 1911 and the Protocol of Constantinople
2L19112. During the years following the conclusion of the Treaty of
Erzerum disputes concerning the interpretation of that treaty continued
and in spite of endeavors by the two mediating powers the boundary was
not demarcated. Finally, in 1911.111issia and Great Britain prevailed
upon the Ottoman Empire and Persia to establish bases for negotiations
and for the procedure to be followed in the delimitation of the frontier.
This was done in the Tehran Protocol of December)-21; 1911 which stipulated
that a commission consisting of an equal number of delegates of either
I. League.of Nations, Official Journal February 1935, p. 217, see also
p: 121.
p. 113, rlee also 21?)-19.
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party should meet as soon as possible in Constantinople.. The work of
the commission was. to "be based on the clauses of the treaty known as
the Treaty of Erzeruml,concluded in .1263 (1847 A.D.)." The commission
was established and on November 4, 1913 signed the so-called Protocol
of Constantinople. This protocol defined the boundary between the
Ottoman Empire and Iran in great detail. In the Shatt al-Arab area
the boundary was defined as follows:
grom a point between the Nahr-Diaiji and the
Nahr-Abu'l-Arabid the boundarg shall follow
the medium filum aquae of the? Khaiyin canal
as far as the point where the latter joins the
Shatt al-Arab, at the mouth of the Nahr-Nazaileh.
From this point the frontier shall follow the
course of the Shatt al-Arab as far as the sea,
leaving under Ottoman sovereignty the river and
the islands therein, subject to the following
? conditions andexCeptions:
? (a) The following shall belong to Persia: (1)
the island of Muhalla and the two islands
situate between the latter and the left bank
of the Shatt al-Arab (Persian bank of Abadan);
? (2) the four islands between Shetait and
Maawiyeh and the two islands opposite hankuhi
which are both dependencies of the island of
Abadan; (3) any small islands now existing, or
that may be formed which are connected at low
:water with the island of Abadan or with
Persian terra firma below Nahr-Nazaileh.
(b) The modern port and anchorage of Muhammara,
above and below the junction of the river Karun
with the Shatt al-Arab, shall remain within
PerSianAbrisdiction in conformity with the
Treaty of Erzerum; the Ottoman rightof usage
of. this part of the river shall not, however,
be affected thereby, nor shall Persian
jurisdiction extend to the parts of the river
outside the anchorage.
(c) .No change shall be made in the existing
rights, usages and customs as regards fishing
on the Persian bank 'ofthe Shatt al-Arab, the
word "bank" including also the lands connected
with the coast at low water.
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(d) Ottoman jurisdiction shall not extend over
the parts of the Persian coast that may be
temporarily covered by water at high tide or
by other accidental causes. Persian jurisdiction,
on its side, shall not be exercised over lands
that may be temporarily or accidentally uncovered
when the water is below the normal low-water level.
(e) The Sheikh of Muhammara shall continue to
enjoy in conformity with_Ottoman laws his rights
of ownership in Ottoman territory.t.,-
_ ?
In its presentation before the League of Nations in 1935 the-
Iranian Government argued that the 1913 protocol, too, should be -
regarded as invalid. Ndt only -sias it based upon an invalid treaty,
the Iranian Government claimed, but it embodied changes in the
boundaries of Persia which under the Persian constitution required the
consent of the parliament which was not in session from 1911 to 1914.
The Iranian argument was that the Treaty of Erzerum did not actually
state, as did the Protocol of 1913, that the whole river should be
under Ottoman sovereignty. The Iranians interpreted-the clause relating
to navigation without let and hindrance as indicating that the "riparian
states will have an equal right of sovereignty as far as the middle of
the river." This is a doubtful construction, because had sovereignty
been divided or shared, there'yould have been no need to single out-
Iranian vessels in a stipulation relating to free passage. In that
case, one would e:Tect that the ships of both nations mould have been
mentioned, since both Iran and the Ottoman Empire would have been in
a position to interfere with free navigation on the river. If it is
assumed that the river remained under Ottoman sovereignty, the grant
of free navigation to Iranian vessels was a necessary prerequisite to
unhindered Iranian utilization of its ports on the Shatt al-Arab.2 If
it is assumed that the Treaty of Erzerum was validly concluded and if
the 'Protocol of Constantinople is based, as it purports to be, upon
the stipulations of the Treaty of Erzerum, the reqldrement of ratificatial
is doubtful since the Protocol would constitute a delimitation of the
buundary line on the basis of earlier treaties rather than the establis
of a new boundary line changing the territory of Persia. It should be
added that the Protocol of Constantinople did not stipulate any requiremenu
af_ratificatinn.,
1. The Sheikh of Muhammarah was the ruling sheikh of a section of an
Arab Shiah tribe inhabiting this area. In practice administrative
powers were delegated to this sheikh until 1924, when Reza Shah
brought the region under the -control of the central government in
Tehran,
v%ace 'Ialwef, bounuarL, see
pp, :1
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3. The Minutes of the Turco,Persian Frontier Delimitation Commission.
1913-1914. In.. accordance with the Constantinople PrOtocolla quadripartite
commission was formed consisting of British, Russian, Persian and Turkish
Commissioners and their staffs. According to G.E.'Hubbard? the Secretary
of the Commission, the: British and Russian CoMmissgoners were "arbitrating"
rather than "mediating" members ofthe-CoMmission. The first session of
the Commission took place at Muhammarah on January 21, 1914. The Commission
started the delimitation of the frontier from the mouth of the Shatt al-Arab.
According to the Minutes, the frontier doming from the sea touches
the left bank Of the Shatt al-Arab at a point
situated a distance of two miles below tpe fort
belonging at this time to Sheikh Khazaa14....From
this point it follows the low water mark on the left
bank (bank of Abadan) until it reaches the two
islands opposite Manypuhi (hankuhi)3 the outline of
which it follows in such a way as to leave them to
Persia.- It immediately rejoins the low water mark
which it follows up.;to four islands situated between
Monaouie (Maouiye) and Choutait (Chetait). Having
followed the outlines of these islands in such a
manner as to leave them to Persia, it follows again
the low water Mark which it follows up to the island
of Mahalla (Mouhalla) whiCh forms part of the Persian
territory with the two islands.sithated between it
and. the Persian shore. After having followed the
outline of Mahalla following always the same low
water Mark, it reaches the.point where the port and
anchorage of idohammerah begin. This point, actually
known under the name of Toumeidjat is situated at a
distance of 4,650 English feet from the outermost
point of the left bank pf the Karun near its juncture
with the Shatt al-Arab.4
1. G.B. Hubbard, From the Gulf to Ararat (Edinburgh and London, 1916), p. 16.
2. This fort is apparently situated on the Persian shOre across from and
slightly to the south of Fao.
3. This,place cOuld not be located on available maps.
4. Second Session of the Commission, 25 January 1914, Recueil des
Prodes-verbabx -de la Commission de D4iimitatioh de la Fronti.ere
IE.2.52:Lpersane, 1913-1914, p. Text is translated from the
French of the official Minutes. The spelling of names is that of
the Minutes.
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From Touweidjat on the frontier line is
'transferred-to-the medium filym_a92ae of the
Shatt.0, which it falq..qo paseing-between the
Persian shore andthe island having. the name
of Qum er-Rassas in its eastern portion and
of.OuMm el-Khassasif in its western portion.
Having arrived at the eastern entrance of tlae
Jiahrel-Khaiin Which can be identified by ?
means of two brick markers (bearing both the
'number one) erected at the outermost point of
its to shores, the frontier line enters the
Canal and follows it along .the medium alum
_aaaae up to a point situated an approximate
'distance of 400 feet (122 meters) to the west
of the junction of theNahrAboul-Arabid with
the Nahr-el7Khaiin.:
Marker no. 2 has ben placed at this
pqint. From there the frontier line runs
_along the crest of an ancient accumulation
of earth on which the marker's no. 3.and 4 have
been erected, at' a distance of 846 feet (260
meters). and 1,365 feet (42p meters) from the
markers 2 and 3 respectively. The direction
of this line is 23 degrees of the azimuth from
east to north,-
In the "Description of the Frontier" attached to the Minutes,
the boundary along the Shatt is described in terms nearly identical
with those used in the Minutes. On one pointthe Description is more
explicit than the Minutes. It states that at Tuweidjat the frontier
line s transferred in a "direct line to the medium Mum aquae of the
Shatt.," The Description alsostates that from marker no. 4 the line
runs true nOrth up to marker no. 1.2. :In the Description the position
of the. markers is given in terms of,terrain,'as in the Minutes, and,
also in terms of longitude and latitude. .According to recent: Maps,
the longitude and latitude figures appear to_ be inaccurate since they
Third Session of the Commission, 29 January 1914, ibid. p. 13. The
island Oumm er-Rassaf Oumm el-Khassasif is located in the Shatt,
its eastern extremity is near the mouth of the Hafar Channel and it
stretches up riVer from that point. The Nahr-Aboul-Arabid could'
not be located on the available maps.
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would place the markers inland, away from the points on the river banks,
where they are supposed to be situated. .This variance is.probably du.
to a lack of accuracy in the mape used by. the Commission at the time.
.As compared.withthe qonstantinople i'rotocol, the one major
clarification which the Minutes of the Commission provide in the Shatt.
ca-Arab is that of the exact course of thefrontier at Khorramshahr.
The Minutes establish beyond doubt that the boundary there does not
run along the low water mark. Some difficulty is created by the use
in the. Minutes of the term medium filum aquae. This term refers to ?
the median line of a river rather than to the thalweg,that is the
navigable channel, and inmodern usage is generally employed in the
case of rivers Which are not,navigablei? The shipping channel above
Khorramshahr lies between- the island of Um?al-ahasasif (Um-al-Rasas)
and the Iranian shore, Thus, in modern usage, the thalweg-rather than
the median line would form the boundary. . It is. possible that in 1913
and 1914 when the Protocol and the Minutes were drawn up??no clear ?
distinction was made between .median line and thalweg. The boundary
line in the Khorramshahr area does not appear to be in dispute and,
in practice-, the line may actually run along the thalweg or there
may not be a great deal of difference in this rather narrow channel
between thalweg and median line. ? ? ?
1. Hubbard, op.cit., p. 11 relates that the British and the. Russians in
1869 produced a carte identicue of the frontier area ,(reconciling
British and Russian versions of this map) on a scale of one inch to
,a mile. This carte_LIELtiaUe Was used 'by the ComMiseion in their
delimitation of the frontier in this area, see Minutes, p. 10 and
p. 150.
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144---TtL.general Iranian attitude toward treaties. The endeavors
of the Iranian Government to prove,' often:thrOugh devious reaSOrling??
that the various instruments establishing the boundary along the
Shatt al-Arab should be regarded as void are another expression of a
general Iranian attitude toward treaty obligations. This attitude has
its basis:ina doctrine-of the Shiah branch of Islam which is dominant
in Iran, that of t291y.a or dissimulation.. .This doctrine permits the
believer to hide his true' convictions and, if he is confronted by
major force or the risk of serious detriment to.himself, to coMply?,
with mental, reservationswith any request made. Although originally
devised as a defense against religious persecution, this doctrine,
owing to the lack of separation between lavand_religion in:IslaM?
has been extended to fields not regarded as religious in the best, and
has become an inherent feature of the Iranian personality.: By applying
this doctrine to 'the field of international relations it is thus quite
logical for an Iranian to claim that a treaty or agreement concluded -
with or under the influence of a stronger power was entered into
"forcibly" and that: consequently, mental reservations could be made-.
This attitude was, no doubt, reinforced by Iranian feeling that foreign
Powers in the Past :exerted an:undue influence in Iranian affairs.
However, the doctrine of taqivah isnot applied openly: in many
instances it is doubtful_that the Iranians actually thought out their
position in terms of taqivah; they very likely merely followed what has
become an ingrained, traditional attitude. In their argvnentation in
international intercourse, Iranian governments have instead endeavored
to translate this attitude, based on a purely Islamic institution, into
terms of western international law. Since there is no equivalent to
the doctrine of taqivah in modern international law, the arguments
adduced by Iran to prove on various occasions that a treaty or agreement
is void and need not be honored frequently appear tortuous, weak, and
even illogical. This Iranian tendency to rely upon a tradition which is
not part of generally accepted international law and custom, complicates
international relations. In the modern setting such a doctrine, no
matter how ingrained in the national character, can hardly be allowed to
prevail since it would put all of Iran's international obligations under
a cloud. , It can probably be argued that if Iran is ready to participate
in international organizations governed by generally accepted rules of
international law and claim rights under these rules, it must also be-
_expected:to comply with these rules:where its own international obligations
are concerned. In Sunni Islam, 'which is the branch of Islam the Iraqi
GovernMent.Would follow, taqiyahiSIeSS developed, but similar doctrines,
though less ingrained than is taqiyah in Shiah Islam, can lead to similar
results.
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B. The Treat' of.]:22y Between Iran and. Iraq.
1.- EventsleadDtheTlreatof1937. After
World War I Iraq, as the successor state of? the Ottoman Empire in this
region, fell heir to the OttoMan position in .the Shatt al-Arab as defined
in the instruments .discussed above.. Following. World War I, Iraq was under
British mandate ? and the nominally .Iranian shore of the Shatt'al-ArabWas
de facto controlled .by the.Sheikh'of-MthamMarahl.whosesubordination under
the Iranian GOVernment was only nominal. A.proclamation'of-the British
General commanding the army of occupation in Iraq of October 8?.19190 set .
forth regulations for the Port of Basrah. The limits of that port were
defined in detail in a notification issued under the Port of Basrah
Proclamation. According to this notification, the Port Of Basrah included
"the Shatt alArab from the up-River limit, as defined by a stone post, at
the Port of Nahr Umar to the sea." ?. The Port of Basrah authority thus
extended, and still extends, for about. 90 miles upstream .from the mouth
of the Shatt al-Arab,?including?the:Abadan,as well as the. Khorramshahr
area. This state of affairs did not give rise to any difficulties'
immediately following World War I,. since :the Sheikh of Muhammarah, in
whose domain Abadan-islandvith its ?refinery was situated?-also was
virtually under British protection. '
The situation was altered in 1924 when Reza Shah.foilowing an
act of defiance- on the part ofthe Sheikh of Muhammarah, ousted the .
Sheikh and brought t*,latterl-domaih'under direct Iranian control.
Subsequently, incidents in the Shatt al-Arab occurred? quite frequently.
The. situation was,actuaIlydifficult, partitularly as Abadan asSumed
increasing importance... ?Abadan? was undisputed Iranian territory, in
theory, before the Sheikh of Muhammarahts elimination and, in fact,
since that event. However, the jetties of Abadan projected into Iraqi.
waters and ships could take on oil-at.Abadan4rom?these?jetties.without
the permission of the. Iranian Government. Iranian-Iraqi relations were
marred during this period also by incidents along other parts of the
frontier, but the Shatt al-,Arab remained a.canstant source of dispute
as Iran sought to assert broader rights to the river and Iraq endeavored
to maintain the status quo, which gave it distinct. advantages in the
control of the river.. Finally, in 1934 the. Government of Iraq appealed
to the League of Nations under Article. 11, paragraph. 2. of the Covenant.
The League Council-heard the Iraqi and Iranian case on January 14 and
15, 1935 and appointed the Italian representative,. Baron .Aloisil? as
rapporteur. His. endeavors at conciliation did not have any immediate
effect, but the two parties were induced to settle their differences
because of Mussolini's expansionist policies., which in. the Middle East
area, eventually ledto the conclusion of the Saadabad Pact.
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2. Th 6 stillilations of the 122,7'1_1reatz. The treaty between Iraq
and Iran was concluded on July 1937. Article I recognized the
validity of the Irano-Turkish protocol of 1913 and of theMnutes of
the Delimitation Commission of 1914 and stated that the boundary
between the two countries should be as delimited and demarcated by
the Commission except as otherwise provided by this Treaty. One of the
,new provisions concerned the'Shatt al-Arab region. Article 2 of the
' Treaty provided:1
? Uhen the frontier line arrives at the
outermost point of Shutait island (approximately
500 17' 25" North latitude, 48? 19' 28" East
longitude) it joins in a perpendicular line from
the limit of low water the thalweg of the Shatt
al-Arab which it follows as far as a point
situated across from the present jetty no. 1
of Abadan (apProximately 30? 20' 8.4" North
latitude, 48u 16' 13" East longitude). From
that point the frontier line runs again along
, the low water mark and follows the line of the
-frontier as described in the minutes of 1914.
Article 3 of the Treatyprovided:forlthe,establishment of a coMmission to
.setup.boundary.M4rkers... Navigation on the Shatt,was dealt with in
- ,
Articles 4.and5., .
? ,
Article L.'The .provisions which follow
shall be applicable to the.Shatt al-!Arab from
the point where the 'land boundary -between the.
two coUntries enters the said river .up to the
high seas:
a.',The Shatt'alArabshall-remain open
:in equal fashion tartherohant.vesselsof all
countries..' All dues c011ectecLehall be:in the
nature of payments for services rendered and
shall bedevotad exclusively tothe coverage
in an equitable manner of the costs,of:upkeep,:
1. The treaty was written in french,. Persian and Arabic. In case of
dispute the French text governs. All tests can be found in League
of Nations, Treaty Series vol. 190 (1938) pp. 242-55. The above
translation is based on the French text. An Laiglish translation
contained Ibid.-pp. 256-58 was utilized.
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maintenance of. navigability or the improvement
of the navigable channel of access to the Shatt
al-Arab.from the, sea, or to defray expenses
incurred in the interest of navigation. The
said dues shall be calculated on the basis of
the official tonnage of the vessels or of their
-displacement or both.
b. The Shatt al-Arab shall remain open
for the passage of warships and other non-
commercial vessels of the High Contracting
Parties.
The fact that in the Shatt al-Arab
:the frontier line sometimes follows the low
water mark, and sometimes the thalweg or
Medium filurn, shall not prejudice,
in any way the right of the High Contracting
. Parties to Utilize the entire course of the
river.
Artiale.5. The two High Contracting
Parties having .a common interest in the
navigation in the Shatt al-Arab as defined in
Article 4 of the present Treaty, undertake
to conclude a convention concerning the.
upkeep and improvement .of the navigable
channel, dredging, pilotage, dues to be
collected', health measures, measures to
be taken :to prevent smuggling, as well as
all other questions poncerning the ?
navigation in the Shatt al-Arab as defined ?
in Article 4 of the present Treaty.
A protocol which wasappended to the Treaty provided for
establishment of a commission of experts to establish definitively
the coordinates mentioned in Article 2. .The protocol further obligated
the two countries to conclude the convention mentioned in Article 5
within a year from the date on which the treaty entered into force.
The term could be extended by. parties. The Iranian Government
agreed that during the ,one year period and. any extension thereof, the
Government of Iraq should regulate, on the then - eXisting basis, the
questions which were to be regulated by the convention. The Government
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..of Iraq undertook to inform the Iranian Government every half year of
uorkS undertaken in the Shatt, of dues collected, expenses paid, and
of all other measures taken. Article 3 of the protocol provided that
either government could give permission to foreign warships and other
non-commercial vessels to enter its ports situated on the Shatt al-Arab.
This permission was to be regarded as having been given by both parties
and entitled the vessel to navigate in the waters of either country.
The government giving permission has the duty to inform the other
government.
The Treaty between Iraq and Iran thus maintained the frontier on
the Shatt al-Arab as it had been established by the Treaty of Erzerum
and by the Constantinople Protocol, deviating only in the Abadan region.
There the boundary line was shifted to thethalweg' obviously to meet
Iranian complaints concerning the location of jetties in Iraqi waters.
Another important feature of the 1937 Treaty is the stipulation of free
navigation. This was extended beyond the terms of the Erzerum Treaty.
Under the 1937 Treaty the Shatt al-Arab thus was treated as a navigable
international river with navigation free to the merchant vessels of all
nations. The navigation -of warships, and other non-commercial vessels is
free to such ships belonging to the two .parties; with regard to the
warships of third powers it is dependent only on the permission of one
of the two parties. The other party has a right to be informed, but
has no,right to veto such permission. In general, these provisions and
those relating to dues are in accord with the stipulations contained in
the matilateral Convention and Aatute on the Regime of Navigable
Waterways of International Concern signed at Barcelona on April 20, 1921,
to which, however, neither Iran nor Iraq is 'a party.
It might be mentioned that during the negotiations for the 1937
Treaty, a coup dtetat took place in Iraq in 1936 which brought to power
General Bakr Sidqi. However, the new government continued negotiations
and carried them to a? final conclusion. ,
. The,Protocol annexed to the 1937-Trea1k'appears to equate the terms
thalweg and medium filum aquae (median line).
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DEVELOPIENTS FROM THE'CONCLUION OF THE 1937 TREATY
TO THE IRAQI REVOLUTION .CF 1958
.117he_Question:bi the ThalWeg and of.the Additional Convention.
The Treaty of 1937 attempted to settle permanently the dispute
over, the boundary line along the Shatt al-Arab. However, the compromise
which had been reached had actually satisfied Iranian demands only with
regard to a very small section of the river. The Iranians continued to
feel that it was iniquitous that so much of the boundary should be on
the Iranian bank of the river and not along the thalweg. Thus, in 1954
the Iranian Foreign Minister stated to the American Ambassador that the
Iranian Government had agreed temporarily in the 19301s under British
pressure that the eastern bank of the Shatt al-Arab should be the
boundary, but that such a solution could not be permanent. This point
of view was, of course, not admitted by the Iraqis, to whom control of
the river meant insurance of access to their main port, Basra, which
lies upstream from Abadan and Khorramshahr. Talks between the
Iranians and the Iraqis concerning the boundary and navigation on the
Shatt al-Arab were held on various occasions and the two governments
even progressed so far, as to agree on the appointment of a neutral
expert. However, no final determination of the problem had been
reached when the Iraqi revolution of July 11., 1958 intervened.
The pxoblem of navigation on the Shatt al-Arab was at least as
difficult to settle for the two governments as the problem of the
boundary line. The 1937 Treaty had not even attempted a final
determination of the problem, but had left the settlement to a
subsidiary convention to be concluded within a year. This convention
was never entered into and the administration of the river remained
exclusively in Iraqi hands.
B. The Problem of Pilotage and of River Administration.
Under the Port of Basra Proclamation of 1919 and the Port of
Basra Rules and By-laws the jurisdiction:,Ort4e:Basra Port Authority
extendsonab6ve Basra to the sea, thup,includingttleareas pkthe
Shatt a14Arab'-where the Iranian ports are situated. Pilotage by
pilots of the port authority is compulsory within the limits of the
port of Basra. Exempted from pilotage are only native sailing craft,
Ships belonging to the government of Iraq, ships of Her Britannic
Majesty in commission, ships of war of any state which is a member of
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the UN (which would, of course, include Iran) or which enjoys-the same
rights as a member of the UN, shipping exclusively engaged in military
traffic in connection with arthod forces maintained in Iraq by the Iraqi
Government or the British Government, and any other ships or classes of
ships as may from time ta:time be exempted by international usage, or
by any treaty, convention' or agreement to which the Iraqi Government'
is a party)- Iranian commercial vessels, thus, do not appear to be
exempt from pilotage requirements unless any of them falls in the r
general category of ships exempt from compulsory pilotage by treaty.
or international usage.. In practice, at least small-Iranian craft
appear to have been exempted from pilotage requirements. In spite of
the change of government in Iraq, official British vessels appear still
to be exempted from pilotage.
This state Of affairs has been galling to the Iranian's, of
course, and their endeavbrs to achieve a change of the boundary line.
to the thalweg has probably always been motivated to a considerable
degree by the desire to obtain an equal voice with Iraq in the
administration of the river, including pilotage and collection of
dues. The 1937 Treaty did not dothat., Mbst of the Shatt al-,Arab
was left in the status of Iraqi internal waters. Thus, even if the:
convention envisaged by that Treaty were concluded, it would. still
not provide the Iranian Government with that equality' of legal status
which it apparently:has been seeking.
1. This enumeration is based upon.Port,of Basra, Marine Schedule Of
Dues and Charges, 11th edition (brought up to date to April 1, 1952).
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IV, DEVELCPMENTS SINCE _T} IRAQI REVOLUTION 07 1958
A. The Orilip of the
, The long-standing .uneasinestl% of the. Zraniati Government over the
.situation tegatding. the,.Shatt ,al-Arab was increased considerably : with
. the overthrow of. the- monarchy inTi-64 tn, 1958. Mine Iraq had a
conservative jregime an d.was a member Of the then Baghdad Pact, there ,
was. some ,chance that an amicable, settlement ,would, in time, be reached,
Which ,w0tad improve , the position of Iran ?with : regard to :the Shatt
Theelliettence. of a neutralist repUblicanregime, which .,withdrew
from. the Baghdad PaCt?,allowed?COMmunist influence to grow, ,,Sheltered.
Tudeh leaden. and 'accepted :extensive Soviet economic and arms aid, put
the, whole ..Shatt into ctn engrely new light from the
Iranian -point of view. ?I:Che Basta Port Authority was n,o longet,under .
...
'British management, and the chances that the Authority .would use Bloc
technicians and possibly Bloc pilots Were very Considerable'. In
,
general, the idea that the river Providing,access'to,the imPortant.
'Iranian ports of Abadan and Khorramshahr Was wholly,Within.the
'Iterritory of :,a Potentially hostile etatewas.dipturbingto the Iranian
.1 S
Government.'
?
?Various happenings soon confirmed and increased Iranian
apprehensions. British and pre-revolution Iraqi pilots were
dismissed and replaced by pilots loyal to the new Iraqi regime.
Some Soviet technicians were employed by. the Basra Port Authority.
Also, there were instances when incoming foreign vessels were searched
for arms by Iraqi soldiers. HoWever,' the situation did not reach an
acute stage until May. 1959, when the Pan American International Oil
Company, a subsidiary of Standard Oil Company. (Indiana), leased the
former Anglo-Iranian Oil Company terminal at Khosrowabad, twelve miles
below Abadan on the Shatt al-Arab, as a base for operations in the
Iranian offshore area where Pan Amefoisan International Oil Company
holds a concession. Khosrowabad had, at one; time, been listed as 1
an official Shatt port, but this was no longer the case in May 1959,
'hen requested to redesignate Khosrowabad as a port the Basra Port
Authority raised a number of technical objections which were not,
however, sustained by maritime experts ,on the spot. --Iraqi pilots
refused to take Pan American vessels to khosrowabad, and as the
conflict developed, Iran complained about Iraqi interference with
Iranian river craft.
1, See below p..2b note 1
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B. Dispute over Flag and Pilotage Rules
In July.19590 the Iranian Government addressed a note to Iraq.
suggesting that a joint commission be named to deal with the use of
the Shatt al-Arab, and that permission. be granted for reasonable:use
of the Khosrowbacipert facilities.- In August, Tehran requested all
shipping bound for Iranian ports in: the Shatt al-Arab to fly the
Iranianflag from 12 miles out tooteay since Iranian territorial
waters extended twelve miles. This directive was in direct Conflict
with Iraqi instructions that vessels fly the Iraqi flag while passing
through Shatt waters. Iranian policy Concerning- the flying of the ?
Iranian flag was laid down in detail in a meeting of Iranian Government
officials on September 8, 1959 The Ministry of Customs and Monopolies
was directed to notify all navigation agencies and firto that in the
future all vessels entering the Shatt al-Arab bound for Iranian ports
or outbound from Iranian Ports were to fly the Iranian flag. In case
of obstruction or molestation by Iraqi. officials; the Masters were to
inform,the-Iranian port authorities and guard units in the.Shatt.a1-7-'
Arab in order to call for protection by the Iranian Navy. If Iraqi.:
pilots, refused to take Ships to Iranian ports, Iranian pilots and
naval escort would be provided. No. vessels violating the Iranian
instructions were to be allowed to enter Iranian porte to load or
unloadcargeo....
-In-the,past; no hard,and-fast.rules had been established by
either side ...concerning the?flying.of flags in the Shatt'aL-Arab.
According to information received from. Iranian authorities; foreign
shipping bound:for Iranian ports generally flew. the Iraqi flag at
fore while the. Iraqi pilot was on board. When the shippassed. under ?
the control of the Harbor Master of Khorramshahr or Abadan, the Iranian...
flag was .hoisted.."- --Ships outbound from the Iranian ports lowered the' -
Iranian flag andhoisted the Iraqi flag as soon as the ship was under _
way. Some inbound- ships flew the Iranian flag at the outer bar, while
awaiting-the?arrival of the pilot, to indicate the port of destination.
Occasionally, ships bound for Iranian ports flew the Iranian flag all
the way up river, but they were exceptions to the general rule.. Until
Iran issued its directive, the flag problem apparently had not been ?
prominent, although- Iraqi pilots. from time to time ordered the Iranian
flag lowered and the Iraqiflag hoieted. After the. Iranian directive,
1. According to the Port of Basra rules, pilotage inside harbor limits
is conducted by the Harbor Masters, not by Port Authority Pilots,
Harbor limits, to be distinguished from the Port of Basra limits,
are also defined in the rules.
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?
difficulties did arise and some ships were actually blacklisted by Iran.
Some ships elected to fly both flags, a procedure which seems to have
been acceptable to both parties.
There are no general rules in international law governing the use
of the flag of'the local state by foreign vessels in internal waters.
As a recent British study has pointed out, the practice varies with regard
to individual international rivers. For example, on the Scheldt, which
provides the only access to the Belgian port of Antwerp through Dutch
waters, no flag is flown until the vessel is within the precincts of
the port 'of Antwerp. On the Rhine, vessels bound for German river ports
fly the Dutch flag while in Dutch territory and change- to the German
flag at the German customs point. Since most of the Shatt al-Arab is
Iraqi internal waters, Iraq probably has a better case than Iran with
regard to a demand that vessels in the Shatt al-Arab fly its flag.
There is nothing in the1937 Treaty regarding the flying of either the
Iranian or the Iraqi flag, nor does there appear to be any provision
relating to this question in the port rules. If acceptable to both
countries, the practice of flying both flags might be one way of
neutralizing this issue which, while of little practical importance,
can assume a considerable prestige value uuring times of tension and
dispute
In spite of these moves, tension appeared to ease in the early fall
of 1959. The Iranian instructions concerning the flying of the flag arid
pilotage were not rigidly enforced. The Iranian Government also appareltly
inforned the Iraqi Government that it ?would not object to the use of both
flags and that it would like to ?commence negotiations with the object of
establishing an equal Iranian voice in matters concerning the Shatt al-Arabs
confirming the right to use Khosrowabad; establishing the right of vesselc3
to fly the Iranian flag on the Shatt al-Arab; and settling the problem
of the right of Iranian small craft:to ply back and forth on the Shatt
al-Arab without Iraqi interference. However, because of the disorganization
of the Iraqi Government, no negotiations resulted.
C. The Contentions of the Two -Parties in, November - December 1959
? Although no serious incidents occurred in the river, the dispute
became more bitter late in 1959, as shown .in statements made by the
Shah of Iran., by Prime Minieter,gasim? and by other official spokesmen
of the two countries. Ina press conference on November 28,. the Shah
stressed his?countryts 'desire for friendly relations with:Irach but
accused the Iraqi Government of not observing _agreements made between
the two governments With regard to the Shatt and added:,
1. This would... of :coarse on1:7, apply to ships bound for Iranian ports
on the, Shatt.
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...Vhere a river is a common frontier between
two countries, it cannot be unilaterally
Utilized, or come under unilateral sovereignty.
How can Iran give up a right recognized by all
the nations of the world? cannot entertain
Iraq's colonial policy in this connection.
On December 2, Prime hinister Qasim in a press conference likewise
, expressed his hope that the dispute with Iran could be solved peacefull
However, for the first time he injected a territorial claim into the
quarrel- He stated:
In the pastiiin 1937 or 1936, when the
then government of the late Bakr Sidqi and
brethren in the revolUtion was in power, at
that time strong pressure was exerted against
the Iraqi Government, which needed funds, and
neighbor Iran was granted about five kilometers
-(of our) Shatt al-Arab; this was a grant a/ui
not an agreed right.
These five kilometers-in.the-area of
Abadan, were exploited by the oil companies,
the same companies which at that time refused
Ito. pay royalties to Iraq. Since Iraq was
under pressure,at that time it granted this
area to the Iranian Government which had no
rights over it4c,:-The grant was given to Iran
under pressure ,with the hope that the border
problem between us and Iran might 'be solved.
The problems of good neighborhood and other
border problems. (sic) These borders and
these problems have EC) far?not'been solved.
If they are not solved in.the -ftture, me
shall be absolved from this ':grant and shall
-restore it to the motherland.
70
In.these remarks Qatim was obviotsly referring to the Treaty of
1937 and to the area which was assigned to Iran by moving the frontier
to the thalweg In the Abadan region. , It is interesting that Qatim? as
the Iranians had done onother occasions, alto uses the argument of
foreign pressureto claim that 4a treaty provision considered onerous by
him was invalid. It is, of course, true that the ,UK in 1937 was -
interested in a settlement of the Shatt al,-Arab controversy. The Anglo-
Iranian 07:.1 Company (present-day British Petroleum Company), in which
thn British Government holds a majority interest, had a direct stake in
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the settlement ofethe bethdary line in the Abadan region, because it
involved unimpeded access to the jetties at Abadan. Furthermore, the
expansionist policy of Italy in Africa alarmed the small nations of
the Middle East, and in order to allow them to come to a Multilateral
agreement (which was consummated in the Sdadabad Pact), points of
friction between individual cOuntries had to be removed. 'While the
UK thus no doubt desired the peaceful settlement of a dispute between
two countries in which it had important interests, there does not appear
to be any indication of undue British pressure. Besides, a claim that
a treaty should be regarded as void because of "duress" on the part of
a third power is always difficult to establish. It is likely that
Qasim in this instance, as the Iranians on similar occasions, actually
did not think in terms of Western international law, but made his claims
on the basis of Islamic doctrines and the general feeling that everything
that happened in the ,past and that was regarded by his regime as un-
favorable to Iraq must have been done under foreign pressure.
The argument that the cession of the strip in the Abadan region
was "a grant" and not an "agreed right!' is difficult to understand.
From the text of the treaty it certainly appears. that the boundary along
the thalweg at Abadan was as much agreed upon between the two parties
as was the botndary line elsewhere.: It was no doubt a concession on
the part of Iraq,. but, as far as can be gathered, Iraqi agreement to
the shifting of the boundary to the thalweg off Abadan was the result
of a compromise under which Iran in turn agreed to have the boundary .
remain at the low water mark in other parts of the Shatt al-Arab.
Qasim's threat that Iraq: would regard itself-as "absolved from this
grant and all restore it to the motherland" unless the boundary
problems are solved, might actually: be bad tactics on the part of Iraq.
If the: Treaty of 1937 were declared void, Iraq could. claim that matters
should return to the status of 1913, that is that the boundary should.
be traced along the low meter mark also at. Abadan. However, such a
move would- make it much easier for Iran to reopen the whole case and
again advance the arguments, used in 1935, that the 1913 protocol and
the instruments mhich preceded it should also be regarded as void.
Also, Iran wotld, be in a much. better position to challenge continued
Iraqi administration of the Shatt al-Arab.
The Iranian Foreign Minister replied to Qasim's statement in the
Iranian Majlis on December 10, 1959. The Foreign Minister went all the
way back to the Treaty of Zuhab of May 17, 1639 which was the first treaty
to deal with Iran's western frontier without, however, defining it in detail.
This treaty was reaffirmed by later treaties, but as mentioned before, it
was not untilthe _Treaty of Erzertm of 1847 that the -boundary between Persia
and the Ottoman Empire along the Shatt al-Arab was defined.
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The::FOreign:Minister:claimed that the OttbMan Government BrecogniZed
the comMOn,soVereignty of Iran on the Shatt al-Arab" and that "this
policy continued until the endof.Norld liar I. .In support of this
claim, Foreign Minister Aram quoted a passage from a book "Iran" by
ISir4.rnOld Wilson "the British representative" on the 1913 Demarcation
ComMissioni Aram may here be referring to Sir Arnold lson's book.
SPereia, (London, 1942). Sir Arnold Wilson was a member Of the -
boundary CommiSsiOn of 1913-1914 as British Deputy Commissionary. in
this book, IfillSon asserts that:
For ,over fifty years the frontier (in the
Shatt al-Arab) had been held to run down the
Middle of the main Channel, the MediUm
fflum:acuae or thalweg; this inte7pretation
was not entirely consistent with the wording
of the Treaty of Erzertm but was a modus
vivendi of long standing. The sovereignty of
SoMe islands was diiputed?for the main stream::
had changed- its coarse since 1869 The right
? of the Persian Government to control navigation
Was denied, probably upon good legal grounds;
but modern steaMships could not lie as of old
Th'.41-the mouth of the Karun opposite 14ohammerah.
They had to anchor in the mainstream and thus
de :jure in Turkish waters.
Sir. Arnold Wilson -goes on to say that the growth of Abadan and the .size
:Of tneOCean-going vessels of the time, which required dredging of the
bar of the ,Shatt alLArab,made it necessary to Settle the various
questionirelating to control of the Shatt. He relates that the final
settlement arranged by him and Sir Percy Cox left the river itself to-
the low water Mark in Ottoman hands; except for the anchorages at
4badanand;EthaMmarah.1:-.There is Some 'other evidence to indicate that
locaiiythe thalweg was generally regarded as the dividing line between
the two countries, even though this may'ribt have beer in full, accord
with. the legal sittation.2 However, all available evidence shows that in
Pp,. 271-72.
2, See Gooch. and:Temperley, British Documents on the OriFin of the War
1898-1914.,' vol. 10., part 2; p. 86; See also below pw;:.29.
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the 1913 protocol the low water mark was, established as the official
boundary)- Araimthus appears to be in error if he claims that the
boundary remained the thalweg until the end of World "War I.
Foreign Minister Aram also discussed, at some length the Treaty
of 1937 stressing that Iran signed the Treaty even though it did not
protect all its legitimate rights and interests,out of a:spirit of
conciliation. He rejected Qasim's claim concerning the '"grant" of the
territory off Abadan and stated that the Treaty recognized "equal rights
for Iran and Iraq in connection with shipping and manageMent of the
Shatt al-Arab." Aram stressed that although 22 years had elapsed since
the conclusion of the Treaty, the ancillarT conventiOn had not been
concluded and he complained that Iraq alone collected the fees on the
river, in spite of the fact that 75% of the shipping was destined for
Iranian ports and that less than half of the fees Collected were spent
by Iraq on the maintenance of the river. ,In closing, Aram maintained
that "nowhere else in the world does a similar situation-exist in which
a navigable river as great as the Shatt al-Arab runs along a border
Where one country alone has the right to manage the river and enjoy its
revenues" He emphasized that "Iran will not accept any border ofAhe ?
Shatt al-Arab as compatible with the principles of international law- ,
except the thalweg.". This seems to indicate that Iran would nOt be
satisfied with a'regulation of navigation, pilotage, and other ibsues
in a convention as foreseen by the 1937 Treaty, but would wish to reOpen
the quebtion of the position of the boundary, which of courSel-Would
amount to a revision rather than an implementation Of the Treaty of 1937.
The speech by Foreign Minister Aram was answered by a long
statement by an Iraqi Foreign Office spokesman on December 16.,,-1959
in which the spokesman again traced the history' of the Shatt al-Arab
dispute and tried to refute.Iranis contentions. With regard to
Khosrowabad and the river boundary, the spokesman declared:
1. G.E. Hubbard, From the Gulf to Ararat (Edinburgh and London, 1916),
describes the actual,delimitation of the frontier on the 'ground in
which he participated as secretary to the commission. He states
(p.46):: "the frontier follows the left bank of the Shatt, so that
all that had to be done was to fix the point where it first strikes
the shore from seaward and settle the case of a few Small islands
near the Persian bank." No difficulties thus appear to have arisen
in fixing the boundary on the left bank. See also the Minutes of
the Delimitation Commission, above pp. 7-9.
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From the legal point of view, the Iraqi Government
explainedl the Iraqi boundaries intheShatt
al-Arab e:Aend to the lowest water level on the
Iranian shote in accordance with the boundary
protocols, with the limited exceptions in the
,port of Khotramshahr and the port of .Abadan,
where the Iraqi Government had granted the
Iranian Government the right to Use the:Shatt
al-Arab as'far as the Middle of its channels.
Iraq's boundaries in the Khosrowabad area
.include all the Shatt al-Arab waters as fat as
the lowest water level on the Iranian shore..
Thus Without the consent of Iraq no Iranian.
port :ctiad be eStabliShed in this. area,
because its waters are Iraqi territorial
waters (sit: it Should bellinternal waters")
falling within Itaai'Sovereignty.
'While it is true that the boundary at Khosrowabad is at low water mark,
-Khosrowabad has been used as a harbor until four or five years agol and
-its,reuse would not constitute the establishment of a new port. Except
for the need. of redesignation by the Basra Port Authotity? no Iraqi
agreement would appear to be needed to formally bring the. harbor back
-intouse.:, The jetties at Khosrowabad -do extend. into Iraqi waters. In
this respect, the situation is parallel to that at Abadan before the
193.7 Treaty..
The. Iraqispokesman also declared that the Ottoman Government in
1913 "condeded to Iran the, port of Muhammatah,-which is part of Iraq?
because: of its. desire to end the dispute." ThiS is,not in. accordance.
with-facts as the "city and port of Muhammara" (Khorramshahr) were
recognized,by the Ottnman Empire as being under the "unrestricted
sovereignty" of Persia in the Treaty of Erzerum of 1847. There is some
indication that the area of MUhammarah was a dependency of Basra in the
:seventeenth century, but it is unlikely that a claim going back beyond
AheYTreaty of Erzerum of 1841.couldbe seriously entertained. In a
In the Port of Basra, Port Rules and By-Laws 1942, pp. 1, 31-36,
(this is' the latest edition)Kabda-(or Khosrowabad) is listed as
a harbor. It is also listed as an "oil terminal connected with
Abadan by pipeline" whith is Used "to avoid-congestion" at Abadan
in'US_Navy Hydrographic Office, Sailing Directions for the Persian.
Gulf, Fourth edition, 195., as amended 1956,:.845.
-
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25?
speech'on December 23, Prime MihiSter lasim stressed Iraq's desire to
settle the dispute peacefully, possibly through resort to the ON. At
the same time, he accused the Iranian Government of aggression and .
appealed directly to the "Iranian people" Statements by Qasim and
Iraqi Foreign Minister Jawad on,December 29, also were rather conciliatory
in tone. Jawad stressed particularly IraqIS desire-to settle disPutes by
peaceful means and to abide by and respect treaties and agreements. No
further mention was madeofrany Iraqi claim that the. boundary should be
rectified.
On japuary 3, 1960 the. Iranian.Foreign Ministry issued a lengthy
statement dealing in detail with endeavOrs claimed to have been made by
the Iranian Government to negotiate with Iraq the convention envisaged
by the 1937 Treaty It is interesting to note. that the validity of
the 1937 is not questionsd in any way. :The statement is, of course,
written froM the Iranian point of view -trying to Put .all the blame for
the non-conclusion of the convention on Iraq and detailing the "aggressions"
committed by the Iraqi regime against Iran during" the present dispute.
With regard to the thalweg as boundary it is stated that:
It is an open secret that the principles of
international law and international justice
and-equity required that provision :should
have been made in the 1937 Treaty for the
thalweg to become the basis for determining
the border of the two countries throughout
the Shatt.al-Arab and not only before Abadan.
The statement ends with the assertion that:
the Iranian Government does not regard any
criterion or standard except the thalweg as
conforming to international principles and
law, and international justice and equity,
for the determination of its boundary line
in the Shatt al-Arab.
Thus, the Iranian Government appears to continuej,diinsist thatthe
boundary line should be shifted, to the -thalweg, at the same time it
acknowledges, however, at least implicitly, that the boundary is not
now the thalweg. While rather uncompromising,this latest Iranian
statement was not menacing in tone and taken together with the
conciliatory Iraqi statements might indicate the beginning of some
relaxation of tension and a willingness of both sides to have the -
dispute settled by peaceful means.
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. V. ,EVALUATI0N..0F.THE BASIC ISSUES INVOLVED -
_
A. Thf_poundary Line in the Shatt al-Arab and its Implications
rt...????*;?.,*.???????????+
1.. The law wp.ter mark as boundary generally. The Iranian Government
has from time to time contended, meat recently in Foreign hinister Aram
speech of December; 10 and in the Foreign Ministry statement of January
3, that fixing the boundary on the left bank of the Shatt al-Arab was an*,
anomaly,. It is true that, as a rule, in navigable rivers which form the
boundary betwemo two countries the line is traced along the middle of
the so-called thalWeg. The thalweg is usually defined as the mrigable-'
channel of 4 riVere However, the tracing of a frontier line along One
bank of a river, even a navjgable one, is not unknown. For example, to
the Treaty of Friepdship, Ceon of thc Floridao, and Boundaries between
the United States and Spain of February 22, 1819? Article 3 states:
The boundary line between the two
countries shall begin on the Gulph (sic) of
Mexico, at the mouth of the river Sabine, in
the sea, continuing north, along the Western
bank of that river....thence following the
course of the southern bank of the Wrkansas...
Ail the islands in the Sabine, and the said
Rea and Arkansas Rivers, throughout the course
thus described, to belong to the United States,
but the use of the waters and the navigation of
the Sabine to the sea, and of the said rivers
Roxo (Red River) and Arkansas, throughout the -
extent of the said boundaryl,on their respective ,
banks,' shall be common to the'repective
inhabitants of both nations.
Lu 1933 the special boundary tribunal arbitrating a boundary conflict
between Honduras and Guatemala fixed part of the, boundary on the basis
of "priority of settlement" along the mean high water mark on the right
bank of, the Tinto River and from the point of cofluence of that river
with the Motagua River on the right bank of that river to its.-Mouth.-4.--
Cf some 'interest in the present discussion, is also a case decided by
the US Supreme Court in 1820.2 Involved in this case was the boundary
1. United Nations, Heoorts of International Arbitral Awards,'vol.2,
pp. 1362, see also .American Journal of International Lad% vol. 27
(1933), pp. 403-427.
%, PITendlcTts LaFcce v. A.;Ithony," Jr:i.tea Sw.,,mt-r9 Court
. .
vra p 3'7),
}
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between Kentucky and Indiana in an area along the Ohio River which had
been ceded to the United States by Virginia. In delivering the opinion
of the Court Chief Justice Marshall stated:
When a great river is the boundary between
two nations or states, if the original property
is in neither, and there. be no convention
respecting it, each holds to the middle of
the stream. But when, as in this case, one
state is the original proprietor, and when
it grants the territory on one side only,
it retains the river within its own domains,
and the newly created state extends to the
river only. The river, however, is its
boundary.
A somewhat similar reasoning might be applied to the Shatt al-Arab
situation at the time of the Treaty of Erzerum. The Ottoman Empire
apparently had some claim to the area on the left bank of the Shatt
al-Arab and it could be argued that in recognizing the Persian
sovereignty over Huhammarah and neighboring territory.; the Ottoman
Empire wished to restrict the cession of territory to as narrow
limits as possible.i:
Among European examples, roughly contemporaneous to the Treaty
of Erzerum, where the boundary followed one bank of a river rather than
the median line or the thalweg to may be cited. One is the Treaty of
Warsaw between Prussia and Poland of September 18, 1773 whose Article ,2
traced part of the frontier between the two' countries along the Netze
River, leaving all of the river to Prussia.' Another, the Trea.:7 of
Peace of Adrianople between Russia and the Ottoman Empire of Septembez
14, 1829, provides in Article 3 that along the Danube the bounijary
between the two parties shall be on the right or Ottoman bank. This
case appears particularly interesting since it involves the Ottoman impire
and also deals with one of the large navigable rivers of the world.
1. See below p. 26----------
2. Martens, Recueil. de Traites, 2nd edition, pp. 149-159.
3. British and ForeignStq.,ILLPers,. Vol. ?16., pp. 647-54A
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"28
Placing ,the boundary between two countries on one bank of a river
rather than along the median line or -the thalweg -is thus not very commors
but a number of examples can be cited and the Shatt al-Arab situation is
by. no means ,unique. Under modern conditions and in the specific
circumstances of the Shatt al-Arab, it might perhaps be considered de-
sirable V have the boundary line shifted eventually to the thalweg.
This would avoid difficulties of the kind' which arose concerning Abadan
before the 1937 Treaty was concluded and which might now involve
Khosrawabad. -However., this would involve changingexisting treaty
provisions.
2.- the low water Illeatas boundary in the Shatt al-Arab. There is
considerable evidence that at least in the more recent past, Iran has
regarded the low water mark as the boundary line in the Shatt al-Arab
as iniquitous. During the recent dispute, the Iranian Government has
been vociferous in claiming that the only proper and equitable boundary
line in the Shatt al-Arab would be the thalweg. On the basis of the
evidence here available9 it is iMpossible to determine the historical
reasons why the low water line was established as the boundary between
the two'Cbuntries. 'According to a recent official British study, Sir
Henry Aiwlinson pointed ?tit in a memorandum in 1844 that great uncertainty
attached to the extent of-the territory which was dependent on Basra at,
the time of the Treaty of 1639. However, Rawlinson felt that there could
be no doubt that the immediate banks of the Shatt al-Arab were under the
rule of Basra and that some towns on the left bank near present day
Khorramshahr were dependencies of Basra. If areas on the left bank were
claimed for Basra, the Oti,cman Empire In acknOwledging
sovereignty over the left bank in the Treaty of 1547, may have followed
the principle, as suggested above, of ceding only the land 'area', but
_retaining full Control of the river. Wnile it is true that ti Treaty
,
of 18? does not specifically state that the -Whole river is under
Turkish:COntrol, the statement that Persian'shiPS'ShOuld'be'aIlOwed
to use the Shatt Without let and hindrance; Would indicate Ottoman
-control of the river,
However, the history of the boundary.,141e4n,the.riVer between
1847 and the Constantinople Protocol of 1913 iS'far from: Clear., As
mentioned above, Sir Arnold Tal,son-?asserts that "for over fifty years"
prior to '1913; the thalweg-Was; in:.pradticeleconsidered'aS.the.frontier
and a British memorandum to the Ottoman Government of July 18, 1912
points alit'that-therevas-na expressestipulatiOn:in.theTreaty of 1847
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- 29 -
as to the ownership of the river and states that the boundary locally
recognized was the thalweg.' This seeming confusion may in the last
analysis, be traceable to the general lack of understanding among
peoples of the Near and Middle East of the importance and meaning of
line boundaries. As Lord Curzon expressed it in 1907:
'In Asia there has always been a strong instinctive
'aversion to the acceptance of fixedboundaries0
arising partly from the nomadic habits of the
people? partly from the dislike of precise
:arrangements that is typical of the Oriental
*mind, but more still from the idea,that'in the.
' vicissitudes of fortune more is to be expected,
from an unsettled than from a settled frontier,
However, whatever confusion might have existed with. regard to
the,boundary.in the river prior to 1913 was removed by the Constantinople
Protocol And by the boundary commission set up under the 'Protocol. Thus,
at least-Since 19130 the low water mark on the Persian shore has been
established as the boundary between the Ottoman Empire (and now Iraq as
one Of its successor states) and Persia, except wherel As Off7Khorram-Sahr
.andAbadan, the boundary line has been. established Along the thalweg
agreement between the two riparian countries, From the most recent
Iranian Statements, it appears that Iran does not intend to claim that
the boundary line actually runs along the thalweg today. The claim
rather appears to be that tracing of the boundary line along the low
water mark on the Iranian shore is contrary to general rules of
international law and to considerations Of equity, and that the presently
existing boundary consequently should be changed.'
B, The Shatt al-Arab as an International Waterway:
1. The pE2blem of free.navigationc; At present, the Shatt al-Arab,
Gooch and Temperley0'op.cit,?0 p. 86,- The British Government pledged
itself, however,, in the same comMUnication to support. the Ottoman
Governmentis claim to the whole 'of the riVer? in-return.for certain
concessions to Persia with regard to islands in the. Shatt and
arrangements with GreatBritain:on navigation in the river, This
communication was part of the negotiations Concerning the Baghdad
Railway.
2. Quoted in G.E. Hubbard, op.cit., p. 12.
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1
-With theceptiop..9f:LWOW:I Wm.su where the thalweg is the boundary,
is Iraqi ..intex!nal,waterS:and IrWaSovereignty extends to the whole- ?
course oftheriver. Theright-Of innocent passage which applies to1
' territorialwaters,does,not.apply to the?internal.waters.of a state.
However, evelybefore:WOrld War I, the, convention concerning the
establishment of a ConMis6i011 for the improvement of conditions on
'.7thefShatt'al,Arab signed by the Ottoman and British Governments on
July 29, 1913 ?Provided in Articlel that navigatpn on the Shatt al-
Arab-Shouldremainopen to ships Of-all'nations? : Freedom of navigation
for merchant:
vessels Of. all countries was expressly stipulated in the
Treaty[of_1937. There does notappearto.havebeen any contention in
the'te,cent.controVers:y'that the principle of navigation of merchant
vebtelawasseriouslY infringed upon. The search of foreign vessels
bound for Iranian ports on the'Shatt-al-Arab by -Iraqi soldiers., which
occurred in some instandes,'cOuld possibly beconstrued as interference
with the freedom of navigation in the Shat al-Arab?:-but Iraq could
always claimthat. the Searches -Were made in exercise of Iraq's sovereign
.rights for security reasons to prevent 'possible smuggling of arms to .
potential: dissidents in Iraq. At times, Iranian spokesten have
provisions of the 1937 Treaty. on freedom of navigation to argue,thatrIraq
had .no righttoinsist upon Iaqi pilots. However, this constitutes a
_ confusion:of.the qUestion:of freedom of navigation with the issue of .
pilotage.: The requirement by a port authority that pilots be used in a
port area ,;'a canal or a river, cannot bk itself be_regardedas inter-
ferencevith the freedom of navigation:.
2. The iseue__:2E_Ei1otage end of dues. The protocol attached to
the Treaty of 1937 vests in Iraq the right to continue on the basis then
1.- Internal-or interior waters are the waters landward from territorial
waters including harbors, ports'and_roadsteacis, as well a rivers,
jr? and similar bodies of water. IiiVfOrming the boundary
between two countries or floWingthrough,tgo or more countries ia
termed, at least if navigable, international riVerio These rivers
' continue to be part of the n.ational tertitory,:bUt navigation on
,
many of them is free by virtue of Varioustreatiesand Conventions.
See 0.0. .Hyde, International-LaW .(Boston 1945) pp.. 524-565; A.P.
AHiggins and C.J..ColoMbos, The International Law ofthe Sea -(London
1945) PP. 58-59, 142-163.
2. Gooch and Temperley, p. 184. Because of-the construction of
a refinery on Abadan Island which went into operation in 1913 and
because of the Barth& -Railway project, the problem of free navigation
on the Shatt al-Arab had bt.00me of much greater interoet than before to
UK and chr 1,-_-craan pawc;-5.
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existing the services to be provided for in the ancillary convention
-until the conclusion of such a convention. Since no convention has
been concluded, Iraq has provided pilotage service and has also collected
dues paid by the ships using the Shatt al-Arab. The Basra Port Rules
and By-laws make pilotage by Port Authority pilots compulsory outside
harbor limits for all inbound and outbound ships with certain specified
exce:ntions. Basically, therefore, as long as no convention has been
concluded and the present treaty provisions remain in force, the Port
Authority can insist that its pilots be used. In the light of the 1937
provisions, it does not appear that Iran could set up its own pilotage
service at least as long as Iraq continues to provide adequate service
Iraqi refusal to take ships to Iranian ports probably could be adduced
by Iran as a reason for providing its own service only if such refusal
could be proven to be discriminatory against Iran.' In practice,
establishing satisfactory proof of such a contention would, in all
likelihood, not be easy. In many cases, the Basra Port AuthoritY
would probably Claim some technical reasons, as in the case of
Khosrowabad, for refusing pilotage. The flag issue as reason for
denial of pilotage might be more tenuous, However, as long as the
whole of the river can be regarded as being under Iraqi sovereignty,
it might be difficult to deny Iraq the right to enforce a claim that
its flag should be flown in its internal waters,
Again as provided by the Treaty of 1937, all navigation dues
have been collected by Iraq. Recently, Iran has charged that Iraq
has not used the dues exclusively for the upkeep of the river and
Iraq, in turn, has claimed that Iran has not paid dues to Iraq since
1953. Sufficient facts are not available here for the proper evaluation
of either. claim. Diversion of navigation dues to other purposes would
constitute an infringement of the provisions of Article 4 of the Treaty
of 1937.
In the last analysis,' the pilotage and dues '0x-ob.:Lem. /as,
present controversy, less of a legal than a political issue. The
dismissal from the Port Authority of its. British personnel and of
Iraqi pilots appointed by the old regime, as well as the replacement
of some British technicians by Soviet ones, has very much increased
1. See for a discussion of the principle of equality of use of an
international river by the riparian states, -Permanent Court of
International Justice, judgment M. 16, September 10, 1929,
Territorial Jurisdiction of the International. Commission of the
River Order, p. 27.
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IranirleaSiness over an arrangement in the Shatt al-Arab under which
Iran has no part and no voice in the administration of river traffic
and the unkeep of the navigation channel.
3. The importance of the ports on the Shatt al-Arab. One of the
important practical pY.oblems of the Shatt al-Arab which has greatly,
influenced the ,attitude of both Parties with regard to the boundary
issue and with regard to the question of navigation, is that of the '-
ports-oh:the Shatt al-Arab, For Iraq, the Shatt al-Arab is the only
outlet)2:to the sea,- and Basra, locatec beyond Abadan .and Khorramshahr
on the river, is its most important poA77-1Ee Iraqis have, therefore,
often claimed that they should have control of the river which is their
only "window to the world." However, while Iran has other ports, a
large oil refinery is located at Abadan and unimpeded access to
Abadan is regarded by the Iranians as essential. Recently, the
Iranian Foreign Minister claimed that 7 of the ships on the Shatt
al-Arab were .bound for Iranian ports, This figure may be exaggerated,
The following table shows the total import and export figures for the
Iranian and Iraqi ports on the Shatt al-Arab and for the Iranian ports
located on the Persian Gulf:
In 000 metric tons
Name of Port Year Imports E-.)2orts mote.]
1. Shutt aL-Ara41.2.2rtsj-
a. -Iraqi ports.
. Basra'
? -
Fao
_ -
b. Iranian ports
1957 668
1958 651
1956/57 '
1957/58
356
473
7,968
Khorramshahr
1956/57 3714..-
:339
1957/58 435'
216
Abadan
1956/57 251
10?1.3?
1957/58 175
11,,310
1,024
1,124
71968:1
9,4871
6511:
10,384"
11,85
1? C;r11O-,; oil cfcily. All iiguroo except those for Basra relate to the
f.5Eic.:;: year. starting April 1.
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Name of Port
Year ,
-
2. 4.ranian Persian GulLE2EI
Bandar Shapur
Bandar Mash ur
Bushir
Bandar Abbas
-33--
In OCO metric tons
TOR2rts Exports
Total
1956/57?
1957/58
454
493
460
.8 493.8
1956/57
.4
15,292t
15,292.4
1957/58
.1
20,380
20 380.1
1956/57
21
25
46
1957/58
18
26
44
1955/57
10
L5
55
1957/58
12.5
28
4o.5
According to this table, Basra is largest in terms of imports,
whereas in exports the oil ports of Fao in Iraq and Abadan and Bandar
Mashur in Iran far outstrip all other ports. In the Shatt al-Arab the
Iraqi and Iranian oil ports probably are about equal in export tonnage
handled. However, the heaviest oil export traffic goes through the
Iranian port of Bandar Mashur on the Persian Gulf east of the mouth of
the Shatt al-Arab. Both riparian states can thus claim that they have
important port facilities which are only accessible via the Shatt a1-.Arab?
In the Iranian case, there is at least one important port outside the
Shatt al-Arab and Iran is thus not wholly dependent on the river as is
Iraq. However, this argument might be challenged from the Iranian point
of view with the argument that the important Abadan refinery site can
only be reached via the Shatt.
C. The Problem of the Validity of the Treaties Governing the Shatt al-Arab.
The various treaties and agreements governing the boundary in the
Shatt al-Arab have,, at times,_ been attacked by one side or the other as
not being valid., As stated above, these claims are tenuous, and with
regard to the Treaty of 193,71 which is the instrument now governing the
boundary, no very serious claim actually appears to have been made by
either side that the 'Treaty should be regarded as invalid? As far as
the Protocol of Constantinople of 1913 is concerned, Iran did in the
1, 0),-,et
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disd-404onsjpeforeLthe:League of'VationsLin.IK5,_claim that the Protocol
should be regarded as invalid. However, regardless of the merit of that
claim, the parties agreed in the 1937 Treaty to recognize the Protocol
and the Minutes of the boundary commission as valid, which would appear
to estOP either party from claiming now that the 1913 Protocol is
invalid, unless such party intends also to attack the validity of the
1937 Treaty ".
. Both parties adkhoWledge that the ancillary convention envisaged
in the 1937 Treaty has not been concluded so far and each party has
tridd:to.blame the othor,fOr causing the delay. However, there has not
been any serious suggestion from either side that failure to conclude
the convention affected the validity of the Treaty and it ale() apPears
to have been conceded by the Iranians that the time period in which the
convention is to be concluded can be regarded as:having been extended
tacitly to the present. .Should negotiations on a convention be reopened
and end in failure, it is conceivable that'lranMight claim that Iraqi
intransigence had frustrated the conclusion of a convention and that the
interim arrangement giving Iraq responsibility, for' administration of the
Shatt should be regarded as no longer valid. Such a course, however:
would obviously contain political risks and might throw navigation on
_ .
theriver_into 'confusion.
SOme tendency has been apparent recettly.on the part of the .
Iranians 'to claim that Iraq through its.recent,adtions'had abrogated
theTreatt:of 1937 and that Iran, therefore, 'should state that it.
'regards the: Treaty as abrogated. Even if this argumentation were
:accepted2andit6 legal validity appears doubtful, the results of Such-
-a:move wouIdprdbably be detrimental to both parties The Treaty of:
1937is Obviously the basis of the Present boundary line and the, present
-systemofadministration,in the Shatt al-Arab. Ah abrogation '?f the.
.Treaty wbuld'put not only the boundary line, but also navigation jbthe
Shatt al-Arab 'on a much more' uncertain basis and would, in' the-lastl.
analysis, probably tot benefit either side.-: ,.The Iranians'would probably
_feel free, should the Treaty be abrogated, to claim the thalweg as the
boundary_line. iiorever, it could probably be argued that an abrogation
of the 1937 Treaty wouid.not imply the inapplicability of earlier
,in4truments such as-thaTrotocol:of 1913. Whether! the Iranians would
beSuccesSful ihattackingthe Validity of that Protocol and the earlier
instruments is-Uncertain.: The Iranians could, however, use the tactic
of plaiming_that.ih:view.Of the abrogation Of the 197 Treaty, a wholly
new. arrangement should.b.e made for the Shatt al-,Arab and that in Such a
new-arrangementi the boundary line should be placed along the thalweg
for the: Whole'lehgth:of the river, .
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35 -
The Iraqis could probably claim, at least for tactical reasons,
that with the abrogation of the 1937 Treaty, ?the boundary reverted to
the line established by the. Constantinople Protocol, ? that is that it
would follow the low water mark also at Abadan., However, abandonment
of the 1937 Treaty would deprive Iraq of the basis for its position,
not only regard to the boundary, but also with regard to the
administration of the Shatt al-Arab. If the 1937 Treaty wereabrogated,
Iran would, in all likelihood, try to place Iraq's right to continued
sole administration of the Shatt al-Arab in serious doubt. This
administration would then actually rest on internal Iraqi enactments,
such as the Basra Port Proclamation, and upon usage-rather than upon
the provisions of an international treaty.. From the point of view of
third countries, an abrogation of the 1937 Treaty would eliminate the
clear undertaking contained therein relating to the right ? of free
navigation. An abrogation of the: 1937 Treaty would,under,present
circumstances,,thus create .a very uncertain situation in the Shatt
al-Arab and would, in all likelihood, increase tension rather than
promote a negotiated resolution. of the problem of administration of
the river and of the latent 'boundary dispute. ,
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