The Al Yasat Marine Protected Area Dispute

1. Introduction

The Al Yasat Marine Protected Space (MPA) has change into the newest flashpoint in a wider quarrel in regards to the maritime boundaries between the Kingdom of Saudi Arabia (KSA) and the United Arab Emirates (UAE) within the Arabian Gulf. See the KSA’s word verbale (A/78/824) and the UAE’s response (A/78/886). The dispute can largely be attributed to the forces of colonialism, which created the matrix by which the KSA and UAE concluded the Treaty of Jeddah some fifty years in the past. Regardless of the difficulties generated by this historical past, these neighbouring nations have to discover a strategy to settle their variations and negotiate a brand new maritime framework on this a part of the Gulf not just for their very own sakes but in addition for the good thing about the area.   

MPAs are an vital approach in selling biodiversity, and, as such, they’ve been recognized as a key efficiency indicator for conserving coastal and marine areas (Goal 14.5.1, Sustainable Growth Objectives). Establishing an MPA appears, subsequently, like a ‘win-win’ state of affairs, particularly for States searching for to exhibit their blue-credentials. The UAE has established a number of MPAs lately. The Al Yasat MPA is positioned off the western coast of the Emirate of Abu Dhabi, which neighbours the KSA. This MPA was first established in 2005 (Amir Decree No. 33, 2005) and its newest iteration was declared in 2019 (Amir Decree No. 4, 2019). It has a complete floor space of 2256 sq. kilometres and consists of the islands of Al Ghagha, Al Qaffay and Al Yasat. These offshore islands are surrounded by ecologically important coral reefs whereas their ‘pristine waters’ are dwelling to uncommon and endangered species – together with sea turtles and dugongs – making this MPA an vital website for marine ecotourism. However, this ‘nature lover’s paradise’ isn’t totally hassle free.

2. The Newest Flashpoint for a Diplomatic Spat about Maritime Boundaries

This KSA/UAE dispute is predicated on their conflicting claims to the marine house adjoining to the territory surrounding the Khor Al Udaid – a water inlet positioned on the Gulf close to the bottom of the Qatari Peninsula. In a word verbale addressed to the UN Secretary-Basic, the KSA refused to recognise the UAE’s declaration of the Al Yasat MPA whereas denying that it will have any authorized results for it (18 March 2024, A/78/824). In response, the UAE asserted the MPA is positioned inside its territorial sea and that it: ‘doesn’t recognise for the [KSA] any maritime zones, sovereign rights or jurisdiction past the median line separating the [parties’ respective territorial seas] reverse Al Udeid Province’ (16 Could 2024, A/78/886).  

States are competent to determine MPAs of their territorial seas, however sovereignty on this maritime zone ‘is exercised topic to this Conference and to different guidelines of worldwide legislation’ (Article 2(3) UNCLOS). In its Chagos MPA (Mauritius/UK) Award, the arbitral Tribunal determined that Article 2(3) requires a coastal State to uphold these rights belonging to a 3rd State that are associated to its territorial sea in good religion, thereby creating an obligation tantamount to the responsibility of ‘due regard’ contained in Article 56(2) (paras 520-521). Consequently, earlier than declaring an MPA in its territorial sea, a coastal State should seek the advice of with any third State that has rights on this maritime zone past these common entitlements belonging to all States (paras 518-536).

The UAE isn’t a celebration to UNCLOS; nonetheless, there isn’t a doubt that below customary worldwide legislation, the train of sovereignty within the territorial sea is topic to different guidelines of worldwide legislation. Subsequently, the important thing query would look like whether or not the KSA has rights within the marine house instantly affected by the Al Yasat MPA which might then generate an entitlement to be consulted as a part of the method by which this MPA was declared. Nevertheless, this diplomatic spat is healthier understood as a proxy for a wider maritime delimitation dispute that finds its origins within the colonial period.

3. The Al Yasat MPA and the 1974 Treaty of Jeddah

Britain assumed duty for managing Abu Dhabi’s international affairs pursuant to the Unique Settlement it concluded with the Trucial Sheiks in 1892. All through the 20th century it defended Abu Dhabi’s declare to the realm of the Khor Al Udaid whereas discouraging successive rulers from re-occupying this territory given its shut proximity to the KSA (Schofield, ‘The Crystallisation of a Advanced Territorial Dispute: Britain and the Saudi-Abu Dhabi Borderland, 1966–71’ pp. 21, 35-36). Nevertheless, on 9 January 1968, Britain introduced its intention to withdraw from the Gulf by the top of 1971 and its regional affect was clearly waning by then (see, e.g., Smith, ‘An Empire of Affect? British Relations with the United Arab Emirates within the Nineteen Seventies’ pp. 9-10). The UAE was based on 2 December 1971 and was anxious to safe recognition from regional powers round this time. The KSA needed to determine an alternate technique of entry on the Gulf coast for strategic causes (see e.g., Peterson, ‘Sovereignty and Boundaries within the Gulf States Settling the Peripheries’ pp. 27, 33-34). Consequently, it pressed its historic declare to the Khor Al Udaid whereas signalling that its recognition of the UAE would rely upon the conclusion of a boundary treaty consistent with its core goals (Al-Mazrouei, ‘UAE-Saudi Arabia Border Dispute: The Case of the 1974 Treaty of Jeddah’ pp. 111 and 139-146).

The Treaty of Jeddah was concluded by the KSA and the UAE on 21 August 1974 (1733 UNTS 23, registered 9 September 1993) in opposition to this backdrop. Article 2 recognized the approximate location of the land boundary between the KSA and UAE – in anticipation of a technical technique of demarcation being agreed – which indicated that the coastal space to the south of the Khor Al Udaid belongs to the KSA.  

3.1 Al Qaffay Island

By Article 5(1) of the 1974 Treaty, the KSA recognised the UAE’s sovereignty over all islands reverse the Gulf apart from Huwaysat Island to the west of the disputed MPA. Nevertheless, Article 5(2) offered that the UAE agrees to permit the KSA to assemble any common installations it could want to set up on the islands of Al Qaffay and Makasib. As famous above, Al Qaffay constitutes a part of the Al Yasat MPA and so it might be supposed that the rights conferred on the KSA would set off a ‘due regard’ obligation for the UAE in regards to the creation of this MPA. So far as will be ascertained, the KSA has not sought to construct any such installations on both of those islands over the last fifty years. Because of this, the UAE may attempt to contend that this quantities to a ‘useless letter’ provision that can’t set off an obligation to seek the advice of on this context.

The straightforward passage of time isn’t ample to eradicate concrete rights and obligations in worldwide legislation, however the precept of desuetude will be invoked as a floor for terminating a treaty obligation the place a subsequent inconsistent follow emerges that reveals a brand new tacit settlement between the events. On the details, it’s onerous to see how the KSA’s obvious choice to not train the development rights conferred by Article 5(2) quantities to proof from which a brand new shared follow might be inferred. There’s nothing to counsel that the KSA has surrendered these rights because the treaty was concluded and certainly it has reiterated these entitlements in diplomatic protests down the years (see, e.g., A/78/824).     

3.2 Maritime Delimitation and the 1974 Treaty

Article 5(3) of the Treaty of Jeddah addresses the query of maritime delimitation. It stipulates that the events shall delimit their maritime boundaries in a fashion which ‘will guarantee free and direct entry to the excessive seas from the territorial waters of that a part of the territory of the [KSA] adjoining to the territory of the [UAE]’. It goes on to state that the: ‘Excessive Contracting Events shall have joint sovereignty over your complete space linking the territorial waters of the [KSA] and the excessive seas […]’.

It’s unclear what is supposed by ‘joint sovereignty’ right here, however it’s extremely unlikely that the events envisaged establishing some type of joint improvement zone given the dedication to implement a technique of maritime delimitation ‘as quickly as doable’. A cursory examination of (unofficial) maps of this marine house (accessible right here) reveals the extent of the events’ claims on this a part of the Gulf. Arguably, the ‘joint sovereignty’ being contemplated in Article 5(3) solely is sensible in relation to territorial waters as a result of a coastal State can solely train sovereign rights – not sovereignty – in its Unique Financial Zone (or in relation to its continental shelf).

From these maps, your complete space linking the KSA’s territorial waters and the excessive seas would seem to embody a major a part of the UAE’s territorial sea because of the geography of this a part of the Gulf coast. Within the circumstances, it’s conceivable that the KSA might have been searching for to advertise ‘joint sovereignty’ as a method for it to train some attributes related to sovereignty inside the UAE’s territorial sea. This believable interpretation may go some strategy to explaining different elements of the events’ behaviour on this setting. For instance, in 2010, it was reported that an incident occurred involving the UAE’s navy opening fireplace on a KSA navy vessel patrolling within the UAE’s territorial waters someplace off the Khor Al Udaid resulting in a small group of KSA sailors being detained in Abu Dhabi for a number of days (The Telegraph, 26 March 2010). Given the phrases of the 1974 Treaty, it isn’t shocking that the UAE has been reluctant to delimit its maritime boundaries on this space. 

4. Conflicting Treaties and the Colonial Legacy

The challenges arising from Treaty of Jeddah’s maritime provisions are onerous to understand with out an understanding of the extent to which the events’ conflicting claims have been influenced by their experiences of colonialism.

On 14 December 1965, the KSA concluded a boundary treaty with Qatar (1733 UNTS 15, ratified 31 Could 1971). Article 2 recognized the southern reaches of the Khor Al Udaid because the land boundary between the 2 nations. Britain subsequently sought to guard sure pure sources rights – specifically the Bunduq oil subject – located within the marine house adjoining to the land space recognized within the KSA/Qatar Treaty by pushing Abu Dhabi and Qatar to barter a countervailing maritime boundary treaty on this space (Schofield, pp. 33, 37-38). The ensuing bilateral treaty, concluded on 20 March 1969, used nearly the identical land boundary on the Khor Al Udaid because the one recognized within the earlier KSA/Qatar Treaty for the aim of figuring out the events’ maritime boundary on this space. This occasion of colonial-driven ‘doublethink’ meant that Qatar had agreed to share a land border with the KSA whereas individually agreeing to maritime adjacency with Abu Dhabi as decided by reference to the identical stretch of shoreline.

This ‘territorial nonsense’ (Schofield, p. 29) has been bolstered within the twenty-first century by a number of occasions. On 14 December 2006, the UAE registered the 1969 UAE/Qatar Treaty with the UN (Reg. No. 43372), which the KSA refused to recognise: Regulation of the Sea Bulletin 64 (2007) (p. 38). The KSA and Qatar subsequently delimited their land and maritime boundaries on 5 July 2008 through their Joint Minutes, Reg. No. 1 – 30249) thereby implementing the preparations outlined of their 1965 Treaty. Additional, on 26 September 2004, the UAE and Qatar concluded the ‘Dolphin’ treaty, which enabled the development of a submarine fuel pipeline between the events based mostly on the maritime boundaries agreed of their 1969 Treaty. The ensuing incongruity is clear from this map.  

In its 2024 word (A/78/886), the UAE claimed that the 2008 Joint Minutes created a brand new authorized state of affairs that didn’t exist when the 1974 Treaty was concluded as a result of the KSA has now changed Qatar within the UAE’s maritime adjacency. It seems that the UAE is likely to be coming shut to creating a elementary change of circumstances plea right here. Such a rivalry can be difficult within the mild of Article 62(2)(a) VCLT which states that rebus sic stantibus can’t be invoked as a floor to terminate a boundary treaty. Nevertheless, the UAE isn’t searching for to terminate the 1974 Treaty; reasonably, it’s urgent for a technique of treaty revision as an alternative.

Extra usually, it’s troublesome to see how the Joint Minutes created a brand new maritime state of affairs because it was based mostly on the events’ 1965 boundary treaty from which the KSA’s maritime clams may have been simply anticipated. Additional, the UAE has already accepted the KSA’s maritime adjacency by through Article 5 of the Jeddah Treaty and, extra lately, by acknowledging that the KSA has a territorial sea within the broad neighborhood of the Khor Al Udaid.

5. Concluding Remarks

It’s doable to view the UAE’s maritime adjacency argument as a rhetorical system designed to evoke the inconsistencies of the colonial period to make a case for a constructive renegotiation of maritime boundaries between the KSA and itself on this a part of the Gulf (and, logically, with Qatar, too), reasonably than an implacable defence of the maritime establishment. In any occasion, it stays to be seen whether or not these neighbouring States are ready to think about a tabula rasa strategy to the delimitation of their boundaries on this marine space although it’s clearly of their pursuits so to do.