ARTICLES 
CHRISTOPHER R. ROSSI* 
The Critical Date and the Dispute over 
Islands in the Strait of Hormuz:  
Abu Musa and the Tunbs 
Abstract ................................................................................................ 1 
Introduction .......................................................................................... 2 
I. The Power Vacuum ................................................................... 9 
II. Territorializing a Civilizational Unit ....................................... 13 
A. Place Naming and Toponomy ......................................... 16 
B. Toponymic Hearsay ......................................................... 19 
III. Periodizing Sovereignty, Uti Possidetis, and the Critical
Date ......................................................................................... 20 
A. Square Pegs, Round Holes, and the Southernmost
Palm Tree ......................................................................... 23 
B. Historical Claims ............................................................. 27 
C. The Unfitting Metaphor of the Critical Date ................... 31 
1. The Hauntology of the Critical Date .......................... 34 
2. A Wide Margin of Appreciation ................................ 39 
Conclusion ......................................................................................... 42 
ABSTRACT 
An intractable sovereignty dispute over three Lower Gulf Islands in 
the Strait of Hormuz, a critical energy chokepoint, prompts a 
reconsideration of the ambiguities and tensions associated with 
* Professor of International Law and International Relations, UiT, The Arctic University
of Norway; associate member, Norwegian Center for the Law of the Sea. 
[1] 
2 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
international legal mechanisms to establish title to territory. Vagaries 
of history and competing narratives inform parochial perspectives of 
the disputants, the United Arab Emirates (UAE) and Iran, but tend to 
focus decision-maker attention on establishing a critical date on which 
to assess competing claims. This Article interrogates the significance 
of the critical date, noting its ontological development and 
shortcomings, and problematizes the significance of the critical date 
considering complexities associated with international law’s reliance 
on effectivités. Liberal internationalism’s chimerical emphasis on 
finality cannot escape the tensions associated with letting bygones be 
bygones through reliance on the critical date.  
INTRODUCTION 
T he islands of Abu Musa and the Greater and Lesser Tunbs are Lower Gulf Islands located near the chokepoint of the Strait of 
Hormuz.1 This chokepoint connects the Arabian or Persian Gulf to the 
Gulf of Oman, then to the Arabian Sea, and finally to the high seas.2 
About twenty-one percent of the global petroleum liquids consumed 
annually flow through the strait, averaging twenty-one million barrels 
per day.3 These islands are strategically situated “near the route that all 
vessels entering or leaving the Gulf use.”4 
1 See Strait of Hormuz: Assessing the Threat to Oil Flows Through the Strait, STRAUSS 
CTR. FOR INT’L SEC. & L., https://www.strausscenter.org/strait-of-hormuz-about-the-strait/ 
#:~:text=In%20order%20to%20regulate%20the,and%20one%20for%20outgoing%20traffic 
[https://perma.cc/NJ8H-ATVS] [hereinafter STRAUSS CTR.] (locating the strait and 
referring to it as a “narrow chokepoint”). 
2 The Strait of Hormuz is 38.4 kilometers wide at its narrowest western end. It has an 
average depth of fifty meters. Saudi Arabia and the UAE have pipelines that can circumvent 
the shipment of crude oil through the Strait of Hormuz, but their combined pipeline capacity 
amounts only to about 6.5 million barrels per day. OPEC’s top five oil exporters are located 
inside the Gulf. The Strait of Hormuz is regarded as “critical to global energy security.” 
Justine Barden, The Strait of Hormuz Is the World’s Most Important Oil Transit Chokepoint, 
U.S. ENERGY INFO. ADMIN. (Dec. 27, 2019), https://www.eia.gov/todayinenergy/detail 
.php?id=4107 [https://perma.cc/C88U-VAZ2]. Other important petroleum product choke 
points around the world are the Strait of Malacca (sixteen million barrels per day (mbd)), 
the Suez Canal and SUMED Pipeline (5.5 mbd), Bab Al-Mandeb (4.8 mbd), Danish Straits 
(3.2 mbd), Turkish Stratis (2.4 mbd), and the Panama Canal (0.9 mbd). See The Strait of 
Hormuz: A U.S.-Iran Maritime Flash Point, COUNCIL ON FOREIGN RELS. (June 18, 2019, 
3:14 PM), https://www.cfr.org/in-brief/strait-hormuz-us-iran-maritime-flash-point [https:// 
perma.cc/8H99-VUBH]. 
3 Barden, supra note 2 (noting the amount and volume of oil flow). 
4 Fariborz Haghshenass, Iran’s Asymmetric Naval Warfare, WASH. INST. FOR NEAR E. 
POL’Y 3 (Sept. 2008), https://www.washingtoninstitute.org/media/3446 [https://perma.cc 
/P87V-EXT5]. The strategic significance of the islands relates most obviously to the 
narrowness of the strait, see id., but also to the depth of the sea lane leading into the Gulf 
2024] The Critical Date and the Dispute over Islands in the 3 
Strait of Hormuz: Abu Musa and the Tunbs 
In 1968, Great Britain announced its intention to withdraw from the 
Gulf by the end of 1971,5 ending its 151-year protectorate over the 
Trucial States.6 A “sense of urgency” enveloped the region due to many 
and the deeper sea lane used by tankers exiting the Gulf. Both lanes pass between Abu Musa 
and the Tunbs. See Giorgio Cafiero, UAE-Iran Islands Dispute Complicates Regional 
Diplomacy, RESPONSIBLE STATECRAFT (Aug. 9, 2023), https://responsiblestatecraft.org 
/2023/08/09/uae-iran-islands-dispute-complicates-regional-diplomacy/ [https://perma.cc 
/TDK6-CKYF] (noting the geopolitical advantage for whichever country controls the sea 
lanes passing by the Tunbs and Abu Musa). The width of these incoming and outgoing 
shipping lanes are only three kilometers in either direction. See STRAUSS CTR., supra note 
1. They are separated by a safety lane about 1.6 kilometers wide. See PIROUZ MOJTAHED-
ZADEH, MARITIME POLITICAL GEOGRAPHY: THE PERSIAN GULF ISLANDS OF TUNBS AND 
ABU MUSA 24 (2015) (noting the width of the safety lane is one mile). There are also other
islands proximate to the disputed islands of strategic importance, namely Bani Forur and
Sirri.
5 HC Deb (16 Jan. 1968) (756) cols. 1577–620 (statement of Prime Minister Harold 
Wilson) (“We have also decided to withdraw our forces from the Persian Gulf by [the 
end of 1971] . . . apart from our remaining Dependencies and certain other necessary 
exceptions, we shall by that date not be maintaining military bases outside Europe and the 
Mediterranean.”). 
6 The Trucial States consisted of the sheikhdoms of Abu Dhabi, Ajman, Dubai, Fujairah, 
Ras Al-Khaimah, Sharjah, and Umm Al Quwain. Following the British defeat of the 
Qawasim seafaring dynasty, based in the Gulf port city of Ras Al-Khaimah, done to protect 
British East India Company land and sea trade routes, Britain established a series of treaties 
with these sheikdoms that created an official protectorate. See generally Mubarak Al-Otabi, 
The Qawasim and British Control of the Arabian Gulf (1989) (Ph.D. dissertation, University 
of Salford) (on file with the University of Salford Repository) (discussing the regional 
politics and defeat of the Qawasim dynasty); SULTĀN MUHAMMAD AL-QĀSIMÏ, THE MYTH 
OF ARAB PIRACY IN THE GULF (1986) (contesting the singular claim that British naval 
engagement in the Gulf had less to do with trade than with piracy); General Treaty for the 
Cessation of Plunder and Piracy by Land and Sea, reprinted in A COLLECTION OF TREATIES 
AND ENGAGEMENTS RELATING TO THE PERSIAN GULF SHAIKHDOMS AND THE SULTANATE 
OF MUSCAT AND OMAN IN FORCE UP TO THE END OF 1953, at 35 (1820), QATAR DIGIT. 
LIBR., https://www.qdl.qa/en/archive/81055/vdc_100023550810.0x000028 [https://perma 
.cc/9RU6-W7X7] (establishing the first of a series of treaties with the sheikhdoms); The 
Maritime Truce (1835) (establishing an intra-Gulf truce during pearling season that is 
renewed annually and introducing the term “Trucial States”); Perpetual Maritime Truce 
(1853) (establishing “lasting and inviolable” maritime peace and making Britain responsible 
for obtaining reparations for injuries suffered). Britain incrementally guaranteed the defense 
of Oman (1829), Bahrain (1861), Kuwait (1899), and Qatar (1916). See also Nathan 
Toronto, Can a 19th Century Maritime Truce Help Ease 21st Century Tensions in the Gulf?, 
ARAB GULF STATES INST. IN WASH. (Oct. 10, 2019), https://agsiw.org/can-a-19th-century 
-maritime-truce-help-ease-21st-century-tensions-in-the-gulf/#:~:text=The%201835%20
Maritime%20Truce%2C%20origin,the%20day%2C%20using%20limited%20resources
[https://perma.cc/8XCE-U8ZS] (discussing the 1835 Maritime Truce); James Onley, Britain
and the Gulf Shaikhdoms, 1820–1971: The Politics of Protection, CIRS 1, 3 (2009)
(reflecting on the legacy of Britain’s protectorate system in the Gulf and noting the de facto
1899 arrangement with Kuwait). Onley also points out that the 1835 Maritime Truce “does
not appear in any Govt. of India publications,” but is identical to the 1843 truce except for
terms of duration. See id. at 30 n.32.
4 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
unresolved intra-Arabian and international territory and boundary 
disputes.7 A series of maritime boundary negotiations ensued among 
all littoral states of the Gulf.8 Geographically overlapping interests 
exposed unresolved sovereignty questions relating to fishing zones, 
continental shelves, anticipated oil and gas deposits, and the drawing 
of baselines for purposes of maritime delimitation.9 The ownership of 
the three Lower Gulf Islands became important due to their proximity 
to the Strait of Hormuz and the nearby Iranian port of Bandar Abbas.10 
On November 30, 1971, two days before British withdrawal, which 
was timed to coincide with the founding of the United Arab Emirates 
(UAE), Iranian marines invaded the Tunbs, sustaining casualties and 
killing four of the six policemen stationed there from the Emirate of 
Ras Al-Khaimah.11 The day before, Iran had negotiated control over 
the northern part of Abu Musa, signing a Memorandum of 
Understanding (MOU) with the Emirate of Sharjah,12 which had been 
7 MOJTAHED-ZADEH, supra note 4, at 20. See also Richard A. Mobley, The Tunbs and 
Abu Musa Islands: Britain’s Perspective, 57 MIDDLE E.J. 627, 637 (2003) (reviewing 
declassified documents outlining the concern about the transition of power and Britain’s 
fourteen-month shuttle diplomacy to head off coming sovereignty disputes).  
8 On the many and major intramural Arab boundary disputes among the Sheikhs (such 
as boundary disputes between Abu Dhabi and Dubai, Sharjah and Dubai, Oman and the 
Trucial States, Fujairah and Sharjah, and Fujairah and Ras Al-Khaimah), serious enough to 
threaten the British foreign policy objective of bringing about a federation of the Trucial 
States, see Saif Mohammad Obaid Bin-Abood, Britain’s Withdrawal from the Gulf: With 
Particular Reference to the Emirates 160 (1992) (Ph.D. dissertation, University of Durham) 
(on file with the University of Durham Library). See generally RONGXING GUO, 
TERRITORIAL DISPUTES AND RESOURCE MANAGEMENT: A GLOBAL HANDBOOK 19 (2007) 
(discussing boundary disputes generally). 
9 The UAE and Iran have reached partial agreement on the delimitation of their shared 
continental shelf boundary, but the agreement fails to address ownership of the shelf 
surrounding the islands. See Simon Henderson, The Persian Gulf’s ‘Occupied Territory’: 
The Three-Island Dispute, WASH. INST. OF NEAR E. POL’Y (Sept. 8, 2008), https:// 
www.washingtoninstitute.org/policy-analysis/persian-gulfs-occupied-territory-three-island 
-dispute [https://perma.cc/E2CP-TE27].
10 See GUO, supra note 8, at 39–40.
11 See U.N. SCOR, 26th Sess., 1610th mtg. ¶ 58, U.N. Doc. S/PV 1610 (Dec. 9, 1971)
(quoting November 30, 1971, cable from Sheikh Saqr Bin Mohamad Ali Al-Qasimi to Gov.
of Iraq). See also Iranian Troops Occupy Three Strategic Islands in Persian Gulf, and a
Sheikdom Protests, N.Y. TIMES (Dec. 1, 1971), https://www.nytimes.com/1971/12/01
/archives/iranian-troops-occupy-three-strategic-islands-in-persian-gulf-and-a.html [https://
nyti.ms/3MVCC55] (reporting three Iranian deaths and several injured persons).
12 MEMORANDUM OF UNDERSTANDING, IRAN-SHARJAH, Nov. 30, 1971, reprinted in
THE LOWER GULF ISLANDS: ABU MUSA AND THE TUNBS DISPUTE 487–504 (Patricia Toye
ed., 1993). Circumstances surrounding the MOU suggest that “it was procured under
the threat of the use of force by Iran against the Sharjah.” CHARLES L.O. BUDERI &
LUCIANA T. RICART, THE IRAN-UAE GULF ISLANDS DISPUTE: A JOURNEY THROUGH 
INTERNATIONAL LAW, HISTORY AND POLITICS 556 (2018). The countries agreed to share
2024] The Critical Date and the Dispute over Islands in the 5 
Strait of Hormuz: Abu Musa and the Tunbs 
in possession of the islands for about 150 years.13 The MOU “gave Iran 
full jurisdiction over the range of hills on the northern side of Abu 
oil revenues while holding in abeyance the question of who owned Abu Musa. See Mobley, 
supra note 7, at 627. The agreement required Iran to give Sharja $3.75 million per year until 
Sharja’s annual oil revenue reached $7.5 million. Iranian Troops Occupy Three Strategic 
Islands in Persian Gulf, and a Sheikdom Protests, supra note 11. It has been noted that 
“[o]ne of the most important significant features of the Abu Musa is that it is potentially full 
of oil reserves.” Saeed Bagheri, Iran’s Attitude to Security in the Strait of Hormuz: An 
International Law Perspective, 13 N.Z. Y.B. INT’L L. 83, 102 n.78 (2015). The MOU is 
problematized by a state succession issue, as the countries signed the MOU on November 
29, 1971, before the UAE came into being on December 2, 1971. If the MOU constitutes a 
binding international agreement, then customary international law could call into question 
the logic supporting Article 52 of the Vienna Convention on the Law of Treaties. See 
generally Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331. 
Article 52 holds that “[a] treaty is void if its conclusion has been procured by the threat or 
use of force in violation of the principles of international law embodied in the Charter of the 
United Nations.” Id. art. 52 (emphasis added). The italicized phrase makes illegal ab initio 
treaties procured by illegal use of force. See Kirsten Schmalenbach & Alexander Prantl, 
How to End an Illegal War?, VÖLKERRECHTSBLOG (Apr. 21, 2022), https://voelkerrechts 
blog.org/how-to-end-an-illegal-war/ [https://perma.cc/S3TV-9M2J]. In 1992, Iran expelled 
foreigners and denied entry to UAE noncitizen workers on Abu Musa. See William A. Rugh, 
The Foreign Policy of the United Arab Emirates, 50 MIDDLE E.J. 57, 61 (1996). “In April 
1992, Iran took complete control of Abu Musa and subsequently placed some military 
equipment and administrative offices there.” KENNETH KATZMAN, CONG. RSCH. SERV., 
RS21852, THE UNITED ARAB EMIRATES (U.A.E.): ISSUES FOR U.S. POLICY 8 (2020). 
Though Iran subsequently repudiated the act and reaffirmed the 1971 MOU, the UAE 
interpreted the act as “terminally damaging the validity of the . . . MOU.” Richard Schofield, 
Anything but Black and White: A Commentary on the Lower Gulf Islands Dispute, in 
SECURITY IN THE PERSIAN GULF: ORIGINS, OBSTACLES, AND THE SEARCH FOR CONSENSUS 
171, 172 (Lawrence G. Potter & Gary G. Sick eds., 2002). The Emir of Sharjah was 
murdered in 1972, partly for having signed what was perceived as a “traitorous agreement 
with Iran.” ROSEMARIE SAID ZAHLAN, THE MAKING OF THE MODERN GULF STATES: 
KUWAIT, BAHRAIN, QATAR, THE UNITED ARAB EMIRATES AND OMAN 103 (1989). 
13 See James Onley, Britain’s Informal Empire in the Gulf, 1820–1971, 22 J. SOC. AFFS. 
29, 31 (2005). Important sources of income for the Sheikh of Sharjah included concessions 
granted in 1898, 1923, 1935, and 1953 to mine red (ferric) oxide on Abu Musa. See BUDERI 
& RICART, supra note 12, at 13. In 1906, one of the lease holders sold his interest to a British 
subject, who in turn transferred the interest to the German company Wönckhaus and 
Partners. Eventually, a dispute arose when Sheikh Saqr bin Khalid Al-Qasimi cancelled the 
concession. Future concessions involved extensive infrastructural development on the 
island, including tunnels, railways, and worker residences. See SULTAN BIN MOHAMMED 
AL-QASIMI, TALE OF A CITY, PT. II 35–41 (David Wilmsen ed., Ahmed Ali trans., 2017). 
Buderi and Ricart regard the concessions as an important display of territorial sovereignty 
during the late nineteenth and early twentieth centuries. See BUDERI & RICART, supra note 
12, at 13. They note that while “[t]here is no record of any protest by Persia over the 1898 
agreement, nor, however, any record that the Persian government was aware of it,” the 
extensive documentation and legal argumentation surrounding the Wönckhaus Affair 
addresses with “particular relevance” the question of Sharjah’s sovereignty over the island. 
Id. The New York Times Tehran Bureau Chief, Thomas Erdbrink, noted Iranian claims that 
the islands were Iranian until Britain occupied them in 1908. He also noted that the UAE 
6 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
Musa, where it could maintain a military presence.”14 The Sheikh of 
Ras Al-Khaimah had refused to sign a similar agreement relating to the 
Tunbs,15 prompting Iran to invade.16  
Iran had increasingly made claims over the sparsely populated Abu 
Musa and Greater Tunb Islands, as well as the uninhabited Lesser 
Tunb, following Britain’s 1968 departure announcement.17 To this day, 
both Iran and the UAE continue to claim the islands as hereditary 
estates and as inseparable parts of their respective territories.18 The 
U.N. Security Council addressed this contention but deferred action on 
the invasion in December 1971,19 never to return to the subject. 
Bilateral negotiations in 1992 and 1995 ended in stalemate.20 Despite 
took their claim to the U.N. Security Council in 1980, which rejected the claim based on 
Iran’s development of the island’s infrastructure, including roads, schools, and a university. 
See Thomas Erdbrink, A Tiny Island Is Where Iran Makes a Stand, N.Y. TIMES (Apr. 30, 
2012), https://www.nytimes.com/2012/05/01/world/middleeast/dispute-over-island-of-abu 
-musa-unites-iran.html [https://perma.cc/RU2R-CYXB]. See also FRED M. SHELLEY,
NATION SHAPES: THE STORY BEHIND THE WORLD’S BORDERS 457 (2013) (noting the 1980
appeal to the U.N. Security Council). Iraq intimated that Iran’s occupation of the islands
was a casus belli leading up to the Iran-Iraq war. See Letter from the Minister of Foreign
Affairs of Iraq [Sadoon Hammadi] to the Secretary General A/35/201; S/13918 (Apr. 2,
1980), https://search.archives.un.org/uploads/r/united-nations-archives/5/b/7/5b7d1965
ba66919d99ae3ddf6ded1a5243bff592de3baafee70a28685ddc812d/S-0904-0022-13-00001
.PDF [https://perma.cc/598Q-ESYZ].
14 GEOFFREY KEMP & ROBERT E. HARKAVY, STRATEGIC GEOGRAPHY AND THE 
CHANGING MIDDLE EAST 96 (1997). 
15 ZAHLAN, supra note 12, at 103. 
16 NOURA S. AL-MAZROUEI, DISPUTED ISLANDS BETWEEN UAE AND IRAN: ABU 
MUSA, GREATER TUNB, AND LESSER TUNB IN THE STRAIT OF HORMUZ 11 (2015). See 
BUDERI & RICART, supra note 12, at 566 (“[The negotiated MOU on Abu Musa and] the 
failed negotiations over the Tunbs which led to the Iranian seizure of those islands.”). 
17 See U.N. SCOR, 26th Sess., supra note 11, ¶ 66 (presenting the claims of T. El-Shibib, 
the Iraqi representative to the U.N. Security Council). 
18 See Iran Responds to UAE’s Claim over 3 Islands in Persian Gulf, ISLAMIC REPUBLIC 
NEWS AGENCY (Sept. 28, 2021, 11:35 AM), https://en.irna.ir/news/84486438/Iran-responds 
-to-UAE-s-claim-over-3-islands-in-Persian-Gulf [https://perma.cc/ZQJ7-DAYH] 
(reiterating the Islamic Republic of Iran’s “consistent and principled position” regarding 
ownership of the islands); Occupied UAE Islands, EMBASSY OF THE U.A.E., D.C., 
https://www.uae-embassy.org/discover-uae/foreign-policy/occupied-uae-islands [https:// 
perma.cc/W8UV-RV8C] (protesting Iran’s “illegal occupation” of the islands and noting 
the UAE). See generally HERSCH LAUTERPACHT, PRIVATE LAW SOURCES AND ANALOGIES 
OF INTERNATIONAL LAW 91 (Longmans, Green Co. ed, 1927) (discussing the monarchical 
idea of patrimonium). 
19 See U.N. DEP’T OF POL. & SEC. COUNCIL AFFS., REPERTOIRE OF THE PRACTICE OF 
THE SECURITY COUNCIL: SUPPLEMENT 1969–1971, at 167, U.N. Doc. ST/PSCA/Add.6, 
U.N. Sales No. E.76.VII.1 (1976). 
20 See UAE, Iran Resume Island Dispute Talks, UPI (Nov. 19, 1995), https://www 
.upi.com/Archives/1995/11/19/UAE-Iran-resume-islands-dispute-talks/9885816757200/ 
[https://perma.cc/VJ5Q-4T36] (noting the 1992 talks and the commencement of the 1995 
2024] The Critical Date and the Dispute over Islands in the 7 
Strait of Hormuz: Abu Musa and the Tunbs 
repeated UAE bids to resolve the dispute in accordance with U.N. 
Charter Article 33 at the International Court of Justice (ICJ),21 
Iran refuses to consent to third-party settlement.22 Other efforts 
have also since failed to resolve the dispute, including a joint 
UAE-Iran commission,23 a purported land swap involving Omani 
intermediaries,24 and sea swaps.25 Iranian President Ahmadinejad’s 
visit to the island on Iran’s 2012 National Day of the Persian Gulf only 
provoked tensions around the Arab world.26 Accordingly, the Lower 
Gulf Islands remain among the frozen disputes in international law.27 
negotiations); AL-MAZROUEI, supra note 16, at 17 (noting the collapse of the 1995 
negotiations). 
21 Article 33 of the U.N. Charter mandates that members seek a peaceful means of 
dispute settlement on matters likely to endanger the maintenance of international peace and 
security. On the UAE’s calls to refer the issue to the ICJ, see Rola Alghoul et al., Statement 
by UAE before the General Debate of the 76th Session of UNGA, EMIRATES NEWS 
AGENCY-WAM (Sept. 28, 2021, 16:09 PM), http://wam.ae/en/details/1395302974589 
[https://perma.cc/6WAW-GV5P].  
22 See Abu Musa, Greater Tunb, Lesser Tunb Belong to Iran: Foreign Ministry, ISLAMIC 
REPUBLIC NEWS AGENCY (Sep. 17, 2021, 2:47 PM), https://en.irna.ir/news/84473937 
/Abu-Musa-Greater-Tunb-Lesser-Tunb-belong-to-Iran-Foreign-Ministry [https://perma.cc 
/6RRV-87LZ] (“[Iranian Foreign Ministry Spokesman Saeed] Khatibzadeh said . . . that the 
repetitive and tedious statements issued . . . will not change the status of these islands.”); 
Q&A: Iran President’s Controversial Visit to Abu Musa, BBC NEWS (Apr. 23, 2012), 
https://www.bbc.com/news/world-middle-east-17770111 [https://perma.cc/KWD6-CRFJ] 
(quoting Iranian Foreign Ministry’s longstanding claim that Iran’s ownership was 
“definitive, permanent and non-negotiable”); Abu Musa Lesser Tunb, Greater Tunb Islands 
Inseparable Part of Iranian Territory, Any Claim to the Contrary Rejected, IRANIAN 
STUDENTS’ NEWS AGENCY (Sept. 28, 2021, 13:52), https://en.isna.ir/news/1400070603722 
/Abu-Musa-Lesser-Tunb-Greater-Tunb-islands-inseparable-part [https://perma.cc/NX8T 
-XSDH] (quoting Iranian U.N. official Payman Ghadirkhomi’s claim of Iran’s inviolable
sovereignty over the islands and the nonrecognition of any dispute with the UAE over
contrary claims).
23 See KATZMAN, supra note 12, at 8. 
24 See Daniel Pipes, Has Iran Gained a Foothold in the Arabian Peninsula?, NAT.  
REV. (Jan. 17, 2014, 12:00 PM), https://www.nationalreview.com/corner/has-iran-gained 
-foothold-arabian-peninsula-daniel-pipes/ [https://perma.cc/2NZP-4GDM] (proposing Iran
exchange control over the islands for a strategic foothold in Ras Musandam at the tip of the
Strait of Hormuz in Oman, along with payments of oil and gas to the Sultanate).
25 KATZMAN, supra note 12, at 9 (granting Iran control over the islands’ seabed in 
exchange for returning the terra firma to the UAE); Awad Mustafa, Iran, UAE Close to 
Deal on Hormuz Islands, DEF. NEWS, Dec. 9, 2013, at A16. 
26 See Erdbrink, supra note 13. 
27 See generally Thomas D. Grant, Frozen Conflicts and International Law, 50 CORNELL 
INT’L L.J. 361 (2017) (noting that the term escapes precise legal definition, but relates to 
unsettled status, referencing examples such as Transnistria, Nagorno-Karabakh, South 
Ossetia, Abkhazia, and Eastern Ukraine). 
8 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
This Article critically reviews the international legal considerations 
attaching to the disparate claims of sovereignty over the Lower Gulf 
Islands. Contested narratives relating to historic title have led 
international law to rely on a critical date on which to base sovereign 
title. Establishing the critical date problematizes the periodization of 
sovereignty and creates its own peculiar problems. The conundrum of 
the critical date, set against the backdrop of Abu Musa and the Tunbs, 
reveals the arbitrary nature of international law. This realization 
rationally suggests that the critical date dispute may be resolved 
through sharing or de-territorializing space. However, these are 
unlikely prospects that leave the international community in search of 
a second-best solution and, oddly, the UAE in search of a 
counterbalance—perhaps its own island to control in the mouth of the 
Gulf of Aden, which connects the Indian Ocean to the Mediterranean 
Sea through the Suez Canal.28 
To interrogate the utility of the critical date and its relation to the 
impasse involving the status of the Lower Gulf Islands, Part I reviews 
the political circumstances that contributed to the sovereignty dispute 
at the end of the Pax Britannica in the Gulf region. Part II introduces 
place naming and toponymic complications that coincide with the 
conceptual problem of territorializing civilizational units. Languified 
characterizations of the Gulf can inform the way international law 
addresses questions of sovereignty. Part III frames the international law 
relating to periodizing sovereignty and assesses the metaphorical 
significance of the critical date in relation to uti possidetis and the 
nomadic, non-Euclidean history of Gulf peoples. Here, the Article 
asserts that the idea of the critical date succumbs to indefinite and 
nontemporal characterizations that attach a specter of ambiguity to the 
ascertainment of the critical date. Absent a willingness of the parties to 
negotiate or ascertain the critical date through a third party, the Article 
concludes by noting an emerging attempt by the UAE to leverage 
political interests opposing Iran elsewhere. This adventurism raises 
concerns about another critical date, proffered to secure the UAE’s 
efforts to territorialize a counterbalancing island of strategic value. 
Rather than contributing to fixity and certainty, international law’s 
interest in associating territorial title with the temporal component of 
28 See Elin Hellquist & Samuel Neuman Bergenwall, Managing Security in the Red Sea 
and Gulf of Aden, 8112 FOI STUD. AFR. SEC. 1, 2 (Feb. 13, 2023), https://www.foi.se/rest 
-api/report/FOI%20Memo%208112 [https://perma.cc/L2B4-5ZAE] (noting the Gulf of
Aden’s “immense strategic value” as a link between the Mediterranean Sea and Indian
Ocean).
2024] The Critical Date and the Dispute over Islands in the 9 
Strait of Hormuz: Abu Musa and the Tunbs 
the critical date unavoidably conjures up specters of the past. Those 
specters return to haunt the fate of three small islands in the Lower Gulf 
and reveal the inherent difficulty in determining the critical date.  
I 
THE POWER VACUUM 
This Part discusses the circumstances of political intrigue that 
accompanied the Iranian attacks. Arab diplomats asserted that Britain 
and America connived29 to allow Iran to fill the anticipated power 
vacuum caused by the retiring Pax Britannica. Rising Arab nationalism 
and the Soviet pursuit of an anchorage in the Gulf supported Arab 
claims that Western powers underwrote Iran’s billion-dollar military 
buildup to fill the anticipated British void.30 Decolonization had already 
presented itself as an eventuality with the 1956 Anglo-French debacle 
at Suez and the 1958 overthrow of the Britain-supported Hashemite 
monarchy in Iraq.31 The 1967 decision by the British to withdraw from 
the Aden Protectorate (Yemen)—“the last major vestige of [its] 
29 U.N. SCOR, 26th Sess., supra note 11, ¶ 68 (referencing the Arab claim of 
“connivance” of the United States and U.K. allowing for Iran’s seizure of the islands).  
30 See, e.g., William E. Griffith, Iran’s Foreign Policy in the Pahlavi Era, in IRAN 
UNDER THE PAHLAVIS 365, 378 (George Lenczowski ed., 1978) (“[There were] gloomy 
predictions in the West of a power vacuum . . . that the Soviets and Arab radicals, notably 
the Iraqi Ba’th regime, would fill.”); J.C. Hurewitz, The Persian Gulf: British Withdrawal 
and Western Security, 401 ANNALS AM. ACAD. POL. & SOC. SCI. 106, 106 (1972) (noting 
“Soviet attempts to establish a naval anchorage in the Gulf” and the “Western support” of 
the Iranian military buildup). Mobley’s review of declassified documents tells a different 
story. Britain chiefly focused on filling its void in the Gulf with the establishment of the 
federated UAE. Despite concerted efforts to diplomatically resolve the island dispute—
which was, for a time, configured along a suggested meridian line ceding the Tunbs to Iran 
and Abu Musa to the UAE—Britain satisfied itself with the more salient shared arrangement 
over Abu Musa while ‘writing off’ UAE control over the Tunbs. Given that the final result 
settled the question of Bahrain, Bahrain and Qatar entered into the Arab League and the 
U.N. and, thus, created the UAE. See Mobley, supra note 7, at 644. Buderi and Ricart 
concluded that despite efforts to find a common ground, and “after almost a century of 
consistently defending Qawásim sovereign rights over the islands, the British had openly 
adopted a decidedly indifferent position in the face of an Iranian seizure of the islands by 
force.” BUDERI & RICART, supra note 12, at 568. 
31 These two events contributed to the end of colonial rule in the Middle East. For a 
discussion of tensions and economic threats created by the British, French, and Israeli 
invasion of Egypt, see generally DAVID A. NICHOLS, EISENHOWER 1956: THE PRESIDENT’S 
YEAR OF CRISIS—SUEZ AND THE BRINK OF WAR (2012). On the overthrow of the British-
backed Hashemite monarchy by the Free Officers Revolution and the security dilemma 
posed, particularly for American policymakers, see BRANDON WOLFE-HUNNICUTT, THE 
PARANOID STYLE IN AMERICAN DIPLOMACY: OIL AND ARAB NATIONALISM IN IRAQ 9 
(2021). 
10 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
erstwhile global empire”32—may have served as a “harbinger” of 
Britain’s impending departure plan, and a catalyst for Iran to upgrade 
air capabilities through American military purchases.33 When Britain’s 
declared date of departure arrived34—at the cusp of the creation of the 
federated sheikhdoms of the UAE—Iran made its move. With 
retreating Britain unwilling, and the fledgling UAE unable to respond 
to the invasion,35 Iran secured its fait accompli over the islands. In 
response, Libya nationalized British Petroleum assets and Iraq severed 
diplomatic relations with Britain.36 
Iranian perspectives point to an informal quid pro quo whereby Iran 
was to acquire the islands as compensation for relinquishing historical 
claims to Bahrain.37 Bahrain had maintained a special place in the 
32 Alvin J. Cottrell, Iran’s Foreign Policy in the Pahlavi Era, in IRAN UNDER THE 
PAHLAVIS 389, 404 (George Lenczowski ed., 1978). Britain occupied the Gulf Port of Aden 
in 1839 and established the Aden Protectorate via transfer from the Government of India. 
The Aden Protectorate dissolved in 1963, and after attacks against British forces, Britain 
withdrew in 1967. The area today forms the territory of the Republic of Yemen. For its 
colonial history, see Robert R. Robbins, The Legal Status of Aden Colony and the Aden 
Protectorate, 33 AM. J. INT’L L. 700 (1939). For the escalating nationalist conflict leading 
to the British withdrawal, see Why Did British Troops Leave Aden?, IMPERIAL WAR 
MUSEUMS, https://www.iwm.org.uk/history/why-did-british-troops-leave-aden [https:// 
perma.cc/SV27-9R56]. The withdrawal “deeply concerned” the Sheikdoms of the lower 
Gulf. In response, the British sent their Minister of State for Foreign Affairs, Goronwy 
Roberts, to allay concerns of abandonment. Bin-Abood, supra note 8, at 57–58. 
Notwithstanding the assurances, Roberts returned a few months later, in January 1968, “to 
inform the rulers that Britain now had a plan to withdraw [from the Gulf] by the end of 
1971.” Id. at 95. At that time, Roberts reportedly may have proposed the Gulf rulers federate, 
an idea that took the form of a bilateral agreement between Dubai and Abu Dhabi on 
February 18, 1968. See id. at 249.  
33 See Cottrell, supra note 32 (“It was not by mere coincidence that the Shah began to 
procure the F-4 aircraft from the United States in . . . 1968.”). Citing a US government 
analysis in 1970, Al-Mazrouei concluded that the US began to envision a Twin Pillar policy 
of Gulf security based on regional cooperation between Iran and Saudi Arabia on the 
departure of the British. He postulated, however, that Saudi Arabia would withhold 
recognition of the fledgling federated UAE until there was a favorable resolution of border 
issues. See Noura Saber Mohammed Saeed Al-Mazrouei, UAE-Saudi Arabia Border 
Dispute: The Case of the 1974 Treaty of Jeddah 112–14 (Oct. 2013) (Ph.D. dissertation, 
University of Exeter) (on file with the University of Exeter). 
34 The British withdrawal from the Gulf began on December 2, 1971. The last British 
servicemembers to leave Bahrain withdrew on December 16, 1971. R.P. Owen, The British 
Withdrawal from the Persian Gulf, 28 WORLD TODAY 75, 75 (1972). 
35 See Mobley, supra note 7, at 628 (noting the view that London ultimately pursued the 
“Pontius Pilate solution” by washing its hands of a negotiated solution). 
36 See ZAHLAN, supra note 12, at 103 (discussing Arab anger regarding the timing of the 
invasion and the withdrawal of Britain that caused the Tunbs to fall “between two stools”). 
37 See Jalil Roshandel, On the Persian Gulf Islands: An Iranian Perspective, in 
SECURITY IN THE PERSIAN GULF: ORIGINS, OBSTACLES, AND THE SEARCH FOR CONSENSUS 
2024] The Critical Date and the Dispute over Islands in the 11 
Strait of Hormuz: Abu Musa and the Tunbs 
geopolitics of the region, given the early discovery and development of 
oil resources there38 and the “fragile demographic-political makeup of 
the principality, in which a Sunni minority rules a Shiite majority.”39 
Iran had purportedly asserted its claim to Bahrain “uninterruptedly,” 
except during the period of Portuguese occupation (1507-1622),40 
which began when the Portuguese Fidalgo (nobleman) Alphonso 
Burkerk captured Hormuz in 1507.41 Persian claims of control over the 
islands date from 1165 BCE and the Elamite Empire of Shilhak-In-
Shushinak.42 A lingering perception is that the incentive required for 
135, 136 (Lawrence G. Potter & Gary G. Sick eds., 2002) (noting the Iranian belief in a deal 
to “compensate Iran for recognizing Bahrain’s independence”); KOUROSH AHMADI, 
ISLANDS AND INTERNATIONAL POLITICS IN THE PERSIAN GULF: ABU MUSA AND THE 
TUNBS IN STRATEGIC PERSPECTIVE 3 (2008) (situating the dispute in a broader historical 
and strategic context in which the islands became “pawns” in a greater game). Hassan H. 
Al-Alkim, a UAE scholar, agreed that the reason for Iran insisting on annexing the islands 
may have had more to do with providing the Shah with a face-saving gesture for 
relinquishing the claim to Bahrain than any strategic objective, given that Iran has control 
over “much more strategic territory than the disputed islands, notably Qeshm island and 
Bander Abbas controlling the entrance of the Gulf.” Hassan H. Al-Alkim, The Islands 
Question: An Arabian Perspective, in SECURITY IN THE PERSIAN GULF: ORIGINS, 
OBSTACLES, AND THE SEARCH FOR CONSENSUS 155, 158 (Lawrence G. Potter & Gary G. 
Sick eds., 2002). A confidential British Foreign Office memorandum noted the Shah’s 
private recognition of the need to control the islands as a face-saving spoil for relinquishing 
Iranian claims to Bahrain. See BUDERI & RICART, supra note 12, at 557 (quoting a 
confidential June 1968 British memorandum). 
38 About Us, BAPCO REFINING, https://www.bapco.net/en/page/history/#history 
[https://perma.cc/MH8Z-FL2U] (noting that oil in the Arabian Gulf was first discovered in 
Bahrain in 1932). The Englishman, William Knox D’Arcy, negotiated the first concession 
agreement with Persia in 1901, finding oil there (at Masjed Soleyman) in 1908. British 
mapping of the region progressed between 1905 and 1908 with the publication of Lieutenant 
Fraser Hunter’s Map of Arabia. A strike in Iraq in 1927 led to further exploration and the 
major strike in Bahrain, which sparked the intensive exploitation of Middle East petroleum. 
See Oil Maps of the Middle East, BRIT. LIBR., https://www.bl.uk/maps/articles/oil-maps-of 
-the-middle-east [https://perma.cc/H5NS-96X2] (detailing the cartographic history of oil
exploration in the Middle East).
39 Doron Itzchakov, Iran and Bahrain: Ancient Ambitions, New Tactics, BEGIN-SADAT 
CTR. FOR STRATEGIC STUD. (Mar. 7, 2018), https://besacenter.org/iran-bahrain/ [https:// 
perma.cc/2KPL-T2Q2]. 
40 Majid Khaddurri, Iran’s Claim to the Sovereignty of Bahrayn, 45 AM. J. INT’L L. 631, 
634 (1951) (reviewing the historical claim of Iran to Bahrain but discounting its significance 
after the 1820 arrival of Great Britain in the Gulf). 
41 Ahmad Jalinusi & Vahid Barari Arayee, The Three Islands: (Abu Musa, the Greater 
& Lesser Tunb Islands) Integral Parts of Iran, 19 IRANIAN J. INT’L AFFS. 1, 3 (2007). 
Historical, Geographical and Legal Validity of the Name: Persian Gulf 3 (U.N. Grp. 
of Experts on Geographical Names, Working Paper No. 61, Apr. 4, 2006), https://unstats 
.un.org/unsd/geoinfo/UNGEGN/docs/23-gegn/wp/gegn23wp61.pdf [https://perma.cc 
/BDM9-79D7]. 
42 Jalinusi & Arayee, supra note 41. 
12 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
Iran’s abandonment of its purported historical claim to Bahrain 
involved acquiescing to, if not allowing, its takeover of the Lower Gulf 
Islands.43  
An involved historical debate surrounds possessory claims to more 
than the Lower Gulf Islands; this complexity relates to the entire Gulf 
region. Sir Clements Markham (1830-1916), the influential Secretary 
of the Royal Geographical Society, contended that “[t]he whole trade 
of the Persian Gulf remained in the hands of the Arabs for many 
centuries, and a long line of merchant-kings reigned at Ormuz 
[Hormuz], before Vasco da Gama discovered the Cape of Good 
Hope.”44 Sir Clements’ historical account aligned with what appeared 
to be contemporary British interests at the time, however, his account 
underemphasized the territorial extent of the two hundred year 
Achaemenid Empire (538-330 BCE).45 Under Cyrus the Great, the 
Persians conquered Babylonia and the Tigris and Euphrates river 
valley. The Persians crossed the Strait of Hormuz and converted the 
southern littoral of the Gulf of Oman into the semi-exclave satrapy 
(province) of Maka.46 Sir Clements’ view also contrasted with 
polyphonic narratives of conflict involving the British East India 
Company, the Dutch East India Company, and the Ottomans of Basra 
following Shah Abbas’ defeat of the Portuguese maritime empire at 
Hormuz in 1622.47 
Claims of uninterrupted historical control of the Gulf appear in 
modern Iranian accounts as well. However, Iran’s purported 
relinquishment over the Upper Gulf only served to reinforce that its 
claim of perpetual possession over the Lower Gulf Islands of Abu Musa 
and the Tunbs was nonnegotiable. As the Shah stated in 1971: “What 
we are demanding [regarding the islands] is what has always belonged 
43 On the “widespread belief in the region” involving this quid pro quo, see Henderson, 
supra note 9. 
44 CLEMENTS R. MARKHAM, A GENERAL SKETCH OF THE HISTORY OF PERSIA 415–16 
(London, Longmans, Green, & Co. 1874). 
45 See generally JOSEF WIESEHÖFER, ANCIENT PERSIA FROM 550 BC TO 650 AD 
(Azizeh Axodi trans., 2d ed. 2001).  
46 See Simeon Netchev, The Achaemenid Persian Empire c. 500 BCE, WORLD  
HIST. ENCYCLOPEDIA (July 5, 2022), https://www.worldhistory.org/image/16107/the 
-achaemenid-persian-empire-c-500-bce/ [https://perma.cc/59NQ-NHSQ] (illustrating the
imperial reach of the Achaemenid Persian Empire from its origins in 550 BCE to its demise
following conquest by Alexander the Great in 329 BCE).
47 See generally Joan-Pau Rubiés, 1622 y la crisis de Ormuz ¿Decadencia o 
reorientación?, 48 MÉLANGES DE LA CASA DE VELÁZQUEZ 121 (2018) (Spain) (broadening 
the discussion of the fall of the Hormuz fortress in 1622 to include imperial perspectives of 
the metropolis). 
2024] The Critical Date and the Dispute over Islands in the 13 
Strait of Hormuz: Abu Musa and the Tunbs 
to our country throughout history . . . . It is perfectly natural and 
reasonable that, now that imperialism is withdrawing, Iran should 
regain what has always been its possession historically.”48  
Filling this imperial void involved “[twenty-six] months of secret 
. . . negotiations” between Britain and Iran in the lead-up to Iran’s 
abandonment of its historical claim to Bahrain in March of 1970.49 
During this period of the Cold War, United States engagement policy 
with the Middle East depended on establishing regional partnerships 
with Sunni-majority Saudi Arabia and Shiite-dominated Iran as 
monarchical buffers against Soviet intrusion and guarantors of stable 
oil supplies at tolerable prices.50 Preserving Iran’s status quo position 
as one of the Twin Pillars, along with Saudi Arabia, of newly forming 
Gulf regional security policy,51 necessitated a pragmatic solution to the 
Bahrain question that would not compromise the Shah’s already 
“waning domestic legitimacy.”52 The question of exchanging Iranian 
claims to Bahrain for control over the Lower Gulf Islands, and the 
perception of a colonial exclusion of Arab interests, remain as 
backdrops to this territorial dispute.53  
II 
TERRITORIALIZING A CIVILIZATIONAL UNIT 
The anthropology of the Gulf affirms the complexity of its 
polyphonic, commercial, and human history. This Part illustrates 
challenges confronting international law in its treatment of disputed 
sovereignty issues. The interconnectedness and porosity of human 
geography make spatial and territorial divisions, preferred by the 
arrival of the state system, imperfect.  
48 AL-MAZROUEI, supra note 16, at 20. 
49 Roham Alvandi, Muhammad Reza Pahlavi and the Bahrain Question, 1968–1970, 37 
BRIT. J. MIDDLE E. STUD. 159, 159–60 (2010). 
50 Stephen Brannon, Pillars, Petroleum and Power: The United States in the Gulf, 2 
ARAB STUD. J. 4 (1994) (discussing the Twin Pillar Middle Eastern policy position of the 
United States). 
51 See Claudia Castiglioni, The Relations Between Iran and Saudi Arabia in the 1970s, 
97 CONFLUENCES MÉDITERRANÉE 143, 144 (2016) (Fr.) (discussing Tehran and Riyadh as 
the cornerstones of the Twin Pillars Policy for Gulf regional security). 
52 Alvandi, supra note 49, at 160. 
53 See Hussein Ibish, Iran’s New Ploy to Disrupt the Mideast: Laying Claim to Bahrain, 
BLOOMBERG (Sept. 20, 2022, 9:00 PM), https://www.bloomberg.com/opinion/articles/2022 
-09-21/iran-claims-bahrain-to-shake-up-nuclear-talks-and-rebuff-israel#xj4y7vzkg [https://
perma.cc/8EJJ-DG4F] (noting Iran’s revival of its claim that Bahrain, or Mishmahig, is the
long-lost fourteenth province of Iran).
14 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
Cracks in sovereignty’s container arise in multiple areas of the Gulf. 
For instance, Farsi, the official language of Iran, is of Indo-European 
extract.54 Arabic is often spoken along the Iranian littoral south of 
Bushehr.55 At the turn of the century, expatriate Iranian communities 
populated Bahrain and Dubai, and one could hear fourteen languages 
spoken in the suks of Muscat and Matrah.56 Similarly, several religions 
coexisted. Although the majority of Arab Iraqis share the Shiite Islam 
of the Iranians,57 “[a] Portuguese visitor in 1549 commented that in 
Hormuz, God was celebrated four times a week—by the Muslims on 
Friday, the Jews on Saturday, the Christians on Sunday, and the Hindus 
on Monday.”58 The cross-fertilization of cultures around this inland sea 
promotes the conclusion that the conflict between Arabs and Persians 
is more the product of “state formation and the rise of nationalism” than 
of imperial interference or millennial historical antagonisms.59  
While Gulf Shia had prolonged periods of political ascendency 
during the Būyid (945–1055), Fāt imid (909–1171), and Safavid 
(1502–1736) eras, no evidence supports a claim of uninterrupted 
hegemony over the Gulf by any of the multitudinous factions that sailed 
its sea. Separated from interiors bounded by mountains and deserts, the 
peoples of the littoral Gulf shared a crisscrossing maritime history. This 
indicates that the Gulf historically represented a unified “civilizational 
unit,” as opposed to the divisions introduced by modern statehood.60 
Archeological evidence of the prehistory of the UAE points toward the 
conclusion that the Gulf is better understood in relation to the region as 
a whole.61 Accordingly, 
[l]ong before it became the Trucial States, let alone the United Arab
Emirates, this region interacted with its neighbors in Northeastern
54 LAWRENCE G. POTTER, THE PERSIAN GULF IN HISTORY 2 (Lawrence G. Potter ed., 
2009). 
55 Id. 
56 Id. 
57 See Munqith Dagher, Avoiding the Iranian Trap: Iraqi Shia Are Not Loyal to Iran, 
WASH. INST. FOR NEAR E. POL’Y: FIKRA F. (Jan. 15, 2021), https://www.washington 
institute.org/policy-analysis/avoiding-iranian-trap-iraqi-shia-are-not-loyal-iran [https:// 
perma.cc/NN9K-WNTL]. 
58 See POTTER, supra note 54. 
59 Fred Halliday, Arabs and Persians Beyond the Geopolitics of the Gulf, 22 CAHIERS 
D’ÉTUDES SUR LA MÉDITERRANÉE ORIENTALE ET LE MONDE TURCO-IRANIEN 251, 252 
(1996) (Fr.).  
60 POTTER, supra note 54, at 1. 
61 N.Y.U. Abu Dhabi Inst., The Development of the Trucial Coast: From the Buyids to 
the British, YOUTUBE at 41:53 (Mar. 7, 2016), https://www.youtube.com/watch?v=4qCVJ 
-49tfw [https://perma.cc/G37U-XA29] (talk by Professor Daniel Potts).
2024] The Critical Date and the Dispute over Islands in the 15 
Strait of Hormuz: Abu Musa and the Tunbs 
and Central Arabia, the Central and Northern Gulf, and Southern 
Iran, and bore the brunt of foreign state and imperial pressure from 
the era of the Buyids through subsequent periods of dominance by 
the Kingdoms of Kish and Hormuz, the Portuguese, Safavids, 
Omanis, Afsharids, and the East India company. One could look 
much further back in time, as well, for evidence of similar patterns, 
as archeology provides ample evidence of the extent to which the 
coast of what is today the UAE was intimately linked to its 
Mesopotamian, Iranian, and Indian neighbors.62  
This history equally diminishes sweeping hegemonic claims of 
ownership over the Gulf and centuries of commercial penetrations from 
India and East Africa,63 South East Asia,64 and Ming China.65 The 
Europeans have predominantly authored these remnants of history,66 
particularly after the Scottish hydrographer James Horsburgh 
published the Gulf navigational directory67 and the sacking of Ras Al-
62 Id. at 44:39–45:21. 
63 See DIONISIUS A. AGIUS, SEAFARING IN THE ARABIAN GULF AND OMAN PEOPLE OF 
THE DHOW 111–26 (2005) (discussing seafaring routes to West India and East Africa); 
POTTER, supra note 54, at pt. II (presenting three essays on cultural links between the Gulf 
and Indian Ocean). 
64 Christophe Jaffrelot & Laurence Louër, The Gulf-South Asia Religious Connections: 
Indo-Islamic Civilizations vs. Pan-Islamism?, in PAN-ISLAMIC CONNECTIONS: 
TRANSNATIONAL NETWORKS BETWEEN SOUTH ASIA AND THE GULF 1 (Christophe 
Jaffrelot & Laurence Louër eds., 2017) (presenting historical background on the 
multifaceted relationships between the Gulf and South Asia). 
65 See Lin Meicun & Ran Zhang, Zheng He’s Voyages to Hormuz: The Archeological 
Evidence, 89 ANTIQUITY 417 (2015) (discussing Ming Imperial Fleet Admiral Zheng He’s 
four sailings to Hormuz in the fifteenth century); Ralph Kauz & Roderich Ptak, Hormuz in 
Yuan and Ming Sources, 88 BULLETIN DE L’ÉCOLE FRANÇAISE D’EXTRÊME-ORIENT 27 
(2001) (Fr.) (discussing Admiral Zheng He’s fifteenth-century sojourns in Hormuz and 
interactions with the local elite). 
66 See generally [1908] 1 & [1915] 2 JOHN GORDON LORIMER, GAZETTEER OF THE 
PERSIAN GULF, OMAN, AND CENTRAL ARABIA (compiling then-confidential historical, 
geographical, statistical, and ethnological background for British diplomats in the region); 
ANTÓNIO DIAS FARINHA, OS PORTUGUESES NO GOLFO PÉRISCO, 1507–1538: 
CONTRIBUIÇÃO DOCUMENTAL E CRÍTICA PARA A SUA HISTÓRIA (1991) (presenting a 
leading Portuguese account); SANJAY SUBRAHMANYAM, THE PORTUGUESE EMPIRE IN 
ASIA, 1500–1700: A POLITICAL AND ECONOMIC HISTORY (2d ed. 2012) (updating his 
account of Portuguese colonialism in the Gulf and Asia); C.R. BOXER, THE DUTCH 
SEABORNE EMPIRE, 1600–1800 (1965) (a classic presentation of the rise of Dutch maritime 
power); PHILIP LAWSON, THE EAST INDIA COMPANY: A HISTORY (1993) (canvassing the 
epic 250-year history of the British trading company). 
67 See generally JAMES HORSBURGH, INDIA DIRECTORY, OR DIRECTIONS FOR SAILING 
TO AND FROM THE EAST INDIES, CHINA, NEW HOLLAND, CAPE OF GOOD HOPE, BRAZIL, 
AND THE INTERJACENT PORTS (London, H. Brewis & Sons 1809) (presenting the first of 
eight editions published between 1809 and 1864, including descriptions of Sharjah, Dubai, 
Abu Dhabi (Abothubbee), Bahrain, and Hormuz, compiled from journals of ships employed 
by the East India Company). 
16 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
Khaimah in 1809, which led to British dominance in the region for the 
next 150 years.68 These narratives compounded to create an orientalist 
discourse of Western dominance,69 which depicted the Middle East as 
antirational and in need of the West’s civilizing mission (mission 
civilisatrice). While some documents implied that British authorities 
recognized Iran’s claim in the nineteenth century70—for instance, an 
1886 British War Ministry map that showed Abu Musa and the Tunbs 
as belonging to Iran71—European colonial rule was preoccupied with 
the consolidated Sunni regimes of the Gulf. This phenomenon is largely 
typified by Sir Clements’s Royal Geographical Society and the 
imperial influences of the nineteenth century British East India 
Company.72 However, the significance of cartography and place 
naming informed colonial impressions of the Gulf region, with lasting 
and problematic consequences for international law and its engagement 
with the sovereignty dispute. 
A. Place Naming and Toponomy
The nomenclature of the Gulf and the “hostilities” between Iran and 
the UAE over the disputed islands have been described as “[o]ne of the 
longest running toponymic battles in the world.”73 At issue is the 
transmission of beliefs, transmuted into understandings of historical 
68 See generally CHARLES E. DAVIES, BLOOD-RED ARAB FLAG: AN INVESTIGATION 
INTO QASIMI PIRACY 1797–1820 (1997) (recounting the disputes and decisive battle 
between British East India Company brigs and the Qawasim Arabs, which led to the 
complete destruction of the town of Ras Al-Khaimah in 1819). 
69 See ZACHARY LOCKMAN, CONTENDING VISIONS OF THE MIDDLE EAST: THE 
HISTORY AND POLITICS OF ORIENTALISM 66 (2d ed. 2009).  
70 See Henderson, supra note 9 (noting that British historical records “portray confusion” 
about bequeathing the islands to both Persians and tribal sheikhs on the Arabian side of the 
Gulf). 
71 The map is sometimes called the 1888 map because the British gave a copy of the map 
to the Persian ruler, Nasser Ad-Din Sha Qajar, in 1888. See AL-MAZROUEI, supra note 16, 
at 22. The British admitted that coloring the islands as belonging to Iran was an “unfortunate 
mistake.” See Mobley, supra note 7, at 629. 
72 N.Y.U. Abu Dhabi Inst., supra note 61, at 3:14. 
73 William O. Beeman, Gulf Society: An Anthropological View of the Khalijis—Their 
Evolution and Way of Life, in THE PERSIAN GULF IN HISTORY 147 (Lawrence G. Potter ed., 
2009). Toponymy is the study of place names. As a concept, it was introduced by cultural 
geographers to interrogate the cultural significance, social relationships, linguistic 
moorings, and onomastic recognition of landscapes, often demonstrative of the power 
relationships between the colonial and colonized. See generally V.R. Savage, Place Names, 
in INTERNATIONAL ENCYCLOPEDIA OF HUMAN GEOGRAPHY 178, 178–84 (Rob Kitchin & 
Nigel Thrift eds., 2009).  
2024] The Critical Date and the Dispute over Islands in the 17 
Strait of Hormuz: Abu Musa and the Tunbs 
entitlement, that express the refracted recordings of human identity.74 
Historical book titles foreshadow the painstaking reconstructions of 
sovereignty over the islands, such as Thomas R. Mattair’s The Three 
Occupied UAE Islands: The Tunbs and Abu Musa (2006)75 and 
Hooshang Amirahmadi’s less obviously titled but still suggestive Small 
Islands, Big Politics: The Tunbs and Abu Musa in the Persian Gulf 
(1996).76 As the title of Amirahmadi’s work suggests, evidence of 
Persia’s historical suzerainty over the islands attaches to the very name 
of the Gulf water—a point of special emphasis by the Iranian Ministry 
of Foreign Affairs.77  
Although the Persian Gulf’s toponymic reference is politically 
charged, its usage is informed by centuries of map making and 
history. The Portuguese usage of the term Sino Persico, meaning the 
Persian Sea, derives from a term possibly initiated by the Greek 
geographer Hecataeus around 500 BCE: Persikos kolpos.78 Claudius 
Ptolemy’s Geographia (ca. 150) influentially transported the exonym79 
around the Western world. Later, Martin Waldseemüller’s famous 
1507 Universalis Cosmographia map references the Sinus Persicus.80 
74 See CHRISTOPHER R. ROSSI, SOVEREIGNTY AND TERRITORIAL TEMPTATION: THE 
GROTIAN TENDENCY 11–14 (2017) (reviewing the life expressions of tradition as construed 
by historians such as Edward Shils, Eric Hobsbawm, Mark Salber Phillips, Wilhelm Dilthey, 
and others). 
75 See generally THOMAS R. MATTAIR, THE THREE OCCUPIED UAE ISLANDS: THE 
TUNBS AND ABU MUSA (2006). 
76 See generally SMALL ISLANDS, BIG POLITICS: THE TONBS AND ABU MUSA IN THE 
PERSIAN GULF (Hooshang Amirahmadi ed., 1996). 
77 See Iran’s Ministry of Foreign Affairs Issues Statement to Mark National Persian Gulf 
Day, IRANIAN STUDENTS’ NEWS AGENCY (Apr. 30, 2022), https://en.isna.ir/news/140102 
1006547/Iran-s-Ministry-of-Foreign-Affairs-issues-statement-to-mark-National [https:// 
perma.cc/J5LB-JBET] (inferring entitlement over the Gulf based on ancient, historical, and 
widespread usage of the name Persian Gulf).  
78 See BUDERI & RICART, supra note 12, at xxvi (employing the term Persikos kolpos). 
79 An exonym is the name used to describe a geographical feature outside the area where 
that language is spoken. Its opposite is called an endonym. Toponymists have long 
understood the politicized and passionate consequences of exonyms, and efforts have been 
made through the United Nations Group of Experts on Geographical Names (UNGEGN) to 
change words like Peking or Lake Victoria to Beijing or N’yanza. Confining or reducing the 
use of exonyms has proven difficult due to widespread usage in major world languages, 
“particularly for the countries of Europe.” U.N. GRP. OF EXPERTS ON GEOGRAPHICAL 
NAMES, EXONYMS AND THE INTERNATIONAL STANDARDISATION OF GEOGRAPHICAL 
NAMES 3 (Peter Jordan et al. eds., 2007). 
80 Martin Waldseemüller, Universalis Cosmographia Secundum Ptholomaei Traditionem 
et Emerici Vespucii Alioru[m]que Lustrationes Composite Map, LIBR. OF CONGRESS, https:// 
www.loc.gov/resource/g3200.ct000725C/?r=0.086,-0.085,0.833,0.709,0 [https://perma 
18 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
Together, Ptolemy and Waldseemüller radically reenvisioned 
cartography. Their maps monumentally and indelibly informed 
humanity’s understanding of the world81 and contributed to 
modernity’s common toponymic reference to the Persian Gulf.  
However, Arabs refer to the waters as the Arabian Gulf. Such 
references are found in the writings of Greek historian Herodotus (484–
425 BCE), in reports from the eighteenth century Dutch East India 
garrison authority stationed at Khark (Kharg) Island,82 and in Lord 
Curzon’s nineteenth century assessment of Arab seafaring dominance 
over the Gulf.83 The Danish Captain Carsten Niebuhr confounded the 
place-naming debate by referring to the Red Sea as the Arabic Gulph 
and bounding Arabia by the Indian Ocean and the Persian Gulph.84 By 
the early eighteenth century, the Ottomans variously referred to the 
water as the Gulf of Basrah, the Gulf of Qatif, or the Gulf of Arabia, 
while important English cartographers used the name Persian Gulf.85 
For more than a century, the garrison at Hormuz exacted tolls and 
controlled trade over the Sino Persico and wider region.86 Whatever 
political meaning attaches to place naming and the Gulf, cartographic 
references themselves are of little evidentiary import. And if courts, as 
.cc/U6T5-EKUL]. Waldseemüller’s masterpiece is one of the most prized collections of The 
Library of Congress in Washington D.C. It can be viewed through the Geography and Map 
Division’s digital composite creation. In addition to projecting the name Persian Gulf or 
Sea, the map curiously shows the Pacific Ocean six years before Balboa’s overland sighting 
in 1513. See generally JOHN W. HESSLER & CHET VAN DUZER, SEEING THE WORLD ANEW: 
THE RADICAL VISION OF MARTIN WALDSEEMÜLLER’S 1507 & 1516 WORLD MAPS (2012) 
(presenting detailed images of Waldseemüller’s radical sixteenth-century revisioning of the 
world, particularly the New World, in which Waldseemüller diverged from Christopher 
Columbus’s idea that it was connected to India). 
81 For more detailed discussion, see generally HESSLER & VAN DUZER, supra note 80, 
at 703.  
82 See Willem Floor, The Dutch on Khark Island: A Commercial Mishap, 24 INT’L J. 
MIDDLE E. STUD. 441, 457 (1992) (discussing the 133-year Dutch presence in the Gulf, and 
the rise and fall of the Khark commercial enterprise).  
83 See BUDERI & RICART, supra note 12, at xxvi (quoting Curzon’s assertion of Persia’s 
historic uninterest in maritime pursuits). 
84 2 M. CARSTEN NIEBUHR, TRAVELS THROUGH ARABIA, AND OTHER COUNTRIES IN 
THE EAST 388 (Robert Heron trans., Perth, R. Morrison & Sons 1792) (referencing the 
“Arabian Gulph” and noting the Turks and Arabs considered its navigation “the most 
dangerous in the world”). 
85 Sultan bin Muhammad al-Qasimi, Power Struggles and Trade in the Gulf 1620–1820, 
at 19 (1999) (Ph.D. dissertation, Durham University) (on file with the University of Exeter 
Library) (citing Christopher Brown and Samuel Thornton’s usage of the term Persian Gulf 
in 1712 and 1716, respectively); BUDERI & RICART, supra note 12, at xxvii. 
86 For a general history of the Portuguese presence in the Gulf and wider region, see 
generally PORTUGAL, THE PERSIAN GULF AND SAFAVID PERSIA (Rudi Matthee & Jorge 
Flores eds., 2011). 
2024] The Critical Date and the Dispute over Islands in the 19 
Strait of Hormuz: Abu Musa and the Tunbs 
has been demonstrated by the international practice of tribunals, “adopt 
a cautious and restrictive approach” in attaching evidentiary 
significance to maps,87 much the same can be concluded about their 
legal toponymic significance. 
B. Toponymic Hearsay
The toponymic transformation of space into place subtly conveys 
assumptions about imperial history.88 Repeated over time, such 
references take on the appearance of a languified geography,89 
simultaneously asserting and masking historical narratives. The 
symbolic significance of place naming as a metaphorical narrative of 
imperial domination helped to create a languified image of 
international law. Iran asserted this point during the U.N. Security 
Council debate over the Tunbs and Abu Musa seizures in 1971, when 
the Iranian representative, objecting to the usage of the term Arabian 
Gulf, said:  
We are here dealing with a sea which, as everyone knows, has from 
the most ancient times been called the Persian Gulf. To call it 
something else is to distort fundamental truths. . . . It is symbolic of 
a deliberate attempt to alter historic reality and betrays a wish to 
attribute to the area an Arab character not justified by the facts.90  
With one interchangeable word, Arabs could have made the same 
point about Iranian intentions. Interestingly, Sultan bin Muhammad al-
Qasimi noted that the lexical debate did not take politicized form until 
1958.91 He claimed Arabs “had always called it the Persian Gulf until 
the Persians began citing the usage of the term ‘Persian’ as a 
justification for Iranian power politics” at the time.92 The names of the 
disputed islands admit a less binary distinction: Abu Musa has borne 
the Arabic name for hundreds of years, and in local dialects bears other 
87 William Thomas Worster, Maps Serving as Facts or Law in International Law, 33 
CONN. J INT’L L. 278, 284–85 (2018). 
88 See generally PAUL CARTER, THE ROAD TO BOTANY BAY: AN EXPLORATION OF 
LANDSCAPE AND HISTORY (1987) (discussing the ideology of historiography and the 
complicit implications of place naming and symbols). 
89 CHRISTOPHER R. ROSSI, REMOTENESS RECONSIDERED: THE ATACAMA DESERT AND 
INTERNATIONAL LAW 52 (2021). 
90 BUDERI & RICART, supra note 12, at xxviii–xxix (quoting U.N. SCOR, 26th Sess., 
1610 mtg., U.N. Doc. S/PV.1610 (Dec. 9, 1971)). 
91 See al-Qasimi, supra note 85, at 17. 
92 Id. 
20 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
names such as Bu Mouf and Gap Sabz; the Tunbs derive from the 
Persian word for “hillock” or “mound.”93  
Place naming on cartographic projections is pregnant with 
preconceived toponymic biases, often ignorant of endonymic usage, 
and proffered to accord with political interests.94 The ICJ recognizes 
the evidentiary value of maps,95 however, it has generally adopted a 
“cautious and restrictive” approach regarding their significance.96 
Maps are treated “as secondary evidence”—as a form of toponymic 
hearsay97—rather than as dispositive of à titre de souverain. Because 
maps embed a history they help to create,98 they reflect as much about 
the biases of their makers as they do about the configuration of the 
world. They are to be received with caution. This caution extends to 
the evidentiary conclusions that periodize the creation of states and the 
establishment of states’ borders.  
III 
PERIODIZING SOVEREIGNTY, UTI POSSIDETIS, 
AND THE CRITICAL DATE 
The classical Western mindset repositioned the idea of Aristotelian 
sociability and turned it into a metaphorical Mightie Frame—the 
93 See Roshandel, supra note 37, at 138–39. Greater Tunb Island is called Tunb Al-
Kubra in Arabic and Tonb-e Bozorg in Farsi; Lesser Tunb Island is called Tunb Al-Soughra 
in Arabic and Tonb-e Kuchek in Farsi. Dan Caldwell, Flashpoints in the Gulf: Abu Musa 
and the Tunb Islands, 4 MIDDLE E. POL’Y 50, 50 (1996). 
94 If these biases have shaped debates about the Gulf, it is important to note they are 
inescapably apparent elsewhere. For instance, in his “discovery” of the New World, 
Christopher Columbus rank ordered his first landings in honor of the Savior (San Salvador), 
the Virgin Mary (Santa María de la Concepción), and for members of the Crown of Castile. 
See ROSSI, supra note 89, at 52–53. 
95 See Frontier Dispute (Burk. Faso/Mali), Judgment, 1986 I.C.J. 544, ¶ 56 (Dec. 22); 
see also Minquiers & Ecrehos (Fr./U.K.), Judgment, 1953 I.C.J. 47 (Nov. 17); Sovereignty 
Over Certain Frontier Land (Belg./Neth.), Judgment, 1959 I.C.J. 209 (June 20); Temple of 
Preah Vihear (Cambodia v. Thai.), Judgment, 1962 I.C.J. 6 (June 15). See generally Guenter 
Weissberg, Maps as Evidence in International Boundary Disputes: A Reappraisal, 57 AM. 
J. INT’L L. 781 (1963) (affirming instances in international adjudication where maps were
accorded strong evidentiary value in support of sovereignty claims over disputed territory).
96 William Thomas Worster, Maps Serving as Facts or Law in International Law, 33 
CONN. J. INT’L L. 278, 284 (2018). 
97 Id. at 285. See also Honduras Borders (Guat./Hond.), 2 R.I.A.A. 1307, 1325 (Int’l 
Cent. Am. Trib. 1933) (“[Maps are] of slight value when it relates to territory of which little 
or nothing was known and in which it does not appear that any administrative control was 
actually exercised.”).  
98 DENIS WOOD & JOHN FELS, THE POWER OF MAPS 28 (1992). 
2024] The Critical Date and the Dispute over Islands in the 21 
Strait of Hormuz: Abu Musa and the Tunbs 
artificial state.99 In the New World, territorial borders formed around 
remnants of European colonialism.100 Sovereignty’s frame took shape 
through the application of the uti possidetis doctrine,101 which intended 
to remediate spatial problems caused by the “vertiginous,”102 but hardly 
instantaneous, collapse of Spanish imperial power over eight million 
square miles (20,719,904 square kilometers) of the New World.103 Uti 
possidetis meant to preempt disputes over unoccupied territory (terra 
nullius) by granting to states emerging from decolonization the prior 
colonial administrative borders.104 These borders were often nothing 
more than unformed frontiers. Although employed because of its 
99 See generally NICHOLAS GREENWOOD ONUF, THE MIGHTIE FRAME: EPOCHAL 
CHANGE AND THE MODERN WORLD 84 (2018) (noting major historical ruptures and 
continuities leading to epochal change in humanity’s transition toward the sovereign state 
system). 
100 The complexities associated with this project now inform international law’s turn to 
spatial studies. See ROSSI, supra note 89 (reframing international law and western 
hemispheric relations); Henry Jones, Property, Territory, and Colonialism: An International 
Legal History of Enclosure, 39 LEGAL STUD. 189 (2019) (conceptualizing law’s relation to 
space); Nikolas M. Rajkovic, The Visual Conquest of International Law: Brute Boundaries, 
the Map, and the Legacy of Cartogenesis, 31 LEIDEN J. INT’L L. 267 (2018) (noting the 
multilayered edges to the traditional notion of bounded territorial space); Nicholas Onuf, 
Center-Periphery Relations: What Kind of Rule, and Does It Matter, 6 ALL AZIMUTH 5 
(2017) (rethinking Johan Galtung’s center periphery theory of imperialism); Andreas 
Philippopoulos-Mihalopoulos, Law’s Spatial Turn: Geography, Justice and a Certain Fear 
of Space, 7 L., CULTURE & HUMANITIES 187, 187 (2010) (investigating law’s spatial turn 
and the concept of spatial justice); LAURA A. BENTON, A SEARCH FOR SOVEREIGNTY: LAW 
AND GEOGRAPHY IN EUROPEAN EMPIRES, 1400–1900 (2010) (canvassing law’s correlation 
with geography); CARL SCHMITT, NOMOS OF THE EARTH IN THE INTERNATIONAL LAW OF 
JUS PUBLICUM EUROPAEUM (G.L. Ulmen trans., 2006) (discussing lines of amity and 
spatiality in international law). 
101 Uti possidetis is an awkward legal idiom originating from Roman law’s treatment of 
private property. It originally dealt with assigning one party the burden of proof for disputed 
property claims. It translates poorly into English (“as you possess, so you may possess”). 
As applied to international law, it gave newly emerging republics in Latin America the 
national borders that coincided with the borders established when the Spanish empire 
retreated from the New World in the early nineteenth century. Although highly criticized, 
uti possidetis remains a bedrock principal of modern international law. See generally 
Christopher R. Rossi, Shadings of Nuance: Contextualizing a “Convergence of Opinion” 
Regarding a River Located in the Imaginarium of the Western Mind, 23 WYO. L. REV. 153, 
164 (2023). 
102 Gabriel Paquette, The Dissolution of the Spanish Atlantic Monarchy, 52 HIST. J. 175, 
181 (2009).  
103 See ROSSI, supra note 89, at 18–19. 
104 Steven R. Ratner, Drawing a Better Line: Uti Possidetis and the Borders of New 
States, 90 AM. J. INT’L L. 590, 590 (1996). The principle is sometimes subdivided. Uti 
possidetis de facto refers to a border demarcation based on actual possession. Uti possidetis 
juris establishes possession based on legal instruments, such as colonial maps.  
22 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
efficiency and positioned “among the most important legal 
principles,”105 the brutal simplicity of uti possidetis actually made 
many border wars “inevitable.”106 
Uti possidetis preferred the status quo, as imaginary as it was. It 
attached primary legal significance to the moment power changed 
hands from the colonial superintendent to the newly emerging 
state.107 According to the ICJ, uti possidetis intended to create a 
“‘photograph of the territory’”—a momentary snapshot in time 
referred to as the critical date—to “freeze the territorial title” at the 
moment of independence.108 The association of the critical date with 
uti possidetis—conflating them into one and the same concept—
conformed to an imprecise understanding of the way uti possidetis first 
took hold. Its reception into international law was not as immediate as 
a snapshot of the times might imply. While this imagery creates a 
convenient conceptual fiction to eliminate the possibility of a gap 
forming between sovereignty’s conveyance from one polity to the next, 
in reality, the process of state succession took much longer to form than 
the time needed to take a snapshot. 
Certainly, this timeline was true regarding the emergence of uti 
possidetis in the wake of Spain’s crumbling New World empire. Simón 
Bolívar’s liberation movement across Spanish America began in 1810 
with the successive creation of seven new republics.109 However, Brazil 
did not gain independence until 1822.110 Ecuador and Venezuela 
subsequently seceded from Colombia by 1830.111 In the early 
1840s, the Central American Federation splintered, creating five more 
105 Frontier Dispute (Burk. Faso/Mali), Judgment, 1986 I.C.J. 544, ¶ 26 (Dec. 22). 
106 Alejandro Alvarez, Latin America and International Law, 3 AM. J. INT’L L. 269, 290 
(1909). 
107 See Ratner, supra note 104, at 590 (“[S]tates emerging from decolonization shall 
presumptively inherit the colonial administrative borders that they held at the time of 
independence.”). 
108 Frontier Dispute (Burk. Faso/Mali), 1986 I.C.J. ¶ 30. 
109 See generally LESTER D. LANGLEY, SIMÓN BOLÍVAR: VENEZUELAN REBEL, 
AMERICAN REVOLUTIONARY (2009) (presenting a leading biography on Bolívar and his 
role in the Spanish-American wars of independence from 1810–1825). 
110 See Alan K. Manchester, The Recognition of Brazilian Independence, 1 J. LAT. AM. 
STUD. 115 (1969) (recounting Brazil’s two-year war of independence from Portugal, 
commencing with Dom Pedro’s 1822 declaration of independence). 
111 See PEDRO BALDÓ, THE DESOLATION OF THE UNIVERSE: THE DEATH OF GRAN 
COLOMBIA (1826–1831) (2023) (discussing the collapse of Gran Colombia and its 
replacement by the republics of Venezuela, Ecuador, and New Granada).  
2024] The Critical Date and the Dispute over Islands in the 23 
Strait of Hormuz: Abu Musa and the Tunbs 
independent states.112 Spain’s irredentist claim in South America 
ensued in the 1860s, only to end in its defeat in the Chincha Islands 
War, followed by its final expulsion from the Americas with the end of 
the Spanish-American War in 1898.113 None of this history supports the 
momentary appearance of the state system existing in Latin America 
or, impliedly, elsewhere. However, the idea of sovereignty arising at a 
critical date, perhaps popularized in international legal discourse by 
reference to the creation of the Westphalian state system as a Grotian 
Moment,114 provided a convenient, although unpersuasive, starting 
point for the crystallizing of claims relating to the three Gulf Islands. 
A. Square Pegs, Round Holes, and the Southernmost Palm Tree
Uti possidetis presupposed a telluric transfer of title in a European
sense of postimperial rule. However, Arabian sheikhdoms and 
dynastic traditions did not conform to such territorial etching or 
reconfiguration.115 In the Gulf region, the sheikhdoms presented round 
and porous holes of human geography into which the square pegs of 
European Euclidean borders could not fit tightly. Indeed, “the idea of 
fixed, defined boundaries was totally alien to the Arab world.”116 As is 
112 See William F. Slade, The Federation of Central America, 8 J. RACE DEV. 79, 103 
(1917) (discussing the failed 1842 Central American convention). 
113 See ROSSI, supra note 89, at 21–24. 
114 Richard Falk coined the term Grotian Moment. See Richard Falk, The Grotian 
Moment, in INTERNATIONAL LAW: A CONTEMPORARY PERSPECTIVE 7 (Richard Falk et al. 
eds., 1985). It has been interpreted to mean “an instance in which a fundamental change in 
the existing international system happens.” Milena Sterio, A Grotian Moment: Changes 
in the Legal Theory of Statehood, 39 DENV. J. INT’L L. & POL’Y 209, 211 (2011). Falk 
pinpointed Hugo Grotius’s sixteenth-century writings around the shadowy period leading 
up to the Treaty of Westphalia (1648) and the critical date—in Falk’s words, the “time of 
transition between world order systems”—in which state sovereignty formed. Falk, supra, 
at 7. Falk’s elegant portrayal of the arrival of the state system gained widespread acceptance 
as a periodized contribution to the study of international law as conceptual history. Id. 
However, important critiques of the concept have noted that the history of sovereignty 
involves much more temporal consideration than the Grotian Moment suggests. See 
generally Nicholas Greenwood Onuf, Sovereignty: Outline of a Conceptual History, 16 
ALTS.: GLOB., LOC., POL., 425 (1991); JENS BARTELSON, A GENEALOGY OF SOVEREIGNTY 
(1995); THOMAS J. BIERSTEKER & CYNTHIA WEBER, STATE SOVEREIGNTY AS SOCIAL 
CONSTRUCT (Thomas J. Biersteker & Cynthia Weber eds., 1996) (critiquing the concept of 
the Grotian Moment).  
115 A variant of this argument informed Bahrain’s position in its border dispute with 
Qatar. See Maritime Delimitation and Territorial Questions between Qatar and Bahrain 
(Qatar v. Bahr.), Judgment, 2001 I.C.J. 40, ¶ 107 (Mar. 16). 
116 D.W. Bowett, The Dubai/Sharjah Boundary Arbitration of 1981, 65 BRIT. Y.B. INT’L 
L. 103, 104 (1995).
24 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
true throughout colonial history in the Americas, Africa, and Asia, the 
inexact application of uti possidetis “caused rather than ended disputes” 
about state frontiers.117 
Britain’s colonial control over the lower Gulf region began in 
1820,118 but most of the Trucial States’ oil did not begin to flow until 
the 1950s and 1960s.119 The need to demarcate oil concessions 
necessitated the creation of borders among the sheikhdoms.120 It also 
created choice of law problems that revealed serious cultural 
misunderstandings. After applying so-called hard lineaments of 
established international law to a concession contract between a British 
petroleum company and the Sheikhdom of Abu Dhabi, Lord Asquith, 
the British umpire in the Abu Dhabi Arbitration (1951), concluded that 
“no such law [of Abu Dhabi] can reasonably be said to exist.”121 Due 
to the “primitive region,” it was “fanciful to suggest” the Sheikh 
117 MALCOM YAPP, THE NEAR EAST SINCE THE FIRST WORLD WAR 205 (1991). On the 
consequences of uti possidetis’ inexact application, see ROSSI, supra note 89, at 22–23 
(noting the ways uti possidetis played tricks on its benefactors in the Americas); Achille 
Mbembe, At the Edge of the World: Boundaries, Territoriality, and Sovereignty in Africa, 
12 PUB. CULTURE 259, 272–73 (2000) (discussing the irrationality of colonial border 
drawing in Africa, in relation to human geography); Vanshaj Ravi Jain, Frozen Frontier: 
Uti Possidetis and the Decolonization of South Asia (Refugee Stud. Ctr., Working Paper 
No. 130, 2019) (discussing the problems of the Radcliffe Line in the partitioning of India 
and Pakistan); A.L.W. Munkman, Adjudication and Adjustment—International Judicial 
Decision and the settlement of Territorial and Boundary Disputes, 46 BRIT. Y.B. INT’L L., 
1, 93 (1972–1973) (noting that tribunals have had difficulty applying uti possidetis because 
“it suffers the defect of being difficult to elucidate at a later date”). For general histories of 
uti possidetis and its effects on international law, see generally CHRISTOPHER R. ROSSI, 
SOVEREIGNTY AND TERRITORIAL TEMPTATION: THE GROTIAN TENDENCY (2017); Steven 
R. Ratner, Drawing a Better Line: Uti Possidetis and the Borders of New States, 90
AM. J. INT’L L. 590 (1996); GIUSEPPE NESI, L’UTI POSSIDETIS IURIS NEL DIRITTO
INTERNAZIONALE (1996).
118 See Onley, supra note 6, at 1 (periodizing British hegemony over the Gulf from the 
1820 antipiracy General Treaty). 
119 See YAPP, supra note 117, at 203 (noting social and economic development on the 
Trucial coast began in the 1950s, generally coinciding with the progression of oil production 
in Kuwait (1946), Qatar (1949), Abu Dhabi (1962), and Dubai (1969)). Bahrain was the 
exception. It first exported oil in 1934 and began refining oil in 1937.  
120 See id. (connecting the need for demarcating Trucial Coast land boundaries to the 
interests of oil concessionaires). 
121 See Petroleum Development Ltd. v. Sheikh of Abu Dhabi, 18 I.L.R. 144, 149, 155 
(1951). The substantive issue in the case, aside from the choice of law problem, involved 
the interpretation of an oil concession contract and its application to the submarine area lying 
outside Abu Dhabi’s three nautical mile belt of territorial water. The concession, signed in 
1939, granted the British oil company an exclusive seventy-five-year concession. The issue 
involved Sheikh Shakhbut’s claim that the concession did not extend further offshore 
drilling rights to the seabed and subsoil pertaining to Abu Dhabi’s continental shelf because 
the term had no defined meaning at the time the concession was concluded. 
2024] The Critical Date and the Dispute over Islands in the 25 
Strait of Hormuz: Abu Musa and the Tunbs 
administered anything other than “a purely discretionary justice” 
regarding “modern commercial instruments.”122 Foregoing multiple 
references governing commercial transactions in the Quran,123 the 
umpire ironically meted out his own brand of discretionary justice, 
relying on what he deemed to be just and fair (ex aequo et bono).124 
When Britain withdrew from the Gulf in 1968, it ambiguously 
delimited the singular border of the UAE, but left the relatively 
undefined internal expanses of the federation for the sheikhs to sort 
out.125 Similarly, Britain demarcated the border separating Iraq and 
Kuwait by reference to the “‘southernmost palm tree.’”126 
Such line drawing, abetted by Britain’s quick withdrawal, ignited 
territorial disputes. It provoked longstanding border disputes between 
Qatar and Bahrain over ownership of the Hawar Islands, the town of 
Zubarah, Janan Island, and shoals (fashts) important for establishing 
maritime boundary delimitations (Al-Dibal and Al-Jaradah).127 Line 
drawing produced a series of land and sea disputes between Saudi 
Arabia, Oman, and Yemen involving the Red Sea,128 as well as disputes 
122 Id. at 149. 
123 See Business Transactions, VERSE BY VERSE QUR’AN STUDY CIRCLE (June 30, 
2018), https://versebyversequranstudycircle.wordpress.com/tag/business-transactions/ 
[https://perma.cc/FGD8-2YCD] (detailing verses on financial and commercial transactions). 
124 See CHRISTOPHER R. ROSSI, EQUITY AND INTERNATIONAL LAW: A LEGAL REALIST 
APPROACH TO INTERNATIONAL DECISIONMAKING 168–69 (1993) (discussing Lord 
Asquith’s reliance on the ex aequo principle to render an award “in justice and fairness”). 
125 See Gwenn Okruhlik & Patrick J. Conge, The Politics of Border Disputes on the 
Arabian Peninsula, 54 INT’L J. 230, 233 (1999) (highlighting confusion over the post-
protectorate borders). See also Christopher R. Rossi, The Migingo Island Dispute Between 
Kenya and Uganda, 42 BROOK. J. INT’L L. 659, 681–85 (2017) (demarcating the water 
borderline between Uganda and Kenya as the westernmost point of Pyramid Island, leading 
to confusion as to which island looked like a pyramid). Cf. Peggy A. Hoyle, The Eritrean 
National Identity: A Case Study, 24 N.C. J. INT’L L. 381, 413 (1999) (discussing not a natural 
feature but a natural being, the camel, as evocative of Eritreans’ sense of place). 
126 Okruhlik & Conge, supra note 125, at 233. 
127 See generally Maritime Delimitation and Territorial Questions between Qatar and 
Bahrain (Qatar v. Bahr.), Judgment, 2001 I.C.J. 4 (Mar. 16) (resulting in Qatar’s sovereignty 
over Zubarah and the Janan Islands (including Hadd Janan) and the low-tide elevation of 
Fasht Dibali; Bahrain’s sovereignty over the Hawar Islands and the island of Qit’at Jaradah; 
and a single maritime boundary between the two states). The case lasted almost twenty years 
from the time Qatar instituted proceedings in 1991, making the case the longest in the ICJ’s 
history. 
128 See Askar Halwan Al-Enazy, “The International Boundary Treaty” (Treaty of 
Jeddah) Concluded Between the Kingdom of Saudi Arabia and the Yemeni Republic on June 
12, 2000, 96 AM. J. INT’L L. 161 (2002); Okruhlik & Conge, supra note 125, at 230 (noting 
border conflicts in 1995, 1997, and 1998). 
26 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
between Oman and the UAE.129 It created tensions between Saudi 
Arabia and the UAE over the fifteen-mile coast east of Khor Al-Udaid, 
and it created tensions surrounding whether the UAE bordered Qatar 
or whether Saudi Arabia separated the two countries.130 Fractious 
border disputes arose between Saudi Arabia and the UAE over the giant 
Zararah/Shaybah oilfields,131 between Qatar and Bahrain,132 and 
between Dubai and Sharjah.133 Territorial disputes contributed to the 
eight-year war between Iraq and Iran (1980-1988),134 which involved 
reasserted Iraqi claims to the eastern bank of the Shaṭṭ Al-Arab (Farsi: 
Arvand Rūd) confluence of the Tigris and Euphrates Rivers.135 In 
1991, Iraqi irredentism served as pretext for a major war between Iraq 
and Kuwait, over Saddam Hussein’s so-called reclamation of the 
129 The dispute concerned a fourteen-kilometer stretch of the Musandam Peninsula near 
the Strait of Hormuz, demarcating the Emirates’ northern borders with Oman. See UAE, 
OMAN Finalize Border Demarcation Agreement, KUWAIT NEWS AGENCY (June 22, 2002), 
https://www.kuna.net.kw/ArticleDetails.aspx?id=1263641&language=en [https://perma.cc 
/2G8X-B58T]. 
130 Al-Mazrouei, supra note 33, at 3 n.9 (“Khor Al-Udaid is a shallow inlet located on 
the eastern side of the base of the Qatar peninsula.”). 
131 See id. at 156 (concluding that the discrepancies, made public in 1995, existed, but 
demurring on the cause of the discrepancies due to the unavailability of secret negotiations 
leading up to the signing of the Treaty of Jeddah in 1974). 
132 See generally Maritime Delimitation and Territorial Questions between Qatar and 
Bahrain, 2001 I.C.J. ¶ 107.  
133 Dubai/Sharjah Border Arbitration, 91 I.L.R. 543 (Ct. Arb. 1981). The case involved 
a land and maritime boundary dispute between the adjacent Emirates. Interestingly, Sharjah 
invoked ownership over Abu Musa to give half effect in delimiting the disputed continental 
shelf boundary. Dubai claimed no effect should be given to Abu Musa because it was a 
disputed feature also claimed by Iran. See Stephen Fietta & Robin Cleverly, Part B 
Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 4 
Dubai-Sharjah Border Arbitration (Award of the ad hoc ‘Court of Arbitration’, 19 October 
1981), OXFORD PUB. INT’L L., https://opil.ouplaw.com/display/10.1093/law/9780199 
657476.001.0001/law-9780199657476-chapter-7 [https://perma.cc/MJQ2-2GBB]. 
134 Although dubiously connected to uti possidetis, more recent intramural Arab enmity 
arose in 2018 when Qatar instituted proceedings at the ICJ against the UAE for alleged 
human rights abuses. These abuses arose from the UAE’s June 2017 expulsion of Qataris in 
violation of the UAE’s obligations under the International Convention on the Elimination 
of All Forms of Racial Discrimination (CERD). The dispute took on an intramural Arab 
character when non-CERD states—Egypt, Bahrain, and Saudi Arabia—supported the UAE 
and joined in a land, sea, and air blockade on Qatar, to which Yemen, the Eastern 
Government of Libya, Maldives, Mauritania, and Comoros joined in fraternal support. 
See Application of the International Convention on the Elimination of All Forms of 
Racial Discrimination (Qatar v. U.A.E.), Application Instituting Proceedings (June 11, 
2018), https://www.icj-cij.org/en/case/172/institution-proceedings [https://perma.cc/Z6VS 
-U72H].
135 See Joseph J. Cusimano, Analysis of Iran-Iraq Bilateral Border Treaties, 24 CASE
W. RES. J. INT’L L. 89, 91 (describing the strategic importance of the Shatt Al-Arab for Iraq
as “the only true outlet” to the Gulf).
2024] The Critical Date and the Dispute over Islands in the 27 
Strait of Hormuz: Abu Musa and the Tunbs 
nineteenth governorate of Iraq,136 which ultimately led to his overthrow 
in the Second Gulf War in 2003.137 And, of course, the dispute with 
Iran over the birth of the UAE led to continuing enmity regarding 
control over the three Lower Gulf Islands.  
B. Historical Claims
General claims of historical title, which are commonly asserted in 
sovereignty disputes,138 are key factors noted by international courts 
and tribunals as a means of determining title to land or maritime 
territory.139 Such claims depend on an uninterrupted and public 
(notorious) display of state authority, as measured over a long period 
of time.140 Taken together, these acts constitute à titre de souverain,141 
meaning that the title holder exercises the functions of state authority 
on behalf of its own authority.142 When title is in dispute, subsequent 
acts pertaining to the administration of the territory (effectivités) may 
“play an essential role in showing how the title is interpreted in 
136 See Mark Fineman, Iraq Remaps Kuwait as Province 19, L.A. TIMES (Aug. 29, 
1990), https://www.latimes.com/archives/la-xpm-1990-08-29-mn-176-story.html [https:// 
perma.cc/U7RV-JRYU] (reporting on Saddam Hussein’s presidential decree renaming 
Kuwait City as Khadima, the capital of Province 19). 
137 See Timeline: The Iraq War, 2003–2011, COUNCIL ON FOREIGN RELS., https:// 
www.cfr.org/timeline/iraq-war [https://perma.cc/TEG5-4MYE]. 
138 See, e.g., In re S. China Sea Arb. (Phil. V. China), PCA Case Repository Case No. 
2013-19, ¶¶ 264–72 (Perm. Ct. Arb. 2016) (involving China’s claim of historic title over 
most of the South China Sea, an area covering a body of water 3.5 million square miles and 
stretching more than 1500 kilometers from its southernmost territory of Hainan Island to 
James Shoal, off the coast of Borneo).  
139 See generally YEHUDA Z. BLUM, HISTORIC TITLES IN INTERNATIONAL LAW 6 
(1965) (assessing the treatment of the doctrine in early twentieth-century international case 
law and associating it with “acquisitive” as opposed to “extinctive” prescription); CLIVE R. 
SYMMONS, HISTORIC WATERS IN THE LAW OF THE SEA: A MODERN RE-APPRAISAL (2d ed. 
2019) (updating the doctrine in light of international court decisions); Alexander N. 
Vylegzhanin & Ekaterina L. Sokolova, Prescription in International Law, 2 MOSCOW J. 
INT’L L. 37 (2014) (equating the doctrine of prescription with historic title).  
140 See Kasikili/Sedudu Island (Bots./Namib.), Judgment, 1999 I.C.J. 1045, ¶ 94 (Dec. 
13) (discussing elements of prescriptive rights as understood and agreed to by Namibia and
Botswana).
141 See Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon./Malay.), Judgment, 
2002 I.C.J. 625, ¶¶ 142, 144, 147 (Dec. 17); Maritime Delimitation and Territorial Questions 
between Qatar and Bahrain (Qatar v. Bahr.), Judgment, 2001 I.C.J. 40, ¶¶ 196, 197, 200 
(Mar. 16); Award of the Arbitral Tribunal in the First Stage of the Proceedings Between 
Eritrea and Yemen, 22 R.I.A.A. 211, ¶ 241 (Perm. Ct. Arb. 1998). 
142 Kasikili/Sedudu, 1999 I.C.J. ¶ 98. 
28 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
practice,”143 but they cannot trump rights derived from preexisting legal 
title.144  
Although historical claims are embedded within the concept of state 
sovereignty, they often encounter ambiguities of territorial control. 
For instance, areas historically claimed by Pakistan, India, and China 
are ripe with ambiguities—from the law of the sea’s bedeviling 
encounter with tiny hydrographic formations and outcroppings 
amorphously referred to as “features”145 to the sprawling and remote 
High Himalayan landscapes of Ladakh, Aksai Chin, and the Shaksgam 
Valley.146 The porosity of human geography, abetted by cavities of 
sovereignty, critically exposes “‘the western legal fiction’” that all 
legal rights arise from states.147 International law has recently 
recognized the legal significance of nonstate activity—for instance, 
in terms of artisanal fishing practices “‘exercised continuously through 
the ages’”148—however, its tolerance for Indigenous peoples’ 
conflictual encounters with sovereignty’s Mightie Frame remains 
limited.149 
Acquiring territorial sovereignty can be analogized, albeit 
imprecisely, to real estate law.150 Proprietorship attaches to individuals 
in realty law in the way sovereignty attaches to states in international 
143 Frontier Dispute (Burk. Faso/Mali), Judgment, 1986 I.C.J. 544, ¶ 63 (Dec. 22). 
144 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: 
Eq. Guinea intervening), Judgment, 2002 I.C.J. 303, ¶¶ 67–68 (Oct. 10). 
145 See In re S. China Sea Arb. (Phil. V. China), PCA Case Repository Case No. 2013-
19, ¶ 169 (Perm. Ct. Arb. 2016) (discussing the status of nine maritime features in the South 
China Sea). See also Christopher R. Rossi, Treaty of Tordesillas Syndrome: Sovereignty ad 
Absurdum and the South China Sea Arbitration, 50 CORNELL INT’L L.J. 231, 233 (2017). 
146 See Christopher Rossi, Interstitial Space and the High Himalayan Dispute Between 
China and India, 62 HARV. INT’L L.J. 429, 430 (2021) (discussing the 1,000-kilometer 
stretch of contested borderland involving the three countries). 
147 In re S. China Sea Arb., PCA Case Repository ¶ 798; Award of the Arbitral Tribunal 
in the Second Stage of Proceedings Between Eritrea and Yemen, 22 R.I.A.A. 335, ¶ 101 
(Perm. Ct. Arb. 1999). 
148 In re S. China Sea Arb., PCA Case Repository ¶ 799 (“[I]nternational law has long 
recognised that developments with respect to international boundaries and conceptions of 
sovereignty should, as much as possible, refrain from modifying individual rights.”). 
149 Domestic courts have been instrumental in reassessing indigenous beliefs and 
practices relating to land, with notable support from international organizations involved in 
the development of the law. See, e.g., Orissa Mining Corp. v. Ministry of Env’t & Forest, 
6 S.C.R. 881 (2013) (India) (involving the Supreme Court of India’s judgment favoring the 
Dongria Kondh’s protection of sacred horticultural landscape in a decade long dispute with 
global capitalism). 
150 As noted, uti possidetis developed out of Rome’s legal treatment of real property 
before it was incorporated into international law. See supra note 101. 
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Strait of Hormuz: Abu Musa and the Tunbs 
law. Realty requires a registry to record good title,151 whereas, 
international law’s registry is missing many certificates. As the ICJ 
Chamber has noted, “there are cases where the legal title is not capable 
of showing exactly the territorial expanse to which it relates.”152 The 
nomadic history of the Arabian Peninsula, writ large, reflects this 
complexity.153  
Yehuda Blum reduced the establishment of historic title to two 
“mutually interdependent” prerequisites: an “unmistakable display of 
authority . . . usually referred to as effective possession” and its 
“continuous and peaceful” display.154 Blum acknowledged the 
inherently slippery proof of this second prerequisite, as it sometimes 
implicates the negative meaning of silence, which he labeled 
“acquiescence in disguise.”155 In applying the doctrine of acquiescence, 
the ICJ has held that certain “silences” produce positive legal 
consequences—for example, failing to object when reason dictates 
otherwise,156 failing to ratify a signed treaty,157 and failing to respond 
in a timely fashion.158 As upheld by the ICJ, “silence may . . . speak, 
but only if the conduct of the other State calls for a response.”159 
151 See, e.g., Recorder Information, DEEDS.COM, https://www.deeds.com/recorder/ 
[https://perma.cc/2DH9-BGFG] (explaining the role of the county recorder relating to real 
estate ownership and deeds). 
152 Frontier Dispute (Burk. Faso/Mali), Judgment, 1986 I.C.J. 544, ¶ 63 (Dec. 22). 
153 A similar complexity arose in the Straits of Singapore, involving the nomadic 
seafarers, the Orang Laut, and their relationship with the Sultanate of Johor. See Sovereignty 
Over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malay./Sing.), 
Judgment, 2008 I.C.J. 12, ¶¶ 70–72 (May 23). 
154 BLUM, supra note 139, at 99. 
155 Id. at 99–100. 
156 Temple of Preah Vihear (Cambodia v. Thai.), Judgment, 1962 I.C.J. 6, at 21 (June 
15) (affirming that circumstances dictated a response by Thailand, and that Thailand’s
extended absence of a reaction acquiesced a map depicting the placement of a temple in
Cambodia); Sovereignty over Pedra Branca/Pulau Batu Puteh Middle Rocks and South
Ledge (Malay./Sing.), 2008 I.C.J ¶¶ 70–72 (noting that the absence of an objection to a
display of sovereignty may result in acquiescence); Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Judgment, 2002
I.C.J. 303, ¶ 70 (Oct. 10) (concluding that Cameroon did not acquiesce in favor of Nigeria’s
claim of title to territory); Sovereignty over Pulau Ligitan and Pulau Sipadan
(Indon./Malay.), Judgment, 2002 I.C.J. 625, ¶ 48 (Dec. 17) (finding that Britain’s silence to
a line on a map did not amount to acquiescence).
157 See Vienna Convention on the Law of Treaties, supra note 12, arts. 11–17. 
158 Id. art. 20, §§ 3–5 (holding signatories accountable to a reservation if the reservation 
does not raise an objection by the end of a specific time period). 
159 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, 
2008 I.C.J. ¶¶ 70–72. 
30 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
Interpreting actions that do not call for a response problematize the 
meaning of negative silence. 
Another problem arises out of proving the first prerequisite of 
unmistakable display. In acknowledging the relevance of “acquisitive 
prescription,” D.H.N. Johnson affirmed its role to supplement 
references to antiquity “whose original validity [] is impossible to 
prove.”160 Ironically, in the Rann of Kutch Arbitration,161 which 
involved line drawing to separate the Indian state of Gujarat and the 
Sindh province of Pakistan, the tribunal had to establish a 
“conterminous” boundary in the marshy Great Rann that may not have 
been there “at all times” before Britain “froze” the political system by 
entering a treaty with Pakistan in 1819,162 decades before the British 
completed the Survey of Sind in 1870.163 The parties in the case agreed 
that no defined boundary consolidated title to the Rann before British 
colonization.164 Instead, the parties relied solely on historical 
consolidation.165 The dissenting umpire, Aleš Bebler, astutely 
concluded that the yardstick of continuous peaceful possession of 
territory had to be applied cum grano salis.166 Citing Huber’s opinion 
in the Island of Palmas Arbitration167 and also the Legal Status of 
Eastern Greenland Case,168 continuity might amount to a “certain 
160 D.H.N. Johnson, Acquisitive Prescription in International Law, 27 BRIT. Y.B. INT’L 
L. 332 (1950).
161 See J. Gillis Wetter, The Rann of Kutch Arbitration, 65 AM. J. INT’L L. 346 (1971)
(the Rann of Kutch is a massive salt desert off the coast of the Arabian Sea, intermittently 
flooded during the monsoon season). 
162 The Indo-Pakistan Western Boundary (Rann of Kutch) (India v. Pak.), 17 R.I.A.A. 
1, 12–16 (Perm. Ct. Arb. 1968) (specifying the critical date regarding sovereignty of the 
Rann of Kutch in 1819). See also Rosalyn Higgins, Time and the Law: International 
Perspectives on an Old Problem, 46 INT’L & COMP. L.Q. 501, 506 (1997) (observing that 
in international law “[t]he concept of ‘continuing acts’ is not an easy one [to grasp]”).  
163 The Indo-Pakistan Western Boundary Case Tribunal, 17 R.I.A.A. at 15–16. The so-
called Survey of Sind (1855-1870), completed in its last four years by the British Deputy 
Superintendent of Survey, Donald Macdonald, produced a mapping of the region.  
164 See id. at 461. 
165 See id.  
166 Id. at 483 (Bebler, J. dissenting). 
167 Island of Palmas Case (or Miangas) (Neth. v. U.S.) 2 R.I.A.A. 829, 840 (Perm. Ct. 
Arb. 1928) (“The intermittence and discontinuity compatible with the maintenance of the 
right necessarily differ according as inhabited or uninhabited regions are involved . . . .”). 
The case involved a territorial dispute between the US and the Netherlands. The US claimed 
title based on Spain’s secession after the Spanish-American War concluded. The arbitration 
found in favor of the Netherlands, based on the establishment and degree of prior Dutch 
authority. See generally id. 866–71. 
168 Legal Status of Eastern Greenland (Den. v. Nor.), Judgment, 1933 P.C.I.J. (Ser. A/B.) 
No. 53, at 46 (Apr. 5) (“[T]he tribunal has been satisfied with very little in the way of the 
2024] The Critical Date and the Dispute over Islands in the 31 
Strait of Hormuz: Abu Musa and the Tunbs 
regularity . . . . In other words, continuity is a relative notion . . . . It has 
to be regular in spite of its intermittence.”169 
The danger of acquisitive prescription is that it may assert a view of 
historical title that itself selectively abridges events that history can 
inform but fail to prove. Often caught between two equally rational 
proofs—effective possession versus continuous and peaceful display—
international law becomes ensnared in a condition of indeterminacy as 
paradoxical as Buridan’s Ass. Rather than fail to resolve the quandary 
of determining which proof prevails, international law has tended to 
assert a temporal starting of the possessory clock, however arbitrary the 
result is in terms of historical abridgment.  
C. The Unfitting Metaphor of the Critical Date
International law’s tendency to reframe the complexities of history 
by emphasizing “the critical date” rests on uti possidetis’ own 
“problematic bedrock.”170 Although international powers used uti 
possidetis to cement respect for international borders171 and to avoid 
land grabs,172 it has often provoked the very aggression it meant to 
guard against. In the case of the Lower Gulf Islands, Iran’s takeover of 
the three islands, timed to coincide immediately before the formation 
of the UAE, represented a shallow attempt to abridge a long and 
involved history by establishing a flimsy critical date immediately 
before the end of colonial rule. 
Such an abridgment also extends to the beginning of colonial rule 
over the Trucial States and to the rudimentary assessment of strife in 
actual exercise of sovereign rights . . . in the case of claims to sovereignty over areas in 
thinly populated or unsettled countries.”). The case involved a sovereignty dispute over parts 
of Eastern Greenland. 
169 Indo-Pakistan Western Boundary Case Tribunal, 17 R.I.A.A. at 483 (Bebler, J., 
dissenting). 
170 JOSHUA CASTELLINO ET AL., TITLE TO TERRITORY IN INTERNATIONAL LAW:  
A TEMPORAL ANALYSIS 229 (2003).  
171 Temple of Preah Vihear (Cambodia v. Thai.), Judgment, 1962 I.C.J. 6, 34 (June 15) 
(emphasizing a “primary” objective of achieving frontier stability on the bases of certainty 
and finality); see also Christopher R. Rossi, Russian Arctic Straits and the Temptation of 
Uti Possidetis, 24 TRANSNAT’L L. & CONTEMP. PROBS. 19, 46 (2014); Higgins, supra note 
162, at 511 (“[Time limitations occupy a] prominent role . . . in all legal systems and that 
the finality can be stated as the Roman law maxim the public Interest requires an end to 
disputes i.e., interest rei publicæ ut finis litium sit.”).  
172 Land, Island, and Maritime Frontier Dispute (El Sal./Hond.: Nicar. Intervening), 
Judgment, 1992 I.C.J. 351, ¶ 42 (Sept. 11) (noting that a “key” aspect of the application of 
uti possidetis is the “denial of the possibility of terra nullius”). 
32 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
the region. Notably, Derek Bowett reduced the nineteenth century to a 
rivalry between the inland and Bani Yas tribe of Abu Dhabi and the 
seaborne and pearl fisheries tribe of the northern Qawasim, concluding 
simply that piracy and lawlessness “prompted Great Britain to 
intervene.”173 Since that time, a series of sectarian disputes—from the 
establishment of the Gulf Cooperation Council (GCC)174 to the 
violence of the Iranian Revolution, the Iran-Iraq War, and the conflict 
over oil and nuclear policy in the Gulf—have reduced the complexity 
of the Gulf to the intractable identification of the sectarian schism 
within Islam. However, these default explanations for turbulence in the 
Gulf also obscure centuries of peaceful coexistence while selectively 
reinforcing narratives of victimhood, marginalization, piratical chaos, 
and imposed treaties.175 
The protracted historical debate accompanying the international 
legal proof of title to the three Lower Gulf Islands176 seems to hammer 
173 See, e.g., Bowett, supra note 116, at 103–04 (1995). Although not a topic of 
consideration here, the general historical designation of the UAE’s shoreline as the Pirate 
Coast has increasingly prompted a much broader interrogation of the Western imperial 
narrative and description of the practice as such. Compare, e.g., AL-QĀSIMÏ, supra note 6 
(connecting the practice to the British East India Company’s suppression of the Qawasim), 
with CHARLES BELGRAVE, THE PIRATE COAST (1966) (presenting a standard and widely 
read narrative of the British pacification of Arab pirates). For a presentation of evolving 
historical accounts of piracy in the Gulf, see Johan Mathew, Essential Readings: Piracy in 
the Persian Gulf, ARABIAN PENINSULA (Jan. 15, 2019), https://www.jadaliyya.com/Details 
/38292 [https://perma.cc/TR8R-3QQ7].  
174 The GCC, composed of the UAE, Saudi Arabia, Bahrain, Oman, Qatar, and Kuwait, 
formed in 1981 primarily as an economic bloc, but also out of growing concern for regional 
security following the 1979 Iranian revolution. See Abdel Aziz Aluwaisheg, The Founding 
of the GCC, ARAB NEWS (Apr. 16, 2020, 1:55 PM), https://www.arabnews.com/node 
/1659796 [https://perma.cc/WB63-32E3]. 
175 Mohammed Aly Sergie, The Sunni-Shia Divide, COUNCIL ON FOREIGN RELS. (Apr. 
27, 2021), https://www.cfr.org/sunni-shia-divide/#!/ [https://perma.cc/7T9T-UNHQ] 
(presenting a historical review of entrenched sectarian division); N.Y.U. Abu Dhabi Inst., 
supra note 61, at 6:06 (on piracy and imposed treaties); POTTER, supra note 54, at 3 (noting 
that the British dominated writing of Gulf history characterized what could be regarded as 
“lawful resistance to foreign intrusion” as “piracy”). 
176 For example, Iranian scholar, Jalil Roshandel, noted the “superpower” status of the 
ancient Persians over “almost all urban and populated centers of the Arabian Peninsula.” 
See Roshandel, supra note 37, at 137. See also Asghar Ja’fari Valdani, The Historical and 
Legal Foundations of Iran’s Sovereignty over Tunb and Abu Musa Islands, IRANIAN REV. 
FOREIGN AFFS. 155, 156–58 (2015) (noting Gulf coastal areas have been under Persian 
sovereignty up until the nineteenth century, thereafter, the areas were illegally occupied by 
the British, who forced Iranian concessions due to power imbalances); Pirouz Mojtahed-
Zadeh, Iran’s Maritime Boundaries in the Persian Gulf: The Case of Abu Musa Island, in 
THE BOUNDARIES OF MODERN IRAN 104 (Keith McLachlan ed., 1994). 
The UAE scholar, Al-Alkim argued that the first Iranian official claim to the islands dated 
to 1904. Al-Alkim, supra note 37, at 156. Alkim also argued that Iranian recourse to 
2024] The Critical Date and the Dispute over Islands in the 33 
Strait of Hormuz: Abu Musa and the Tunbs 
or hack Arab and Persian accounts of ownership into historical 
narratives as inflexible as Procrustes’ iron bed. A whiggish eye, blurred 
by these selective readings of the past, results in triumphal and 
unyielding claims177 of ownership, which only the use of force seems 
able to remedy.  
Periodizing the establishment of title to the islands has led to a 
jumble of modern and historical interpretations of the critical date. 
Richard Schofield’s review of historical documents housed at the 
British Library’s Oriental and India Office Collection indicated that 
Sharjah’s prescriptive title to Abu Musa dated back to 1872, and the 
Qawasim sheikhs of Linghe and Ras Al-Khaimah controlled the 
Tunbs.178 Contrastingly, Richard Mobley dated Britain’s belief that the 
islands had been under Arab occupation “well before 1820, the year of 
Britain’s ‘first serious involvement in the region.’”179 Even so, he noted 
the British government was “no more than 60 percent” sure of its legal 
understanding of the islands’ chain of title.180 On the other hand, the 
Iranian claim relies on the notion that the British essentially gifted the 
islands to the Trucial States, following the destruction of the Qawasim 
in 1887.181 Jalil Roshandel dated the gift in 1903.182 However, Saeed 
Bagheri noted that Abu Musa was Iranian territory until Great Britain 
transferred sovereignty to Sharjah in 1908.183 Noura S. Al-Mazrouei 
historical British maps were unofficial and without legal value or authenticity, id. at 157, 
and that the islands were effectively controlled by the Ras al-Khaimah and Sharjah and 
administered by the Qasimi family for more than 200 years, id. at 156. He cites Arab 
authorities, such as Mohammed Al-Mamoud, Abdul Wahab Abdul, Mohammed Al Roken, 
and Walid Al-Adhami, as well as Western authorities, including Rosemarie Said Zahlan, 
Frauke Heard-Bey, David Poole, and Richard Schofield, in support of the claim that Iran’s 
legal title is either unfounded or questionable. Id. at 155.  
177 See generally HERBERT BUTTERFIELD, THE WHIG INTERPRETATION OF HISTORY 
(1931) (introducing the uses and abuses of whiggish conceptions of history used to 
substantiate triumphal presentist assertions). 
178 Richard N. Schofield, Borders and Territoriality in the Gulf and the Arabian 
Peninsula during the Twentieth Century, in TERRITORIAL FOUNDATIONS OF THE GULF 
STATES 36 (Richard Schofield ed., 1994). 
179 Mobley, supra note 7, at 629. 
180 Id.  
181 BUDERI & RICART, supra note 12, at 558 (reportedly quoting the Shah) (“[I]t was 
only the British presence in the Gulf in support of the Trucial Rulers which prevented Iranian 
recovery of the Tunbs and Abu Musa in 1887 . . . .”). Id. at 560 (quoting the Shah) 
(“Sovereignty over the island of Abu Musa is Iran’s right from ancient times. It was Britain 
who took the island from Iran and gave it to Sharjah . . . .”). 
182 Roshandel, supra note 37, at 136 (claiming the British seized the islands from Iran 
and gave them to the Sharjah in 1903).  
183 Bagheri, supra note 12, at 102. 
34 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
referenced British recognition of Ras Al-Khaimah’s claim to the Tunbs 
in 1921, while continuing to support Sharjah’s claim to Abu Musa 
dating to the 1860s.184 Although the concept of a critical date implies 
fixity and certainty, practically determining the critical date reinforces 
its elusive quality as a historical construct and its imperfect utility in 
international law. 
1. The Hauntology of the Critical Date
Treating Western decolonization as synonymous with a critical date
of territorial transfer projected a seamless and administratively 
convenient means of conceptualizing state succession. Taslim O. Elias 
wrote that fixing the critical date was “vital in the determination of title 
to territory, simpliciter.”185 He seconded the idea that it was the “precise 
date” where the “change of sovereignty should be fixed as between the 
original State with title and the subsequent claimant State.”186 African 
countries agreed with this idea of fixity out of concerns for stability 
and the consolidation of power. Accordingly, the African Union’s 
organic charter, adopted in 1963 (itself a critical date reconfigured as a 
critical year), enshrined the uti possidetis principle that Europeans had 
laid upon Africa—namely, that African borders are never again to be 
moved.187 
Linking the critical date to independence from colonial rule—which 
by implication attaches overriding importance to uti possidetis—
factored into decisions by the ICJ in the Frontier Dispute case. There, 
the court held:  
The essence of the principle lies in its primary aim of securing respect 
for the territorial boundaries at the moment when independence is 
achieved. Such territorial boundaries might be no more than 
delimitations between different administrative divisions or colonies 
all subject to the same sovereign. In that case, the application of the 
principle of uti possidetis resulted in administrative boundaries being 
transformed into international frontiers in the full sense of the 
term.188 
184 AL-MAZROUEI, supra note 16, at 7. 
185 TASLIM O. ELIAS, THE INTERNATIONAL COURT OF JUSTICE AND SOME 
CONTEMPORARY PROBLEMS: ESSAYS ON INTERNATIONAL LAW 129 (1983). 
186 Id. at 128. 
187 Charter of the Organization of African Unity art. III, § 3, May 25, 1963, 479 U.N.T.S. 
70 (“Respect for the sovereignty and territorial integrity of each State.”). 
188 Frontier Dispute (Burk. Faso/Mali), Judgment, 1986 I.C.J. 544, ¶ 23 (Dec. 22); 
Frontier Dispute (Benin/Niger), Judgment, 2005 I.C.J. 90, ¶ 26 (July 12) (“[S]ince the effect 
of the uti possidetis principle is to freeze the territorial title, . . . the examination of 
2024] The Critical Date and the Dispute over Islands in the 35 
Strait of Hormuz: Abu Musa and the Tunbs 
In the Land, Island, and Maritime Frontier Dispute case, however, 
the court dismissed the absolutist suggestion that the critical “date 
of independence is always determinative,” and “that no other critical 
date can arise” through adjudication or subsequent treaty.189 Other 
important authorities began disassociating the critical date from the 
tumultuous process of decolonization. Rather than connecting the 
critical date to the lowering of the imperial flag, or the last striking up 
of the band—symbolic commemorations of the date when a successor 
state is often said to be born—emphasis began to shift to when a 
territorial dispute took concrete shape and justiciable legal form.190  
Sir Gerald Fitzmaurice, in his pleading as counsel to the United 
Kingdom in the Minquiers and Ecrehos case, referred to this 
quickening as “the date on which the situation is deemed to have 
become crystallized or . . . frozen.”191 The purpose of the critical date—
its raison d’être—is to stop time.192 It is the temporal reference point 
used to determine the factual and legal claims regarding ownership of 
the disputed territory. Its effect is to establish a preemptive “dividing 
line”193: “[A]cts of the parties after that date cannot alter the legal 
position, so as either to improve or prejudice the claim of either 
party.”194  
documents posterior to independence cannot lead to any modification of the ‘photograph of 
the territory’ at the critical date” unless by agreement of the parties.”). The case involved a 
post-independence border dispute between Burkina Faso and Niger, stemming from French 
colonial rule. 
189 Land, Island, and Maritime Frontier Dispute (El Sal./Hond.: Nicar. Intervening), 
Judgment, 1992 I.C.J. 351, ¶ 67 (Sept. 11). 
190 See L.F.E. Goldie, The Critical Date, 12 INT’L & COMP. L.Q. 1251, 1252–53 (1963) 
(citing Fitzmaurice at 1252; arguing the critical date may arise when defined in concrete 
terms capable of legal settlement at 1253). 
191 Oral Argument of Mr. Fitzmaurice, Minquiers and Ecrehos (U.K./Fr.), 1953 I.C.J. 
Pleadings 10, 61 (Sept. 18, 1953); Sovereignty over Pulau Ligitan and Pulau Sipadan 
(Indon./Malay.), Judgment, 2002 I.C.J. 625, ¶ 135 (Dec. 17) (“[The Court] cannot take into 
consideration acts having taken place after the date on which the dispute . . . crystallized.”). 
See also Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, 
1951-4: Points of Substantive Law, Part II, 32 BRIT. Y.B. INT’L L. 20, 20 (1955–1956) 
[hereinafter Fitzmaurice, Law and Procedure]; SHABTAI ROSENNE, THE TIME FACTOR IN 
THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE (1960). The case involved a 
dispute between France and Great Britain over two groups of islets situated between the 
British island of Jersey and the coast of France. 
192 Oral Argument of Mr. Fitzmaurice, 1953 I.C.J. Pleadings at 64. 
193 Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean 
Sea (Nica. v. Hond.), Judgment, 2007 I.C.J. 659, ¶ 117 (Oct. 8). 
194 See id. at 698. See also R.Y. JENNINGS, ACQUISITION OF TERRITORY IN 
INTERNATIONAL LAW 31 (1963) (“[A] certain date appeared to be ‘critical’, in the sense that 
36 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
Sir Gerald’s formulation has been critiqued as misconceived and 
artificial.195 Jacques Derrida philosophically problematized the 
fictional implications of this time stoppage—reflected in the so-called 
End of History argument—by noting that history’s hauntings appear 
as revenants to disrupt the modernist, liberalist penchant to start anew 
by letting bygones be bygones.196 The same specters revisit the 
determination of the critical legal date. 
Would determining “[w]ho was the sovereign over the territory on a 
specific date . . . [have relevance on w]ho is the sovereign now?”197 
International courts and tribunals have recognized this problematic 
practicality of establishing the critical date. Invoking the critical date 
attempts to confirm for a party “an already existing sovereignty”; by 
implication then, the “activities of the other Party” represent “an 
intrusion and an effort to build up a new claim . . . as a means of 
shutting out evidence of its opponent’s activities than of excluding its 
own.”198 
Sir Gerald argued that deliberate actions undertaken by a party to 
improve its legal position at the critical date of power transition “may 
even afford evidence to the contrary—for instance, the party concerned 
would not have needed to be consciously improving its position 
subsequently, if it had really possessed sovereignty at the critical 
date.”199 Such a ban on these deliberate actions are consonant with the 
prohibition against conferring legal rights on actions that arise from 
wrongdoing (ex injuria jus non oritur).200 Two such examples are 
the decision one way or the other would largely turn upon what was found to be the position 
at that date.”); Sovereignty Over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South 
Ledge (Malay./Sing.), Judgment, 2008 I.C.J. 12, ¶ 32 (May 23). 
195 See Bowett, supra note 116, at 112 n.24 (noting Dubai’s contention that 
Fitzmaurice’s concept of the critical date was “essentially misconceived” and Munkman’s 
complaint was artificial). 
196 See generally JACQUES DERRIDA, SPECTERS OF MARX (Bernd Magnus & Stephen 
Cullenberg eds., Peggy Kamuf trans., Routledge 1994) (1993) (attacking modernist, 
Enlightenment historical progressivism, as advanced by Kant, Hegel, Marx, and Kojève). 
See also FRANCIS FUKUYAMA, THE END OF HISTORY AND THE LAST MAN (1989) 
(articulating the supremacy of liberal democracy following the implosion of the Soviet 
Union). 
197 Bowett, supra note 116, at 112. 
198 Argentine-Chile Frontier (Arg./Chile), 16 R.I.A.A. 111, 166 (U.K. Queen Appointed 
Ct. 1969). 
199 Fitzmaurice, Law and Procedure, supra note 191, at 41, 43. 
200 See Maritime Delimitation and Territorial Questions Between Qatar and Bahrain 
(Qatar v. Bahr.), Judgment, 2001 I.C.J. 40, ¶ 107 (Mar. 16) (noting that illegal and de facto 
occupation cannot metamorphose into a de jure entitlement to territory absent acquiescence 
by the territorial sovereign). The UAE has protested Iranian efforts to improve the islands 
2024] The Critical Date and the Dispute over Islands in the 37 
Strait of Hormuz: Abu Musa and the Tunbs 
displayed by Russia’s unconvincing attempts to characterize the 
annexations of the Donbas region of Eastern Ukraine and the so-called 
Republic of Crimea and Sevastopol as parts of Mother Russia, based 
on critical dates established by sham referenda and accession 
processes.201  
To determine exclusive sovereignty, international law has attempted 
to attach a critical date to every case of a disputed territorial claim.202 
If an actor establishing that date intends to negate the legal significance 
of acts subsequent to that date,203 a problem of intertemporal law 
arises. In the famous Island of Palmas arbitration, the critical date of 
1898 was fixed and uncontested by the disputants, the United States 
and the Netherlands.204 This agreement led to an investigation into 
and weighing of the factual positions (effectivités) asserted by the 
disputants to determine sovereignty.205 The sole arbitrator, Swiss jurist 
Max Huber, diminished considerations relating to discovery206 and 
with infrastructural developments following the 1992 annexation of Abu Musa and 
additional construction projects, such as Tehran’s announcement that it was building 
maritime offices on Abu Musa. See supra note 11; Henderson, supra note 9. 
201 See Maria Stromova & Alexander Smith, Donetsk Asks to Join Russia After 
Referendum to Leave Ukraine, NBC NEWS (May 12, 2014), https://www.nbcnews.com 
/storyline/ukraine-crisis/donetsk-asks-join-russia-after-referendum-leave-ukraine-n103201 
[https://perma.cc/HJD8-3XTS]; Christopher R. Rossi, Ex Injuria Jus Non Oritur, Ex Factis 
Jus Oritur and the Elusive Search for Equilibrium after Ukraine, 24 TUL. J. INT’L & COMP. 
L. 143 (2015).
202 See Argentine-Chile Frontier (Arg./Chile), 16 R.I.A.A. at 166 (“As in most territorial
disputes, there has been much discussion of the question of the ‘critical date.’”). 
203 Oral Argument of Sir Lionel Heald, Minquiers and Ecrehos (U.K./Fr.), 1953 I.C.J. 
Pleadings 19, 31 (Sept. 17, 1953). As an indication of how radically opposing assertions of 
the critical date can be: in a case of contested sovereignty over islets between the island of 
Jersey and the coast of France, Britain asserted in this case that the proper date vested with 
the signature of a compromis on December 29, 1950; France argued that the critical date 
arose 111 years earlier, on August 2, 1839, when the 1839 Fishery Convention was signed. 
See id. at 31. In the dangerously contested waters of the South China Sea, China has asserted 
wide-ranging sovereign rights over upwards of ninety percent of the sea based on historical 
claims dating back by millennia. Critics assert China’s claim, intermittently asserted, did 
not appear until 1947. See Christopher R. Rossi, Treaty of Tordesillas Syndrome: 
Sovereignty Ad Absurdum and the South China Sea Arbitration, 50 CORNELL INT’L L.J. 231 
(2017).  
204 See Island of Palmas Case (or Miangas) (Neth. v. U.S.) 2 R.I.A.A. 829, 843 (Perm. 
Ct. Arb. 1928) (“The essential point is therefore whether the Island of Palmas (or Miangas) 
at the moment of the conclusion and coming into force of the Treaty of Paris [1898] formed 
a part of the Spanish or Netherlands territory.”). 
205 See generally id. 
206 See id. at 846 (“[D]iscovery alone, without any subsequent act, cannot at the present 
time suffice to prove sovereignty . . . . [A]n inchoate title of discovery must be completed 
38 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
emphasized the peaceful and continuous display of state sovereignty, 
along with evidence of acquiescence207 or lack of opposition to 
possessory claims. Huber’s award embodied the element of 
intertemporality,208 as opposed to the freeze framing of a critical 
date,209 even suggesting at one point that the temporal date could be 
stretched into a “critical epoch.”210 In a case between Nicaragua and 
Honduras, the ICJ found that where two interrelated disputes exist, 
involving territorial and maritime claims, “there is not necessarily a 
single critical date and that date may be different in the two 
disputes.”211 
In the Eritrea/Yemen Arbitration—a sovereignty dispute involving 
“small to tiny” islets “habitable only with great difficulty” and, yet, 
straddling “one of the most important and busiest seaways in the 
world,” the Suez Canal212—both parties refused to discuss a critical 
date except in terms of establishing the procedures of arbitration.213 
Yemen based its claim on historical title dating to the Bilad el-Yemen 
of the sixth century214 and a (rejected) claim of reversion, which 
attempted to preserve its historical chain of title notwithstanding 
imperial and colonial interruptions.215 Eritrea proffered a historical 
chain of title that drew from the beginning of Italian colonization in the 
later part of the nineteenth century and its post-World War II federation 
within a reasonable period by the effective occupation of the region claimed to be 
discovered.”). 
207 See id. at 869 (noting the principle of acquiescence and sovereignty’s association 
with continuous and peaceful display of state authority). 
208 See id. at 845 (“[A] juridical fact must be appreciated in the light of the law 
contemporary with it, and not of the law in force at the time when a dispute in regard to it 
arises or falls to be settled.”). 
209 See id. at 846 (discussing intertemporal law). 
210 Id. at 848. 
211 Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean 
Sea (Nicar. v. Hond.), 2007 I.C.J. 659, ¶ 123 (Oct. 8). 
212 Award of the Arbitral Tribunal in the First Stage of the Proceedings Between Eritrea 
and Yemen, 22 R.I.A.A. 211, ¶ 93 (Perm. Ct. Arb. 1998). 
213 Id. ¶ 95 (“[T]he Parties themselves have spoken of a critical date only in relation to 
the question discussed above: whether in deciding on the scope of the Arbitration, . . . 
[n]either of them has sought to employ a critical date argument in relation to any of the
questions involving the substance of the dispute.”).
214 Id. ¶¶ 47, 116–117, 119. 
215 See id. ¶ 125 (“It has not been established in these proceedings to the satisfaction of 
the Tribunal that the doctrine of reversion is part of international law. In any event, the 
Tribunal concludes that on the facts of this case it has no application. No ‘reversion’ could 
possibly operate, since the chain of titles was necessarily interrupted . . . .”). 
2024] The Critical Date and the Dispute over Islands in the 39 
Strait of Hormuz: Abu Musa and the Tunbs 
with Ethiopia.216 Presented with voluminous historical material to 
buttress competing claims of historical consolidation and state 
succession, the tribunal “thought it best to follow the example” 
established by Lord McNair in the Argentina/Chile Frontier 
Arbitration,217 whereby determining the critical date was “of little 
value.”218 Instead, the tribunal needed to interpret the historical 
evidence “‘irrespective of the date of the acts to which such evidence 
relates.’”219 The temporal vantage points of fixity and continuity, in 
view of intertemporal law, have created a conundrum for international 
decision-makers. However, nothing is more odious to the judicial mind 
than failing to render a final decision. The need to avoid a non liquet 
reinforces the judicial search for the critical date.220  
2. A Wide Margin of Appreciation
The emphasis on a singular or particular date—indicative of
crystallizing title to territory—presents a compelling but not 
completely satisfying solution to disputes over title to territory. R.Y. 
Jennings described the critical date as “a sophisticated and technical 
doctrine,”221 but noted “some danger . . . in allowing what is basically 
no more than a descriptive term . . . to develop into a . . . ‘rule.’”222 The 
tribunal in Argentina/Chile struggled to determine that critical date 
even though the parties were “not so very far apart in their ideas as to 
when the critical date should be fixed.”223 A margin of appreciation 
indicated that “the critical date is not necessarily the same for all 
purposes.”224 In the Western Sahara Advisory Opinion, the ICJ 
216 Id. ¶ 480 (“[Eritrea’s claim] derived from the Italian colony of Eritrea, and by the 
way of the subsequent federation of Ethiopia and Eritrea . . . .”). 
217 Id. ¶ 95. 
218 Argentine-Chile Frontier (Arg./Chile), 16 R.I.A.A. 111, 167 (U.K. Queen Appointed 
Ct. 1969). 
219 Award of the Arbitral Tribunal in the First Stage of the Proceedings Between Eritrea 
and Yemen, 22 R.I.A.A. ¶ 95. See also Argentine-Chile Frontier (Arg./Chile), 16 R.I.A.A. 
at 166. 
220 See Fisheries Jurisdiction (U.K. v. Ice.), Judgment, 1974 I.C.J. 3, ¶ 40 (July 25) (“The 
possibility of the law changing is ever present: but that cannot relieve the Court from its 
obligation to render a judgment on the basis of the law as it exists at the time of its 
decision.”). 
221 JENNINGS, supra note 194, at 31. 
222 Id. at 34. 
223 Argentine-Chile Frontier (Arg./Chile), 16 R.I.A.A. at 166 (noting Argentina’s 1941 
claim and Chile’s 1945 or, alternatively, 1952 claim). 
224 Id. at 167. 
40 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
contemplated the expansive question of when Spain colonized the 
Western Sahara (Rio de Oro and Sakiet El Hamra).225 Mindful of 
Spain’s allegations that their sovereignty dated back to the fifteenth and 
sixteen centuries, the Court dismissed those remote antecedents for the 
display of Spanish continuity, originating in 1884 with the Spanish 
proclamation of a protectorate over the Rio de Oro.226 
As argued in Eritrea/Yemen, international law presumes “that the 
boundaries of the independent states which replace the Empire will 
correspond to the boundaries of the administrative units of which the 
dismembered Empire was constituted.”227 This is the problematic 
“legal presumption of uti possidetis . . . . For such a legal presumption 
to operate it is necessary to know what were [the boundaries]”228 more 
than the consequences of dismemberment.  
The Radcliffe Line, unveiled by the retreating British Imperial Raj 
on the singular date of August 17, 1947, partitioned India, created and 
partitioned Pakistan, launched epic migrations that killed between one 
and two million people, and led to the secession of East Pakistan and 
the creation of Bangladesh.229 The line also prompted the Muslim-
majority, princely state of Jammu and Kashmir to accede into the 
Union of India, and contributed directly to three Indo-Pakistani wars 
while indirectly contributing to a fourth.230 Finally, the line led to the 
massive division of six major rivers of the Indus Waters Basin, which 
now poses existential problems for water-insecure Pakistan.231 Sir Cyril 
Radcliffe, the man who almost singlehandedly drew the vivisection 
225 See Western Sahara, Advisory Opinion, 1975 I.C.J. 12, ¶ 1 (Oct. 16) (“Was Western 
Sahara (Río de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory 
belonging to no one (terra nullius)?”). 
226 See id. ¶ 77. 
227 Award of the Arbitral Tribunal in the First Stage of the Proceedings Between Eritrea 
and Yemen, 22 R.I.A.A. 211, ¶ 96 (Perm. Ct. Arb. 1998) (quoting Yemen’s counter 
memorial).  
228 Id. ¶ 97. 
229 See William Dalrymple, The Great Divide, NEW YORKER (June 22, 2015), https:// 
www.newyorker.com/magazine/2015/06/29/the-great-divide-books-dalrymple (discussing 
the lingering consequences of one of history’s greatest human migrations). 
230 See Christopher R. Rossi, Interstitial Space and the High Himalayan Dispute 
between China and India, 62 HARV. INT’L L.J. 429, 438 (2021) (discussing the Indo-
Pakistani wars of 1947, 1965, 1971, and the 1999 Kargil conflict). The 1971 war did not 
involve Kashmir at its outset, but Indian and Pakistani soldiers fought on Kashmiri soil 
during the 1971 war’s final stages. See ALASTAIR LAMB, KASHMIR: A DISPUTED LEGACY 
1846–1990, at 1 (1991). 
231 See generally Christopher R. Rossi, Blood, Water, and the Indus Waters Treaty, 29 
MINN. J. INT’L L. 103 (2020) (discussing, inter alia, the consequences of the critical date 
associated with the partitioning of India). 
2024] The Critical Date and the Dispute over Islands in the 41 
Strait of Hormuz: Abu Musa and the Tunbs 
line, improbably underestimated the consequences of the critical date 
when he admittedly left “80 million people with a grievance” upon 
unveiling his demarcation.232  
For the first time in Africa’s history, the Berlin Conference 
(1884-1885) formalized the principal contours of the continent,233 
influentially shaping today’s atlas of Africa and the “politics of 
contemporary Africa.”234 The conference promulgated a General Act 
on February 26, 1885,235 which operationalized a “structural logic” or 
a “chain of reasoning” that affected explicit European aspirations and 
material possibilities.236 While purportedly ending the so-called 
Scramble for Africa, it may have “precipitated the Scramble.”237 A 
disregard for local conditions and a largely unexplored understanding 
of the political and ethnic geography resulted in a substantially 
“accidental,” rather than “conspiratorial,” division of Africa—at a time 
when Europeans were not drawing borders of prospective states or, in 
many cases, even colonies.238 The politics of economy overshadowed 
considerations of capricious line drawing, notwithstanding British 
Prime Minister Lord Salisbury’s observation that the countries of the 
Berlin Conference had ceded “mountains and rivers and lakes to each 
[colonial power] only hindered by the small impediment that [they] 
never knew exactly where the mountains and rivers and lakes were.”239 
Winston Churchill associated the European Euclidean cartographic 
mentality with the mission civilisatrice, which represented the religio-
232 See Rossi, supra note 230, at 449 (referencing Radcliff ’ s 1947 letter to Mark 
Tennant).  
233 See Stelios Michalopoulos & Elias Papaioannou, The Long-Run Effects of the 
‘Scramble for Africa,’ 106 AM. ECON. REV. 1802, 1803 (2016) (statement of Jeffrey Herbst) 
(“[F]or the first time in Africa’s history [at independence], territorial boundaries acquired 
salience . . . .”). 
234 ANTONY ANGHIE, IMPERIALISM, SOVEREIGNTY AND THE MAKING OF 
INTERNATIONAL LAW 91 (2004). 
235 General Act of the Conference of Berlin, Relative to the Development of Trade and 
Civilization in Africa; the Free Navigation of the Rivers Congo, Niger, etc.; the Suppression 
of the Slave Trade by Sea and Land; the Occupation of Territory on the African Coasts, Feb. 
26, 1885, No. 128, reprinted in 2 E. HERTSLET, THE MAP OF AFRICA BY TREATY 468 (3d 
ed. 1909).  
236 Matthew Craven, Between Law and History: The Berlin Conference of 1884–1885 
and the Logic of Free Trade, 3 LONDON REV. INT’L L. 31, 58 (2015). 
237 THOMAS PAKENHAM, THE SCRAMBLE FOR AFRICA: WHITE MAN’S CONQUEST OF 
THE DARK CONTINENT FROM 1876 TO 1912, at 254 (1991). 
238 Michalopoulos & Papaioannou, supra note 233, at 1808 (quoting A.I. Asiwaju). 
239 See The Mansion-House Banquet to Her Majesty’s Ministers, LONDON TIMES 6 
(Aug. 7, 1890) (quoting Lord Salisbury). 
42 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
political-cultural justification for imperial expansion.240 To him, the 
railroad line, created by the British and travelling from the port of 
Mombasa on the Indian Ocean into the interior of Africa to the eastern 
shore of Lake Victoria, represented “one slender thread of scientific 
civilization . . . drawn across the primeval chaos of the world.”241 That 
railroad line consolidated an administrative territory that required 
another (cartographic) line, revealed by the British Superintendent of 
African Protectorates, Sir Clement Hill, on April 1, 1902.242 Sir 
Clement’s line removed huge portions of the Rift Valley that had been 
under the traditional control of the Buganda kingdoms to create the East 
African Protectorate (now Kenya).243 As was argued in the Minquiers 
and Ecrehos case, “‘a title to territory is not a legal relation in 
international law whose existence and elements are a matter of one 
single moment.’”244 Emphasis in that case depended on a process of 
historical consolidation, later summarized by Judge Bebler in the Rann 
of Kutch case, arguing that there should be “effective, i.e., real and not 
fictitious, display of State authority . . . [that] have certain qualities and, 
above all, the qualities of continuity, of intention, of manifestation of 
State sovereignty and of possession à titre de souverain.”245 
CONCLUSION 
The arbitrariness of temporal and spatial boundaries has long been 
recognized,246 as has the fictional understanding that statehood 
conforms to tightly fitted natural frontiers.247 This arbitrariness 
240 The term is a byword of French colonial expansion under the Third Republic 
(1870-1940). Mathew Burrows, ‘Mission Civilisatrice’: French Cultural Policy in the 
Middle East, 1860-1914, 29 HIST. J. 109 (1986). 
241 WINSTON S. CHURCHILL, MY AFRICAN JOURNEY 8 (1908). 
242 See Christopher R. Rossi, The Migingo Island Dispute Between Kenya and Uganda, 
42 BROOK. J. INT’L L. 659, 678 (2017). 
243 See id. at 678-80. 
244 Oral Argument of Sir Lionel Heald, Minquiers and Ecrehos (U.K./Fr.), 1953 I.C.J. 
Pleadings 19, 52 (Sept. 17, 1953) (quoting the Netherlands’ counter memorial). 
245 The Indo-Pakistan Western Boundary (Rann of Kutch) (India v. Pak.), 17 R.I.A.A. 
1, 482 (Perm. Ct. Arb. 1968) (Bebler, J., dissenting). 
246 Jeffrey Herbst, The Creation and Maintenance of National Boundaries in Africa, 43 
INT’L ORG. 673, 674–75 (1989) (noting the particularly arbitrary and “haphazard” 
configuration of African boundaries, forty-four percent of which are straight lines that 
conform to astrological or adjacent straight-line measurements, not nature). 
247 See Jan O. M. Broek, The Problem of Natural Frontiers, in FRONTIERS OF THE 
FUTURE: LECTURES DELIVERED UNDER THE AUSPICES OF THE COMMITTEE ON 
INTERNATIONAL RELATIONS ON THE LOS ANGELES CAMPUS OF THE UNIVERSITY OF 
CALIFORNIA 1940, at 3, 11 (1941) (recognizing the utility of “certain physiographic 
2024] The Critical Date and the Dispute over Islands in the 43 
Strait of Hormuz: Abu Musa and the Tunbs 
continues to conflict with ancient religious, monarchical, and 
ecclesiastical vestiges, such as frankalmoign, that connect territorial 
control to personal allegiance.248 The development of sovereignty 
and the centuries-long transition to statehood required the imposition 
of a critical date to signify the transfer of power. International 
law’s mechanisms for establishing this date included an array of 
techniques and effectivités to support title to territory.249 At the hub of 
this determination lays the idea of a critical date. The critical date can 
be conceived as a temporal moment in time, a legal fixture reliant on 
uninterrupted and continuous control, or an arbitrary line meant to 
dispossess claimants beyond that line of a right to subsequently 
establish better title. The critical date retains its significance 
despite subjectivities of historical abridgment, the hauntology of 
colonialism, and concessions to dominant Western narratives, which 
compartmentalize civilizational units into sovereign units. 
International law’s progressive desire to let bygones be bygones 
presses a weight on the historical scales of justice—if only the 
consequences of that dismissiveness quieted complaints as much.  
An ambivalent jurisprudence surrounds the critical date. 
Ambiguities of application continue to confound decision-makers, who 
labor under the obligation to render a judgment.250 Absent a political 
will among parties to adjudicate disputes, judicially constructed 
concepts, such as the critical date, create outcomes that necessarily 
preference particular political interests. These interests affect strategic 
considerations, which remain as important today as they did half a 
century ago when the United States and Britain allegedly connived to 
turn a blind eye to Iran’s takeover of the islands. As was well known at 
features,” but noting the “wrong premise,” that nature provides unambiguous divisions of 
the earth). 
248 See James D. Fry & Melissa H. Loja, The Roots of Historic Title: Non-Western Pre-
Colonial Normative Systems and Legal Resolution of Territorial Disputes, 27 LEIDEN  
J. INT’L L. 727 (2014) (contrasting state-centric rules of territorial sovereignty with ancient
normative systems of allegiance); Frederic William Maitland, Frankalmoign in the Twelfth
and Thirteenth Centuries, in 2 THE COLLECTED PAPERS OF FREDERIC WILLIAM MAITLAND 
206 (H.A.L. Fisher ed., 1911) (discussing the thirteenth-century feudal practice of
frankalmoign, a land tenure system allowing ecclesiastical bodies to hold land as free alms
in exchange for spiritual service).
249 See Ashgar Ali Ali Mohamed, ‘Effectivités’: An Imperative Legal Principle in 
Resolving the Senkaku/Diaoyu Islands Dispute, 60 J. INDIAN L. INST. 137, 139 (2018) 
(reviewing the principal international decisions evidencing the proof of ‘effective control’ 
(effectivités)). 
250 See Statute of the International Court of Justice art. 38, June 26, 1945, TS 993 
(holding that the function of the Court is to decide disputes “as are submitted to it”). 
44 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
that time, “a small group of men using a boat and a bazooka”—and 
using the islands as a staging ground—“could threaten navigation in 
the waterway.”251 Currently, asymmetrical warfare tactics, involving 
numerous fast attack crafts, complicate this security calculation. 
Swarming tactics are likely to outmaneuver civil and military traffic in 
the narrow confines of the Strait of Hormuz. Even one attack against a 
commercial vessel poses a “direct threat” and “could cause catastrophic 
damage, with global policy and private sector ramifications.”252  
The Lower Gulf Islands have been described as one of international 
law’s frozen disputes. Perhaps this metaphoric description is not 
entirely fitting. In what has been described as “the most provocative act 
in the last five decades,” Iran’s Supreme Leader, Ayatollah Khamenei, 
declared in 2020 that the three islands must be converted into 
residential property.253 This declaration attempts to dramatically alter 
the islands’ demographics to solidify Iranian sovereignty.254 
Iran’s strategic and military superiority over the Lower Gulf Islands 
has moved the UAE to exert influence in another direction. Yemen’s 
island of Socotra, situated off the Horn of Africa, overlooks the Bab el-
251 U.N. Doc. S/PV 1610, supra note 11, ¶ 71. 
252 Berenice Baker, Iran’s Fast Attack Craft Fleet: Behind the Hyperbole, NAVAL 
TECHNOLOGY (Jan. 16, 2013), https://www.naval-technology.com/features/featureiran 
-fast-attack-craft-fleet-behind-hyperbole/ [https://perma.cc/9NRL-XCSA]. Recent tensions
between the US and Iran stem from: the 2018 Trump Administration withdrawal from the
Iran nuclear deal (the Joint Comprehensive Plan of Action (JCPOA)); the 2019 Iranian
downing of a US surveillance drone; the 2019 Iranian seizure of a British tanker transiting
the Strait of Hormuz; the 2020 Trump Administration assassination of Qasem Soleimani,
the commander of the Iranian Quds Force; and proxy attacks stemming from the war in
Yemen. The proxy attacks renew concerns about Iranian intentions to mine and/or close the
Strait of Hormuz. Such threats appear more rhetorical than serious, due to the devastating
self-harm such an action would bring to Iran’s economy. “[Ninety percent] of Iran’s oil
exports pass through the Strait of Hormuz, representing approximately 83 percent of all
Iranian exports” and eighty-five percent of all Iranian government revenue. STRAUSS CTR.,
supra note 1. Iran has recently opened a new two-billion-dollar oil terminal east of the strait
on the Gulf of Oman. See Amanda Macias, Iran Opens New Oil Terminal in Bid to Bypass
Crucial Strait of Hormuz for Exports, CNBC (July 22, 2021, 11:19AM), https://www.cnbc
.com/2021/07/22/iran-opens-new-oil-terminal-in-bid-to-bypass-crucial-strait-of-hormuz
-for-exports.html [https://perma.cc/WA8U-XGPZ]. See also Lolita C. Baldor & Jon
Gambrell, US Military May Put Armed Troops on Commercial Ships in Strait of Hormuz to
Stop Iran Seizures, ASSOC. PRESS (Aug. 4, 2023, 5:52 PM), https://apnews.com/article
/persian-gulf-tensions-us-armed-guards-57295a81dc45c9e0755bd6a83ece86d9 [https://
perma.cc/G8CV-RFGQ].
253 Mohammad Eslami & Saba Sotoudehfar, Iran–UAE Relations and Disputes Over the 
Sovereignty of Abu Musa and Tunbs, in THE GEOPOLITICS OF IRAN 343, 344 (Francisco José 
B.S. Leandro et al. eds., 2021). 
254 Id. at 344, 350. 
2024] The Critical Date and the Dispute over Islands in the 45 
Strait of Hormuz: Abu Musa and the Tunbs 
Mandeb Strait.255 It strategically connects the Arabian Sea and the Gulf 
of Aden to the Red Sea and the Suez Canal.256 It also serves as a way 
station for legal and illegal trade and fishing connected to the Horn of 
Africa.257 More than six million barrels of Gulf oil flow through the 
Bab el-Mandeb Strait annually.258 Since experiencing three devastating 
cyclones from 2015 to 2018, the UAE has been providing humanitarian 
aid to the island and building up its infrastructure.259 At the same time, 
it has been fortifying its military presence on the island in support of 
Yemen’s Southern Transitional Council (STC), which seeks the 
separation of South Yemen from the rest of the country.260 The UAE’s 
influence on the island and support of the STC complicates relations 
with its Saudi ally and conflicts with Saudi expansion interests in the 
Horn region.261 The UAE’s influence on the island and support of the 
255 See Rene Tebel, Perim and Socotra: Can Yemen Maintain Its Territorial Integrity?, 
GEOPOLITICAL MONITOR (Aug. 26, 2021), https://www.geopoliticalmonitor.com/perim 
-and-socotra-can-yemen-maintain-its-territorial-integrity/ [https://perma.cc/F68D-8U39]
(referring to Yemen’s territorial outpost 100 km off the Horn of Africa).
256 John Calabrese, The Bab el-Mandeb Strait: Regional and Great Power Rivalries 
on the Shores of the Red Sea, MIDDLE E. INST. (Jan. 29, 2020), https://www.mei 
.edu/publications/bab-el-mandeb-strait-regional-and-great-power-rivalries-shores-red-sea 
[https://perma.cc/GED8-TYKB] (referring to the Bab el-Mandeb Strait (“Gate of Tears” in 
Arabic) as the “vital strategic link” between the Mediterranean Sea and the Indian Ocean 
via the Suez Canal). 
257 See generally Afyare A. Elmi, Illegal Fishing and Piracy in the Horn of Africa: The 
Role of the Mena Region, in ENVIRONMENTAL POLITICS IN THE MIDDLE EAST: LOCAL 
STRUGGLES, GLOBAL CONNECTIONS 149–66 (Harry Verhoeven ed., 2018) (noting 
Socotra’s geostrategic location and illegal, unreported, and unregulated fishing in the Horn 
of Africa). 
258 See Justine Barden, The Bab el-Mandeb Strait Is a Strategic Route for Oil and Gas 
Shipments, U.S. ENERGY INFO. ADMIN. (Aug. 27, 2018), https://www.eia.gov/todayin 
energy/detail.php?id=41073 [https://perma.cc/PV6C-YZ4S] (estimating that 6.2 barrels of 
oil transit the strait annually, with 3.6 million barrels heading to Europe (2018 est.)). The 
Bab el-Mandeb Strait and the Strait of Hormuz compose the two major transit arteries in the 
region. See generally Greg Shapland, Maritime Boundaries in the Middle East, 51 ASIAN 
AFFS. 146 (2020). 
259 See UAE Aid for Socotra Education and Health Services, RELIEFWEB (June 30, 
2020), https://reliefweb.int/report/yemen/uae-aid-socotra-education-and-health-services 
[https://perma.cc/U6HW-BURJ] (detailing humanitarian relief). 
260 See Mohammed Mukhashaf, Yemeni Separatists Seize Remote Socotra Island from 
Saudi-Backed Government, REUTERS (June 21, 2020, 4:09 AM), https://www.reuters.com 
/article/us-yemen-security-separatists/yemen-separatists-seize-remote-socotra-island-from 
-saudi-backed-government-idUSKBN23S0DU [https://perma.cc/B74F-2QNG] (noting
UAE support for the STC).
261 See SEBASTIAN SONS, BETWEEN POWER PROJECTION AND REGIONAL RIVALRIES. 
SAUDI ARABIA’S ENGAGEMENT IN THE HORN OF AFRICA, MEGATRENDS AFRIKA 2 (Dec. 
10, 2022), https://www.megatrends-afrika.de/assets/afrika/publications/policybrief/MTA 
46 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1 
STC also threatens Iranian interests in the region.262 The UAE’s 
activity on Socotra has been characterized as a creeping (de facto) 
annexation of the island, if not a partial and ongoing dismemberment 
of Yemen,263 which is itself beset by a protracted civil war and 
humanitarian disaster.264 Viewed in conjunction with the UAE’s 
participation in the Saudi-led proxy war against Iran and its Houthi 
surrogates in Yemen, and the UAE’s establishment of military bases 
on Yemen’s island of Mayun, in Somaliland (Berbera), Eritrea (Assab), 
and in the Puntland region of Somalia,265 little about the status of the 
Lower Gulf Islands in the Strait of Hormuz indicates that the politics 
in the region remain frozen. A controlling UAE interest over Socotra 
provides leverage as a strategic hedge266 against Iranian adventurism in 
the Gulf, when it does not appear as the UAE’s own form of 
adventurism in the Horn of Africa region.  
The metaphoric fixity of the critical date awaits a challenge with 
Socotra’s own declaration of accession to the UAE. Such a declaration, 
which appears to be in the making, will doubtless recycle disputes 
-PB_Sons_Saudi_Arabia_HoA_final.pdf [https://perma.cc/M4Z2-BP3C] (noting Riyadh’s
increasing rivalry with the UAE and its increasing regard of the Horn of Africa as a foreign
policy priority).
262 See Giorgio Cafiero, The UAE’s Expansionist Agenda in Yemen Is Playing Out on 
Socotra, DAWN (Apr. 8, 2022), https://dawnmena.org/the-uaes-expansionist-agenda-in 
-yemen-is-playing-out-on-socotra/ [https://perma.cc/KB5J-FU5J] (noting the shifting
interests affecting UAE-Saudi foreign policies).
263 See Bruce Riedel, Saudi Arabia and the UAE Consolidating Strategic Positions in 
Yemen’s East and Islands, BROOKINGS (May 28, 2021), https://www.brookings.edu/blog 
/order-from-chaos/2021/05/28/saudi-arabia-and-the-uae-consolidating-strategic-positions 
-in-yemens-east-and-islands/ [https://perma.cc/2WFK-SNBS] (discussing Yemen’s
dismemberment and alternative Saudi and UAE intentions to circumvent the Strait of
Hormuz); Arwa Mokdad, What the UAE Takeover of Yemen’s Islands Really Means,
RESPONSIBLE STATECRAFT (June 14, 2021), https://responsiblestatecraft.org/2021/06/14
/what-the-uae-takeover-of-yemens-islands-really-means/ [https://perma.cc/5E62-RXNN]
(characterizing UAE intentions on Socotra as a de facto takeover, with UAE plans of holding
a secession referendum to declare the island officially part of the UAE).
264 See Kari Robinson, Yemen’s Tragedy: War, Stalemate, and Suffering, COUNCIL ON 
FOREIGN RELS. (May 1, 2023), https://www.cfr.org/backgrounder/yemen-crisis [https:// 
perma.cc/7VZ9-7DSG] (describing the Yemeni civil was as an “intractable” problem that 
has created a humanitarian crisis “among the worst in the world”). 
265 See generally Ismail Numan Telci & Tuba Öztürk Horoz, Military Bases in the 
Foreign Policy of the United Arab Emirates, 20 INSIGHT TURK. 143 (2018), https:// 
www.insightturkey.com/file/922/military-bases-in-the-foreign-policy-of-the-united-arab 
-emirates [https://perma.cc/B8R6-EYC4] (discussing the UAE’s establishment of military
bases abroad, notably in the Horn of Africa).
266 On the concept of strategic hedging in relation to the UAE’s rivalry with Iran, see 
generally Ayman El-Dessouki & Ola Rafik Mansour, Small States and Strategic Hedging: 
The United Arab Emirates’ Policy Towards Iran, REV. ECON. & POL. SCI. 1, 1–14 (2020). 
2024] The Critical Date and the Dispute over Islands in the 47 
Strait of Hormuz: Abu Musa and the Tunbs 
about international law’s uneasy encounter with the hauntings of 
history, as imperfectly remediated by its desideratat to achieve finality 
by letting bygones be bygones.  
48 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 25, 1