A few days ago Francis A. Boyle, associate from the Transnational Foundation for Peace and Future Research and professor of international law at the University of Illinois, College of Law, argued that the dispute between Iran and the United Kingdom should be resolved through implementation of the Hague Convention for Pacific Settlement of International Disputes. Under the 1899 Hague Convention, which both Iran and the UK are parties to, when diplomatic measures do not resolve international differences then an International Commission of Inquiry may be formulated by the parties in dispute. Presumably, under Boyle's analysis, the dispute between Iran and the United Kingdom cannot be resolved by diplomatic means because they concern factual issues that can only be resolved by legal analysis. They are fundamentally based upon where the soldiers were captured, for if in Iranian waters then Iran has every right to seize those illegally entering into its waters. The problem with Boyle's suggestion is that if we accept Boyle's suggestion, then any Commission will inevitably be forced to determine the legal rights of Iraq, a third party, by determining legal boundaries between Iran and Iraq in the Persian Gulf.
As noted by former British Ambassador, Craig Murray: "there is no agreed maritime boundary between Iraq and Iran in the Persian Gulf." Murray, who also headed the Maritime Section of the Foreign and Commonwealth Office from 1989 to 1992, explains:
The British Government has published a map showing the coordinates of the incident, well within an Iran/Iraq maritime border. The mainstream media and even the blogosphere has bought this hook, line and sinker.
But there are two colossal problems.
A) The Iran/Iraq maritime boundary shown on the British government map does not exist. It has been drawn up by the British Government. Only Iraq and Iran can agree their bilateral boundary, and they never have done this in the Gulf, only inside the Shatt because there it is the land border too. This published boundary is a fake with no legal force.
B) Accepting the British coordinates for the position of both HMS Cornwall and the incident, both were closer to Iranian land than Iraqi land. Go on, print out the map and measure it. Which underlines the point that the British produced border is not a reliable one.
Absent Iraq's intervention or consent to the proceedings, this would run counter to the well-accepted principle of international law requiring the participation of indispensable third parties. Under the "Monetary Gold principle," "an international tribunal cannot decide a dispute between the parties before it if the very subject matter of the decision would be the rights and obligations of a State which is not a party to the proceedings.” This principle has not only been expounded continuously by the International Court of Justice, but also accepted generally by international tribunals as a general principle of international law such as in Larsen v. Hawaiian Kingdom before the Permanent Court of Arbitration and has been used to criticize exercise by the International Criminal Court over non-party nationals. The one exception to this is that international courts and tribunals are not precluded from exercising its jurisdiction if its judgment does not lead it to rule on the legal position of subjects of international not present in the proceedings, even though its reasoning could be transposed to them. Here, however, any Commission would be forced to rule on whether Marines were in Iranian or Iraqi territorial waters. Thus they would be forced to determine legal rights of parties not present in the proceedings.
Absent Iraq's participation, therefore, no move should be made to determine territorial boundaries between a non-party to the dispute. If anything, international law would be best implemented to condemn Iran's violations under the Vienna Convention on Consular Relations by failing to grant access to the Marines and general human rights obligations by failing to grant the prisoner's general guarantees of justice. Specifically, article 36(1)(c) of the VCCR guarantees that "consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation." Moreover, the actions by the Iranian government are clearly in violation of article 14 of the ICCPR which contemplates that detained persons should obtain a free and fair trial before being found guilty of the commission of a crime. The political nature of the dispute has distracted attention from the very fact that Iran has found UK marines guilty through coercive statements without bringing the parties before an impartial tribunal, military or civil.