The Al Yasat Marine Protected Area Dispute

1. Introduction

The Al Yasat Marine Protected Area (MPA) has become the latest flashpoint in a wider quarrel concerning the maritime boundaries between the Kingdom of Saudi Arabia (KSA) and the United Arab Emirates (UAE) in the Arabian Gulf. See the KSA’s note verbale (A/78/824) and the UAE’s response (A/78/886). The dispute can largely be attributed to the forces of colonialism, which created the matrix in which the KSA and UAE concluded the Treaty of Jeddah some fifty years ago. Despite the difficulties generated by this history, these neighbouring countries need to find a way to settle their differences and negotiate a new maritime framework in this part of the Gulf not only for their own sakes but also for the benefit of the region.   

MPAs are an important technique in promoting biodiversity, and, as such, they have been identified as a key performance indicator for conserving coastal and marine areas (Target 14.5.1, Sustainable Development Goals). Establishing an MPA seems, therefore, like a ‘win-win’ situation, especially for States seeking to demonstrate their blue-credentials. The UAE has established several MPAs in recent years. The Al Yasat MPA is located off the western coast of the Emirate of Abu Dhabi, which neighbours the KSA. This MPA was first established in 2005 (Amir Decree No. 33, 2005) and its latest iteration was declared in 2019 (Amir Decree No. 4, 2019). It has a total surface area of 2256 square kilometres and includes the islands of Al Ghagha, Al Qaffay and Al Yasat. These offshore islands are surrounded by ecologically significant coral reefs while their ‘pristine waters’ are home to rare and endangered species – including sea turtles and dugongs – making this MPA an important site for marine ecotourism. Nevertheless, this ‘nature lover’s paradise’ is not entirely trouble free.

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

This KSA/UAE dispute is based on their conflicting claims to the marine space adjacent to the territory surrounding the Khor Al Udaid – a water inlet located on the Gulf near the base of the Qatari Peninsula. In a note verbale addressed to the UN Secretary-General, the KSA refused to recognise the UAE’s declaration of the Al Yasat MPA while denying that it would have any legal effects for it (18 March 2024, A/78/824). In response, the UAE asserted the MPA is located within its territorial sea and that it: ‘does not recognise for the [KSA] any maritime zones, sovereign rights or jurisdiction beyond the median line separating the [parties’ respective territorial seas] opposite Al Udeid Province’ (16 May 2024, A/78/886).  

States are competent to establish MPAs in their territorial seas, but sovereignty in this maritime zone ‘is exercised subject to this Convention and to other rules of international law’ (Article 2(3) UNCLOS). In its Chagos MPA (Mauritius/UK) Award, the arbitral Tribunal decided that Article 2(3) requires a coastal State to uphold those rights belonging to a third State which are related to its territorial sea in good faith, thereby creating an obligation tantamount to the duty of ‘due regard’ contained in Article 56(2) (paras 520-521). Consequently, before declaring an MPA in its territorial sea, a coastal State must consult with any third State that has rights in this maritime zone beyond those general entitlements belonging to all States (paras 518-536).

The UAE is not a party to UNCLOS; however, there is no doubt that under customary international law, the exercise of sovereignty in the territorial sea is subject to other rules of international law. Therefore, the key question would appear to be whether the KSA has rights in the marine space directly affected by the Al Yasat MPA which would then generate an entitlement to be consulted as part of the process by which this MPA was declared. However, this diplomatic spat is better understood as a proxy for a wider maritime delimitation dispute that finds its origins in the colonial era.

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

Britain assumed responsibility for managing Abu Dhabi’s foreign affairs pursuant to the Exclusive Agreement it concluded with the Trucial Sheiks in 1892. Throughout the twentieth century it defended Abu Dhabi’s claim to the area of the Khor Al Udaid while discouraging successive rulers from re-occupying this territory given its close proximity to the KSA (Schofield, ‘The Crystallisation of a Complex Territorial Dispute: Britain and the Saudi-Abu Dhabi Borderland, 1966–71’ pp. 21, 35-36). However, on 9 January 1968, Britain announced its intention to withdraw from the Gulf by the end of 1971 and its regional influence was clearly waning by then (see, e.g., Smith, ‘An Empire of Influence? British Relations with the United Arab Emirates in the 1970s’ pp. 9-10). The UAE was founded on 2 December 1971 and was anxious to secure recognition from regional powers around this time. The KSA wanted to establish an alternative means of access on the Gulf coast for strategic reasons (see e.g., Peterson, ‘Sovereignty and Boundaries in the Gulf States Settling the Peripheries’ pp. 27, 33-34). Consequently, it pressed its historical claim to the Khor Al Udaid while signalling that its recognition of the UAE would depend on the conclusion of a boundary treaty in keeping with its core aims (Al-Mazrouei, ‘UAE-Saudi Arabia Border Dispute: The Case of the 1974 Treaty of Jeddah’ pp. 111 and 139-146).

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

3.1 Al Qaffay Island

By Article 5(1) of the 1974 Treaty, the KSA recognised the UAE’s sovereignty over all islands opposite the Gulf other than Huwaysat Island to the west of the disputed MPA. However, Article 5(2) provided that the UAE agrees to allow the KSA to construct any general installations it may wish to establish on the islands of Al Qaffay and Makasib. As noted above, Al Qaffay constitutes part of the Al Yasat MPA and so it could be supposed that the rights conferred on the KSA would trigger a ‘due regard’ obligation for the UAE concerning the creation of this MPA. As far as can be ascertained, the KSA has not sought to build any such installations on either of these islands during the last fifty years. As a result, the UAE might try to contend that this amounts to a ‘dead letter’ provision that cannot trigger a duty to consult in this context.

The simple passage of time is not sufficient to eradicate concrete rights and obligations in international law, but the principle of desuetude can be invoked as a ground for terminating a treaty obligation where a subsequent inconsistent practice emerges that reveals a new tacit agreement between the parties. On the facts, it is hard to see how the KSA’s apparent decision not to exercise the construction rights conferred by Article 5(2) amounts to evidence from which a new shared practice could be inferred. There is nothing to suggest that the KSA has surrendered these rights since the treaty was concluded and indeed it has reiterated these entitlements in diplomatic protests down the years (see, e.g., A/78/824).     

3.2 Maritime Delimitation and the 1974 Treaty

Article 5(3) of the Treaty of Jeddah addresses the question of maritime delimitation. It stipulates that the parties shall delimit their maritime boundaries in a manner which ‘will ensure free and direct access to the high seas from the territorial waters of that part of the territory of the [KSA] adjacent to the territory of the [UAE]’. It goes on to state that the: ‘High Contracting Parties shall have joint sovereignty over the entire area linking the territorial waters of the [KSA] and the high seas […]’.

It is unclear what is meant by ‘joint sovereignty’ here, but it is highly unlikely that the parties envisaged establishing some kind of joint development zone given the commitment to implement a process of maritime delimitation ‘as soon as possible’. A cursory examination of (unofficial) maps of this marine space (available here) shows the extent of the parties’ claims in this part of the Gulf. Arguably, the ‘joint sovereignty’ being contemplated in Article 5(3) only makes sense in relation to territorial waters because a coastal State can only exercise sovereign rights – not sovereignty – in its Exclusive Economic Zone (or in relation to its continental shelf).

From these maps, the entire area linking the KSA’s territorial waters and the high seas would appear to encompass a significant part of the UAE’s territorial sea due to the geography of this part of the Gulf coast. In the circumstances, it is conceivable that the KSA may have been seeking to promote ‘joint sovereignty’ as a means for it to exercise some attributes associated with sovereignty within the UAE’s territorial sea. This plausible interpretation might go some way to explaining other aspects of the parties’ behaviour in this setting. For example, in 2010, it was reported that an incident occurred involving the UAE’s navy opening fire on a KSA military vessel patrolling in the UAE’s territorial waters somewhere off the Khor Al Udaid leading to a small group of KSA sailors being detained in Abu Dhabi for several days (The Telegraph, 26 March 2010). Given the terms of the 1974 Treaty, it is not surprising that the UAE has been reluctant to delimit its maritime boundaries in this area. 

4. Conflicting Treaties and the Colonial Legacy

The challenges arising from Treaty of Jeddah’s maritime provisions are hard to comprehend without an understanding of the extent to which the parties’ conflicting claims were influenced by their experiences of colonialism.

On 14 December 1965, the KSA concluded a boundary treaty with Qatar (1733 UNTS 15, ratified 31 May 1971). Article 2 identified the southern reaches of the Khor Al Udaid as the land boundary between the two countries. Britain subsequently sought to protect certain natural resources rights – namely the Bunduq oil field – situated in the marine space adjacent to the land area identified in the KSA/Qatar Treaty by pushing Abu Dhabi and Qatar to negotiate a countervailing maritime boundary treaty in this area (Schofield, pp. 33, 37-38). The resulting bilateral treaty, concluded on 20 March 1969, used virtually the same land boundary on the Khor Al Udaid as the one identified in the earlier KSA/Qatar Treaty for the purpose of determining the parties’ maritime boundary in this area. This instance of colonial-driven ‘doublethink’ meant that Qatar had agreed to share a land border with the KSA while separately agreeing to maritime adjacency with Abu Dhabi as determined by reference to the same stretch of coastline.

This ‘territorial nonsense’ (Schofield, p. 29) has been reinforced in the twenty-first century by several events. On 14 December 2006, the UAE registered the 1969 UAE/Qatar Treaty with the UN (Reg. No. 43372), which the KSA refused to recognise: Law of the Sea Bulletin 64 (2007) (p. 38). The KSA and Qatar subsequently delimited their land and maritime boundaries on 5 July 2008 via their Joint Minutes, Reg. No. 1 – 30249) thereby implementing the arrangements outlined in their 1965 Treaty. Further, on 26 September 2004, the UAE and Qatar concluded the ‘Dolphin’ treaty, which enabled the construction of a submarine gas pipeline between the parties based on the maritime boundaries agreed in their 1969 Treaty. The resulting incongruity is apparent from this map.  

In its 2024 note (A/78/886), the UAE claimed that the 2008 Joint Minutes created a new legal situation that did not exist when the 1974 Treaty was concluded because the KSA has now replaced Qatar in the UAE’s maritime adjacency. It appears that the UAE might be coming close to making a fundamental change of circumstances plea here. Such a contention would be challenging in the light of Article 62(2)(a) VCLT which states that rebus sic stantibus cannot be invoked as a ground to terminate a boundary treaty. However, the UAE is not seeking to terminate the 1974 Treaty; rather, it is pressing for a process of treaty revision instead.

More generally, it is difficult to see how the Joint Minutes created a new maritime situation since it was based on the parties’ 1965 boundary treaty from which the KSA’s maritime clams could have been easily anticipated. Further, the UAE has already accepted the KSA’s maritime adjacency by via Article 5 of the Jeddah Treaty and, more recently, by acknowledging that the KSA has a territorial sea in the broad vicinity of the Khor Al Udaid.

5. Concluding Remarks

It is possible to view the UAE’s maritime adjacency argument as a rhetorical device designed to evoke the inconsistencies of the colonial era to make a case for a constructive renegotiation of maritime boundaries between the KSA and itself in this part of the Gulf (and, logically, with Qatar, too), rather than an implacable defence of the maritime status quo. In any event, it remains to be seen whether these neighbouring States are prepared to consider a tabula rasa approach to the delimitation of their boundaries in this marine area even though it is clearly in their interests so to do.