Page 2 of
2 A Falklands War in the Persian
Gulf By Kaveh L Afrasiabi
question applies, mutati
mutandis, to the European Union, whose foreign
ministers passed a unanimous resolution denouncing
Iran's action as "contrary to international law".
But, really, is it?
Question of
international law The crisis over the
British sailors in fact provides raw material for
a fresh consideration of the applicability of
international laws in Persian Gulf in that Iran's
official position is that the salient facts
of
the case are in conformity with the guiding
criteria of the UN's Law of the Sea Treaty.
Contrary to US pundits such as Patrick
Clawson of the Washington Institute for Near East
Policy, who debated the author on CNN over the
weekend, there is no clear-cut "established
international law" that would dictate the freeing
of British sailors if found in Iranian waters.
A glance at the proceedings of the
International Tribunal for the Law of the Sea in
Hamburg, Germany, makes it obvious that there are
several precedents for the seizure of foreign
vessels in territorial waters. Nor is there a
right of "innocent passage" that could be invoked
by the British government in defense of its jailed
sailors, given the 1982 UN Convention on the Law
of the Sea's conditions, ie, that a vessel's
passage is not "threatening to sovereignty,
territorial integrity or political independence",
or the "good order and security" of the coastal
nations.
Article 301 of this treaty is
pretty clear that intruding ships "shall refrain
from any threat". Article 25, paragraph 3, on the
other hand, stipulates that a coastal state may
suspend in its territorial waters the right of
"innocent passage" of any vessel it deems
threatening to the country.
From a
strictly legal point of view, the British sailors
cannot be effectively deemed detained until the
time when an Iranian judge upholds their seizure
by the Iranian armed forces. The initiation of a
legal proceeding against the sailors serves
precisely this particular purpose, setting the
stage of a subsequent Iranian "forum shopping" in
international law, even though a full trial may
not be either necessary or advisable, politically
and internationally.
The EU statement
above-mentioned cites the UN mandate for the
stability functions of British forces in Iraq.
This is clumsy diplomacy by the EU, since (a) it
reminds us of how badly the UN was manipulated to
bestow legitimacy on an illegal invasion and (b)
fails to notice that the UN mandate does not
extend into Iran's territorial waters.
Until now, the EU had safely distanced
itself from the disastrous Middle East policies of
the Blair government, and yet the crisis over
British sailors has allowed Downing Street to
bridge the gap and create an EU "groupthink" on
Iran that is tantamount to dragging the entire
European Community into the mess of London's
making.
The rule-minded EU cannot possibly
emulate London when it comes to Iran's territorial
rights, mimicking Blair's callous disregard for
the sovereign rights of Iran repeatedly infringed
on by the British forces, beginning in summer 2004
when eight sailors were released after the British
Foreign Office formally apologized. According to
Ali Larijani, the head of Iran's Supreme National
Security Council, the No 2 diplomat at the British
Embassy in Tehran had pledged in writing that no
more transgression of Iran's maritime boundaries
would occur.
Since last autumn, the
Iranian press has reported about several
intrusions into Iranian airspace and waters by
British forces. On one occasion, British
helicopters hovered near the city of Khoramshahr
for 10 minutes, and in February there was a report
of three British naval vessels entering Iran's
waters.
Thus, notwithstanding the absence
of conclusive proof by the British, the
counter-facts and counter-claims by Iran, and the
surrounding circumstantial evidence pertaining to
the British hostilities toward Iran, recalling
Blair's key speech last November when he stated
unequivocally that there was no softening of
London's stance toward Iran, Iran's hands at a
hypothetical international court are hardly empty.
The merits of Iran's complaints may even
trump those of the British counter-complaint, all
the more reason for the British government to be
concerned about the unintended consequences of its
overreaction by internationalizing the incident so
quickly, not to mention the dangerous escalation
in Basra, where there are reports of stern action
against the Iranian consular building by British
forces.
Diplomatic options A
powerful Iranian parliamentarian, Alaedin
Boroujerdi, has called for a special British
fact-finding committee to visit Iran. Since
Britain is part of a larger political unit that is
the European Union, this could be extended to an
invitation by an EU delegation to Iran, given the
dire warning of the EU for further action if Iran
does not release the sailors.
London has
frozen bilateral trade with Iran and is lobbying
the EU to do the same, which, if it happens, will
damage the EU's economy as well as Iran's by
affecting several thousand companies.
With
the economic, let alone security and other stakes
being so high, the EU should not put its diplomacy
in London's, and by implication Washington's,
hands, and it would be disastrous for the Union,
celebrating its 50th birthday this year, if it
slips down the warmongering path charted by
Blair-Bush, the twin lame-duck leaders who have
done more than their fair share in wreaking havoc
on the international order.
Again, from
the prism of international law, it is feasible to
hypothesize a scenario whereby the British sailors
would post bail and be placed in the hands of the
British Embassy in Tehran, and the matter would be
adjudicated with the consent of both parties in
either the International Court of Justice or the
International Tribunal for the Law of the Sea.
One advantage of the latter tribunal is
that it makes more explicit the relevance of
international laws of the sea with respect to the
Persian Gulf. Various experts in international law
have opined that the Law of the Sea Convention
weakens the US-led Proliferation Security
Initiative, which has led to the interdiction of
shipping to and from North Korea, as a dress
rehearsal for similar interdiction of shipping to
and from Iran, in light of the UN sanctions on
Iran.
In conclusion, should Tehran opt to
reciprocate London's sensationalist
internationalization of the standoff by resorting
to one or another international legal forum, the
net result will be a timely "juridification" of
the Persian Gulf's security calculus, tantamount
to a timely Iranian soft-power counter-move to the
huge influx of Western hard power in the volatile
oil-rich region.
Kaveh L
Afrasiabi, PhD, is the author of After
Khomeini: New Directions in Iran's Foreign Policy
(Westview Press) and co-author of "Negotiating
Iran's Nuclear Populism", Brown Journal of World
Affairs, Volume XII, Issue 2, Summer 2005, with
Mustafa Kibaroglu. He also wrote "Keeping Iran's
nuclear potential latent", Harvard International
Review, and is author of Iran's Nuclear
Program: Debating Facts Versus Fiction.
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