Legal mist stokes US-Iran tensions
in strait By Kaveh L Afrasiabi
The recent, and escalating, tension
between Iran and the US in the narrow corridor of
the Strait of Hormuz has once again drawn
attention to the strait's international maritime
status, and to the ramifications of this tension
as a flashpoint in the Middle East.
In a
significant raising of the temperature, US
President George W Bush on Sunday accused Iran of
threatening security around the world by backing
militants and urged his Gulf Arab allies to
confront "this danger before it is too late".
Speaking in Abu Dhabi in the United Arab
Emirates during his
seven-nation tour of the
Middle East, Bush said the US is strengthening its
"security commitments with our friends in the
Gulf" and "rallying friends around the world to
confront this danger". He also called Iran "the
world's leading state sponsor of terror".
Tension spiked markedly last week when
Iranian Revolutionary Guards Corps (IRGC)
speedboats were involved in an "incident" with
three US Navy vessels, which claimed they were
international waters.
Yet there is no
"international water" in the Strait of Hormuz,
straddled between the territorial waters of Iran
and Oman. The US government claimed, through a
Pentagon spokesperson, Bryan Whitman, that the
three US ships "transiting through the Strait of
Hormuz" were provocatively harassed by the
speedboats. This was followed by the Pentagon's
release of a videotape of the encounter, where in
response to Iran's request for ship
identification, we hear a dispatch from one of the
US ships stating the ship's number and adding that
"we are in international waters and we intend no
harm".
Thus there is the issue of the
exact whereabouts of the US ships at the time of
the standoff with the Iranian boats manned by the
IRGC patrolling the area. According to Vice
Admiral Kevin Cosgiff, the US ships were "five
kilometers outside Iranian territorial waters".
Yet, this is disputed by another dispatch from the
US ships that states, "I am engaged in transit
passage in accordance with international law."
Given that the approximately
three-kilometer-wide inbound traffic lane in the
Strait of Hormuz is within Iran's territorial
water, the US Navy's invocation of "transit
passage" harking back to the 1982 UN Convention on
the Law of the Sea, (UNCLOS) is hardly surprising.
[1]
Although the US has yet to ratify the
UNCLOS, it has been a strong advocate of its
provisions regarding navigational rights, thus
explaining the US officers' availing themselves of
"international law". [2]
It is noteworthy
that in May 2006, Bush urged the US Congress to
"act favorably on US accession to the convention".
But, in light of the legal ramifications of the
US-Iran standoff in the Persian Gulf, discussed
below, opponents of the UNCLOS may have become
emboldened. According to them, the convention
"prohibits two functions vital to American
security: collecting intelligence and submerged
transit of territorial waters".
However,
irrespective of how Congress acts on the pending
legislation on UNCLOS, the fact is that the US
cannot have its cake and eat it. That is, rely on
it to defend its navigational rights in the Strait
of Hormuz and, simultaneously, disregard the
various limitations on those rights imposed by the
UNCLOS - and favoring Iran. These include the
following:
Per Article 39 of the UNCLOS, pertaining to
"duties of ships during transit passage" US ships
passaging through the Strait of Hormuz must
"proceed without delay" and "refrain from any
threat or use of force against the sovereignty,
territorial integrity or political independence of
states bordering the strait".
Per Article 40, "During transit passage,
foreign ships may not carry out any research or
survey activity without the prior authorization of
the states bordering the straits." And yet, by the
US Navy's own admission, it has been conducting
sonar activities in the area, to detect submerged
vessels. This, in turn, has harmed the Persian
Gulf's aquatic mammals. In light of a recent US
court ruling limiting the US Navy's sonar
activities off the California coast, Iran now has
greater political leverage to seek information
regarding the activities of US warships transiting
through its territorial waters.
Given the US's verbal acrobatics, of trying to
depict as "international waters" what is
essentially Iran's territorial water in the
inbound traffic channel of the Strait of Hormuz,
it collides with Article 34 of UNCLOS. This
regards the "legal status of waters forming the
straits used for international navigation", that
strictly stipulates that the regime of passage
"shall not affect the legal status of the waters
forming such straits". Following the UNCLOS,
Iran's territorial water extends 12 nautical miles
at the Strait of Hormuz.
The Pentagon videotape of the incident shows a
US helicopter hovering above the US ships, which
is in clear contradiction of Article 19 of the
UNCLOS, which expressly forbids "the launching,
landing or taking on board of any aircraft" during
transit passage.
Article 19, elaborating on the meaning of
"innocent passage", states that "passage is
innocent so long as it is not prejudicial to the
peace, good order or security of the coastal
state". And that means a prohibition on "any
exercise or practice with weapons of any kind" and
or "any act of harmful and serious pollution".
In other words, US warships transiting
through Hormuz must, in effect, act as non-war
ships, "temporarily depriving themselves of their
armed might". And any "warning shots" fired by US
ships at Iranian boats, inspecting the US ships
under customary international laws, must be
considered an infringement on Iran's rights. This
technically warrants a legal backlash in the form
of the Iranians temporary suspending the US
warships' right of passage. Again, the US could be
technically prosecuted by Iran in international
forums for conducting questionable activities
while in Iranian territorial waters.
Under Article 25 of the UNCLOS, a "coastal
state may take the necessary steps in its
territorial sea to prevent passage which is not
innocent ... the coastal state may suspend
temporarily in specified areas of its territorial
sea the innocent passage of foreign ships if such
suspension is essential for the protection of its
of security, including weapons exercise."
Per Article 30, "If any warship does not
comply with the laws and regulations of the
coastal state concerning passage through the
territorial sea and disregards any request for
compliance therewith which is made to it, the
coastal state may require it to leave the
territorial sea immediately."
Pursuant to Article 42 of the UNCLOS, "states
bordering straits may adopt laws and regulations
relating to transit passage" and "foreign ships
exercising the right of transit passage shall
comply with such laws and regulations." In this
connection, Iran's 1993 maritime law echoes
Article 20 of the UNCLOS: "In the territorial sea,
submarines and other underwater vehicles are
required to navigate on surface and to show their
flag." Yet, disregarding both international law
and Iran's laws, the US Navy until now has refused
to comply with the requirement of surface passage
of its submarines through the Strait of Hormuz.
In light of the above, the Strait of
Hormuz has now turned into a most fertile source
of tension and conflict between Iran and the
United States, touching on the larger issue of
international law of the sea and the navigational
regime through the strait(s).
Iran could
conceivably use its privileged geographical
position to tap into the complex set of rules
pertaining to the navigational regime, as a form
of (geo) political leverage to wring concessions
from the US Navy, and its regional allies, with
respect to security and maritime affairs of the
Persian Gulf.
Note 1. The UN
Convention on the Law of the Sea strikes a balance
between the sovereign rights of coastal states and
the right of passage of foreign ships, requiring
concessions from both sides. It prohibits passing
ships from "any act aimed at collecting
information or use and threat of force". 2. The
Iranian press have complained of the US's
intention to use the man-made, artificial islands
by the United Arab Emirates for military purposes,
to complement the US's forward base in Diego
Garcia in the Indian Ocean. They wonder if this
has been one of the unstated purposes of Bush's
visit to the region, given the brisk operational
tempo of the US Navy with regard to Iran. This
includes the US's plan to implement the provisions
of its multilateral PSI (Proliferation Security
Initiative) , such as ship interdiction, already
exercised with regard to North Korea, with respect
to Iran. Yet, the PSI initiative collides head-on
with the UNCLOS-based limitations on the US Navy's
activities in the semi-landlocked Persian Gulf
and, especially in the Strait of Hormuz, discussed
in this article.
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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