Iran is using excessive EEZ claims to deny U.S. access
Iran has frequently threatened to close the Strait of Hormuz in retaliation for adverse sanctions or military action. Ratifying UNCLOS would nullify Iran’s challenges should it ever choose to close the strait to U.S. or other flagged ships. Moreover, ratifying LOSC will provide the U.S. Navy the strongest legal footing for countering an Iranian anti-access campaign in the Persian Gulf.
[ Page 3 ]
USTRANSCOM’s military and commercial partners operate across every portion of the globe in defense of our national interests. Before we send them into harm’s way, it is important for our sailors and airmen to know they have the backing and authority of U.S. accession to the Convention on the Law of the Sea rather than depending on customary international law which some nations attempt to ignore or challenge. This is especially true for strategic chokepoints such as the Bab Al Mandeb, the Gulf of Aden and the Strait of Hormuz. Iran’s recent challenge to freedom of navigation through the Strait of Hormuz for a military exercise is an example of threats to international law and our ability to move critical supplies through that region. Acceding to the Convention would provide U.S. forces and commercial partners the strongest legal footing for countering an Iranian anti-access attempt to close the strait to international shipping.
[ Page 326-327 ]
The disagreement between Iran and the United States over the application of the international law of the sea in the Strait of Hormuz increases the chance of war. Perhaps not surprisingly, the antagonists disagree on the source as well as the content of the law that applies in the Strait. With the January 8, 2013 accession by Timor-Leste, there are now 165 States party to UNCLOS. The treaty recognizes that coastal States may claim a twelve nautical mile territorial sea, measured from the low water mark running along the shore.8 Ships of all nations enjoy the right of innocent passage through the territorial sea.9 On the other hand, coastal States have broad and durable security interests in the territorial sea, and may prescribe and enforce laws that condition or preclude altogether the surface transit of foreign warships.
When overlapping territorial seas connect one area of the high seas or exclusive economic zone (EEZ) to another area of the high seas or EEZ, this also constitutes a strait used for international navigation under the terms set forth in UNCLOS.10 States are entitled to exercise the right of transit passage through such straits used for international navigation. The regime of transit passage affords more rights to users of the strait than innocent passage. In most circumstances, innocent passage can be sus- pended by the coastal State; transit passage cannot be suspended. Transit passage also allows submerged transit and overflight of aircraft through the strait.11 Only surface transits are permitted for ships engaged in inno- cent passage. In the absence of acceptance of UNCLOS, however, the United States and Iran cannot use these clear rules as a guide and therefore must revert to legacy treaties, such as the 1958 Convention on the Territo- rial Sea and Contiguous Zone (Territorial Sea Convention),12 as well as customary international law, to determine their respective rights and duties in the strait.
[ Page 335-336 ]
Normally, the rights of States situated along straits used for international navigation, such as Iran, and the rights of other nations to use the strait, such as the United States, are governed by the rules in UNCLOS. The treaty was adopted by a United Nations sponsored conference in 1982 after nine years of negotiation. Preceded by three failed attempts to negotiate a comprehensive multilateral oceans framework — at The Hague in 1930 and in Geneva in 1958 and 1960 — UNCLOS marks a singular achievement in world order that is second in importance only after the Charter of the United Nations.
Since its adoption, the Law of the Sea Convention has begun to fill the role envisioned by Singapore Ambassador and President of the Conference T. B. Tommy Koh as the constitution for the world’s oceans.45 The framework forms an umbrella of global legal authority that is supplemented by some fifty additional treaties, and hundreds of codes and guidelines to form a comprehensive set of legal regimes and norms that apply throughout the oceans.
One of the principal achievements of UNCLOS was the determination of the lawful width of coastal State territorial waters, and the associated navigational regimes that apply within them. The rules governing naviga- tion are particularly important in international straits overlapped by territorial seas. In the case of U.S. and Iranian rights and duties in the Strait of Hormuz, however, the rules are much less certain because neither country is party to the omnibus treaty. The two states are among the most notorious holdouts, yet they also accept many terms of the Convention — just not necessarily the same ones. The absence of a clear and common rule- book and lack of agreement on the relevant rules that apply to the Strait of Hormuz generates regional instability.
[ Page 360 ]
In the years since adoption of UNCLOS (1982) and its entry into force (1994), Iran and the United States have maintained a continuous dialogue of disagreement concerning U.S. transit rights in the Strait. Lacking diplo- matic relations, the adversaries have traded diplomatic démarches using the embassy of Switzerland in Iran as an intermediary.172 The United States continues to defend the presence of American warships, submarines, and aircraft through the Strait of Hormuz as a lawful exercise of freedom of navigation.173
Likewise, Iran is steadfast in rejecting these claims. In a television inter- view in 2008, for example, Hoseyn Panahi-Azar, the director-general of the legal and international affairs department of the Iranian Foreign Ministry, stated that the regime of innocent passage applies to U.S. warship transits in the Strait of Hormuz. Transit through the Strait may not be suspended, he acknowledged, but Iran was entitled to “impose certain limitations based on their own laws [even] for transit passage.”174
[ Page 359-360 ]
Iran maintains that the careful balance of rights and duties reflected in UNCLOS are available only as a specific condition of agreement of the package deal. Since the regime of transit passage is a quid pro quo for acceptance of other terms of the treaty, states not party to UNCLOS, such as the United States, are not entitled to exercise transit passage in the Strait of Hormuz. To permit the United States to enjoy transit passage is to indulge Washington in the very type of “cherry picking” among the provisions of UNCLOS that the package deal was designed to prevent. The regime of transit passage is reserved only for parties to UNCLOS.
While the regime of transit passage in Part III of UNCLOS should have been the last word on the Strait of Hormuz, it is not. Iran and the United States are not parties to the Convention. For its part, the United States pledged, even before the end of the Third United Nations Confer￼ence that it opposed the treaty, but only due to Part XI on seabed mining (which itself subsequently was revised in an implementing agreement in 1994 to satisfy U.S. and other developed states’ concerns).171 Iran never ratified the treaty either, however, so the Iranian-American bilateral rela- tionship in the Strait is not governed by the terms of the treaty.
[ Page 333 ]
In the face of overwhelming conventional power by the United States, Iran has few conventional military options that augur in its favor. Tehran instead likely would resort to weapons of mass destruction, small unit ma- rine guerilla forces, and swarming tactics to inflict maximum damage on oil shipping. Closure of the Strait of Hormuz is at the top of the list, as it hits the United States at the foundation of its power — the global economy and America’s perch atop a grandly formal Eurasian alliance system. The oil market shock caused by a closure of the Strait would separate the United States from its Arab state friends in the Middle East that rely on bringing oil to world markets, and European and Asian allies who are dependent on Gulf oil. In this rather unconventional way, Iran has a global power projection capability, which is why the Chief of Naval Operations stated last year: “‘If you ask me what keeps me awake at night, it’s the Strait of Hormuz and the business going on in the Arabian Gulf[.]’”33
[ Page 333-334 ]
The Pentagon realizes the Strait is vulnerable. “‘The simple answer is yes, they can block it,’” stated Chairman of the Joint Chiefs of Staff General Martin Dempsey on January 8, 2012.34 For the past twenty years, Iran has invested heavily in the asymmetric capabilities needed to bypass the more powerful U.S. fleet and disrupt merchant shipping and threaten naval forces in the Strait. Iran has concentrated on acquiring naval mines, fleets of heavily armed speedboats, and powerful anti-ship cruise missiles, secret- ly situated along the bottleneck.
The regular Iranian Navy is relatively professional, and it operates an aging conventional surface fleet that is the remnant of the Shah’s constabu- lary force. The more politically favored and far less predictable Iranian Revolutionary Guard Corps Navy (IRGCN), however, is the country’s guerilla force at sea. The IRGCN has responsibility for security in the Strait of Hormuz, and since the early-1990s, it has invested heavily to keep U.S. forces off balance.35 The highly ideological IRGCN has 20,000 personnel and 5,000 Revolutionary Guard Marines.36 These forces regularly exercise war plans to close the Strait. The force operates from bases at Bandar Abbas and Qeshm along the Strait, practicing small boat swarm exercises against international shipping traffic with as many as forty boats.37
Iran’s naval inventory includes cruise missiles (generally first generation Chinese copies of the French Exocet missile and the indigenous Nasr missile), marine mines, Kilo- and Yono-class submarines, and Peykaap fast attack craft, the latter of which are armed with cruise missiles and torpe- does. These proxy forces are dispersed and mobile, and have mastered swarm techniques to overwhelm more powerful foes. More than a decade ago, a classified Department of Defense war game concluded that agile swarms of IRGCN speedboats could inflict major damage on the U.S. Navy’s powerful warships in a conflict. In the game, the United States lost sixteen major warships, including an aircraft carrier, to swarms of enemy speedboats.38
Even so, Arctic nations and NATO are building up military capabilities in the region, as a precaution. That has left China with little choice but to garner influence through a strategy that has worked well in Africa and Latin America: investing and joining with local companies and financing good works to earn good will. Its scientists have become pillars of multinational Arctic research, and their icebreaker has been used in joint expeditions. And Chinese companies, some with close government ties, are investing heavily across the Arctic. In Canada, Chinese firms have acquired interests in two oil companies that could afford them access to Arctic drilling. During a June visit to Iceland, Premier Wen Jiabao of China signed a number of economic agreements, covering areas like geothermal energy and free trade. In Greenland, large Chinese companies are financing the development of mines that are being developed around discoveries of gems or minerals by small prospecting companies, said Soren Meisling, head of the China desk at the Bech Bruun law firm in Copenhagen, which represents many of them. A huge iron ore mine under development near Nuuk, for example, is owned by a British company but financed in part by a Chinese steel maker. Chinese mining companies have proved adept at working in challenging locales and have even proposed building runways for jumbo jets on the ice in Greenland’s far north to fly out minerals until the ice melts enough for shipping. “There is already a sense of competition in the Arctic, and they think they can have first advantage,” said Jingjing Su, a lawyer in Bech Bruun’s China practice.
[ Page 2-3 ]
Ratification will also help the United States deflate Iran’s recent challenges to U.S. freedom of naviga- tion through the Strait of Hormuz. Historically, Iran has stated that the right to freedom of navigation does not extend to non-signatories of the convention and has passed domestic legislation that is inconsistent with international law, specifically by requiring warships to seek approval from Iran before exercising innocent passage through the strait.11 Ratifying LOSC would nullify Iran’s challenges should it ever choose to close the strait to U.S. or other flagged ships. Moreover, ratifying LOSC will provide the U.S. Navy the strongest legal footing for countering an Iranian anti-access campaign in the Persian Gulf.
[ Page 559 ]
Similarly, Iran has adopted a combination of overt threats and lawfare to pursue its anti-access or sea denial strategy throughout the Persian Gulf and the approaches to the Straits of Hormuz.86 Tehran’s strategy also focuses on attempting to market to the world community erroneous territorial and jurisdictional claims that are inconsistent with the rules of the Convention. These claims include a series of excessive straight baselines which purport to convert international water into Iranian territorial seas,87 the assertion of Iranian state security powers in the contiguous zone,88 a requirement for foreign warships and nuclear-powered vessels to obtain advance consent for conducting innocent passage,89 and a prohibition on “foreign military activities and practices” in the Iranian EEZ.90 One Iranian analyst has gone even further, suggesting the entire Persian Gulf constitutes a closed political region that permits “innocent passage” of vessels throughout the Gulf, but only so long as they are not conducting “coercive measures” against Iran aimed at undermining Tehran’s sovereignty.91