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.
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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.
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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
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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.
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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.
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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
After a decade of war in the Middle East, the U.S. faces "a range of security challenges that are growing in complexity," Panetta said. Those include terrorism, the nuclear ambitions of Iran and North Korea, Middle East and North African instability, and China military buildup.
"These real and growing challenges are beyond the ability of any single nation to resolve alone," the defense secretary said. "That is ... why the United States should be exerting a leadership role in the development and interpretation of the rules that determine legal certainty on the world's oceans."
Panetta opaquely sent a message that joining the convention would allow the U.S. a new tactic in countering the anti-Washington whims and actions by Iran, China, and Russia.
Approving the treaty would hinder Iran's ability to close the Strait of Hormuz, a key oil transit route, which Tehran has recently threatened to do.
"We are determined to preserve freedom of transit there in the face of Iranian threats to impose a blockade," Panetta said. "U.S. accession ... would help strengthen worldwide transit passage rights under international law and isolate Iran."
As the Navy explores the potential strategic advantages to be gained from such a multifaceted AFSM (I) as the Ponce, the need for the United States to accede to the Law of the Sea Convention becomes increasingly paramount. The question here is not about whether the Law of the Sea would allow the United States to retaliate militarily against Iranian threats to close the Strait of Hormuz, nor is it about whether under the treaty Iran has the right to close the Strait in the first place.
With or without the treaty, the United States could proceed to respond to the current Iran tension with an escalation of naval power in the region; however, what the Law of the Sea would provide the United States is something crucial and entirely essential to a smarter, more effective national security strategy— legitimacy.
As a party to the Law of the Sea Convention, the United States and its naval fleet would be protecting the Freedom of Navigation and the Right to Innocent Passage in the Strait of Hormuz with the full force of international law behind it. Even though Iran itself is not party to the convention, America’s ratification would create a new international norm, thus opening the door to a healthy and stable multilateralism in response to crises of global import such as the one we are facing today.
Considering that U.S. experts estimate that Iran could build a nuclear weapon in one year— should it decide to do so— in addition to conflicting, yet alarming reports that the Iranian government is considering legislation to close the Strait of Hormuz through which one fifth of the world’s oil supply is shipped, there has never been a better time for the United States to preemptively decide to act within an international legal framework.
The Law of the Sea would be a force-multiplier for American national security strategy. Ratification would enable the United States to use its military prowess in the most holistic, global consensus-building manner possible.
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Similarly, Iran sees the necessity of negating key U.S. advantages in the global commons as critical to success in any military engagement with the United States. Consequently, Iran is working to modernize and augment its arsenal of A2/AD capabilities and refine its methods to debilitate U.S. forces in the Persian Gulf. Iran has a significant mine-laying capability, which presents a threat to larger commercial and military vessels navigating the narrow passageways of the Gulf and the Strait of Hormuz. These anti-ship mines could effectively slow the ships to make them easy targets for attack by land- and sea-based weaponry. The Iranian navy also fields small surface combatants armed with ASCMs and small boats loaded with small arms ranging from man-portable surface-to-air missiles to heavy machine guns and rifles." These capabilities, particularly mines, can present a significant threat to a modern fleet in the shallow, narrow, semi-enclosed waters of the Persian Gulf. Indeed, Iranian leaders can rely upon relatively low-tech weaponry to combat more advanced U.S. forces, especially if they can maintain the element of surprise. However, the presence of anti-ship mines and small boats that may conduct suicide attacks are not only of concern to the United States. Over 90 percent of Persian Gulf oil passes through the Strait of Hormuz,32 making it a strategic chokepoint whose disruption would have severe consequences for the global economy. Even absent a crisis, this increasing militarization of a waterway that is so critical to global resource distribution is a concern for the international community and a threat to maritime security.
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However, as a non-Party to UNCLOS, the United States lacks standing to challenge other nations’ excessive claims in the Arctic citing the provisions of the Convention. The same is true in other regions of the world. China, for example, continues to pursue an aggressive posture in the South China Sea and routinely criticizes the United States for not being a Party to UNCLOS—“the U.S. insists that China must base its [South China Sea] claims solely on the 1982 UNCLOS although the U.S. itself has not ratified it.”60 Similarly, when Iran signed UNCLOS in 1982, it filed a declaration indicating, inter alia, that “only states parties to the Law of the Sea Convention shall be entitled to benefit from the contractual rights created therein, [including] the right of Transit passage through straits used for internation- al navigation.”61 Thus, Iran argues that the United States does not enjoy a right of transit passage through the Strait of Hormuz because that right is contractual in nature. Joining the Convention would put the United States on solid legal ground to conclusively “put to bed” these assertions.