Evidence: Recently Added
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
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.
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
These excessive claims are cause for particular concern because they cover the full spectrum of maritime possibilities and because they are being made by the full spectrum of the community of nations. For example:
- Argentina, Italy, Panama, and Russia have historic bay claims that do not comply with international norms.
- Canada, China, Costa Rica, North Korea, Portugal, Vietnam, and others have sig- nificant excessive baseline claims.
- Cape Verde, Indonesia, and the Philippines have sought to impose restrictions on archipelagic sea lanes passage not contemplated by the 1982 Convention.
- China, Djibouti, Egypt, Indonesia, North Korea, Pakistan, and the Philippines have articulated various nonconforming restrictions on innocent passage.
- Argentina, Canada, Italy, Spain, and others have sought to impose restrictions on straits used for international navigation.
- Brazil, Ecuador, and Peru have restrictions on aircraft overflight in their exclusive economic zones inconsistent with the convention.
- Cape Verde, Finland, Iran, Sweden, and others have declared warships to be sub- ject to special coastal state regulation.34
This is just a sampling of excessive maritime claims, but the diversity of types of claims and the character and numbers of nations involved suggest that continuous U.S. challenges to these will require substantial effort. The financial and diplomatic costs, as well as the overall risks associated with the use of such forces, are likely to be substan- tially higher in the absence of a specific, binding treaty, and the long-term effectiveness of challenge programs remains doubtful in the view of some commentators.35 Many of the nations making claims that the United States considers excessive assert that the convention is a legal contract, the rights and benefits of which are not necessarily available to non-parties. The continual counter-assertion by the United States that these rights and benefits are embodied in customary international law may be difficult to sustain. The situation may well have been summed up best by Rear Admiral Schachte: "The political costs and military risks of the Freedom of Navigation Program may well increase in the changing world order."36
A final reason arguing for U.S. accession to the convention is the position of the United States as a world leader. In light of its diverse maritime uses and interests, the United States is unquestionably the world's leading oceanic state. Clearly, U.S. refusal to ultimately accede to a convention widely regarded as one of the most important agreements ever negotiated would raise fundamental questions regarding not only the future legal regime applicable to the world's oceans, but also the leadership of the United States with respect to the promotion of international law and order.37 The regime of the Law of the Sea Convention presents a superb opportunity for the United States to provide world leadership in an area of increasing importance to the community of nations.38
By actively promoting "leadership for peace" in the politically and economically important area of an orderly codification of maritime laws and regulations, the United States could assure itself a major role in shaping a post-hegemonic global order.39 Conversely, U.S. opposition to the convention would not only jeopardize significant national interests in the law of the sea without substantially offsetting benefits, but also could constitute an implicit rejection of the promotion of world order through international law as a foreign policy goal. Viewed less charitably, failure of the United States to fully support the convention could reflect a belief that unilateralism is a viable policy alternative when backed by military force.40 Conversely, full participation in the Law of the Sea Convention ultimately provides the United States with an opportunity to exercise world leadership within the context of far broader international activity and participation than was possible during the cold war.
When all is said and done, the United States is a maritime nation tied to the oceans and the intelligent use of the seas for political, economic, and military purposes. More so than any other nation, the United States will benefit from stability in laws governing the use of the seas, and this stability over the long term can best be protected by a widely ratified Law of the Sea Convention. Accession to the convention by the United States will not be a panacea; its rules are not perfect. Widespread ratification, however, is likely to increase order and predictability, facilitate measured adaptation to new circumstances, encourage accommodation of interests, narrow the scope of disputes to more manageable proportions, and provide means to resolve them.41 Clearly, the United States holds the key to this widespread ratification.
A fourth reason arguing for United States accession to the convention is the building global consensus on management of the environment. Part XII of the convention deals extensively with the protection and preservation of the marine environment. Part XII covers a wide array of issues running from general principles, to global and regional cooperation, to technical assistance, to monitoring and environmental assessment, to responsibility and liability." The inclusion of strong environmental protection measures in the convention was an early and enduring goal of the United States. Given the fact that the language of Part XII creates a diffuse but effective international mechanism for control of a significant amount of marine pollution, it would seem especially advantageous for the United States to agree to the convention in order to ensure the maintenance of a stable regime for environmental protection.19
Rear Admiral William Schachte, former judge advocate general of the Navy and active participant with the U.S. delegation to the Third U.N. Conference on the Law of the Sea (UNCLOS III), has pointed out that the convention provides a unique, outstanding framework for addressing and resolving environmental concerns. He notes that the convention is far superior to any of the numerous conventions and protocols addressing marine pollution that have been attempted over the past 4 decades and that it strikes a delicate balance on environmental issues.20
A third reason arguing for United States accession to the convention is the changing situation in the deep seabed mining industry. In the early 1980s many were predicting a major boom in the mining of deep seabed nodules of cobalt, manganese, nickel, copper, and other minerals. New research indicates that these predictions were early by decades.11 The likelihood of economically feasible deep seabed mining of nodules occurring soon appears increasingly remote, due primarily to the discovery of substitutes for many prod- ucts and applications and the availability of land-based supplies.12 Should seabed mining of nodules ever become of genuine strategic importance to the United States, plentiful quantities are expected to be available within national 200-mile exclusive economic zones as an alternative supply when market prices improve.13
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.
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.