Four Iranian ships made reckless maneuvers close to a U.S. warship this week, the Pentagon said Thursday, in an incident that officials said could have led to dangerous escalation.[ More ]
Iran threatens to mine the Strait of Hormuz, petroleum markets react, world economies take notice, and more U.S. and allied naval forces are sent to the region, upping the ante for Tehran and the U.S. Navy.[ More ]
The Obama administration on Wednesday used an obscure high-seas treaty to take aim at global rivals Iran, for its threat to blockade the Strait of Hormuz, and Russia, for its rush to claim natural resources exposed by the Arctic ice melt, while also dangling an olive branch before a domestic rival in hopes of winning the treaty's passage in the U.S. Senate.[ More ]
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.
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.
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.
If adherence to the Convention made no difference perhaps this would simply be another lesson that strident political debate can sometimes harm the nation, as with the isolationist rhetoric of the America First Movement before World War II. But sadly the over quarter-century of United States non-adherence is severely harming the Nation. On a daily basis adversaries such as Iran use American non-adherence to assert that our Navy does not enjoy the protections of the Convention. China uses our non-party status to challenge our naval presence in the South China Sea and the Yellow Sea. We are unable to participate fully in the most important institutions for engaging on oceans law today, such as the annual meeting of States Parties to the Convention and the Commission on the Limits of the Continental Shelf. By not taking our seat on the Council of the ISA we lose our veto over any distributions. By not adhering we also lose our ability to block potentially damaging amendments to the Convention.
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.
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.
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.
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
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.
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.
- Iran using excessive claims to restrict U.S. freedom of navigation rights in Straits of Hormuz
- Iran directly trying to challenge US maritime dominance by denying freedom of navigation
- Ratification of UNCLOS will nullify Iran's attempts to deny U.S. access to Straits of Hormuz
- Ratifying UNCLOS would give U.S. another tool to isolate Iran if it threatens to close Strait of Hormuz
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