Revision of Iran is using excessive EEZ claims to deny U.S. access from Thu, 11/02/2017 - 09:53
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.
Quicktabs: Arguments
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.
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.