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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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.
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.