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.
Quicktabs: Arguments
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 Conference 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 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