In ancient Greek mythology, the Sirens were beautiful
sea-maidens, known for chanting sweet melodies to lure hapless
sailors into dangerous waters, only to face their demise amongst
the jagged rocks. Today’s Sirens are similarly dangerous, using the
promise of peace and stability on the oceans to lure various
American constituencies into the perilous contours that make up the
United Nations Convention on the Law of the Sea (also known as the
Law of the Sea Treaty, or LOST).
Because the melody takes many forms, numerous analysts have
dutifully responded by providing warnings, on these pages and
elsewhere, about the various pitfalls and shortcomings contained in
this Treaty. We have yet to see, however, a direct response to a
particularly disingenuous and dangerously naive siren song: the
assertion that our maritime interaction with the
terrorism-sponsoring, petro-dictators of Iran could prove less
explosive, if only we sign up for the “legal order for the seas and
oceans” that LOST holds itself out to be.
In the ongoing debate over whether to subject American maritime
interests to the whims of the “international community,” a subset
of LOST proponents have taken to pointing to the January 2008
near-altercation between U.S. warships and Iranian speedboats in
the Strait of Hormuz as evidence of the necessity of U.S.
ratification. The notion, however, that accession to LOST either
could have prevented such a confrontation or will effectively do so
in the future reveals both a lack of understanding about the nature
of the leadership in Tehran, as well as a remarkable lack of
understanding of the Treaty’s potential to enable and encourage
Iranian aggression against the United States.
The incident at issue occurred on January 6, 2008, when,
according to accounts by the U.S. Navy, five armed Iranian
speedboats manned by the infamous Iranian Revolutionary Guard Corps
aggressively approached three American warships in the Strait. The
speedboats maneuvered very close to the convoy, with at least one
coming within 200 yards of one of the ships. Navy recordings picked
up a heavily accented voice in English, the exact source of which
was not entirely clear, saying “I am coming to you…You will
explode after a few minutes.” One of the speedboats proceeded to
drop several small, white box-like floating objects in the path of
the American convoy.
In the course of the exchange, an American sailor was recorded
as saying, “This is a coalition warship. I am engaged in transit
passage in accordance with international law. I intend no harm.”
After ignoring this and other repeated warnings from the warships
for roughly 30 minutes, the speedboats fled as American commanders
prepared to open fire. In a briefing given shortly after the
incident, Vice Admiral Kevin Cosgriff, Commander of U.S. Naval
Forces Central Command, maintained that the warships were traveling
15 miles from Iranian land territory at the time, and therefore
outside the outer limits of the 12-mile Iranian territorial
waters.
For its part, Tehran accused the United States of “fabricating”
the video and audio footage that captured the episode. The
Revolutionary Guard Corps maintained that it only asked the
warships to identify themselves, as is typical Iranian practice
with respect to ships passing through the Strait of Hormuz,
according to the Iranian Defense Minister. Vice Admiral Cosgriff
responded that the American vessels were clearly marked, and had
been identified by Iranian authorities earlier that day.
From this incident flows the argument in some quarters that
American ratification of LOST will take away Iran’s “pretext” to
challenge American warships in the Strait of Hormuz as it did in
January. Apparently, by approving our previous signature to a piece
of paper, the U.S. will change Iranian behavior by somehow
strengthening the American position that LOST’s provisions allowing
“transit passage” through international straits, such as the Strait
of Hormuz, are already customary international law, of which the
U.S. is entitled to avail itself.
Of course Iran, while having signed LOST, has yet to ratify it,
and therefore would not be bound by any of its terms even if we
were to commit ourselves. Putting that aside, with respect to
Washington-Tehran tensions, American ratification of LOST would at
best severely constrain American rights on the oceans while
allowing Iran to continue to thumb its nose at whatever
“international consensus” emerged on the Strait of Hormuz or other
issues. Moreover, at worst, Iran could opt to ratify LOST in
response, enabling Ahmadinejad and his masters to exploit the
myriad opportunities the Treaty provides for waging “lawfare”
against the U.S. in ways that put our national security at grave
risk.
To assert that American ratification will strengthen the U.S.
position on legality of passage in the Strait by bringing other
countries on board with our interpretation is to ignore Iran’s
track record of non-responsiveness to any semblance of
international consensus. By all accounts, Iran remains well on its
way to the level of independent uranium enrichment that would allow
it to have nuclear weapons, despite successive rounds of United
Nations sanctions intended to force Iran to suspend such
activities. Through its proxy, Hezbollah, Iran also continues to
disregard the U.N.’s explicit recognition that Israel, by
withdrawing from southern Lebanon in 2000, fully implemented U.N.
Security Council Resolution 425 — adherence to which was supposed
to eliminate the “pretext” for further Hezbollah (Iranian) attacks.
And of course one could write a treatise on Tehran’s ongoing
persecution of religious minorities, despite the oft-expressed
global condemnation of such practices, including most recently the
State Department’s designation of Iran as a “Country of Particular
Concern” on such matters.
If, for the sake of argument, there was reason to believe Iran
would take seriously any global consensus on passage through the
Strait of Hormuz that would supposedly emerge from American
ratification of LOST, the U.S. would still be paying far too high a
price simply to codify what we already maintain is our right under
customary international law. Under LOST, state parties have the
ability to use any number of LOST provisions to undermine American
sovereignty and security.
The text of LOST would prevent Navy vessels from engaging in the
very activities necessary for a strong national defense, for
example, by reserving the oceans for “peaceful purposes” and
prohibiting submarines from traversing below the surface in
territorial waters, and would require the U.S. to transfer
knowledge of sensitive marine technology to requesting parties.
Although some contend that we already adhere to some of the
navigational practices found in LOST, either because we recognize
them as customary international law or consider ourselves bound to
such practices by previous (non-LOST) treaty commitments, this
Treaty alters the framework entirely by requiring state parties to
submit to mandatory dispute resolution mechanisms, the rulings of
which are binding and without appeal.
While the Department of Defense has maintained that American
military activities will be exempt from dispute resolution, and
that in any event the U.S. will only submit to LOST arbitration
panels where the DoD insists we will win handily, there is plenty
of room for abuse. “Military activity”, while nominally exempt from
any dispute resolution, remains undefined in the treaty, leaving
opportunity for parties hostile to U.S. interests to frame our
exercises or operations as “environmental” activities subject to
arbitration. The recent ruling by a U.S. District Court judge that
sonar training off of the West Coast was not a national security
issue, but rather an environmental issue subject to the constraints
of federal environmental statutes, illustrates the reality of this
risk.
This danger would be magnified in a LOST arbitration panel.
Under LOST, if the disputing parties cannot agree on the make-up of
the panel, the fifth panelist must be chosen by either the
President of the International Law of the Sea Tribunal, or the
Secretary General of the United Nations, neither of whom could be
relied upon to select a “swing” panelist that would not, acting out
of ultimately political motives, tip the panel against the U.S.
Even without any subsequent Iranian ratification, countries that
are already party to LOST— including China and Russia, with their
increasingly aggressive territorial claims and military
confrontations with the U.S. — could take advantage of the
obligations buried in the treaty text to our detriment. Iran, were
it to ratify LOST, would be no less inclined to wage such lawfare
to accomplish what five Revolutionary Guard Corps speedboats could
not.
The United States cannot afford to be seduced by those who
overestimate Iran’s sense of global responsibility while
underestimating its potential to use LOST as yet another
asymmetrical weapon. American sovereignty, an unfettered Navy, and
where applicable, customary international law, remain our best
tools for ensuring stability in critical ocean pathways like the
Strait of Hormuz.
Ben Lerner is senior research associate at the Center
for Security Policy in Washington, D.C.
