Wednesday, January 09, 2008



Iranian Speedboats, US Warships, The Straits of Hormuz

The US has just filed an official protest against Iran for the actions of its coastal patrol speedboats, which are alleged to have crossed the bows of warships passing through the Straits of Hormuz, dropping boxes into the water in front of them. Iran has denied the allegations, said the US videos used footage from an earlier incident, and released its own video, the second attached above. An examination of the videos will find that the US version is irrelevant to its claims legal or otherwise, and the Iranian video provides a clear-cut basis for complaint.

When CNN first reported the story, my impression was the White House was caught flat-footed, with no prompt statement, no press conference, no apparent preparation. If the incident had not been genuine, one would expect much quicker reaction times; perhaps Iran used the occasion of Bush's first visit to Israel to do some buzzing of Navy ships. Over the next days, both the Pentagon and Washington got on the story and pushed it into "harassment," a "clash" and a "skirmish." Opportunism and orchestrated outrage begin to seem more likely. From the videos and counter-claims, a careful viewer can't really tell what happened, how non-routine the behaviors were on either side, or how close it came to acts of war.

With a formal protest lodged by the US, the incident will be taken seriously, yet the case against Iran is a loser. In the second video above, the Iranian patrol boat captain hails vessel 73, which replies to his hail and identifies itself as a coalition warship. The Iranian then requests the vessel's course and speed. The warship replies that it is "operating in international waters," and gives the same reply to repeated requests for clarification of course and speed. The warship's reply is false, since the Straits of Hormuz are only 21 miles at their widest, and much narrower for large-ship navigation. Ships can't pass through there without being in territorial waters claimed by either Oman or Iran under the transit passage provisions of UNCLOS, the United Nations Convention on the Law of the Sea.

In the second video, regardless of time authenticity, the US Navy violated the Law of the Sea. Technically, Iran's territorial water limit extends up to twelve miles off shore, and vessels including warships can take "innocent passage" through it, and the Straits of Hormuz. Yet nations have the right to temporarily suspend innocent passage in specific areas of their territorial seas if doing so is deemed essential for the protection of their security. Therefore, if the coalition warship were on Oman's side of the ill-defined territorial border, it should have answered as such, claiming right of passage granted by Oman; if it were in the very well-defined shipping lanes exercising innocent passage on either Omani or Iranian territorial waters, it should have expressed that right (as it did in the first US video). If the ship were on Iran's territorial waters, transit passage law grants the Iranians every right to demand information on course and speed. Additionally, they could also unilaterally deny innocent passage under UNCLOS, and approach and demand to board vessels inside their territory which they deem a threat to their security.

Given past US actions in its waters, and its recent hostile stance, there's abundant basis for Iran to cite the US as a security threat. On 18 April 1988, the U.S. Navy waged a one-day battle against Iranian forces in and around the strait. The battle, dubbed Operation Praying Mantis by the U.S. side, was launched in retaliation for the 14 April mining of the USS Samuel B. Roberts (FFG-58). U.S. forces sank two Iranian warships and as many as six armed speedboats in the engagement. On July 3, 1988, 290 people were killed when an Iran AirAirbus A300 passenger jet was shot down over the strait by the United States Navy guided missile cruiser USS Vincennes. There is still lingering controversy about the event, considered among the most controversial tragedies in aviation history. On January 10, 2007, the nuclear submarine USS Newport News, traveling submerged, struck M/V Mogamigawa, a 300,000-ton Japanese-flagged large oil tanker just south of the strait. (Wikipedia credit for links in this paragraph.) The tanker had suddenly slowed before impact, indicating the US submarine was attempting clandestine underwater passage in its prop wash. Hardly innocent transit.

Does legality matter in the Persian Gulf? Not yet, and Iran may have reason to feel contemptuous of the UN's impartiality. Ultimately, however, legality could become very important, and knowing how laws regarding coastal sovereignty are supposed to be handled calls the competing official versions out into clearer, less bullshit-clouded light. Coalition Vessel 73's claim that it was in international waters was intentionally idiotic and insulting. A US Navy spokesman said that the speedboats were "a heartbeat away" from being blown up two days ago, that may be so, and it's impossible to precisely assess what happened in this incident. In contrast, it is not at all difficult to assess that the routine passage of US warships through the straits is an act of war should Iran choose to define it as such, and is inherently dangerous. Iran's daily restraint indicates very high levels of patience and discipline on the part of its Navy and government, as well as on the part of the coalition warship crews. Otherwise, a far worse "clash" would have already occurred.

23 comments:

caitlyna said...

I applaud your references to the Law of the Sea Convention, but I need to point out two items. First, Part III of the Convention provides for the right of transit passage in straits used in international navigation, including the strait of Hormuz, Malacca, Singapore and others that are less than 24 miles in breadth. In these straits rights of foreign vessels are much more broad than the regime of innocent passage. I note that at no time did Iran challenge the right of transit passage for the US warships (like the US, Iran has signed but not ratified the LOS Convention.)

The second point is that the location of the incident as reported in the only report I saw that gave a specific location stated that the US vessels were 15 miles from the Iranian shoreline.

In addition, even in the territorial sea, suspension of innocent passage requires proper advance notice. It can't be done on the spur of the moment. There are no provisions to suspend rights of transit passage.

What the incident really demonstrates is that the US and Iran need to establish an agreement on dealing with incidents at sea, much like the agreement negotiated with the Soviet Union during the cold war.

caitlyna said...

A follow up point - unlike the regime of innocent passage in which submarines must travel on the surface and show their flag, transit passage allows submarines to operate submerged. Given the poor manuverability of submarines on the surface and their lower visibility compared to surface ships, operating submerged is their normal mode of operation.

Transit passage was the one of the keystones of the LOS negotiations. If that part of the convention had not been agreed upon, there would be no convention at all.

Also, the Convention recognizes the sovereign immunity of warships and vessels on government service. As such, a coastal state may order a warship in violation of innocent passage to leave their waters, but it cannot board without permission of the commander of the ship. Again, this is not the case in the strait of Hormuz where the right of transit passage applies.

caitlyna said...

A correction to my comment above: Iran has not signed the LOS Convention, but the US has (and hopefully we will finally ratify it in 2008). Iran seems to be abiding by by the convention, but has neither signed nor ratified the 1982 Convention nor the 1994 Agreement on Implementation (it did, however, ratify the 1995 Fish Stocks agreement so it isn't ignoring the LOS-family of conventions altogether. REcognition of the 12 territorial sea was provided by the 1982 LOS COnvention, so by not signing Iran would be in a weakened position if it tried to argue a both a 12 territorial sea _and_ a lack of applicability of Transit Passage rights.

The best solution is for both countries to ratify the convention and to establish a system to quickly defuse incidents.

Jon said...

Am I the only one to notice that this supposed naval incident comes within days of the release of previously classified intelligence that proves the Gulf of Tonkin incident never happened? Fool me once.....won't get fooled again!
http://www.upi.com/NewsTrack/Top_News/2008/01/09/us_60s_vietnam_intelligence_flawed/1426/

Bruce said...

Jon, the answer to that would be"no." See Bill Connolly at Thoughts on the eve of the apocalypse.

You too, Marc. Some good links to further details.

MarcLord said...

Caitlyna,

Thanks so much for commenting! Being no expert on UNCLOS, I greatly appreciate your contributions, corrections, and observations. And taking my post seriously, since you seem to possess a measure of expertise. Is your involvement in formulation or application of the LOS? Am curious.

In the observations line, yes, completely agreed, the US and Iran should have at least a bilateral agreement on protocols in the Straits to defuse possible incidents. Yet I doubt the desire to craft agreements--I believe some parties on both sides would prefer volatility. It's amazing more hasn't happened until now, given all the "playing chicken" which must have gone on.

On corrections, much appreciated. My main point was that Iran could challenge right of passage under UNCLOS, and has not. Do they have a case? I rely on your explicaton, but the purpose of US warships passing through seems clear. Didn't see the 15 mi. away from Iran border note in the news--if so, the Omani coast should presumably have been visible in the Iranian video, assuming it was filming westward on the date claimed. I remain skeptical either way. Wasn't thinking that Iran could deny passage at the drop of a hat, even though unsure of specific protocol.

Re: the submerged submarine/tanker incident, however, the sub was well aware of its relative position. Very clear-cut. People on the tanker, and its company's spokesperson initially went on record that the sub was endangering their vessel, and there is a long, well-documented record of similar evasion and spying techniques by submarines. This, as in all such documented incidents, was a matter of purposeful and reckless endangerment for purposes of deception and tactical development. This is a violation of whatever transit passage may be equitably named.

On your obserations, I chose UNCLOS without knowing every devil in its details. In historical analogues and in other maritime law with which I am more familiar, however, the Iranian legal case is even stronger given the Strait's proximity.

If Iran were a more powerful nation, it would claim jurisdiction over all traffic through the Strait including boarding and seizure. As both a practical and legal matter, the United States does not suffer hostile warships to pass through Long Island Sound, and Canada does not suffer the same through the St. Lawrence seaway. From the perspective of military history it is either selective or foolhardy to view the Straits of Hormuz through a different lens, which at present it is hard not to do. Simply put: it is not our waterway.

Caitlyna, I thank you for your visit and expertise, and hope you come back.

MarcLord said...

Jon,

you ain't the only one. I discounted its congruency, but that may be wishful thonkin.' And didn't we already know that about the G-o-Tonkin?

MarcLord said...

Thanks, Bruce, will check it out! Btw Jon is someone you'd appreciate, and vicey-versey.

M

Jon said...

Marc,

We all suspected that the Gulf of Tonkin was a made-up pretext for escalating the Vietnam war, but the recent report confirms it. It's similar to our current belief that Darth Cheney cooked the intelligence on Iraq to justify the invasion - we know it happened, but don't have proof. Yet. In fact, I received the following fax from myself in the future:

Dateline October 14, 2032
Washington, D.C.

The Ministry of Truth today announced that a review of intelligence from 2003 reveal that then-Vice President Cheney's office falsified intelligence that was used to justify the occupation of Iraq.

President Chelsea Clinton had no comment, although her opponent in her re-election campaign, Sen. Jenna Bush (R-Anbar), used the opportunity to bash the President for not responding more forcefully to the imminent threat posed by Oceania.

caitlyna said...

Hi Marc,

Thank you for the welcome. Yes, I've spent years working on LOS. I began as a technical expert on deep ocean mining, then later, as the commerce department representative on the US delegation, I covered all non-naval issues, but with family and personal experience in the Navy, I stayed very close to the navigation issues. Since then I seem to have read the whole convention time and time again, probably more than any other non-lawyer.

With regard to whose strait it is, I'd start at the end of World War II when the three mile territorial sea started to be questioned. At that time the waters in the Strait of Hormuz were the high seas. As nations began individually to claim wider seas (from 4 miles to as far as 200 miles on the west coast of latin america), we tried to set a balance between navigational freedoms and coastal state rights. The 1958 geneva convention failed to agree on a limit, and the second conference in 1960, trying to focus on the breadth of the territorial sea, was a total failure. The initial planning for a comprehensive LOS convention began in 1965 with the US and USSR agreeing that there had to be a package deal in which essential interests of all states were met, each giving and getting something that produced a net gain. With up to 150 nations, each with a unique set of interests, it was the most intellectually challenging exercise I have ever been part of, and it was only years afterward that I fully grasped the complexity handled by the conference leaders, both from the US and from other countries.

Still, the Convention just sets the rules that nations are expected to abide by. That doesn't mean that they always will, but for the most part it is in the interests of all parties for the package to hold together. Most countries understand that they have more to gain from long term order on the oceans than from any short term violation of the regime.

It is possible that if Iran were more powerful, then it would try to exert more control - but if it were more powerful, it would likely have global interests that would be threatened if it tried to exert unilateral authority over shipping in its region - and there is the matter that Iran could close traffic only by exerting authority in the waters of Oman and the UAE, and in trying to do so it would be faced not just by the US but by other nations that ship or consume oil and by the Arab states across the Strait and their allies.

Regarding the incident in the strait, I expect that it fell within the norm for relations between the US and Iran and that it was built up after the incident into a larger political event. I also suspect that there was a JAG lawyer either on the cruiser or on radio to make sure that the legalities were followed. at sea. Better though, as the CNO said, would be to have a hot-line between the region navy and coast guard commanders.

MarcLord said...

Jon, I think you've just received my Best Blog Comment of All Freakin' Time Award.

That was great.

MarcLord said...

caitlyna,

I wrote a big thoughtful reply to you which got swallowed up in an evil parallel universe. Basically, I worshipped your expertise some more, then said de facto control of those straits will eventually pass to Iran or the Arabs. The US Navy is a fantastic institution, but it's bankrupting us.

MarcLord said...

oh, and caitlyna,

how would I get in touch with you for a couple more questions?

Jon said...

Is there a cash honorarium associated with that award? ;)

Naj said...

Got to this late. Great post. I will steal it, for Stop teh Second Holocaust. I hope you won't mind.

MarcLord said...

Jon,

I don't know if it's an honorarium or not, but a six-pack of Spaten Pils would seem in order.

MarcLord said...

Naj,

Why thank you! Please by all means feel free. I finished my letter from Dick Cheney to Ahmadenijad, and titled it "Dear Iran: One Last Chance to Accept Jesus into Your Life" but I didn't like it. Too realistic.

Naj said...

:))
When are you gonna post the letter?!

Caitlyn said...

Marc,

You can send me a note at 'athenasowl@mac.com'

Look forward to hearing from you.

Caitlyn

MarcLord said...

naj,

I can send it on to you and see what you think, I was trying for satire, but I'm not sure if it's all funny or not!

MarcLord said...

caitlyna,

Today is Toddler Day, filled up with kids, so will contact you tonight. Have a couple more specific questions. Thank you!

Naj said...

Marc, please do. I am sure no matter how hard you not try, your satirical magic comes out.

Speaking of a satirical tragedy: !

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