Navigational Freedom and Iran’s Interception of US Navy Boats

Ships are free to travel on the ocean, and it’s important for every nation

Riverine Command Boat off the coast of Bahrain

This week two small U.S. Navy craft passed into Iranian territorial waters around a small island in the middle of the Persian Gulf and were intercepted and detained by Iranian naval forces. The two ships and their 10 crew members reportedly had been sailing from Kuwait to Bahrain. Within one day the crews were released, defusing what could have been a major international incident.

It has been interesting to see the reaction to these events. Most publications seemed to take the White House line at face value, that the “swift release” of the U.S. boats and their crew was due to “warmer relations”. Correspondingly, much of the reporting has focused on why the boats were in those waters and how they got there, without a real discussion of a central point in the whole episode: that those questions don’t really matter, because ships — any ships, including those of a military — generally have the right to pass through a country’s territorial waters unmolested.

As far back as the 1930 League of Nations Codification Conference, where state members of the international community met in an attempt to write down and formalize international law concepts, the concept of passage through territorial waters was discussed. It was first codified in the 1958 Geneva Conventions on the Law of the Sea and is embodied in the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which is the main governing document for all the world’s oceans and counts the vast majority of nations among its parties. The UNCLOS allows for “innocent passage” through territorial waters by any and all ships provided they are not engaging in specific military or economic activities. The Convention also prohibits coastal states from interfering with a ship’s innocent passage.

Iran signed but did not ratify the UNCLOS, meaning that while they are not legally bound to the provisions of the Convention, they are ostensibly committed to avoid acts that would undermine the treaty and its provisions. Interestingly, Iran signed the treaty in 1982, in other words after the 1979 revolution that instituted the current regime. The United States has neither signed nor ratified the main document, though it has stated that it considers most of UNCLOS to represent “customary international law”, in other words seeing it as generally binding on all nations. (That the U.S. is not a party to the UNCLOS is a problem. The reason why is a topic for another time, but I will note that it is brought to you by that perennial promoter of international conspiracy theories, the Republican Party and its members of the Senate.)

Granted, there is no accounting for states that don’t adhere to international law, and Iran has long been one of these. But at any rate, violating territorial waters is not a valid pretense to detain ships, and so there was no valid reason for Iran to seize the two U.S. boats. The quietness of the U.S. response to the issue can be easily explained by the desire of the Obama administration to avoid problems that could interfere with implementing the Iranian nuclear deal. As a strong supporter of diplomacy, the international community, and using both to encourage isolated nations into the international fold, I cannot fault the administration’s tactics here. In contrast, many Republicans have excoriated the administration’s handling of the incident, an understandable position when you note that so many in that party have pushed to start a war with Iran as a first rather than last option. (E.g. 1, 2, 3, and, of course, 4. Sigh.)

What I do have a problem with is letting stand the ideas that a passing ship violates the territorial waters or territorial integrity of a state, that warships might somehow be different than other ships, and that ships are not able to freely navigate where they choose in the open ocean. These ideas are problematic in the popular imagination, but even more so if they are unquestioned by the people reporting on this incident who could find themselves covering similar situations in the future.

In today’s world, there are various countries that would love for the idea of inviolate territory extending out into the middle of the ocean to be a respected concept. At least two of these, China and Russia, have or are creating major navies and could represent big challenges to international stability in the future. China has claimed as its territory an area in the South China Sea roughly the size of the entire Gulf of Mexico. It is also quickly building, and in all likelihood militarizing, islands from submerged and low-tide reefs and rocks. Russia for its part has been for years planting flags with remote subs on the ocean floor and claiming vast swaths of Arctic seabed. Obviously the reason for this is to claim what many presume to be vast resources beneath the Earth’s crust. But at least one of these nations, China, is also using its claim to attempt to limit navigation in an area through which a large part of the world’s commerce passes.

The United States actively confronts claims in excess of those provided for by international law through its Freedom of Navigation (FON) program. It does so specifically by sending Navy vessels through the disputed waters, reinforcing the concepts of innocent passage and freedom of navigation and publishing a record of these transits. One such passage conducted through the aforementioned Chinese claim in 2015 was termed “illegal” and a “threat to China’s sovereignty” by Chinese officials but otherwise was carried out without incident.

Perfectly illustrating my above concern regarding reporters, here is Glenn Greenwald writing this week in The Intercept: “It goes without saying that every country has the right to patrol and defend its territorial waters and to intercept other nations’ military boats that enter without permission.” No, this is simply not true. Greenwald deserves some respect because of the work that he has done in exposing and reporting on the NSA and domestic surveillance of U.S. citizens by the U.S. government, but his way of discussing state to state relations and things involving the military is about as helpful to the debate and a good understanding of the world as Republican saber rattling is. Greenwald:

“Just imagine what would happen if the situation had been reversed: if two Iranian naval ships had entered U.S. waters off the East Coast of the country without permission or notice. Wolf Blitzer would have declared war within minutes…. And, needless to say, the U.S. government would have — quite rightly — detained the Iranian ships and the sailors aboard them to determine why they had entered U.S. waters (and had the government released the Iranians less than 24 hours later, the U.S. media would have compared Obama to Neville Chamberlain).”

Actually, none of this is or would be true. In fact, recent events poke a large hole in Greenwald’s imagination balloon. Last September, five Chinese warships sailed within U.S. territorial waters, possibly attempting to provoke or to expose some hypocrisy on the part of the United States.

Perhaps surprising China, the U.S. monitored and otherwise ignored the ships, pointing to the principle of innocent passage. A press statement from the U.S. Northern Command noted, “The five [Chinese] ships transited expeditiously and continuously through the Aleutian Island chain in a manner consistent with international law.”

This is perfectly illustrative of the principles at issue. Other nations’ ships can sail in the ocean near the United States, and U.S. ships can sail near to other countries. There is not a wall in the ocean the other side of which is considered deep within that country’s borders. This is as it should be. With so much change and potential conflict in the world today, it is an important concept to remember.

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