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Iran and the Strait of Hormuz: some initial thoughts

Published on February 2, 2012        Author: 
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Iran has repeatedly threatened to close the Strait of Hormuz in response to any oil embargo or other unilateral sanctions taken against it. The Strait of Hormuz, depending on the reports you read, is at its narrowest somewhere between 17 and 30 nautical miles wide. The bordering States Oman and Iran both assert 12 nautical mile territorial seas. However, the deep water channels that are safe for tankers, used under an International Maritime Organization traffic separation scheme, are only two miles wide each. The outbound lane from the Persian Gulf passes through waters off Oman, the inbound lane through Iranian territorial waters. (Please correct me if I have any of this factual material wrong.)

What legal regime applies to the route through Iranian territorial waters? The ordinary starting point would be that a State may temporarily suspend innocent passage its territorial waters, without discrimination, for essential security reasons (Article 25(3), UN Convention on the Law of the Sea). However, as Hormuz is a strait used for international navigation, Iran lacks that ordinary power.

Under UNCLOS, where a strait is used for international navigation and there is no equally convenient route through open high seas waters, then “all ships and aircraft enjoy the right of transit passage, which shall not be impeded” (Art. 38(1)). This would seem decisively against Iran, but for the fact it is only a signatory to the UN Convention on the Law of the Sea and has never ratified it. The precise legal regime applying to Iran and the Strait of Hormuz is thus open to debate.

Some States, especially the US and UK, contend the UNCLOS regime of unimpeded transit passage is customary international law. The alternative is that outside UNCLOS there is only a customary international law right of non-suspendable innocent passage. The Corfu Channel case established in 1949 that warships, and a fortiori merchant ships, have a right of innocent passage through international straits which the coastal State may not suspend.

It was certainly held under the Corfu Channel case that in a time of heightened tensions Albania would have been entitled to regulate (though not prohibit or effectively nullify) the passage of warships through its waters. (See further the discussion in Churchill and Lowe.) Thus it is clearly arguable that under the non-suspendable innocent passage regime a coastal State retains its right to prevent non-innocent passage by individual foreign vessels; while under the UNCLOS transit passage regime it would lack any such rights of enforcement (though it would retain the right to formally regulate certain matters).

Thus, there is some basis for an argument that Iran could seek to restrictively regulate passage through its territorial sea short of suspending innocent passage – provided that as a matter of custom the Corfu Channel and not the UNCLOS rule applies.

However, in the comments to Sahib Singh’s recent post on Iranian sanctions Dan Joyner raised the question whether Iran could take countermeasures in the Strait in response to illegal interventions against its nuclear programme. Rather than close the Strait, Dan suggested Iran might be justified in seizing and confiscating vessels of the nationality of the States responsible for various illegal interventions against its nuclear programme (presuming these acts could be proven the responsibility of Israel and the United States).

Ordinarily, under the ILC Articles on State Responsibility, countermeasures must:

  • be targeted only against the responsible State;
  • be preceded by an offer to negotiate;
  • consist only of the injured State withholding performance of one or more international obligations owed to the responsible State;
  • be proportionate and readily reversible; and
  • not involve the use of force.

Technically, seizing individual vessels under Dan’s scenario would not involve closing the Strait. Could it be described as suspending the right of innocent passage of certain targeted States? Perhaps, though I have some (possibly formalistic) qualms about the idea that suspending a freedom from interference can create a positive right to interfere. That aside, would seizing merchant vessels involve a prohibited use of force under the UN Charter? The majority view among scholars would appear to be that such a “police action” is not usually tantamount to a use of force (see e.g. Guyana v. Suriname), though much might depend on how such an interdiction operation was carried out.

The suggestion some vessels could be seized as a countermeasure is thus not implausible, but the real question would be sufficient proof of attribution of the complained of conduct to the targeted States.

Finally, one might note that actually closing the whole of the Strait by force could constitute a blockade of the ports of Kuwait, Qatar, Bahrain, the United Arab Emirates and Iraq. This would appear to be a prima facie act of aggression against these States as the General Assembly’s Definition of Aggression (UNGAR 3314) includes blockade of ports under Article 3(c). Such an act of aggression would, at a minimum, justify Security Council intervention though we could debate what other action might be permissible in such a case.

This is far from a fully developed analysis, so thoughts are welcome. My apologies if my replies to comments are less than timely.

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Iran, The Nuclear Issue & Countermeasures

Published on January 10, 2012        Author: 
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Sahib Singh is a Visiting Lecturer of International Law at the University of Vienna, a Visiting Fellow at the British Institute of International & Comparative Law and a PhD candidate at the University of Cambridge. The legal principles and arguments put forward are addressed far more extensively, albeit in the context of a different enquiry, in a forthcoming book chapter on Countermeasures and Non-Proliferation Law (draft here).

Since the publication of the International Atomic Energy Agency’s (IAEA) report on Iran of 8 November 2011, the Iranian nuclear issue has continued to slowly escalate.  This escalation has largely been constrained within its own narrative and of economic sanctions but, at other points, has spilled into diplomatic rows and military threats (see here and here).  In the forthcoming weeks, certainly the US, and possibly the EU, shall significantly broaden existing sanctions, introducing a spate of new sanctions as part of a marked shift in sanctions strategy.  However, despite familiar policy issues arising with such a shift, this post shall examine a foundational legal question: do states, beyond the scope of existing Security Council mandated sanctions, have standing to take unilateral countermeasures against Iran, and if so, upon which particular legal grounding?  In particular, I wish to examine the question of standing, under the law of State responsibility (particularly under Article 42(b)(ii) of the ILC Articles on State Responsibility), to respond to alleged breaches of the collective non-proliferation obligations contained in the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).  The post shall determine that there is a considerable ambiguity in the law, arising from the tension between the law of treaties and the law of state responsibility, and arguably, states undertaking unilateral sanctions as a form of countermeasures against Iran may not have strict legal standing to do so (see here, pp. 10-24 for a more detailed examination).

Background & Delineating the Legal Question

Since 2002, when Iran revealed uranium enrichment facilities in Natanz and Arak that had been previously concealed for nearly 18 years, the IAEA and the international community has viewed Iran’s nuclear program with concern for its possible military dimensions.  Iran has continuously sustained its ‘inalienable right’ to peaceful use of nuclear technology (including acceptable levels of uranium enrichment) under Article IV NPT.  Despite mere suspicions and no conclusive evidence of a clandestine nuclear weapons program, and acting in discordance (although not necessarily in breach) with Article XII(c) of its Statute, the IAEA referred the case of Iran to the UN Security Council (UNSC) in February 2006.  Since the passage of UNSC Resolution 1696 (2006), Iran’s rights and obligations in relation to its nuclear program have been severely transformed, and the first of four rounds of UNSC Chapter VII economic sanctions were put in place.  The latest and most extensive of these was UNSC Resolution 1929 (2010), passed on 9 June 2010 (see pp. 39-44 of my paper for a discussion of parts of it). Read the rest of this entry…

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The Iranian Response to the UK Riots

Published on August 20, 2011        Author: 
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Earlier this week, Bill Schabas had a very interesting post considering whether the recent riots in the UK amounted to crimes against humanity. He reflects on the Rome Statute’s requirement for a “State or organizational policy”, on how complementarity would apply when persons are prosecuted for ordinary domestic crimes and on the gravity threshold applied by the ICC prosecutor. It is well worth a read.

Also worth a read is the response of the Iranian President Mahmoud Ahmadinejad to the riots in the UK. This response was published in the Guardian over a week ago. Here are some extracts.

Having already offered to send an expert team to investigate human rights abuses amid the riots, the Iranian regime has gone one step further and called on the UN security council to intervene over the British government’s handling of the unrest rocking the country.

Speaking to reporters after a cabinet meeting on Wednesday, Iran’s president, Mahmoud Ahmadinejad, condemned the British government for its “violent suppression” of the protesters and called for an end to what he described as the “killing and brutal beating” of “the opposition” angry with the government’s financial policies.

“The real opposition are the people who are beaten up and killed on the streets of London, those whose voices are not heard by anyone,” Iran’s Irna state news agency quoted Ahmadinejad as saying.

The foreign ministry, went so far as to issue a statement advising against any unnecessary travel to the UK.

On Tuesday night, conservative websites sympathetic to the Islamic regime called on the Iranian government to offer refuge in its embassy in London to “UK protesters in need of protection”.

In the aftermath of Iran’s disputed presidential election in 2009, some European embassies in Tehran opened their doors to opposition protesters.

Iranian officials infuriated by the UK’s condemnation of Iran’s human rights violations in recent years, have found a unique opportunity with recent events to get back at the British government by criticising the police force for “exercising violence”.

… Ahmadinejad criticised the UN security council for remaining silent over the riots in Britain. “What else should happen for the security council to react and condemn one of its own members?”

He accused the UK authorities of portraying its opposition as a group of “looters, rioters and drug dealers”, adding: “Does Britain have this extent of drug dealers? If this is the case, they should be tried and UN should build walls surrounding their country.”

… He asked Britain to listen to the demands of its people and criticised human rights organisations for remaining silent over the violence used against British protesters.

Wonderful isn’t it?

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Filed under: EJIL Analysis, Iran
 

Interpreting and Applying the UNSC sanctions on Iran in the Admiralty Context: The Sahand [2011] SGHC 27

Published on April 22, 2011        Author: 
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Seow Zhixiang is an officer in the Singapore Legal Service. The views here are his own.

 The High Court of Singapore has recently delivered its grounds of decision in a case which considers the impact of the United Nations Security Council (UNSC) sanctions on the Islamic Republic of Iran in an admiralty context. The Sahand [2011] SGHC 27 (available at Singapore Law Watch) involved three merchant vessels – the Sahand, the Tuchal and the Sabalan – which were owned by German companies and arrested in Singapore waters. The German companies were wholly-owned subsidiaries of the Islamic Republic of Iran Shipping Lines (IRISL), the state shipping line of Iran. Certain IRISL entities are subject to the asset freeze imposed by the UNSC on Iranian entities, and the Sahand case illustrates the difficulties that may arise in interpreting the broad language of the relevant resolutions for the purposes of applying them to specific cases, and in identifying links to expressly sanctioned entities. The case also  gives an idea of the disruptive effect that sanctions may have on commercial activities, both by a sanctioned entity and those dealing with it.  These points are not only relevant to the UNSC resolutions on Iran, but also to other similarly worded sanctions.

Read the rest of this entry…

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