By Bahman Aghai Diba, PhD International Law of the Sea
The 1982 United Nations Convention on the Law of the Sea (UNCLOS) is considered as one of the most important international legal documents in the world. The Convention which is almost a thousand pages is the result of more than 10 years deliberations of thousands of scientists, policy makers and diplomats and legal experts from a large number of the countries in the world. The convention is a serious effort for participation of as many countries as possible in the regulation of the seas and maritime affairs in the world and it has a special significance for the third world countries because of their new role in codification and formation of the international law.
Iran has been an active participant in the entire sessions of the Third United Nations Conference on the Law of the Sea which culminated in UNCLOS. Iran signed the 1982 Convention in same year, but it has not ratified it. Ratification process in Iran requires that the convention to go through the parliament, but various administrations in Iran since then (1982) have never come up with a plan for the ratification of the convention. There are multiple reasons for the hesitation of Iran. At the same time, noting that Iran has not expressed its inclination to stop joining the parties to the UNCLOS, it is under commitment not to act against its provisions (1).
The best place to understand reasons of Iran for hesitation in joining the UNCLOS is the declaration of the Iranian delegation at the time of signing the 1982 convention in Montego Bay, Jamaica ( the Convention is also called the Montego Bay Convention). Although the convention has not welcomed reservations to the provisions of it, but the article 310 of the UNCLOS has opened the door for expressing the concerns of the states who wish to join it. Also, couple of other articles of the convention asks for the expression of the state intentions.
Article 310 of the Convention allows States and entities to make declarations or statements regarding its application at the time of signing, ratifying or acceding to the Convention, which do not purport to exclude or modify the legal effect of the provisions of the Convention. Also, Article 287 of the UNCLOS, paragraph 1, provides that States and entities, when signing, ratifying or acceding to the Convention, or at any time thereafter, may make declarations specifying the forums for the settlement of disputes which they accept. In addition, article 298, paragraph 1, allows States and entities to declare that they exclude the application of the compulsory binding procedures for the settlement of disputes under the Convention in respect of certain specified categories kinds of disputes. (2)
Noting the above mentioned articles that open the way for the statements in any stage, the Iranian delegation has made a very careful statement at the time of signing the convention. The text of this statement is as follows:
“Iran: Upon signature (10 December 1982):
Interpretative declaration on the subject of straits
"In accordance with article 310 of the Convention on the Law of the Sea, the Government of the Islamic Republic of Iran seizes the opportunity at this solemn moment of signing the Convention, to place on the records its "understanding" in relation to certain provisions of the Convention. The main objective for submitting these declarations is the avoidance of eventual future interpretation of the following articles in a manner incompatible with the original intention and previous positions or in disharmony with national laws and regulations of the Islamic Republic of Iran. It is the understanding of the Islamic Republic of Iran that:
1) Notwithstanding the intended character of the Convention being one of general application and of law making nature, certain of its provisions are merely product of quid pro quo which do not necessarily purport to codify the existing customs or established usage (practice) regarded as having an obligatory character. Therefore, it seems natural and in harmony with article 34 of the 1969 Vienna Convention on the Law of Treaties, that only states parties to the Law of the Sea Convention shall be entitled to benefit from the contractual rights created therein.
The above considerations pertain specifically (but not exclusively) to the following:
-- The right of Transit passage through straits used for international navigation (Part III, Section 2, article 38).
-- The notion of "Exclusive Economic Zone" (Part V). - All matters regarding the International Seabed Area and the Concept of "Common Heritage of mankind" (Part XI).
2) In the light of customary international law, the provisions of article 21, read in association with article 19 (on the Meaning of Innocent Passage) and article 25 (on the Rights of Protection of the Coastal States), recognize (though implicitly) the rights of the Coastal States to take measures to safeguard their security interests including the adoption of laws and regulations regarding, inter alia , the requirements of prior authorization for warships willing to exercise the right of innocent passage through the territorial sea.
3) The right referred to in article 125 regarding access to and from the sea and freedom of transit of Land-locked States is one which is derived from mutual agreement of States concerned based on the principle of reciprocity.
4) The provisions of article 70, regarding "Right of States with Special Geographical Characteristics" are without prejudice to the exclusive right of the Coastal States of enclosed and semi-enclosed maritime regions (such as the Persian Gulf and the Sea of Oman) with large population predominantly dependent upon relatively poor stocks of living resources of the same regions.
5) Islets situated in enclosed and semi-enclosed seas which potentially can sustain human habitation or economic life of their own, but due to climatic conditions, resource restriction or other limitations, have not yet been put to development, fall within the provisions of paragraph 2 of article 121 concerning "Regime of Islands", and have, therefore, full effect in boundary delimitation of various maritime zones of the interested Coastal States.
Furthermore, with regard to "Compulsory Procedures Entailing Binding Decisions" the Government of the Islamic Republic of Iran, while fully endorsing the Concept of settlement of all international disputes by peaceful means, and recognizing the necessity and desirability of settling, in an atmosphere of mutual understanding and cooperation, issues relating to the interpretation and application of the Convention on the Law of the Sea, at this time will not pronounce on the choice of procedures pursuant to articles 287 and 298 and reserves its positions to be declared in due time." (3)
According to this declaration, the concerns of Iran are focused on couple of items:
1- The Passage from international straits. The Iranian concern here is on the passage from the Strait of Hormuz in the connecting point of the Persian Gulf to the Sea of Oman. One of the important subjects discussed during the various sessions of the UN Third Conference on the Law of the Sea was the regime of passage from the international straits such the Hormuz strait. The 1982 convention created and approved a new notion for passing from these straits that is called transit passage and it gives more rights and freedoms to the passing ships than the previous customary regime of passage from these straits. What the Iranian delegation wanted to make clear in the signing of the convention was that the new rights were based on the contract and therefore they extended only to those who accept all commitments coming from the 1982 convention and it did not extend to those who are not the members. The Iranian concern in this case, contrary to the well-known idea that it was against the big naval countries, was also coming from its conflicts with the Arab neighboring countries that tried to undermine the rights of the coastal states of such waterways as much as possible. The Iran-Iraq- war (1980-1988) had added fuel to this kind of thinking.
During the Third UN Conference on the law of the Sea, the issue of passage from the international straits had gained special importance because:
a- It was a matter of controversy between the countries bordering the straits and other countries especially the countries with big naval and merchant fleets.
b- The practice of 12 mile territorial sea was recognized and supported by the countries and it added seriously to the number of international straits that were less than 24 mile miles and therefore entirely within the territorial limits of the bordering states.
c- The previous customary regime of passage on the basis of 1958 convention of the territorial sea (Geneva Convention) was innocent passage. “Under the regime of innocent passage codified in Section III of the 1958 Geneva Convention, the rule is established that transit is innocent only “so long as it is not prejudicial to the peace, good order or security of the coastal state.” The last section of the article also requires that submarines exercising the right of innocent passage navigate on the surface, showing their flag. In Article 16 a coastal state is given the right to “take the necessary steps in its territorial sea to prevent passage which is not innocent.” This phraseology is nebulous enough as it stands; furthermore, the use of the word “prejudicial” suggests that an actual injury to peace, good order, or security need not be taking place for the passage to be deemed no longer innocent. If a reasonable chance exists that such injury may be in the offing, the coastal state would be in a strong position to decide that the passage is not innocent and exclude the vessel from its territorial waters.” (4)
2- The passage of the naval units from the territorial sea or in others words, extending the right of innocent passage to the warships was a controversial issue during the Third UN Conference on the Law of the Sea and after the conclusion of the UNCLOS. The military issues were not in the agenda of the Third UN Conference on the Law of the Sea. However, during the sessions of the conference there were efforts to inclusion of subjects like peaceful use of the oceans but they were not seriously followed. Therefore, the 1958 Convention on the territorial Sea and the 1982 UNCLOS have not clear regulations about the passage of the naval units from the territorial sea. (5)
Iran believes that passage of naval ships of other states from the territorial waters is dependent on prior notification and by observance of the innocent passage requirements. Some other countries that have the same policy are Egypt, Oman and Yemen.
(1) According to the article 18 of the convention on the law of treaties:
“Obligation not to defeat the object and purpose of a treaty prior to its entry into force
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or
(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.
(5) RWG De Muralt, the military aspects of the UN Law of the Sea Convention, Netherlands Law Review, 1985, Vol. XXXII.
Bahman A Diba, PhD International Law of the Seas, is the author of several books. His latest books were published in 2011:
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