By Bahman Aghai Diba, PhD International Law of the Sea
The article was written couple of years ago at the peak of Iran-US problems in the Persian Gulf. However in the light of recent issues in the waters around Yemen, and once again between the US and Iranian naval forces, it is worth reading to know the legal limits of whatever is going on.
There is no right in the international in general and law of the seas in particular for the naval units of one state to stop and inspect the ships of others states in the high seas. In the territorial sea, contiguous zone and the EEZ (Exclusive economic zone), which the coastal state has certain rights, the coastal states may ask the ships of other states that are involved in the activities which are under the jurisdiction of the coastal state, to leave those areas. Articles 89 and 90 of the United Nations 1982 Law of the Sea Convention have prohibited the states from exerting their control on other states in the high seas. (1) Although Iran and the US are not parities to the concerned convention (2) this part of the convention is reflection of the customary international law and both states are subject to it.
Also, only on the conditions of war (when the state of war is established), and when the international law of the wartime is observed, the naval units of the parties to the war (the hostile parties) can inspect the ships of third parties if they suspect that they are carrying contraband items to the destination of the other party to the war. This right is not limited to any place in the high seas ( for example places close to the international straits which are good places usually for enforcing such rights) and can be enforced in the high seas anywhere.
However, when the “state of war” is not established and the international law of the wartime is not in force, one of the only ways that inspecting ships of other countries can be done is a resolution by the Security Council of the United Nations. Such a resolution can be the basis for such rights by all members of the United Nations against a target state. “Most states currently believe that only a UN resolution can authorize state inspections on the high sea” (3) this right is not limited to any state and all members of the United Nations Organization ( and in one interpretation, even those that are not members of the UNO) can choose to enforce this resolution.
Therefore, the resolutions 1803 and 1929 of the UNSC that have been adopted in the framework of the UN measures to stop the nuclear program of Iran from moving towards military objectives, and declared certain sanctions against Iran due to the nuclear program of Iran, constitutes such a base for the naval units of the all member states of the UN to inspect the ships going to and coming from Iran to make sure that they are not carrying the prohibited items.
The government of Iran has called the 1929 Resolution of the UNSC as worthless piece of paper and the Iranian military (4) and civilian officials (5) have declared that if other states try to implement the parts of the 1929 resolution of the UNSC that is related to the inspection of ships, it would consider such action as a hostile move and take action forcefully against the members of the UN that exert their rights.
The speaker of the Iranian parliament has said: “we warn the US and certain adventurist countries that if they are tempted to inspect the Iranian air and ship cargos, we will take tough actions against their ships in the Persian Gulf and the Sea of Oman.” (6) And also, Commander of the Islamic Revolutionary Guards Corps Naval Forces, Ali Fadavi, has said: “IRGC will take retaliatory measures in case Iran-bound cargo ships come under inspection by the West.” (7) It is clear that the announcement of the Iranian regime is against the international law and the Iranian government has no right to do the actions that it has declared.
It is obvious that Iran’s claims have no basis in the international law, but it is based on the political strategy of Iran which says: the area is either safe for all not safe for all. This is not a new policy and in fact during the last years of the Iran-Iraq war (1980-1988) that the “Tanker Wars” had started, Iran was following the same policy.
The issue did not go further than attacking the oil tankers of other countries (which resulted in the escorting of Kuwaiti oil takers by the US Forces in the region and later to a clash between the Iranian and US naval forces that resulted in destruction of almost half of the Iranian navy), but this time it may turn into a total war by Iranian attacks to the main oil terminals and trying to block the Strait f Hormuz.
That is why many sources believe the passage of the even the former UNSC resolution of sanctions (1803) against Iran, makes a war between the United States and Iran more likely. (8) the article 11 of this resolution provided:
“11. Calls upon all States, in accordance with their national legal authorities and legislation and consistent with international law, in particular the law of the sea and relevant international civil aviation agreements, to inspect the cargoes to and from Iran, of aircraft and vessels, at their airports and seaports, owned or operated by Iran Air Cargo and Islamic Republic of Iran Shipping Line, provided there are reasonable grounds to believe that the aircraft or vessel is transporting goods prohibited under this resolution or resolution 1737 (2006) or resolution 1747 (2007)” (9)
Therefore the concerned part of the 1929 was only a reaffirmation of what was already adopted by the UNSC. The 1929 resolution provides that:
“14. Calls upon all States to inspect, in accordance with their national authorities and legislation and consistent with international law, in particular the law of the sea and relevant international civil aviation agreements, all cargo to and from Iran, in their territory, including seaports and airports, if the State concerned has information that provides reasonable grounds to believe the cargo contains items the supply, sale, transfer, or export of which is prohibited by paragraphs 3, 4 or 7 of resolution 1737 (2006), paragraph 5 of resolution 1747 (2007), paragraph 8 of resolution 1803 (2008) or paragraphs 8 or 9 of this resolution, for the purpose of ensuring strict implementation of those provisions” (10)
The USC resolutions have opened the way for the international community and especially the West and the US to take action against the regime of Iran if they wish to do so. In this context, William Hawkins says:
“The resolution was passed under Chapter 7 of the UN Charter dealing with “Threats to the Peace, Breaches of the Peace, and Acts of Aggression” and which discusses proper responses that include the use of force. The resolution will be used as an excuse by those who do not wish to act, but a bold administration could also use its language against Iran as justification for taking decisive action if it wanted to do so. The question the world is waiting to hear is which interpretation President Obama will embrace.” (11)
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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