by Dr. Mark J. Valencia, Special to the AJOT
On 22 April US President Donald Trump tweeted that he had instructed the U.S. Navy “to shoot down and destroy any and all Iran gunboats if they harass our ships at sea”. The head of Iran’s Islamic Revolutionary Guard Corps (IRGC) responded that “We have also ordered our military units at sea that if a vessel or military unit of the navy of the U.S. terrorist military seeks to threaten the security of our civilian ships or combat vessels, they should target that vessel or military unit”.
Engaging controversy
Perhaps most important – did Trump’s tweet change the Navy’s rules of engagement? According to the New York Times, the normal rules for “escalation of force” start at audible warnings and progress to flares to maneuvers, to warning shots and as a last resort to ‘fire for effect’. The former chief of the Pentagon’s Middle East policy said that harassment is not “a direct threat” and would not normally elicit a ‘fire for effect’ response as was reported by Politico. Moreover, and again according to the New York Times - the dangerous maneuvers are not - by themselves - “legally sufficient to open a salvo that could escalate into war” and “a tweet does not constitute a military order.” It concludes that there has been no “formal policy directive” changing the rules of engagement in responding to Iranian gunboats. A senior Navy spokesman, Rear Admiral Charles Brown said “the Navy will continue to follow international laws of armed conflict. They include guidelines that dictate that a ship’s crew should not exceed the amount of force necessary to repel an attack.” Iran’s position is that it would “respond to any threats and illegal actions in the Persian Gulf and Sea of Oman proportionately.”
Meanwhile, the administration has apparently walked back Trump’s tweet. US Secretary of State Mike Pompeo implied that the tweet was nothing new by pointing out that Trump had previously given the Pentagon authority to “take whatever action is necessary to make sure you can defend and keep our people safe.” David Norquist, a Deputy Defense Secretary explained that Trump’s tweet was just “an important warning to the Iranians - emphasizing that all of our ships retain the right of self-defense.” So it would seem that the tweet was not a prelude to war – this time.
What happened and why? Trump’s tweet was prompted by a 15 April incident in which Iranian naval vessels allegedly made “dangerous and harassing approaches” toward a fleet of six US Navy ships “conducting training operations in international waters.” Specifically, the Navy said 11 Iranian ships “crossed the bows and sterns of the U.S. vessels at extremely close range and high speeds.”
Video shot by the U.S. Navy seems to confirm the “dangerous and harassing approaches.”
But Iran claims, in an article in Al Jazeera, that on April 6 and 7 U.S. warships interfered with the freedom of navigation of an Iranian IRGC warship by “obstructing its path with dangerous maneuvers “when the ship was returning from a mission near Farsi Island Iran said that in response, on April 15, it sent 11 gunboats to practice live fire at sea in that area and that is when the “incident” occurred. Iran claimed that when their gunboats encountered the US Navy warships it “made them leave the path of the boats” presumably using the alleged “dangerous maneuvers.” It may be that both are guilty of violating international law in particular the International Regulations for Preventing Collisions at Sea 1972 that establish the “rules of the road” to prevent collisions.
The sensitiveness of Farsi Island may also have played a role. It is a tiny rock in the middle of the Gulf claimed and occupied by Iran. It has a lighthouse and an IRGC Navy base. This base figured in previous US-Iran confrontations. In the late 1980s, during the “Tanker War”, the IRGC used speedboats based on Farsi Island to attack vessels of Iraq and its allies, including Kuwait. It also was used as a base from which to lay naval mines on the route of the first US convoys sent to protect shipping at that time. Then on 12 January 2016 Farsi Island-based IRGC boats arrested two small US military vessels that in an embarrassing mistake, ‘accidentally’ entered Iranian territorial waters around Farsi. Although the US vessels and sailors were promptly released, Navy commanders are still probably smarting from the ‘screw up’. Probably related to the growing US concern is that - according to it - Iran violated its word and UN sanctions by launching a military satellite.
Legal Context
What is the legal context of these and similar likely future incidents? Although the U.S. claims that the law is on its side, the situation is rather complicated. The U.S. said its vessels were operating in “international waters” and that the “dangerous and provocative actions [of the Iranian small boats] increased the risk of miscalculation and collision and were not in accordance with the obligation under international law to act with due regard for the safety of other vessels in the area.” This appears to be so. But if U.S. warships obstructed the path of an Iranian warship on 6 and 7 April, the same would apply to it. The US has so far been silent on this earlier incident.
But the legal context depends in part on where the incidents occurred and what the US vessels were doing. The U.S. said they occurred in the “international waters”. It unilaterally uses and defines this term as “comprising all waters seaward of the territorial sea [in which] the high seas freedoms of navigation and over flight are preserved to the international community.” But there is no such thing as “international waters” in the UN Convention on the Law of the Sea (UNCLOS).
It would be useful to analysts if the U.S. designated exactly where the incident occurred and it is puzzling as to why it has not done so. If the incident occurred in Iranian claimed 12 nautical mile (nm) territorial waters around Farsi, there is a legal issue between the two. Iran claims that all states must request permission for innocent passage of warships in its territorial sea. The U.S. does not recognize this requirement and argues that UNCLOS does not support such a regime. But not having ratified UNCLOS the U.S. has little credibility or legitimacy in invoking it.
Innocent Passage?
Under the innocent passage regime, passage cannot be prejudicial to the peace, good order and security of the coastal state. If a warship violates the innocent passage regime and, upon notification of the violation, refuses to comply, it can be requested to leave the territorial sea immediately. Of particular relevance, a vessel in innocent passage cannot practice with weapons, launch or land aircraft, or undertake any research or survey activities. If the U.S. vessels were in Iran’s claimed territorial waters, did they violate the internationally accepted innocent passage regime perhaps by launching or landing of aircraft, drones or smaller boats?
However, in this case, the term ‘international waters’ apparently refers to the Iranian claimed Exclusive Economic Zone (EEZ). There is also a legal difference between the two as to what foreign warships can do in such a zone. Iran bans “Foreign military activities and practices - inconsistent with the rights and interests of the Islamic Republic of Iran in the exclusive economic zone and the continental shelf.” The U.S. strongly objects to this provision. But Iran is not alone in this extreme interpretation of UNCLOS. Some eighteen States – including China, Malaysia, India, Pakistan and US ally Thailand - try to regulate or prohibit foreign military activities in their EEZs. Moreover, according to UNCLOS - which the U.S. maintains it follows as customary international law - in a coastal state’s EEZ other states must pay due regard to its rights and duties, including its own freedom of navigation. If the April 6 and 7 incidents occurred in Iran’s claimed EEZ, did the U.S. warships violate the due regard regime?
Going forward, we must be careful that some misunderstanding - or a purposely contrived incident – does not become a Gulf of Tonkin – like - excuse for yet another war. The Gulf of Tonkin incident refers to an alleged confrontation between US Navy vessels and Vietnamese gunboats that was “misrepresented by the US government to justify war against Vietnam.”
Given their starkly opposing legal – and political - positions, the increasingly provocative actions by both sides and the shrill rhetoric enhance the danger of an incident escalating into open conflict. But there are many unanswered questions that need to be addressed before the US wanders into another war.
This piece first appeared in Eurasia Review.
Editor’s Note: Dr. Valencia is internationally recognized expert on Law of the Sea and Adjunct Senior Scholar National Institute for South China Sea Studies, Haikou, China
