by Ben Lerner
In ancient Greek mythology, the Sirens were beautiful sea-maidens, known for chanting sweet melodies to lure hapless sailors into dangerous waters, only to face their demise amongst the jagged rocks. Today's Sirens are similarly dangerous, using the promise of peace and stability on the oceans to lure various American constituencies into the perilous contours that make up the United Nations Convention on the Law of the Sea (also known as the Law of the Sea Treaty, or LOST).
Because the melody takes many forms, numerous analysts have dutifully responded by providing warnings, on these pages and elsewhere, about the various pitfalls and shortcomings contained in this Treaty. We have yet to see, however, a direct response to a particularly disingenuous and dangerously naive siren song: the assertion that our maritime interaction with the terrorism-sponsoring, petro-dictators of Iran could prove less explosive, if only we sign up for the "legal order for the seas and oceans" that LOST holds itself out to be.
In the ongoing debate over whether to subject American maritime interests to the whims of the "international community," a subset of LOST proponents have taken to pointing to the January 2008 near-altercation between U.S. warships and Iranian speedboats in the Strait of Hormuz as evidence of the necessity of U.S. ratification. The notion, however, that accession to LOST either could have prevented such a confrontation or will effectively do so in the future reveals both a lack of understanding about the nature of the leadership in Tehran, as well as a remarkable lack of understanding of the Treaty's potential to enable and encourage Iranian aggression against the United States.
The incident at issue occurred on January 6, 2008, when, according to accounts by the U.S. Navy, five armed Iranian speedboats manned by the infamous Iranian Revolutionary Guard Corps aggressively approached three American warships in the Strait. The speedboats maneuvered very close to the convoy, with at least one coming within 200 yards of one of the ships. Navy recordings picked up a heavily accented voice in English, the exact source of which was not entirely clear, saying "I am coming to you...You will explode after a few minutes." One of the speedboats proceeded to drop several small, white box-like floating objects in the path of the American convoy.
In the course of the exchange, an American sailor was recorded as saying, "This is a coalition warship. I am engaged in transit passage in accordance with international law. I intend no harm." After ignoring this and other repeated warnings from the warships for roughly 30 minutes, the speedboats fled as American commanders prepared to open fire. In a briefing given shortly after the incident, Vice Admiral Kevin Cosgriff, Commander of U.S. Naval Forces Central Command, maintained that the warships were traveling 15 miles from Iranian land territory at the time, and therefore outside the outer limits of the 12-mile Iranian territorial waters.
For its part, Tehran accused the United States of "fabricating" the video and audio footage that captured the episode. The Revolutionary Guard Corps maintained that it only asked the warships to identify themselves, as is typical Iranian practice with respect to ships passing through the Strait of Hormuz, according to the Iranian Defense Minister. Vice Admiral Cosgriff responded that the American vessels were clearly marked, and had been identified by Iranian authorities earlier that day.
From this incident flows the argument in some quarters that American ratification of LOST will take away Iran's "pretext" to challenge American warships in the Strait of Hormuz as it did in January. Apparently, by approving our previous signature to a piece of paper, the U.S. will change Iranian behavior by somehow strengthening the American position that LOST's provisions allowing "transit passage" through international straits, such as the Strait of Hormuz, are already customary international law, of which the U.S. is entitled to avail itself.
Of course Iran, while having signed LOST, has yet to ratify it, and therefore would not be bound by any of its terms even if we were to commit ourselves. Putting that aside, with respect to Washington-Tehran tensions, American ratification of LOST would at best severely constrain American rights on the oceans while allowing Iran to continue to thumb its nose at whatever "international consensus" emerged on the Strait of Hormuz or other issues. Moreover, at worst, Iran could opt to ratify LOST in response, enabling Ahmadinejad and his masters to exploit the myriad opportunities the Treaty provides for waging "lawfare" against the U.S. in ways that put our national security at grave risk.
To assert that American ratification will strengthen the U.S. position on legality of passage in the Strait by bringing other countries on board with our interpretation is to ignore Iran's track record of non-responsiveness to any semblance of international consensus. By all accounts, Iran remains well on its way to the level of independent uranium enrichment that would allow it to have nuclear weapons, despite successive rounds of United Nations sanctions intended to force Iran to suspend such activities. Through its proxy, Hezbollah, Iran also continues to disregard the U.N.'s explicit recognition that Israel, by withdrawing from southern Lebanon in 2000, fully implemented U.N. Security Council Resolution 425 -- adherence to which was supposed to eliminate the "pretext" for further Hezbollah (Iranian) attacks. And of course one could write a treatise on Tehran's ongoing persecution of religious minorities, despite the oft-expressed global condemnation of such practices, including most recently the State Department's designation of Iran as a "Country of Particular Concern" on such matters.
If, for the sake of argument, there was reason to believe Iran would take seriously any global consensus on passage through the Strait of Hormuz that would supposedly emerge from American ratification of LOST, the U.S. would still be paying far too high a price simply to codify what we already maintain is our right under customary international law. Under LOST, state parties have the ability to use any number of LOST provisions to undermine American sovereignty and security.
The text of LOST would prevent Navy vessels from engaging in the very activities necessary for a strong national defense, for example, by reserving the oceans for "peaceful purposes" and prohibiting submarines from traversing below the surface in territorial waters, and would require the U.S. to transfer knowledge of sensitive marine technology to requesting parties. Although some contend that we already adhere to some of the navigational practices found in LOST, either because we recognize them as customary international law or consider ourselves bound to such practices by previous (non-LOST) treaty commitments, this Treaty alters the framework entirely by requiring state parties to submit to mandatory dispute resolution mechanisms, the rulings of which are binding and without appeal.
While the Department of Defense has maintained that American military activities will be exempt from dispute resolution, and that in any event the U.S. will only submit to LOST arbitration panels where the DoD insists we will win handily, there is plenty of room for abuse. "Military activity", while nominally exempt from any dispute resolution, remains undefined in the treaty, leaving opportunity for parties hostile to U.S. interests to frame our exercises or operations as "environmental" activities subject to arbitration. The recent ruling by a U.S. District Court judge that sonar training off of the West Coast was not a national security issue, but rather an environmental issue subject to the constraints of federal environmental statutes, illustrates the reality of this risk.
This danger would be magnified in a LOST arbitration panel. Under LOST, if the disputing parties cannot agree on the make-up of the panel, the fifth panelist must be chosen by either the President of the International Law of the Sea Tribunal, or the Secretary General of the United Nations, neither of whom could be relied upon to select a "swing" panelist that would not, acting out of ultimately political motives, tip the panel against the U.S.
Even without any subsequent Iranian ratification, countries that are already party to LOST-- including China and Russia, with their increasingly aggressive territorial claims and military confrontations with the U.S. -- could take advantage of the obligations buried in the treaty text to our detriment. Iran, were it to ratify LOST, would be no less inclined to wage such lawfare to accomplish what five Revolutionary Guard Corps speedboats could not.
The United States cannot afford to be seduced by those who overestimate Iran's sense of global responsibility while underestimating its potential to use LOST as yet another asymmetrical weapon. American sovereignty, an unfettered Navy, and where applicable, customary international law, remain our best tools for ensuring stability in critical ocean pathways like the Strait of Hormuz.
This article first appeared in American Spectator, and can be viewed in its original form here.