Enforcing Sanctions on Iran At Sea: Tensions over the Interpretation and Application of the Law of the Sea

Abstract

AbstractSome recent affairs concerning the detention of a British vessel and the seizure of an Iranian tanker have put the spotlight on a further juridical aspect within the tangled question of implementation of sanctions on trade towards Iran to lead to the suspension of its uranium enrichment program. In particular, the growing tension between Iran and some Western Countries have caused problems of compliance with a branch of international law, surely away from that of nuclear non-proliferation, namely the law of the sea. The law of the sea is in the spotlight not only with respect to the so-called extraterritorial imposition of sanctions on trade and oil but also with respect to some reactions (a sort of countermeasures according to some political perspectives) by Iran amounting to interference with merchant shipping in the Strait of Hormuz. With regard to the first point, it concerns the freedom of navigation on the high seas as well as the connected principle of the exclusive jurisdiction of the flag State. This essentially means to what extent the fight against nuclear proliferation and the need of implementing the respect for sanctions against Iran could impinge on the freedom of navigation on the high seas. Could this freedom be limited by enforcement activities aimed at fighting nuclear proliferation? Could these enforcement activities be carried on by a State different from the flag State without evidently the latter’s authorisation? The same problem arises mutatis mutandis when a vessel suspected of violating sanctions against Iran is transiting in a foreign port or is navigating in the territorial sea of a third State. With regard to the second point, the principles of the right of innocent passage and of the right of transit passage through international straits, as is the case with the Strait of Hormuz, are admitted by the UN Convention on the Law of the Sea (UNCLOS). Consequently, the closure of the Strait of Hormuz seems to be contrary to UNCLOS. However, since Iran has signed but never ratified UNCLOS the question of its customary nature necessarily arises. In turn, the military patrol by some Western States in the Strait of Hormuz in order to guarantee the navigation raises doubts as well on their conformity with the law of the sea.KeywordsCountermeasuresFreedom of NavigationIran AccordIran SanctionsLaw of the SeaStrait of HormuzTransit Passage