September 23, 2021
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Revisiting The Tricky Issue Of Freedom Of Navigation As Tensions Brew Between Washington And Tehran

By Gola Traub

The shipping industry is an appealing industry. It has always been in the forefront of global commerce since man learned to ply the seas some 5000 years ago, albeit, the sea itself has been a case of ceaseless scrambling and geopolitics. The core of the struggle has been broadly based on the rights and responsibilities of coastal states and the right of foreign sea-going vessels to ply through their territorial waters, a right generally called innocent passage.

Innocent passage is a concept in UNCLOS that allows for a foreign ship to pass through the territorial waters of another state as long as it is not prejudicial to the peace, security and good order of the concerned state.

In a bid to reconcile these discussions and debates, the UN formulated the United Nations Law of the Sea Convention. Drawing up UNCLOS, as this law is commonly called, was hard, for there were irreconcilable positions between developing countries and the West. Admittedly, that is why the finishing documents of the Convention were affirmed without consensus.

Article 17 of UNCLOS accords the right of innocent passage to all ships sailing through territorial waters, while Article 25 states that a coastal state may take measures to suspend a passage which it does not consider innocent. However, in time of peace, suspensions are not allowed in straits (territorial waters that join two parts of the high seas) that are used for international shipping.

These abridged corridors make vessels accessible to accidents, piracy, terrorism, and even political instability and political upheavals in abutting states. Yet, international commerce through these waterways remains easier and cheaper than by land and air.

In 2018, the world produced well over 100 million barrels of oil per day, and more than half of it was shipped by maritime highways. Clearly, this account demonstrates our reliance on a mode of transport that is the most cost-effective means of transportation.

So, who commands these narrowed ‘bridges’ that are vital to world trade; and what are the challenges of keeping them unimpeded at a time when well over 90% of global trade is ferried by sea? These are difficult questions that this article attempts to address, as it endeavours to examine the challenges of ensuring unobstructed straits and canals - bottlenecked waterways that are commonly referred to as Sea Lines of Communication (SLOC) or chokepoints.

These maritime passageways are littered across the oceans of the world, but this paper concentrates only on a few of the major ones. Chokepoints serve as shortcuts between ports or between two major bodies of water. Without them, an ordinary voyage would likely take twice the time and cost twice the price. The utility of chokepoints in facilitating heavy shipping traffic volumes cannot be overstated.

For example, it is quicker and by far more economical to travel from the Middle East to Europe via the Suez Canal (a major chokepoint) than by circling Africa. But given that chokepoints are surrounded by land, and therefore vulnerable to regional and national politics, they are as risky as they are useful.

Navigating these narrowed channels can test the best of ship captains, for they have to be extra careful in these restricted areas, as an accident in a SLOC has the propensity to cause major disruption to trade worldwide, a disruption that would probably cause severe harm to the economic interests of the surrounding littoral states and other countries far afield.

By any definition, chokepoints have immense strategic, geopolitical-economic and military importance to all who use them. During wars, it is commonplace to see chokepoints being obstructed, severely restricted or completely blocked by an opposing naval power, aiming to curtail or cut off supplies to another warring side, simply because “whoever rules the waves rules the world” – and by extension, he who rules the chokepoints rules the land (Alfred Thayer Mahan, the originator of the concept of “Sea Power”).

The crux of the problem

The underlying problem between vessel operators and coastal states has always been the fact that chokepoints, by definition, are in the “backyards” of coastal states. That is, in the most basic sense of the notion, chokepoints are always bordered by one or more coastal states.

Prior to UNCLOS, littoral states had territorial waters of three miles. UNCLOS increased it to twelve miles. Upon that, it gave countries the right to claim a contiguous zone of twelve miles, along with an exclusive economic zone (EEZ) of two hundred miles.

 It would appear that the problems associated with chokepoints have become more taxing and problematic since these extensions were allowed, as some nations find it very difficult to accept that others would sail through their extended waters without their consent. This is particularly true for warships.  And, ostensibly, some of these states crave hegemony, while others, because of harried security concerns, consider the transit passage as inherently non-innocent.

Notwithstanding, the United States and a number of other countries, including North Korea, Syria, and Iran, who have not ratified the Convention, continue to primarily employ customary international maritime law (state practice). For instance, the US maintains its FON (Freedom of Navigation) doctrine, along with its policy of Freedom of Navigation Operations (FONOPS), a twin belief that it has the right to sail its ships, including warships, anywhere it wishes. Let us now see how doctrines and policies of this nature smite key chokepoints worldwide.

The Strait of Hormuz

Discernibly, in the absence of a broadly ratified UNCLOS Convention, it is likely that pestering those who have not acceded to the Convention will persist. Take this for an example. Iran, which has not acceded to UNCLOS, contends that transit passage is applicable only to states that have acceded to UNCLOS, a veiled reference to America, a maritime power that refuses to sign the “mother of all maritime conventions”.

Iran abuts the Strait of Hormuz, the chokepoint through which well over 40 percent of the world’s crude oil tankers transit. This strait, which connects the Persian Gulf with the Arabian Sea and the Gulf of Oman, is by far the most important oil chokepoint in the world, accounting for well over 18.5 million barrels of oil per day in 2018 (U.S. Energy Information Administration). However, in spite of its huge value, the deep-seated enmity between America and Israel on one side, and Iran on the other, makes this ‘bottleneck’ a powder keg - an ever-growing concern that should alarm the entire world, for every nation depends on international maritime shipping, from Angola to Brazil to China to Zambia.

The blockage of any part of this ‘shortcut’, even just for a little while, would ultimately lead to massive oil disruptions; and prices would spike worldwide. That is why when Iran vowed in 2008 that it would shut its waterways should the US and its allies slam sanctions on it, the then UK Minister of Armed Forces, Nic Harvey said that  “such a closure would be wrong in international law, and the international community would reject it”.

Today, indications are that Washington is pursuing an unwavering economic-pressure campaign ostensibly geared at Tehran’s capitulation or its ultimate collapse - regime change, in other words. And Tehran is not taking it lying down. Worryingly, in fact, the Islamic Republic armed forces are threatening to block the Strait of Hormuz.

To send what hawks in the current administration call a "clear and unmistakable message to Iran”, two U.S. guided-destroyers were recently sent to the Persian Gulf but without incident, making the likelihood of an armed confrontation between the two belligerents appear less likely. However, this move remains a dicey one in the waters of this particular chokepoint. 

Washington upended the 2015 Joint Comprehensive Plan of Action (JCPOA) agreement between the Islamic Republic of Iran and the West in May 2018, and Washington has upped the ante on Iran over recent months; designating the Iranian Revolutionary Guard Corps a terrorist entity, whipping up oil sanctions, too - even asking in recent days the Gibraltar authorities to seize an Iranian super-tanker on its behalf.

But amid deepening tensions between the US and Iran, Washington’s goal remains opaque – distinctly unclear, with the Whitehouse insisting that they do not want war with Iran, but even casual observers can see that they can hardly conceal their exuberance and readiness for regime change in Tehran.

The waters of the Strait of Hormuz water Oman and Iran, the 2 littoral states with sovereignty over this all-important SLOC - a sovereignty, it must be emphasized,  that is subject to the navigational rights of all seagoing vessels. Muscat, however, remains deafeningly silent thus far. What are the Omanis authorities thinking? One wonders. What are the implications of their ear-splitting silence?

 The Bab el-Mandeb Strait

The Bab el-Mandeb Strait, which was until recently, a hotbed of Somali piracy, lies southwest of Aden. It joins the Horn of Africa to the Middle East and serves as a crossroad between the Mediterranean Sea and the Indian Ocean.  The challenge in this strategic region is fourfold – first, to solve the Palestinian-Israeli problem fairly and peacefully – the second was until recently, to somehow keep the then ‘Arab Spring’ from reaching the region in its original form. The third challenge was to find a way to restore Somalia’s statehood. The last and perhaps the stiffest challenge in this littoral region is ensuring that no pugnacious state or non-state actor exercise hegemony in this part of the world.

During the Law of the Sea negotiations, the issue of sailing through straits received more consideration than any other issues from those present at the convention. And that debate persists. This fact should not engender surprise, for it is obvious that defending seagoing vessels and seaborne traffic in narrow waterways is truly difficult.

Moreover, some coastal states might have a penchant for being obnoxious.  Frankly, an otherwise minor state can easily become a relatively critical power owing to its strategic geography. That is why the international community is still working assiduously to put the Somali problem to bed.

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Photo: AA Photos; Source: U.S. Energy Information Administration

 

Best Practice – the Malacca Strait

The Strait of Malacca waters Singapore, Malaysia and Indonesia, and joins the Indian Ocean to the South China Sea and the Pacific Ocean. It is by far the shortest sea lane from the Gulf to the all-important Japanese, South Korean and Chinese markets. At its narrowest point, it is only 1.7 miles wide, making it the perfect hub for piracy in the region. Untold number of vessels navigates this strait annually, given that it is the shortest sea route between Persian Gulf suppliers and the Pacific Rim. If they were obstructed, all this traffic would have to be rerouted at the risk of adding inflationary pressure to an already periled world economy.

For many decades, piracy and theft and hijacking were main threats, but in 2018 according to the International Maritime Bureau (IMB), piracy and hijacking at sea was down from 3 to zero in the Strait of Malacca. In fact, the last incident in this strait was recorded in 2015. This decline can largely be attributed to the regional ‘Eye in the Sky’ (EiS) scheme initiated by Indonesia, Malaysia, Thailand and Singapore. This program keeps a ‘coordinated eye’ over the strait.

The challenge in this Strait is to keep this good work up without any support, financial or otherwise, from Japan, China and the US. It is said that the concerned four Asean (Association of Southeast Asian Nations) member countries turned down offers of help from Washington, Tokyo and Beijing, even after the September Eleventh Terrorist Attacks.

 It can be argued that their refusal to internationalize the strait (to allow other countries apart from themselves to conduct maritime security) does not sit well with the US and Japan. However, both Japan and America are gradually accepting the idea and gaining confidence, like other ASEAN countries have done, that the four states have what it takes to ensure the security of the Malacca Strait.

Albeit, these ASEAN countries’ current state practices suggest some contention with Article 45 of UNCLOS, which prohibits the suspension of innocent passage in straits that are used for international shipping. All the ASEAN countries assert, as they did during the negotiations of UNCLOS, that they possess full autonomy, including navigational authority, over the Malacca Strait.

The challenge is to keep the piracy rate at zero and to ensure that these littoral states do not become exorbitantly parochial over the strait at the expense of transit-navigation. Given that other countries possess no policing powers within these ‘regional waters’ the four littoral states of the Malacca Strait must continue to work hard to maintain Malacca as a ‘trouble-free strait’.

map g2

Google Photo

 

The Suez Canal

Essentially, canals can be seen in the same fashion as natural waterways, but if they link two or more international trade routes, they are required to allow freedom of passage. Hence, the 1977 Panama Canal Treaty and the 1957 Suez Declaration affirm Panama’s and Egypt’s intentions to grant freedom of passage through their respective canals.

The Suez Canal connects the Mediterranean Sea to the Red Sea. For many years the West held sway over Egypt and its canal, but it would appear that the situation is changing – and changing rather fast. Until very recently, the challenge for the international community was to find a way to help Egyptians ‘manage their ‘Arab Spring revolution’ in a manner that did not jeopardize the flow of goods through the Suez Canal, while keeping a credible option to intervene militarily to safeguard and secure this part of the global sea lines of communication – thereby protecting the vital interests of international trade.

  Panama Canal

In 1903, President Theodore Roosevelt of the United States urged Panamanian rebels to secede from Colombia. They did.  And his government recognized their newly formed government promptly and signed an agreement to construct the Panama Canal. These facts are unassailable.

The US managed the canal upon its completion in 1914 until it was handed over to Panama in 1999, as a part of the Torrijos-Carter Treaty, which bounds both countries to defend the ‘peaceful transit’ of ships. Besides its ‘clogged’ status, there has never been a major security threat against this chokepoint.  A major project to enlarge this shortcut that joins the Atlantic and Pacific oceans was opened a little over 2 years ago. And it is being termed a “marvel that ushered in a New Era of Global Trade”.

The summation of this paper is that chokepoints are restricting, narrowed, interconnected waterways that test the skills of a captain and the navigability of his ship. Many such bottlenecked passages are bordered by politically unstable states, a reality that tends to lend itself to military grandstanding, intimidation and threats.

Yet, because of their cardinal function (joining major bodies of water), chokepoints remain necessary and significant features of the global economy and a great facilitator of freedom of navigation. In essence, a few transit chokepoints are the backbone of international trade and the free movement of ships, the disruption of which could severely jeopardize global food, energy supplies and international security, given that vessels would need to travel additional thousands of miles to reach their designations.

Even though alternative shipping routes (for example, a Nicaraguan Canal, or a Northwest Passage) have been talked about for years, currently, no realistic substitutes have emerged. This fact grants credence and urgency to the Alfred Mahan doctrine, which urges, if not behoves, the international community to acquire “sea power” and be willing to use it in a bid to deter potential aggressors – and in an effort to ensure that vital chokepoints are kept trouble-free and unhindered.

 

 

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Last modified on Friday, 27 November 2020 11:36
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