JURIST Guest Columnist Dr. Barry A. Feinstein of Netanya Academic College School of Law discusses the recent seizure of US naval ships and personnel by Iran…

For more than a year and two months, Iranians held hostage at any given time some 50 to 70 United States diplomats and other citizens after students overran the Embassy of the United States in Iran in November 1979. This prompted President Jimmy Carter to declare the captives as “innocent victims of terrorism and anarchy.” Photographs of the hostages blindfolded were displayed by the Iranians, and the American captives were showcased on Iran’s State television while hooded or blindfolded. British marines, sailors and their vessels were commandeered by Iran while they were engaged in training exercises in June 2004, after the craft had allegedly entered the Iranian part of the Shatt al-Arab waterway dividing southern Iraq and southern Iran. The British personnel were subsequently shown blindfolded on Iran’s State television. In March 2007, British naval personnel and their boats were again seized by Iran, which contended they were trespassing in Iranian waters. Prime Minister of the United Kingdom, Tony Blair, called the Iranian actions “unjustified and wrong“. The humiliation by Iran of the US and its naval personnel in January 2016, is yet another example of its continuing denigration of the US, the UK and their citizens. Iran seized US Navy riverine command boats and their sailors when they purportedly strayed into the territorial sea of Iran due to navigational and mechanical trouble and then proceeded to broadcast pictures of the US sailors kneeling with their hands clasped behind their heads and paraded them on Iran’s State television. There subsequently appeared to be an apologetic undertone on the part of the US regarding the entire incident. I will undertake to examine this recent Iranian seizure of US naval personnel and their vessels as a case study of Iran’s systematic violation of international law.

Under long-standing principles of the international law of the sea [PDF] when applied in an objective fashion to the Iranian seizure in January 2016 of US naval personnel and their vessels, there is nothing for which the US needs to apologize. Iran, on the other hand, clearly violated those same respected principles of international law and has everything for which to apologize. The international law of the sea recognizes the right of each coastal State to a band of sea adjacent to its coast called the territorial sea over which that State is sovereign. Under customary international law, the territorial sea in the past extended out from the coastal State for three nautical miles, and today it is considered to extend out from the coast for twelve nautical miles. At the same time, however, the international law of the sea grants any foreign-flagged vessels (including military ships) the right to navigate through this territorial sea off a State’s coast if they are exercising innocent passage [PDF].

The right of innocent passage means that the US vessels were permitted to be situated in the territorial sea of Iran all the while they were conducting expeditious and continuous passage, according to the 1982 United Nations Convention on the Law of the Sea (to which the US is not a party, yet it does in significant part reflect customary international law), that was “not prejudicial to the peace, good order or security of the coastal State.” First of all, regarding the term “passage,” even if the US vessels were stopped or anchored in Iran’s territorial sea due to force majeure or distress [PDF] caused by engine trouble, or “mechanical problems in their navigation system” as officials in Iran themselves have admitted was the situation, or one of the craft was rendering assistance to the other, as apparently actually occurred, the US boats would still legitimately be considered to have been engaged in “passage.” Next, in order to establish if the passage of the US vessels through Iran’s territorial sea was innocent, assuming of course the veracity of the Iranian allegation that the vessels were indeed located at the time in Iran’s territorial sea, it is necessary to turn to the decision rendered by the International Court of Justice over 65 years ago in the Corfu Channel Case [PDF], according to which the determination of whether the passage of a foreign vessel is “consistent with the principle of innocent passage” depends on “the manner in which the passage was carried out.” Basically, all the while that passage of a foreign ship through the territorial sea takes place objectively in a way that is not threatening the security, peace or good order of the coastal State, or in the terms of the 1982 UN Convention on the Law of the Sea a foreign ship is not engaged in certain specified activities, none of which would appear to be relevant here, it is considered to be carrying out innocent passage. Consequently, under generally recognized principles of the international law of the sea, any subjective feeling or impression on the part of the Iranians that the presence of US ships may have constituted a security threat to Iran is not determinative, since their passage itself was undertaken in a manner that was “consistent with the principle of innocent passage.” Additionally, even if the US boats were passing through Iran’s territorial sea, as military vessels they were in any respect immune from Iranian criminal enforcement jurisdiction. Moreover, if the US boats at the time of their seizure were navigating outside territorial or internal waters, they were permitted to exercise their freedom of navigation, unencumbered by rules relating to innocent passage through territorial seas or restrictions in internal waters.

But can the passage of a warship ever really be considered “innocent,” per se? The previously mentioned Corfu Channel Case in fact involved none other than warships, which the International Court of Justice determined unequivocally do indeed have the right of innocent passage, although this decision dealt with the right of innocent passage of warships through an international strait which was comprised of territorial seas. Furthermore, the international law of the sea allows submarines, most of which are military vessels, to exercise the right of innocent passage if they navigate on the surface of the territorial sea while they show their flag. Thus if one type of warship, a submarine, is permitted by international law to exercise the right of innocent passage, it can be inferred that any other type of military vessel, such as a US Navy riverine command boat, has a similar right of innocent passage through the territorial sea. Beyond that, the headings of the applicable subsections of the relevant international law of the sea treaties describing the right of innocent passage and the conditions under which it may be exercised, refer in an all-encompassing fashion to “Rules Applicable to All Ships.” The US military boats, or any other warships for that matter, certainly belong to the generic category of “All Ships,” every one of which may exercise the right of innocent passage. This conclusion is re-enforced by the headings of subsequent subsections of the pertinent international law of the sea treaties which refer, inter alia, to rules applicable specifically to merchant ships and specifically to warships. Under the international law of the sea therefore warships are entitled to exercise the right of innocent passage.

Consequently, the US owes no apology to Iran for the presence of its military ships in Iran’s territorial sea. It is actually Iran that should apologize to the US for its seizure of US naval personnel and vessels in January 2016, in violation of venerable principles of international law.

Dr. Barry A. Feinstein is a Senior Lecturer in International Law at the Netanya Academic College School of Law in Israel and is a member of the Executive Steering Committee and Board of Governors at the College’s S. Daniel Abraham Center for Strategic Dialogue.

Suggested citation: Barry A. Feinstein, Iran’s seizure of United States naval personnel and vessels, JURIST – Academic, March 16, 2016, http://jurist.org/forum/2016/03/barry-feinstein-iranian-seizure.php.