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

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Abstract

Some 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.

Full Professor of International Law, Department of Political Sciences, University of Campania ‘Luigi Vanvitelli’; Judge of the International Tribunal for the Law of the Sea.

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Notes

  1. 1.

    For the text of the Accord see SC Res 2231 (2015), https://www.europarl.europa.eu/cmsdata/122460/full-text-of-the-iran-nuclear-deal.pdf. On this issue, Haupt 2016, Joyner 2016, Mahmoudi 2017, Momtaz 2016.

  2. 2.

    SC Res. 1696 (2006), 1747 (2006), 1747 (2007), 1803 (2008), 1835 (2008), 1929 (2010).

  3. 3.

    The EU not only has implemented the sanctions adopted by the UN Security Council but has also imposed autonomous multilateral sanctions on Iran, in particular, restrictions on export of goods such as arms and dual-use goods; restrictions on import of goods such as crude oil, natural gas, petrochemical and petroleum products; financial restrictions sector, e.g. freezing the assets of the Central Bank of Iran and of some Iranian commercial banks; some restrictions in the field of transport; travel restrictions and asset freeze for listed individuals and legal entities. The cancellation of the restrictive measures imposed because of the massive violations of human rights were out of the JCPOA and they are still in force. See, lastly, Council Regulation (EU) No 961/2010 of 25 October 2010, on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 and Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010. On this issue, see Bassiri Trabizi and Hanau Santini 2019.

  4. 4.

    Under the US sanctions regime, several activities have been prohibited, notably, weapon sales, all US assistance to Iran and any trade with Iran, included the US trade in Iran’s oil industry. The sanctions have concerned also certain investments and several financial activities as well as the freezing of the assets of individuals involved with the Iranian nuclear program. For the relevant legislation, see, inter alia, Iran Sanctions Act of 1996 as amended; the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010; Section 1245 of the National Defense Authorization Act of 2011; the Iran Freedom and Counter-Proliferation Act of 2012; the Iran Threat Reduction and Syria Human Rights Act of 2012. Several Executive Orders have implemented the above-mentioned legislation (see at https://www.state.gov/iran-sanctions/). Other sanctions were not involved by the Iranian deal, such as those against Iran’s support for regional armed factions, human rights abuses, efforts to acquire missile and advanced conventional weapons technology, and the Islamic Revolutionary Guard Corps. On the matter see Congressional Research Service, Iran Sanctions, updated April 2014, 2020 at https://fas.org/sgp/crs/mideast/RS20871.pdf.

  5. 5.

    SC Res. 2231 (2015) which has endorsed the Iranian Agreement. The lifting of the restrictive measures against Iran should have occurred when Tehran had completed its commitments under the deal that restricted its nuclear activities. Iran met the requirements in the 16 January, 2016 and the sanctions have been removed except some restrictions on ballistic missile activities and arms sales. 

  6. 6.

    See Remarks by President Trump on the Joint Comprehensive Plan of Action (8 May 2018), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-joint-comprehensive-plan-action/.

  7. 7.

    In particular, the United States progressively reintroduced e.g. sanctions on Iran buying or acquiring US dollars, sanctions on Iran’s ports, as well as the country’s shipping and shipping sectors, sanctions on buying petroleum and petrochemical products with a number of Iranian oil companies; sanctions on foreign financial institutions transacting with the Central Bank of Iran and other Iran ian financial institutions; sanctions on the provision of certain financial messaging services to Iran’s central bank and other Iranian financial institutions; sanctions on the provision of underwriting services, insurance, or reinsurance; sanctions on Iran’s energy sector; and sanctions on certain Iranian individuals The US economic sanctions include also a set of secondary sanctions targeting non-US person which do business with individuals, entities and organizations in Iran. It is worth mentioning, inter alia, menu-based sanctions on non-US persons who: knowingly engage in significant transactions in Iranian petroleum, petroleum products, or petrochemical products; provide underwriting services, insurance, or reinsurance for sanctionable activities with or involving Iran; or provide specialized financial messaging services to the Central Bank of Iran; are part of the Iranian energy, shipping, or shipbuilding sectors; knowingly engage in the sale, supply, or transfer to or from Iran of certain materials, including graphite, raw, or semi-finished metals such as aluminium and steel, coal, and software for integrating industrial processes ((https://www.treasury.gov/resource-center/sanctions/Programs/Documents/jcpoa_winddown_faqs.pdf and US President Executive Order 13846 of August 6, 2018, Reimposing Certain Sanctions With Respect to Iran, at https://www.treasury.gov/resource-center/sanctions/Programs/Documents/13846.pdf).

  8. 8.

    Specifically, the European Union enacted the Commission Delegated Regulation (EU) No 2018/1100 (the Re-imposed Iran Sanctions Blocking Regulation), which supplements the Council Regulation (EC) No 2271/96 (as amended, the EU Blocking Statute). In particular, the Blocking Statute prohibits EU persons or entities from complying with certain of the US extraterritorial sanctions. An associated licensing derogation is also provided for which can be obtained if it can be demonstrated that a serious damage would arise for the applicant and/or the EU in case the applicant is not allowed to comply with the US legislation. Moreover, the Blocking Regulation protects EU persons and entities by providing for an assurance that no US court judgment or administrative determination against an EU person or entity, implementing certain US sanctions, will not be enforced in an EU court; and allowing any EU person or entity suffering damage as a result of a person complying with the listed US sanctions to recover those damages from that person. For more information see European Commission at https://ec.europa.eu/info/business-economy-euro/banking-and-finance/international-relations/blocking-statute_en.

  9. 9.

    Asada 2019, at 39. In March 2019, Iran announced that it registered its counterpart to INSTEX.

  10. 10.

    See Arms Control Association 2019.

  11. 11.

    Islamic Republic News Agency, Iran takes final step by abandoning JCPOA restrictions, at https://en.irna.ir/news/83622509/Iran-takes-final-step-by-abandoning-JCPOA-restrictions.

  12. 12.

    In general, US sanctions against Syria consist in the prohibition of numerous financial transactions and of the entry of Syrian funds into the United States. Moreover, following the US President Executive Order 13582 of 17 August 2011, Blocking Property of the Government of Syria and Prohibiting Certain Transactions With Respect to Syria, https://www.treasury.gov/resource-center/sanctions/Programs/Documents/syria_eo_08182011.pdf, US persons are prohibited from investing in Syria; from exporting directly or indirectly, selling or supplying any services to Syria; from importing to the US of petroleum products of Syrian origin; as well as from involvement in the facilitation of a transaction by a foreign person that would be considered illegal by a US person. Concerning the EU sanctions against Syria, they include oil embargo, restrictions on certain investments, the freezing of the assets of the Syrian Central Bank held in the EU, export restrictions on equipment and technology which could be utilised for the repression of human rights as well as on equipment and technology to monitor or intercept internet or telephone communications (Council Regulation (EU) No 36/2012 of 18 January 2012, concerning restrictive measures in view of the situation in Syria and repealing Regulation (EU) No 442/2011. See on these measures Orakhelashvili 2016.

  13. 13.

    The year 2019 first saw the shooting down of a US drone by Iran. For Iran it was in the Iranian airspace, while for the United States it was in the international airspace. Subsequently a drone and a missile hit the facilities of the Oil Company Aramco in the town of Abqaiq in Saudi Arabia. The United States, but also France, Germany and the United Kingdom attributed the attack to Iran and condemned it.

  14. 14.

    United Nations Convention on the Law of the Sea (30 April 1982), 1833 UNTS 3.

  15. 15.

    Remarks by Tommy T B Koh, https://www.un.org/depts/los/convention_agreements/texts/koh_english.pdf.

  16. 16.

    SC Res. 661(1990) and (in the field of migrant smuggling) 2240(2015).

  17. 17.

    See Soons 2001, at 317.

  18. 18.

    On flag States, see Barnes 2015 at 304 ff.

  19. 19.

    Agreement for the Implementation of the Provisions of the UN Convention on the Law of the Sea of 10 December 1981 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of 1995, Articles 21 and 22.

  20. 20.

    E.g. Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 2005. For comments, see Caracciolo 2014, at 109 ff.

  21. 21.

    Leanza and Graziani 2004, at 182 ff., Allen 2019, at 400.

  22. 22.

    Allen 2006, at 81, Guilfoyle 2009, at 25, Saito 2018, Leanza and Graziani, 2004.

  23. 23.

    See supra Footnote 5.

  24. 24.

    NBC News at https://www.nbcnews.com/news/military/officials-u-s-navy-seizes-suspected-iranian-missile-parts-set-n1096096.

  25. 25.

    Schoenbaum 2012, at 1–12, Dubner and Arias 2017, at 111, Anderson 198182, at 323 ff., Rayfuse 2004, at 53, Attard and Mallia 2014, at 261–262.

  26. 26.

    According to O’Connell 1984, at 755: ‘[…] a ship without nationality is not necessarily a ship without law, but it is a ship without diplomatic protections’. See also Leanza 1988, at 440 ff.

  27. 27.

    See Permanent Court of International Justice, SS Lotus case (France v. Turkey), Judgement 7 September 1927, PCIJ Rep Series A No 10, at 18–19.

  28. 28.

    See McLaughlin 2016, at 483 ff.

  29. 29.

    According to Tanaka 2012, at 20 ff, in the territorial sea ‘[…] the coastal State can exercise complete legislative and enforcement jurisdiction over all matters and all people in an exclusive manner unless international law provides otherwise’.

  30. 30.

    Of 18 January 2012, in OJEU L16/1 of 19.01.2012. The Baniyas refinery is owned by the General Corporation for Refining and Distribution of Petroleum Products, a section of the Syrian Ministry of petroleum.

  31. 31.

    The US State Department explained that the United States had ascertained that the ship was helping Iran’s Islamic Revolutionary Guard Corps, which, according to the US, is a terrorist organization. Therefore, the Department of State made clear that ‘In the case of the M/T Grace I, we will continue to act consistent with our existing policies concerning those who provide material support to the IRGC’. See Faulconbridge and Trujillo 2019.

  32. 32.

    See supra n 11.

  33. 33.

    Illueca 2019.

  34. 34.

    Secondary sanctions—which have been utilized by the United States against Iran –complement other sanctions regimes and target non-US entities and individuals which do business with entities and individuals in Iran. Secondary sanctions can prohibit US persons and entities from doing business with the targeted foreign entity or individual or impose them certain restrictions (e.g. financial) in the United States. To increase the economic pressure to certain already targeted countries (Russia, Iran and Cuba) the US sanctions programs also contemplate sanctions which try to discourage companies and individuals of third parties to do business with the targeted countries. These sanctions are extraterritorial since they apply to companies and individuals outside the United States. The European Union does not resort to secondary and extraterritorial sanctions and strongly contrast the latter.

  35. 35.

    Gibraltar adopted the Sanctions Act on March 2019, at https://www.gibraltarlaws.gov.gi/legislations/sanctions-act-2019-4573 and Sanctions Regulations on July 2019, at https://www.gibraltarlaws.gov.gi/legislations/sanctions-regulations-2019-4640.

  36. 36.

    In 2018, the UN General Assembly reiterating its long-standing appeal to Spain and the United Kingdom to hold talks on the question of Gibraltar (see Resolution UNGA 2070 (XX), adopted on 16 December 1965, which qualifies the Rock as a non-autonomous territory), adopted Resolution 73/519 which called on the Governments of Spain and of the United Kingdom to reach a final settlement of the issue, in the light of the relevant UN General Assembly resolutions and applicable principles, and in the spirit of the United Nations Charter. On the dispute between UK and Spain on the waters off Gibraltar coasts, see Trinidad 2015, at 101 ff.

  37. 37.

    Some commentators held that the seizure of the Grace 1 was four miles from the Rock’s coasts and so in Spanish territorial waters but no protest came from the Spanish side. The Gibraltar Government on the contrary sustained that the boarding took place within two miles from its Eastern coasts.

  38. 38.

    The customs territory of the Union is defined in Article 4 of the Union Customs Code.

  39. 39.

    Leanza 1993, at 176–177, Yand 2006, Peters 2012, at 306 ff.

  40. 40.

    Quadri 1939.

  41. 41.

    In particular, Article 27 UNCLOS (on criminal jurisdiction) refers to cases ‘[…] if the consequences of the crime extend to the coastal State; […] if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea […]’. The contents of Article 28 (on civil jurisdiction) is more vague, stating that ‘[…] the coastal State may not levy execution against or arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State’.

  42. 42.

    Article 17 establishes that ‘ships of all States’ enjoy the right of innocent passage. Since flagless ships do not fall in that category, it is argued that they do not enjoy the right of innocent passage.

  43. 43.

    See Hartwig 2019.

  44. 44.

    Rothwell 2009, Valencia 2019.

  45. 45.

    Van Dyke 2009, at 177 ff.

  46. 46.

    Source from the US Energy Information Administration, at https://www.eia.gov/todayinenergy/detail.php?id=39932.

  47. 47.

    For details, see Deutsche Welle at https://www.dw.com/en/tanker-attacks-in-the-gulf-evidence-or-warmongering/a-49295596.

  48. 48.

    For details, see the Time magazine at https://time.com/5631460/stena-impero-britain-iran/.

  49. 49.

    For details, see Deutsche Welle at https://www.dw.com/en/britain-calls-stena-impero-oil-tanker-seizure-hostile-act-as-iran-releases-video-of-capture/a-49676942.

  50. 50.

    See for details RadioFreeEurope at https://www.rferl.org/a/iran-says-confiscated-british-tanker/30065419.html.

  51. 51.

    Ntovas 2014, at 71 ff.

  52. 52.

    Some scholars (Mahmoudi 1989, at 157 ff.) have keenly demonstrated the customary nature of the regime of passage in transit. Others have excluded it, inter alia, López Martín 2010, at 193 ff, Caminos and Cogliati-Bantz 2014, at 42 ff. See also on the point Jia 2017, at 298 ff.

  53. 53.

    Judgment of 24 March 1948, I.C.J. Reports 1948, 15. The Court in the Judgement of 15 March 2001 in the case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (I.C.J. Report 2001, 40) has confirmed the customary nature of the right of innocent passage through straits (para 223).

  54. 54.

    Convention on the Territorial Sea and the Contiguous Zone (29 April 1958), 516 UNTS 205.

  55. 55.

    Text of the Iranian Declaration at https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en#EndDec.

  56. 56.

    Ulfstein 2019, Oral 2012, Caffio 2010, at 203 ff.

  57. 57.

    Text at https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/IRN_1993_Act.pdf. It is also worth reminding that at the signature of the UNCLOS, Iran made a declaration in which it affirmed to interpret the contractual rights created by the Conventions, such as the right to the passage in transit, only to the benefit of States parties.

  58. 58.

    Oral 2012, who comments that interference aimed at responding to unilateral sanctions or other similar measures would not be justified.

  59. 59.

    E.g. UNSC Res. 2397(2017) on North Korea nuclear proliferation, in the section on “Maritime Interdiction of Cargo Vessel” admits enforcement by non-flag States to vessels only in State’s ports or territorial sea (para 9). On this point, see: Soons 2000, at 205–211, Goldrick 2006, at 201–214, Allen 2019, at 406.

  60. 60.

    E.g. UNSC Res. 2240 (2015) on the fighting against the smuggling of illegal migrants off the Libyan coasts. On the prevalence of the UNSC resolutions on other international law obligations, see Orakhelashvili 2007, at 143–195.

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Caracciolo, I. (2021). Enforcing Sanctions on Iran At Sea: Tensions over the Interpretation and Application of the Law of the Sea. In: Black-Branch, J.L., Fleck, D. (eds) Nuclear Non-Proliferation in International Law - Volume VI. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-463-1_18

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