July 19, 2019

On July 4, British Royal Marines, police and customs agents in the British territory of Gibraltar set off an international controversy when they seized Grace 1, an Iranian oil supertanker flying a Panama flag. United States national security adviser John Bolton hailed the move as “excellent news”; Iran called it an act of “piracy”.

 

Now, the seizure of the tanker was no act of piracy. According to the United Nations Convention on the Law of the Sea, piracy consists of illegal acts “committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed … against a ship, aircraft, persons or property in a place outside the jurisdiction of any state”. The tanker was stopped by a state, not a private crew.

 

However, there are several factors complicating the British action. First, both Britain and Spain claim Gibraltar and therefore its territorial waters. Spain is considering making a complaint to Britain about the incident. The vessel was reportedly seized 2.5 nautical miles off the coast of Gibraltar on the southern tip of Spain, in a designated area where ships take on supplies. Gibraltar, under the British, claims a territorial sea of 3 nautical miles.

 

A second question pertains to the legal justification for the seizure. Britain said the vessel was carrying Iranian oil to Syria in violation of the European Union’s sanctions on Syria. But should the sanctions apply to countries other than EU members?

 

Iran denied that the oil was destined for Syria. British foreign minister Jeremy Hunt showed some flexibility, telling Iran that Britain was concerned about the destination, and not the origin, of the oil – thus distinguishing Britain’s position from that of the US, which has imposed sanctions targeting Iranian oil exports. He said Britain would release the Iranian tanker “if we received sufficient guarantees that it would not be going to Syria”.

 

A third issue is whether the British action violated the law governing international navigation. The Strait of Gibraltar is a strait used for international navigation, which means that all ships are allowed “transit passage”, or freedom of navigation, through it under the UN convention. According to legal expert Donald Rothwell, ships should enjoy transit passage through the Strait of Gibraltar, “including through the territorial sea generated offshore to Gibraltar”.

The EU sanctions are recognised by British law. But so is the Law of the Sea. Is there a possible clash between EU and international laws? But perhaps Britain had cause to believe that the tanker was acting illegally. One report said the vessel “unexpectedly put down an anchor in what the UK regards as its waters”.

 

Then there is the matter of who has legal standing to file a complaint. Currently, it is not clear who is the culprit and who is the victim. Gibraltar police arrested the tanker’s captain, chief officer and two second mates – all Indian nationals – but later released them on bail without charging them.

 

The vessel is listed as managed by a company in Singapore, which might in turn be controlled by Iranians or Iran. Although the ship had “Panama” painted on its hull, Panama had removed it from its registry on May 29. Under the UN convention, if a vessel is suspected of being stateless, it can be boarded to have its nationality verified, but it cannot be seized. All this will have to be sorted out.

 

Meanwhile, the incident has had international consequences: Iran threatened to retaliate in kind, and Britain raised the threat to its shipping in the Gulf to “critical”. The British defence ministry said on July 11 that three Iranian vessels had attempted to intercept a British oil tanker in the Strait of Hormuz; Iran denied the allegation. But the US is now attempting to put together a coalition of the willing to safeguard commercial traffic through the strait. Insurance premiums for vessels entering the Persian Gulf might rise, and so might oil prices.

 

More fundamentally, where Iran and other countries are concerned, the British action signifies an effort by a group of nations to circumvent UN regulations and, by extension, the existing international order.

 

One possible recourse Iran has is to take the case to the International Court of Justice: did the British action violate the UN Charter, which prohibits the use of force in international relations? The verdict would be a test of whether a group of nations can make an international law outside the UN system and enforce it. If the court rules in favour of Britain and the EU, it means that the international order is an illusion – something to be reshaped at will by a small group of influential nations. It would also expose the hypocrisy of the nations which claim to support the existing international order – oh, they do, but only as long as it benefits them.

 

Britain and Iran may eventually negotiate a resolution to this incident, but these broader questions regarding international politics and law will remain.

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China

Link:https://www.scmp.com/comment/opinion/article/3019116/detention-iranian-oil-tanker-test-case-western-hypocrisy-about 

  

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