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The Persian Gulf Crisis, Ramification for India and Application of UNCLOS

By: Aditya Anand | September 4, 2019
Authored By

Lt Cdr Bharat Singh, Veteran Indian Navy [CCS University]

The Relevance of Strait of Hormuz

The Strait of Hormuz connects the Arabian Sea and the Gulf of Oman to Persian Gulf Strait. The mouth of the Gulf of Oman is approximately 1500 km from Mumbai coast. Gulf of Oman has Iran and Pakistan to its north, Oman to its south and UAE to its west.

The Persian Gulf states comprising Bahrain, Iraq, Iran, Saudi Arabia, Kuwait, Qatar, and UAE have the world’s largest source of petroleum products. The Persian Gulf states produce 25% of the world’s oil and hold 2/3rd of the world’s crude reserve, They also account for approximately 35% of the world’s natural gas reserves.

Historically, it is recorded that since the Indus valley civilization, India has had robust economic and trade relations with Persian Gulf states. Presently India provides most of the working labour force to Persian Gulf states. India’s large Muslim population gave it an advantage over China. Qatar has more than 650,000 inhabitants from India.

Today, India Imports 75-80% of Oil from the Gulf States. Indian cinema and satellite channels are extremely popular among the Arabs and the Indian Inhabitants. By 2019 Indian exports to Persian Gulf states exceeded those of the European Union combined.

The Indian exports to the GCC, worth $41.55 Billion, comprised mostly agricultural and dairy products, garments, jewellery and petrochemicals, with export growth rate pegged at 5.5%. About 15-20 % of total Indian exports go to the Persian Gulf States. India was also Dubai’s largest Trade partner. Imports from Gulf countries to India, until May 2019, amounted to approximately $79.70 billion.

Iran’s Troubled Relations

Iran, a Shia majority Islamic republic state, always had troubled relations with its neighbours.  The Iranian revolution brought about considerable foreign policy change in Iran. Many previous foes became friends and friends became foes. Iranian revolution declared monarchy as anti-Islamic and conflicted with the interest of many Arab league nations.

Khomeini’s view of ‘supporting the oppressed and opposing the arrogant’ created considerable unrest in neighbouring countries. Iran has for long been considered a leader of the Shia Muslim community with its influence in the region ranging far beyond its borders. However, most Sunni Muslim majority state remains wary of and are anti-Iran. Iran’s borders and the territorial dispute led to many neighbouring nations to hold a hostile view of Iran.

The Iraq- Iran war in the 1980s was seen more as Shia vs. Sunni war from a religious context and led to anti-Arabism in Iran.

During the Ayatollah Khomeini’s campaign (1979) Israel was declared arch-rival, an enemy of Islam, and a Satan by Iran. The USA was declared as bigger Satan. In 2000 Israel was called “a cancerous tumour “and Khomeini threatened to wipe out Israel’s landscape from world’s geography.

The next president Mohammad Khatami (1997-2005) declared Israel an illegal state and a parasite. Under Ahmadinejad’s presidency, Iran was involved in a series of covert operation and proxy wars in Israel’s neighbourhood. Iran has always supported Hezbollah fighters against Israel including during the 2006 Lebanon war by manning their posts by Iran’s revolutionary guards.

Iran’s Revolutionary Guards have actively supported Hamas against Israel and have supplied them with arms and ammunition. India and Iran have held mostly conflicting political views. During the cold-war time, when India was relatively close to the Soviet Union; Iran was more aligned towards the USA, primarily because of US support to Iran during the Iran- Iraq war.

During the cold war era, Iran’s close relationship with Pakistan and India’s strong relation with Iraq prevented cementing of mutual ties and coming together. Iran has also supported Pakistan and has consistently opposed India’s stand on Jammu and Kashmir.

Iran’s trade relations with India

India is the world’s third-biggest oil consumer and meets 80 per cent of its crude oil requirements through imports. In 2017-18, Iran was its third-largest supplier after Iraq and Saudi Arabia and met about 10 per cent of the total needs.  India is Iran’s second-biggest buyer of crude oil and has imported about 24 million tonnes of crude oil in the fiscal year ending 2018.

The Federation of Indian Export Organisation has held that Iran holds huge export opportunities in sectors such as agriculture, chemicals, machinery, pharmaceuticals, paper and paper products, man-made fibre and filament yarn and essential oil. Iran’s major exports to India are oil, fertilisers and chemicals while imports include cereals, tea, coffee, spices and organic chemicals.

The Chabahar port in Iran has also been jointly financed by Iran and India. India is also providing financial aid to build a highway in Iran between Zaranj and Delaram (Zaranj-Delaram Highway).  The Chabahar Port, once operational, will give India access to the oil and gas resources in Iran and the Central Asian states. India’s Chabahar Port development plans also compete directly with the Chinese CPEC-BRI initiative, which involves the development of Pakistan’s Gwadar Port in Balochistan.

Iran plans to use Chabahar for transhipment to Afghanistan and Central Asia while keeping the port of Bandar Abbas as a major hub mainly for trade with Russia and Europe. India, Iran and Afghanistan have signed an agreement to give Indian goods, heading for Central Asia and Afghanistan, preferential treatment, including tariff reductions at Chabahar.

Iran’s Nuclear Program

Reports of undisclosed Uranium enrichment activities about the Iranian nuclear weapon program in 2000 had raised several eyebrows around the world. In 2003 IAEA first reported that Iran had not complied with NPT obligation and had not declared sensitive enrichment activities, and of possibilities of enrichment of weapons-grade uranium.

The Security Council imposed sanctions on Iran. Iran’s tense relation with the neighbouring state, hard-line Islamic ideology and threat to wipe out Israel and USA, idea of Islamic nation with Islamic nuclear bomb, and support to Hamas, Hezbollah   and separatist movement in Jammu and Kashmir resulted in Iran being labelled as a significant threat to the world peace and, in some quarters, even to India.

Consequently, in spite of close trade relations, India voted against Iran in the International Atomic Energy Agency resolution in 2005, enabling the matter to be referred to the Security Council for punitive actions against Iran.

A deal was made between Iran and the six world powers US, UK, Russia, China, France and Germany in 2015 to limit Iran’s stockpile of enriched uranium. In return, relevant sanctions on Iran were lifted, allowing Iran to resume oil exports. However, the US pulled out of the deal last year and reinstated sanctions in May 2018 stating that the 2015 deal puts no curb on Iranian ballistic missiles programme and the conditions must be included in the deal.

The US has threatened to sanction any country or entity dealing doing business with Iran or purchasing Iranian Crude with effect from 04 November 2018. The waiver to top buyers of Iranian crude, including India ended on 02 May 2019.  Iran’s crude oil export already has dipped from 2.8 million barrels per day in 2018 to 50,000 BPD.

India has already stopped taking Oil from Iran and has started purchasing Oil from other Persian Gulf countries fearing sanctions from Washington under Countering American Adversaries through Sanctions Act (CAATSA). The US sanctions have resulted in economic meltdown in the Iranian economy and currency and pushed away investors. Inflation in the Iranian economy is soaring.

The Iranians have now scaled back their obligations under the 2015 nuclear deal. Further, Iran has also threatened to block Strait of Hormuz, a key transit of crude oil for other Persian Gulf states, in response to the US response.

Present Developments in Strait of Hormuz

On 13 June 2019, explosions took place on Japanese tanker ships ‘Kokuka Courageous’ and the Norwegian ‘Front Altair’ on Strait of Hormuz. The culprit behind the blasts has not been conclusively proven, though Saudi Arabia and the USA attributed the blasts to Iran, which in turn has charged the USA for orchestrating the incident.

On 20 June 2019, Iran has claimed to shoot down American Global Hawk spy drone by surface to air missile. The Americans have accepted the downing of the spy drown but claimed that the drone was in international air space. President Donald Trump of USA has promised an appropriate response and has begun augmenting the US naval and land forces in the region. There is a sense of deja vu in the air.

All major international airlines have started to alter course around Iranian air space. US Federal Aviation Administration and the Indian DGCA have directed their respective airlines to avoid Iranian airspace under the apprehension that their airliner may be erroneously targeted by either side as tensions and stress levels rise.

On 21 June 2019, India has sent its destroyer INS Chennai and Offshore Patrol Vessel Sunayna to the Persian Gulf to provide maritime security under ‘Operation Sankalp’. Naval Aircraft have also been deployed for aerial surveillance. The Indian Directorate General of Shipping has issued warning to all ships operating in the area to take appropriate precautions.

Threatening possible military strikes, US President Donald Trump on 20 Jun 2019 said Iran made a “big mistake” by shooting down a US drone. The Pentagon said the downing occurred in international air space but Iran’s Revolutionary Guard Corps said the drone had violated Iran’s air corridor.

Washington had already accused Iran of carrying out attacks on tanker vessels in the Strait of Hormuz area, which links the Persian Gulf and the Gulf of Oman, and through which much of the world’s oil passes.

Interpretation of the Current Scenario under Various International Laws

(a)United Nations’ Convention on the Law of the Sea (1982)- UNCLOS

Shooting down of US Spy drone raises important questions of International Law. As per Iran, the US spy drone has entered Iranian air space, while, Lt. General Joseph Guastella of U.S. Air Force’s Central Command has denied Iran’s claims and stated that the drone was never closer to Iran than 21 miles, and released a map and grainy video which allegedly showed the drone’s launch site and the location where it was shot down. It is therefore relevant to understand the concept of the territorial sea, contiguous zone, and innocent passage.

As per Article 3 of the UNCLOS the breadth of the Territorial Sea is 12 Nautical Miles from the baseline. The Article 2 states that the sovereignty of the coastal state extends beyond its land territory and internal waters till adjacent belt of sea, called the territorial sea, it also lays down that sovereignty of the coastal state extends to airspace, sea bed and subsoil of the territorial sea.

According to Article 17 UNCLOS ships of all states coastal or landlocked have right to innocent passage through the territorial sea. However, Article 19 defines the meaning of the innocent passage and prohibits use and display of force, military exercise, threat, displaying weapons, spying and collecting information, acting as a threat to peace, security and defence of the coastal state

If Iran’s claim of violation of its airspace is correct, in the view of article 19, flying off a spy drone cannot be termed as innocent passage. However, If the US’s claim of 21 nautical miles is correct, it is beyond the territorial sea of Iran and within its contiguous zone.

The Contiguous Zone, according to article 33 of the UNCLOS extends up to 24 Nautical miles. i.e starts after 12 NM breadth of the territorial sea, However, the coastal state does not have absolute sovereignty rights over the sea and airspace above the Contiguous Zone. A coastal state may exercise control only to prevent infringement of customs, fiscal and immigration laws.

The article 25 of UNCLOS provides the right of protection of the coastal state, A coastal state may prevent passage from its territorial sea which is not innocent. Article 30 provides that if a foreign warship does not comply with the rules and regulations of the coastal state in territorial seas it may be asked to leave territorial sea immediately.

Article 31 provides that the flag state will bear responsibility and cost of any damage caused by the warship operated for non- commercial purpose. Article 20 of the UNCLOS provides that submarines and underwater vehicles are to surface in territorial water of the coastal states and show their flags.

 

(b) Straits used for International Navigation.

According to article 38 of UNCLOS, all ships and aircraft enjoy the right to transit passage and overflight from the straits. Transit passage would involve continuous and expeditious transit. Article 39 lays down the guidelines for ships and aircraft during transit passage from straits and recommended code of conduct to prevent obstruction to straits.

Article 44 of UNCLOS provides that the states bordering the strait shall not hamper transit passage and there shall be not any suspension of transient passage.

In the light of the above, Iran’s threat of blocking the Strait of Hormuz, and possible mining of the Japanese and Norwegian tankers in the Strait of Hormuz is a violation of the UNCLOS.

Conclusion:

The Sea is a common heritage of mankind. It connects the nations of the world and enables trade and communication. It is also a rich source of marine and mineral resources. Choking ocean passages of the world and airspaces above them can hamper the world economy and disrupt trade. It can bring nations to their knees.

In spite of a plethora of existing international laws, ‘might’ remains ‘right’ in international relations and transactions; and ‘overwhelming might’ more so. A country must be able to defend its sea line of communication and must have a good and strong navy. The Nation that controls the ocean controls the world. Laws are only good as long as they can be enforced. As Austin said, “Law is the command of sovereign, backed by a threat of sanction in the event of non- compliance”.

References:

  1. United Nations Convention on Laws Of the Seas
  2. Dr HO Aggarwal, International Laws, and Human Rights., 21st edition
  3. Malcolm NShaw, International Law, 8th edition
  4. Samreshwar Mahanty, Maritime Jurisdiction, and Admiralty Law in India, 2nd Edition
  5. M Habibur Rehman, International Law of the Sea,
  6. Simon Baughen, Shipping Law, seventh edition.
  7. Himanshu Prabha Ray, Archaeology of Seafaring

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About the Author

Aditya Anand

Aditya is 93.1% sure that he knows Japanese. We think he speaks Japanese in Bhojpuri accent.

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