Faculty Notes Julian Ku, Maurice A. Deane Distinguished Professor of Constitutional Law, Faculty Director of International Programs

Published on January 29, 2016 | by LawNews

Prof. Julian Ku’s Lawfare Post on Innocent Passage and Iran’s Detention of US Sailors Cited at Length in Navy Times and The Daily Caller

Experts: Iran’s arrest of U.S. sailors broke international law
By David Larter
Navy Times
Jan. 28, 2016

Excerpt:

The Law of the Sea rules also give vessels in distress the right to stop or drop anchor to make repairs. In this case, Iran could have approached to offer assistance, but they had no right to board and should not have arrested the sailors and seized the high-tech riverine command boats, said Kraska, the Naval War College expert. Iran’s Revolutionary Guard Corps proceeded to rifle through the 49-foot-long boats for secrets and technology.

Iran does not claim the U.S. was doing anything against the law in its territory, but that the sailors should have asked permission before entering Iran’s waters, according to Julian Ku, a Hofstra law professor who wrote on the incident for the influential legal blog “Lawfare.”

“Iran’s interpretation of the innocent passage doctrine finds little support under the text of UNCLOS and it has been squarely rejected by most major seafaring nations, including both the U.S. and the then-Soviet Union,” Ku wrote. “Indeed, such a restrictive reading of innocent passage effectively undermines the whole purpose of the doctrine.”

The outcome of this legal issue may lay an important precedent. The innocent passage is also the right the U.S. Navy has used to dispute what the U.S. says are China’s outlandish claims to the South China Sea, and was the authority under which they dispatched destroyer Lassen in late 2015 to patrol near China’s man-made islands.

If the U.S. doesn’t stand up for its rights in the Persian Gulf, it may have difficulty enforcing rights elsewhere, including in the Asia-Pacific, Ku argues.

“The U.S. cannot allow this incident to set a precedent for other countries,” Ku wrote. “What if China seized a U.S. vessel conducting innocent passage in its ‘territorial waters’? At the minimum, the U.S. should do far more to clarify whether it views the seizure and detention as legal. Leaving its position on this issue unsettled cannot help — and is likely to seriously hurt — its long-held commitment to uphold freedom of navigation.”

Read the full article.


Legal Experts: Iran Violated International Law By Arresting US Sailors
By Jonah Bennett
The Daily Caller
Jan. 28, 2016

Excerpt:

“This should be very concerning for the Navy community,” James Kraska, who teaches at the U.S. Naval War College, told Navy Times. “This says that U.S. vessels don’t have innocent passage and that their sovereign immunity is not respected.”

Kraska cited the United Nations Convention on the Law of the Sea. Although the U.S. has not ratified the agreement, it does abide by it. Iran hasn’t ratified the document either, but it has signed it. According to Kraska, UNCLOS would have allowed the IRGC to query the vessels and even expel them, but arrest was far beyond the pale.

A potential response to this argument could be that the vessels did not move through Iranian waters continuously and expeditiously because they suffered navigational failure, but even in that case, UNCLOS allows vessels in trouble the right to stop.

“Iran’s interpretation of the innocent passage doctrine finds little support under the text of UNCLOS and it has been squarely rejected by most major seafaring nations, including both the U.S. and the then-Soviet Union,” Julian Ku, a law professor, wrote on the blog Lawfare. “Indeed, such a restrictive reading of innocent passage effectively undermines the whole purpose of the doctrine.”

Read the full article.


Read Professor Ku’s Lawfare post.

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