The situation in the Persian Gulf seems to have become more complicated. Recently the Maersk Kensington was “harassed” by apparent warships flying the Iranian flag. Now the Maersk Tigris has been boarded and directed to anchor after Iranian forces fired across her bow. Here are my thoughts about this situation.
One must carefully separate the political from the legal here. Clearly there are substantial political implications with this matter going on and the negotiations the US government and the Iranian government are having as to the Iranian nuclear capability. However, we also must be careful not to equate the two matters. What is happening with the vessels seems on one hand to be a minor matter when compared to the negotiations. On the other hand it is a window into the Iranian state and the Iranian government which if viewed in certain ways is unsettling.
As to Iran, under the Westfalian system of sovereign states as it has evolved since 1648, states have a monopoly on violence against other states. Although this monopoly has been eroded modernly by the rise of asymmetric violence against states and the use of mercenary military forces, forbidden by the original Westfalian concept, the use of state violence to enforce a civil judgment by the Iranian government is at a minimum contrary to the norms of international behavior by convention and custom. Norms are the usual and customary practices of states which have some meaning in international law. Essentially that means that states do not employ state violence to enforce civil judgments. The arrest of a ship for a court judgment, directing it as a result of prior debt unpaid, is a commonplace thing worldwide and is governed by convention as well as domestic laws. It is a civil action with a civil remedy – arrest, seizure, liquidation of the asset and payment of the creditor.
That seems straightforward until the Iranian government got involved here. There seem to be three avenues of state violence in Iran. There is the covert arm of sponsored state terrorism. There are two overt arms. The regular Iranian army is one and is similar to other regularized forces worldwide. This seems to be under state control. Then there is the Republican Guard which seems to be less under state control and more under religious and political control. The Republican Guard, as I understand it, boarded and seized the Maersk Tigris – not the Iranian regular Navy. From this alone and from the delicacy of the ongoing negotiations I think the legitimate government of Iran is losing control of the situation or has lost control to the politico-religious arm of Iran. The message value of the seizure is perhaps as important as the seizure.
This is a Marshall Islands ship. Does the US have an obligation to defend this vessel? The ship is registered in the Marshall Islands. The Republic of the Marshall Islands is in voluntary association or affiliation with the United States. There is a lot of history there but the bottom line is that the US government has said through the State Department that Marshall-flagged vessels will be protected by the US government in a fashion similar to US flag ships unless to do so is against the interests of the United States. I will let the gentle reader decide as to how that works. The real point here is that this is a flag matter not a national security matter for the Marshalls so the United States government is not about to get into defending the Marshall Islands from Iran as I see it. The State Department is very careful not to paint itself into a corner and it is not doing so here.
The ship was not owned by Maersk. It was bare-boat chartered and there are no Americans aboard. That is meaningful perhaps. Usually the bareboat charter stands in the shoes of the owner. I have not seen the charter so I do not know the clauses. It reduces the interest of the government to the extent that the government is now looking at a chattel – a piece of property with an affiliated but not US flag and with no US citizens aboard. This is not a US-registered vessel and there are no US citizens. Because this is a sovereign action by the state of Iran, this is therefore not a Captain Phillips matter – and it never was. The politics surrounding the matter do not warrant the loose talk linking Iran to state piracy as some commentators have observed. What Iran has done is more akin to an act of rudeness in the sandbox, not fistfight.
The US Navy is now guarding US-flag ships in the straits. This is not especially important as I see it. It is more a show of flag and US force and resolve than anything else. Further, most of the US ship cargo is DOD or other government cargo -- so the Navy is merely protecting its own goods and US citizens. Again, I think it is important not to give this more importance than it is due.
Was it clunky of the Iranians? Yes. Did it violate the norms of international law? Yes. Is it indicative of lack of control of the secular Iranian government? Yes. Is it piracy or terrorism. No. Is it state thuggery? Perhaps. Is it a state dumb act? I think it is very much so with little thoughtful consideration of the implications in the medium and long run to Iran.
Copyright © John A C Cartner, 2015. Dr. Cartner is a maritime lawyer practicing in Washington, DC and London. He holds the United States license of unrestricted master and is the author of The International Law of the Shipmaster,(2009)Taylor and Francis, (London). He may be reached at jacc@cflaw,net.
The opinions expressed by Dr. John A.C. Cartner in the ‘Conversations with Cartner’ Video Series and accompanying blogs are the opinions of Dr. Cartner and do not necessarily reflect the views of the staff and management of Maritime TV, or its parent network, TV Worldwide, Inc.