February 07, 2012

The Strait and Narrow

Chatham House published a new study last week examining the
implications of maritime choke points for the global energy market. The study, Maritime
Choke Points and the Global Energy System: Charting a Way Forward
, is
timely considering tensions in the Persian Gulf where Iran has hinted at the
possibility of closing the Strait of Hormuz in response to recent threats
(economic and military) against its nuclear program.

study generally provides a great overview of the challenges associated with
seaborne oil transportation through several vulnerable straits and canals. For
those interested in understanding the nature of China’s Strait of Malacca Dilemma, the
international waterway through which it receives approximately
65 percent of its oil imports
, the report offers some useful insights. In particular,
the authors make an important distinction between the Straits of Hormuz and
Malacca, noting that, “Whereas
there are no alternative maritime routes to the Strait of Hormuz for oil
exports from the Persian Gulf, shipments through the Straits of Malacca and
Singapore could be re-routed, though at additional cost, through other
waterways such as the Lombok Strait
.” Such a distinction may seem
insignificant, but it could have an effect on China’s strategic calculus over
what role it might decide to play in helping keep the Strait of Hormuz open in case
of a closure, including, perhaps, by supporting UN Security Council resolutions or other policies that may seem anathema to Beijing.

The report also reinforces the national security rationale
behind ratifying the Law of the Sea Convention (UNCLOS). According to the
authors, “The
UNCLOS bargain accepted twelve nautical miles as the maximum extent of a state’s
territorial sea but, in order to ensure freedom of navigation through key
international straits, UNCLOS established a regime of ‘transit passage’ applicable
to ‘straits used for international navigation’
.” What is more, the authors
note that “In
signing UNCLOS in December 1982, Iran claimed that the benefits of UNCLOS, such
as ‘transit passage’, did not apply to non-signatory states

The United States would be on much firmer legal ground if it
were party to Law of the Sea. In addition, it stands to reason that the United
States would be able to deflate Iranian challenges to a U.S. right for “transit
passage” should it ever decide to close the Strait of Hormuz on the basis that
it does not recognize the right of non-party states to travel through the
strait – which is not inconceivable. There
will inevitably be those who argue that the United States does not need to
ratify the Law of the Sea treaty to ensure its access to the Strait of Hormuz.
However, to the extent that Law of the Sea provides the United States another
arrow in its quiver, and one that has its basis in accepted international law, there
is no downside to ratifying it.   

The report concludes with a number of policy recommendations
aimed at reducing the vulnerability associated with these maritime choke
points, including developing more cooperative mechanisms between coast states
and reducing the dependence on seaborne energy shipments by investing in
overland energy infrastructure. However, the authors conclude that “The security
of maritime choke points ultimately rests on the observance of international
law, and on the willingness and capacity of interested members of the
international community to enforce it if necessary
.” Once again, the Law of
the Sea treaty seems increasingly important to protecting U.S. interests at