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Old 01-20-2016, 12:52 PM
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Angry Troubled Waters The swift release of U.S. sailors from Iran is a positive sign, but I

U.S. News 1-15-2016 by Sean R. Liedman
http://www.usnews.com/opinion/blogs/...law?int=a3d208

Title: Troubled Waters

The swift release of U.S. sailors from Iran is a positive sign,
but Iran's navy still acted illegally.

The release of 10 U.S. Navy sailors and their Riverine Command Boats after their detention by the Iranian Revolutionary Guard Corps Navy near Farsi Island earlier this week was hailed as a "sign of warmer relations" and a triumph of diplomacy by both Iran and the U.S. While the telephone diplomacy between Secretary of State John Kerry and Iranian Foreign Minister Javad Zarif clearly prevented escalation and brought an end to the crisis more quickly than previous Iranian detentions at sea, it papered over an important fact: Iranian actions were illegal under customary international law.

The first legal principle that Iran's navy violated was the sovereign immunity of warships from arrest and seizure as delineated in the United Nations Convention on the Law of the Sea Articles 32, 95 and 236 – even if they are in territorial waters. It remains unclear as to how the vessels entered Iranian territorial waters; a sailor cited "engine issues" in one of propaganda videos released by the Iranians, while Secretary of Defense Ash Carter cited navigation error in an interview today. In either case, there is no legal basis to seize the warships and detain the crew, which is how the FARS News Agency reported the incident.

The second legal principle that Iran's navy violated was the right of entry into territorial waters in one of three passage regimes recognized in customary international law and codified in Article 18 of the U.N. convention. If the crews suffered a navigational error, their entry would have been justified as innocent passage, as long as their passage was "continuous and expeditious" and they weren't engaged in any prohibited activities. If they suffered engine trouble, their entry into territorial waters would have been justified as a force majeure, which would have triggered the duty to render assistance by the other U.S. Navy warship and the Iranians under Article 98. Blindfolds are unnecessary in the process of "rendering assistance;" blindfolds are consistent with the process of "seizure" and "detention."

Finally, arbitrary arrest or detention is prohibited under international human rights law as is the transmission of "confession" videos of detainees for propaganda purposes as codified in the International Covenant on Civil and Political Rights.

Adherence to the rule of law has been a cornerstone of U.S. foreign relations with allies, partners, neutrals, competitors, adversaries and enemies alike. Customary international law – as codified in the U.N. convention – is built upon centuries of precedent attempting to establish a just and equitable international order. While the warming of diplomatic relations between the U.S. and Iran is a positive development, the relationship is too broad and expansive to be managed by personal dialogue at the foreign minister level. Adherence by both parties to the U.N. convention and other customary international law will be the key to avoiding future crises, and the U.S. should clearly make this case to Iran through its newly established diplomatic channels.
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Boats

O Almighty Lord God, who neither slumberest nor sleepest; Protect and assist, we beseech thee, all those who at home or abroad, by land, by sea, or in the air, are serving this country, that they, being armed with thy defence, may be preserved evermore in all perils; and being filled with wisdom and girded with strength, may do their duty to thy honour and glory; through Jesus Christ our Lord. Amen.

"IN GOD WE TRUST"
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