Almost as soon as the news broke that Iran had arrested the 10 sailors, the Navy and Obama Administration were assuring the public that Iran was planning to release the sailors and their equipment soon, the result of improved relations as a result of the recent Iran nuclear deal.
The U.S. has expressed discontent through diplomatic channels over Iran's handling of the incident, the use of the sailors for propaganda and Iran's flouting of international norms, a State Department official said.
"They can say 'You are no longer conducting an innocent passage, get out,'" Allen said. "You expel them — you don't haul them into your port."
In this picture released by official website of the office of Iranian supreme leader on Jan. 24, Supreme Leader Ayatollah Seyed Ali Khamenei greets a group of Revolutionary Guard officers who were involved in the detention of U.S. Navy sailors in Iranian water earlier this month, during their meeting in Tehran, Iran.
Photo Credit: Office of the Iranian Supreme Leader via AP
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."
If the vessel is in distress, it can stop or anchor to make repairs. The nation whose waters the ship has entered has the right to approach the vessel, can render assistance if invited to, but may never board and certainly should not have arrested the sailors and seized the boats, said James Kraska, a professor at the U.S. Naval War College in Rhode Island and an expert in international maritime law.
The Navy clams that one of the boats had mechanical issues and couldn't escape into international waters fast enough, though it's unclear why the other boat didn't just tow them out.the
"The Obama administration's failure to affirm basic principles of international law places our Navy and Coast Guard vessels and the men and women who sail them at increased risk in the future," said Sen. John McCain, R-Arizona, chairman of the Senate Armed Services Committee, in a statement to Navy Times.
But the Admiration pushes back on the notion that the Administration hasn't been tough enough or stood up for sailor's rights on the high seas, citing its immediate response to the crisis in securing the fast release of the 10 sailors and their equipment.
Furthermore, the administration official said, the Defense Department is investigating the incident and couldn't get ahead of those findings.
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."
At issue is the right of innocent passage, which has been in the news a of because of the stand-off between the United States and China of what the U.S. says are China's excessive claims in the South China Sea.
'That's not done'
"Parading those sailors before the media, that's not done under the Geneva Convention, even if you are not at war," Allen said.
"If you are flying UAVs, lighting off military radars or even looking through the big-eyes [binoculars], Iran could claim that was a military operation and the vessel is no longer in innocent passage," said Bryan Clark, a retired commander and analyst with the Center for Strategic and Budgetary Assessments.
"Nobody understands why they did what they did," the official said. "The way they went off course required some notification or approval that they didn't seek."
David B. Larter was the naval warfare reporter for Defense News.