Last month President Carter announced that "any attempt by an outside force to gain control of the Persian Gulf region will be regarded as an assault on the vital interests of the United States." It was immediately apparent that this formula meant either too much or too little, or that rhetoric had taken control of our foreign policy again. So informed spokesmen began giving more or less official interpretations to the press, generally agreeing that the President meant merely that the United States would act in the Gulf area only with the permission or on the invitation of some other country in the area with the requisite standing to act.
To an international lawyer, it is comforting to see some acknowledgment of the issue of standing. But possible lack of American standing is only one of many legal facets to a delicate situation in which strict attention to US rights and legal powers is truly vital to long-range American interests.
Aside from some bluster by Clark Clifford in India, the interpretations so far seem to deny American rights in the Gulf other than rights of collective self-defense that rest on agreements and threats against somebody else. This position seems far too modest.
The Straits of Hormuz are international waters in which American vessels have undoubted rights of innocent passage and, although there is not yet full agreement at the United Nations Conference on the Law of the Sea, the United States has clearly assertable rights of "straits passage" for its vessels. "Straits passage" is the current jargon meaning completely free passage for warships as well as merchant vessels.
The Gulf is fully subject to exclusive economic zone claims, but those claims cannot legally deprive states of historic navigational rights that do not involve fishing or other local resource exploitation. American vessels, both warships and merchant ships, have direct rights of navigation there.
Moreover, American flag vessels, even in foreign ports, have special status at international law which limits the jurisdiction of the port state. While warships cannot enter foreign ports without permission of the local authorities, a permission that traditionally carries with it an exemption from any exercise of foreign jurisdiction over the vessel, merchant ships can enter foreign ports unless those ports are legally closed to them. Once in, they can be arrested. But, even if they are arrested, there are strict limits on the legal rights the port state can assert over them. If a ship is confiscated, a claim by the flag state could well result in more direct action against the seizing state if the legal situation is properly analyzed and acted on.
Further, American property, including oil purchased at the wellhead by American corporations, must be respected. Even in time of war between states in the Gulf area, neutral noncontraband property on board a ship of a belligerent cannot simply be confiscated by the other belligerent. The rules are complex regarding neutral property on land and at sea, but they rest on logic and experience which are in the main accepted by non-European as well as European states.
Contract rights are rights protected by international law also, and an act of a foreign state in confiscating even a mere unpaid debt can give rise to international claims and other actions to protect the rights that have been taken or ignored.
Of course, whether to act in any specific way to assert US rights, and how to act once action is decided on, are questions of policy within the bounds of law, just as the decision to plea-bargain in a criminal case is a question of policy within the law decided in the first instance by a prosecuting authority. And at international law the United States is not a judge or prosecutor but a claimant, so an eye must be kept on the persuasiveness of the justification if American diplomatic or forcible action is to have beneficial effects on American long-range interests.
This means that steady and top-level advice as to the legal rights and powers of the United States is urgently needed, and references to international law or American interests regardless of the law should be avoided unless preceded by a meticulous analysis of the diplomatic costs of overassertion and underassertion. We have extensive legal rights and extensive legal powers to defend those rights; neither our rights nor our legal powers should be underestimated. There are limits to our rights, and we should not be misled into defending the asserted rights of others without carefully examining questions of standing and our legal powers.
It seems a pity, and potentially a tragedy, that the President, with all the expertise of the bureaucracy available to him, cannot formulate an American policy with the clarity and precision that is so obviously required.