Strait of Hormuz is in the eyes of the beholder
Although it’s a well-known fact that the strait is geographically a narrow passage that connects two locations where ships are trying to get, its legal and political status is more complex.
Both the United States and Iran view the Strait of Hormuz – an oil chokepoint through which 20 percent of world’s crude passes – in very different ways. Washington views the Strait of Hormuz exclusively as an international waterway whereas Tehran considers it part of its territorial waters.
The U.S.
views the toll charging of Iranian ships as being illegal. The U.S. president Donald Trump has also described the blockade as a “grave” violation of Iran’s sovereignty.
Expert in international law, I am aware that Iran and the United States are in two very different legal universes in terms of how the international laws govern the Strait. Both are also in a legal universe that is different from the majority of other countries.
The Law of the Sea
It is an international network of laws, conventions, and treaties that establishes the basis for access to and control of oceans. This framework is separate from laws of war, which also apply to the Persian Gulf.
UNCLOS is an important part of the international law of the ocean. It was completed in 1982, and has been in effect since 1994.
The goal is to establish a set of stable zones and locations – such as international straits where all parties can agree on what they are allowed to do. The European Union and 171 other countries have ratified the agreement, but neither Iran nor the United States. Iran signed the treaty but it has not yet been ratified; neither have done so, nor has the United States.
The rules that almost all countries have agreed to cannot be used as the basis for an agreement on how Iran and the U.S. should conduct their war in the Strait.
Iran: The View from Iran
Iran and the U.S. both agree that the Strait of Hormuz, under international law, is an international waterway.
However, they disagree on the type of international waterway it is. They also disagree about the laws and their application.
The Strait of Hormuz, for Iran is a international strait according to international law that predates UNCLOS. This includes the ruling of the International Court of Justice in the Corfu Channel Case of 1949 and the Territorial Seas Convention of 1958.
According to these older standards, foreign ships are entitled to “innocent transit” of international straits. This means, in simple terms, that as long as a vessel is not doing anything and does not harm the coast countries’ security, they must be granted passage.
Iran and Oman are the two countries that border the Strait.
They can therefore make and enforce rules regarding passage. The two countries also retain the right to determine if a passage is “non innocent” and, therefore, not permitted. It does not, however, give them the authority to prevent innocent people from passing.
Tehran, however, claims that it has the legal right to suspend passage in its part of the Strait.
It cites the waters within the waterway as being its territorial sea. The 1958 Territorial Seas Convention, on which Iran bases its legal position, states that innocent passage through a territorial sea that is also an international waterway cannot be suspended.
US Interpretation
According to UNCLOS, for the U.S. the Strait of Hormuz qualifies as an “international strait” requiring a “transit passage”. The United States, which is not a signatory to UNCLOS argues the updated definition of “international strait”, as defined in the UNCLOS agreement should be applied.
By recognizing a “strait” as a newer form of international waterway that requires transit, the balance shifts away from a country’s ability to control the area and towards free navigation.
This standard requires that countries on either side of a strait, such as Iran or Oman (in the case Hormuz), allow both overflights and submarines to operate below the surface. The passage must be “continuous” and “expedient.”
This position has been firmly asserted by the U.S.
through “Freedom of Navigation”, regular patrols in the Strait of Hormuz, and in other straits throughout the world. These patrols represent a clear rejection by the U.S. of any claims made over the ocean which it deems excessive or illegal.
Some of the most prominent legal experts in America, including James Kraska, professor at U.S.
Naval War College and expert on international maritime law, support this basic argument. Naval War College who calls the Iranians’ position “lawfare”. They argue that Iran has to abide by UNCLOS compromises.
“A persistent objector”
The U.S., however, is a worldwide outlier and is one of a few countries – along with the United Kingdom (UK), France, Australia and Thailand – that argue “transit” passage is required.
In this context, custom is defined as a maritime practice that is widely accepted and regarded as legal. When something is deemed to be customary law it will apply to all. You can only avoid a certain custom if you follow the “persistent object rule,” where a nation is exempted from new standards when it consistently opposes them.
Law of the Sea specialists are divided on whether transit is customary. However, legal scholars tend to disagree.
Tehran claims that, even if transit was a customary part of international law, Iran would be a persistent objector and, therefore, this rule does not apply.
Iran has consistently opposed the transit. Iran and Oman both argued against transit and in favor innocent passage at UNCLOS.
Iran reiterated its position when it signed UNCLOS back in 1982. Tehran claims that UNCLOS compromises tie transit to the agreement, and that only ratifying countries can claim transit rights. Neither the U.S. or Iran have ratified the UNCLOS.
Around the Strait of Hormuz, U.S.
Warships are spotted. Yasin Demirci/Anadolu via Getty Images
Troubled waters
Strait of Hormuz is not just about the complex military situation or the economic turmoil.
Underneath the surface is a complex legal situation. The U.S., Iran and the oil-tanker flagging countries are all at odds over the status of this strait.
Each nation wants to avoid creating a precedent in law that would be detrimental to their long-term interest. To make international law work – and to enable trade and reduce conflict – it is necessary to agree on the rules and to commit to following them.
The Strait of Hormuz would only be stable after the war if this were to happen.
To get there requires us to navigate some tricky waters.
