Rhode Island, the Strait of Hormuz is in the eye of the beholder.
While everyone agrees that, geographically, it is a strait—a narrow sea passage connecting two places a ship wants to go—its political and legal status is quite complicated.
The United States and Iran have very different views on the strait, a chokepoint through which 20% of the world’s oil passes. Washington considers the Strait of Hormuz a purely international waterway, while Tehran considers it part of its territorial waters.
It can be seen that Iran’s collection of tolls on ships is considered illegal by the United States.
Likewise, U.S. President Donald Trump’s blocking of the channel was a “grave violation” of Iran’s sovereignty.
As an expert on the law of the sea, I know part of the problem is that the United States and Iran live in two different worlds when it comes to international law governing the strait. To further complicate matters, both are in a different legal system than most other countries in the world.
law of the sea
The Law of the Sea is the network of international laws, practices and agreements that provide the basis for access to and control of the oceans.
This framework is distinct from the laws of war, which are also relevant to the situation in the Persian Gulf.
The United Nations Convention on the Law of the Sea (UNCLOS) is an important part of the law of the sea. Completed in 1982 and effective since 1994, it aimed to create a stable series of areas and places (such as international straits) where everyone agreed on who could do what.
The deal has been ratified by 171 countries and the European Union, but Iran and the United States have not. Iran has signed but not ratified; the United States has done neither.
That means rules agreed to by nearly every country in the world cannot serve as the basis for an agreement on how the United States and Iran should manage their actions in the Strait during the current war.
perspective from iran
Iran and the United States both agree that the Strait of Hormuz is an international strait under the law of the sea, but there is no consensus on what kind of international strait it is. In addition, they disagree on existing relevant laws and how they are applied.
For Iran, the Strait of Hormuz is an international strait regulated by international law prior to the United Nations Convention on the Law of the Sea, specifically the International Court of Justice’s rulings on the 1949 Corfu Strait Case and the 1958 Convention on Territorial Seas.
These old standards provided that foreign ships had the right to “innocent passage” through international straits. In other words, this means that if a ship is simply passing through, not doing anything else and not compromising the security of the coastal state, it must be allowed to pass.
This gives Iran and Oman, another neighbor in the strait, the right to set and enforce some rules of passage, such as safety and environmental rules. They also have broad discretion to decide whether a passage is “not harmless” and therefore allowed. But this does not give them the right to obstruct innocent passage.
However, contrary to old standards, Tehran claims the right to “suspend” passage through half of its strait and calls the waters its territorial waters. This violates the 1958 Territorial Sea Convention, which Iran relies on for legal support, which stipulates that innocent passage cannot be suspended when the territorial sea is also an international strait.
American interpretation
For the United States, according to the United Nations Convention on the Law of the Sea, the Strait of Hormuz is an international strait that requires “transit passage.” Although the United States is not a member of the United Nations Convention on the Law of the Sea, it believes that the agreement’s updated concept of “international straits” should apply.
Understanding waterways as new “international straits” requiring transit passage shifts the balance away from the control of coastal states toward free navigation.
Under this standard, countries bordering the strait – such as Iran and Oman in the Strait of Hormuz – must also allow overflights and submarines below the surface. It must be allowed as long as it passes “continuously and expeditiously.”
The United States asserts this position forcefully at sea through regular “freedom of navigation” patrols in the Strait of Hormuz and other straits around the world. These patrols are an apparent rejection of maritime claims that the United States deems illegal or excessive.
The basic U.S. argument is supported by some prominent legal scholars, such as James Kraska, professor of international maritime law at the U.S. Naval War College, who denounces Iran’s position as “legal” and believes that Iran must abide by the compromises made in the United Nations Convention on the Law of the Sea.
“Stubborn Opponent”
But the United States is a global outlier in this regard, and one of the few countries that considers “transit passage” a customs requirement – others include the United Kingdom, France, Australia, Thailand and Papua New Guinea.
In this sense, custom is established if maritime practice is considered consistent and its legitimacy is supported by broad consensus. If something is considered customary law, it applies to everyone. The only way to prevent a custom from applying to you is through a “persistent objection rule,” which exempts a country from a new standard if it demonstrates consistent opposition to it.
Legal scholars are divided over whether transit passage is customary law – although experts on the law of the sea tend to believe it is not.
Tehran argued that even if transit passage is customary international law, Iran is a “consistent objector” and therefore the rule does not apply to them.
To be sure, Iran’s opposition is consistent. During the negotiations on the United Nations Convention on the Law of the Sea, both Iran and Oman advocated innocent passage and opposed transit passage.
Iran reiterated its views when it signed the United Nations Convention on the Law of the Sea in 1982. Tehran contends that because transit passage is tied to a compromise under the United Nations Convention on the Law of the Sea, only countries that ratify the treaty can claim transit passage — which neither the United States nor Iran has ratified.
Crossing murky waters
The complex military situation and economic chaos are only part of the story in the Strait of Hormuz.
Behind it is a complex legal situation. Not only do the United States and Iran disagree on the legal status of the strait, but the country hoisting the tanker — and therefore the country responsible for the tanker — must also live up to its own commitments and views under the law of the sea.
Every country wants to avoid legal precedents that run counter to its long-term interests. But for international law to work – reducing conflict and promoting trade – it requires agreement on existing rules and a shared commitment to abide by them.
Only in this way can the Strait of Hormuz achieve a stable post-war status. How we get there, however, requires overcoming some very tough issues. Binh Duong
Binh Duong
This article was generated from automated news agency feeds without modifications to the text.
