The Hormuz Strait Initiative: Legal Obstacles to Participation
About one-third of total global seaborne traded oil passes through the Hormuz Strait. (Photo: Getty Images)
By Mark J. Valencia

The Hormuz Strait Initiative: Legal Obstacles to Participation

Jul. 08, 2019  |     |  0 comments

The US is proposing a “coalition of the willing” to protect “freedom of navigation” in the Strait of Hormuz. This cooperative protection might take the form of maritime and air surveillance, a “picket line of ships” or military escorts for tankers. At the least, the US argues that nations dependant on oil from the Middle East should protect their own ships.

However, Law of the Sea issues may prevent participation by some countries like China or India because they have the same or similar positions on freedom of navigation as Iran. Indeed, the US often challenges their claims with freedom of navigation operations by US warships and aircraft. Thus, participation in an effort to “protect” shipping in the Strait of Hormuz would undermine their legal position on these issues vis-à-vis the US.

About one-third of total global seaborne traded oil and one-quarter of global liquefied natural gas trade pass through the Strait. It is bordered by Iran and Oman. See below for the map of the Strait from the US State Department.

At some point in their passage into and through the Persian Gulf, all ships including warships apparently must pass through Iranian-claimed territorial sea. The US does not recognize some of Iran’s straight baselines along the Strait, arguing that Iran’s coast is not indented nor fringed with islands in that area as required by the Convention to use straight baselines. But Oman, by formally agreeing to a continental shelf boundary in the southern strait, apparently recognizes Iran’s baseline there.

The US may also not recognize Iran’s claim to disputed islands to the west of the Strait and thus Iran’s territorial waters claimed there from. That means that the US does not recognize the full extent of Iran’s claimed territorial sea in the Strait.

The Strait of Hormuz Map from the US State Department

Oman is one of 167 states that have ratified the 1982 UN Convention on the Law of the Sea.  Neither Iran nor the United States has ratified it. Iran’s position is that only states parties to the Convention are entitled to benefit from the contractual rights created therein. The US maintains that most of the Convention is “customary international law”. But many developing countries argue that the Convention was negotiated as a “package deal” in which they agreed to exchange a liberal freedom of navigation regime, including transit passage and archipelagic sealane passage for maritime powers in return for preferential access and sharing of seabed resources beyond national jurisdiction. In particular, in the negotiations leading to the Convention, the US agreed to a 12 nm territorial sea in exchange for the transit passage regime. There was no such “transit passage regime” before it was formalized in the Convention. The pre-existing regime in the Strait was innocent passage and Iran insists that navigation regime still applies. Moreover, Iran requires prior permission for warships to pass through its territorial sea. Oman recognizes only innocent passage through its territorial waters including those in the Strait as well as prior permission for warships to enter it.

The differences between transit passage and innocent passage are important. Transit passage means the exercise of freedom of navigation and over flight solely for the purpose of continuous and expeditious transit of a strait. It cannot be impeded, hampered or suspended.

Innocent passage is a more restrictive regime. Such passage cannot be prejudicial to the peace, good order and security of the coastal state. If a warship violates the innocent passage regime and, upon notification of the violation, refuses to comply, it can be requested to leave the territorial sea immediately.

Iran also prohibits military activities in its EEZ that are “inconsistent with [its] rights and interests”. Thus, the over flight of a military surveillance drone like the one that was shot down could be prohibited. Of course, the US argues that this would be an abridgement of the freedom of navigation in the EEZ.

Regarding the drone incident, over flight of Iran’s territorial sea without its permission would be a violation of its sovereignty. But even if the drone was in transit passage, according to UNCLOS, it must “refrain from any threat or use of force against the sovereignty, territorial integrity, or political independence of states bordering the strait”. Given the circumstances, spying on Iran’s military may well have been considered preparation for an attack. Some also say the right of self-defense in Article 51 of the UN Charter entitled Iran to shoot down the drone.

Iran is not alone in its interpretations and positions. Indeed, many countries, including in Asia, China, Indonesia, Malaysia, Thailand, Vietnam and Indonesia require permission for foreign warships to operate in their territorial seas. Some like India, Malaysia and Thailand — similar to Iran — have restrictions on military activities even in their 200 nm EEZs.

As it often does, the US is trying to form a coalition of the willing to bypass the UN. The US and its allies should take the issue to the UN Security Council for its guidance and support regarding Iran’s actions. But to unilaterally claim and pursue transit passage for its warships in open defiance of Iran’s maritime claims while refusing to become a party to the Convention appears arrogant and purposely provocative. Another separate issue is that such monitoring could be used to implement US sanctions on countries continuing to purchase oil from Iran.

How to proceed? These are after all Iranian and Omani claimed waters. Thinking out of the US box, one option might be for the concerned outside nations to ask Iran and Oman to ensure the continued status quo in the Strait and support them to do so in any manner they request. Helping such a deal along, the US and Iran could agree to disagree on the navigation issues in the Straits — without prejudice to their legal positions. Iran would help ensure the flow of oil through the Strait but the US would to back off on its provocative FONOPs and intelligence probes in and around the Strait. This would be a win-win for all concerned. Indeed, the current standoff is an opportunity to forge a modus operandi that could calm the situation.

The point is that prospective members of the “coalition” should carefully weigh how their participation might undermine their position on similar issues in their claimed waters.

Leave a Reply

Your email address will not be published. Required fields are marked *