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Monday, Jan. 9, 2012

Legal battle over transiting the Strait of Hormuz

Special to The Japan Times

KANEOHE, Hawaii — The United States and some major European countries are contemplating imposing harsh sanctions on Iran's oil exports if it does not stop its attempts to build a nuclear weapon.

If such sanctions are indeed imposed, Iran has threatened to block the Strait of Hormuz. About 17 million barrels of oil a day or one-third of all oil shipped worldwide pass through the strait. Closing it could cause oil prices to skyrocket.

The U.S. Navy has responded that Iran's threat and any action to try and carry it out are "unacceptable" and "will not be tolerated". This latest development in the political imbroglio between an allegedly nuclear-weapon-seeking Iran and the West stems in part from disputes over applicable law of the sea.

The Strait of Hormuz is 34 nautical miles wide at its narrowest and is bordered by Iran and Oman at this critical point. Oman is one of 162 states that have ratified the 1982 U.N. Convention on the Law of the Sea. The Convention entered into force on Nov. 16, 1994. But neither Iran nor the United States has ratified it.

In 1983, Iran made an "interpretative declaration on the subject of straits." It said that it considers "that only states parties to the Convention shall be entitled to benefit from the contractual rights created therein," including the rights-of-transit passage. It also views international law as implicitly recognizing the rights of "the Coastal States to take measures to safeguard their security interests including the adoption of laws and regulations regarding, inter alia, the requirements of prior authorization for warships willing to exercise the right of innocent passage through the territorial sea." Such prior authorization is not consistent with the Convention.

Oman recognizes only innocent passage through the strait. Upon ratification of the Convention in 1989, Oman declared that "innocent passage is guaranteed to warships through Omani Territorial waters, subject to prior permission."

Although the U.S. isn't a party to the Convention, it insists that the Convention's provisions on transit passage through such straits are customary international law. This is debatable.

Many developing countries — including Iran — 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 sea-lane 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 U.S. supposedly agreed to a 12-nm territorial sea in exchange for the transit passage regime. There was no such "transit passage regime" before it was stipulated and elaborated in the Convention. The pre-existing regime in-territorial waters in straits was that of innocent passage.

There are significant differences between the transit passage and innocent passage regimes. Transit passage means the exercise of freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of a strait. According to the Convention, transit passage cannot be impeded, hampered or suspended.

However, 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.

The U.S. and Iran also have different interpretations of international law regarding Iran's maritime claims in the strait. The Convention allows a coastal state to draw straight baselines along an irregular coastline and to claim a 12-nm territorial sea from these baselines.

Iran claims straight baselines along its coast bordering the strait and from these baselines a 12-nm territorial sea encompassing the northern third of the strait and the inbound designated sea lane. It also claims three islands just west of the strait and 12-nm territorial seas around them encompassing much of the navigable waters and both the inbound and outbound designated sea lanes.

Thus at some point in their passage into and through the Persian Gulf, U.S. warships apparently must pass through Iran-claimed territorial sea under an Iran-claimed innocent passage regime. But the U.S. 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.

That means that the U.S. does not recognize the full extent of Iran's claimed territorial sea in the strait. Moreover, it may not recognize Iran's claim to the disputed islands west of the strait and thus Iran's territorial water claimed therefrom.

The U.S. has deliberately and repeatedly challenged Iran's claims through "operational assertions" of the freedom of navigation. And Iran's options regarding what it perceives as the illegal and provocative behavior of U.S. naval vessels are quite limited.

Iran does not have the naval power to block the strait, and its aging air force would be no match for U.S. and Persian Gulf state fighter jets. But military experts say Iran could wage "asymmetrical warfare" — involving mines and attacks by swarms of small, fast patrol boats. It has also developed small submarines and launched three just in November 2011.

Given their starkly different positions, the increasingly provocative actions and rhetoric by both sides enhance the possibility of an incident that could escalate into a wider conflict. If Iran tries to make good on its threat,the U.S. and its allies should take the issue to the U.N. Security Council for its guidance and support regarding Iran's actions.

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 both arrogant and purposely provocative.

Mark J. Valencia is a maritime policy analyst.

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