Strait of Hormuz; legal aspects of the new arrangements in light of aggression, fundamental change of circumstances
By Kazem Gharibabadi
Iran’s deputy foreign minister for legal, international affairs
For a long period, maritime navigation through the Strait of Hormuz did not proceed on the basis of exercising an asserted right, but rather within the framework of an interaction founded upon comity and mutual good faith. Over years, the Islamic Republic of Iran, as the coastal State, facilitated the passage of vessels through a continuous and peaceful practice. However, this practice was never to be understood as an acceptance of a binding legal obligation or as a relinquishment of the coastal State’s sovereignty and sovereign rights over its own waterway. Nevertheless, today, due to a fundamental change of circumstances and the substantial transformation of security, the continuation of such unilateral comity is no longer possible, and the adoption of appropriate measures based on respect for the sovereign rights of the coastal State has become an inevitable necessity.
Indeed, the Strait of Hormuz has long been regarded as a sensitive and strategic waterway—a status that has now been redefined in light of the repeated acts of aggression by the Zionist regime, the United States, and certain neighboring States in the region. Some neighboring States, by placing their territory at the disposal of aggressors for commission of acts of aggression against the Islamic Republic of Iran, have become complicit in such aggression. This conduct itself constitutes an act of aggression as defined by General Assembly Resolution 3314 (XXIX) and, consequently, those States have assumed the heavy burden of responsibility for this act, which is a manifest violation of the Charter of the United Nations and the peremptory norm of “prohibition of aggression”. As a result of this aggression and these hostile acts, the security and safety of the region, and in particular of the Strait of Hormuz, have suffered severe and widespread harm. It must not be forgotten that the aggressor and its regional military bases were supplied and equipped, inter alia, through that same strait. Therefore, preventing the recurrence of such internationally wrongful acts is an undeniable imperative.
In the wake of the intensification of such acts, the circumstances have fundamentally changed, giving rise to a new and irreversible situation. In this situation, the Government of the Islamic Republic of Iran, as the coastal State, finds itself compelled to adopt practical and proportionate measures to manage the developments that have expanded into the maritime zones. These measures are taken with a view to preventing further risks from being imposed on vessels and seafarers in the Persian Gulf, the Strait of Hormuz, and the Gulf of Oman.
Fundamental change of circumstances
Since the commencement of acts of aggression against the Islamic Republic of Iran, the security environment of the Persian Gulf and the Strait of Hormuz has undergone significant transformations and has thereby become subject to a fundamental change of circumstances. In the current situation, the underlying circumstances governing the legal regime of the Strait, namely the existence of a minimum level of regional stability and security necessary to guarantee safe passage, have been severely undermined as a result of repeated threats and actions that violate Article 2 (4) of the Charter of the United Nations.
One of the most significant factors that has disrupted the prior order is the persistent disregard for a peremptory norm of international law: the norm that prohibits any act of aggression. In addition to this, despite repeated violations of international law, the United Nations Security Council, as the primary body responsible for the maintenance of international peace and security, has remained practically incapable of condemning the aggressor and has consequently failed to discharge its primary responsibility to ensure international peace and security and to restore stability to the region.
Accordingly, under the international law of the sea, the regime of passage through straits used for international navigation cannot be applied in a security vacuum. The coastal State’s obligation to facilitate passage is conditional upon the existence of circumstances in which the safety of navigation and maritime public order have not been seriously disrupted. In a situation where persistent military threats pose real dangers and transform the operational environment, the adoption of necessary measures based on the doctrine of fundamental change of circumstances is unavoidable.
On this basis, the set of current measures and practices must be regarded as an adjustment of rights and obligations to adapt to the circumstances, in light of the fundamental change of circumstances, measures undertaken with the aim of establishing a balance between the security requirements of the coastal State and the continued safe passage of international navigation.
Sovereignty over territorial sea
Under the international law of the sea, the sovereignty of coastal States over their territorial sea, including over that part which lies within an international strait, and the exercise of rights and jurisdiction derived from such sovereignty, constitutes a fundamental and well-established principle. Consequently, the arrangements for managing passage through the Strait of Hormuz are governed within the framework of the domestic laws of Iran and Oman, as well as customary and treaty-based rules and principles, including the 1958 Geneva Conventions, the relevant provisions of the 1982 United Nations Convention on the Law of the Sea, the principles of the Charter of the United Nations, and international judicial precedents (including the judgments of the International Court of Justice in the Corfu Channel and Oil Platforms cases). Within this framework, one essential principle is of particular importance: no right under international law, including the right of passage, may be exercised in such a way as to result in a threat, military aggression, or violation of the security of the coastal State. Accordingly, mere reliance on classical concepts is insufficient to address the exigencies of the current unprecedented situation and does not adequately meet the requirements of security and sovereignty.
This situation is also premised upon the peremptory norm prohibiting the threat or use of force, as embodied in Article 2(4) of the Charter of the United Nations and recognized in international judicial precedents and the judgments of the International Court of Justice as an intransgressible rule. In the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the findings of the International Court of Justice clearly indicate that any foreign military presence or action that endangers the security or sovereignty of another State, even indirectly, is contrary to that principle.
Furthermore, Article 2 of the 1982 United Nations Convention on the Law of the Sea affirms the sovereignty of the coastal State over its territorial sea, seabed, and subsoil, and grants no authorization for the stationing of foreign forces. Article 30 of the same Convention confirms the right to require any military ship that fails to comply with the laws and regulations of the coastal State to leave the territorial sea immediately. Moreover, the San Remo Manual on International Law Applicable to Armed Conflicts at Sea emphasizes the right of coastal States to restrict foreign military presence in order to preserve the neutrality of regional States and the security of the waterway.
While preventing the reproduction of aggressive and interventionist patterns that have led to instability and insecurity, this approach establishes a balance between the freedom of navigation and the security rights of the coastal State as affirmed in established international judicial practice.
Historic sovereignty over Strait of Hormuz
In formulating the arrangements for managing passage through the Strait of Hormuz, it is essential to emphasize the historic sovereignty of Iran and Oman over this waterway. This finding has been affirmed by various arbitral tribunals. Accordingly, the longstanding historic sovereignty of Iran over the Strait of Hormuz, which existed for centuries prior to the Convention and has been continuously exercised, remains valid.
In the case of Qatar v. Bahrain, the International Court of Justice, upon examining historic rights in the Persian Gulf, took the view that the continuous exercise of sovereignty and historical activities by coastal States constitutes a valid basis for the recognition of a “historic title” over maritime areas. Given the similar geographic and historical situation of the Strait of Hormuz, this judicial precedent directly confirms the historic sovereignty of Iran and Oman over the strait.
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