Strait of Hormuz; legal ...
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Both the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone and the 1982 United Nations Convention on the Law of the Sea recognize the full sovereignty of the coastal State over its territorial sea and preserve the historic rights of coastal States in gulfs and semi-enclosed waterways. Therefore, in light of the continuous and historic exercise of sovereignty by Iran and Oman over the Strait of Hormuz over many centuries, this strait possesses a historic title.
Hierarchy of applicable rules
In this regard, the rules governing this matter must be examined at three distinct but interrelated levels, given that each level possesses a higher rank and a more fundamental character, and rules at lower levels cannot be interpreted or applied in conflict with the principles of higher levels.
The first level relates to the fundamental principles of international law, including peremptory norms (jus cogens), that is the prohibition of aggression, and those enshrined in the United Nations Charter including prohibition of threat or use of force (Article 2(4)) and the inherent right of self-defence (Article 51). These principles stand at the apex of the hierarchy of international legal norms and establish the framework and limitations for all other rules.
The second level refers to international humanitarian law (the law of armed conflict), which governs conduct in armed hostilities and determines which conducts are permissible and which are prohibited in situations of armed conflict. This level of rules complements in hierarchical manner, the fundamental principles of the first level.
At the third level, the law of the sea applies as a specialized body of law. The rules governing the regimes of passage through international straits, the rights of coastal States over their territorial sea, and other provisions of the 1982 United Nations Convention on the Law of the Sea cannot be applied in a vacuum or by disregarding the higher levels. In other words, the law of the sea must not be analyzed separately from the “root causes” that have shaped the current situation (including aggression, continuous military threats, and the inability of the Security Council to maintain peace), nor separately from the fundamental principles of international law; otherwise, this branch of law would become a tool for justifying aggression and disregarding the sovereign rights of coastal States.
With respect to the third level, it must be noted that the Islamic Republic of Iran has not acceded to the 1958 Convention on the Territorial Sea and the Contiguous Zone, nor to the United Nations Convention on the Law of the Sea (UNCLOS). Therefore, Iran is not bound by their provisions, except insofar as they have become part of customary international law.
The regime of “transit passage” set forth in the 1982 Convention does not meet the established criteria of customary international law. The conclusions of the International Law Commission’s 2018 work on the identification of customary international law contain key elements generally considered for determining whether a practice has become customary. Two of these conclusions are particularly relevant: first, under Conclusion 5, “State practice consists of conduct of the State, whether in the exercise of its executive, legislative, judicial or other functions”. Second, Conclusion 15 provides that “Where a State has objected to a rule of customary international law while that rule was in the process of formation, the rule is not opposable to the State concerned for so long as it maintains its objection”.
Through its continuous and persistent objection to the regime of “transit passage” provided for in Articles 37 to 44 of the 1982 Convention, Iran has not recognized these rules as binding under customary international law. In this regard, Iran’s consistent legislative and diplomatic practice since 1982 has established its position as a persistent objector to the binding nature of these rules and has challenged the opinio juris necessary for the formation of a customary norm.
The first notable document registered in the United Nations Treaty Series is Iran’s interpretative declaration made at the time of signing the Convention, in which it explicitly stated that certain provisions, including the regime of “transit passage” in Part III (Articles 37 to 44), do not represent established customary international law. Iran’s Maritime Law of 1963 (1342), its 2012 (1391) amendment, and Iran’s Law on Maritime Zones of the Persian Gulf and the Gulf of Oman of 1993 (1372) are further evidence of this practice. The latter law makes no reference to transit passage and thus does not recognize that regime; rather, it establishes specific regulatory provisions for the strait, including the requirement to obtain prior authorization for the passage of warships, submarines, and vessels carrying dangerous or environmentally harmful substances.
Consequently, the applicable legal framework for passage through the Strait of Hormuz, in the absence of a binding treaty obligation and in the absence of a customary rule of “transit passage”, is the customary right of “innocent passage” through straits used for international navigation, as recognized by the International Court of Justice in the Corfu Channel case (1949). Within this framework, the coastal State has the right to regulate passage, collect fees for maritime services, require prior notification or authorization for the passage of warships, and adopt necessary measures for the protection of its security. The measures taken by the Islamic Republic of Iran are consistent with this customary framework.
Accordingly, any legal analysis of the situation in the Strait of Hormuz that proceeds directly to the specific provisions of the law of the sea without first examining peremptory norms, the fundamental principles of the Charter, and international humanitarian law is not only incomplete but also misleading. The law of the sea does not operate in a vacuum and cannot be used as a shield to justify aggression, extra-regional military presence, or the disregard of the historic and contemporary sovereign rights of coastal States.