Friday, January 27, 2012

“Legality” of Iranian Hormuz Threat

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Recent tensions in “Persian” or “Arabian” Gulf are on their escalation due to the threats of Iran to hamper passage of the 20% of world’s oil flow by blocking the Strait of Hormuz. Threats were answered by the U.S. that made it quite clear they prepared to take all necessary actions to maintain the oil flow crucial to the global economy.

As the situation heats up and analysts are trying to predict the chances of the clashes in the Persian Gulf, analyzing military, political and geopolitical factors, the legal part of the question somehow escapes wider discussions. At the same time legal status of the Strait of Hormuz plays an important role both in international law and in the approach that should be taken when dealing with situation that can arise from the threats that are on the table right now.

Strait of Hormuz is one of the most important straits for the international trade exchange and security. While traversing that strait, ships have to pass through the territorial waters of Iran and Oman and follow Traffic Separation Scheme throughout the strait to escape the risk of collision. Basically, that Scheme separates inbound and outbound traffic in the Hormuz through the establishment of two 3 km (1.9 mile) lanes and another 3 km (1.9 mile) in between to navigate the ships flow through Hormuz. Total traffic lane is now around 10 km (5.7 mile) wide.

The importance of Hormuz as crucial to the international economy and security predetermined that the rule of the transit passage would apply to such strait. What it actually means is that thought all the ships passing through Hormuz, have to pass through the territorial waters of Iran, they are enjoying the right to free transit. Concept of “transit passage” is a customary navigation rule that was codified in Part III, Section 2 of the United Nations Convention of the Laws of the Sea. Specifically Article 38 of the aforementioned Convention that reads: “1. In straits... all ships and aircraft enjoy the right of transit passage, which shall not be impeded; except that, if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics; 2. Transit passage means the exercise in accordance with this Part of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State; 3. Any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of this Convention”. Thought not all the states have ratified that Convention, its provisions dealing with the transit passage are already the part of the rules customary international law and thus all the states are bound by them and accepted them, including U.S. and Iran. The acceptance of such rules is clear and evident from the practice of these states and general opinio juris.

If Iran decides to block the Hormuz it will simply be in breach of customary international law, and thus in breach of Article 44 of the United Nations Convention of the Laws of the Sea, that reads: “States bordering straits shall not hamper transit passage and shall give appropriate publicity to any danger to navigation or overflight within or over the strait of which they have knowledge. There shall be no suspension of transit passage”. In other words Iran does not have any legal rights to block of suspend transit passage of ships through Hormuz. Such actions should be considered not only grave breach of international law, but due to the economic and trade nature of the strait, the threat to the international peace and security.

However, here the approach should also be different on the part of the U.S. Rather that threaten to use force against Iran in case it will hamper the oil flow to Hormuz, U.S. should come forward with decisions based on the international law framework. Namely, refer the case to international body that specifically deals with the threats to the international peace and security – UN Security Council. Being the permanent member of Security Council it should not be a problem for the U.S. At the same time the decision needed by the U.S. in the Council is pretty much guaranteed as the threat to the world economy is quite real for all the states present in the Security Council permanent membership.

While Iranian bluff may have been real, Tehran has made so many grossly exaggerated claims in the past, that it seems they were designed more to try to deter U.S. military action and/or convince the Iranian public than government is truly being serious of its real world capabilities. Current exchange of threats on the other hand simply deviates from international law and does not make situation any more just.

Kamal Makili-Aliyev
Doctor of Laws (LL.D)
26.01.2012
 

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