QAZVIN – Examining the recent actions and initiatives of the Islamic Republic of Iran in the Strait of Hormuz through the prism of international law, specifically the specialized branch derived from these rules known as the “law of the sea,” is an essential necessity at this critical historical juncture.
It must be observed that, as in the broader arena of public international law, the primary sources for evaluating the legitimacy of actions within the international order under the law of the sea are international treaties and customs. Consequently, verifying the legal validity of Iran’s actions and initiatives requires a rigorous assessment of their conformity with these foundational sources.
International treaties are explicitly understood to be written agreements concluded between subjects of international law (namely, states and international organizations) that are intended to produce specific legal effects under international law.
International customs, similarly, are settled and consistent practices that mature into customary international law through the convergence of two elements: continuous state practice (state practice) and a belief in a legal obligation (opinio juris) among the subjects of international law.
The fundamental question arises: do Iran’s actions in the Strait of Hormuz violate the conventional or customary rules of the law of the sea? Alternatively, under the consensual nature of international law, has Iran accepted treaty or customary obligations that run counter to its recent initiatives in the Strait?
It is worth recalling that while peremptory norms (jus cogens) and certain general customary obligations are binding irrespective of explicit consent, the principle of consent dictates that states are generally bound by an obligation only when they have expressly manifested their willingness to be so bound.
With respect to international treaties and the regime of international navigation through the Strait of Hormuz, the preeminent source is the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
While this Convention delineates the rights and obligations of coastal and non-coastal states across various maritime zones, Iran has merely signed the instrument but not ratified it. As a result, Iran is not bound by all the obligations set forth in the treaty in the manner of a state party (it is notable that the United States has not even signed the Convention).
Nevertheless, certain provisions of the Convention have crystallized into customary international law over time. Consequently, even as a non-party to UNCLOS, Iran remains bound by these customary obligations, which include, at a minimum, respecting the right of “innocent passage” for foreign vessels through the Strait of Hormuz. Conversely, the United States has repeatedly asserted that Iran is bound under the law of the sea to respect the right of “transit passage” for foreign vessels, demanding that its own ships enjoy this expansive right.
Innocent passage versus transit passage
The distinction between these two regimes is legally profound:
– Innocent passage: Only surface vessels and naval fleets enjoy the right of transit. Submarines are required to navigate on the surface and fly their flag, and all vessels must refrain from any activity prejudicial to the peace, good order, or security of the coastal state.
– Transit passage: Foreign states enjoy not only the right of navigation for surface vessels but also the right of overflight for aircraft and airborne vehicles, while submarines are permitted to transit submerged without being required to surface.
The recognition of a universal right of transit passage for all foreign vessels has met with consistent objections from both Iran and Oman. Specifically, Iran rejects the U.S. claim to transit passage rights through the Strait of Hormuz, maintaining that because the United States is not a party to the 1982 Convention, it cannot claim treaty-based benefits or invoke the right of transit passage. Iran asserts that, under customary international law, the United States is entitled at most to the right of innocent passage.
Historically, until the Ramadan War (the U.S.-Israeli war on Iran), the U.S. largely accommodated Iran’s reservations and concerns, refraining from actions that would provoke Iran’s specific sensitivities in this theater.
Maritime rights in peacetime versus wartime
Setting aside competing claims and assuming an obligation to respect the passage of vessels through the Strait of Hormuz, the critical question remains: does this obligation persist unaltered from peacetime to wartime?
Given that Iran exercises sovereignty over its coasts along the Strait of Hormuz, the right of passage serves as the sole peacetime exception to that sovereignty. In situations of armed conflict, where national sovereignty and security are acutely endangered, Iran may, under the doctrine of military necessity and in strict compliance with the principles of proportionality and necessity, impose restrictions on maritime transit, limit international shipping, and suspend the execution of certain peacetime obligations to secure its defense.
In other words, while a total and indefinite closure of the strait would run counter to the foundational principles of international law, the imposition of targeted restrictions during periods of armed conflict and military threat, until those threats are resolved, is not incompatible with the law of the sea.
From this perspective, the law of the sea converges with international humanitarian law and the law of armed conflict, the rules of which become primary in governing the unfolding situation. Under such conditions, a belligerent coastal state is entitled to exercise maritime control, including the right to visit and search foreign commercial vessels.
Therefore, in view of the unjust war imposed upon Iran and the military actions directed against its coasts and maritime installations, particularly the Iranian islands and zones immediately surrounding the Strait of Hormuz, the restrictions implemented by Iran regarding passage through the Strait are legally defensible. They cannot be deemed a violation of Iran’s obligations under general international law or the law of the sea.
Establishing a special legal regime
Another vital question is whether, under these legal parameters, Iran and Oman can establish a special legal regime for administering the Strait of Hormuz.
Generally, international straits and waterways are subject to the universal rules of international law. However, because these maritime areas lie adjacent to the coasts and internal waters of coastal states, these states, while respecting international law and the exigencies of international coexistence, may enact non-discriminatory regulations to protect their security and sovereignty. Such regulations may govern:
– The safety of navigation and the regulation of maritime traffic;
– The prevention, reduction, and control of marine pollution;
– Prohibitions on unauthorized fishing;
– The enforcement of the coastal state’s customs, fiscal, sanitary, and immigration laws;
– The preservation of the environment and the maintenance of supervisory jurisdictions over sovereign waters, alongside rules for the transport of cargo and goods.
Consequently, acting within the bounds of international law, Iran and Oman have the authority to prescribe rules in these domains. From this standpoint, certain international straits, such as the Strait of Hormuz, while operating under the general legal architecture governing straits, can possess their own lex specialis (special legal regime) that commands international legitimacy and validity.
Legal grounds for levying transit and service fees
Finally, the issue arises as to whether Iran can demand financial dues or tolls from flag states solely for the passage of vessels through the Strait of Hormuz.
– The principle of navigation services: Under the conventional rules of both the 1958 and 1982 Conventions, as well as parallel international custom, foreign vessels enjoy an inherent right of passage through international straits; hence, mere transit cannot serve as a legal basis for levying dues. However, the collection of fees as compensation for services rendered and activities undertaken to facilitate safe navigation is entirely justifiable under international law.
Given the distinct geographical realities and complex navigational hazards of the Strait of Hormuz, the Islamic Republic of Iran provides diverse and highly technical services, including maritime search and rescue operations, vessel pilotage, the maintenance of safe sea lanes, and the general facilitation of transit conditions.
For these concrete measures, Iran is legally entitled to collect reasonable fees from vessels or their operators. Under these circumstances, demanding payment for specific services rendered is fully consistent with the rules of international law.
Seyyed Mohammad Hosseini is president of the Qazvin Province Bar Association
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