Legal Vortex in the Strait of Hormuz

Abstract

The regime of straits used for international navigation is one of the central features of the United Nations Convention on the Law of the Sea (UNCLOS). Neither the United States nor Iran, however, are party to UNCLOS, and the two adversaries disagree about the application of the treaty to relations between them in the Strait of Hormuz. Iran claims that the generous navigational provisions in UNCLOS may only be enjoyed by states that are party to the Convention. The United States claims that the right of transit passage in UNCLOS is reflective of customary international law, and there-fore applicable to non-parties. Transit passage permits an unrestricted right to travel on the surface, under the water, or in over flight through international straits. The dispute is complicated by Iran’s claim to a territorial sea that is twelve nautical miles in width — another key provision of UNCLOS, which departs from the historic norm of three nautical miles. Iran claims that the twelve nautical mile territorial sea is now part of customary law, but rejects the notion that other states enjoy the right of transit passage. The two regimes, how-ever, are inseparable — Iran may not have a twelve nautical mile territorial sea, and yet disregard the rights of other states to exercise transit passage in the Strait of Hormuz.

Keywords: UNCLOS, Iran, Straits, Hormuz, Transit, naval, LOAC, Persian Gulf, submarine, Navy