Legal Vortex in the Strait of Hormuz

44 Pages Posted: 27 Jul 2014 Last revised: 7 Jan 2015

See all articles by James Kraska

James Kraska

Stockton Center for International Law, U.S. Naval War College; Harvard University - Harvard Law School; University of California Berkeley School of Law; Council on Foreign Relations (CFR)

Date Written: November 25, 2014

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

Suggested Citation

Kraska, James, Legal Vortex in the Strait of Hormuz (November 25, 2014). 54 Virginia Journal of International Law 323 (2014), Available at SSRN: https://ssrn.com/abstract=2472065 or http://dx.doi.org/10.2139/ssrn.2472065

James Kraska (Contact Author)

Stockton Center for International Law, U.S. Naval War College ( email )

686 Cushing Rd.
Newport, RI 02841
United States
(401) 841-1536 (Phone)

HOME PAGE: http://https://www.usnwc.edu/Academics/Faculty/James-C--Kraska.aspx

Harvard University - Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

University of California Berkeley School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720
United States

HOME PAGE: http://https://www.law.berkeley.edu

Council on Foreign Relations (CFR) ( email )

The Harold Pratt House
58 East 68th Street
New York, NY 10021
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
208
Abstract Views
1,266
rank
171,091
PlumX Metrics