The Legal Vortex in the Strait of Hormuz

Abstract

This article resolves long-standing confusion over the legal regime that applies to passage through the Strait of Hormuz. Iran and the United States profoundly disagree about the applicable international law in the Strait of Hormuz, a narrow stretch of water through which travels 17 million barrels of oil per day — 20 percent of the world total. Surprisingly, these important legal questions have been virtually ignored, even though the Strait of Hormuz has been the locus of conflict between Iran and the West in the past, and will be ground zero in any war in the region. The United States is unabashed that it enjoys an immutable right to freedom of navigation in the Strait of Hormuz, whereas Iran insists that it may regulate traffic through the Strait and restrict the passage of warships. The legal riddle and intransigence formed by the claims and counter-claims in the Strait of Hormuz begs for concrete analysis to inform scholars and policymakers. The standoff is especially complicated because the United States and Iran are not parties to the United Nations Convention on the Law of the Sea (UNCLOS). Both states have bypassed UNCLOS, the one multilateral treaty positioned to resolve their differences. As a heavy user of the Strait of Hormuz for both naval operations and oil tanker traffic, and a global proponent of international law adjudication and structured dispute resolution, the United States has a keen interest in better understanding the legal regime in the Straits and the appropriate distribution of rights and obligations that apply along the waterway. Experience in the Oil Platforms Case demonstrates that Iran is unafraid to bring suit at the International Court of Justice against the United States to challenge the legality of U.S. warship operations near its coast, so it is important to conduct an unbiased assessment of the issue since legal determinations may have strategic consequences. Both Iran and the United States insist the law is on their side, and the legal dispute serves as a destabilizing backdrop to other dimensions of U.S.-Iranian relations. What is the answer to this dilemma? This article concludes that the United States is not entirely correct in its claim that it enjoys unimpeded freedom of navigation through the strait as a feature of customary international law. In fact, the navigational regime of nonsuspendable innocent passage was in force for passage through international straits long before adoption of UNCLOS in 1982. Until or unless it joins UNCLOS, the United States enjoys only the right of nonsuspendable innocent passage in the Strait of Hormuz, but at the same time, Iran is limited to enforcement of only a three nautical mile territorial sea rather than the contemporary standard of 12 nautical miles.