The Strait of Hormuz: A Legal Perspective on Maritime Security
By analyzing the dimensions of the current crisis unfolding within the context of the war in the Middle East, along with the accompanying criminal Iranian attacks on the Gulf Cooperation Council (GCC) states and a number of sisterly and friendly nations, Iran’s obstruction of navigation in the Strait of Hormuz has emerged as one of the dimensions of this conflict. The Strait of Hormuz is considered one of the most important natural and strategic waterways in the world, serving as the link between the Arabian Gulf, the Arabian Sea, and the Indian Ocean. According to the International Energy Agency, nearly one-fifth of the world’s daily oil supply passes through the Strait of Hormuz. Additionally, GCC countries obtain approximately 70% of their diverse basic food imports via the Strait of Hormuz. Amid escalating geopolitical and operational tensions, the question of the legal status of closing this strait emerges as an extremely complex and sensitive issue, where the provisions of international maritime law intersect with global economic security.
Within the context of international legal frameworks governing navigation in maritime straits, the legal rules governing navigation in international straits are primarily based on the “United Nations Convention on the Law of the Sea” (UNCLOS), adopted in 1982, which serves as the governing constitution for the seas and oceans. It clarifies two main types of passage through straits: “innocent passage” and “transit passage.”
The provisions on transit passage apply to international straits used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. Article 38 of the aforementioned Convention serves as the legal basis governing this right, granting all ships and vessels, including warships, the right to rapid and uninterrupted transit passage without hindrance. Article 44 of the same Convention emphasizes that states bordering straits may not suspend or impede such passage in any way, bearing in mind that the Strait of Hormuz falls under this description, which classifies it within this category of straits, given its vital importance to international navigation.
Conversely, the provisions of innocent passage apply to navigation in the territorial waters of coastal states, defined as passage that does not harm the safety, security, or order of the coastal state. Although this right is granted to all ships, coastal states retain the right to regulate and impose restrictions on such passage to ensure their security. Article 16(4) of the 1958 Geneva Convention on the Territorial Sea stipulates that innocent passage through international straits may not be suspended.
It should also be noted that, in addition to written international agreements, international customs agreed upon by legal scholars and judicial precedents in the field of international law and its branches constitute a source and reference for determining the legal status of straits. For example, and without limiting the scope, regardless of differences based on surrounding circumstances, the 1949 “Corfu Channel” case, heard by the International Court of Justice, is a fundamental reference in this regard. The Court affirmed the right of passage through international straits in times of peace and rejected the coastal state’s right to impose an absolute ban on such passage. Furthermore, the San Remo Manual on Armed Conflicts at Sea indicates that rights of transit passage remain in force even during armed conflict and may not be suspended by neutral states.
If we examine the pretexts on which Iran bases its actions that undermine freedom of navigation and negatively impact the security of energy supplies and global supply chains—namely, its failure to ratify the 1982 United Nations Convention on the Law of the Sea despite having signed it— Iran views this as justification for obstructing the innocent passage of ships, even those belonging to neutral states. Therefore, any comprehensive closure of the Strait of Hormuz constitutes a flagrant violation of international law and has repercussions for security and energy supplies, for several reasons:
First: Violation of the right of innocent passage, as the complete closure of the Strait constitutes a clear breach of Articles 38 and 44 of the United Nations Convention on the Law of the Sea, which guarantee the right of innocent passage for all ships and aircraft. Even if Iran has not ratified the Convention, the principle of innocent passage is considered part of customary international law established by states, which is based on the principle of universality to ensure security and the reach of justice to those who violate this right anywhere in the world, and from another perspective, to ensure the smooth flow of movement for individuals and essential goods.
Second: Infringement on the rights of neutral states, as the closure directly affects the navigation rights of neutral states that are not parties to the conflict, such as the Gulf Cooperation Council states, the states bordering the Arabian Gulf, the People’s Republic of China, Japan, and many European countries that rely on the Strait to secure their energy needs.
Third: The principle of necessity and proportionality, as even in cases of self-defense, any measure taken must be necessary and proportionate to the threat. Closing a vital strait through which a significant portion of global trade passes cannot be easily justified by the principle of self-defense, and the International Court of Justice affirmed the importance of adhering to these two criteria in the “Nicaragua Case.”
Fourth: Distinction between ships, as international law requires a distinction to be made in dealing with military ships belonging to the warring parties and commercial ships. A blanket closure cannot justify targeting commercial ships that do not pose a military threat.
Based on all of the above, it is clear to us that the Strait of Hormuz represents a critical intersection between geopolitics and international law. While Iran invokes its alleged right to protect its national security, international maritime law—whether in the texts of conventions or in its customary rules—gives the highest priority to freedom of navigation in international straits; meaning that any attempt to completely close the Strait is considered a violation of international law and would have severe economic and political repercussions at the regional and global levels.
Iran’s attempt to shift the focus of pressure to the Gulf Cooperation Council (GCC) region, despite the Gulf states’ clear stance against dragging the region into the flames of war—a stance met with blatant targeting of vital infrastructure and civilian targets, which constitute legally criminal hostile acts, and morally and internationally condemned, as is the case with the closure of the Strait of Hormuz, aimed at exerting global pressure on energy and food supplies. Therefore, maintaining freedom of navigation in the Strait of Hormuz will remain a collective international responsibility both now and in the future.
Note: This article has been automatically translated, the full article is available in Arabic.
Dr. Ismaeel Naji Al-Ameen, Non-Resident Fellows
