On 17 June Iran and the United States signed a memorandum of understandingthat is intended to pave the way for ending the war between them that started on 28 February this year with a wave of US and Israeli strikes on targets across Iran. Although the agreement now looks very fragile, the wording of one critical paragraph of the so-called Islamabad Memorandum suggests the USA might allow Iran to restrict freedom of navigation in the Strait of Hormuz permanently as part of a final peace treaty. If it does, this could have economic, political and legal repercussions far beyond the Gulf region.
The Strait of Hormuz under international law
The Strait of Hormuz connects the Gulf (often referred to as the Persian Gulf or Arabian Gulf) to the Gulf of Oman. As a consequence, all marine traffic between the Gulf—which includes the entire coastlines of Bahrain, Iraq, Kuwait and Qatar, as well as many ports of Iran, Saudi Arabia and the United Arab Emirates—and the rest of the world must pass through it.
The strait is around 21 nautical miles wide at its narrowest point and lies between Iran to the north and the Omani exclave of Musandam to the south. Because the strait is used for international navigation, the legal regime of ‘non-suspendable innocent passage’ applies within it. This means that neither Iran nor Oman can hamper the passage of any ship passing through the strait on its way to or from any other Gulf state’s port, as long as this passage is peaceful, continuous and expeditious. In contrast to the similar right of innocent passage that applies in the territorial seas of any coastal state, it cannot be suspended for any reason, according to international law.
The non-suspendable innocent passage regime in the Strait of Hormuz derives from international customary law, as first recognized by the International Court of Justice in the 1949 Corfu Channel Case. This is because Iran is not a party to the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
As coastal states, Iran and Oman have the right to, among other things, establish laws regarding the safety of navigation and the regulation of maritime traffic, as well as the protection of the marine environment in the Strait of Hormuz. However, these laws should not have the practical effect of preventing or interrupting innocent passage through the strait.
Potential changes under the Islamabad Memorandum
The Islamabad Memorandum contains specific provisions regarding navigation through the Strait of Hormuz. Paragraph 5 states:
Upon the signing of this MOU, the Islamic Republic of Iran will make arrangements using its best efforts for the safe passage of commercial vessels with no charge, for 60 days only, from the Persian Gulf to the Sea of Oman and vice versa …
This somewhat ambigous language arguably allows Iran to impose a toll on ships passing through the strait after 60 days (by which time a final deal should have been negotiated, according to paragraph 3). The imposition of such a toll would have the practical effect of rendering innocent passage conditional, and would thus contravene the non-suspendable innocent passage regime in the strait.
Paragraph 5 goes on to state that Iran and Oman will conduct dialogue
to define the future administration and maritime services in the Strait of Hormuz in discussion with other Persian Gulf littoral states in line with the applicable international law and the sovereign rights of coastal states …
Despite the affirmation that the administration of the strait will be conducted ‘in line with the applicable international law’, there is reason to be cautious. For example, according to both Oman’s declaration on its 1989 ratification of UNCLOS and Iran’s domestic law, prior authorization is required for warships to sail through their territorial seas. If Iran and Oman decide to administer the strait in the light of their understanding of international law, they couldsubstantially curtail the right of innocent passage for warships. As the USA has pointed out several times, there is no basis for limiting the right of innocent passage in this way under current international law.
A shift in US foreign legal policy?
The US signature of the memorandum is as significant as the content of the document itself because it potentially signals a shift in US foreign policy. The USA has long been one of the most ardent champions of the freedom of navigation, despite not being a party to UNCLOS. In the Strait of Hormuz alone, the USA made diplomatic protests and operational assertions against Iranian attempts to restrict freedom of navigation 12 times between 1983 and 2011.
The USA entered World War I partly to safeguard the rights of US shipping on the high seas. Since the end of World War II, it has consistently carried out missions designed to assert freedom of navigation and the right of innocent passage for its ships against the claims of various states, from the Arctic in 1960s to the South China Sea in more recent times.
During the negotiations for UNCLOS, the USA collaborated closely with France, Japan, the Soviet Union and the United Kingdom to ensure that the final text safeguarded freedom of navigation, whether on the high seas or through territorial seas or straits used for international navigation.
Since 1979 the USA has implemented a Freedom of Navigation programme, dedicated to safeguarding freedom of navigation throughout the world. This programme challenges ‘excessive maritime claims’ asserted by other states (including US allies), both through consultations and diplomatic representations and ‘operational assertions by US military forces’. The US Department of State includes all challenges relating to freedom of navigation in its Digest of the United States Practice of International Law.
The language of paragraph 5 of the Islamabad Memorandum already suggests a significant weakening of this US commitment to freedom of navigation. If the USA ratifies a final peace treaty that allows Iran and possibly Oman to restrict freedom of navigation through the Strait of Hormuz—for example by imposing a toll—it would effectively be conceding that the right of innocent passage through straits used for international shipping, and by extension other international legal norms guaranteeing freedom of navigation, can be modified by coastal states resorting to violence.
Broader implications for freedom of navigation and maritime trade
Such a concession would not bode well for freedom of navigation. The USA has been the most powerful supporter of freedom of navigation in recent decades, with both the means and the political will to stand up for it when it has appeared to be under threat. The wording of the Islamabad Memorandum already dents its credibility in this regard.
If the final deal allows Iran to limit the right of innocent passage in the Strait of Hormuz, it could embolden others states that wish to limit freedom of navigation through maritime expanses they consider theirs, such as Chinaregarding the South China Seaor Russia regarding the Arctic Straits along the Northern Sea Route. It would send a message that international legal norms can potentially be modified through military means and that the current US administration will allow it to happen in order to save face.
All this has major practical and political implications as freedom of navigation is the bedrock of the global economic system. More than 80 per centof internationally traded goods are transported by sea. The impact on global oil pricesof Iran’s effective closure of the Strait of Hormuz in recent months has starkly illustrated the potential consequences of limiting freedom of navigation.
Similar challenges to freedom of navigation, especially in another strait used for international navigation such as the Strait of Malacca (the main shipping channel between the Indian and Pacific oceans), could further strain supply chains, drive up the price of imported commodities, including critical materials, and thus contribute to instability and economic volatility.
A new role for Europe?
If US support for freedom of navigation is weakening, that leaves the European Union (EU) and its member states as its strongest guardians. Even in their sometimes dramatic actions to curb the Russian ‘shadow fleet’ and ensure safety of navigation in European waters, the EU and individual member states have always acted in accordance with international law. They should now be ready to expand their role in protecting freedom of navigation.
As part of this, the EU and individual member states could, for example, be more vocal and more systematic in denouncing excessive maritime claims that erode freedom of navigation. This will be crucial to avoid the formation of an alternative customary legal regime through tacit acceptance of state practice.
The EU should consider creating a European Digest of International Law Practice, modelled after the US one—perhaps through the European External Action Service’s maritime security division. This could collate and publish contributions and positions from member states in one volume. The EU could use this as a tool to promote respect for international law and increase Europe’s influence, which would make it better able to defend the liberal international legal order at sea.
In addition, EU member states could consider developing new and expanding the scope of existing EU naval operations to further strengthen the protection of freedom of navigation in maritime regions of critical importance for the EU in the Middle East, and perhaps elsewhere. The EU could follow the model of its European Naval Force (EUNAVFOR) operation ASPIDES—which is designed to safeguard freedom of navigation in the Red Sea, the Gulf of Aden and maritime regions adjacent to the Strait of Hormuz—to expand the mandate of operation ATALANTA, which is designed to fight illegal activities and promote deconfliction in the western Indian Ocean and the Gulf of Aden, and develop similar operations as required.
By taking these steps, the EU would demonstrate that it is committed to freedom of navigation and has the political will to safeguard it in practice, at least in some parts of the world.
ABOUT THE AUTHOR(S)
Dr Pierre Thévenin is a Researcher with SIPRI’s European Security Programme and an international technical expert for Expertise France.
On 17 June Iran and the United States signed a memorandum of understanding that is intended to pave the way for ending the war between them that started on 28 February this year with a wave of US and Israeli strikes on targets across Iran. Although the agreement now looks very fragile, the wording of one critical paragraph of the so-called Islamabad Memorandum suggests the USA might allow Iran to restrict freedom of navigation in the Strait of Hormuz permanently as part of a final peace treaty. If it does, this could have economic, political and legal repercussions far beyond the Gulf region.
The Strait of Hormuz under international law
The Strait of Hormuz connects the Gulf (often referred to as the Persian Gulf or Arabian Gulf) to the Gulf of Oman. As a consequence, all marine traffic between the Gulf—which includes the entire coastlines of Bahrain, Iraq, Kuwait and Qatar, as well as many ports of Iran, Saudi Arabia and the United Arab Emirates—and the rest of the world must pass through it.
The strait is around 21 nautical miles wide at its narrowest point and lies between Iran to the north and the Omani exclave of Musandam to the south. Because the strait is used for international navigation, the legal regime of ‘non-suspendable innocent passage’ applies within it. This means that neither Iran nor Oman can hamper the passage of any ship passing through the strait on its way to or from any other Gulf state’s port, as long as this passage is peaceful, continuous and expeditious. In contrast to the similar right of innocent passage that applies in the territorial seas of any coastal state, it cannot be suspended for any reason, according to international law.
The non-suspendable innocent passage regime in the Strait of Hormuz derives from international customary law, as first recognized by the International Court of Justice in the 1949 Corfu Channel Case. This is because Iran is not a party to the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
As coastal states, Iran and Oman have the right to, among other things, establish laws regarding the safety of navigation and the regulation of maritime traffic, as well as the protection of the marine environment in the Strait of Hormuz. However, these laws should not have the practical effect of preventing or interrupting innocent passage through the strait.
Potential changes under the Islamabad Memorandum
The Islamabad Memorandum contains specific provisions regarding navigation through the Strait of Hormuz. Paragraph 5 states:
Upon the signing of this MOU, the Islamic Republic of Iran will make arrangements using its best efforts for the safe passage of commercial vessels with no charge, for 60 days only, from the Persian Gulf to the Sea of Oman and vice versa …
This somewhat ambigous language arguably allows Iran to impose a toll on ships passing through the strait after 60 days (by which time a final deal should have been negotiated, according to paragraph 3). The imposition of such a toll would have the practical effect of rendering innocent passage conditional, and would thus contravene the non-suspendable innocent passage regime in the strait.
Paragraph 5 goes on to state that Iran and Oman will conduct dialogue
to define the future administration and maritime services in the Strait of Hormuz in discussion with other Persian Gulf littoral states in line with the applicable international law and the sovereign rights of coastal states …
Despite the affirmation that the administration of the strait will be conducted ‘in line with the applicable international law’, there is reason to be cautious. For example, according to both Oman’s declaration on its 1989 ratification of UNCLOS and Iran’s domestic law, prior authorization is required for warships to sail through their territorial seas. If Iran and Oman decide to administer the strait in the light of their understanding of international law, they could substantially curtail the right of innocent passage for warships. As the USA has pointed out several times, there is no basis for limiting the right of innocent passage in this way under current international law.
A shift in US foreign legal policy?
The US signature of the memorandum is as significant as the content of the document itself because it potentially signals a shift in US foreign policy. The USA has long been one of the most ardent champions of the freedom of navigation, despite not being a party to UNCLOS. In the Strait of Hormuz alone, the USA made diplomatic protests and operational assertions against Iranian attempts to restrict freedom of navigation 12 times between 1983 and 2011.
The USA entered World War I partly to safeguard the rights of US shipping on the high seas. Since the end of World War II, it has consistently carried out missions designed to assert freedom of navigation and the right of innocent passage for its ships against the claims of various states, from the Arctic in 1960s to the South China Sea in more recent times.
During the negotiations for UNCLOS, the USA collaborated closely with France, Japan, the Soviet Union and the United Kingdom to ensure that the final text safeguarded freedom of navigation, whether on the high seas or through territorial seas or straits used for international navigation.
Since 1979 the USA has implemented a Freedom of Navigation programme, dedicated to safeguarding freedom of navigation throughout the world. This programme challenges ‘excessive maritime claims’ asserted by other states (including US allies), both through consultations and diplomatic representations and ‘operational assertions by US military forces’. The US Department of State includes all challenges relating to freedom of navigation in its Digest of the United States Practice of International Law.
The language of paragraph 5 of the Islamabad Memorandum already suggests a significant weakening of this US commitment to freedom of navigation. If the USA ratifies a final peace treaty that allows Iran and possibly Oman to restrict freedom of navigation through the Strait of Hormuz—for example by imposing a toll—it would effectively be conceding that the right of innocent passage through straits used for international shipping, and by extension other international legal norms guaranteeing freedom of navigation, can be modified by coastal states resorting to violence.
Broader implications for freedom of navigation and maritime trade
Such a concession would not bode well for freedom of navigation. The USA has been the most powerful supporter of freedom of navigation in recent decades, with both the means and the political will to stand up for it when it has appeared to be under threat. The wording of the Islamabad Memorandum already dents its credibility in this regard.
If the final deal allows Iran to limit the right of innocent passage in the Strait of Hormuz, it could embolden others states that wish to limit freedom of navigation through maritime expanses they consider theirs, such as China regarding the South China Sea or Russia regarding the Arctic Straits along the Northern Sea Route. It would send a message that international legal norms can potentially be modified through military means and that the current US administration will allow it to happen in order to save face.
All this has major practical and political implications as freedom of navigation is the bedrock of the global economic system. More than 80 per cent of internationally traded goods are transported by sea. The impact on global oil prices of Iran’s effective closure of the Strait of Hormuz in recent months has starkly illustrated the potential consequences of limiting freedom of navigation.
Similar challenges to freedom of navigation, especially in another strait used for international navigation such as the Strait of Malacca (the main shipping channel between the Indian and Pacific oceans), could further strain supply chains, drive up the price of imported commodities, including critical materials, and thus contribute to instability and economic volatility.
A new role for Europe?
If US support for freedom of navigation is weakening, that leaves the European Union (EU) and its member states as its strongest guardians. Even in their sometimes dramatic actions to curb the Russian ‘shadow fleet’ and ensure safety of navigation in European waters, the EU and individual member states have always acted in accordance with international law. They should now be ready to expand their role in protecting freedom of navigation.
As part of this, the EU and individual member states could, for example, be more vocal and more systematic in denouncing excessive maritime claims that erode freedom of navigation. This will be crucial to avoid the formation of an alternative customary legal regime through tacit acceptance of state practice.
The EU should consider creating a European Digest of International Law Practice, modelled after the US one—perhaps through the European External Action Service’s maritime security division. This could collate and publish contributions and positions from member states in one volume. The EU could use this as a tool to promote respect for international law and increase Europe’s influence, which would make it better able to defend the liberal international legal order at sea.
In addition, EU member states could consider developing new and expanding the scope of existing EU naval operations to further strengthen the protection of freedom of navigation in maritime regions of critical importance for the EU in the Middle East, and perhaps elsewhere. The EU could follow the model of its European Naval Force (EUNAVFOR) operation ASPIDES—which is designed to safeguard freedom of navigation in the Red Sea, the Gulf of Aden and maritime regions adjacent to the Strait of Hormuz—to expand the mandate of operation ATALANTA, which is designed to fight illegal activities and promote deconfliction in the western Indian Ocean and the Gulf of Aden, and develop similar operations as required.
By taking these steps, the EU would demonstrate that it is committed to freedom of navigation and has the political will to safeguard it in practice, at least in some parts of the world.
ABOUT THE AUTHOR(S)