Trump says Hormuz will reopen after Iran deal signed

The Strait of Hormuz remains a critical geopolitical chokepoint, governed by a complex and often contested international legal framework. While the United Nations Convention on the Law of the Sea (UNCLOS) generally establishes a right of 'transit passage' for continuous and expeditious navigation through such straits, Iran, a non-ratifying signatory, asserts a more restrictive 'innocent passage' regime, demanding prior authorization for certain vessels. This divergence, coupled with the legal implications of international agreements like the Joint Comprehensive Plan of Action (JCPOA) and the imposition of sanctions, creates significant legal uncertainty and operational risks for international maritime activities. The enduring legal debate highlights the tension between freedom of navigation and coastal state sovereignty, demanding careful consideration by legal professionals.

Statements by political leaders regarding the status of vital international waterways, such as the Strait of Hormuz, often underscore the intricate interplay between geopolitics and international law. A past declaration by then-US President Donald Trump concerning the reopening of the Strait following a proposed Iran peace deal, while rooted in a specific historical context, serves as a potent reminder of the enduring legal complexities surrounding this crucial maritime chokepoint. The Strait of Hormuz, connecting the Persian Gulf to the open ocean, is indispensable for global energy markets, with a significant portion of the world's oil and liquefied natural gas transiting its narrow channels.

For practising attorneys and legal professionals, understanding the legal regime governing the Strait of Hormuz is paramount, particularly given the persistent regional tensions and the potential for disruption to international trade. This article delves into the foundational principles of international maritime law applicable to the Strait, examining the differing interpretations held by key actors like Iran and the United States. It will explore the nuances of 'transit passage' versus 'innocent passage,' the role of customary international law, and the impact of international agreements and sanctions on navigational rights, providing a comprehensive overview of the legal landscape.

The legal status of the Strait of Hormuz is primarily framed by the United Nations Convention on the Law of the Sea (UNCLOS), adopted in 1982 and entering into force in 1994. UNCLOS is widely regarded as the foundational instrument of modern maritime law, codifying various aspects of ocean governance. For straits used for international navigation, UNCLOS establishes two distinct regimes: 'innocent passage' and 'transit passage.' Innocent passage, generally applicable in territorial seas, allows foreign ships to pass through a coastal state's territorial waters so long as it is not prejudicial to the peace, good order, or security of the coastal state.

However, for straits used for international navigation that connect two parts of the high seas or exclusive economic zones, UNCLOS Part III (Articles 37-44) prescribes the more liberal regime of 'transit passage.' This right ensures continuous and expeditious navigation and overflight for all vessels and aircraft, including military ones, and cannot be impeded or suspended by coastal states. The Strait of Hormuz, connecting the Persian Gulf to the Gulf of Oman and the Arabian Sea, clearly meets the criteria for an international strait under UNCLOS Article 37. Despite its strategic importance, Iran has signed but not ratified UNCLOS, maintaining that the transit passage regime does not constitute customary international law and that it is only bound by the older 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, which provides for innocent passage. This position allows Iran to assert a right to deny passage to vessels it deems a threat and to require prior authorization for military vessels. Conversely, the United States, while also not a party to UNCLOS, considers its provisions on transit passage to reflect customary international law, thus binding on all states.

The core legal contention surrounding the Strait of Hormuz revolves around the applicability of 'transit passage' versus 'innocent passage.' Under UNCLOS, transit passage is a non-suspendable right for all ships and aircraft, including warships and submarines (which may remain submerged), to navigate continuously and expeditiously through international straits. Coastal states bordering such straits are prohibited from hampering transit passage or suspending it for any reason. This regime was a significant development in international law, balancing coastal state sovereignty with the global interest in unimpeded maritime communication.

Iran's stance, however, challenges this widely accepted interpretation. As a non-ratifying signatory to UNCLOS, Iran argues that it is not bound by the transit passage regime. Instead, it asserts that the more restrictive innocent passage regime applies, which can be temporarily suspended for security reasons and requires submarines to surface. Iran's 1993 national maritime law further reinforces this position, allowing for the suspension of passage for foreign ships in its territorial waters and requiring prior authorization for warships and vessels carrying dangerous materials. This creates a direct conflict with the understanding of transit passage as customary international law, a position strongly advocated by the United States and many other maritime nations.

The International Court of Justice's seminal *Corfu Channel Case* (United Kingdom v. Albania) provides crucial historical context, affirming the right of states to send warships through straits used for international navigation in peacetime without prior authorization, provided the passage is innocent. While this case predates UNCLOS and focused on innocent passage, it laid foundational principles for freedom of navigation through international straits, influencing the development of the transit passage regime. The Court emphasized the principle of freedom of maritime communication and the obligation of states not to knowingly allow their territory to be used contrary to the rights of other states.

Beyond the law of the sea, geopolitical instruments like the Joint Comprehensive Plan of Action (JCPOA), or the Iran nuclear deal, have also played a role. The JCPOA, though debated as to its precise legal nature (treaty versus political commitment), was endorsed by UN Security Council Resolution 2231, imbuing some of its provisions with international legal force. The US withdrawal from the JCPOA and subsequent re-imposition of sanctions under various authorities, including the Iran Freedom and Counter-Proliferation Act (IFCA) of 2012 and the Countering America's Adversaries Through Sanctions Act (CAATSA) of 2017, have significantly impacted maritime trade with Iran. These sanctions target Iran's oil, shipping, and shipbuilding sectors, creating substantial compliance risks for international shipping companies, insurers, and financial institutions, even for non-US persons engaging in transactions with Iranian entities. The enforcement of such sanctions, often involving the targeting of vessels engaged in deceptive practices, further complicates the legal and operational environment in the Strait of Hormuz.

The Strait of Hormuz remains a focal point of international legal and geopolitical tension, where the fundamental right of freedom of navigation confronts assertions of coastal state sovereignty and the complexities of international sanctions regimes. The differing interpretations of UNCLOS, particularly regarding transit versus innocent passage, continue to fuel legal debates and contribute to regional instability. While the international community largely upholds the principle of non-suspendable transit passage, Iran's persistent objections and its national legislation present a significant challenge to this norm.

For legal practitioners, advising clients engaged in maritime commerce, energy transport, or naval operations in the Persian Gulf necessitates a deep understanding of these intricate legal frameworks. This includes staying abreast of UNCLOS provisions, the evolving landscape of customary international law, and the extraterritorial reach of sanctions imposed by states like the US. Future stability in the Strait of Hormuz will likely depend on a combination of diplomatic efforts to bridge legal interpretive gaps and a commitment by all parties to adhere to established principles of international law, ensuring the unimpeded flow of global maritime trade through this indispensable waterway.