By Bahman Aghai Diba, PhD International Law of the Sea
The Strait of Hormuz is the narrow sea passage that connects the Persian Gulf to the Oman Sea. This is the only sea-passage for the export of oil from the Persian Gulf states. (1) Recently, due to the revival of the possibility of new sanctions against the Islamic Republic of Iran, which may include sanctions against the purchase of oil and the sale of petroleum products to Iran, the issue of Iran’s reactions, especially the closure of the Strait of Hormuz, has turned into a hot topic. Some Iranian officials have recently claimed that according to the 1958 Geneva Convention on the Law of the Sea, Iran can suspend the passage from the Strait of Hormuz for the countries that impose sanctions against the Iranian oil and gas imports and exports. This is a piece on the legal, political, military and practical aspects of this issue.
(map from: http://www.payvand.com/news/11/dec/1141.html )
The Government of the Islamic Republic of Iran has claimed time and again in the past that if it is put in serious danger it will close the Strait of Hormuz. Kayhan Newspaper, which is close to power circles in Iran, has reported in the past: “closing the Strait of Hormuz will seriously stop the flow of oil to the industrial states and they will face intolerable conditions.” (2)
Closing the Hormuz is going to be a two-sided weapon. Oil prices over a hundred dollars will have serious consequences for the international economy. However, Iran as an oil exporting country will be in a difficult situation if the export of oil is stopped. Iran's government derives about 80% of its revenues and most of its foreign currency from oil sales. Iran is not only relying on the oil revenues for its economy, but also it is an importer of oil products. Iran does not have the capacity to produce enough gasoline for internal consumption, and it has to import a major part of its needs from other countries.
However, the claims about closing the Strait of Hormuz, has several aspects:
The Strait of Hormuz is the export channel for 40 percent of the oil production of the entire area. This means that closing the strait is a declaration of war to the other exporting countries (Saudi Arabia, Kuwait, Iraq, Qatar, UAE, and Bahrain) and also to the importing states (including Japan, and the Western states that depend heavily on the oil from the area).
From military point of view, it requires great effort to close the strait, the narrowest part of which is 34 miles wide. The Iranian forces have conducted several maneuvers aimed at closing the Strait of Hormuz during a time of crisis, and the Western forces in the region (in cooperation with the some littoral countries or independently) have conducted several maneuvers aimed at deterring such plans. Although Iran may have enough firepower in the region to create problems, its military power is no match for the powerful forces present in the region. The military forces of the Persian Gulf littoral states have been increasing in the last several years, and at the moment, even a small country like the UAE has a more powerful air force than Iran. The American navy and other forces are heavily present in the region. In fact, in April 1988, US Navy, in retaliation against the mining of sea lanes by Iran (during the Tanker Wars), destroyed almost half of the Iranian navy in several hours in Operation Praying Mantis. (3) The French forces have a newly-established base in the area very close to the Strait of Hormuz and their main mission is to keep the Strait open.
It should be noted that any action by Iran to stop the flow of oil from Persian Gulf countries by blocking the strait Hormuz, attacking shipping lines, trying to blow up pipelines or the production and refinery facilities of the other countries in the region (such as Azerbaijan, Kazakhstan, and Turkmenistan in the Caspian Sea, or Saudi Arabia, Kuwait, Iraq, Qatar, the United Arab Emirates, Oman, Bahrain in the Persian Gulf), will be considered a serious violation of international laws and regulations for the concerned states. It would be in practice like giving them a declaration of war. At the same time, it would be a serious challenge to the interests of the major oil importing states, especially the USA.
Iran has signed the 1982 UN Convention on the Law of the Sea, but has not ratified it. However, Iran is committed to the convention (4), and considers the transit passage as only for those who have ratified it (US has not). So in the case of these countries Iran still believes in Innocent Passage. But innocent passage in the Straits used for international navigation is different.
One of the important subjects discussed during the various sessions of the UN Third Conference on the Law of the Sea was the regime of passage from the international straits such the Hormuz strait. The 1982 convention created and approved a new notion for passing from these straits which is called “transit passage”, and it gives more rights and freedoms to the passing ships than the previous customary regime of passage from these straits.
According to the declaration that Iran has issued at the time of signing the 1982 UN Convention on the Law of the Sea ,as far as the transit passage was concerned was that the new rights were based on the contract and therefore they extended only to those who accept all commitments coming from the 1982 convention, and that it did not extend to those who are not the members. The Iranian concern in this case, contrary to the well-known idea that it was against the big naval countries, was also coming from its conflicts with the Arab neighboring countries that tried to undermine the rights of coastal states of such waterways as much as possible. The Iran-Iraq- war (1980-1988) had added fuel to this kind of thinking.
During the Third UN Conference on the law of the Sea, the issue of passage from the international straits had gained special importance because:
The passage of the naval units from the territorial sea or in others words, extending the right of innocent passage to warships, was a controversial issue during the Third UN Conference on the Law of the Sea, and after the conclusion of the UNCLOS. The military issues were not in the agenda of the Third UN Conference on the Law of the Sea. However, during the sessions of the conference there were efforts to include subjects like the peaceful use of the oceans but they were not seriously followed. Therefore, the 1958 Convention on the territorial Sea and the 1982 UNCLOS have no clear regulations about the passage of the naval units from territorial seas. (6) Iran believes that the passage of naval ships of other states from territorial waters is dependent on prior notification and by observing innocent passage requirements. Some other countries that have the same policy are Egypt, Oman and Yemen.
Some Iranian politicians and academics have tried to argue that Iran has the right to close the Strait if the other countries ban its oil export and imports. One of them claims: “Iran believes that its likely enemies have to know that they do not possess all the chess pieces on the board. If Tehran is due to be deprived of its oil exports or faces paralyzing sanctions, the Strait of Hormuz will not be secure to tankers and ships carrying commercial goods or weapons to and from its enemies.” (7) The legal reason that Iran uses to substantiate its position is the Geneva Convention on the Territorial Sea and the Contiguous Zone (1958).
It should be noted that this argument has many problems, some of which are:
Notes and references:
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