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.
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:
Political
Aspect
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).
Military
Aspect
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.
Legal
Aspect
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:
It
was a matter of controversy between the countries bordering the straits and
other countries especially the countries with big naval and merchant fleets.
The
practice of 12 mile territorial sea was recognized and supported by the
countries and it added seriously to the number of international straits that
were less than 24 miles and therefore entirely within the territorial limits of
the bordering states.
The
previous customary regime of passage on the basis of 1958 convention of the
territorial sea (Geneva Convention) was innocent passage. “Under the regime of
innocent passage codified in Section III of the 1958 Geneva Convention, the
rule is established that transit is innocent only “so long as it is not
prejudicial to the peace, good order or security of the coastal state.” The
last section of the article also requires that submarines exercising the right
of innocent passage navigate on the surface, showing their flag. In Article 16
a coastal state is given the right to “take the necessary steps in its
territorial sea to prevent passage which is not innocent.” This phraseology is
nebulous enough as it stands; furthermore, the use of the word “prejudicial”
suggests that an actual injury to peace, good order, or security need not be
taking place for the passage to be deemed no longer innocent. If a reasonable
chance exists that such injury may be in the offing, the coastal state would be
in a strong position to decide that the passage is not innocent and exclude the
vessel from its territorial waters.” (5)
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:
Even
if we accept that the regulations about “transit passage” as envisaged in the
1982 Law of the Sea convention, do not apply to the countries that have not
joined it (this argument is rejected by many legal experts on the basis that
the transit passage as mentioned the UN 1982 Convention has turned into a part
of customary law and it is obligatory for all states, Iran has signed but not
ratified the 1982 convention, and according to the law of treaties, it is under
the commitment to refrain from doing anything contrary to it between the
signature and ratification period), and the passage of ships from straits used
for international navigation is not subject to the same kind of “innocent
passage” that is mentioned in the 1958 Convention about the innocent passage
from the territorial sea. The littoral states of straits used for international
navigation do not have the right to suspend the innocent passage in such waterways.
Most
of the “traffic separations lines” (these are the lines usually used by the
ships travelling in the area) are situated in the side of the Strait of Hormuz,
which technically, i.e. according to the international law of sea, is part of
Oman's territorial waters. The Iranian forces cannot make decisions for the
other part of the Strait which is technically the territorial sea of Oman.
Notes
and references:
There
are plans to establish a pipeline in the Arabian side of the Persian Gulf to
bypass the Strait of Hormuz, but it is not ready, and when it is ready, it
can’t replace the entire export capacity of the Arab oil exporting countries in
the Persian Gulf region.
Also,
Ayatollah Ali Khamenei, Iran's Supreme Leader, has given a warning that Iran
would disrupt the oil shipments in the Persian Gulf if the USA "makes a
wrong move" in the confrontation with Iran over the nuclear program of
Iran. (http://www.telegraph.co.uk).
Also, in 2006, the Iranian oil Minister, Kazem Vaziri-Hamaneh, claimed that Iran may use the oil weapon, if such would serve its national interests. (http://asianews.it/viewp.php?1=6550, dated 27 June 2006).
Also, the Iranian government spokesperson, Gholam-Hossein Elham said: "Iran would disrupt oil supplies as the last resort if it were punished over its nuclear program". (http://www.zaman.com).
Also, in 2006, the Iranian oil Minister, Kazem Vaziri-Hamaneh, claimed that Iran may use the oil weapon, if such would serve its national interests. (http://asianews.it/viewp.php?1=6550, dated 27 June 2006).
Also, the Iranian government spokesperson, Gholam-Hossein Elham said: "Iran would disrupt oil supplies as the last resort if it were punished over its nuclear program". (http://www.zaman.com).
According to the article 18 of the
convention on the law of treaties:
“Obligation not to defeat the object and purpose of a treaty prior to its entry into force
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
“Obligation not to defeat the object and purpose of a treaty prior to its entry into force
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
(a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or
(b) It has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.
http://www.worldtradelaw.net/misc/viennaconvention.pdf
RWG
De Muralt, the military aspects of the UN Law of the Sea Convention,
Netherlands Law Review, 1985, Vol. XXXII.
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