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journal of Maritime Law and Commerce, Vol. 12, No. 3, April, 1981

The Regime of International Straits:

Legal Implications for The Strait of
Hormus

S. H. AMIN*

A. The Legal Status of InternationalStraits

Although the legal status of certain straits has been formally defined,
the status of the majority of the world's straits still remains undefined.
As will be seen, there is not a universal international regime applicable
to all straits used for international navigation. Each strait has individual
characteristics reflecting its own geographical, historical, political, eco-
nomic, and strategic dimensions. In the absence of an international
convention applicable universally to all international straits, the status
of each strait may be defined on its own individual merits, by interna-
tional, regional, or bilateral treaties, or by tacit understanding. For
instance, the Turkish Straits are regulated by the Montreux Convention
of 1936; the Straits of Magellan by the Treaty of 1881 between Argentina
and Chile; the Straits of Gibraltar by the Anglo-French Declaration of
1904; the Danish Straits by the Danish-Swedish Declaration of 1932;
the Taiwan Straits by a French, German, Russian and Japanese agree-
ment of 1895.
The historical background of the straits named above has greatly
affected the definition of the legal status of each individual strait. It
follows that such agreements gave expression to an already existing state
of affairs. Thus, the definition of the status of a strait is declaratoryand
not constitutive. It is predictable that a regional agreement on a strait
will give rise to dissatisfaction on the part of non-coastal States-
particularly distant maritime Powers. It is, therefore, necessary for the
strait-controlling Powers to consult interested third States and interna-
tional organisations, since the status of any strait involves the interest of
the international community.
* LL.B., LL.M., Ph.D. Member of the Iranian and Scottish Bars; Senior Lecturer in Law at
Glasgow College of Technology.
387
388 Journalof Maritime Law and Commerce Vol. 12, No. 3

The matter of passage through international straits consisting of

territorial waters is most controversial. It is generally accepted that all
gulfs and bays surrounded by the territory of more than one littoral
State are non-territorial. This well established principle of international
law has been disputed by a number of States which claim territorial
rights over such waters. Traditionally, when the limit of territorial waters
was not permitted to be more than three miles, it was accepted that if
the two shores of a strait were bordered by the territories of different
States, each could exercise its sovereignty within the limits of its terri-
torial waters, subject to the right of innocent passage. This doctrine does
not prevail any longer, since its application to 12-mile territorial limits
will prove difficult. There is now no strong objection in modern inter-
national law to a 12-mile limit of the territorial sea. The validity of such
extension, however, is subject to reciprocity or recognition. Some 116
straits, out of a total 140 straits used by shipping, would become entirely
territorial sea if a 12-mile limit were to be accepted.' These include the
Straits of Dover; the Straits of Gibraltar; the Bering Straits; Bab-el-
Mandeb; and the Strait of Hormuz. It may be argued that the validity
of extension of the territorial sea to 12 miles within the straits is relative,
i.e., res inter alios acta (a transaction between others does not prejudice
one who was not a party to it).

The Right of Innocent Passage

The right of innocent passage through territorial waters has been

recognised as part of customary international law. Furthermore, the
International Court of Justice in the Corfu Channel Case (1949),2 be-
tween the United Kingdom and Albania, upheld the right of passage of
warships in time of peace through straits connecting two parts of the
high seas. The court stated that the decisive factor as to whether or not
a strait is subject to the right of free passage is its geographical situation,
i.e., if it connects two parts of the high seas and is being used for
international navigation. The right of innocent passage was later codified
within the terms of Article 14 of the Geneva Convention on Territorial
Sea and the Contiguous Zone (1958). 3 Article 16 (4) of the Convention
provided that there should be no suspension of the right of innocent
' U.S. Department of State, Sovereignty of the Sea, Bulletin, No. 3, October 1969, pp. 22-27.
2 1949 InternationalCourt of JusticeReports 4. Also see Churchill, Robin and Nordquist, Myron,
ed., New Direction in the Law of the Sea, New York: Oceana Publications, 1975, Vol IV, p. 286.
'UN Documents, A/CONF. 13/L 52-L-55.
April 1981 InternationalStraits 389
passage of foreign ships between territorial waters and the high seas
through straits which are used for international navigation.
Neither the right of innocent passage, nor the criteria for prohibition
of passage as non-innocent, are precisely defined. At the 1956 Interna-
tional Law Commission, the United States proposed that the sole test
for determining innocence of passage be the security of the coastal state.
Other extreme proposals referred to "interests of the coastal states" in
order to seek unlimited freedom for the coastal States to determine what
these interests might be.4 Significantly, the Iranian representative at the
Commission, arguing for the security interests of the coastal States,
voted against the right of innocent passage through international straits.
Although Iran eventually signed the Convention in 1958, she has not
ratified it. Moreover, Iran almost immediately (i.e., on April 12, 1959)
expanded her territorial limits to 12 miles.5 This was, inter alia,intended
to affect the legal status of the international Strait of Hormuz. At that
time, Iran would recognise, at the most, only 'innocentpassage'through
her 12-mile territorial sea. The Iranian move was challenged by the
United Kingdom because of her vital economic and strategic interests in
the Persian Gulf at that time. The British Note of October 12, 1959
stated that the United Kingdom could not recognise unilateral claims to
a breadth of territorial sea greater than three miles as valid under
international law. Iran, countering the United Kingdom's protest, stated
that she regarded the 12 mile extension of the territorial sea as essential
for national security. The Iranian delegates at both 1958 and 1960
United Nations Conferences on the Law of the Sea stated that the
strategic and political interests of the coastal States were in themselves
"highly importantpsychologicalfactors."6 Such arguments clearly dem-
onstrate the Iranian reluctance to recognize an unqualified right of
innocent passage of foreign warships through the international straits.
At present, the international customary rules provide the right of
international navigation through international straits between one part
of the high seas and another part of the high seas or the territorial sea
of a foreign State. This position is based on the long established principle
of the freedom of the high seas and the right of innocent passage. In
recent years, however, some 20 coastal States have specifically required
prior permission or notification from warships wishing to enter their
" McDougal and Burke, The Public Order of the Oceans: A Contemporary InternationalLaw of
the Sea, Yale University Press, 1962, pp. 251-252.
5 Iran, Majmo 'eh-i qavanin, 1338 (Iranian official Gazette, 1958/1959), The Law of Farvardin
22, 1338/April 12, 1959, pp. 3-4. For English text, see United Nations Legislative Series (UNLS),
National Legislationand TreatiesRelating to the Law of the Sea (ST/LEG/SER.B/L6), 1974 p. 18.
6UN Documents, A/CONF. 19/C. I/SR. 17 p. 9.
390 Journalof Maritime Law and Commerce Vol. 12, No. 3

territorial seas.' It is hoped that a study of State practice on the subject

will succeed in ascertaining the objective criteria and factors for suspen-
sion of the right of innocent passage. A review of national policies may
also shed some light on the question.
In the United Nations Sea-Bed Committee (1968-1973), the United
States proposed, on July 30, 1971, that in straits used for international
navigation, all ships and aircraft should enjoy the same freedom of
navigation and overflight for the purpose of transit through and over
such straits as they do on the high seas.' The United Kingdom, the
USSR, Australia, the Netherlands, and Norway all expressed their
support for this American proposal. Indonesia, on the contrary, stressed
that she would not accept proposals which claimed more than existing
rights for warships, submarines, and military aircraft.9
The USSR submitted draft articles on July.25, 1972 which, similar to
the American proposal, provided that all ships in international straits
used for navigation between two areas of the high seas should enjoy the
same freedom of navigation as they have on the high seas. However,
they provided that in the case of narrow straits, the coastal States might
designate corridors, but no State would be entitled to interrupt or stop
the transit of ships.1

The Right of Transit Passage

The "right of transit passage" through international straits, which

eventually prevailed in further debates at the Third United Nations
Conference on the Law of the Sea (UNCLOS III), originated in the
United Kingdom's draft at the Caracas session of the Conference in
1974.11
The future legal regime of international straits will be governed by
the provisions of the Revised Informal Composite Negotiating Text
(ICNT/Rev. 1) prepared by UNCLOS III at its eighth session donvened
in Geneva, March 14 to April 27, 1979. According to the ICNT/Rev. 1,
' Darman, R. G. "The Law of the Sea: Rethinking U.S. Interests", Foreign Affairs, January
1978, at 378.
sA/AC 138/SC. II/L.4.
9 For relevant documents on international straits, see Churchill, Robin and Nordquist, Myron,
op. cit., note 2, at 287-330. Also, see Oda, S., The Law of the Sea in Our Time-11, The UN Sea-
Bed Committee 1968-1973, Leyden: Sijthoff, 1977, at 195-196.
'0 A/AC. 138/SC. I I/L.7, July 25, 1972.
" For a fine discussion on international straits, see Kuribayashi. T., "The basic structure of the
new regime of passage through international straits-an emerging trend in the Third UNCLOS
and Japan's situation", 21 The Japanese Annual of International Law (1977), pp. 29-47.
April 1981 InternationalStraits 391
the extension of theaterritorial sea does not change the legal status of
international straits. Article 42(1) provides that the strait States may
make laws and regulations relating to navigation through the strait, but
the scope of coastal States' authority is considerably limited in compar-
ison with their authority in respect of the territorial sea. Under Articles
37 and 38(1), the "right of transit passage" would apply to straits which
are used for international navigation between one area of the high seas
or an Exclusive Economic Zone (EEZ) and another area of the high
seas or an EEZ. The freedom of navigation through the international
straits, as implied by Article 38(2), does not apply to ships passing
through straits for any purpose other than "continuous and expeditious
transit." Accordingly, the strait States may well deny any "transit
passage" right to ships engaged in overt military exercises 12and weapons
testing, surveillance, intelligence gathering, and refueling.
The purpose of the "transit passage" rule, envisaged in the ICNT/
Rev. 1, is to safeguard free transit through international straits and to
minimize interference by the strait States. However, in case of the failure
of the "transit passage" rule, there are other legal solutions to guarantee
orderly shipping in international straits. The right of passage is bound
to be subject to one of three choices open to strait States: (1) to allow
free transit; (2) to allow innocent passage as provided in Article 14 of
the Geneva Convention on the Territorial Sea and the Contiguous Zone
(1958); (3) to charge tolls for passage. Theoretically, however, these
States could use the drastic option of closing the straits to international
shipping. Dean Rusk and Milner S. Ball assert that none of these options
would present an insuperable barrier to international shipping, especially
since bilateral agreements for transit are possible. 3
It is almost certain that the transitpassage as adopted in the ICNT/
Rev. I will ultimately prevail as the legal regime of the international
straits. Although the developing States bordering the majority of the
world's straits did not initially agree to this regime, there is now more or
less a consensus throughout UNCLOS III for the transitpassageregime.
Having outlined the legal regime of the international straits in general
terms, the rest of this article concerns the legal status of the Strait of
Hormuz.
1
2 UN Documents, A/CONF. 62/W.P. 1O/Rev.l, April 28, 1979. For further discussions and
later developments see Reisman, W. M., "The Regime of Straits and National Security; An
Appraisal of International Lawmaking". 74 American Journalof InternationalLaw (1980), at 48.
'3 Rusk, Dean and Ball, Milner, S., 9 Georgia Journalof Internationaland Comparative Law
(1979), at 9-10.
392 Journalof Maritime Law and Commerce Vol. 12, No. 3

B. The Strait of Hormuz

Geographicaland GeneralDimensions
The Strait of Hormuz lies between Iran on the north and northwest
and Oman on the south. It runs in a general southwesterly direction.
The breadth of the Strait of Hormuz is slightly more than 24 nautical
miles. Most parts, however, are narrower than 24 miles, a distance
shorter than the total breadth of the territorial seas of Iran and Oman.
Thus, Iran and Oman claim that the waters around the navigation routes
of the Strait are subject to their territorial sea jurisdiction. The recent
war in the Gulf region highlighted that there is a very high probability
of closure of the Strait to international shipping. In the event, the
military presence of the United States and the United Kingdom in the
region prevented the actual blockade of the Strait. However, Iran
succeeded in diverting the navigation and ordered all shipping out of
the northern section of the Strait. In addition, the Anglo-American
interference in the Gulf was disapproved by the majority of the Gulf
States and cannot substitute a legal solution for the status of the Strait.
It is obvious that the Western Powers would not have interfered in the
Strait if the war had happened under the Shah. From 1972 onwards the
passage through the Strait was subject to Iran-Oman jurisdiction. Then
the Strait was subject to defacto closure at the Shah's mercy in time of
war or regional tension.

The Importance of the Strait of Hormuz

The passage through the Strait of Hormuz is particularly highlighted
because of its strategic and economic importance. Saudi Arabia, Iraq,
Kuwait, UAE, Iran and Qatar collectively supply about 50 per cent of
the non-Communist world's demand for oil. Almost all the Gulf States'
oil is shipped out through the Strait, hence the appellation of the
"international oil lifeline". According to an announcement by Iranian
officials in 1969, some 10 to 12 ships, including oil tankers, passed
through the Strait every hour. Later, it was estimated that oil tankers
accounted for 60 per cent of traffic passing through the Strait every day.
In 1980 it was reported that a loaded tanker passes through the Strait
every 18 minutes. The Strait of Hormuz is the third or fourth busiest
international strait in terms of tonnage. Some 250,000 tons of shipping
in about 300 tankers and cargo ships, carrying both oil and dry cargoes,
passes through the Strait each month. These statistics demonstrate that
April 1981 InternationalStraits 393
freedom of navigation through the Strait of Hormuz is vital to the
national interests, not only of the Gulf States, but also of the entire
industrial world, especially of Western Europe and Japan which depend
on the Gulf region's oil. 4

Outside Threats to the Strait's Security

In any military confrontation in and around the Gulf region, the

Strait of Hormuz would be the most important target. During the past
two decades or so, several outside instances (such as the Egyptian
involvement in the Yemen civil war of 1964-67, the Pan-Arabian
movement among the Gulf States, the British withdrawal from the
region, the Dhofari Liberation Movement in Oman in 1975, the political
instability of the region following the Islamic Revolution of Iran in
1979, and the Soviet military intervention in Afghanistan in 1980), all
challenged the security of the Strait of Hormuz.
The major outside threat is usually-thought to be the USSR. Within
the next decade the USSR will become a sizeable net importer of oil.
Thus the USSR will have to establish herself positively in the Gulf
region to secure her future demand for oil. This apprehension of trouble
from the USSR has been suggested, not only by some conservative Gulf
States and the West, but also by the People's Republic of China, which
advocates a regional Gulf Security Pact against this supposed Soviet
threat. The possibility of an oil blockade by the USSR was highlighted
in January 1980, after the Soviet military intervention in Afghanistan.
This was described as the prelude to a Soviet occupation of Gulf oil
fields. According to press reports, a guided missile frigate patrolled the
Strait, where a Soviet destroyer and a Natya class ocean minesweeper
were also present. The Soviet ships anchored outside the territorial
waters of Iran and Oman at a point where it was fractionally more than
12 miles from the coasts of each country. The USSR, however, remark-
ably maintained a "neutral" stand during the Gulf war of 1980. The
USSR-Syria 20-Year Treaty of October 8, 1980, made it clear that the
USSR did not wish any involvement in the war. The USSR stopped
arms supply to Iraq but poured about 10,000 military and technical
advisors into Syria. Not only is Syria traditionally hostile to Iraq, but
14For general information on the Strait of Hormuz, see Ramazani, R. K., The Persian Gulf and
the StraitofHormuz, Alphen ann den Rijn, The Netherlands: Sijthoff& Noordhoff, 1979, especially
pages 1-23. For later developments, see Amin, S. H., Internationaland Legal Problems of the Gulf,
London: Menas Press, 1981, at 12-16, 23-29, 39-40, 83-86, 111-112, 163-165, 202-208.
394 Journalof Maritime Law and Commerce Vol. 12, No. 3

she also actively supported Iran since the start of the Gulf war. The
USSR-Syria Treaty bound Syria closer to the USSR than any other
Arab State. The USSR was alarmed by the growing concentration of
American naval forces in the Arabian Sea since January 1980. The
Treaty was seen by the Iraqis as an indication that the USSR was
abandoning Iraq, her traditional ally, in favour of a new alliance with
Syria. In reality, the USSR-Syria Treaty of 1980 balanced the Soviet
relationship with Syria and Iraq on the one hand and with Iraq and
Iran on the other. There have also been reports that Israel is prepared
to attack Arab oil installations in the Gulf. In reality, not only the USSR
and Israel, but also the United States have considered military interven-
tion in the Gulf to protect their interests.
In 1977 the United States issued a statement that it was in its interests
to defend the Gulf from any agression. Kuwait then publicly rejected
any foreign intervention in the Gulf. The United States built up a
powerful naval force in the Gulf region during the 1979 Iran crisis,
although it refrained from attacking Iranian targets. In late December
1979, the United States seriously considered a naval blockade of the
Gulf in an attempt to put pressure on Iran for the release of the
American hostages in the United States Embassy in Teheran. Following
the Carter doctrine, the Arabian Sea has been patrolled by some 30
American naval vessels since January 1980, despite disapproval ex-
pressed by some Gulf States, especially Iran and Kuwait. Further, on
February 13, 1980 the United States sent a force (made up of 1,800
Marines and four ships, equipped with 18 helicopters, a number of M60
tanks, et cetera) to the Arabian Sea to deter any alleged Soviet attempt
to move militarily into the Gulf. At the same time, the British Conserva-
tive Government indicated some willingness to re-establish its military
presence in the region to protect the Gulf sea-lanes. Among the Gulf
States only Oman and Bahrain responded favourably to the Anglo-
American request for military facilities. In particular, in August 1980,
Oman agreed to allow the United States to use Omani seaport and
airport facilities. In September 1980, during the Iran-Iraq war, the
United States declared that she would take naval action to safeguard
the sea-lanes of the Gulf if necessary. The United States and NATO
sent more Air and Naval Forces to the Gulf area in October 1980.

Regional Threats to the Strait's Security

The major regional challenge to the freedom of navigation through

the Strait of Hormuz is the Iran-Iraq dispute which came to a head in
April 1981 InternationalStraits 395

September 1980. There were reports on September 23, 1980, that Iraq
intended to take control of the Strait after it had accused Iran of
attempting to block the arrival of ships and supplies through the mouth
of the Gulf. On September 25, 1980, Iraqi Forces invaded Khorram-
shahr, the Iranian port at the head of the Shatt-al-Arab, and struck
several bases inside Iranian territory, including Dizful, Abadan and
Ahwaz. A full scale war broke out between Iraq and Iran when the two
countries' Land, Air and Navy Forces were engaged. Iraq, however,
failed to score a quick victory because of Iran's unexpected resistance.
Iraq declared a unilateral ceasefire from October 5, 1980, but it was not
kept, as Iran refused to stop fighting as long as Iraqi troops remained on
Iranian territory. The United States, having consulted her Allies,
strengthened her naval presence in the Gulf region in order to secure
the flow of oil through the Strait. In the meantime, an Iranian official
statement (issued by the Office of the Prime Minister on October 1,
1980), designed to forestall any military intervention by the West,
declared that Iran would keep the Strait open.
Iran, under the Shah, was also thought to be a major challenge to the
security of the Strait of Hormuz. The Shah, of course, blaming Com-
munists, claimed the reverse. In general, the radical movements in the
region, traditionally supported by Iraq and the People's Democratic
Republic of the Yemen, gave rise to Oman's campaign for the security
of the southern shores of the Strait of Hormuz. The most active
movements are the 'Popular Front for the Liberation of Oman and the
Arab Gulf (based in Dhofar, Oman) and the separatist Balachistani
movement on the Iran-Pakistan border. The Government of Iraq
withdrew her support from these movements when she signed a treaty
concerning international borders and friendly relations with Iran on
June 13, 1975. Soon after, on March 7, 1976, Iraq's Foreign Minister
received an Omani delegation to discuss navigation through the Strait
of Hormuz, and in April, an Iraqi Ambassador was appointed to Oman,
a move which was followed in June by severe anti-Iraqi pronouncements
from the People's Democratic Republic of the Yemen. Despite the
improved Iraq-Omani diplomatic relationships, there were successful
bomb attacks by the Communist local activists on tankers passing
through the Strait. Since December 1977, the Strait has been occasion-
ally blocked for several hours before ships could move. Apart from the
Iran-Iraq conflict and the liberation movements, other regional threats
to the Gulf s security include territorial disputes over certain islands
between Iraq and Kuwait.on the one hand, and between Oman and the
UAE on the other.
396 Journalof Maritime Law and Commerce Vol. 12, No. 3

After the 1979 Islamic Revolution in Iran, all Arab nations, including
the Palestinians, demanded the return of the three Arab islands of Abu
Musa, Greater Tunb, and Lesser Tunb, occupied by Iran since 1971.
Iraq, in particular, threatened in April 1980 to regain these islands by
use of force. During this time, Iraq also claimed sovereignty over these
islands on behalf of the 'ArabNation' (ummat al-Arabiyyah). This caused
a new concern about the security of the Strait of Hormuz. On the other
hand, in April 1980, Iran threatened that she would close the Strait of
Hormuz in retaliation for any military action by Iraq or by the United
States (in connection with the hostage crisis). In September 1980, Iran
diverted the traffic through the Strait while the Iraqis prevented Iranian
freighters from sailing through the Shatt-al-Arab. As a result, Iran closed
her territorial waters all the way from the Strait of Hormuz in the south
to the Shatt-al-Arab in the north. Ships were told to stay outside the 12-
mile limit of Iran's territorial waters. The Iranian Navy maintained a
force of three frigates or destroyers in the Strait to interrogate ships and
to ensure that they steamed outside Iranian territorial waters. Under the
provisions of Article 16(3) of the Geneva Convention on the Territorial
Sea and Contiguous Zone (1958) a state may suspend innocent passage
through its territorial waters for reasons of national security.
During the Iran-Iraq war of 1980, the Government of Oman,
supported by British and American Naval and Air Forces, controlled
the traffic through the Strait of Hormuz. Thus, all Iranian attempts to
close the Strait were unsuccessful. Iraq was desirous of using the Omani
ports and airport facilities in her attempts to recapture the three disputed
islands of Abu Musa and the Tunbs. The control of these three islands
is a great advantage to whatever Power seeks to command the Strait.
The Iraqi representations were not accepted by Oman, under pressure
from the United Kingdom and the United States. The United Kingdom
maintains a military presence in Oman; there are several hundred British
seconded and contract officers serving with the Omani Armed Forces.
In effect, Oman is still virtually a British military protectorate. According
to Article 10(3) of the United States-Oman Treaty of December 20,
1958, United States vessels and nationals should be afforded 'most
favoured nation' treatment and 'national' treatment within the land
territory and the territorial sea of Oman. This, and the subsequent
treaties, offered the Americans all the legal bases they required for
intervention in the Gulf War of 1980. Sultan Qabus of Oman himself
had offered assistance to Iraq, but he was prevented from getting directly
involved in the conflict. Thus Oman demonstrated to maintain a "neu-
tral" position in order to secure international shipping through the
April 1981 InternationalStraits 397

Strait. Throughout the war Oman's small Navy constantly patrolled her
12 miles of territorial waters in the Strait of Hormuz and the Arabian
Sea to prevent any passage by the warships of Iran and Iraq. Both
warring States respected Oman's jurisdiction. In early October 1980,
three Iranian frigates entered Oman's territorial waters to identify
passing ships. This met with a diplomatic protest by Oman, as a result
of which the Iranian warships left immediately. Salim Abdullah al-
Ghazali, Oman's Under-Secretary of Defence, stated on October 3, 1980
that a "serioussituation" would arise if either Iran or Iraq entered Omani
territorial waters. In view of the presence of the Anglo-American Forces
in Oman, international traffic continued to pass undisturbed, despite
attempts made by both Iran and Iraq to establish exclusive control over
the Gulf sea lanes. The traffic moving through the Straits to and from
the Arab oil ports obeyed orders from the Iranian Navy to change
course while passing the islands of Abu Musa and Greater and Lesser
Tunbs. In the absence of Anglo-American influence on Oman the
position would have been difficult. Had the Gulf war occurred prior to
the fall of the Shah, while Iran and Oman were co-operating fully, Iran
would have been in a position to actually close the Strait to all littoral
and non-littoral States at the Shah's whim. Of course the entire situation
would have been different under the Shah, as the Iraqis would never
have even contemplated a full scale military confrontation with Iran.

The Legal Status of the Strait of Hormuz

There has been a sharp controversy among the Gulf States as regards
the legal status of the Strait of Hormuz. Iran and Oman, whose territorial
waters include almost the entire body of the Strait, claim sovereign
territorial sea rights over it. They contend that the regime of the Strait
is that of a territorial sea. Article 16(4) of the Geneva Convention on
the Territorial Sea and the Contiguous Zone (1958) stipulates that there
should be no suspension of the innocent passage through straits which
are used for international navigation between one part of the high seas
and another part of the high seas or the territorial sea of a foreign State.
Iran and Oman argue that the Strait of Hormuz is not subject to Article
16(4) because the Strait does not connect one part of the high seas to
another. They claim that the Strait should be governed by Article 16(3),
which is applicable to the territorial sea proper.
Under the Shah, Iran showed some flexibility towards the littoral
States. She contended at the 1974 Session of UNCLOS III that there is
a marked difference between the littoral States of the Gulf, on the one
398 Journalof Maritime Law and Commerce Vol. 12, No. 3

hand, and all the non-littoral States on the other. Freedom of passage
through the Strait should accordingly be fully guaranteed only to the
littoral States. A different regime should apply to the navigation of the
ships of other States which could pass through the Strait only for the
purpose of calling at one of the Gulf ports. Such a regime does obviously
restrict the right of transit passage of the non-littoral States to a great
extent. After the 1979 Revolution, however, Iran shifted her position. In
1980, Iran attempted to blockade the Strait to both non-littoral and
littoral States, but failed to do so because Oman facilitated the traffic
through the southern section of the Strait, which falls within Oman's
exclusive jurisdiction.
Oman's position as regards the status of the Strait has always been
less flexible than Iran's. Oman holds that the Strait should be subject to
the "innocent passage" regime. After intensive talks with the Intergov-
ernmental Maritime Consultative Organisation, as well as negotiating
with other Gulf States, Oman designated new corridors in the Strait
(November 1979). The shipping lanes were moved further offshore to
wider and deeper channels. All other Gulf States (except Iran and
Oman) hold that the nature of the Strait, although within the limits of
territorial waters, necessitates an entirely different legal status from that
of "territorial sea." That is to say, all military and non-military vessels
of all States have the right to free navigation through the Strait in time
of peace.

Passage through the Strait of Hormuz

Since both Iran and Oman have 12-mile territorial seas, the Strait of
Hormuz, with an exceptional slot, is now within the limits of the
territorial waters of these States. Article 3 of the Iranian Law of April
12, 1959, extended the territorial sea of Iran to 12 miles.' 5 Similarly,
Article 2 of the Omani Decree of July 17, 1972, defined the territorial
sea of Oman as extending 12 miles seaward, measured from the low-
water line of the coast.' 6 The territorial seas of Iran and Oman overlap
in parts of the Strait, leaving only a narrow area of high seas within the
Strait. Furthermore, the Omani Law on Marine Pollution Control,
which came into force on January 1, 1975, extended the Sultanate's
jurisdiction up to 50 miles from the coasts.1 7 For practical reasons, Iran
' Supra, note 5.
16
UNLS, ST/LEG. SER. B/18., 1976 pp. 80-82.
17 Id.,at 74.
April 1981 InternationalStraits 399

and Oman agreed (March 7, 1974)18 on provisions for joint defence of

the navigable channel in the Strait of Hormuz and joint patrols of
territorial waters by both air and sea. This joint control over the
maritime traffic through the Strait, in the name of pollution supervision,
ceased in early 1979 when the Shah of Iran was deposed. Iran abdicated
her previous role as a military protector of the Gulf. In September 1979,
the Sultan of Oman, deeply concerned about the security of the Strait,
sent a senior envoy, Mallallah All Habib, to Iran and Iraq to discuss the
issue. Oman expressed particular concern about the threat of terrorist
attacks on tankers using the Strait. The Iranian revolutionary authorities
had been reportedly willing to cooperate with Oman to safeguard the
Strait, although no concrete measures had been discussed. 9
The Iranian-Omani control of the Strait of Hormuz has been
thought to be potentially hazardous, especially to the right of freedom
of navigation by non-littoral States.2" The possibility of the irrational
diverting of tankers or the "closing" of the Strait makes the argument
more dramatic. In practice, however, such abuses by the bordering
States of the Strait would not be tolerated by the international com-
munity (in factual terms, by the major maritime Powers). This is evident,
particularly in political terms, when the dependence of the West and
Japan on the Gulf s oil is considered. The Shah's regime used to make
it clear that Iran would build up whatever military force was thought
necessary to keep the Strait open and safeguard the flow of oil from the
Gulf to "any free country." Also, all bilateral agreements and joint
declarations made by Iran and Oman under the Shah specifically
referred to freedom of navigation through the Strait. Furthermore,
Article 5 of the Iranian Proclamation of October 30, 1973, concerning
the Exclusive Fishing Zone of Iran, guaranteed the right of international
navigation exercised within Iran's jurisdictional waters."' After the Rev-
olution, for almost 18 months, Iran refrained from clarifying her posi-
tion, no doubt because of the region's instability. As soon as the Gulf
conflict escalated in September 1980, Iran took the position that the
regime of "innocent passage" should prevail within the "territorialsea
Strait of Hormuz". Iran accordingly designated its 12-mile limit in the
"For the text, see Ramazani, op. cit. note 14, at 140-141.
"Financial Times, September 17-22, 1979.
Young, R. 'The Persian Gulf, in Churchill et al., op. cit., note 2 supra, vol. III, 240. Richard
Young has expressed his concern about the Strait of Hormuz again in his 'Commentry' in Gamble
and Pontecorvo, ed., Law of the Sea: The Emerging Regime of the Oceans, Cambridge (Mass.)
BaUinger, 1974, at 237; and once again in reviewing Professor Ramazani's recent book (supra,note
14), 74 Am. J. Int'L L. (1980), at 469".
21UNLS, op. cit. note 16 supra, at 334.
400 Journalof Maritime Law and Commerce Vol. 12, No. 3

northern section of the Strait as a "war zone". Although Iran could not
close the Strait during the war, she effectively diverted the traffic from
her 12-mile territorial sea limits. However, Oman effectively controlled
the southern section of the Strait and prevented any major interruption
of tanker traffic. This was, no doubt, achieved with the help of the
American naval force which has been stationed in the Arabian Sea since
February 13, 1980. Furthermore, on September 27, 1980 President
Carter declared that the United States would take naval action if
necessary to keep the Strait of Hormuz open to international shipping.
Again, on October 1, 1980, the United States sent forces to Saudi Arabia
to monitor the Gulf war. This plan was informally discussed by the
United States with three of her European allies (the United Kingdom,
France, and West Germany) as well as Japan. As a result, the British
3,500-ton destroyer, HMS Coventry, and the Royal Fleet Auxilliary
tanker Owen, were detached from a task force in the Far East and
headed for the Persian Gulf. The Coventry was stationed in the Gulf of
Oman on October 9, 1980. The American and British task groups were
linked with the French warships in the Indian Ocean. Iran, pledging to
maintain freedom for shipping through the Strait of Hormuz, con-
demned foreign Powers which planned to "intervene in the Gulf under
the pretext of keeping the Strait open".
Although Iran and Oman have repeatedly announced their commit-
ment to uphold the navigation rights of the non-littoral States through
the Strait of Hormuz, they still claim territorial sea rights over the Strait.
The Iranian representative at the Caracas session of UNCLOS III in
1974, stated that the concept of freedom of passage through straits
consisting of territorial waters should not deny the legal nature of the
territorial sea. He argued that the 'right of transit passage' is not
incompatible with the territorial rights of the coastal State. Furthermore,
he demonstrated that coastal States should be afforded exclusive rights
to compile regulations regarding the passage of vessels through sea
corridors.22 Similarly, Oman submitted detailed draft rules to UNCLOS
III on navigation through the territorial sea, including straits which are
used for international navigation. 3 The Omani proposal recognised only
the right of innocent passage and not a regime of free navigation in
straits used for international navigation but forming part of a State's
territorial sea. The Omani draft articles specified certain provisions
regarding the innocent passage of non-military vessels through interna-
tional straits. These provisions sought compliance with the laws and
22 A/CONF. 62/C. 2/SR.23, July 3, 1974.
23A/CONF. 62/L.16, July 22, 1974.
April 1981 InternationalStraits 401

regulations of the coastal States by foreign vessels. The proposal men-

tioned that coastal States could require foreign military vessels in transit
to give prior notification or to obtain prior authorisation for passage.
The Omani proposal, amounting to exclusive jurisdiction of the States
bordering upon international straits, was supported by the People's
Republic of China, 24 but predictably opposed by all of the big maritime
Powers. All Gulf States, excluding Iran, totally opposed the Omani
proposal. The Iraqi delegation at the Second Session of UNCLOS III
(Caracas, 1974), proposed an unconditional right of free navigation
through international straits which join two parts of the high seas
(whether open or semi-enclosed seas). Bahrain, Iraq, Kuwait, Qatar, and
the UAE sponsored a proposal which defined the term "straits used for
international navigation" as any strait connecting two parts of the high
seas and customarily used for international navigation. 25 This proposal,
similar to that of the UAE in the Fourth Session of UNCLOS III (April
27, 1976), implied that claims by States bordering upon international
straits to 12-mile territorial sea should not change the legal status of
these straits. This view prevailed in later debates (1976-77). According
to Articles 34-38 of the ICNT/Rev. 1, the extension of the territorial sea
does not change the legal status of the international straits. As already
stated, the ICNT/Rev. 1, while recognising, in terms of Article 34(2),
the sovereign rights of the States bordering the straits, confirms, however,
the "right of transit passage" through international straits (Article 38).
Any claim by Iran and Oman that the Strait of Hormuz should be
afforded the same legal status as the territorial sea proper seems to
contradict the established norms of the international law of the sea.
Statements, such as those made by the Iranian and Omani representa-
tives at the Second Session of UNCLOS III (Caracas, June-August
1974), are not in harmony with the rights of the international commu-
nity. On July 26, 1974, the delegation of Iran stated that passage through
straits used for international navigation must not affect the legal status
of the territorial sea when the straits are situated within the territorial
sea of one or more States. This position, later abandoned by Iran, is
now favoured by the Islamic Republic. The international character of
the Strait cannot be denied in view of the fact that it is not totally
'territorial' because a narrow opening exists outside the territorial sea
limits of Iran and Oman.
Whatever the criteria for suspension of innocent passage may be, it is
at least established that the coastal States are not actually prohibited
24A/CONF. 62/C s/L. 16 July 23, 1974.
2' A/CONF. 62/C 2/L. 44, August 7, 1974.
402 Journalof Maritime Law and Commerce Vol. 12, No. 3

from suspending a passage as non-innocent within their territorial sea

proper. This view is supported by State practice such as that of Iran
(1980), the United States (1971), Nigeria (1976), and Vietnam (1965).26
Under conventional and customary rules of international law, there is
now no strong objection to the 12-mile limit of the territorial sea. Nor
is there any established objective set of criteria to prevent the coastal
States from suspending the right of passage through their territorial
waters. Iran and Oman, therefore, may suspend a passage within their
main territorial sea. But they also argue that once the juridical status of
a strait is altered by the extension of the territorial sea, the coastal States
concerned may suspend passage within their territorial waters as non-
innocent. The Islamic Republic of Iran's support for this argument is
evidenced by the announcements made in 1980 by Iran threatening to
blockade the Strait to both non-littoral and littoral States. This argument
is not acceptable under contemporary international law. However, if
Iran and Oman do not ratify the future Convention, as envisaged in the
ICNT/Rev. 1, they may well continue to claim that freedom of navi-
gation through the Strait of Hormuz is subject to the sovereign rights
which they exercise within the limits of their territorial seas. The majority
of the Gulf States do not accept the above-mentioned contentions of
Iran and Oman. Saudi Arabia, Iraq, Bahrain, Qatar, Kuwait, and the
UAE all maintain that the extension of the territorial sea by Iran and
Oman may not alter the legal status of the international Strait of
Hormuz. The suspension of a passage through the Strait as non-innocent
is clearly a potentional cause of conflict between the Strait States and
the rest of the Gulf States.
There is no doubt that the right of the freedom of international
navigation through the Strait of Hormuz should be upheld. Preferably,
the principle of 'right of transit passage', as drafted in the ICNT/Rev.
1, should apply to the Strait. A Kuwaiti publicist, writing on this
problem, has suggested two solutions.2 7 First, to regard the Strait of
Hormuz as an international strait open to all littoral and non-littoral
States, as provided under the ICNT/Rev. 1. This is the official position
of all Arab States, excluding Oman. Secondly, to adopt specific provi-
sions by means of a regional agreement among the Gulf States. This
should provide the right to free navigation through the Strait for both
6
For the text of these three States' announcement on temporary suspension of innocent passage,
see Knight, Law of the Sea: Cases, Documents, and Readings,Washington: Nautilus Press, 1976-77,
at 344-345.
27
A1-Awadhi, B., al-quanum al-dowalilil-biharfilKhaliz al-Arabi (Law of the sea in the Arabian
Gulf), Kuwait: Daralta 'lif, 1977, at 52-58.
April 1981 InternationalStraits 403

military and non-military vessels of all Gulf States. The military and
non-military vessels of the non-littoral States would have the right of
innocent passage. Accordingly, Iran and Oman would be able to suspend
passage of only non-littoral States, as non-innocent. This is exactly what
Iran suggested with regard to international navigation in semi-enclosed
seas in its draft articles submitted to the UNCLOS III, August 21,
1974.28 However, Iran's present policy seems to be identical to that of
Oman's, i.e., favouring the regime of "innocent passage".
The waters of the Strait of Hormuz, which were previously part of the
high seas, now consist largely of the territorial waters of Iran and Oman.
Under the ICNT/Rev. 1, the extension of the territorial sea does not
change the legal status of the international straits. However, both Iran
and Oman hold that, once the legal status of the Strait is changed, the
"innocent passage" regime should prevail. This stand is obviously
contrary to the "right of transit passage" provided in the ICNT/Rev. 1.
The ICNT/Rev. 1 repeatedly states that the international straits are
governed by "transit passage" regime outlined in Part III. Therefore,
they may not be subject to the "innocent regime" which is in Part 11.29
Nonetheless, apart from the political constraints, there is little guarantee
under international law of the right to passage through the Strait if both
Iran and Oman regard any instance of passage as "non-innocent".
The hostage crisis in Iran demonstrated that a desperate revolutionary
State is prepared to defy the most apparent norms of contemporary
international law. The Islamic Republic of Iran showed little respect for
the decisions made by the United Nations Security Council and the
International Court of Justice relating to the diplomatic immunity of
American hostages. 30 Nor did Iran accept the appeal by the United
Nations Security Council for an end to the Iran-Iraq war which began
in September 1980. After all, the Iranians argue, major Powers have
failed to honour the international law more frequently. The diaries of
Lord Ironside, published in 1977, in "The EnglishAmongst the Persians"
(by Denis Wright) established beyond doubt that Reza Shah Pahlavi
was brought to power in Iran by the British. In 1941 the British and
Soviet troops occupied neutral Iran to use it as a bridge (between the
Gulf and the Soviet borders). The Allies sent Reza Shah into exile (the
island of Mauritius in the Indian Ocean). Mohammad Reza Pahlavi was
crowned in September 1941 after his father's abdication. Again the
United States violated the cardinal principle of non-intervention in the
28A/CONF. 62/C. 2/SR 38, August 15, 1974.
For a fine discussion, see Moore, J. N., "The regime of the straits and the Third United
Nations Conference on the Law of the Sea", 74 Amer. J. Int'l. L. at 77 (1980).
30(1980) International Court of Justice Reports 3.
404 Journalof Maritime Law and Commerce Vol. 12, No. 3

internal affairs of Iran. The United States brought back to power in

1953, Shah Mohammad Reza Pahlavi, eventually deposed in 1979.
It is in the best interest of the international community if the provisions
of the ICNT/Rev. 1 concerning the "right of transit passage" through
the international Strait of Hormuz prevail. However, although the Strait
of Hormuz cannot be subject to the legal regime of the territorial sea, as
contended by the Strait States of Iran and Oman, a qualified "right of
transit passage" through the Strait of Hormuz may be permissible on
the grounds of national security of the Strait States. Accordingly, the
passage of the warships belonging to the non-littoral States may be
suspended. Such restrictions imposed on non-littoral States may be
justified in the light of the developing concept of the enclosed and semi-
enclosed seas. The suspension, however, may well be contested by the
non-littoral States and thus become a source of conflict. Technically,
there should be no discrimination amongst foreign ships. It is noteworthy
that the regulatory competence of the Strait States, as outlined in Article
42 of the ICNT/Rev. 1, is confined to making regulations concerning
(a) sea lanes and traffic separation schemes, (b) pollution control, (c)
fishing activities, and (d) customs, fiscal, immigration or sanitary issues.
These should not, however, according to Article 42(1), discriminate in
form or fact amongst other ships or, in their application, have the
practical effect of denying the right of transit passage.

Conclusion

As a prequisite to the stability of the Gulf region, the legal regime of

the Strait of Hormuz must be defined. In the absence of an international
agreement binding on all parties, there is an urgent need for a regional
convention spelling out the exact rights and responsibilities of the Strait
States of Iran and Oman vis-a-vis the littoral States of the Gulf, on one
hand, and the non-littoral States on the other.
Although the legal status of the Strait of Hormuz may be established
by a regional convention, it is very unlikely that such a convention will
make any drastic change. The historical usage and customs have always
been taken into account in all previous international agreements on
other individual straits. Thus, within a multi-national and/or regional
treaty, the status of the Strait of Hormuz should be clarified in line 'with
usages and customs which amount to non-territorialstatus of the Strait.
The Iran-Oman agreement on joint defence of the Strait (March 7,
April 1981 InternationalStraits 405
1974) did not try to establish an 'innocent passage' regime in the Strait.
Even if they had such an agreement, its validity would have been subject
to consent of all States concerned-both littoral and non-littoral. It is
hoped that the legal status of the Strait of Hormuz will be settled in a
peaceful manner without military pressure from outside Powers. The
Gulf States should reach an agreement on the bases of "right of transit
passage" and regional co-operation.