Passage of warships through the strait of Hormuz

Passage of warships through the Strait of Hormtiz

Said Mahmoudi

Oman has so far oersistently opposed transit passage as’a right for ilai States in the Strait of Hormuz. Iran’s policy has been to reject any recognition of this right for non-parties to the Law of the si?a Convention &OS Convention). The passage of foreign warships through the Strait of Hormuz during times of crisis and the claim by the major maritime powers to a right of transit passage give rise to a need for a closer examination of all the claims involved and their possible impact on the status of ‘transit-passage’ iti international law. It is submitted that Oman’s rejection of transit passage seems to be contradictorv to Article 310 of the LOS Conventioi, which prohibits ratifying States from making such exclusions. Iran’s recognition of transit passage as a contractual right is legally defensible, but probably does not c&respond to the actual practice of non-ratifying flag States, which presumably exercise the right of transii passage in the Strait of Hormuz. -. Said Mahmoudi is Associate Professor of International Law, Faculty of Law, Stockholm University, 106 91 Stockholm, Sweden, Tel: 08-16 26 10.

‘The term ‘territorialization’ as used in the literature on the law of the sea refers to any effort on the Dart of the coastal State to extend the breadth of its territorial sea, cf W. Riphagen, ‘La navigation dans le nouveau droit de la mer’, Revue g&&ale de droit infernational public, Vol LXXXIV, No 1, 1980, p 145.

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For an observer interested in the develooment of the concert of transit passage in the light of State practice, the’strait of Hormuz a’t the mouth of the Persian Gulf has provided a fascinating case study during the last five years. Both riparian States, Iran and Oman, have opposed the __ concept of transit passage as a right of flag States under customary international law. Oman, having ratified the UN Convention on the Law of the Sea (LOS Convention), has rejected the applicability of the right to transit passage in the Strait of Hormuz even as a contractual right for the parties to the convention. Two major events in the region - the eight-year war between Iran and Iraq in the 1980s with repeated air attacks ok; tankers and other vessels belonging to third States, and the occupation and later annexation of Kuwait bv* Iraa 1 in 1990 - have instigated the oresencc in the Persian Gulf of the warships of several maritime powers’with a claim to a right to transit passage in the straits used for intern~~ti(~n~l n~~vig~ti~)n, This paper investigates rhe legal positions of all parties involved in the passage of warships’through the Strait of Hormuz and examines the conformity of these positions with the present trends in international law.

Introduction The legal regime governing passage through the straits used for international navigation has been subject to drastic changes in the past two decades. The main reason for this has been the decision by the majority of coastal States to extend the outer limit of their territorial seas from a minimu~l (usually three nautical miles) to a m~~xiInum (12 nauticaf miles). The immediate result of such territorialization’ has been the inclusion of many high seas routes of straits into the territorial seas of littoral States. _ Because of the significance of straits to international communication, there has always been an understanding between the strait States and so-called user States that the passage 1 Y through the straits-- if the sea lanes are part of the territorial sea of the coastal State - should he governed by a more liberal regime than that governing the passage of the foreign vessels in the territorial sea generally. However, it is natural that coastal

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Passage of warships through the Strait of Hormuz

States would like to exercise the highest possible control over the passage of the vessels, while flag States seek to secure as much freedom of movement as possible. As a result of these two conflicting interests, the majority of the participating delegates in the First United Nations Conference on the Law of the Sea in 1958 agreed on a right of non-suspendable innocent passage for all vessels in the territorial seas forming straits used for international navigation. Although the passage was meant to be nonsuspendable, the coastal State had the final word as regards the type of passage and the route and the number of vessels allowed to pass under a specific period of time. Because a number of straits used for international navigation were so wide that high seas routes could be provided for passage, the maritime powers could live with the restraints of the right to non-suspendable innocent passage in the narrow straits. However, at the beginning of the 1970s over 116 straits were threatened with becoming territorial waters of the strait States because of the extension of the limits of the territorial seas. The maritime powers insisted on linking the coastal State’s right to extend the outer limit of the territorial sea to 12 nautical miles with the right for themselves to continue free transit’ through the straits. They did not confine their claim to the previous high seas routes through straits, but extended their demand to afl sea lanes through the territorial seas of the straits. This would have meant that even those routes which were admittedly under the regime of non-suspendable innocent passage should be covered, according to these powers, by the regime of free transit. As a compromise between these two positions, a new concept transit passage - was introduced in the LOS Convention. The concept denotes a right which ‘lies somewhere between freedom of navigation on the one hand and innocent passage on the other’.” Although the right to a 12-mile territorial sea is now generally considered as customary international law, the status of ‘transit passage’ as customary or contractual law is still a contentious subject. This article briefly expounds on the contents of non-suspendable innocent passage and transit passage, and evaluates their possible applicability to the Strait of Hormuz in the light of the legal arguments and position statements of Iran and Oman and the actual practice of the flag States. It may be noted that the provision of the LOS Convention do not make any distinction between the passage of warships and other vessels through the straits; the passage of all vessels is governed by the same regime.

Innocent passage vhbvis ‘Free transit was proposed by, among others, the USA and was supposed to mean the same as freedom of navigation with the right for the coastal State to establish appropriate sea lanes and traffic separation schemes. 3M. Reisman, ‘The regime of straits and national security: an appraisal of international law making’, American Journal of lntemational Law, Vol 74, No 1, 1980, p 68.

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transit passage

Passage through straits whose waters constitute the territorial seas of one or more States has been, according to a judgment of the International Court of Justice in the Corfu Channel case, subject to the regime of innocent passage: It is, in the opinion of the Court, generally recognized and in accordance with custom that States in time of peace have a right to send their warships through straits used for international navigation between two parts of the high seas without prior authorization from a coastal State, provided that the passage is innocent. Unless otherwise prescribed in an international convention, international

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there

is no right for a coastal

State

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time of peace.4

The court’s ruling, which concerned a strait connecting two parts of the high seas, found expression in Article 16(4) of the 1958 Conventi~)n on the Territorial Sea and Contiguous Zone, although with much broader coverage. Article 16(4) containing the right to non-suspendable innocent passage is not confined to straits between two parts of the high seas, but is to be applied even to those connecting a part of the high seas and the territorial sea of a foreign State:’ There shali be no suspension of the innocent passage of foreign ships 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.

“ICJ Reporfs 1949, pp 29-30. 5This was mainly done to protect the interests of Israel in the Gulf of Aqaba and to safeguard the right of non-suspendable innocent passage through the Strait of Tiran. That was why many Arab States refused to sign this convention. See, R.R. Churchill and A.V. Lowe, Law of the Sea, 2 ed, Manchester University Press, Manchester, 1988, p 89. ‘Cf L. Lee, ‘The Law of the Sea Convention and third states’, American Journal of lnfemafional Law. Vol 77, No 3, 1983, p 557. 70ne occasion was the flights taking military aid to Israel in 1973 through the Strait of Gibraltar. The flights were not authorized by the coastal States. The Strait of Gibraltar is approximately eight miles wide; Spain has a historic six-mile claim of territorial sea and Morocco extended the limit of its territorial sea to 12 miles in 1973. However, the USA did not recognize any of these claims, and adhered to the three mile rule. The same routes were also used by the American Air Force in attacking Libya in April 1986. See. T. Treves, ‘Notes on transit passage through straits and customary law’, A. Bos and H. Siblesz, eds, Realism in Law-Making, Martinus Nijhoff, Dordrecht, 1986, p 285: Churchill and Lowe, op cif, Ref 5.

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The right of the flag State to non-suspendable innocent passage is an exception to the otherwise absolute sovereign rights of the coastal State in its territorial sea. Although the passage should not be hindered, it is the coasta State which may judge if passage is innocent. The strait State has also an unfettered right to adopt rules and regulations, and if necessary enact laws regulating the passage. In other words, according to Article lh(4), the littoral State may exercise sovereign rights in all respects with the sole obligation of not hindering the passage. The concept of transit passage, which was jntroduced to the Third United Nations Conference on the Law of the Sea (UNCLOS III) in order to substitute the right of non-suspendable innocent passage, represents a move from freedom of navigation towards innocent passage. Whereas innocent passage is an ~xce~~rion to the sovereign rights of the coastal State, transit passage is meant to be the rr& - a right for the flag State subject only to some limited well-defined obligations ~‘il-&-r~is the coastal State. Study of the provisions of the LOS Convention concerning transit passage reveals that the legal positions of the coastal States and flag States with respect to claims of rights in the straits used for international navigation have been reversed. Whereas the 1958 Convention and its non-suspendable innocent passage provisions explicitly gave the upper hand to the coastal State, the LOS Convention undoubtedly puts the flag State in a superior position. Transit passage is defined in Article 3X of the LOS Convention as the continuous and expeditious passage of all ships and aircraft, military as well as commercial, through, under and over straits that connect one part of the high seas or exclusive economic zone to another part of the high seas or exclusive economic zone, without prior notification to or authorization from States bordering straits.” Article 42 enumerates the rights of the strait States, which consist of adopting laws and regulations with respect to the safety of navigation and maritime traffic, the preventi and control of p(~lluti[~n, and the prevention of fishing. In addition to the differences in the origin of the rights to innocent or transit passage, there are two significant features distinguishing the former from the latter: (1) submarines, which under the regime of innocent passage must navigate on the surface and show their tlag, are permitted, according to the regime of transit passage, to continue na~/~gation under water; (2) the right to overflight in the straits, which was not previously regulated by the law of the sea, is now an inherent part of the concept of transit passage. This right is of particular on importance for major powers, and has already shown its relevance several critical occasions.’

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Passage of warships through the Strait of Hormuz *B.H. Oxman, ‘Le regime des navires de guerre dans le cadre de la Convention des Nations Unies sur le droit de la mer’, Annuaire francais de droit international, Vol XXVIII, 1982, p 845. gJ.B.R.L. Langdon, ‘The extent of transit passage, Some practical anomalies’, Marine Policy, Vol 14, No 2, March 1990, p 132. ?reves, op tit, Ref 7, p 253. “The interests of the USSR and Western maritime powers, unlike in the 1958 Conference on the Law of the Sea, were similar as regards straits used for international navigation. However, the USSR was originally concerned to limit passage through the straits of the Baltic and the Black Sea only to the riparian States. The USA and the UK, because of strategic interests in the Persian Gulf and Mediterranean, insisted on absolute freedom. See, D. Momtaz, ‘La question des detroits a la llle conference du droit de la mer’, Annuaire francais de droit international, Vol xx, 1974, p 856. “Treves, op tit, Ref 7. ‘%uch straits are defined in Article 16(4) of the 1958 Geneva Convention on Territorial Sea and Contiguous Zone as those used for international navigation between one part of the high seas and another part of the high seas or territorial sea of a foreign State’. The LOS Convention, however, without specifically providing any definition for such straits, enumerates five sorts of straits used for international navigation. They are: (1) straits connecting two parts of the high seas or exclusive economic zones (Article 37); (2) straits formed by an island and its mainland (Article 38(l)); (3) straits connecting the high seas with the territorial sea of a foreign State (Article 45(l)(b)); (4) straits which are so wide that they permit a high seas route or a route through an exclusive economic zone (Article 36); and (5) straits which are under an old legal regime established by conventions (Article 35(c)) Cf D. Vignes, ‘Le regime des detroits et voies interessant la d’eau artificielles Mediterranee et le nouveau droit de la mer’, in B. Vukas, ed, The Legal Regime of Enclosed or Semi-Enclosed Seas: the Particular Case of the Mediterranean, Birotehnika, Zagreb, 1988, pp 142-l 43. For a discussion on the concept of ‘used for international navigation’ see S.N. Nandan and D.H. Anderson, ‘Straits used for international navigation: a commentary on Part Ill of the United Nations Convention on the Law of the Sea’, British Yearbook of international Law, Vol 60, 1989, pp 167169. For the case of Hormuz as a strait used for international navigation, see Churchill and Lowe, op tit, Ref 5, p 90. ‘%onference des Nations Unies sur le droit de la mer, 24 fevrier - 27 avril 1958, Volume 1, P 130: R. Youna. ‘The Persian Gulf’, in d. ‘Churchill et al, eds, New Directions in the Law of the Sea, Vol 3, The British Institute of International and Comparative Law, London, 1973, p 231.

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The privileges of transit passage over innocent passage for the flag State are not confined to these two features. Other difference8 include:

(1) the

coastal State does not have the right to hinder a passage which is not innocent; (2) prohibition of the threat to use force is formulated as an obligation of the flag State and not as a right of the coastal State; power of the strait State (3) with regard to warships, the regulatory concerning traffic and protection against pollution is more or less circumscribed either because it is subject to some qualifications or because its exercise requires the sanction of a competent international organization; (4) the remedy against the violations of the rules of the coastal State by a foreign warship is to be sought through the diplomatic channels; the question of the ‘innocent’ character of the warships is not (5) addressed. It is, therefore, possible for the warships to ‘engage in exercises so long as these are consistent with their normal mode of continuous and expeditious transit’.” This brief examination of the features of innocent and transit passage discloses why the strait States in general and those bordering narrow straits in particular were against transit passage. It should be recalled that the geographical situations of the straits can be very different, depending, infer afia, on the breadth of the strait; the depth of the water; the configurations of the seas connected by the strait; etc. Notwithstanding all these differences, the strait States unanimously considered the concept of transit passage to be a substantial curtailment of their discretionary power to safeguard their security interests and to protect the environment against the risk of pollution. In spite of the reluctance of the strait States, several factors contributed to the gradual softening of their attitude toward transit passage. The first of these was the increasing support for the concept of transit passage both within UNCLOS III and outside. The second factor was the insertion of certain provisions in the negotiating texts of the conference which could satisfy the environmental requirements.‘O The most important factor, however, was probably the mechanism of a ‘package deal’, which necessitated trade-offs between different parts of the LOS Convention in order to attain consensus. The tolerance of many strait States towards transit passage was also due to the unified attitude and concerted efforts of all the maritime powers, including the USSR.” It was realized that without the inclusion of a more extensive right of passage and overflight through and over the straits, the possibility of commanding a consensus on a final convention text was remote. ‘*

The Strait of Hormuz: pre-UNCLOS

III regime of passage

The Strait of Hormuz, a narrow waterway connecting two parts of the EEZ or high seas in the Persian Gulf and the Sea of Oman, is a strait used for international navigation. ‘s It is bounded on the northern side by Iran and the inshore Iranian islands of Qeshm, Hengam, Larak, and Hormuz. The southern side of the strait is formed by the Musandam peninsula belonging to Oman. The Omani islands of Great Quoin and Little Quoin are situated between seven and a half and nine miles north of Musandam. l4 The shortest distance between the Iranian and Omani

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“For a detailed account of the geographical facts, see R.K. Ramazani, The Persian Gulf and the Straif of Hormuz, Martinus Nijhoff, Dordrecht, 1979, pp l-4. ‘6/hid, p 2. 17The Iranian law was enacted on 12 April 1959 and Oman’s decree was issued on 17 July 1972. D. Momtaz, ‘Le statut juridique du Golfe Persique’, Vukas, op tit, Ref 13, p 43. ‘8Proclamation of 30 October 1973 Concerning the Outer Limit of the Exclusive Fishing Zone of Iran in the Persian Gulf and the Sea of Oman, in National Legislation on the Exclusive Exclusive Economic Zone, the Economic Zone and Exclusive Fishery Zone, Office of the Special Representative of the Secretary-General for the Law of the Sea, United Nations, New York, 1986, p 156; Oman’s Royal Decree Concerning the Territorial Sea, Continental Shelf and Exclusive Economic Zone of 10 February 1981, ibid, p 233. ‘%f Nandan and Anderson, op tit, Ref 13, pp 178-179. “For a discussion of doctrinal differences about the status of non-suspendable innocent passage as customary international law, see Treves, op tit, Ref 7, pp 251-52.

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baselines in the Strait is twenty and three quarter miles, measured between Great Quoin (Oman) and Larak (Iran). The water in the Strait of Hormuz and the Persian Gulf is shallow and depths on the Omani side are greater than on the Iranian side. Off Musandam peninsula the depth is about 80 fathoms. ” The sea lanes normally used by tankers and other larger vessels are designated close to the Omani coast - mostly less than three miles from the baselines where the depth of the water may reach 50 fathoms, which permits the passage of almost all types of vessels. Vessels approaching the Strait from the Sea of Oman bound for the Persian Gulf proceed to a point about nine miles southeast of Little Quoin, and then turn to the left and continue within a one-mile-wide traffic separation zone which is established between the island and another small Omani island, called Tawakkul.” This is the shortest and, because of the depth of the water. the most convenient way for vessels to get to the Persian Gulf (see Figure I). Iran and Oman have chosen straight baselines for the establishment of the outer limits of their territorial seas in this strait. Iran extended the outer limit of its territorial seas to 12 nautical miles in 1959. Oman followed suit in 1972.” Consequently, some areas in the Strait became totally territorialized. Moreover, Oman proclaimed a 200-mile EEZ in 1981, while Iran has so far been content with an exclusive fishing zone which extends to a maximum of SO nautical miles in the Sea of Oman and to the outer limit of the continental shelf in the Persian Gulf.‘X Therefore, vessels approaching the Strait of Hormuz from the Sea of Oman are normally navigating either on the high seas or in the EEZ of Oman, they then enter and pass through the territorial sea of Oman, and proceed in the Oman EEZ in the Persian Gulf. This has been the traditional navigation pattern of the larger vessels bound for the Persian Gulf. This is exactly the pattern of passage which falls under the purview of Article 37 of the LOS Convention.“’ It should be noted that the territorialization of the Strait by Iran and Oman did not affect the nature of the passage of foreign ships, which largely took place within the three-mile limit from the Omani baselines.

Iran and Oman’s response to transit passage When the discussion on transit passage commenced at UNCLOS III, both Iran and Oman invoked the principle of innocent passage with regard to the Strait of Hormuz. This was in harmony with the State practice and presumably customary international law as evidenced by the judgment of the International Court of Justice in the Corfrd Chumel case, and codified in Article 16(4) of the 1958 Convention on the Territorial Sea and Contiguous Zone.“’ Apart from the question of prior notification or authorization for passage of warships, there were in fact no controversies concerning non-suspendable innocent passage through straits until the end of the 1960s. Like almost all other strait States. Iran and Oman were not prepared to accept freedom of navigation in the sea lanes of the territorial seas which formed straits used for international navigation. This is clear from the positions taken by these two countries in UNCLOS III between 1974 and 1982. One of the first important steps towards a clarification of the position of the strait States was taken by Oman, which together with three other strait States - Malaysia, Morocco and Yemen (then Southern Yemen) -

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Passage of warships through the Strait of Hormuz

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Document A/CONF.62/C.2/L.16, UNCLOS III, Official Records, Vol III, pp

“UN

194-l

95.

“UNCLOS Ill, Official Records, ibid, p 124.

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proposed, on 22 July 1974, some draft articles on passage through straits used for international navigation.2’ Foreign ships, according to these draft articles, had the right to a non-suspendable innocent passage. The Iranian position was unequivocal. On 22 July 1974, Iran expressed the view that ‘any proposed rules regarding passage through “that part of the territorial sea which constituted a strait used for international navigation” should be based on existing rules, particularly those contained in the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone’.22 However, Iran did not reject any form of free transit as categorically as Oman. Iran maintained: a satisfactory solution might be reached without denying the legal nature of the territorial sea. Rules could be devised which would guarantee freedom of passage for foreign vessels while taking account of such questions as the security

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Passage of wauhips through the Strait of Hormuz

=/bid. 24Young op tit, Ref 14, p 234; Middle East Journal, ‘No 26, 1979, p 167. 250ne interpretatoin of transit passage has been that this right is not confined to the passage within the established traffic separation zone, but ‘ships and aircraft on transit passage can plan their track through such straits, coast to coast to the limits of safe navigation so long as that track is consistent with continuous and expeditious transit’. Langdon, op tit, Ref 9; cf Ref 2. 26During the Fifth Session of UNCLOS III, the Second Committee established five informal negotiating groups to deal with hard-core issues before that committee. Negotiating group 4 dealt with the question of straits used for international navigation. There are no records of these negotiations. A summary of the results of the negotiations and the statements of Oman and other strait States is included in the Final report of the Swedish delegation from the Fifth Session of UNCLOS Ill, 1976, pp 32-33. See also AICONF.62IL.17, 16 September 1976, UNCLOS III Official Records, Vol VI, p 138. 27Momtaz, op tit, Ref 17, p 433. “See the statement by the delegation of Spain dated 26 August 1980, UNCLOS Ill, Official Records, Vol XIV, pp 149150; final report of the Swedish delegation from the resumed Ninth Session of UNCLOS Ill, 1980, p 17. 2gJ. Moore, ‘The regime of straits and Third United Nations Conference on the Law of the Sea’, American Journalof International Law, Vol 74, No 1, 1980, p 77. %Statement of the representative of Iran in UN Monthly Chronicle, March 1983. 3’Momtaz, op tit, Ref 17, p 433.

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of coastal States, the protection

of the marine

the passage

sea corridors.23

of vessels through

environment

and the regulation

of

This statement was more or less in keeping with an announcement that Iran made in January 1972 after gaining control over three islands of Great Tumb, Little Tumb, and Abu-Musa in the Persian Gulf. Iran had a long-standing but dormant claim to these islands, which until then had belonged to the emirates of Ras al-Khaimah and Sharjah. The establishment by Iran of territorial seas of 12 miles around these islands would practically embrace most of the inbound and outbound traffic routes in the Persian Gulf. In order to allay the worries of the maritime powers, Iran announced that it would not use its position to interfere with free transit.24 The more relaxed attitude of Iran with respect to transit passage was mostly due to the fact that the actual passage of warships in the Strait of Hormuz had traditionally taken place within Omani territorial waters. However, extension of transit passage to the strait could probably permit the free navigation of foreign warships and free overflight of aircraft anywhere outside the Iranian coasts in the area.25 Iran’s resistance to transit passage seems to have been motivated by this possibility. The concept of transit passage as proposed and defined by the maritime powers was incorporated in the negotiating texts of UNCLOS III. The response of the strait States was that the regime of transit passage totally disregarded their security interests. Oman even emphasized the need for a general requirement of prior notification.‘” It was also pointed out that the right to overflight should be excluded from the discussions because it hardly belonged to the law of the sea in the real sense of the term. In spite of a wide range of arguments employed against the concept of transit passage, a breakthrough in the negotiations at the conference in 1977 resulted in most strait States more or less acquiescing in transit Iran was reportedly satisfied with the passage. At the time, compromise.*’ During the following years no substantive discussion on transit passage took place at the conference. and even when several delegations tried in 1980 to take up the question of straits used for international navigation, the effort became frustrated’” by the need to avoid upsetting the balance which had been worked out between different interests in the convention. The reluctance of the conference to discuss this question at that stage was due to a general understanding by the delegates almost three years before the adoption of the convention that the link between the right to transit passage and the extended territorial sea had been recognized, and negotiations on the subject were concluded.29 The acquiescence of the strait States on the right of transit passage was in harmony with compromises made by other States on other delicate questions, and with the general spirit of cooperation needed in order to reach consensus on a world law for all human activities in the seas.3o The acquiescence of the strait States did not mean that they had in fact accepted transit passage, just that they tolerated it. The attitude of Iran is of particular interest. Following the revolution in Iran and establishment of the Islamic Republic of Iran in 1979, the previous satisfaction with the provisions of the negotiating texts concerning transit passage was repudiated. Iran declared that it could not guarantee any passage which might threaten its security?’ In line with

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Passage of warships through the Strait of Hormuz

321bid. 330cean Policy News, Special Report: the Preparatory Commission, Seotember 198’9, p l._ 34Multilateral Treaties deoosited with Secretary-General, Status as at 31 December 1988, UN Document ST/LEG/ SER.E/7, p 762. 351bid. 36D. Vignes, ‘Les Declarations faites par ctats signataires de la Convention des Nations Unies sur le Droit de la Mer, sur la bas de I’article 310 de cette Convention’, Annuaire francais de droit international, Vol XXIX, 1983, p 727. 37See above, Ref 5.

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this change of policy Iran, together with Oman and some other States, proposed in the last session of the conference that rules and regulations should be adopted in order to give coastal States the power to control the traffic of warships in the territorial sea. This proposal was not adopted by the conference.32 Article 310 of the LOS Convention permits a State to make declarations or statements upon signing, ratifying or acceding to the Convention provided these declarations or statements ‘do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State’. Both Iran and Oman have signed the LOS Convention. Oman even ratified it on 17 August 1989.33 Both countries have appended declarations upon signature. Oman has, moreover, reiterated its position through a declaration at the time of ratification. The Iranian declaration is straightforward in calling the right to transit passage ‘a product of quid pro quo which (does) not necessarily purport to codify the existing custom . .‘. Therefore, ‘only States parties to the Law of the Sea Convention should be entitled to benefit from the contractual rights created therein’.34 It is abundantly clear from this declaration that: (1) Iran in principle accepts the right of transit passage; (2) it considers transit passage as only a progressive development of international law; (3) Iran is well aware of the balance between transit passage, extended territorial sea and other legal regimes in the convention such as the exclusive economic zone and the deep sea-bed mining regime. Accordingly, the obligatory nature of any of these rights should perhaps be balanced by the mandatory nature of the others. Oman’s declaration at the time of signature was quite short. It contained a reference, inter alia, to Article 34 concerning the legal status of waters forming straits, Article 38 about the right of transit passage and Article 45 on the right to non-suspendable innocent passage in certain straits. Oman claimed that the application of the provisions of these articles did ‘not preclude a coastal State from taking such appropriate measures as are necessary to protect its interest of peace and security’.” The reference to Article 45 in Oman’s declaration gives rise to speculation. According to this article, transit passage may not be applied in straits used for international navigation situated between a part of the high seas or an exclusive economic zone on the one hand and the territorial sea of a foreign State on the other. In these types of straits the right of non-suspendable innocent passage should apply. It has been noted that the reason for such a reference to Article 45 by Oman is that the navigational channels in the Strait of Hormuz have been, since the beginning of the 197Os, designated in the territorial sea or internal waters of Oman. Oman is probably attempting to extend the regime of Article 45, ie non-suspendable innocent passage, to the Strait of Hormuz.36 This is, in fact, a very far-fetched interpretation of the provisions of Article 45. The history behind this article and its predecessor (Article 16(4) of the 1958 Convention on the Territorial Sea and Contiguous Zone) attests to the fact that the real subject matter was the Gulf of Aqaba and the Strait of Tiran.” Another view is that Oman’s reference to Article 45 may be due to the possibility which was extended to delegates in the last session of the conference to reserve the right of taking necessary measures for safeguarding security in their territorial seas. Even here Oman’s inter-

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Panage

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the Strair of Hormuz

38Momtaz, op tit, Ref 17, p 433. 390cean Policy News, op tit, Ref 33, p 1. 40However, certain States have always required it. The USSR used to require warships to obtain authorization for entry into Soviet waters 30 days prior to entry. See Ocean Policy News, March 1988, p 2. Sweden has required prior notification for the entry of foreign warships into her territorial sea. However, Oresund, which is a strait used for international navigation, is exempted from this requirement. See SFS 1982:755 (The Collection of Swedish Laws, 1982:755). 4’A uniform interpretation of the provisions of the 1982 Convention, which was appended to this statement, provided that except for those activities. which are enumerated in Article 19 of the LOS Convention as being not innocent, the passage of warships on all other cases should be considered innocent, and there is no need for prior notification or authorization for such passage. For details, see L. Juda, ‘Innocent passage by warships in the territorial seas of the Soviet Union: changing doctrine’, Ocean Development and International Law, Vol 21, No 1, 1990, pp 1 l-l 16. See also Ocean Policy News, September/October 1989, p 1. 42M. Mir Mehdi, ‘Enclosed and semienclosed seas in international law’, lecture delivered at the International Conference on the Persian Gulf, Tehran, 20-22 November 1989. 43The author had the opportunity, in November 1989, to interview two Omani officials closely connected to the Ministry for Foreign Affairs of Oman. They acknowledged that the entrance of foreign (Western) warships to the Persian Gulf in the middle of the 1980s in order primarily to protect Kuwait’s commercial fleet was considered by Oman to be a necessity of national security. On no occasion, however, had any request from the Western powers for authorization or even any formal prior notification been made. Information concerning the intention of the US navy to pass through the Strait of Hormuz, according to the officials, had come to the attention of the Omani authorities through the mass media.

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pretation seems to be extensive, because the above-mentioned right was with respect to territorial seas in general, which are distinguished from the territorial seas forming straits.“” Upon ratification, Oman noted that the passage of warships in its territorial seas was subject to prior authorization.3” Prima fmir. this may mean that Oman is reiterating its previous position about treating its part of the Strait of Hormuz as a territorial sea under the regime of innocent passage. However, the requirement of prior authorization may prove difficult to enforce, partly because it has never been generally recognized.4” Furthermore, the USSR, which is the most important maritime power to have required prior authorization for warships entering its territorial waters, on 23 September 1989 issued a joint statement together with the USA announcing that the requirement of prior authorization would be abandoned.” This announcement will certainly weaken further the position of smaller States demanding such authorization.

Flag States and the Strait of Hormuz The presence of warships of martime powers in the Persian Gulf both during the Iran-Iraq war in the 1980s and more recently during the occupation of Kuwait by Iraq has been widely publicized. Throughout both events, Iran repeatedly protested about this presence. Iran’s main argument has been that the Persian Gulf is a semi-enclosed sea and that all problems in the Persian Gulf should be tackled by the riparian States, with foreign warships excluded from the area.” However, there has been no official protest from either Iran or Oman with regard to the passage of warships through the Strait of Hormuz. Iran has evidently no firm legal basis for protesting about the pussag~ of warships so long as it takes place in the territorial sea of Oman, and that is normull~ the case. Oman, on the other hand, because of its declared position, should obviously protest or even try to impede a passage through its territorial sea if this occurs without prior authorization. Public information about the conditions under which passage of foreign warships took place under the two crises is scarce. It is. therefore, difficult to state with certainty whether any specific prior notification or request for authorization from Oman was sought by maritime powers. Bearing in mind the firm position of the USA and other Western maritime powers in rejecting any sort of authorization, it is more probable that passages through the Strait have been carried out without any authorization from Oman.‘j On both occasions, the presence of foreign warships was politically desirable for Oman. So, even if the maritime powers had made a request for authorization, it would probably have been granted. A real test will come when both Iran and Oman disagree about a certain passage for political reasons when a maritime power regards passage as essential.

Conclusion The right of transit passage through straits used for international navigation is not only a considerable exception to the unfettered sovereign rights of the coastal State in its territorial sea, but is also an exception to the general trend of events at the Law of the Sea

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Passage

?In this link, see Said Mahmoudi ‘Customary international law and transit passage’, Ocean Development and International law, Vol 20, No 2, 1989, pp 157174. 45Developing countries initially opposed any link between these two issues, and, while claiming a right to a twelve mile territorial sea, rejected any need for a more liberal passage regime in the straits. This initial position was, however, replaced by a general acquiescence towards the end of the 1970s because of the concessions made by maritime powers on other issues. 46Some authors, while accepting a close link between the two concepts, believe that the extended territorial sea is already customary law, but transit passage has not yet reached that stage. Jennings, for example, maintains that no real consensus was ever commanded with respect to transit passage, and therefore controversies continue. See R. Jennings, ‘Law-making and oackaae deal’, MG/anae offer& B Paul keutez Le droit international: unit.4 et diversitb, Pedone, Paris, 1981, p 353.

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of warships through the Strait of Hormuz

Conference. While the progressive development of the law of the sea by the conference was generally characterized by regulations relating to the extended claims of the coastal States regarding the 1Zmile territorial sea, exclusive economic zone, larger continental shelf and archipelagic waters, the right to transit passage was an exception in that it was claimed by the flag State. There is no doubt that these rights were negotiated by all delegates as a package. Their incorporation in the LOS Convention is also subject to the preservation of the delicate balance of the rights and obligations worked out during the conference. However, the balance between the extended territorial sea and the right to transit passage took a particular place in the general framework of the balance of rights and obligations. This was due to the fact that the balance between these two, unlike the trade-offs among other parts of the LOS Convention, was necessitated by a more or less natural link.“4 The extension of one would amount to the limitation of the other. The pro& verbaux of the conference bear witness to the fact that a link between extended territorial sea and transit passage was acknowledged by the majority of the interested States.“” As over 100 States, both maritime powers and many strait States including the USA, the UK, the USSR, France, Germany, Spain, Morocco, Indonesia and Malaysia, have enacted laws extending their territorial seas to 12 nautical miles, the right to a 1Zmile territorial sea can reasonably be considered as customary international law. Bearing that in mind, the question now is whether either the existence of the link referred to above or State practice has turned the concept of transit passage into customary international law. Moreover, how should one interpret the positions of Iran and Oman if the answer to this question is in the affirmative? It is submitted that the link between transit passage and the right to a 12-mile territorial sea, together with State practice in the form of actual passage of warships through the straits and also in the form of different statements and position explanations in the conference, seems to have transformed transit passage into customa~ law.“’ However, even as customary law, it is not self-evident in this case that transit passage may be imposed on alE strait States. The situation is apparently different between normally large straits which used to have high seas routes - those with a width between six and 24 miles - and smaller straits with sea lanes traditionally in territorial seas. In the first case, the coastal State has a claim over something which used to be free for all. The flag State is the loser. In the second case - for instance, Malacca, Bab-el-Mandeb and Hormuz - the traditional rights of the coastal State are curtailed because of transit passage. The strait State is the loser. While in the first case there seems to be no doubt that transit passage is in fact applicable, in the second case some other factors may also have to be taken into consideration. The change from ‘innocent’ to ‘transit’ passage has direct security implications for the strait States, and the risk may not be easily assumed solely for the sake of the right to extend the outer limit of the territorial sea. Even among strait States bordering straits with sea lanes traditionally in territorial seas the interests may vary considerably. While, for instance, for Malaysia, Indonesia and Singapore environmental protection in the Strait of Malacca is of pivotal significance, for Yemen the security implications of the passage of the foreign ships in Bab-elMandeb have priority. In the case of the Strait of Hormuz, the littoral

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Passage of warships through the Struit of Homuz

States have so far been mainly concerned with the security aspects of transit passage. Notwithstanding the above and assuming that transit passage has probably been incorporated into the corpus of intcrnation~~l law. it has to be noted that Oman’s position is legally difficuit to defend. By emphasizing the applicability of innocent passage to the Strait of Hormuz and requiring prior authorization, Oman has acted against both the spirit and the letter of Article 310 of the LOS Convention. Oman’s declarations have in reahty excluded transit passage from the LOS Convention, and this is clearly at variance with the dictates of Article 310. Iran’s position, on the other hand, is understandable. As a strait State basically dissatisfied with the concept of transit passage, Iran attempts to limit the privilege of this right only to those States which are prepared to shoulder the corresponding responsibilities originating from related concepts in the LOS Convention. In the capacity of a signatory and maybe in future a party to the LOS Convention, Iran may not deny the existence of the right to transit passage, which is an inherent part of the LOS Convention. Iran’s declaration on signing the LOS Convention bears witness to this fact. In a hypothetical situation where Iran and a third State - both non-parties to the LOS Convention - have a dispute concerning the passage of a certain warship through the Strait of Hormuz, the legal implication of Iran’s declaration seems to be that the status of transit passage as customary law has to be decided proprio motu by the court, or at any rate the onus of proof as to the existence of such status is placed on the party which invokes it. In both cases, the present position of Iran seems to be in order.

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