In a recent Atlantic Council article, Thompson Coburn attorney Jonathan Benner discussed the decades-long legal debate surrounding navigation rights in the Strait of Hormuz.
Jonathan noted that even though the United States and Iran never ratified UNCLOS, over the years they have engaged in detailed interaction regarding the Strait of Hormuz, specifically concerning whether non-UNCLOS participants had the right to transit passage or only to the less generous innocent passage, which governs other waters.
Jonathan explained in a June interview: “In 1987, there was an exchange of notes between the United States and Iran regarding the impact of UNCLOS [which was to enter into force in 1994] on passage through the strait. Iran took the position that conditions of passage through Hormuz were contractual rights under UNCLOS and that non-parties to UNCLOS had no standing to complain of or claim freedom from restrictions that would be imposed by littoral states. The US responded that the right of transit passage was governed by customary practice of long standing, regardless of a country’s status as a signatory or ratifier of UNCLOS.
The US in this context, and ever after, was asserting ‘transit passage’ rights. Iran’s position was that transit passage sprung from contractual rights under UNCLOS and that principles of ‘innocent passage,’ a more restrictive concept that acknowledges a potential authority of a littoral state to impose prior notice and permission requirements, would be the most the US could claim.”
The dispute was never resolved, but it is an indication that both the United States and Iran have, for decades, been acutely aware of the legal issues surrounding the Strait of Hormuz.
Read the full article here.
