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Strait of Hormuz as Iran’s Trump Card: Legal Foundations

Friday, December 23, 2011

Ali Omidi

During the past few months, the United States and Israel, backed by Britain and France, have been escalating confrontation with Iran. Imposing tough economic sanctions against Iran, covert support for the armed opposition groups (including PJAK) fighting Iran, assassination of Iranian scientists, and intensification of the West’s cyber warfare are but few examples which attest to the above fact. On December 13, 2011, a renowned Iranian columnist writing for Kayhan daily noted that Iran should get ready to close the Strait of Hormuz. Hossein Shariatmadari, a top analyst who usually reflects the Iranian inner circle's political viewpoints, argued that the West’s hostility towards Iran is reaching a critical point which requires tough reaction such as preventing enemies from using the Strait of Hormuz. He clearly recommended that if sanctions were actually imposed on the Central Bank of Iran or in the event that an oil embargo was enforced against the country, Iran should not hesitate to close the strategic Strait of Hormuz to its enemies. Iran’s Supreme Leader Ayatollah Seyed Ali Khamenei has already warned that “Iran is not a nation to sit still and just observe threats from vulnerable materialist powers which have been corrupted from the inside.” He also warned that any country attacking Iran should brace for the “strong counterblows and the fist of steel” of Iran's Army, the Islamic Revolution Guards Corps and Basij. Similar positions have been frequently repeated by the Iranian mass media on a daily basis.

Meanwhile, the US Senate has unanimously approved new economic sanctions against Iran targeting the country's Central Bank and oil industry despite warnings that the move may backfire by harming the US interests. The sanctions bill, which was passed by 100 ayes and no nays, bans foreign firms from doing business with the Iranian Central Bank. The bill has also been passed by the House of Representatives through overwhelming votes of 410-11 and 418-2. Before becoming a law, it should be endorsed by President Barack Obama, who seems to have his own doubts in the election year. The European Union has also imposed fresh sanctions on 180 Iranian officials and firms over Tehran's nuclear program. EU ministers agreed in their Summit meeting in Brussels to work on other measures that could target Iran's energy sector. Of course, they failed to reach an agreement to impose oil embargo against Iran, and postponed discussions on this issue until next January. Japan, for its part, has joined the sanctions club against Tehran by deciding to extend its sanctions on Iran to include 267 organizations, 66 individuals and 20 banks. Meanwhile, South Korea has announced that it is seeking to join Western powers in sanctioning Iran.

On the other hand, senior Iranian decision-makers believe that if the Strait of Hormuz does not function for Iran, it definitely would not be usable by its enemies. In this regard, the Iranian lawmaker, Parviz Sarvari, told the student news agency ISNA, “We will soon hold military exercises during which, Iran's military will close the Strait of Hormuz. If the world wants to make the region insecure, we will make the world insecure.” Although there are doubts about Iran actually implementing such threats, even making them will have disastrous outcomes for strained economy of the West, especially the US. The region seems to be perched on a powder keg only waiting for a spark, possibly from Hawkish politicians in the US and its allies.

Why Iran is planning such exercises in the Strait of Hormuz and why the West is still doubtful about imposing crippling sanctions against the country? For the following reasons, the Strait of Hormuz has unique strategic advantages which may potentially affect global economy and politics;

1. The Strait of Hormuz is the only waterway through which eight littoral states of the Persian Gulf have access to international waters.

2. On average, a giant tanker ship passes through this waterway every ten minutes.

3. The Persian Gulf accounts for about 90 percent of global oil exports and many ocean-going tanker ships have to pass through the strategic Strait of Hormuz.

4. More than 40 percent of global oil demand is met by the Persian Gulf states.

5. Military cargoes sent by the United States and European countries for the Persian Gulf littoral states reach their destinations by passing through the Strait of Hormuz.

6. According to the US Energy Information Administration (Energy Information Administration) total oil exports through the Straits of Hormuz will hit 35 million barrels per day by 2020.

Iran believes its enemies should know that they are not in full control of the political chess. If Tehran is to be deprived of oil exports or face paralyzing sanctions, the Strait of Hormuz will be no more secure for tanker ships carrying commercial goods or weapons from and to its enemies.

Iran has based its position on the Geneva Convention on the Territorial Sea and the Contiguous Zone (1958). Although Iran is a signatory to Convention on the Law of the Sea (1982), it has not ratified it yet and the convention is not binding for Tehran. Hence, Tehran is only under the legal bounds of the aforesaid Geneva Convention.

Article 14 of the Geneva Convention (1958) stipulates: “Subject to the provisions of these articles, ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea.”

Paragraph 4 of the same Article says: "Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with these articles and with other rules of international law."

Paragraph 1, Article 16 of the Convention has also noted:

"The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent."

According to Paragraph 3, Article 16:

"Subject to the provisions of paragraph 4, the coastal State may, without discrimination amongst foreign ships, suspend temporarily in specified areas of its territorial sea, the innocent passage of foreign ships if such suspension is essential for the protection of its security. Such suspension shall take effect only after having been duly published."

These principles have been also repeated with minor modifications in articles 17 to 23 of the 1982 Convention on Law of the Seas. The latter convention, however, has made a fundamental change to the legal regime of international straits which Tehran has not accepted yet.

According to these articles (of the Geneva Convention), firstly, ships will be only allowed to cross the Strait of Hormuz if "security, order, and rights of littoral state (here Iran)" are respected and their innocent passage can be verified. Paragraph 4, Article 14; and Paragraph 1, Article 16 of the Geneva Convention (1958) emphasize that verifying innocent passage of ships through a waterway (here the Strait of Hormuz) is up to the coastal state in question (Iran).

For these reasons, Iranian politicians have been posing this question: If Iran's oil exports were disrupted by the United States, the European countries and their Asian allies such as Japan, could Iran consider passage of tanker ships carrying oil for those countries through the Strait as “innocent?”

Tehran believes that the answer is definitely no. Iran has indicated that it is Tehran's right to block the passage of enemy vessels, so as to prevent respective countries from gaining more power to threaten Iran. Passage of vessels belonging to presumed enemies through Iran's territorial waters, especially military vessels and those carrying arms is considered harmful to the security of the littoral states (here Iran) and blocking their passage is inalienable right of Tehran. Perhaps closure of the Strait of Hormuz would not continue for a long time, but even temporary closure of the waterway will have disastrous outcomes for the global economy and international peace. Unfortunately, the White House Hawks seem to be easily ignoring this fact!

*Dr. Ali Omidi is Assistant Professor of International Relations in the University of Isfahan, Iran.

More By Ali Omidi:

*The Ultra-Importance of Turkish AKP’s Parliamentary Victory for Iran: http://www.iranreview.org/content/Documents/The_Ultra_Importance_of_Turkish_AKP’s_Parliamentary_Victory_for_Iran.htm

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