Introduction

Iran’s closure of the Strait of Hormuz has disrupted the energy supply chains of many states, including India’s. The action of Iran came after the attack by the US and Israel on Iran.

Straits are used for international navigation between one part of the high seas or an exclusive economic zone (EEZ) and another part of the high seas or an exclusive economic zone (Article 35, UNCLOS). High seas and EEZs are areas of the sea with high economic importance. Therefore, straits are of huge economic importance in that respect. Part III (Article 34-45) of the UNCLOS deals with the Straits used for international navigation. Therefore, this article will explain the rights of the various states (bordering and other) in the Straits.

Rights of Iran and Other Bordering States

Bordering states are states surrounding a strait. For instance, bordering states of the Strait of Hormuz are Iran in the North, and Oman and the United Arab Emirates in the South. The bordering states can exercise sovereignty over that part of the strait water which falls within their territorial sea or internal waters. However, such a right must be exercised subject to Part III of the UNCLOS. (Article 34) It simply means that the regime of passage established under Part III for the straits must not prejudice the sovereignty of the States in such areas, and at the same time, such sovereignty must not prejudice the right of passage of other states. A balance has been created between these two rights.

Bordering states have the right to adopt laws and regulations relating to transit passage in the straits. States can make laws relating to navigational safety, pollution prevention, fishing vessels, the loading and unloading of any commodity, currency, immigration, or sanitation. However, such laws must not be discriminatory, and their application must not have a practical effect of denying, hampering or impairing the right of transit passage. (Article 42)

The primary reason behind provision of such rights to the bordering states can be twofold: first, because these are the aspects which may seriously impact the bordering states (for instance, pollution of strait water can have adverse impact on bordering states) second, bordering states can be expected to have all possible knowledge (due to its proximity with the strait water) about the various activities going on in the strait (for instance, information related to navigational safety). Therefore, they have been given the right to regulate such passage by formulating laws in that context.

Further, the bordering states shall not hamper transit passage and inform about any danger to the navigation and overflight within or over the Strait of which such states have knowledge. There shall be no suspension of the transit passage. (Article 44) It means that none of the bordering states can unilaterally prohibit transit through the strait.

Rights of Non-Bordering States

Foreign states (states that are not bordering states) shall have an unimpeded right of transit passage as per Article 38 of the UNCLOS. It includes rights of navigation as well as overflight solely for the purpose of continuous and expeditious transit of the strait between one part of high seas or an EEZ and another part of high seas and EEZ.

However, it must be noted here that the transit must be continuous and expeditious; that is, unnecessary delays while passing through the strait are not permitted unless it is the result of force majeure. (Article 39) It further provides that the states exercising the transit passage must refrain from the threat or use of force against the bordering states. These provisions actually act as a safeguard that has been provided for the purpose of ensuring the safety of the bordering states. Straits must not be weaponised in order to cause harm to the bordering straits.

There is an exception to the application of the right of transit passage that if the strait is formed by the island of a bordering state and the mainland, then the States do not enjoy the right of transit passage there, provided that a route of similar convenience exists for such passage. Similar convenience can be interpreted as the route that has the same level of safety, ease of navigation, weather conditions, traffic safety, etc., as that of the strait. In such cases, the States enjoy the right to innocent passage.

Conclusion

It can be concluded that the provisions of UNCLOS dealing with the straits create a perfect balance between the sovereign rights of the bordering states and the right of transit passage of the other states. Further, safeguards have also been provided to the bordering states so that the strait cannot be used to prejudice the safety of the bordering states. Further, the non-bordering states have been ensured the right of transit passage, which cannot be hindered by the bordering states at their whims.

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This article is authored by Astha Priya