The Strait of Hormuz provides the sole entrance and exit of the Persian Gulf.
(See Map 32.) Iran and Oman are the riparian states to the strait. When signing
the LOS Convention in 1982, Iran made a declaration stating:
it seems natural . . . that only States parties to the Law of the Sea Convention shall
be entitled to benefit from the contractual rights created therein. The above considerations
pertain specifically (but not exclusively) to the following: The right of
transit passage through straits used for international navigation.
In response, the United States commented upon the legal status of the right of
transit passage of international straits stating:
A small number of speakers [e.g., Iran, 17 Official Records 106, at para. 69]
asserted that . . . transit passage is a “new” right reflected in the Convention adopted
by the Conference. To the contrary, long.standing international practice bears out
the right of all States to transit straits used for international navigation . . . Moreover,
these rights are well established in international law. Continued exercise of these freedoms of navigation and overflight cannot be denied a State without its consent.
The policy of freedom of navigation through the Strait of Hormuz was reiterated
by President Reagan on several occasions. At a news conference on February
22, 1984, the following exchange occurred:
Q. The war between Iraq and Iran is heating up in a rather perilous way, and I’d
like to ask what the depth of your concerns are about the possibility that this war
would lead to the closing of the Strait of Hormuz and cut off the supply of oil to
Japan, Western Europe, and ourselves, and to what lengths you’re prepared to go
to keep the strait open.
A. What you have just suggested – Iran, itself, had voiced that threat some time
ago, that if Iraq did certain things, they would close the Strait of Hormuz. And
I took a stand then and made a statement that there was no way that we – and
I’m sure this is true of our allies – could stand by and see that sea lane denied to
shipping, and particularly, the tankers that are essential to Japan, to our Western
allies in Europe, and, to a lesser extent, ourselves. We’re not importing as much as
they require. But there’s no way that we could allow that channel to be closed.
And we’ve had a naval force for a long time, virtually permanently stationed
in the Arabian Sea, and so have some of our allies. But we’ll keep that open to
shipping.
On April 30, 1987, Iran (via the Algerian Embassy in Washington) delivered
a Diplomatic Note concerning the right of transit passage through the Strait
of Hormuz in the context of an alleged violation of claimed Iranian territorial
waters. On August 17, 1987, the United States asked Algeria to pass the following
reply to the Iranian Ministry of Foreign Affairs:
the United States . . . particularly rejects the assertions that the . . . right of transit
passage through straits used for international navigation, as articulated in the
[1982 Law of the Sea] Convention, are contractual rights and not codifications of
existing customs or established usage. The regimes of . . . transit passage, as reflected
in the Convention, are clearly based on customary practice of long standing and
reflect the balance of rights and interests among all States, regardless of whether
they have signed or ratified the Convention.
. . . . The United States rejects, as well, any claim by Iran of a right to interfere
with any vessel’s lawful exercise of the right of transit passage in a strait used for
international navigation.
