By Choudhary Sher Afzal Khan Babar Gujjar
The moment the draft of the US-Iran Memorandum of Understanding (MoU) entered the public domain, policymakers, analysts and legal critics began meticulously dissecting its text. International maritime law experts have offered varied opinions. At the National Institute of Maritime Affairs (NIMA), my maritime desk conducted a critical and investigative review of the document. Following this analysis, this article aims to present readers with the legal complications arising from Clause 5 of the MoU, which directly pertains to the Strait of Hormuz.
First and foremost, it is essential to examine the exact wording of this clause. Clause 5 of the MoU states:
“Upon the signing of this MOU, the Islamic Republic of Iran will make arrangements using its best efforts for the safe passage of commercial vessels with no charge for 60 days only from the Persian Gulf to the Sea of Oman, and vice versa. The traffic of commercial vessels will immediately start, and considering the need for removing the technical and military obstacles and de-mining by the Islamic Republic of Iran, will be instated within 30 days. The Islamic Republic of Iran will conduct dialogue with the Sultanate of Oman to define the future administration and maritime services in the Strait of Hormuz, in discussion with other Persian Gulf littoral states, in line with the applicable international law and the sovereign rights of coastal states of the Strait of Hormuz.”
One cannot help but admire the legal precision and exceptional drafting skills of the authors of this clause. By taking responsibility for clearing all defensive measures, technical obstacles and minefields within its internal waters, Iran has employed a well-thought-out legal strategy. This move ensures that Iran’s specific jurisdiction and absolute sovereignty over the Strait of Hormuz remain intact, undisputed and uncompromised. When a state assumes responsibility for mitigating hazards in a particular region, it effectively signals to the world that it exercises regulatory control and jurisdiction over that area.
However, the most significant legal masterstroke in this entire exercise lies in the phrase “applicable international law”. Students of international maritime law are well aware that if a country has not ratified an international convention, it cannot be enforced against that state. While the United Nations Convention on the Law of the Sea (UNCLOS) is widely recognised as the supreme law of the oceans, Iran has signed it but never ratified it. Consequently, UNCLOS does not apply directly to Iran. By using the phrase “applicable international law”, the drafters have carefully protected Iran’s legal position.
Oman, on the other hand, ratified UNCLOS in 1989, but with the specific declaration that its domestic laws would prevail over its territorial waters, including the Strait of Hormuz. Oman’s legal position maintains that foreign warships must obtain prior permission or provide advance notice before passing through its waters. This requirement creates a delicate legal tension with major naval powers, such as the United States, which view passage through international straits as an absolute right of free transit without requiring prior permission.
Against this historical backdrop, it becomes clear that the Sultanate of Oman was fully aware, even in 1989, that the Strait of Hormuz could become a flashpoint for global conflict. This is precisely why it secured its legal position decades ago through this conditional declaration.
Beyond the text of the MoU, Iran adopted a distinctive legal position during the conflict, arguing that the Strait of Hormuz is fundamentally different from other international straits and should therefore be viewed within a separate legal framework. While ships can leave the Strait of Malacca, the Bab el-Mandeb or other waterways through alternative oceans or maritime routes, the Strait of Hormuz remains the sole maritime gateway to and from the Persian Gulf. Commercial vessels entering the Strait of Hormuz are effectively entering an enclosed sea, from which there is no alternative maritime exit.
In this regard, Iran argues that just as Denmark regulates ships entering the Baltic Sea under the Copenhagen Convention, and Turkey enjoys specific rights over the Turkish Straits under the Montreux Convention of 1936, Iran should similarly enjoy comparable authority over the Strait of Hormuz. However, it should not be overlooked that Turkey’s Montreux Convention of 1936 and Denmark’s Copenhagen Convention of 1857 remain fully operative and internationally recognised legal frameworks. Furthermore, both predate the first Law of the Sea Convention of 1958, while the 1982 United Nations Convention on the Law of the Sea recognises the continued validity of such historical treaty arrangements.
Therefore, the international community must firmly uphold the traditional legal status of the Strait of Hormuz. Using geographical position as a basis for asserting legal authority is rarely viewed favourably by the international community. If today tolls or fees, under any other name, are permitted in the Strait of Hormuz, tomorrow similar restrictions could be imposed on the Bab el-Mandeb by Yemen or on the Strait of Malacca by Singapore, Malaysia and Indonesia. Such a precedent would encourage coastal states controlling narrow maritime passages to exploit their geographical leverage. The result would be a chaotic global contest over strategic waterways. International trade would suffer severe disruption, shipping costs would rise sharply, and the global economy could face profound instability.
For students of international maritime law, the differing legal positions of the two coastal states, Iran and Oman, provide a fascinating and intellectually rich subject for debate. Yet, for the broader interests of humanity and the continued progress of global development, lasting ceasefires, enduring peace and the uninterrupted freedom of navigation across the world’s oceans remain indispensable.
(The writer is a solicitor, currently serves as a research associate at the National Institute of Maritime Affairs (NIMA). He can be reached at editorial@metro-morning.com)
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