SINGAPORE: Iran and the United States are currently at a standoff in the crucial Strait of Hormuz. Iran has restricted shipping through the strait and is demanding tolls for ships to transit. After talks failed, the US started a naval blockade of maritime traffic entering or exiting Iranian ports – but allowing ships not using Iranian ports. The war has made transit inherently more dangerous with naval mines laid in shipping routes.
As much as the Strait of Hormuz has become the focal point of the US-Iran war, it is not unique in its importance.
Several narrow stretches of water serve as the arteries of global trade and are known as “straits used for international navigation” under international law. Among the most critical are the Straits of Malacca and Singapore, the Strait of Bab el-Mandeb and the Strait of Gibraltar. They channel a substantial share of the world's seaborne trade, respectively linking the Pacific and Indian Oceans; the Red Sea to the Gulf of Aden, and the Atlantic Ocean to the Mediterranean Sea.
Restrict passage in any one of them, and the consequences are felt far beyond. When more than 80 per cent of everything traded in the world moves by sea, the costs of blocked straits or tolls do not stay at sea – they move into supermarkets, fuel pumps, and household energy bills.
This is why Singapore’s position is that it cannot negotiate with Iran over tolls or safe passage through the Strait of Hormuz. This is why it is in the interests of all states to uphold international law that governs the passage through straits.
We should first get familiar with some foundational principles of the law of the sea on navigation and their overarching purpose. Historically, freedom of navigation of the high seas, where no state has sovereignty and which is open to all states, has been inseparable from the freedom of trade.
In the territorial sea where states have sovereignty, ships do not have freedom of navigation but the right of innocent passage. Foreign vessels can transit a territorial sea, provided this was not prejudicial to the coastal state's peace, good order and security. Coastal states may impose laws on innocent passage as well as suspend this right.
For straits in territorial seas, innocent passage applied but with one critical difference: It could not be suspended, because of their importance to international trade.
These navigational rights were challenged after World War II when coastal states sought larger zones of maritime jurisdiction to assert control over ocean resources. Coastal state claims for an extension of the territorial sea from 3 nautical miles to 12 nautical miles encompassed many straits that were previously part of the high seas but would become subject to coastal state sovereignty.
States bordering straits argued that innocent passage should apply. Maritime powers feared this would give coastal states too much power to restrict commercial and military ships through critical chokepoints.
The solution was transit passage, a new regime sitting between innocent passage and full freedom of navigation. Under the United Nations Convention on the Law of the Sea (UNCLOS), transit passage establishes that ships of all nations have the right to pass through straits continuously and without interference, a right that cannot be suspended.
Strait states can regulate transit passage only on matters specified in UNCLOS, including safety of navigation and prevention of pollution, but they cannot stop ships from passing, and they cannot charge tolls simply for the right of transit although charges may be levied for specific services provided to the ship.
The Strait of Hormuz, located in the territorial seas of Iran and Oman, is considered a strait used for international navigation. Oman is a party to UNCLOS while Iran is not.
Iran is considered bound by the transit passage regime on the basis that it has become customary international law, having been accepted widely and applied consistently by the rest of the world. However, Iran has argued that it is not bound as the transit passage regime is not customary international law. Iran has persistently objected to the transit passage regime.
Notwithstanding this disagreement, Iran is in any event bound by the customary international law principle pre-dating UNCLOS that strait states cannot prohibit, hamper or suspend innocent passage of ships through straits used for international navigation.
Because Iran, Israel and the United States are at war, it also triggers a separate, older law of naval warfare. It affirms that the peacetime right of transit passage under UNCLOS does not disappear in armed conflict.
Countries not involved in the fighting – neutral states – retain the right to move their commercial ships through the strait. Those engaged in the armed conflict – belligerent states – may restrict enemy vessels belonging to each other or ships actively assisting the enemy.
Ships ply the Straits of Malacca and Singapore. (Photo: AFP/Roslan Rahman)
Singapore cannot negotiate with Iran over tolls or safe passage through the Strait of Hormuz. To do so would be to accept that the rules can be broken or bargained away – a compromise Singapore cannot afford to make.
Its survival depends on respect for the international legal principles upholding passage rights. Its location in the Straits of Malacca and Singapore have made it a vital maritime conduit through which about 24 per cent to 30 per cent of all global trade and 102,000 vessels transit per year – significantly more than the Strait of Hormuz.
However, it is surrounded entirely by the waters of Malaysia and Indonesia, which every ship must pass through to enter or leave Singapore. The strait is Singapore's lifeline to the world.
This geography shaped Singapore's approach to UNCLOS negotiations. Singapore prioritised securing the right of passage for all ships over maximising its own control over the strait.
Singapore played a key role in the negotiation of the transit passage regime. This was notwithstanding the fact that it was a newly independent developing country participating in one of its first international negotiations and its support of transit passage position placed it at odds with the other states bordering the Straits of Malacca and Singapore, Malaysia and Indonesia.
Singapore has become a global maritime hub, one of the world's busiest ports and the fourth largest ship registry. That success rests on the legal guarantee in UNCLOS that commercial ships can move freely through not only the Straits of Malacca and Singapore but also other critical maritime chokepoints.
Singapore is not alone in expressing its concern. The Gulf states, facing direct consequences from the closure of the Strait of Hormuz, have also rejected Iran's imposition of tolls and called for passage rights to be upheld. The International Maritime Organization (IMO) has reiterated that such tolls would set a dangerous precedent.
It is tempting to see these rules as something that mainly benefits powerful naval states and large shipping states. However, navigational rights have never just been about the passage of warships and tanker fleets.
They were always grounded in something more fundamental that benefits all states: the freedom of trade.
Take the 11-member Association of Southeast Asian Nations (ASEAN), 10 are coastal or archipelagic states that have significantly benefitted from the expansion of coastal state jurisdiction under UNCLOS (with the exception of geographically disadvantaged Singapore). The Philippines and Indonesia fought for and gained vast tracts of maritime space through their archipelagic waters, while they and other coastal ASEAN states acquired 200-nautical mile exclusive economic zones (EEZs).
While these countries may not be the largest flag states in the world nor the biggest naval powers, they have critical maritime interests and are dependent on maritime trade.
Malaysia is rapidly emerging as a global maritime hub, with Port Klang recognised as one of the 10 busiest container ports globally. Regional trade flows through critical chokepoints beyond the Straits of Malacca and Singapore, including the Lombok and Sunda Straits in Indonesian waters.
The disruption at Hormuz has compelled Vietnam, the Philippines and Thailand to reduce fuel consumption as their Middle East energy imports are cut off. Thousands of seafarers from Indonesia, the Philippines and Thailand are stranded on vessels unable to enter or leave the strait. The rules of passage are the foundation on which their economies function.
The question is what states that are not involved in the current conflict can do. This is a complex and politically challenging situation where international law lacks strong enforcement mechanisms to ensure compliance.
Iran is caught up in a war – which legal experts perceive as against international law on use of force – and is using everything in its arsenal as leverage. Besides the Strait of Hormuz, Iran has reportedly threatened to restrict passage through the Strait of Bab el-Mandeb through Houthi militants based in Yemen.
Nonetheless, the rules exist precisely to prevent this: Critical chokepoints should not be bargaining chips, even in times of war.
What countries can do, at minimum, is say clearly and publicly that passage of commercial vessels through the Strait of Hormuz cannot be blocked and that tolls cannot be imposed. That means stating this position in ASEAN meetings, at the IMO and at the United Nations.
In international law, words and actions matter. State responses, including official statements by governments, shape what the law is understood to require. Silence, equally, can be read as acceptance.
One exception allowed to stand has a way of becoming a precedent. A precedent repeated becomes a new rule.
At a moment when foundational principles of international law are under pressure on multiple fronts, the collective willingness of states to speak in international law’s defence is not a diplomatic nicety – it is what keeps the rules alive.
Dr Tara Davenport is an Assistant Professor at the Faculty of Law at the National University of Singapore and Co-Head of the Oceans Law and Policy Team at the Centre for International Law, NUS.
Continue reading...
As much as the Strait of Hormuz has become the focal point of the US-Iran war, it is not unique in its importance.
Several narrow stretches of water serve as the arteries of global trade and are known as “straits used for international navigation” under international law. Among the most critical are the Straits of Malacca and Singapore, the Strait of Bab el-Mandeb and the Strait of Gibraltar. They channel a substantial share of the world's seaborne trade, respectively linking the Pacific and Indian Oceans; the Red Sea to the Gulf of Aden, and the Atlantic Ocean to the Mediterranean Sea.
Restrict passage in any one of them, and the consequences are felt far beyond. When more than 80 per cent of everything traded in the world moves by sea, the costs of blocked straits or tolls do not stay at sea – they move into supermarkets, fuel pumps, and household energy bills.
This is why Singapore’s position is that it cannot negotiate with Iran over tolls or safe passage through the Strait of Hormuz. This is why it is in the interests of all states to uphold international law that governs the passage through straits.
INTERNATIONAL LAW ON PASSAGE THROUGH STRAITS
We should first get familiar with some foundational principles of the law of the sea on navigation and their overarching purpose. Historically, freedom of navigation of the high seas, where no state has sovereignty and which is open to all states, has been inseparable from the freedom of trade.
In the territorial sea where states have sovereignty, ships do not have freedom of navigation but the right of innocent passage. Foreign vessels can transit a territorial sea, provided this was not prejudicial to the coastal state's peace, good order and security. Coastal states may impose laws on innocent passage as well as suspend this right.
For straits in territorial seas, innocent passage applied but with one critical difference: It could not be suspended, because of their importance to international trade.
These navigational rights were challenged after World War II when coastal states sought larger zones of maritime jurisdiction to assert control over ocean resources. Coastal state claims for an extension of the territorial sea from 3 nautical miles to 12 nautical miles encompassed many straits that were previously part of the high seas but would become subject to coastal state sovereignty.
States bordering straits argued that innocent passage should apply. Maritime powers feared this would give coastal states too much power to restrict commercial and military ships through critical chokepoints.
Related:
The solution was transit passage, a new regime sitting between innocent passage and full freedom of navigation. Under the United Nations Convention on the Law of the Sea (UNCLOS), transit passage establishes that ships of all nations have the right to pass through straits continuously and without interference, a right that cannot be suspended.
Strait states can regulate transit passage only on matters specified in UNCLOS, including safety of navigation and prevention of pollution, but they cannot stop ships from passing, and they cannot charge tolls simply for the right of transit although charges may be levied for specific services provided to the ship.
The Strait of Hormuz, located in the territorial seas of Iran and Oman, is considered a strait used for international navigation. Oman is a party to UNCLOS while Iran is not.
Iran is considered bound by the transit passage regime on the basis that it has become customary international law, having been accepted widely and applied consistently by the rest of the world. However, Iran has argued that it is not bound as the transit passage regime is not customary international law. Iran has persistently objected to the transit passage regime.
Notwithstanding this disagreement, Iran is in any event bound by the customary international law principle pre-dating UNCLOS that strait states cannot prohibit, hamper or suspend innocent passage of ships through straits used for international navigation.
Because Iran, Israel and the United States are at war, it also triggers a separate, older law of naval warfare. It affirms that the peacetime right of transit passage under UNCLOS does not disappear in armed conflict.
Countries not involved in the fighting – neutral states – retain the right to move their commercial ships through the strait. Those engaged in the armed conflict – belligerent states – may restrict enemy vessels belonging to each other or ships actively assisting the enemy.
Ships ply the Straits of Malacca and Singapore. (Photo: AFP/Roslan Rahman)
WHY SINGAPORE CANNOT STAY SILENT
Singapore cannot negotiate with Iran over tolls or safe passage through the Strait of Hormuz. To do so would be to accept that the rules can be broken or bargained away – a compromise Singapore cannot afford to make.
Its survival depends on respect for the international legal principles upholding passage rights. Its location in the Straits of Malacca and Singapore have made it a vital maritime conduit through which about 24 per cent to 30 per cent of all global trade and 102,000 vessels transit per year – significantly more than the Strait of Hormuz.
However, it is surrounded entirely by the waters of Malaysia and Indonesia, which every ship must pass through to enter or leave Singapore. The strait is Singapore's lifeline to the world.
This geography shaped Singapore's approach to UNCLOS negotiations. Singapore prioritised securing the right of passage for all ships over maximising its own control over the strait.
Singapore played a key role in the negotiation of the transit passage regime. This was notwithstanding the fact that it was a newly independent developing country participating in one of its first international negotiations and its support of transit passage position placed it at odds with the other states bordering the Straits of Malacca and Singapore, Malaysia and Indonesia.
Singapore has become a global maritime hub, one of the world's busiest ports and the fourth largest ship registry. That success rests on the legal guarantee in UNCLOS that commercial ships can move freely through not only the Straits of Malacca and Singapore but also other critical maritime chokepoints.
WHY EVERY COUNTRY HAS A STAKE
Singapore is not alone in expressing its concern. The Gulf states, facing direct consequences from the closure of the Strait of Hormuz, have also rejected Iran's imposition of tolls and called for passage rights to be upheld. The International Maritime Organization (IMO) has reiterated that such tolls would set a dangerous precedent.
It is tempting to see these rules as something that mainly benefits powerful naval states and large shipping states. However, navigational rights have never just been about the passage of warships and tanker fleets.
They were always grounded in something more fundamental that benefits all states: the freedom of trade.
Take the 11-member Association of Southeast Asian Nations (ASEAN), 10 are coastal or archipelagic states that have significantly benefitted from the expansion of coastal state jurisdiction under UNCLOS (with the exception of geographically disadvantaged Singapore). The Philippines and Indonesia fought for and gained vast tracts of maritime space through their archipelagic waters, while they and other coastal ASEAN states acquired 200-nautical mile exclusive economic zones (EEZs).
While these countries may not be the largest flag states in the world nor the biggest naval powers, they have critical maritime interests and are dependent on maritime trade.
Related:
Malaysia is rapidly emerging as a global maritime hub, with Port Klang recognised as one of the 10 busiest container ports globally. Regional trade flows through critical chokepoints beyond the Straits of Malacca and Singapore, including the Lombok and Sunda Straits in Indonesian waters.
The disruption at Hormuz has compelled Vietnam, the Philippines and Thailand to reduce fuel consumption as their Middle East energy imports are cut off. Thousands of seafarers from Indonesia, the Philippines and Thailand are stranded on vessels unable to enter or leave the strait. The rules of passage are the foundation on which their economies function.
THE IMPORTANCE OF AFFIRMING COMMITMENT TO INTERNATIONAL LAW
The question is what states that are not involved in the current conflict can do. This is a complex and politically challenging situation where international law lacks strong enforcement mechanisms to ensure compliance.
Iran is caught up in a war – which legal experts perceive as against international law on use of force – and is using everything in its arsenal as leverage. Besides the Strait of Hormuz, Iran has reportedly threatened to restrict passage through the Strait of Bab el-Mandeb through Houthi militants based in Yemen.
Nonetheless, the rules exist precisely to prevent this: Critical chokepoints should not be bargaining chips, even in times of war.
Related:
What countries can do, at minimum, is say clearly and publicly that passage of commercial vessels through the Strait of Hormuz cannot be blocked and that tolls cannot be imposed. That means stating this position in ASEAN meetings, at the IMO and at the United Nations.
In international law, words and actions matter. State responses, including official statements by governments, shape what the law is understood to require. Silence, equally, can be read as acceptance.
One exception allowed to stand has a way of becoming a precedent. A precedent repeated becomes a new rule.
At a moment when foundational principles of international law are under pressure on multiple fronts, the collective willingness of states to speak in international law’s defence is not a diplomatic nicety – it is what keeps the rules alive.
Dr Tara Davenport is an Assistant Professor at the Faculty of Law at the National University of Singapore and Co-Head of the Oceans Law and Policy Team at the Centre for International Law, NUS.
Continue reading...