As tensions rise in the Strait of Hormuz, a maritime law expert notes that since the US and Iran are not bound by UNCLOS, the situation is one of ‘might is right,’ with limited legal options beyond international courts like ICJ and ITLOS.
As tensions escalate in the Strait of Hormuz, neither the United States nor Iran is bound by the United Nations Convention on the Law of the Sea (UNCLOS), leaving limited legal options and making international forums like the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS) the only avenues for dispute resolution, a leading maritime law expert said.
In an exclusive interaction with ANI, Professor Proshanto K Mukherjee, a noted maritime law expert with extensive experience in international shipping regulation and policy, including work with the International Maritime Organisation (IMO), said the current situation is marked by legal uncertainty and geopolitical power play.
Legal Uncertainty and UNCLOS Non-Compliance
“Well, it will be the question of might is right. That’s all I can say as the US can set up, send some of its warships to block. It’s a narrow waterway, the Strait of Hormuz, and it can take any kind of physical action,” he said.
Mukherjee pointed out that while international law governing straits is defined under UNCLOS (United Nations Convention on the Law of the Sea), both the US and Iran are not parties to the convention, which weakens the enforceability of legal provisions in the current conflict.
“The international law regime that governs straits or international straits is found in the convention, United Nations Convention on the Law of the Sea. But neither Iran nor US are a party to it. So they can pretty well do whatever they feel is in their favor,” he said.
Debate Over Transit Rights
He added that this creates a complex legal environment, where even fundamental concepts like transit rights through international straits become debatable.
“The whole question of transit rights through an international strait is a creation of the convention, which only dates back to 1982. So it is doubtful whether it can even be considered as customary international law,” he noted.
Complicating Factors and Emerging Issues
The situation is further complicated by the role of Oman, which lies on the other side of the Strait of Hormuz and is a signatory to UNCLOS. Any negotiation over passage through the strait would have to involve Oman, adding another layer of diplomatic complexity.
He also flagged growing concerns over safety in the region, including reports of mines being laid in the waterway, which could deter ships from transiting through the strait.
“Are ships going to take that risk of going over the waters that are mined? Now that is one issue,” he said.
Another emerging issue is the imposition of tolls on ships passing through the strait. Mukherjee noted that some vessels have already paid tolls to transit the route, and there are indications that the US may seek to negotiate a share of such revenues with Iran.
“United States apparently wants to negotiate a splitting of the toll money. They’re not against it. They want to split the toll money with Iran,” he said, adding that such arrangements fall outside the purview of established legal frameworks.
“This really has nothing to do with the law. If they negotiate a splitting of the tolls that they will earn from ships passing through the straits, that’s up to them,” he added.
The Legal Framework Explained
Explaining the legal framework, Mukherjee said the Law of the Sea has evolved over decades, with earlier conventions in 1958 eventually consolidated into UNCLOS in 1982, which introduced new concepts such as transit passage, innocent passage, and free passage.
However, he emphasised that countries must formally join and ratify the convention to be bound by its provisions.
“Unless you were a party to the UNCLOS, you cannot really claim any rights coming under it or you cannot enforce any rights on a non-party,” he said.
Avenues for Legal Recourse
On the question of legal recourse, Mukherjee said affected countries can approach international judicial bodies.
“The forum is International Court of Justice, number one. And the second one, which probably will be more effective is ITLOS (International Tribunal for the Law of the Sea),” he said.
He added that ITLOS, based in Hamburg, is particularly suited for such disputes as it specialises in maritime law.
“ITLOS is the International Tribunal for the Law of the Sea… all the judges in that forum are pretty well versed in this area of law,” he said.
Geopolitics Over Legal Clarity
Despite these options, Mukherjee warned that the situation remains highly uncertain and largely driven by geopolitical considerations rather than legal clarity.
Turning to the broader impact, he described the ongoing disruptions as highly damaging to global trade and shipping. (ANI)
(Except for the headline, this story has not been edited by Asianet Newsable English staff and is published from a syndicated feed.)