Navigating the Legal Vortex: The Strait of Hormuz, the Right of Transit, and the Legality of Maritime Tolls

Dr Donwell Dube

Abstract

The Strait of Hormuz is arguably the most strategically significant maritime chokepoint in the world, facilitating the passage of approximately one-sixth of global oil consumption. However, its legal status remains a subject of intense geopolitical friction, particularly regarding the competing regimes of "transit passage" and "innocent passage." This paper analyzes the conflict in the context of the United Nations Convention on the Law of the Sea (UNCLOS) and explores the legal validity of Iran’s intermittent claims to impose toll fees on international vessels. By comparing the administration of the Strait of Hormuz with other international straits—such as the Strait of Malacca and the Turkish Straits—this study argues that any attempt to unilaterally impose tolls or suspend transit rights fundamentally contravenes established international law and the principle of freedom of navigation.

1. Introduction

The Strait of Hormuz, connecting the Persian Gulf to the Gulf of Oman and the open sea, is an "international strait" by geographical definition. However, its legal administration is complicated by the fact that the two coastal states, Iran and Oman, have divergent views on the applicable law. While most of the world adheres to the "transit passage" regime established by the 1982 United Nations Convention on the Law of the Sea (UNCLOS), Iran—which has signed but not ratified the treaty—maintains a more restrictive interpretation based on the 1958 Convention on the Territorial Sea and the Contiguous Zone. This legal ambiguity forms the backdrop for recurring threats to maritime commerce, including the controversial proposal to charge toll fees for passage.

2. The Legal Framework: Transit Passage vs. Innocent Passage

2.1 UNCLOS and the Right of Transit Passage (Part III)

The 1982 UNCLOS (Part III, Articles 37–44) introduced the concept of "transit passage" to resolve the concerns of maritime nations as territorial waters expanded to 12 nautical miles. Transit passage is the exercise of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit. Crucially, coastal states *cannot* suspend transit passage, nor can they impose requirements that have the practical effect of denying or impairing this right (Article 44).

2.2 The Iranian Position: The 1958 Convention and "Innocent Passage"

Iran argues that because it has not ratified UNCLOS 1982, it is bound by the 1958 Convention. Under this older regime, vessels enjoy "innocent passage," which is more restrictive. Innocent passage allows a coastal state to suspend transit if it is deemed "prejudicial to the peace, good order, or security of the coastal state." Furthermore, Iran’s domestic Law on the Marine Areas (1993) requires prior authorization for warships, a requirement that contradicts the transit passage regime which the United States and other major powers consider customary international law (Kraska, 2024).

3. Analyzing the Claim to Toll Fees

3.1 The "Security Service" Justification

On several occasions, Iranian officials have suggested that because Iran provides security and environmental protection in the Strait, passing vessels should pay a "toll" or "tariff." From a legal perspective, this claim is highly tenuous.

3.2 UNCLOS Article 26: Levies upon Foreign Ships

Article 26 of UNCLOS explicitly states:

1. No charge may be levied upon foreign ships by reason only of their passage through the territorial sea.

2. Charges may be levied upon a foreign ship passing through the territorial sea only as payment for specific services rendered to the ship.

The key distinction here is "specific services rendered" (such as pilotage or salvage) versus a general "toll" for using the waterway. International law does not permit a coastal state to charge a "tax" for the mere act of transit. Any attempt to do so would be viewed as a "hampering" of passage, prohibited under both the 1958 and 1982 Conventions (Derasat, 2023).

4. Comparative Analysis: Administration of Other Global Straits

To contextualize the Hormuz conflict, it is useful to examine how other vital straits are managed.

4.1 The Strait of Malacca (The Cooperative Model)

Like Hormuz, the Strait of Malacca is an international strait bordered by several states (Indonesia, Malaysia, and Singapore). However, instead of unilateral tolls, these states utilize a "Cooperative Mechanism" under UNCLOS Article 43. This allows user states (like Japan and China) to voluntarily contribute to the costs of navigational aids and environmental protection without the coastal states imposing a mandatory fee. This model respects the freedom of navigation while addressing the financial burden on coastal states.

4.2 The Turkish Straits (The Treaty-Based Model)

The Bosporus and Dardanelles are governed by the **1936 Montreux Convention**. This is a specific "lex specialis" that predates UNCLOS. While it allows Turkey to regulate the passage of warships and collect fees for sanitary inspections, light dues, and life-saving services, it guarantees "complete freedom of transit and navigation" for merchant vessels in peacetime. Even in this highly regulated environment, the fees are strictly tied to services rather than a general toll for passage.

4.3 The Strait of Gibraltar

Governed strictly by the transit passage regime of UNCLOS, Spain and Morocco do not charge tolls for passage. The strait remains a primary example of unobstructed international navigation where the rights of the coastal states are balanced against the global necessity of maritime trade.

5. The Geopolitical Implications of the "Toll" Claim

If Iran were to successfully impose a toll, it would set a dangerous precedent for maritime law. It would essentially transform an international strait into a "national canal." This would trigger "creeping jurisdiction," where other states might begin charging for passage through the Bab el-Mandeb or the English Channel, fundamentally dismantling the global maritime trade system.

6. Conclusion

The Strait of Hormuz conflict is a clash between the territorial sovereignty of coastal states and the global community’s right to freedom of navigation. While Iran’s refusal to ratify UNCLOS 1982 provides a veneer of legal complexity, the core principles of the 1958 Convention and customary international law still prohibit the suspension of transit or the imposition of arbitrary tolls. The claims to toll fees are politically motivated "grey zone" tactics rather than legally sound arguments. As demonstrated by the Strait of Malacca, the solution to the financial and security burdens of coastal states lies in international cooperation and voluntary contribution mechanisms, not unilateral fees that threaten the stability of the global economy.

References

Derasat (Bahrain Center for Strategic, International and Energy Studies), 2023.The Strait of Hormuz: A Legal Perspective on Maritime Security.

Kraska, J., 2024. 'Legal Vortex in the Strait of Hormuz'. International Law Studies, Naval War College.

Lawfare, 2019.The Strait of Hormuz and the Limits of Maritime Law. [online]

United Nations Convention on the Law of the Sea (UNCLOS), 1982. Part III: Straits Used for International Navigation.

Convention on the Territorial Sea and the Contiguous Zone, 1958.

Montreux Convention Regarding the Regime of the Straits, 1936.

Roach, J.A. and Smith, R.W., 2012.Excessive Maritime Claims. 3rd ed. Leiden: Martinus Nijhoff Publishers.