The right to pass through the Strait of Hormuz in the event of armed conflict: The clash between the law of the sea, the law of maritime warfare, and the right to self-defense

Abstract

This article examines the scope of the right of transit through the Strait of Hormuz in situations of armed conflict, focusing on the interaction between the law of the sea, the law of naval warfare, and the law governing the use of force. The findings indicate that the Strait of Hormuz qualifies as a strait used for international navigation, thereby granting ships the right of transit passage under United Nations Convention on the Law of the Sea. However, this right is not absolute and is subject to limitations imposed by the law of naval warfare and the invocation of self-defence by states, which may justify the implementation of security measures affecting navigation. Furthermore, the study demonstrates that although the right of transit persists in legal terms, it becomes significantly weakened in practice due to military risks and security measures, leading to what can be described as a “functional closure” of the strait. In this situation, the strait remains legally open but is not effectively accessible in practice. At a theoretical level, the article argues that international law does not operate as a unified system but rather as a set of overlapping and competing legal regimes, resulting in legal indeterminacy in the protection of freedom of navigation under conditions of armed conflict.