Going straight through straits

VIVIAN Balarkrishnan, foreign minister of Singapore, could not be any clearer: Singapore was not going to negotiate with Iran for the safe passage of its vessels through the Strait of Hormuz. It was not hubris nor any contempt of Iran that lay behind this position. It was, Balakrishnan emphasized, on legal grounds. The UN Convention on the Law of the Sea was, he asserted, the “constitution of the seas,” and there were clear provisions in the Convention on Straits. For individual states to negotiate with Iran would be, first, to concede the legality of Iran’s actions in respect to the Strait of Hormuz and, second, to secure for Singapore a privileged status at the expense of the international legal order. Singapore must be lauded for such a principled position.

Article 34 of the UN Convention on the Law of the Sea Articles 37 to 45 of Unclos regulate “straits used for international navigation” and the fact that Iran has sought leverage by controlling ingress or egress through the Strait makes clear that Iran acknowledges that the Strait is vital to international navigation. There are two rights legally recognized in respect to straits. The right of “transit passage” applies to navigation through straits “between one part of the high seas or an exclusive economic zone and other part of the high seas or an exclusive economic zone.” What is therefore contemplated is the situation where a strait connects two sections of the high seas or of an exclusive economic zone. And the right guaranteed is non-impeded passage “solely for the purpose of continuous and expeditious transit of the strait.” Included within the right is passing through the strait “for the purpose of entering, leaving or returning from a State bordering the strait.”

“Innocent passage” is guaranteed in situations not covered by the regime of transit passage, or when the transit is between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign state. In respect to both “transit” and “innocent” passage, the law is clear: There shall be no suspension thereof.

Iran was a signatory to the UN Convention on the Law of the Sea but did not ratify it. That fact notwithstanding, it can be reasonably argued that given that straits central to international navigation implicate not only maritime affairs but the global economy as such — and all other issues related to the state of the world economy — the rights of transit passage and innocent passage have attained the status of “customary law.” In fact, as early as the 1949 decision of the International Court of Justice, popularly known as “The Corfu Channel Case,” the Court ruled that it was “a generally admitted principle that States, in times of peace, have a right to send their warships through straits used for international navigation between two parts of the high seas, provided that the passage is innocent.” And even when, as in the case between Albania and Greece in this case, relations are testy, prohibiting passage and subjecting it to special authorization would still be in contravention of a generally accepted principle. The most that the State bordering the strait could do was “issue regulations in respect of passage.”

There is another consideration, however, and that is that a State that is a signatory to a treaty — although it may not have ratified it — is nevertheless bound to refrain from acts that defeat the purpose of the treaty. While this provision is embodied in the Vienna Convention on the Law of Treaties, it is a principle of good faith — and, in international relations, that should count for very much. One cannot be a part to the phases of negotiation up to the approbation of the definitive text of the treaty and then later claim that one knew nothing about its aims and the evils it sought to prohibit. In this case, the evil is clear: giving States bordering straits the power to choke global commerce and cause all the disastrous consequences of a global economic crisis.

But Iran is one side of the dispute. The United States is the other side, and Donald Trump’s order to put in place a blockade of the Strait of Hormuz is no less a violation of international law than the restriction of passage through it by Iran — including its claim that it has mined the waters of the strait. Aside from compounding an already tense situation and inviting aggression on the part of other nations that have a stake in unhindered passage through the Strait — China is one, and has countered Trump’s threat with its own! — there is no basis in international law for a blockade of the Strait of Hormuz.

While many see in the present crisis the failing of international law, what it should make clear to all is that we are all the worse off when international law is sidelined by raw strategic action, the test of wills and an exchange of threats and hostilities. Donald Trump has announced that he is not a fan of Pope Leo. I do not know if the Holy Father ever expressed the wish to have Trump in his fan’s club, but what is clear is that the only way forward is for all to foreswear the violence and mayhem that have only visited misery on the world and to seek the ways of peace. And seeking the destruction of one’s enemies is certainly not the way, as it creates the vacuum waiting to be filled by an even more formidable foe. No, Pope Leo is not “terrible on foreign affairs.” His is the prophetic voice that makes itself heard through the din of madness!

rannie_aquino@sanbeda.edu.ph

rannie_aquino@csu.edu.ph