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54 Va. J. Int'l L. 323 (2013-2014)
Legal Vortex in the Strait of Hormuz

handle is hein.journals/vajint54 and id is 333 raw text is: ARTICLE Legal Vortex in the Strait of Hormuz JAMES KRASKA The regime of straits used for international navigation is one of the central features of the United Nations Convention on the Law of the Sea (UNCLOS). Neither the United States nor Iran, however, are party to UNCLOS, and the two adversaries disagree about the application of the trea- ty to relations between them in the Strait of Hormu. Iran claims that the gen- erous navigational provisions in UNCLOS may only be enjoyed by states that are pary to the Convention. The United States claims that the right of transit passage in UNCLOS is reflective of customary international law, and there- fore applicable to non-parties. Transit passage permits an unrestricted right to travel on the surface, under the water, or in overflight through international straits. The dispute is complicated by Iran ' claim to a territorial sea that is twelve nautical miles in width - another key provision of UNCLOS, which departs from the historic norm of three nautical miles. Iran claims that the twelve nautical mile territorial sea is now part of customary law, but rejects the notion that other states enjoy the rght of transit passage. The two regimes, how- ever, are inseparable - Iran may not have a twelve nautical mile territorial sea, andyet disregard the rights of other states to exercise transit passage in the Strait of Hormu. Introduction ..........................................324 A. Legal Vortex and the Next Crisis............. .....326 1. Iran's Position ..... . .... .............................327 2. The U.S. Position .........................328 B. Innocent Passage in State Practice ............ .....329 * Professor, Stockton Center for the Study of International Law at the United States Naval War College and Senior Fellow, Center for Oceans Law and Policy at University of Virginia School of Law. During 2013 to 2014, he was the Mary Derrickson McCurdy Visiting Scholar at Duke Universi- ty Marine Laboratory. The author thanks Professor Wolff Heintschel von Heinegg, Professor Sean Henseler, and Professor Raul Pete Pedrozo for their review and helpful comments.

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