Peter Germanos


The United Arab Emirates possesses legally protectable rights and interests in relation to the Strait of Hormuz that extend beyond its commercial dependence on this strategic waterway. Its position derives from three overlapping capacities: first, as a State whose vessels enjoy navigational rights through an international strait; second, as a directly affected Gulf coastal State; and third, as the State maintaining sovereignty claims over Abu Musa, Greater Tunb, and Lesser Tunb, whose surrounding maritime zones affect the western approaches to the Strait.

This article correctly identifies the intersection between the unresolved territorial title, the maritime zones generated by the islands, and the UAE’s direct interest in any permanent navigational arrangement. 

I. Applicable Legal Framework

The principal legal instrument is the 1982 United Nations Convention on the Law of the Sea. Part III, comprising Articles 34 to 45, governs straits used for international navigation. Iran signed but did not ratify UNCLOS. Nevertheless, the UAE may argue that the central rules protecting passage through international straits substantially reflect customary international law and are therefore binding independently of ratification.

The customary foundation predates UNCLOS. In the Corfu Channel case, the International Court of Justice held that States in peacetime possess a right to send vessels through straits used for international navigation without obtaining the prior authorization of the territorial State, provided the passage is lawful. The Court treated freedom of maritime communication as a general principle and held that a coastal State could regulate passage in exceptional circumstances but could not prohibit it. 


UNCLOS developed that earlier doctrine into the broader regime of “transit passage.” Under Article 38, ships and aircraft of all States enjoy transit passage for continuous and expeditious navigation and overflight through straits connecting one part of the high seas or an exclusive economic zone with another.

 Article 44 provides that States bordering straits must not hamper transit passage, must publicize dangers to navigation of which they have knowledge, and may not suspend passage. 


Accordingly, Iran cannot lawfully treat passage through Hormuz as a revocable political concession, condition it upon unilateral authorization, or suspend it as an instrument of geopolitical pressure. The passage right belongs to the international community of user States, including the UAE, and is not created by an Iranian-Omani bilateral arrangement.


II. Regulatory Powers of States Bordering the Strait

The right of transit passage does not eliminate all coastal-state authority. Articles 41 and 42 permit States bordering an international strait to regulate matters such as maritime safety, traffic separation, pollution prevention, fishing restrictions, and customs or immigration violations.

Those powers are, however, strictly limited. Regulations must not discriminate among foreign ships, must not have the practical effect of denying, hampering, or impairing transit passage, and must remain consistent with UNCLOS and generally accepted international regulations.

 Under Article 41, proposed sea lanes and traffic-separation schemes must be referred to the competent international organization, principally the International Maritime Organization, before designation or substitution. The IMO framework therefore prevents one State from unilaterally redesigning a recognized international navigation system for political purposes.


The UAE consequently has a legitimate basis for objecting before the IMO to any proposed navigational scheme affecting waters generated by the three islands or other maritime areas claimed by the UAE. Its argument would be that a technical navigational arrangement cannot be used to prejudge territorial title or transform disputed control into recognized sovereignty.


III. Prohibition of Tolls Disguised as Service Charges

International law distinguishes legitimate charges for services from unlawful tolls imposed merely for passage. Article 26 of UNCLOS provides that no charge may be levied upon foreign vessels solely by reason of their passage through territorial waters. Charges are permissible only for specific services actually rendered and must be imposed without discrimination. 


Thus, reasonable fees for pilotage, towing, rescue assistance, pollution response, navigational support, or other requested services may be lawful. A compulsory “security,” “safe-passage,” or “navigation-management” charge unrelated to an identifiable service would be vulnerable to challenge as a disguised toll.

The same reasoning applies to the Strait regime. Articles 42 and 44 prevent coastal regulation from becoming an indirect method of obstructing passage. Iran or any other coastal State cannot convert its duty to facilitate safe navigation into a proprietary right to charge vessels for exercising a right granted by international law.


IV. The Three Islands and the Principle That “The Land Dominates the Sea”

The UAE’s strongest additional argument arises from the three islands. International maritime entitlement proceeds from territorial sovereignty under the principle that “the land dominates the sea.” Under UNCLOS Articles 2 and 3, sovereignty over land territory generates a territorial sea of up to twelve nautical miles, including sovereignty over the water column, seabed, subsoil, and airspace. 


Article 121 further provides that islands capable of sustaining the legal status of islands generate maritime zones. Even features falling within Article 121(3) remain capable of generating a territorial sea, although they may lack an exclusive economic zone or continental shelf.

The result is legally significant. Whoever possesses lawful title to Abu Musa and the Tunbs may claim the territorial seas generated by them. Therefore, a navigation route, safety zone, traffic-separation scheme, military exclusion zone, or enforcement measure crossing those territorial seas cannot be treated as legally detached from the sovereignty dispute.


This does not mean that the UAE could necessarily suspend international transit passage through waters forming part of the Strait. The applicable passage regime depends upon whether the particular waters fall within Part III of UNCLOS or constitute ordinary territorial waters subject to innocent passage. Outside the transit-passage regime, Article 25(3) permits temporary, non-discriminatory suspension of innocent passage in specified areas only where essential for security and after due publication. Within an international strait governed by transit passage, suspension is prohibited.

The UAE’s legally strongest position is therefore not that it may obstruct navigation, but that no other State may rely upon disputed sovereignty to exercise exclusive regulatory authority or conclude arrangements prejudicing the UAE’s title.


V. Territorial Title, Effectivités and Continuous Protest

Iran’s physical possession constitutes effective control, but physical control and lawful title are legally distinct. The ICJ has repeatedly examined sovereignty disputes by distinguishing original or treaty-based title from subsequent effectivités: legislative, administrative, judicial, and other acts performed à titre de souverain.

In Minquiers and Ecrehos, the Court examined acts demonstrating a continuous display of State authority. In Pulau Ligitan and Pulau Sipadan, it considered whether the parties had engaged in actual and continued exercises of sovereign authority, emphasizing that Malaysia’s administrative acts had been undertaken without contemporary protest from Indonesia. 


In Pedra Branca, the Court explained that silence can amount to acquiescence only where another State’s conduct calls for a response. It also stressed that any transfer of territorial sovereignty inferred from conduct must be demonstrated clearly and without doubt. 


These precedents strengthen the legal importance of the UAE’s continuing diplomatic protests, United Nations communications, and demands for negotiation or adjudication. Such protests prevent Iran from easily arguing that its administration has been peaceful, uncontested, or accepted by the UAE. The safer legal formulation is not that prescription is automatically impossible, but that persistent protest defeats acquiescence and substantially undermines any contention that Iranian control has matured into an uncontested territorial title.


VI. Bilateral Agreements Cannot Prejudice the UAE

Article 34 of the Vienna Convention on the Law of Treaties codifies the rule pacta tertiis nec nocent nec prosunt: a treaty creates neither obligations nor rights for a third State without its consent. 

An Iranian-Omani agreement may therefore regulate matters between Iran and Oman within waters over which they possess undisputed jurisdiction. It cannot, without UAE consent:

1. determine sovereignty over the three islands;
2. delimit maritime areas belonging or potentially belonging to the UAE;
3. bind the UAE to a navigation regime affecting disputed waters;
4. extinguish UAE rights or claims; or
5. constitute opposable recognition of Iranian title.

The precise consequence is generally non-opposability to the UAE, rather than the automatic invalidity of the entire bilateral agreement. The agreement may remain valid inter partes while producing no legal effect against the UAE where its rights are concerned.

ICJ jurisprudence reinforces this rule of non-prejudice. In Continental Shelf (Libya/Malta), the Court limited its determination to avoid affecting the interests of third States. In Cameroon v. Nigeria, it proceeded with maritime delimitation only insofar as the rights of Equatorial Guinea and São Tomé and Príncipe were not affected. 


The broader jurisdictional principle appears in Monetary Gold and East Timor: an international court cannot determine the legal responsibility or rights of an absent State where those rights constitute the very subject matter of the decision. 


Accordingly, no adjudicative or negotiated process between Iran and Oman should determine maritime rights derived from the disputed islands in the UAE’s absence.

VII. International Responsibility and Remedies

If Iran unlawfully obstructed UAE shipping, imposed unauthorized charges, enforced a navigation scheme in disputed waters, or used its control over the islands to prejudice UAE rights, the general law of State responsibility could apply.

Under the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts, a breach attributable to a State entails duties of cessation, non-repetition, and full reparation. Reparation may take the form of restitution, financial compensation, or satisfaction. An injured State may, subject to strict conditions, adopt proportionate countermeasures designed to induce compliance rather than punish the responsible State. Countermeasures must be temporary, reversible where possible, preceded by a demand for compliance, and may not involve the use of force. 


The Corfu Channel judgment is particularly relevant because it combined navigational freedom with a coastal State’s obligation to warn shipping of known dangers. A State exercising control over strategically important waters must not knowingly permit those waters to be used in a manner contrary to the rights of other States. 


VIII. Available Legal Strategy for the UAE

The UAE should preserve its position through continuous and coordinated legal action:

* systematic diplomatic protest against every measure implying Iranian sovereignty over the islands;
* formal submissions and objections before the United Nations and the IMO;
* reservation of rights in relation to all traffic schemes affecting disputed waters;
* proposals for direct negotiation, arbitration, or referral to the ICJ;
* documentation of Iranian acts and UAE protests;
* insistence that any regional Hormuz framework contain an express “without prejudice” clause concerning sovereignty and maritime delimitation.

Recourse to the ICJ would require an accepted jurisdictional basis, such as a special agreement between the UAE and Iran. UNCLOS dispute settlement alone may not resolve the territorial-sovereignty question, because UNCLOS regulates maritime entitlements but does not itself determine ownership of land territory.

Closing;

The UAE’s claim is not merely political. It is founded upon navigational rights, territorial and maritime claims, third-State protections under treaty law, the customary prohibition against obstructing international straits, and the international law of State responsibility.

The central legal proposition is that Iran’s effective control cannot, by itself, conclusively determine title, and no bilateral arrangement may convert disputed possession into an opposable legal regime. The UAE is entitled to insist that any permanent arrangement governing the western approaches to Hormuz preserve its sovereignty claim, protect its vessels’ right of passage, and include it as a directly affected State. The UAE’s “seat at the table” is therefore supported not only by strategic necessity, but by established principles of international law.


المصدر : Transparency News