Introduction
In an increasingly uncertain maritime environment, the concept of “Safe Passage” is quietly evolving, but with significant legal implications.
Recent reports suggest the introduction of a structured transit framework in the Strait of Hormuz, under which vessels may be expected to undergo prior registration, vetting, and coordination before accessing designated routes.
From an operational standpoint, such measures may be justified. In a region exposed to heightened geopolitical risk, enhanced coordination may offer operators greater predictability. Yet, when viewed through the lens of international maritime law, the implications are considerably more complex.
This paper explains why this issue is important and examines its practical implications for those operating in the region.
The Legal Baseline: Transit Passage as a Right, not a Privilege
Under the United Nations Convention on the Law of the Sea (“UNCLOS”), the treaty widely described as the constitution of the oceans, and one of the most broadly ratified instruments in the history of international law, the Strait of Hormuz is recognised as a strait used for international navigation and is therefore subject to the regime of transit passage, which formulates an essential principle that safeguards the uninterrupted flow of global maritime trade, set out in Articles 37 to 44 of the UNCLOS.
Transit passage is not a procedural formality; it is a substantive legal right. It allows vessels and aircraft to pass through such straits continuously and expeditiously, without the need to obtain prior approval from coastal States.
While Article 42 of the UNCLOS does permit coastal States to regulate navigation for legitimate purposes, including safety, environmental protection, and traffic management, Article 44 imposes a clear and overriding obligation that such measures must not, in practice, restrict, delay, or require prior authorisation.
The distinction, though subtle, is fundamental, as transit passage is a legal entitlement, not a discretionary privilege.
The gap between “regulating how vessels transit” and “deciding which vessels may transit” is precisely the gap that matters the most. One is lawful, while the other crosses a fundamental legal boundary.
Where Regulation Ends, and Control Begins
It is widely accepted that coastal States may introduce measures to ensure safe and orderly navigation. Traffic separation schemes, designated routes, and coordinated safety procedures are all legitimate and recognised under international maritime law.
However, the legal boundary is crossed when such measures go beyond facilitating navigation and start to impact access to the strait itself. Regulation is appropriate when it promotes safety and efficiency; it becomes problematic when it starts to serve as a form of control.
In this context, any framework that limits passage to “approved” vessels or requires extensive disclosure of commercial information, such as ownership structures, cargo details, or voyage plans, raises legitimate legal concerns. These concerns are heightened where such measures are applied selectively or lack transparency.
UNCLOS does not preclude coordination as such. The concern is when measures introduced in the name of coordination may, over time, evolve into mechanisms of control. If left unchecked, it risks weakening a foundational principle of international maritime law, namely, that transit passage must remain predictable, uniformly applied, and free from undue interference.
Charging for Passage: A Question of Principle
Under established principles of international maritime law, charges may be levied only in exchange for specific services rendered, such as pilotage or navigational assistance. Hence, charging vessels merely for the act of transiting, without a corresponding service, would be difficult to reconcile with the principle of free and unimpeded passage through international straits.
A transit toll, a fee levied not for any service but merely for the right to pass through, is fundamentally incompatible with the right of free transit passage. If that right means anything, it means that it cannot be made conditional on a financial payment to the State through whose adjacent waters the vessel happens to be passing.
The practical consequence of such a charge, if accepted as valid, would be troubling, as transit passage would effectively become available only to those willing and able to pay for it. That is not a principle that the international maritime community has ever accepted, and there is no credible legal basis for it now.
We raise this not to be alarmist, but because it touches on a broader question that is worth asking plainly: are we seeing the beginning of a shift towards the commercialisation of navigational rights in strategically sensitive regions? If the answer is yes, it warrants serious and sustained attention from flag States, industry bodies, and legal practitioners alike.
Commercial Reality: Legal Risk Meets Operational Pressure
The fact that a measure is legally questionable does not make it operationally avoidable. In the real world of shipping, decisions must be made quickly, often under pressure, and the consequences of getting them wrong, in either direction, can be severe.
Compliance with a locally imposed framework, even one of contested legal validity, does not eliminate your exposure. It may reduce certain immediate operational risks while simultaneously creating others. The legal and commercial calculus is not straightforward, and it requires careful, case-by-case assessment.
For shipowners, charterers, and insurers, these developments are far from theoretical. However, they carry immediate commercial implications. Against this backdrop, several key considerations come into focus, including:
- The allocation of risk under charterparty agreements;
- Potential classification of the area as a war-risk zone;
- The potential reliance on force majeure or deviation provisions; and
- Increased compliance and disclosure obligations.
In this context, what appears to be a “Safe Corridor” may, in reality, introduce a new layer of legal and commercial exposure.
The goal of this analysis is not to discourage transit or to suggest that operators should take a confrontational approach to local authorities. It is to ensure that the decisions being made are informed ones, grounded in a clear understanding of both the legal entitlement and the practical exposure.
A Broader Pattern worth watching
What we are describing in the Strait of Hormuz is not an isolated development, but part of a broader pattern that we have observed across multiple strategically significant waterways, and which we believe deserves to be named as such.
While UNCLOS provides a stable and widely accepted legal framework, its application is increasingly influenced by geopolitical realities. In periods of heightened tension, States may adopt practices that, while not formally codified, shape operational behaviour and expectations.
The key issue is not whether coastal States can regulate navigation; they clearly can. Rather, it is whether such regulation is evolving into a mechanism of control that alters the legal character of transit passage in practice.
We are not suggesting that this is the inevitable trajectory; we think it is the right moment to pay close attention. Laws do not protect themselves. The rights international maritime law confers are real. However, their practical value depends on the willingness of those who hold them to understand and, where necessary, to assert them.
A Practitioner’s Perspective
For those who operate in and around the Strait of Hormuz, whether as owners, operators, charterers, insurers, or financiers, the question is not whether this issue is legally significant. It indeed is. The question is, what to do about it?
In our practice, we approach these situations through four overlapping lenses:
- Understanding what the law entitles you to. This sounds obvious, but it is more nuanced than it appears. Knowing the precise content of your transit passage rights, and the conditions under which they may lawfully be qualified, is the foundation for every other decision;
- Reviewing your contracts with this environment in mind. Charterparties, bills of lading, and insurance policies that were drafted without this specific context in mind may leave gaps in risk allocation that need to be identified and addressed. We work with clients to assess their existing documentation and to propose appropriate modifications;
- Preparing for the decisions that arise in real time. Voyage instructions, disclosure decisions, and responses to local authority requirements need to be made quickly and in full awareness of their legal and contractual implications. We help clients build the frameworks and protocols to do this well; and
- Staying current as the situation develops. This is a dynamic environment, and the legal and operational picture will continue to evolve. We monitor developments in State practice, industry guidance, and regulatory positions on an ongoing basis, and ensure that our clients are briefed on what matters.
Navigating the Strait of Hormuz today is not simply a question of seamanship. It is a question of being legally prepared, contractually protected, and strategically informed. We are here to help with all three.
A Final Word
The emergence of structured transit frameworks in the Strait of Hormuz raises serious questions that the international maritime community cannot afford to treat as background noise. The legal framework regarding the right of transit passage, as established under UNCLOS, is clear. The question is whether what is being implemented on the ground is consistent with it.
We believe, based on what is currently known, that there are legitimate and significant grounds for concern. Not alarm, but concern. And concern of the kind that warrants careful, well-informed, proactive engagement, not a wait-and-see approach.
For our clients, our message is straightforward: understand your rights, review your contracts, and ensure that the decisions you take in this environment are made with full awareness of the legal and commercial landscape. The risks are real, but they are manageable.
Seek Legal Counsel
For further information, please contact Hossam El Safoury, Senior Associate, on hossam.elsafoury@habibalmulla.com
Disclaimer
The content provided in this article is intended for informational purposes only and does not constitute legal advice. While every effort has been made to ensure the accuracy and completeness of this information, the article does not offer a guarantee or warranty regarding its content. The matters discussed in this article are subject to interpretation, and legal outcomes may vary based on specific facts and circumstances. We recommend that readers seek individual legal counsel before making any decisions based on the information provided. If you require specific legal advice, please contact us directly.