The Unraveling of the Hormuz MoU
Barely three weeks following the signing of a Memorandum of Understanding (MoU) intended to de-escalate hostilities, the United States has reportedly reinstituted a blockade on Iranian ports. Concurrently, both nations are engaging in reciprocal attacks on military installations and assets across the Gulf region. Furthermore, former President Trump has reportedly suggested imposing a 20 percent levy on shipping for security services in the Strait of Hormuz, colloquially termed "protection money." This situation is not merely a breakdown of the June agreement but rather its predictable outcome, as the core clause regarding global oil traffic was seemingly designed for ceremonial signing rather than practical implementation. The inherent ambiguities are now surfacing, revealing the foundational weaknesses of the accord.
The Empty Promise of "Safe Passage"
Article 5 of the MoU, which guarantees "safe passage of commercial vessels" through the strait, employs an elegant yet, from a maritime law perspective, largely vacuous phrase. This lack of concrete definition appears to be a deliberate compromise to facilitate agreement. Both Iran and Washington were able to sign the document because its wording committed them to very little, allowing each side to maintain divergent interpretations. This inherent flexibility is precisely why the arrangement is disintegrating faster than anticipated.
The concept of "safe passage" within the MoU leaves several critical questions unanswered. Crucially, it fails to designate an administering authority. Article 5 tasks Iran with making "arrangements using its best efforts" and then directs Tehran to engage in a "dialogue" with Oman and "discussions" with other Gulf states to define the "future administration and maritime services" of the strait. Notably, the United States, a prominent naval power and historical guardian of navigational freedom, is excluded from these discussions. Furthermore, the agreement's efficacy is not contingent upon the parties reaching a consensus. This allows Iran to assert that, following these discussions, it can unilaterally declare a new regime, potentially involving prior notification, designated Iranian corridors, and charges disguised as fees for "security, safety and environmental services." Reports since the signing indicate that Tehran envisions generating tens of billions of dollars annually from such revenues. Consequently, an agreement intended to reopen the strait has inadvertently provided one coastal state with a plausible pretext to exert control over its passage.
Long-Standing Legal Discrepancies
The legal challenges underlying the MoU predate its drafting. The Strait of Hormuz is recognized as an international strait, and under the transit-passage regime codified in the 1982 UN Convention on the Law of the Sea – widely considered customary law binding on all states – ships and aircraft of all nations are entitled to continuous and expeditious passage that bordering states cannot suspend, even for security reasons. However, Iran, which never ratified the convention, maintains that the applicable regime is instead the more restrictive "innocent passage" regime. As a persistent objector, Iran claims it is not bound by the broader rule, asserting its right to prohibit overflight, compel submarines to surface, and dictate traffic routes as it deems fit. The MoU sidesteps this long-standing dispute, vaguely referring to "applicable international law and the sovereign rights of coastal states." This ambiguous phrasing allows each capital to interpret it as an affirmation of its own stance, transforming constructive ambiguity into an agreement to perpetuate disagreement on a pivotal issue.
Even Iran's narrower interpretation does not fully support its objectives. International maritime law prohibits charging for mere passage, regardless of whether the regime is transit or innocent passage. A coastal state may only levy charges for specific services actually rendered to a particular vessel, such as pilotage or towage. This principle has been consistently upheld from the International Law Commission’s 1956 work through the 1958 Territorial Sea Convention, which Iran signed, to the modern convention. Given the wide, deep channel of Hormuz, ships have historically not required special services. Rebranding a toll as a "maritime-services fee" does not alter its legal character.
Moreover, Iran does not hold exclusive administrative authority over the strait. Its southern side lies within Omani waters, and Oman is unequivocally bound to permit transit passage there. Recent statements from Oman affirm its adherence to international law, implying that any Iranian interference on that side would constitute a clear violation of Omani sovereignty. Furthermore, no two states, or even all littoral states collectively, can legally abrogate the passage rights of third states that never consented, a fundamental principle of treaty law. Therefore, the MoU cannot legitimately deliver what its most optimistic interpreters hope.
Legal Constraints and Military Realities
The legal limitations also constrain the lawful responses available to the United States. Freedom of navigation permits warships to transit and safeguard commercial shipping. The MoU cannot be leveraged to justify the reciprocal temptation voiced in Washington: a proposed 20 percent US "toll" to offset the costs of maintaining the strait's openness. This is where legal fragility collides with military reality, explaining the framework's inherent strain. The legal concept of safe passage presupposes a baseline of order, including an accepted authority, agreed-upon rules of the road, and a shared expectation that vessels will not face attack. The Strait of Hormuz currently lacks these conditions.
Within the initial 60-day "no charge" period established by the MoU, Iranian forces reportedly struck vessels, including one in Omani waters. In response, US Central Command conducted strikes on numerous coastal radar, missile, and fast-boat targets. Iran declared its sole management of the strait and briefly announced its closure, while both sides exchanged blows around Gulf bases. A deterrence contest has become the true governing regime of Hormuz, a dynamic antithetical to law. It replaces established rules with credible threats and treats every transit as a test of resolve rather than an exercise of legal right. No two-word phrase can bear such a substantial political burden. The MoU was intended to halt a war, but its ceasefire clause is now being asked to serve as a permanent constitution for one of the world's most vital chokepoints. It is being tasked with allocating power, pricing access, and determining usage rights, and its provisions are being imposed on third parties who never signed it. This is an untenable expectation.
Source: Original Article
