Foreign warships, auxiliary vessels, commercial ships and aircraft navigate international straits under the customary right of transit passage, codified in Part III (Articles 37-44) of the United Nations Convention on the Law of the Sea (UNCLOS). Iran’s assertion that passage through the Strait of Hormuz is restricted to innocent passage represents a targeted lawfare effort to erode global freedom of navigation. Arabian Gulf partners must consistently exercise and affirm transit passage rights — and not apply the concept of innocent passage — through the strait to maintain regional maritime security.
Under international maritime law, innocent passage and transit passage represent distinct legal concepts that govern how foreign ships and aircraft travel through waters along coastal states. Innocent passage applies within territorial waters, while transit passage applies to international straits, which are corridors that connect one part of the high seas or exclusive economic zone to another.
Crucially, neither innocent passage nor transit passage permits a coastal state to mandate prior notification or authorization. However, transit passage provides broader navigational freedoms that are essential to national defense and global commerce.
Innocent passage balances a coastal state’s right to its territorial sea, which is up to 12 nautical miles from the baseline, and foreign commercial transit rights. Under UNCLOS Articles 17 through 20, foreign vessels may exercise passage on the surface of the territorial waters provided passage is “continuous and expeditious” and not prejudicial to the peace, good order or security of the coastal state.
Activities such as weapons practice, surveillance, launching aircraft or stopping in situations other than an emergency render passage noninnocent. Although coastal states may regulate safety and environmental conservation and, under certain circumstances, temporarily suspend innocent passage, Article 26 prohibits levying tolls or transit fees merely for passage.
Conversely, transit passage guarantees unimpeded navigation and overflight through international straits. Under UNCLOS Article 38 and customary law, coastal states cannot impede, hamper or suspend transit passage. Transit passage prevents a coastal state from choking global trade and military mobility, especially when territorial water rights of coastal states cover an entire strait. Further, Article 39 permits vessels and aircraft to transit in their “normal modes of continuous and expeditious transit” — meaning submarines may navigate submerged and military aircraft may conduct formation flying and routine operations, provided they refrain from the threat or use of force against the coastal state.
Iran intentionally mislabels transit passage as innocent passage to advance its lawfare campaign to forcefully alter international law. Lawfare is the use — or misuse — of law to achieve a policy objective. Tehran has threatened transit levies, mandatory reporting and restrictions on foreign naval movements and attempted to justify these measures under a veneer of legitimacy by citing the 1958 Territorial Sea Convention. Iran insists the 1958 convention — not UNCLOS — governs the Strait of Hormuz. This legal theory fails under scrutiny.
The navigational provisions of UNCLOS, including transit passage, which Iran signed in 1982, have crystallized into customary international law, binding on all states regardless of ratification status. Furthermore, although the old 1958 standard used the term “innocent passage” for both territorial waters and international straits, even under Article 16(4) of the 1958 Convention, coastal states are strictly prohibited from suspending innocent passage through an international strait. Iran is not only applying the wrong law but misapplying it at its own choosing.
Arabian Gulf partners play an indispensable role in maintaining established international maritime law. Conceding to an innocent passage framework in the Strait of Hormuz effectively legitimizes Tehran’s attempts to rewrite customary law by force. By consistently conducting transit passage — in surface, subsurface and air domains — through the Strait of Hormuz, Arabian Gulf nations reinforce established international law and preserve stability, security and prosperity across the Middle East and beyond.