Patrick Wintour

Iran is proposing that shipping companies should pay charges for specific services when they cross the strait of Hormuz, in a move that would enable it to raise money from shipping traffic without presenting the payment as a toll.

Iran’s framing is designed to maximise political and legal support for the plan it is developing with Oman. Iran has made a solution to its demands an essential precondition to winding down the conflict, including an end to its effective blockade of the Strait and the counter-blockade of Iranian ports being mounted by the US Navy.

A bill entitled a Strait of Hormuz Management Plan that is being passed through the Iranian parliament leaves the issue of tolls open, but some Gulf diplomats describe the Iranian stance as constructive, given the current chokehold they have on the waterway. Nearly 20% of the world’s oil is transported through the strait, only 21 nautical miles wide at its narrowest point.

Iran has not ratified the United Nations Convention on the law of the sea (UNCLOS), but is trying to present the proposed charges for services in language that would be compliant with the convention.

It held discussions on Sunday with Oman the stewards of the south side of the strait. Any Iranian proposal requires co-ordination with Oman, whic is a signatory to UNCLOS. The two countries would seek support of both the UN and the International Maritime Organisation for its plans, and are not presenting the proposal as a unilateral step.

The UK and other European countries have set their face against charges, arguing that freedom of navigation means navigation must be free. They claim the strait has a rare legal status as international water between one part of the high seas and another.

Article 26 of the Law of the Sea prohibits a coastal state from levying a payment on ships simply for passing through its territorial waters. But charges may be levied upon a foreign ship as payment for specific services rendered to that ship (eg help with port fees, pilotage, or security services). The level or fact of these charges must not be discriminatory.

The fee must be for specific services rendered, and not for protection from an artificially manufactured danger created by the charging state.

Iran further claims its restrictions in the freedom of navigation are different to blocking a port or a general blockade, It claims it has merely imposed a preventitive restriction on the passage of hostile vessels in a narrow waterway that passes through its territorial waters. It says it is acting in self defence under Article 51 of the UN charter and the action was taken in response to an unlawful armed attack without prior provocation. It claims its domestic laws mean the right of innocent passage does not apply to vessels that are engaged in hostile acts.