Why was an Indian tanker fired at by Iranian forces? What was it doing in Iranian territorial waters? And why is the Strait of Hormuz not open despite claims by Donald Trump and Abbas Araghchi? They all point to a reality quite different from the sanguine statements by countries not party to the West Asia conflict that Iran must respect the 'right of transit passage'.
This right flows from the principle of freedom of navigation elaborated in 1982 UN Convention on the Law of Seas (UNCLOS), of which India is a member, but the US and Iran aren't. While Tehran did sign the convention, it did not ratify either the present one or its earlier 1958 version. The US, too, has not ratified UNCLOS, but seeks to 'progress its implementation'.
The only instrument to which Tehran is obligated is 1973 Traffic Separation Scheme (TSS) for Hormuz, passed through an International Maritime Organisation (IMO) resolution. It was done to avoid collisions at sea, under which two traffic lanes - for incoming and outgoing, with a 1 nautical mile (NM) separation between the two - were plotted. This was improved in 1979 to make it two traffic lanes each for incoming and outgoing.
The other obligation for Iran is its 1974 bilateral maritime boundary agreement with Oman, the country that controls the other end of Hormuz. Both countries agreed to a 12 NM claim on the narrowest point of the 21 NM-wide strait. So, there's a 3 NM overlap recognised by both countries, but no provision for an international waterway. Both countries have, however, respected TSS that's somewhere in the middle of the strait.
But Iran has claimed it has mined Hormuz traffic lanes. With no way of verifying this, stranded ships are exploring the safer option to skirt the usual route by going deeper into territorial waters of Iran or Oman. In this equation, the dominant entity is Iran. So, any requests to Oman to use its waters are for now being promptly deflected to Iran.
It was in this backdrop that the Indian ships detoured deeper into Iranian territorial waters. But, as recordings suggest, they had permission. New Delhi also has separately been in discussions with Tehran for safe passage following Araghchi's statement two days ago that the strait had been opened. But Trump's reassertion on a naval blockade against Iranian ships made IRGC overrule its own foreign ministry, and Indian ships became targets. They escaped with minor damage. But the incident means that there are now 38 Indian ships, either docked or at sea, waiting to cross the Hormuz.
Technically, Iran is not in violation of any of its treaty commitments. But it was thought collective pressure could work. Which is why Bahrain as a non-permanent member sponsored a resolution on behalf of GCC countries in the UNSC supported by the US to get Iran to allow traffic through Hormuz. It first wanted a Chapter 7 resolution, which would have allowed for 'use of force'. Russia and China blocked this, as well as subsequent watered-down drafts.
In negotiations over various versions of this failed resolution, China successfully inserted a specific change - that the resolution would apply only to Hormuz, and not act as precedent elsewhere, or be considered international customary law. This is because Beijing has its own concerns in various straits in the South China Sea, and has refused to implement the UNCLOS award against China's claims in a dispute with the Philippines.
So, on the one hand, there's the US that agrees to the UNCLOS principle but hasn't ratified it. Then, there's Iran that has knowingly stayed away from ratification precisely in preparation for a day like this when it will need Hormuz as leverage. And there's China, significantly dependent on supplies from Hormuz, which has ratified UNCLOS but is selective in following it.
So, this seems to offer Hormuz up to the law of the jungle. With the US having already expended military threat, waiting for a 'grand deal' is proving costly for importing countries like India. While it's important to repeatedly underscore the value of freedom of navigation and right for transit passage, the way forward for New Delhi is going to come from how bilateral deals will be struck.
Iran has so far let nine Indian ships pass, which Tehran claims is more than any other country. But the fact is, nothing has moved in the past two days. What's becoming clear is there are now four broad entities within Iran - Supreme National Security Council, Ministry of Intelligence and Security, IRGC, and foreign ministry - with varying degrees of control and veto. They have to be engaged accordingly, as it's still an alternate governance architecture finding its mantra of consensus decision-making and authority.
The big picture may stay hazy for a while as conversations are likely to play out in a step-by-step, contested manner that may not quite provide full and immediate relief on the Hormuz front. So, while not abandoning principles of maritime trade, India's test will be to proactively work out interim practical arrangements, without getting in the way of either the US or Iran as they explore what seems for now a rough, patchy, uncertain, stormy middle ground.
This right flows from the principle of freedom of navigation elaborated in 1982 UN Convention on the Law of Seas (UNCLOS), of which India is a member, but the US and Iran aren't. While Tehran did sign the convention, it did not ratify either the present one or its earlier 1958 version. The US, too, has not ratified UNCLOS, but seeks to 'progress its implementation'.
The only instrument to which Tehran is obligated is 1973 Traffic Separation Scheme (TSS) for Hormuz, passed through an International Maritime Organisation (IMO) resolution. It was done to avoid collisions at sea, under which two traffic lanes - for incoming and outgoing, with a 1 nautical mile (NM) separation between the two - were plotted. This was improved in 1979 to make it two traffic lanes each for incoming and outgoing.
The other obligation for Iran is its 1974 bilateral maritime boundary agreement with Oman, the country that controls the other end of Hormuz. Both countries agreed to a 12 NM claim on the narrowest point of the 21 NM-wide strait. So, there's a 3 NM overlap recognised by both countries, but no provision for an international waterway. Both countries have, however, respected TSS that's somewhere in the middle of the strait.
But Iran has claimed it has mined Hormuz traffic lanes. With no way of verifying this, stranded ships are exploring the safer option to skirt the usual route by going deeper into territorial waters of Iran or Oman. In this equation, the dominant entity is Iran. So, any requests to Oman to use its waters are for now being promptly deflected to Iran.
It was in this backdrop that the Indian ships detoured deeper into Iranian territorial waters. But, as recordings suggest, they had permission. New Delhi also has separately been in discussions with Tehran for safe passage following Araghchi's statement two days ago that the strait had been opened. But Trump's reassertion on a naval blockade against Iranian ships made IRGC overrule its own foreign ministry, and Indian ships became targets. They escaped with minor damage. But the incident means that there are now 38 Indian ships, either docked or at sea, waiting to cross the Hormuz.
Technically, Iran is not in violation of any of its treaty commitments. But it was thought collective pressure could work. Which is why Bahrain as a non-permanent member sponsored a resolution on behalf of GCC countries in the UNSC supported by the US to get Iran to allow traffic through Hormuz. It first wanted a Chapter 7 resolution, which would have allowed for 'use of force'. Russia and China blocked this, as well as subsequent watered-down drafts.
In negotiations over various versions of this failed resolution, China successfully inserted a specific change - that the resolution would apply only to Hormuz, and not act as precedent elsewhere, or be considered international customary law. This is because Beijing has its own concerns in various straits in the South China Sea, and has refused to implement the UNCLOS award against China's claims in a dispute with the Philippines.
So, on the one hand, there's the US that agrees to the UNCLOS principle but hasn't ratified it. Then, there's Iran that has knowingly stayed away from ratification precisely in preparation for a day like this when it will need Hormuz as leverage. And there's China, significantly dependent on supplies from Hormuz, which has ratified UNCLOS but is selective in following it.
So, this seems to offer Hormuz up to the law of the jungle. With the US having already expended military threat, waiting for a 'grand deal' is proving costly for importing countries like India. While it's important to repeatedly underscore the value of freedom of navigation and right for transit passage, the way forward for New Delhi is going to come from how bilateral deals will be struck.
Iran has so far let nine Indian ships pass, which Tehran claims is more than any other country. But the fact is, nothing has moved in the past two days. What's becoming clear is there are now four broad entities within Iran - Supreme National Security Council, Ministry of Intelligence and Security, IRGC, and foreign ministry - with varying degrees of control and veto. They have to be engaged accordingly, as it's still an alternate governance architecture finding its mantra of consensus decision-making and authority.
The big picture may stay hazy for a while as conversations are likely to play out in a step-by-step, contested manner that may not quite provide full and immediate relief on the Hormuz front. So, while not abandoning principles of maritime trade, India's test will be to proactively work out interim practical arrangements, without getting in the way of either the US or Iran as they explore what seems for now a rough, patchy, uncertain, stormy middle ground.
Pranab Dhal Samanta
Pranab is a trusted byline in his chosen areas of national politics, governance, security and international affairs for over two decades. His column State of Play is a regular feature in The Economic Times. Has reported extensively within and outside India, including Pakistan, Afghanistan, China, Israel during his career, besides having led reporting teams across organisations. Was awarded the Ramnath Goenka Award for Excellence for his writings on the Indo-US nuclear deal.