The latest CNN feed update has this :
“The Strait of Hormuz is open to all vessels seeking to lawfully transit the international waterway,” CENTCOM wrote in a post on X, adding: “US forces are positioned and prepared to ensure that freedom of navigation remains available despite unwarranted Iranian aggression, harassment, threats, and arbitrary declarations.”
“Iran does not control the strait. Traffic is flowing,” it continued.
This is an odd one. Because I fully support freedom of navigation, and I totally support the concept of freedom of navigation exercises, such as the UK sailing through the South China Sea. The PRC will moan and complain, but it is freedom of navigation, same as when the PRC PLAN Navy sails through the English Channel.
But this bit of CENTCOMs post. "arbitrary declarations.". Hmm, is that not what you are doing ?
Now, if the PRC invades Taiwan and a war breaks out. Do I think there is still freedom of navigation through the Taiwan Strait ? Nah. Because there would be a state of war going on.
And we can go to UNCLOS. Article 41 sub sections 4 and 5:
4. Before designating or substituting sea lanes or prescribing or substituting traffic separation schemes, States bordering straits shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the States bordering the straits, after which the States may designate, prescribe or substitute them.
5. In respect of a strait where sea lanes or traffic separation schemes through the waters of two or more States bordering the strait are being proposed, the States concerned shall cooperate in formulating proposals in consultation with the competent international organization.
The USA is not a bordering state to the SoH. And this is the whole spirit of UNCLOS. That land has dominion over the sea. You can't claim a sea unless you have land there.
However, I have just spotted article 45-2
2. There shall be no suspension of innocent passage through such straits.
And that is referring to straits that have no alternate routes. And that applies to the SoH.
However, UNCLOS does not mention war. And basically, as per UNCLOS, the US CENTCOM has no control over the strait. It can't, because it has no land there. For sure, in peacetime it can do freedom of navigation, as in innocent passage.
But is it innocent passage when one side on a war is directing ships through a strait within pea shooter range of the enemy coast. I would say no.
But I am happy to be persuaded otherwise.