Washington Lawyer September/October 2026
By Richard Blaustein
When Iran closed the Strait of Hormuz in February 2026 and proposed charging passage fees, the ensuing strife brought up questions of that nation's right to do so under international law.
The U.S.–Iran tension underscores one of the legal ambiguities that the international community sought to eliminate more than 70 years ago as countries asserted their territorial seas of varying distances, which coincided with the United States' vital interest in navigation rights through straits. Negotiations culminated in 1982 with the adoption of the United Nations Convention on the Law of the Sea (UNCLOS), replacing outdated, fragmented maritime laws with a universally accepted treaty balancing coastal state sovereignty with freedom of navigation, establishing clear limits for territorial waters, and regulating the exploitation of minerals. The treaty was modified in 1994 to resolve polarizing clauses regarding seabed mining.
Drawing on substantial resources across agencies, the United States held extensive diplomatic and stakeholder discussions to develop a fully engaged negotiation effort and produce the convention. Although President Clinton signed UNCLOS in 1994, the U.S. Senate never held a floor vote to provide advice and consent on ratifying it. Thus, the United States has never become a party to UNCLOS; neither has Iran.
Perspectives From Pioneers
Ocean law experts Bernard Oxman, professor emeritus at the University of Miami School of Law, and John Norton Moore, professor emeritus at the University of Virginia School of Law, were there at the convention's start, working with the U.S. Department of State and leading the National Security Council Interagency Task Force on the Law of the Sea, dubbed D-LOS.
Oxman was with the Navy's Judge Advocate General Corps office in 1967 when the Soviet Union sent a note to the United States and a few other countries expressing an interest in a conference to extend the territorial sea maximum from the customary 3 nautical miles to 12.
"The U.S. was willing to consider convening a new conference for the purpose of reaching agreement on 12 nautical miles as the maximum permissible breadth of the territorial sea, provided that there was a reasonable chance of success and that there would be express provision for free transit of ships and aircraft of all states through straits that were overlapped by territorial seas," Oxman recounts.
He explains that the limit extension would create an overlap of sovereign territorial sea with transit passages. "The Strait of Hormuz is just one of many straits that would be overlapped by the territorial sea if the agreed maximum limit for the seas were expanded to 12 miles," Oxman says. Other strategically important straits include the Strait of Malacca between Malaysia and Indonesia, connecting the Indian Ocean to the Pacific Ocean, and the Bab al-Mandeb Strait between Yemen and Djibouti and Eritrea, a passage from the Red Sea to the Gulf of Aden and by extension the Indian Ocean.
When Law of the Sea negotiations began in earnest in the early 1970s, free navigation through straits was an insistent point for the United States, says Moore, in part because the U.S. military felt it was essential for conducting its missions. "The enormous importance of strait navigation in Law of the Sea — this was a sine qua non for the U.S., and we were successful," Moore says. "To keep straits navigationally open without the ability of strait states to add tolls or apply an administrative structure is one of the most important national security wins in the history of our country."
Moore and Oxman feel that the 2026 Strait of Hormuz blockade is an egregious backsliding for the oceans order and rule of law. "This entire notion of tolls collected by states bordering straits was supposed to have died in the 19th century," Oxman says. "The notion that it would come up again is unsettling."
Both ocean law experts feel that if the United States became a full party to UNCLOS, it would gain greater leverage among its allies and adversaries and be enabled to reset the rights of strait navigation. It would also deter other nations from emulating Iran's behavior.
Earlier Roots of Legal Order at Sea
James Kraska, law professor and director of the Stockton Center for International Law at the United States Naval War College, has also worked and published on the Law of the Sea for many years. He points out that American notions of free seas became pronounced during the early republic years, highlighting early conflicts. "The U.S. fought a quasi-war with France, the first Barbary War, the War of 1812, and the Second Barbary War, mostly over freedom of the seas," Kraska says.
Oxman also sees deep roots for a legal order of oceans, tracing it back to Dutch lawyer and jurist Hugo Grotius, whose famous 1609 legal tract, Mare Liberum, argued for freedom of the seas, in opposition to Portuguese and Spanish claims of national dominion over the seas.
Grotius' view prevailed, Oxman says, and freedom of navigation evolved into a consensus for a legal order for the ocean. A key point to appreciate is that nations broadly look to the seas as venues for communication, Oxman says. "The interest of a state in communication goes beyond the number of ships or planes under its registry," he explains. "It has everything to do with its interests in export and import of goods, in movement of persons."
"Every state with interests in communications on and over the sea has an interest in the maintenance of a sound legal order at sea that is generally respected by the rest of the world," Oxman adds. "It does for us at sea what law does for us elsewhere; it permits us to predict with reasonable degrees of accuracy the behavior of others and establishes the basis in which we have an understanding of what can and cannot be done."
Beyond Navigational Concerns
One of the principal achievements of UNCLOS was the establishment of the concept of the exclusive economic zone (EEZ) — an area of the ocean, generally extending 200 nautical miles beyond a nation's territorial sea, within which a coastal nation has jurisdiction over both living and nonliving resources.
With EEZs, nations are granted the exclusive right to manage natural resources that have been highly valued (including fish, oil, and gas) or perform marine-based scientific research, while allowing other nations' vessels free navigation through the EEZs.
"UNCLOS achieves the extension necessary to place coastal fish stocks under coastal state control. Simultaneously, over the same areas, the convention maintains and extends navigational freedom," Moore explains. "It understands you can separate ocean functions and therefore give a victory in terms of rational distribution in the way things actually happen in the world's oceans."
Because UNCLOS has achieved widespread acceptance beyond the parties to the convention, the United States benefits from the EEZ framework. It does not, however, have clarity on continental shelf extension beyond 200 nautical miles. Seeking resource prerogatives, states must submit detailed and science-backed information to the Commission on the Limits of the Continental Shelf, an independent entity created under UNCLOS. If the submitting nation agrees with the commission's recommendations, the continental shelf demarcation is final and binding.
Oxman and Kraska point to Russia, a party to UNCLOS, and its successful efforts in appealing to the continental shelf commission. "Obviously we have our differences with Russia, and yet Russia, in this respect, has complied relatively well with the maritime claims in the Arctic Ocean," Kraska says. "So, rather than having a free-for-all, Russia has adhered to the UNCLOS process of making its claims using empirical data — hydrographic or oceanographic data — that they have collected at great expense over the course of 25 years, and they have made a number of iterative submissions to the Commission on the Limits of the Continental Shelf."
Kraska says it is vitally important for the United States to have recourse for final and binding continental shelf demarcations, especially off the coast of Alaska, where the U.S. continental shelf "could extend as much as 650 miles toward the North Pole."
Oxman believes that the United States "would be better off having an American on the Commission on the Limits of the Continental Shelf who can participate in the review and recommendations on what foreign nationals are claiming, not only in the Arctic but around the world."
Another important area that bears on both economic opportunities and environmental stewardship is deep-sea mining. The United States argued for changes to UNCLOS Part XI on deep-sea management and won in 1994. In addition, the United States was guaranteed a seat on the overseeing council of the International Seabed Authority if it ratifies UNCLOS.
Race for Resource Extraction
Deep seabed minerals are a matter of controversy today. Environmentalists are concerned about the ecological impacts of mining operations sweeping up rare mineral nodules that lie on the sea floor, while at the same time the International Seabed Authority has yet to resolve the environmental safeguards for resource extraction. Adding to this, President Trump's April 2025 Executive Order "Unleashing America's Offshore Critical Minerals and Resources" signaled the administration's intent to proceed with supporting mining and bypass the UNCLOS authority.
Oxman and Kraska point out that while the United States might have a legal right to pursue deep-sea mining outside UNCLOS as it is a nonparty to the treaty, American firms' legal claims would be dubious. These companies could also encounter protests and legal pushback from nations across the globe.
Based on his legal review, Kraska believes the United States would legally be able to conduct deep-sea mining, but most legal authorities would disagree. "And on the political side they are right; there are huge political costs for the United States being outside the convention. There could be real legal problems, such as when U.S.-licensed companies perhaps try to sell minerals outside of the convention," Kraska says. "There are countries that will try to block the sale … of any product that has minerals removed outside of Part XI of the convention."
Oxman says this is unfortunate because Part XI in essence supports some manner of careful resource extraction and not a de facto moratorium on deep-sea mining. The U.S. taking unilateral action would certainly not be a preferable course, but it might be "the only game in town," he says.
All of this points to the compelling advantage of the United States becoming a party to UNCLOS, according to Oxman. "It is not just the guaranteed seat on the council [of the International Seabed Authority]; the voting system gives the U.S. enormous blocking power. In addition, having an American in the room changes things enormously," he says.
For Moore, American presence on the International Seabed Authority enables U.S. environmental advocates to shape safeguards that the body has struggled with. "The environmental provisions of the Law of the Sea Convention were a gigantic move forward," Moore says. Especially pertinent are UNCLOS Articles 192 to 196, with Article 192 and its overarching principle that "[s]tates have the obligation to protect and preserve the marine environment."
"If you are an environmental group and want to see protections on the deep seabed, we have no voice whatsoever if we are not a party," Moore adds.
Other critical security issues — such as China's military activity in the South China Sea — all tie in with U.S. interests being advanced if it becomes a full party to UNCLOS. "If our objective is to establish a stable and durable international order at sea respected by all states, we are much better off with a written document that has formal legal status everywhere," Oxman says.
Pertaining to the Strait of Hormuz, Moore believes that UNCLOS would be a unifier internationally as well as domestically if finally endorsed by the Senate. "If we move forward on the Law of the Sea and talk about the Strait of Hormuz being about rule of law on the oceans — which it really is — and bring in our allies and remind them of the importance of prevailing in Hormuz … they are going to be a lot more interested in coming in and helping than thinking about it as a peculiarly American action."
And there's another benefit. "Becoming a full party to UNCLOS offers a huge ability to cut through left and right and the unfortunate parallelism — or whatever we call it — that seems to be so divisive," Moore adds. "At this time, it is urgent that we accede to the Law of the Sea Convention."
D.C. Bar member Richard Blaustein is a freelance writer focusing on the environment, science, and legal matters.
