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Legal Beat per ship for limited passage through Iranian-controlled cor- times, the Rhodians, Carthaginians, and Romans all actively ridors, further distorting normal commercial operations. sought to control the seas as far out from their shores as possi-

With both the Strait of Hormuz closed and the Bab al Man- ble. For the Romans, at the height of their empire this amount- deb Strait in and out of the Red Sea vulnerable to Houthi at- ed to attempted control over the entire Mediterranean Sea. tacks, carriers have been left with only one alternative for It was not until Dutch jurist and philosopher Hugo De Groot

Asia-Europe transit: the Cape of Good Hope route around wrote a book called Mare Liberum (the “Free Sea” or “Open southern Africa. Sea”) in 1608 that the seeds were sewn for what would become

The Cape route adds 10 to 14 days to a typical Asia-Europe the legal doctrine of freedom of the seas. De Groot asserted transit and signi? cantly increases fuel consumption and other that the seas are common property owned by all mankind and operating costs per voyage. Container shipping rates surged that ships of every nation have the freedom to navigate them. during the 2024 Red Sea crisis when the Cape route was last Others, most notably Englishman John Selden, argued that na- pressed into wide use, and the current disruption is far more tions should establish sea frontiers, and that foreign vessels be severe. Traf? c around the Cape has remained consistently el- allowed to sail in sovereign waters as a privilege rather than evated, with daily transits well above historical norms as op- a right (“mare clausum”). Ultimately, De Groot’s freedom erators commit to the longer but safer route. of the seas prevailed and became established doctrine under

The increased costs and transit times pose obvious supply customary international law. chain challenges, but the real problem is capacity, particularly Because there is no lawgiver or true law enforcer at the in- in the case of crude oil. All feasible bypass alternatives to ternational level, the international law of the sea really has the Strait of Hormuz combined, including the Cape route and one true source, which is the common will of countries. Most

Middle Eastern pipelines, can handle at most approximately countries of the world have acceded to the United Nations 10 million barrels per day. Normal Hormuz throughput before Convention on the Law of the Sea (UNCLOS), with two no- the closure was estimated at 20 million barrels per day. Even table exceptions being the United States and Iran. UNCLOS if every bypass runs at maximum capacity simultaneously, amounts to an af? rmative restatement of customary interna- a gap of at least 10 million barrels per day remains with no tional law and U.S. courts recognize much of it as such. Ar- short-term solution. ticles 37 and 38 of UNCLOS provide that in straits used for

Speci? c pipeline bypass routes do exist but are limited. This international navigation like the Strait of Hormuz, all ships is somewhat surprising given the fact that the Strait of Hormuz enjoy a right of transit passage, which means the exercise of has loomed as a choke point over Western Persian Gulf coun- freedom of navigation solely for the purpose of continuous tries’ economies since 1979. The UAE’s Abu Dhabi Crude Oil and expeditious transit through the strait.

Pipeline (ADCOP) from Habshan to the port city of Fujairah If, in our negotiations for the cessation of our attacks on Iran was speci? cally built to bypass the strait, but at full capacity it and an ultimate return to peace, we concede some authority or can move roughly less than one-tenth of normal strait crude oil right of Iran to charge a toll to transit the Strait of Hormuz, the throughput. Saudi Arabia’s East-West Pipeline connects Per- United States and the rest of the world will have lost a navi- sian Gulf production to Yanbu on the Red Sea, providing an gation right all nations have enjoyed for hundreds of years. alternative crude export route. It was severely degraded in an Even worse is the precedential value of such a concession. attack in early April, but quickly restored to its full capacity of What action might China take in the Strait of Taiwan? What 7 million barrels per day. Iraq reportedly will reopen a long- action might Russia attempt in the Bering Strait? What of dormant crude oil pipeline running from Kirkuk to Turkey’s the Turkish Straits, the Strait of Malacca, the Bab al-Mandeb? port of Ceyhan. It is thought to have a potential full capacity The geopolitical, national security, and distortive economic of 1.5 million barrels per day, but currently is said to have ca- and logistics implications are quite serious. pacity to move only a quarter to a half million barrels per day. Let us hope that the United States and other nations of the

On top of, and even more important than, the logistics chal- world will reject such an idea outright if it is raised. lenges posed, the current Strait of Hormuz situation could

The Author have serious negative repercussions for what is well-settled customary international law regarding freedom of navigation

Lewis and right of innocent passage.

Jeffrey Lewis is a member at Cozen O’Connor and has over 30 years of extensive experience representing and

The international law of the sea provides us with the rules advising clients, members of Congress, and federal that govern relationships between countries regarding the use agencies on a wide range of legislative, regulatory, and policy matters. He previously held senior leadership roles and control of the sea and its resources. Until the 17th century, within the U.S. Department of Transportation, the U.S.

Department of Homeland Security, and the U.S. Senate it was assumed that political control and even national sover-

Committee on Commerce, Science, and Transportation.

eignty could be asserted over the sea. Particularly in ancient 12 Maritime Reporter & Engineering News • June 2026

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