MARCH 7 — Can Iran close the Strait of Hormuz?, wrote Redza Zakaria.
According to the learned writer, while Iran has the right to defend itself and may invoke domestic legal grounds and national security to justify restrictions on navigation, such actions, if carried out, would likely be viewed as violations of UNCLOS and customary international laws.
I thought the question should be preceded by this question: Can the US and Israel strike Iran?
US President Donald Trump, in his February 24 State of the Union address and his February 28 video comments announcing the attacks against Iran, identified a number of purported justifications for attacking Iran.
One key justification is the “imminent threats” that Iran poses to the US and its allies.
Trump alluded to and emphasised Iran’s nuclear programme, which he said involves the “pursuit of nuclear weapons.” The president also pointed to Iran’s significant missile programme, including the development of long-range missiles which he asserted “can now threaten our very good friends and allies in Europe, our troops stationed overseas, and could soon reach the American homeland.”
The latter is contrary to a 2025 assessment by the US Defence Intelligence Agency which indicated that Iran “does not currently possess ballistic missiles capable of hitting the United States”.
The agency estimated that it might be able to create an arsenal of up to 60 intercontinental ballistic missiles by 2035, that too “should Tehran decide to pursue the capability.”
Almost 30 years ago in the case of Gabčikovo-Nagymaros Project (Hungary v Slovakia), (1997), the International Court of Justice (ICJ) was presented with an occasion to consider the expression “grave and imminent peril”.
The ICJ said:
“‘Imminence’ is synonymous with ‘immediacy’ or ‘proximity’ and goes far beyond the concept of ‘possibility’. As the International Law Commission emphasised in its commentary: The ‘extremely grave and imminent’ peril must ‘have been a threat to the interest at the actual time’. (Yearbook of the International Law Commission, 1980, Vol. I I , Part 2, p. 49, para. 33).
“That does not exclude, in the view of the Court, that a ‘peril’ appearing in the long term might be held to be ‘imminent’ as soon as it is established, at the relevant point in time, that the realisation of that peril, however far off it might be, is not thereby any less certain and inevitable.”
Substitute the word ‘peril’ with ‘threat’, the expression ‘imminent threat’ must refer to threats that are immediate or otherwise temporally proximate.
Such threats should include situations where “a causal chain can lead from the status quo (no attack) to an undesired future (attack), even where the causal chain is not yet in motion”. (See Dapo Akande and Thomas Liefländer, ‘Clarifying Necessity, Imminence, and Proportionality in the Law of Self-Defense’ (2013) 107(3) The American Journal of International Law 563).
Accordingly, imminent threat can be said to exist in situations where a perceived aggressor is in its final preparations for an attack, and the state facing the threat thwarts the attack before it commences by launching one of its own.
In other words, the latter’s action is based on its belief that the aggressor’s attack is about to be mounted, with immediacy. (See David A Sadoff, ‘A Question of Determinacy: The Status of Anticipatory Self-Defence’ (2009) 40 Georgetown Journal of International Law 523)
An imminent threat of attack has been referred to by international lawyers as “anticipatory self-defence”. But even if there is a right of anticipatory self-defence, the predicate condition is strict; it requires an imminent threat of an armed attack by the adversary.
Allen S. Weiner, senior lecturer in law and director of the Stanford Programme in International and Comparative Law and the Stanford Centre on International Conflict and Negotiation, on Tuesday (March 3) said:
“The notion that Iran presents a general security threat to US interests does not constitute a threat of imminent attack. Nor does the possibility that Iran might at some point in the future acquire either nuclear weapons or intercontinental missiles capable of reaching the US homeland amount to a threat of an imminent attack.”
Many legal experts have said the strikes on Iran are unjustified under the United Nations Charter, which states that member states must refrain from using force or the threat of force against other states, unless authorised by the UN Security Council or used in self-defence in response to armed attack, neither of which applies.
So, can the US and Israel strike Iran? No.
Can Iran close the Strait of Hormuz? No. (There have been reports that Iran denies closing the Strait.)
That’s two big, fat “noes”.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
