No free transit claim
Legal commentators reminded readers that states have obligations not to assist aggression, but that territorial waters don’t carry absolute transit rights — that distinction is showing up in current trade and maritime arguments. Katayoun Hosseinnejad emphasized the duty to refrain from aiding aggression while noting territorial waters rules stop short of guaranteeing unfettered passage. (x.com)
The legal argument here is narrower than many social posts suggest: states may have duties not to help an unlawful war, but foreign ships do not get an unlimited right to cross every state’s territorial sea. (icj-cij.org) (un.org) The International Court of Justice said on July 19, 2024 that all states must not “render aid or assistance” in maintaining Israel’s unlawful presence in the Occupied Palestinian Territory. That duty comes from the law of state responsibility, which the United Nations compilation sets out in Article 16 as “aid or assistance in the commission of an internationally wrongful act.” (icj-cij.org 1) (icj-cij.org 2) A separate body of law governs ships at sea. Under Article 17 of the United Nations Convention on the Law of the Sea, ships of all states enjoy a right of “innocent passage” through another state’s territorial sea, but Article 19 says that passage is innocent only if it is not prejudicial to the coastal state’s peace, good order, or security. (un.org) (iilj.org) That is why lawyers keep separating “territorial sea” from “international strait.” In straits used for international navigation, Article 38 says ships and aircraft enjoy transit passage that “shall not be impeded,” a stronger rule than the ordinary innocent-passage regime in territorial waters. (un.org 1) (un.org 2) The distinction has shown up in recent debates over arms shipments and maritime chokepoints. A May 1, 2025 Opinio Juris essay responding to an ASCOMARE opinion said Article 17 grants innocent passage, but argued the legal basis for interrupting a vessel in territorial seas is contested and should not be overstated. (opiniojuris.org) The same split appears in Hormuz arguments. A March 15, 2026 Just Security analysis said the Strait of Hormuz qualifies as an international strait under Article 37 of the Law of the Sea convention, so transit passage applies there even during hostilities. (justsecurity.org) (un.org) That does not erase coastal-state powers in territorial seas outside the straits context. Article 25 of the convention allows a coastal state to take steps in its territorial sea to prevent passage that is not innocent, and the convention also lets states adopt laws regulating innocent passage in specified areas. (un.org) Israel has rejected many international legal claims tied to the occupation and the 2024 advisory opinion, and the court’s opinion itself is advisory rather than a criminal judgment. But the legal baseline in these maritime disputes is still the same two-track framework: no aiding an internationally wrongful act, and no assumption that territorial waters come with a free-standing right of unfettered transit. (icj-cij.org) (news.un.org)
