Would it Be Illegal for Iran to Close the Strait of Hormuz?

In response to international economic and diplomatic pressure to halt its nuclear program, Iran is reportedly contemplating closing the Strait of Hormuz, a narrow and critically important waterway through which approximately a third of global sea-based oil shipments pass each year. The precise nature of this potential action is a little unclear from media reports. Some accounts state that the closure would pertain only to foreign warships that do not receive Iranian permission to transit. Others give the impression that Iran may bar all transit, including oil shipments. The difference is significant, but many seem to think that Iran would be acting illegally either way. My aim here is to briefly explore that view under international law.

The principal hurdle to either type of closure is the U.N. Convention on the Law of the Sea, a treaty that Iran has not ratified but that is widely accepted as codifying preexisting customary rules that bind parties and non-parties alike. One such rule is that in a strait all ships and aircraft shall enjoy an unimpeded right of “transit passage,” which is “the exercise . . . of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait” (art. 38). A corollary is that states bordering straits “shall not hamper transit passage,” and that “[t]here shall be no suspension of transit passage” (art. 44).

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Lois Kuenzli Collins

When I was a child, I used to look at the pictures of local attorneys in the Waukesha County Bar Association on the wall of my father’s and grandfather’s law office. One attorney stood out to me among all the others: a woman named Lois Kuenzli Collins. She was the only woman in the bar photos from my grandfather’s era. I wondered who she was and what motivated her to become a lawyer.

Collins practiced with her husband, Vincent Collins, in Waukesha in the mid-1900s. She was one of the first women to practice law in Wisconsin. Recently I had the chance to speak with Collins’ daughter, Patricia Andringa, about her mother’s work and life as an early woman lawyer in Wisconsin.

Collins graduated from Waukesha High School in three years in 1923. She attended Marquette University and graduated in four years in 1927 with both an undergraduate and law degree. She met her husband while at Marquette, and they graduated together.

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Friends of Scott Walker v. GAB Changes the Recall Rules Mid-Stream

Today, Judge J. Mac Davis ruled that the Government Accountability Board must take “affirmative steps to identify and strike duplicate, fictitious or unrecognizable signatures as it reviews the recall petitions expected to be filed against Gov. Scott Walker.”  The ruling comes in the case of Friends of Scott Walker v. GAB, filed in Waukesha County Circuit Court on December 15, 2011. The complaint in the case sought a declaratory judgment from the court that the procedures of the Government Accountability Board, whereby the GAB accepted (but did not necessarily count) duplicative signatures on recall petitions, violated the United States Constitution, the Wisconsin Constitution and Wisconsin law.  The complaint in the case is available here.

The GAB responded to the lawsuit by arguing that the Wisconsin statutes provide a clearly defined procedure that allows elected officials subject to recall to instigate challenges to any signatures that appear to be duplicative, fictitious or unrecognizable. After the GAB accepts the recall petitions, there is a period of 10 days in which the signatures may be challenged by the official. It is at the challenge stage that suspect signatures should be identified and removed, according to the GAB, and not earlier when the recall petitions are accepted by the agency. The GAB also contended that there was no provision in the Wisconsin Statutes that granted the agency the authority to do what the Friends of Scott Walker asked it to do.

Judge Davis disagreed with the GAB, and earlier today he ruled that the GAB is required to take affirmative action that will have the effect of reducing the burden that the Friends of Scott Walker would otherwise face. This is because the GAB must now identify and remove suspect signatures on its own initiative.

Why is the GAB obligated to do this, when there is no statutory language that explicitly places such an obligation on the agency?

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