«انسداد چاره‌سازِ» تنگه‌ی هرمز؛ دیالیکتیک حقانیت و مشروعیت

This research develops an innovative framework for legal assessment of the closure or restriction of the Strait of Hormuz during the situation that threatens a coastal state’s survival. The central analysis is structured around four dualistic questions which ask how “internationally legal”, how “internationally legitimate”, how “legally legitimate” and how “legitimately legal” such a closure would be. The hypothesis of this article is that in the exceptional circumstance of self-defense where state survival is at stake, legitimacy may, under strict conditions, justify a departure from strict positivist legality, giving rise to a new conceptual framework rather than a rule-based exception. Methodologically, the article employs a dialectical approach that moves from the positivist prohibition as the thesis through a legitimacy based critique as the antithesis to a synthetic resolution. This dialectical movement is complemented by reasoning by analogy in particular from the ICJ’s Nuclear Weapons and Kosovo advisory opinions. The central finding is that a strict positivist reading of the UN Convention on the Law of the Sea (UNCLOS) and customary international law provides no explicit authorization for closure and leaves the victim state helpless. The article’s main hypothesis is that in appearing an existential threat, legitimacy may override mere legality, giving rise to a new legal institution. To operationalize this hypothesis, the article proposes the doctrine of remedial closure as an emergency mechanism grounded in the inherent right of self defense and strictly conditioned on legal tests. The theoretical results demonstrate that legality and legitimacy are not binary opposites but dialectical partners within a living legal order. The article concludes that even though the closure of the Strait of Hormuz has very little support for legal acceptance under a purely positivist reading, legitimately it can be considered authorized under a reasoned and dialectical interpretation of international law.