Bab al-Mandeb and the fragility of maritime order: When international law confronts the absence of the state

The Bab al-Mandeb Strait is no ordinary maritime corridor. It is one of the narrow gateways through which the modern global economy breathes. Linking the Red Sea to the Gulf of Aden and the Indian Ocean, and serving as the southern entrance to the Suez Canal route, the strait has long stood at the intersection of commerce, naval strategy, and international law.

Yet the events of 2025-2026 have transformed Bab al-Mandeb from a strategic passage into a legal stress test for the international system itself. Attacks against vessels in the Red Sea, threats aimed at disrupting navigation, and the increasingly central role of non-state armed actors have revived a fundamental question: can the law of the sea still guarantee the freedom of navigation in an era where the principal challenge no longer comes exclusively from states, but from the fragmentation of authority itself?

Bab al-Mandeb and the legal architecture of global navigation

Few maritime passages possess the strategic significance of Bab al-Mandeb. Any prolonged disruption of navigation through the strait would force global shipping to circumvent the Cape of Good Hope, generating additional weeks of transit, massive increases in transportation costs, and severe repercussions for energy markets and international supply chains. Its geopolitical value, however, is matched by its legal importance.

Under contemporary international law, Bab al-Mandeb qualifies as an international strait used for international navigation because it connects areas of high seas and exclusive economic zones and is extensively utilized by international maritime traffic (UNCLOS, article 37). Consequently, the strait falls under the regime established by Part III of the United Nations Convention on the Law of the Sea 1982 (“UNCLOS”), particularly Articles 37 to 44.

The applicable regime is that of transit passage (Articles 37-44 UNCLOS). Unlike innocent passage, transit passage constitutes a particularly robust navigational freedom. It guarantees to all ships and aircraft, including commercial vessels, warships, and military aircraft, the right of continuous and expeditious transit through international straits (Article 38-1). Most importantly, this right is non-suspendable. Coastal states may regulate aspects relating to safety and navigation, but they may not lawfully obstruct or suspend the passage itself (Article 44).

This principle reflects more than a technical maritime rule. It expresses a broader philosophy underlying the law of the sea: strategic chokepoints essential to global commerce cannot be subjected to unilateral paralysis.

The continuing applicability of transit passage during armed conflict further reinforces this idea. International legal doctrine generally recognizes that the law of the sea and the law of armed conflict coexist rather than mutually exclude one another (Natalino Ronzitti, The Law of Naval Warfare: A Collection of Agreements and Documents, Martinus Nijhoff Publishers). Even in wartime, international straits remain governed by the requirement that maritime transit continue, subject only to narrowly interpreted security measures permitted under the law of naval warfare (Louise Doswald-Beck, San Remo Manual on International Law Applicable to Armed Conflicts at Sea, Cambridge University Press).

Thus, while belligerents may under certain conditions inspect vessels, establish maritime exclusion measures, or target legitimate military objectives, international law does not authorize the comprehensive closure of an international strait nor indiscriminate attacks against civilian navigation (San Remo Manual, paras. 15–34 and 67–71).

Bab al-Mandeb and the rise of hybrid maritime conflict

The true legal dilemma of Bab al-Mandeb does not arise solely from threats to navigation. It arises from the identity of the actors issuing those threats. The comparison with the Strait of Hormuz is particularly revealing. In Hormuz, tensions generally remain structured around classical interstate rivalry, especially involving Iran and Western naval powers. The legal framework, although strained, still operates within the traditional architecture of state responsibility and sovereign accountability.

Bab al-Mandeb presents a far more unstable configuration. There, the strategic environment is fragmented among weak state structures, regional interventions, and armed non-state actors operating from Yemen. The Houthis, for example, have emerged not merely as a local insurgent movement, but as a maritime actor capable of affecting global trade routes and international energy security.

Classical international law was not designed for such hybrid realities. The traditional law of the sea assumes identifiable state actors exercising authority over maritime space. Yet many contemporary threats to navigation in Bab al-Mandeb emanate from armed groups possessing military capabilities without full international legal personality. This creates an uncomfortable legal vacuum: who bears responsibility for violations of freedom of navigation when disruption originates from non-state entities?

One increasingly persuasive characterization is that the Red Sea crisis represents a form of hybrid maritime conflict, a convergence of naval warfare, maritime terrorism, proxy confrontation, and geopolitical coercion.

If a state materially supports, directs, or substantially assists attacks against international navigation, the principles governing state responsibility may attribute internationally wrongful conduct to that state (International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, 2001, Articles 8 and 16). At the same time, armed groups themselves remain bound by certain obligations arising under international humanitarian law, particularly where the conflict reaches the threshold of a non-international armed conflict (Common Article 3 of the Geneva Conventions and Additional Protocol II, 1977).

The legal consequences are significant. Deliberate attacks against civilian shipping may violate both the law of armed conflict and broader international prohibitions relating to maritime terrorism. In some circumstances, certain acts may also resemble forms of piracy-related violence, although the classical definition of piracy under UNCLOS remains narrower and often difficult to apply to politically motivated attacks (Article 101 UNCLOS). The result is a maritime environment where legal norms formally continue to exist, yet enforcement mechanisms appear increasingly fragmented.

Conclusion

Can Bab al-Mandeb legally be closed?

Under international law, the answer remains clear: no.

As an international strait governed by the regime of transit passage, Bab al-Mandeb benefits from a navigational regime that is non-suspendable and deeply rooted in both treaty law and customary international law. Even during armed conflict, belligerents must respect the rights of neutral states and preserve the continuity of international navigation.

Yet the current crisis reveals a deeper and more troubling evolution. The principal danger facing the international maritime order today is not merely the violation of legal norms. It is the progressive erosion of centralized authority capable of enforcing them.

This is the fundamental distinction between Bab al-Mandeb and Hormuz. In Hormuz, the international community confronts the strategic power of the state. In Bab al-Mandeb, it increasingly confronts the consequences of the absence of the state. And therein lies the true fragility of the contemporary law of the sea.

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