The Strait and the Law Above It

CNBC reports that U.S. Central Command has announced strikes near the Strait of Hormuz following Iranian attacks on vessels and American military personnel, with Iran stating it has retaliated in kind. I will not pretend to know the precise disposition of forces or the engineering of the weapons employed — those are details of a century I never inhabited. But the shape of the question is one I recognize entirely: a great commercial waterway, two sovereign powers in direct military contact, and the rules — written and unwritten — that either restrain or release what follows.

The Strait of Hormuz is, by any measure, what we once called a strait essential to international navigation. The principle that such passages must remain open to the commerce of all nations is not a modern invention; it was already regarded as settled custom when I negotiated with Britain over neutral shipping rights in the 1790s. The difficulty then, as now, was that the party with the stronger fleet tends to define the rule to its own advantage, while the aggrieved party reaches for whatever instrument of pressure lies nearest to hand. Neither posture is law. Law is what both parties agree to be bound by before the quarrel begins.

The immediate military question — whether the strikes were proportionate, whether the legal basis was self-defense under the relevant international conventions, whether the War Powers framework was observed — belongs first to Congress and to the courts, if cases are properly brought before them. A republic that allows its executive to make war at will, without legislative sanction, has not preserved republican government; it has merely given it a different name. I urge attention to that procedural question with as much seriousness as to the strategic one. The precedent set in a crisis outlasts the crisis itself.

I note, as inference rather than established fact, that the Strait's importance as a passage for energy commerce means that any prolonged military action there imposes costs not only on Iran and the United States but on every nation whose vessels transit those waters — which is to say, nearly every trading nation on earth. That is precisely the circumstance in which international law was designed to operate: where the interests of third parties create pressure toward resolution that neither belligerent can generate alone. The multilateral conventions governing freedom of navigation exist for this moment. They should be invoked, not merely cited in passing.

What should be done? First, the legal basis for each strike should be stated plainly and submitted to Congress without delay — not as a courtesy, but as a constitutional obligation. Second, the parties with stakes in free navigation — and they are many — should be convened, formally or informally, as a check on escalation driven by bilateral pride. Third, every diplomatic channel should remain open, because a diplomat's task is to leave a quarrel less inflamed than they found it. Precision in language, now, may spare the need for precision in weaponry later. That was true in 1794. I have no reason to believe it has ceased to be true.