Iran Drones and Mines Attack 15 Ships in Strait of Hormuz

The institution designed to prevent this was the regime of transit passage, the rule written into the law of the sea that a strait joining two bodies of open water may not be closed to ships merely passing through. It failed because it is a law with a legislator and no magistrate. It declares, and then it waits for someone else to act. The question is not whether Iran was right to strike at least fifteen container ships in the Strait of Hormuz over ten days with drones, mines and, almost quaintly, a rocket-propelled grenade. The question is whether any institution exists that could have stopped it if it was wrong. At present the answer is that one does, and nobody elected it.

Consider first how power is arranged on the Iranian side, because the structure explains the weapons. Iran keeps two navies. The regular navy answers, at least formally, to a chain that touches the elected government. The Revolutionary Guard’s naval force answers to the Supreme Leader and has long held the Gulf as its particular province. This looks like a division of powers, but it is a duplication of instruments without a division of authority. Two swords hang from one belt. A president in Tehran may express regret to a foreign minister in the morning, while men in fast boats he does not command lay mines in the afternoon, and both may be perfectly sincere. A foreign government that threatens the president is addressing the wrong office, and a structure in which the visible authority is not the operative one is an excellent machine for producing deniable force. The drones and the mines are cheap, but the ambiguity about who ordered them is cheaper still, and it is the ambiguity that does the real work.

The strongest objection to all this is that structure is a luxury and force is what matters. Navies closed the last such episode, and navies will close this one. There is truth in it. In 1987 the Americans reflagged Kuwaiti tankers under their own colours and escorted them through these same waters; when a frigate struck a mine the following spring, the reply came within days and was severe enough that the attacks soon subsided. But observe what made that reply possible. A single executive acted under a domestic mandate, with a flag on the hull that converted an attack on commerce into an attack on a state. The escort worked because it borrowed sovereignty. Container ships today sail under flags of convenience, Liberian or Panamanian or Marshallese, whose governments possess registries rather than fleets. Nobody can wrong a ship’s flag of convenience so badly that its own state will fight.

And so a different tribunal has quietly assumed the judicial function. In a London office, an underwriter reads the overnight reports and revises the war-risk premium for a Hormuz transit. On a bridge somewhere off Fujairah, a master receives the new figure by email, looks at it for a long moment, and telephones the owners. Whether the ship proceeds is decided in that exchange. This is the check that is actually functioning, and I confess a certain admiration for it, since it is swift, informed and immune to flattery. It is also answerable to no parliament, gives no reasons in public, and judges solely in the currency of risk. The Venetians understood this arrangement centuries ago when they priced the Barbary corsairs into their cargoes and paid tribute rather than war; the Republic found it cheaper to buy safety than to secure it, until the day the price became the policy.

Here is the point I think the cruder analyses miss. Iran is not attacking ships. It is attacking the underwriter. Fifteen hulls in ten days is a sample size, a demonstration addressed to the only judge whose verdict closes the strait without a single declaration of blockade. A mine that sinks nothing but doubles a premium has accomplished a closure that no law of the sea forbids, because the law of the sea forbids states from impeding passage and says nothing about merchants declining to attempt it. The Guard has found the seam between the legislator who declares the passage open and the magistrate who decides it is too expensive to use.

The diagnosis follows. The balance is unsound not because force is absent but because the three functions have come apart: the treaty legislates, foreign navies enforce at their own discretion, and the market judges, and none of the three is obliged to consult the others. Liberty of the seas has always rested on some power willing to make an attack on a ship an attack on itself. That power has been replaced by a pricing desk.

Somewhere in London tonight, a pen hovers over a column of figures, and the strait is exactly as open as the number it writes.