On Oct. 31, 1803, the frigate USS Philadelphia hit a reef and ran aground chasing Barbary pirates near Tripoli, Libya. All 307 members of its crew were captured and held hostage by the Barbary states. Rather than pay tribute to the pirates, U.S. President Thomas Jefferson sent U.S. frigates to intervene and free the hostages. The first of two wars against the Barbary pirates, the scourge of shipping for decades, hastened the building of the U.S. Navy and began a long tradition of enforcing freedom of navigation—keeping the seas open to all commercial traffic—that has been a vital interest and core principle of U.S. foreign policy. Until now.
Two hundred and twenty-three years later, Iran’s attempted monetization of the Strait of Hormuz, implicitly endorsed by the United States in the initial memorandum of understanding (MOU) and shortly followed by U.S. President Donald Trump’s rival plan to charge a 20 percent fee on all shipping through the strait (though he withdrew the proposal the next day), may be the death of that principle. Neither the United States nor Iran have ratified the U.N. Convention on the Law of the Sea, whose Article 38 codifies commercial ships’ freedom of transit passage, while Article 44 compels states bordering straits not to hamper or suspend that passage.
On Oct. 31, 1803, the frigate USS Philadelphia hit a reef and ran aground chasing Barbary pirates near Tripoli, Libya. All 307 members of its crew were captured and held hostage by the Barbary states. Rather than pay tribute to the pirates, U.S. President Thomas Jefferson sent U.S. frigates to intervene and free the hostages. The first of two wars against the Barbary pirates, the scourge of shipping for decades, hastened the building of the U.S. Navy and began a long tradition of enforcing freedom of navigation—keeping the seas open to all commercial traffic—that has been a vital interest and core principle of U.S. foreign policy. Until now.
Two hundred and twenty-three years later, Iran’s attempted monetization of the Strait of Hormuz, implicitly endorsed by the United States in the initial memorandum of understanding (MOU) and shortly followed by U.S. President Donald Trump’s rival plan to charge a 20 percent fee on all shipping through the strait (though he withdrew the proposal the next day), may be the death of that principle. Neither the United States nor Iran have ratified the U.N. Convention on the Law of the Sea, whose Article 38 codifies commercial ships’ freedom of transit passage, while Article 44 compels states bordering straits not to hamper or suspend that passage.
The ambiguity of the MOU suggests why Iran believes that it will control the strait, which Tehran views as its ultimate source of leverage. The document’s imprecise language says that Iran will make “its best efforts for the safe passage of commercial vessels with no charge for 60 days only.” After that, “Iran will conduct dialogue with the Sultanate of Oman to define the future administration and maritime services in the Strait of Hormuz in discussion with other Persian Gulf Littoral States in line with the applicable international law and the sovereign rights of coastal states of the Strait of Hormuz.”
As the world learned after the Treaty of Versailles, flawed peace agreements invite future conflict. More ominously, the fuzzy language of the MOU is a dire sign of an increasingly contested global commons (air, sea, space, Arctic) amid zero-sum strategic competition and a dissipating world order.
Before the U.S. war on Iran, the Strait of Hormuz enjoyed the usual free flow of commercial traffic through international waterways. During the negotiations for the cease-fire, Trump initially demanded that the strait be opened. But in the MOU, Trump was willing to grant Iran the right “to define the future administration and maritime services” in the strait.
There are still traces of the old order, but Trump himself is frustrating them. U.S. Secretary of State Marco Rubio has cited “international law,” saying that no country can charge tolls in an international waterway. The U.S. naval blockade of Hormuz was done in the name of reopening commercial shipping. To assert the principle, the U.S. Navy often conducts freedom of navigation operations in contested waters.
But the recent National Defense Strategy implies, but never specifically invokes the principle, nor has Trump used the term. In fact, even before his latest threat to charge fees, Trump has mused about splitting tolls with Iran or the United States doing it solo, reflecting his qualms about the concept of a global commons at all. In his first term, Trump rejected the idea of space as a global common in an executive order.
It’s unclear whether the language in the MOU stemmed from this ambiguous fidelity toward the maritime principle; Trump’s desperation to end a costly, unpopular war of choice; or just amateurish, inexperienced diplomacy. In any case, Iran’s attacks on tankers on several occasions following the implementation of the MOU, asserting its claims to control the strait, sparked Trump to reimpose oil sanctions and the escalation of the conflict with eight nights of U.S. bombing and Iranian counterattacks on Gulf neighbors’ infrastructure, threatening to widen the war as the MOU appears to be collapsing. This is a product of deep distrust on both sides and seems unavoidable so long as Iran insists on controlling the strait rather than spending its leverage for a larger deal offered by Trump.
White House advisor Stephen Miller has said that the world “is governed by power.” That power, however, seems largely to lie with Iran when it comes to the opening or closure of the strait. Iran’s vengeful calculus seems to be that it can endure more pain than Trump and that his threats of all-out war are a bluff.
Is there a way out? Oman, which has played a mediating role and whose territorial waters include the southern part of the strait, has been trying to create one. It has proposed charging voluntary fees, loosely modeled on an arrangement among littoral states (Singapore, Indonesia, and Malaysia) in the Strait of Malacca, through which much of the world’s shipping passes, where a private Japanese foundation collects voluntary fees from commercial ships.
But it is an imprecise analogy, both for the very different circumstances (a much narrower and more heavily trafficked route), as well as in implementation, as fees in Malacca are voluntary and paid for specific services (such as navigational help and aid to ships in trouble). Iran has rejected the idea so far, demanding that fees be obligatory and under Tehran’s control. Even the Oman option would still be less than the status quo ante and still breach the principle of unfettered transit through global waterways.
Yet creative diplomatic fictions can sometimes provide durable solutions. For example, in the 1972 Shanghai Communiqué, which unblocked the key obstacle to normalization of U.S.-China relations, Washington fudged its difference with Beijing over its claims on Taiwan with weasel-words: “The United States acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China. The United States Government does not challenge that position.” Fifty-four years later, Taiwan remains a major source of tension in U.S.-China ties, but so far, a manageable one.
Even if a muddled route out can be found, the Hormuz conundrum, itself a reflection of the zero-sum Hobbesian competition of a fraying, unsettled order, is deeply troubling for global commons writ large. Anything less than a return to the status quo ante sets a dangerous precedent with regard to choke points. Already, Indonesia’s finance minister has suggested charging tolls in the Strait of Malacca, through which 22 percent of world maritime shipping passes, though Jakarta has walked the idea back. Will the Houthis decide to charge tolls for the Bab el-Mandeb in the Red Sea, or Turkey in the Bosporus? Or will China assert its “sovereignty” claims in the South China Sea and the first island chain?
It is not just the fate of the maritime commons that zero-sum strategic competition puts at risk. Space and the Arctic are already fiercely contested, as underscored by the U.S.-China race to the moon and, in the case of the Arctic, U.S.-China-Russia competition, including Trump’s obsession with annexing Greenland.
Outer space is becoming the new wild west, as there is a dearth of international law or rules even though activities in low-Earth orbit are booming. Private commercial space companies race for more satellite constellations in an already crowded, seek mineral mining on asteroids, and plan data centers and manufacturing industries in space and on the moon. Meanwhile, the United States and China compete to claim real estate for permanent bases on the north and south poles of the moon. Robot wars over turf may be coming.
The 1967 Outer Space Treaty, with more than 110 parties (including the United States and China) says that “exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries.” Space, it says, “shall be the province of all mankind.”
But technology and geopolitics have overtaken one of the few binding space laws. The treaty is ambiguous on the commercial use of space other than saying that governments are responsible and activities should be lawful. However, the United States, Japan, United Arab Emirates, and Luxembourg have passed laws authorizing commercial space business. The rules deficit sets the stage for conflict.
As the Arctic warms, opening up new shipping routes and access to energy and mineral resources, strategic competition is also intensifying. China has declared itself a “Near-Arctic State.” While major territorial claims among the five Arctic littoral states (the United States, Russia, Canada, Norway, and Denmark via Greenland) are delineated, as the region melts, the need to clarify sovereign borders and overlapping claims portends skirmishes as the competition intensifies.
The Hormuz dilemma is just one symptom of slowly dying global commons as rising populist nationalism and zero-sum national securitization of everything undo what remains of the post-World War II order. The vaccine nationalism witnessed during the COVID-19 pandemic and declining commitments to climate mitigation, highlighted by the U.S. withdrawal from the World Health Organization and Paris climate accords, are measures of the waning of public goods and global stewardship.
The price of a zero-sum world will be the impact of the next pandemic and a rapidly warming world with a dearth of the international cooperation needed to address global problems. In a similar vein, it is no coincidence that there are more than 60 ongoing global interstate and intrastate conflicts, the most since World War II.
The Hormuz crisis may be a harbinger of civilizational rupture, endemic to the terrible interregnum between a dissipating order and what comes next.
