The recent military actions initiated by Israel and the United States against Iran, along with their attempts to justify these acts on the grounds of "preemptive self-defense," have once again brought the fundamental principles of international law up for debate. As moves on the geopolitical chessboard intensify, states' efforts to cloak the use of military force in a veneer of legal legitimacy lay bare the chasm between the universal rules of law and the strategic interests of major powers.
The Claim of "Preemptive Self-Defense" and Jus Cogens Norms
Under international law, the use of force by states in resolving disputes or in any other manner is strictly prohibited; this prohibition constitutes a peremptory norm (jus cogens), from which no derogation is permitted. The use of force, expressly prohibited under Article 2(4) of the United Nations (UN) Charter, has only two legitimate exceptions: a mandate by the UN Security Council and the inherent right of self-defense.
The right of self-defense, codified in Article 51 of the UN Charter, while an inherent right, is strictly contingent upon two conditions: "necessity" and "proportionality". The condition of necessity dictates that the use of force must be imperative to repel an armed attack, whereas the condition of proportionality mandates that the force deployed must be commensurate with the nature and scale of the attack suffered.
The concept of "preemptive self-defense," upon which Israel and the U.S. attempt to base their actions against Iran, is essentially a reflection of the "Bush Doctrine" that emerged post-9/11. This doctrine prescribes taking the initiative as the "first striker" and waging preemptive war against rogue states when a perceived threat to national security exists. Even states that violate international law strive to conform their actions to a legal framework in search of a basis for legitimacy; indeed, the U.S. has historically endeavored to legitimize its invasions of Afghanistan and Iraq under the Bush Doctrine. However, the rationale of striking first against an unrealized, hypothetical, or future threat blatantly contradicts the strict tenets of "necessity" and "proportionality" required by international law. Such an approach is less a manifestation of universal legal rules and more a contemporary embodiment of what Karl Marx termed the "Law of the Fist" (faustrecht)—the law of the strongest—in the international arena.
The Geopolitical and Legal Dimensions of the Strait of Hormuz Crisis
Undoubtedly, one of the most perilous potential consequences of this military escalation involves the status of the Strait of Hormuz. A vast majority of the crude oil exported from the Middle East, the heart of global energy supply, traverses the Persian Gulf and the Strait of Hormuz. The de facto control of the Strait is maintained by the Iranian Navy.
In the event of a full-scale armed conflict, it is highly probable that Iran will find a pretext to blockade this strait, thereby severing approximately 90% of the world's seaborne crude oil transport. International maritime law seeks to ensure the uninterrupted flow of global maritime commerce by guaranteeing the right of transit passage and freedom of navigation. However, in times of war, the national security imperatives of littoral states can effectively suspend this legal regime. Considering that even minor turbulence in energy-producing regions triggers severe volatility in oil prices, the closure of Hormuz represents a scenario that would profoundly destabilize the global economy.
Energy Security in the Vise of Insurance and "War Risk"
Beyond being merely a legal issue, the environment of conflict in the region possesses a dynamic that directly paralyzes maritime trade and insurance markets. From the perspective of consumers, energy security denotes the uninterrupted provision of energy at reasonable prices; thus, excessive price spikes and volatility pose a grave threat to economies worldwide.
The heightened military mobilization causes "War Risk" premiums in the maritime sector to soar to astronomical levels. Capital markets and the insurance industry are becoming increasingly reluctant to finance projects and underwrite maritime trade in environments fraught with such high geopolitical risk. The hesitancy of insurance underwriters to provide coverage for commercial vessels entering the Persian Gulf and the Eastern Mediterranean, or their demand for exorbitant premiums, renders the international legal principle of freedom of navigation practically inoperative.
Conclusion
The "preemptive self-defense" doctrine espoused by the U.S. and Israel is inflicting severe erosion upon international law by stretching the UN Charter's prohibition on the use of force, which holds a jus cogens character. The regional chaos spawned by such actions holds global energy security hostage via the potential closure of critical maritime chokepoints like the Strait of Hormuz and skyrocketing insurance costs. The ultimate litmus test facing the international community is how to safeguard the rules-based system (ius gentium) against the "law of the strongest" (faustrecht).