The Free Sea: How Safe Passage Became a Right

How safe passage became a right, and what it costs the rest of us when it is un-made

Every object within reach of you as you read this spent part of its life on a ship.

The screen, the cup, the chair, the fabric, the coffee, the phone, almost none of it was made where you are, and almost all of it crossed an ocean to reach you, in a steel box, on a vessel flying a flag that probably matches neither the country it left nor the country it arrived in. Roughly eighty per cent of everything traded on earth, by volume, moves by sea. The price of nearly everything you own contains, buried inside it, the cost of moving it across water.

That cost has been kept low for a long time by something most people never think about and could not name: a principle, built up over centuries, that the sea is free. That a ship may pass. That no one standing on a shore may demand a toll from a vessel merely for going by.

In July 2026, the President of the United States announced a twenty per cent toll on every commercial ship passing through the Strait of Hormuz, called himself the Guardian of the Strait, and then cancelled the plan roughly a day later after phone calls from Gulf monarchs. The episode was reported as a curiosity, a piece of bluster that came and went. It was something more than that. For about twenty-five hours, one of the oldest and least-noticed achievements of human civilisation was openly for sale, and the only thing that stopped the sale was that the buyers complained about the price.

This is the story of that achievement, where the free sea came from, how it was won, and what it means that it can now be switched off and on from a phone.

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Before the principle

For most of human history, the sea was not free. It was a hunting ground.

The default condition of the open water, for millennia, was predation. If you were stronger than the ship you met, the ship was yours. The cargo was yours, the vessel was yours, and frequently the crew was yours to sell. This was not a breakdown of order; it was the order. The Mediterranean, the North Sea, the Indian Ocean, the Caribbean, each was worked by raiders who took what floated because nothing prevented them.

What made this more than simple robbery was that states did it too, and legalised their own version of it. A government that wanted to damage an enemy's trade, but could not afford to build enough warships to do it, issued a piece of paper called a letter of marque. The paper authorised a private citizen, a merchant, an adventurer, a man with a ship and an appetite, to attack and seize the enemy's vessels, and to keep a share of the proceeds. The holder of the paper was called a privateer. He was a pirate with a licence, and the licence was the difference between hanging and knighthood.

For four hundred years, privateering was ordinary statecraft. Francis Drake was a privateer; Elizabeth I took a cut and made him a knight. The distinction between a navy and a criminal enterprise was a document, and the document could be issued by any government at war. The consequence, for anyone trying to move goods across water, was permanent risk. Every voyage was a gamble. The cost of that gamble was priced into everything, everywhere, always, insurance, armed escorts, losses written off, routes abandoned. The unfree sea was a tax on all trade, paid by everyone who ever bought anything that had floated.

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The principle, won

The thing we now take for granted, that a merchant ship may cross an ocean unmolested, was not discovered. It was negotiated, and it was negotiated surprisingly late.

The turning point has a date: 16 April 1856. At the end of the Crimean War, the great powers of Europe, Britain, France, Russia, Austria, Prussia, Sardinia, and Turkey, gathered in Paris to make peace, and while they were there, they signed a short additional document that changed the sea. The Declaration of Paris Respecting Maritime Law ran to four sentences. The first sentence was the one that mattered: "Privateering is, and remains, abolished."

Four hundred years of licensed predation, ended in a subordinate clause.

It is worth being honest about why the powers did this, because it was not idealism. Britain, which dominated the negotiation, had the largest navy in the world and no longer needed privateers; more to the point, it had the most seaborne trade to lose to other nations' privateers. Abolishing the practice cost Britain little and protected Britain enormously. The free sea, like most great principles, was adopted by the powerful at the moment the principle happened to serve them. That does not make it less valuable. It makes it normal. Almost every rule that protects the weak was first adopted by the strong for their own reasons and only later discovered, by everyone else, to be worth defending on its own terms.

The United States, tellingly, refused to sign. In 1856 it was a minor naval power that still valued the privateer as the weapon of the underdog, the cheap way for a weaker nation to hurt a stronger one at sea. America would not accede to the abolition of privateering until 1908, half a century later, by which point it had built a fleet that placed it in the front rank of naval powers and had quietly concluded, as Britain had, that a nation with a great navy has no use for pirates and every use for a rule against them.

Note that sequence, because it will matter at the end. The nation that refused to give up licensed predation at sea gave it up only once it became strong enough to profit from the rule instead. And a century after that, the same nation would be the one proposing to charge for passage again.

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The principle, extended

Once won, the free sea was widened, twice, in the century that followed, each time by turning a practice into written law.

The 1958 Convention on the Territorial Sea and the Contiguous Zone codified what had until then been mere custom: that a ship enjoys a right of innocent passage through another state's coastal waters, and, critically, that no charge may be levied on a ship for merely passing through. Passage was not a privilege granted by the coastal state. It was a right held by the ship.

Then, in 1982, came the great codification: the United Nations Convention on the Law of the Sea, ratified by most of the world and often called the constitution of the oceans. UNCLOS did many things, but two of them concern us. It established the regime of transit passage through international straits, the narrow chokepoints, like Hormuz, Gibraltar, and Malacca, where a single coastal state could otherwise strangle global trade, and it made that right of passage one that cannot be suspended and cannot be taxed. A coastal state bordering an international strait may regulate safety and traffic. It may not close the strait, and it may not charge for the strait. The ship passes as of right, continuously and expeditiously, and owes nothing for the passing.

This is the architecture, built across a hundred and twenty-six years, that keeps the price of everything you own from containing a toll at every chokepoint on earth. It is one of the most successful and least celebrated projects in the history of international order. It has no monument. Nobody marches for it. Most people who benefit from it every single time they buy anything have never heard of any of the documents that secure it.

Which is precisely why it is vulnerable.

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The principle, for sale

Return now to the Strait of Hormuz in July 2026, and read the episode against the history.

A twenty per cent toll on every commercial vessel, imposed by a power controlling one side of an international strait, is not a novel policy or a clever revenue measure. It is the direct reversal of 1982, and 1958, and, in spirit, of 1856. It is the reintroduction of the idea that passage is a privilege to be paid for rather than a right to be exercised. The specific legal analysis was not seriously in doubt: maritime lawyers noted immediately that a transit toll through an international strait is unlawful under the transit-passage regime of UNCLOS, and unlawful even for states outside that treaty under the older customary rule reflected in the 1958 Convention, which already forbade charging for mere passage. The administration's own Secretary of State had said as much a month earlier, plainly: no country may charge tolls or fees on an international waterway; that is existing international law.

The toll was not stopped by that law. No court sat. No tribunal ruled. The principle that took a hundred and twenty-six years to build was not defended by any of the instruments built to defend it. It was withdrawn, according to the President himself, because kings and emirs telephoned to object, which is to say, it was withdrawn for exactly the same reason it was proposed: a calculation of power and price among a handful of men, conducted over the heads of the billions of people who would have paid for it.

Because make no mistake about who pays. A toll at Hormuz is not paid by Hormuz. Roughly a fifth of the world's oil passes through that strait. A twenty per cent levy on every tanker does not stay with the tanker; it is added to the price of the oil, which is added to the price of the fuel, which is added to the price of every good that is grown, made, moved, heated, or shipped using that fuel, which is to say, all of them. A toll at a chokepoint is a tax on the whole of downstream humanity, collected at a single point, by whoever holds the shore. That is what the free sea abolished. That is what was reintroduced for twenty-five hours and may be reintroduced again, because nothing structural now prevents it, only the fluctuating displeasure of the powerful.

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Why this is the pattern, not the exception

The free sea is worth understanding in detail because it is the clearest possible example of a category of thing that modern life depends on and modern politics is quietly dismantling: the invisible common good.

An invisible common good is a principle so old, so successful, and so silently woven into daily life that almost no one knows it exists, which means almost no one will defend it when it is taken. Freedom of navigation is one. There are others, the assumption that a currency will be worth roughly tomorrow what it is worth today, that a contract will be enforced, that a border may be crossed by a traveller, that a fact can be established. Each was built slowly, at great cost, usually after a catastrophe that made its absence unbearable. Each is now maintained by institutions few people can name. And each can be switched off far faster than it was switched on, because the people who benefit from it have forgotten it is there.

The toll at Hormuz lasted a day. The principle it violated took from 1856 to 1982 to construct. That asymmetry, a century of building against an afternoon of unbuilding, is the whole vulnerability of the modern order, stated in miniature. The free sea did not defend itself. It never can. It is a habit of restraint among the powerful, written down, and a habit can be broken by anyone powerful enough who decides the writing no longer binds them.

Every object within reach of you crossed a free sea to get there. The freedom was not natural and it was not free to win. It was paid for, over centuries, and it is being quietly offered for sale again, and the bill, when it comes, will not be sent to the men on the phone.

It will be added to the price of everything, and sent to you.

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Frequently asked questions

Can a country legally charge ships a toll to pass through an international strait? No. Under the transit-passage regime established by the 1982 United Nations Convention on the Law of the Sea (UNCLOS), ships enjoy a right of continuous and expeditious passage through international straits that cannot be suspended and cannot be taxed. The prohibition on charging for mere passage also predates UNCLOS: the 1958 Convention on the Territorial Sea and the Contiguous Zone, reflecting older customary law, already forbade levying charges on ships solely for passage. Even states that have not ratified UNCLOS are generally considered bound by these principles as customary international law.

What was the Declaration of Paris of 1856? A short agreement signed on 16 April 1856 by the major European powers at the end of the Crimean War. Its four provisions reshaped maritime law, but the most important was the first: the abolition of privateering, the practice by which governments licensed private ships to attack and seize enemy commerce. It ended roughly four centuries of state-sanctioned predation at sea and helped establish the modern idea of the ocean as a global common.

What is privateering? Privateering was legalised commerce raiding. A government at war would issue a private ship-owner a document called a letter of marque, authorising that private vessel to attack and capture enemy merchant ships and keep a share of the proceeds. A privateer was, in effect, a pirate operating with government permission. Famous privateers included Sir Francis Drake, who raided Spanish shipping with the backing of Elizabeth I. The practice was abolished by the Declaration of Paris in 1856.

Why did the United States refuse to sign the 1856 Declaration? In 1856 the United States was a minor naval power and regarded privateering as a valuable weapon for a weaker nation to use against a stronger one at sea. It declined to give up that weapon. The United States did not accede to the abolition of privateering until 1908, by which point it had built a first-rank navy and, like Britain before it, had concluded that a great naval power benefits more from a rule against privateering than from the practice itself.

Who actually pays when a toll is placed on a strait like Hormuz? Downstream consumers, everywhere. Roughly a fifth of the world's oil passes through the Strait of Hormuz. A toll on tankers is passed into the price of oil, then into fuel, then into the cost of nearly every good that is produced, transported, or heated using that fuel. A charge collected at a single maritime chokepoint functions as a tax on global trade as a whole, ultimately paid by ordinary consumers rather than by the state that imposes it.

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