The Influence of Law on Sea Power Doctrines: The New Maritime Strategy and the Future of the Global Legal Order
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The legal experts widely agreed that the first challenge that must be met is to obtain the necessary Senate and presidential action for the United States to accede to the 1982 LOS Convention. Nothing less than an all-agency full-court press will be suf- ficient. If the three maritime services and their allied agencies fail to persuade the Senate to approve the LOS Convention during the One Hundred Tenth Congress, a maritime strategy that purports to affirm the importance of law to global security will have no credibility. Words without consistent action will soon be ignored and forgotten.
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Admiral Harry Ulrich, Commander, US Naval Forces Europe, espouses a relatively simple formula for the global war on terrorism: have more partners than your ad- versaries have. The reasons are elementary. The struggle against disorder knows no flag. Waging that struggle has become a team sport. Vice Admiral Morgan has been the leading voice for the 1,000-ship multinational navy/Global Maritime Partner- ship, a concept designed to attract the kind of partners Admiral Ulrich seeks. Does the Global Maritime Partnership (and the Global Fleet Station initiative70) need a unifying global maritime strategy that promises to respect the rules of interna- tional law? Many of the potential 1,000-ship-navy partners think so.71
In their response to the November 2005 “1,000 Ship Navy” article by Admirals Morgan and Martoglio,72 the naval commanders of France, Ghana, India, Portugal and Spain all referred to the rule of law or legal considerations.73 The French com- mander, for example, observed that any 1,000-ship-navy operations must be “in full compliance with the UN Convention on the Law of the Sea . . . .” Portugal ex- pressly referred to the “rule of law,” and India asked whether the 1,000-ship con- cept should be established under the aegis of the United Nations. Admiral Soto of the Spanish Navy observed that “[t]ogether we must find a legal solution to pre- serving the natural flow of friendly maritime trade while denying freedom of action to those criminals who attempt to use the maritime space for illegal activities.” It seems clear that respect for international law has the potential to unite or fracture the embryonic 1,000-ship navy.
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One year later, many of those same foreign CNOs were asked to respond to Admiral Mullen’s plan for a new US maritime strategy.74 Once again, interna- tional law figured prominently in several of the responses. The Commandant of the Brazilian Navy urged that the new strategy “be guided by principles sanctioned by international law,” a viewed shared by the Secretary General of the Peruvian Navy and the Portuguese Navy Chief of Staff. Their counterpart in Colombia emphasized the need for an “international legal mechanism of cooper- ation.” Uruguay’s reply was also directly on point: “Multilateral cooperation among navies is legitimate activity when it is based on the law.” The Commander of the Lebanese Navy cited the 1982 LOS Convention and cautioned against the United States acting alone, while the new Chief of Staff for the Spanish Navy highlighted the need for the US Navy “to operate alongside its allies in accordance with international law.” The Australian Maritime Doctrine elegantly and forcefully captures the central importance of law and legitimacy for one of America’s most respected partners:
Australia’s use of armed force must be subject to the test of legitimacy, in that the Government must have the capacity to demonstrate to the Parliament and the electorate that there is adequate moral and legal justification for its actions . . . . [T]his adherence to legitimacy and the democratic nature of the Australian nation state is a particular strength. It is a historical fact that liberal democracies have been more successful in the development and operation of maritime forces than other forms of government, principally because the intensity and complexity of the sustained effort required for these capabilities places heavy demands upon a nation’s systems of state credit, its technological and industrial infrastructure, and its educated population. Sophisticated combat forces, in other words, depend directly upon the support of the people for their continued existence.75