Grasping the Influence of Law on Sea Power
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But this will change as these initiatives continue to reconfigure sea power itself. Consequently it is not surprising (but unfortunate) that the Cooperative Strategy failed to promote international law of the sea as the organizing principle and principal goal of U.S. maritime strategy. This glaring omission has been noted by numerous friends and allies, who time and again reminded the United States of the centrality of international law in their responses to the original thousand-ship-navy concept. Writing separately, naval commanders from France, Ghana, India, Portugal, and Spain all made reference to the importance of international maritime law in their comments on the thousand-ship navy published in 2006 by the Proceedings of the U.S. Naval Institute.41 A year later, many of the same chiefs of service were asked to respond to Admiral Michael G. Mullen’s plan for a new U.S. maritime strategy. Once again, international law was a prominent feature of their replies; the leaders of the naval forces of Brazil, Peru, Portugal, Colombia, Uruguay, Lebanon, and Spain urged the United States to ensure that maritime security is rooted in multilateral legal frameworks.42 It is especially important that the vigorous expansion of maritime partnership integration propelled by international law be maintained. The maritime domain awareness provisions of the SOLAS Convention, the counterproliferation and counterterrorism elements of the SUA 2005 protocols, and PSI, with its informal nature, and Security Council action against piracy, constitute the greatest package of multilateral maritime-security commitments since the interwar period of the 1930s. The United States led each of these efforts, but there is a widespread perception that the American “brand” has suffered since and that the diplomatic influence of its friends and allies in Europe has diminished.43 Meanwhile, that of China and Russia is expanding. The upshot is a degree of doubt about the ability of the West to shape the future direction of international maritime law toward a shared vision of the rule of law at sea. This means that we should be prepared to make even greater investments in cooperation, and the development of international maritime law and institutions, to realize the goals of the Cooperative Strategy.
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This narrative on the importance of international law at sea is at odds with much of the conventional wisdom that characterizes the oceans as an ungoverned legal vacuum.19 The global order of the oceans springs from the architecture of the international law of the sea and of the IMO, and the new maritime security regimes fall within those frameworks. The 1982 Law of the Sea Convention was the first—and remains the foremost—international instrument for realizing collaborative approaches to maritime security. Attempts in 1930, 1958, and 1960 at developing a widely accepted multilateral framework on oceans law had either ended in utter failure or achieved only modest gains. In contrast, UNCLOS contributes directly to international peace and security, by replacing abundant conflicting maritime claims with universally agreed limits on coastal-state sovereignty and jurisdiction. The treaty is anchored in a set of navigational regimes that establish common expectations, delineating the rights and duties of flag, port, and coastal states. Even though some state parties occasionally propose rules that evidence unorthodox misreadings of the convention—such as China’s bogus security claims in the East China and Yellow seas—UNCLOS has served as a stabilizing force, a framework that protects and promotes the principal American interest in freedom of the seas. In doing so the multilateral agreement, which now has more than 155 state parties, picked the international community out of what D. P. O’Connell once described as an “intellectual morass” in which competing opinions and views served as a substitute for law. As a result, the number of controversies in the oceans has declined.
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“Sea power” encompasses both naval power and maritime power. Naval power combines strategy and doctrine with warships and aircraft in order to de- ter maritime threats, win war at sea, and project power ashore. The more inclusive concept of “maritime power” applies all components of diplomatic, in- formational, military, and economic aspects of national power in the maritime domain. The expanded notion of sea power as against purely naval power is de- pendent upon the regimes created by progressive maritime law. The primary beneficiaries of this phenomenon in the United States are the Coast Guard and Marine Corps, which share a history of maritime constabulary opera- tions—positioned at the seam between peace and war and embracing the geographic dimensions of land and sea. In contrast, for decades the Navy marginalized amphibious warfare; only in the last decade has this mind-set changed. It is no coincidence, however, that while the Coast Guard and Marine Corps have become more relevant, the Navy still struggles to find its place amid a network of new regimes that enable coalition maritime constabulary operations and the building of maritime security capacity and partnership. The Cooperative Strategy of 2007 attempts to serve as a framework to fill this void, but problems of adapting to the new approach persist. Four years after in- troducing the “thousand-ship navy” concept and a year after soliciting inputs from American embassy posts, the Pentagon still has yet to implement its vi- sion for the Global Maritime Partnership.17 Furthermore, the new legal net- works and partnerships that facilitate maritime coalitions should have been central to the Cooperative Strategy; instead, the document barely mentions in- ternational law, obliquely noting that “theater security cooperation” requires, among other things, “regional frameworks for improving maritime gover- nance, and cooperation in enforcing the rule of law,” at sea.18 Although the strategy correctly suggests that “trust and cooperation cannot be surged,” it fails to promote America’s great strength in broadening the rule of law in the oceans. The lack of a specific reference to the global network of international laws that implicitly underlie the Cooperative Strategy represents a missed op- portunity to play to the core U.S. strength, focus the purpose and goals of na- tional maritime security, and reassure states skeptical of American intentions.
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Over the past two decades international maritime law has evolved from a set of rules designed to avoid naval warfare, by keeping maritime powers apart, toward a new global framework designed to facilitate maritime security cooperation, by bringing naval forces together to collaborate toward achieving common goals. The effects of this change are far-reaching—for the first time, law is a force multiplier for pursuing shared responsibilities in the maritime domain. In a departure from the past hundred years of state practice, the contem- porary focus of international maritime law now is constructive and prospective, broadening partnerships for enhancing port security, as well as coastal and in-shore safety, extending maritime domain awareness, and countering threats at sea. In contrast, the predominant influence of law on sea power from the first Hague conference in 1899, through two world wars, and continuing until the end of the Cold War, was focused on developing naval arms-control regimes, refining the laws of naval warfare, and prescribing conduct at sea to erect “firewalls” that separated opposing fleets. The maritime treaties were designed to maintain the peace or prevent the expansion of war at sea by controlling the types and numbers of warships and their weapons systems and by reducing provocative or risky behavior.
Today treaties do more than reduce friction and build confidence: contemporary international maritime agreements spread safety and security through networks or coalitions. Laws and international institutions have become catalysts for fostering coordination among states and distributed maritime forces and spreading the rule of law at sea, and as a consequence, the strategic, operational, and political “landscapes” of the oceans have decisively changed.