I
T
h
e
In
flue
nce
o
f La
w o
n Sea Power Doctrine
s
:
The Ne
w
Maritime Strategy and the Future of
the Global Legal Order
Craig H. Allen
*
F
or much of the
2006-07
academic
year, elements
of the US
Naval
War
Col-lege
facilitated an
elaborate process designed to provide the intellectual
foun-dations for the
Chief of Naval Operations (CNO) and his
staff
t
o draw upon in
drafting
a
new maritime
strategy.l
The process brought together
experts
from
throughout
the world to take part in
workshops, strategic
foundation
"war"
games,
conferences and l
istening
sessions.
2 Itwas my privilege
as
the
Charles
H.
Stockton
Chair
of International
Lawto
selVe
as
legal advisor
throughout
the process. This
article summarizes
the
contributions
of the
Naval War College
I
n
te
rnational L
aw
Departme
nt (ILD)
in the process to develop
and
define the relationship
between
maritime
strategy
and law
,
particularly internationa
l
law, and
provides the
au-thor's
thoughts on
what course
that
strategy should
take.
Three
decades have now
elapsed
since Danie
l
Patrick
O'Connell challenged our
thinking with his book
The Influence
of
Law on SeaPower
}
I
n it, the
New Zealand
law
of
the
sea expert and Chichele
Professor
of
Public
I
nternational Law
argued,
shortly
before his death in 1979
,
that because
the law
of the
sea "has
become the
stimulus
to
sea
power, not its restraint,
"4
future
naval
operations planning
staffs
• Charles H. Stockton Professor of International
Law,
US Naval War College.The opinions shared in this paper are those of the author and do not necessarily reflect the views and opinions of the U.S. Naval War College, the Dept. of the Navy, or Dept. of Defense.
International Law Studies - Volume 84
International Law and Military Operations
The
Influence of Law
on Sea Power
Doctrines
must acquire a thorough
appreciatio
n
of
the law.
;
I
n
co
ntra
st
to
Admiral
Alfred
Thayer Mahan
an
d th
e
more rece
n
t naval historians who, while providi
ng
illumi
-nating analyses of the influence
o
f
sea
power on history,
6
mostly disregard the
in-fl
ue
n
ce of
international l
aw o
n
sea
power
,
Prof
essor O'Conne
ll
forceful
ly
argued
that
sea
power doctrines
can
no lon
ger
be
co
n
sidered
in
i
s
olation from the relevant
law. More importantl
y,
O'Connell recognized that int
ernatio
nal law
can
be a
pow-erful st
r
ategic
enabler. The question I
as
k
ed
m
yself
as I launched into my new task
last fall
was, "
Ha
s
the naval
stra
t
egy community
h
ee
d
ed
Professor
O'Connell's
ad-monition
?"
Let
me attempt to
answe
r th
at
question by taking the r
eader
on a brief
tour of our maritim
e strategy
d
eve
lopm
e
nt process and the role oflaw and legal
ad-visors in that process.
The Maritime
Strategy
Project
C
raig
H.
All
e
n
Sec
uri
ty S
trat
eg
i
es
i
n th
e U
nit
e
d
St
at
es
We were
n
ot asked
t
o
compose
the new
st
rategy on a
b
lank
canvas.
I
ndeed, we
worked on o
ne
that was
a
lr
eady suffused
with an
el
aborate landscape. The new
maritim
e st
ra
tegy
w
ill
be
nested
in
what has become a multiface
t
ed web of
secu
ri
ty
strateg
i
es
fo
r th
e n
at
i
o
n
,
all
of which ema
n
ate
f
ro
m
the Natio1lal Security S
t
rategy of
the
U1Iited States.
16The Nation
al
Securi
ty Act of 1947, as
amend
ed
b
y the
Goldwater·Nichols
Ac
t
of
1
986, requires the President annually to
su
bmi
t
to the
Congress a
National Security Str
ategy (NSS) repo
r
t.
17
Th
e P
resi
d
e
n
t's
NSS visio
n
is
in
tu
rn
imp
l
eme
n
ted by the Natio1lal
Defeuse
Strategy promulga
ted
by the
Secre·
tary of Defense and the
Nati01laf
Military
Strategy issued by the
Chai
r
m
an of the
J
oint
C
hi
efs
ofStaff.18
Cl
os
ely
r
el
ated
t
o those
are the Nati01laf Strategy for
Mari-time Security, the Natio1lal Strategy for
H
omela1ld Securi
t
y, the Maritime Strategy for
Home/and
Security, the National Strategy for Combati1lg
Terrorism
and the Natio1lal
Strategy
to
Combat
Weapo1ls of Mass Destruction
.
Not
su
rprisi
n
gly, m
any
of the
strategy documents
h
ave
cl
assified versions.
I
sh
ould ad
d
that this was not the fi
rst
time the
US
Navy has
l
au
n
ched a gra
n
d
strategy
develo
p
me
n
t project.
I
ndeed,
research
b
y t
he
Center
for
Naval
Analyses
in
the fall o
f
2007
i
d
e
n
tified at
least seven
teen
Navy capston
e
pla
nnin
g docume
n
ts
since the 1970s.
19
I
t
is
no
t
eworthy
for this observer that no
ne
of the ear
lier Navy
cap-sto
n
e strategies,
or
NavaJ D
octri
n
e P
ubl
ication I
on Naval Waifarel°-wh
i
ch
"intro·
d
uces who
weare, w
h
at we
do
,
how
we
fight, a
n
d whe
re
we must
go i
n the
future"-expressly
discusses the role of
l
aw and
l
egal i
n
s
titut
i
ons
in n
aval operations, other
tha
n t
o make a
p
assing
reference
to the fact that naval mo
bil
ity would be better as·
sured if the Uni
ted Sta
t
es
acceded
t
o the 1982 U
n
ited
Nati
o
n
s Conven
t
ion on the
Law of the
Sea
{
1
982
L
OS
Conventi
o
n
)
.
21
Strategy a
s a
C
ritical
C
ompon
e
nt o
f
th
e G
eo-
strategic Environment
Strategy
is
sai
d to be "a p
ruden
t
idea or
set
of
i
deas for
empl
oying
th
e
in
strume
n
ts of
national powe
r
in a
synchronized
a
n
d
in
tegra
ted fashion t
o ach
ieve theate
r,
na
t
ional,
an
d
/or
multinational ob;ectives.
"22
I
n
setti
n
g ou
t
to achieve those nat
i
o
nal
objec·
tives,
strategy
m
u
st be adap
ted
to the
st
r
ategic
enviro
n
me
n
t
i
n whic
h
i
t will oper·
ate.2J
Accor
dingly,
to provide the
d
evelop
me
n
t team
wi
th the foundatio
n
they
n
eeded
to prepa
r
e
maritime
stra
t
egy
o
p
tions
for
the
CNO, the Naval
War
College
began by
conveni
n
g a Geo·st
r
a
t
egic E
n
vironmen
t Wo
r
kshop. The worksho
p p
ar·
tici
p
ants drew
h
eavily
o
n
the Na
ti
onal In
t
e
llig
ence Council
assessment "Mapping
the G
l
obal Future.
"24Later, a
B
rit
i
sh
per
spective
was provided by the UK Ministry
The
Influence
of
Law
on Sea Power
Doctrines
of De
f
ence Development and Co
n
ce
pt
s Doctrine Ce
ntr
e's "Strategic
Tr
ends
2007-2036."25 The experts' co
nclu
sions were sobering.
26T
h
e reader is likely familiar with much
of
the
strategic enviro
nm
e
n
ta
l
picture,
so
I will on
l
y su
mm
ar
i
ze the most
sa
li
ent features. Geopo
li
tical entropy,
di
sorder
and
un
ce
rtain
ty are on the rise.2' The world is said
t
o
be
s
uf
fe
ring
from a g
lo
bal secu
ri
ty
deficit.
28Unsustainable population growth
r
ates, the "youth bulge"
a
nd
ch
roni
c
unemployment are most pronounced in those
r
egio
n
s lying in the so-ca
ll
ed arc of
instability.
S
tat
e sove
r
eignty and territorial integrity are on
th
e
d
edine.
29S
t
a
t
e
powers are
in
c
r
easi
n
gly
diffus
ed and devolved. Many
S
tat
es, even some
of
the most
developed States, are
besieged by an unrelenting flow of illicit
weapons,
drugs,
mon
ey and migrants across their
bord
e
r
s. A
t
the same
time, through w
h
at some
h
ave described as the democratization o
f
violence a
nd
oftechnology,30 States
have
lost their historical
monopol
y
on
the
l
arge-scale use offorce
an
d
on access to
weap-ons of
ma
ss destruction
(WMD) technologies.
3lIndeed, the global picture looks
mu
ch the same as it did
i
n
1921, when William Butler Yeats penned his apocalyptic
poe
m
The
Second Coming:
Things fall apart;
th
e centre
ca
n
not hold
;
Mere anarchy is
lo
osed
up
on the wo
rld
,
The b
lood
-d
imm
e
d
tide is loosed, and everywhere
The ceremo
n
y of
innocence
i
s
drown
ed;
The bes
t
lack a
ll
convictio
n
, w
hil
e the worst
AIe full of
pa
ssio
nat
e intensity.
Grim verses, indeed, whose dark and disturbing images sti
ll
ring true.
Economic sec
uri
ty
i
s widely
r
ecognized as a vital interest of
th
e S
tat
e.
n Yet,
pres-ent efforts are not s
ufficient
to
m
eet basic security needs eve
n
within the borders of
m
any Sta
te
s,le
t
alone provide the kind of
stab
ilit
y needed by the globalized,
inter-dependent and
tigh
tl
y co
n
n
ected eco
no
m
y of
the tv.renty-fi
r
st century
.
Con
t
empo-r
ary sec
uri
ty stra
t
egies
must be designed
to
manage threats to the public order.
T
ho
se threats co
m
e from States and non
-S
tate actors
.
We are painfully aware
that
the threats know
no
geographical boundaries, particularly as globalization
in-c
r
eases
the porosity of borders. Accordingly, the threats must
b
e
detected and
mana
ged in the co
mmon
s,
at
bo
unda
ri
es betwee
n
the commons and Sta
te
s, and
along the borders of adjacent States.
In a
n
age when the
int
ernational s
upp
l
y chai
n
s that s
u
stain the global economy
an
d
the seas over which those chai
n
s are ca
rri
ed are the common co
n
cern of a
ll
Craig
H. Allen
in
competent
flag
Sta
t
es; failing an
d
failed
States; transna
tional
terrorist
organiza-tio
n
s; c
riminal
syndicates engaged
in trafficking in
weapons,
dru
gs
a
n
d
hwnan
s;
and illega
l,
unreported
and
unregulated fishing all undermine order in the
com·
mons
. Here
in
the global
commons,
where
th
e
pinch from
flag S
tat
es fall
in
g short
in
their responsibility to
"effectively" exercise j
urisdi
ction
and
co
n
trol
over
their
vessels
is
f
elt mo
st acutely,n
the
security
d
efici
t
is most urgent.
Th
e Stra
t
eg
i
c Fo
unda
t
i
ons G
am
es
Following
the August 2006
Geo-strategic
Environment
Workshop, a series
of
exec·
utive
group
meetings and
war
games we
re conducted
in
September a
nd
Oc
tob
er o
f
2006
to develop
strategic
foundation
s
for use in the Maritime
Strategy O
p
tions
De·
velopment Workshop
in December
. Those
options were later
vetted
through the
Options
Refinement Decision
Support
E
vent
in
February
of
2007.
The I
n
terna·
tiona
l
Law
Department
provided legal
advice
to
all
of the
war game
teams and
to
two of
the
executive gro
up
s. Early on
in
th
e
process, it also provided a
brief
to the
Red
Team
Executive
Group suggest
ing
possible
"
lawfare"
st
rategies
an
d
tactics
th
at
might
be
used against the Blue Team.).! During this
sa
m
e
period,
th
e Naval War
Co
ll
ege
hosted a
co
nf
erence on
the maritime implications of
China's energy stra
t
-egy,3)
an
I
ntercessional
Conference on
Maritime
Strategy
and
a
worksho
p
entitled
Economics and
Maritime Strategy:
Implications for the
2
1
st Century.
)6
ILD
attended
each
of the
even
ts and
an
IlDm
ember (
th
e
author
)
part
icipated
in the Economics
and
Maritime
Strategy Workshop, submitted
a paper on
l
egal
int
eroperab
ili
ty c
hal
·
lenges and made a
pr
esentation
on international cooperation in
securing
the mario
time commons.
)7
Th
e Future G
l
oba
l
Leg
al
O
r
ders Worksho
p
let
me now turn to
so
m
ething
of greater interest to reade
rs
of this
volume, all
of
whom will
likely appreciate that law-that is
,
rule sets,
legal processes and
intern
at
ion
al
institutions
38
-is
as
much a part of the geo·strategic environment,
and therefore
t
h
e
plan
n
ing
"c
ontext
,"
as geography,
energy,
demographics,
orga·
ni
zatio
n
al c
ul
ture and
technology. The internationa
l
syste
m
consists
p
r
incipall
y o
f
sovereign States, w
h
o collectively com
pri
se
a horizontal, non-hierarchical global
orde
r
that
h
as
historically
been
desc
r
ibed
as one of
moderated a
narchy, a
t
least
by
the realists.
39
Conven
tion
al wisdom
posits tha
t within
that
system,
international
in
stitutions and o
rg
anizations
ameliorate the
a
n
archy, b
u
t with
few
exceptions
they do
so
without altering its horizontal
structure.
The Influ
ence of
Law on Sea Power Doctrines
T
h
e experts
who participated in the Geo-s
t
rat
egic
Environment
Worksho
p
ex-hib
i
ted little
fai
t
h in
exis
t
i
ng international
organizat
ions and in international
law.
Three sample
fin
d
ings demonstrate the
depth
of
their skep
ticism. First, they
con-duded t
hat "some
international organiza
ti
on
s
are lookin
g
long in th
e tooth
and
in-capable of coping
with
emerging cha
ll
enges." Next
th
ey cond
uded
that
"s
ome
o
f
the
instit
u
tions
t
hat are charged with
m
an
aging global
probl
ems
may be
over-whelmed
by
them
"
an
d "t
h
e
nwnber of bilateral
agreements will
rise as internatio
n
al
organizations co
n
tinue to fall
short
in
their ob
j
ectives.
"
Given
the
experts'
harsh
judgment
of inte
rn
atio
n
al organiza
ti
ons and regimes
,
their prescription,
"
Interna
-tio
n
al
Organi
zations: out
with
the old
,
in with the new
,"
should
n
ot
surprise you.
The Workshop
experts' conclusions
added
credence
to the
view
that i
n
te
rn
a-tiona
l
law is merely
"ep
ipheno
menaL"40
What
really
affects
State b
ehavior is
State
interests-that is,
the
un
de
rlyi
ng economic
and political factors
.4!
Lega
l
academics
have
expressed
related doub
ts
about i
n
ternational law. I
n
ternationa
l
lawyers
n
o
doubt recall Jo
h
n A
ustin's
ni
netee
n
th-cen
t
ury
con
cl
usi
on
t
ha
t in
ternational
l
aw
was
not positive la
w
at all, but
rather a body
tha
t
partakes more of a moral ob
li
ga-tion, violation of
wh
ich
may p
rovoke the hostility of other natio
ns
but
n
o
t
the ki
n
d
of
sa
nction
s
that atten
d violation
o
fl
aws promulgated bya
sove
r
eig
n
.
42And
H
.L.A
.
H
art
fam
ous
ly
observed that
because
i
n
te
rn
ational la
w
l
acks
the formal
structure
of legis
l
at
ive co
ur
ts
wi
th comp
ul
sory
j
ur
isdiction
a
nd
official sanc
tio
ns
it is
far
m
ore primitive than th
e
m
u
nicipal law
en
acted by a
sovereign.
4)
The
Wo
rkshop
report
l
eft some of
us wonde
r
ing whe
ther
th
eir
views were
sha
r
ed
by
i
nt
ernatio
nal law
experts.
Mindful that the
state
of the futur
e
global l
egal
order is
a
vi
tal
component
in
the
geo-strategic
environment,
the Presiden
t
of the
Naval
War College co
n
vene
d
a two
-
day workshop that brought forty
-tw
o legal
experts
toge
ther t
o
exami
ne the glo
b
a
l
l
egal
order i
n
2020.
44Those
ex
p
erts
we
re
as
k
ed
t
o
provide the lega
l com
p
onen
t
that is
t
oo often
n
eglected in
strategy
documents
.
With few
excep
tions,
m
ilitary
strategists
have a long
hi
story of givin
g
short
shrift
to internationa
l
law in thei
r
wr
i
tings.
4SThe origin of the
probl
em can
be
traced back to
Ca
rl
von Clausewitz,
who dismissively re
f
erred to those
"certain
self-i
mposed,
i
mperceptible limi
t
a
t
ions ha
r
dly worth me
n
tio
n
ing
,
known as
in-ternationallaw and
custom."46 Geo
rg
e F.
Ken
nan,
th
e leadin
g arc
h
itect
of
Amer-ica's
Col
d War
cont
ainment
security
strategy
,
i
s also remembere
d
for his attack on
what
he
saw
as a
n excess
of
"legalism
and
m
oralism" i
n
American foreign
p
olicy
during t
h
e Wilson
pres
id
ency years.
47Regrettably, in
ternatio
n
al lawyers have not
Cra
i
g
H.
A
ll
en
And what a disti
n
guished group they were. They
came to Newport from
Argen-tina and A
u
stralia, from Canada and Chile, a
n
d from
I
ndia, I
n
donesia and Italy. In
all, they represented eleven countries. They were law professors; international
l
aw
specialists
from the US Departments of
State,
J
ustice and
H
omela
n
d Secu
r
ity a
n
d
the Center fo
r
Naval Ana
l
yses; a Chi
n
ese law of the
sea scho
l
ar; se
n
ior legal advisors
to the I
n
dia
n
Coast Guard and the Italia
n
Navy Ge
n
eral Staff; the legal counsel to
the US Cha
i
rman of the Joint Chiefs of S
t
aff; senior
judge advocates for the US
Ma-rine Corps, Coast Guard, and several combatan
t
and fleet commands; and the
Di-rec
t
or of the UN Divisio
n
for Ocean Affairs and the Law of the Sea
.
They brought
backgrounds in i
n
te
rn
ational security law,
law of the sea, a
nn
s co
n
trol and
prolif-eration, the law of armed conflict, international tra
n
sportation law, in
t
ernational
crimina
l
law and international organizatio
n
s.
The Workshop began with a brief
discussion of some assumptio
n
s proposed by
the confere
n
ce chair concerning the ro
l
e and reach oflaw
.
48The firs
t
was the
prag-matic observa
t
io
n
that the new marit
i
me strategy must be adapted to the global
le-gal order in w
h
ich it will function. The
second was that a robust an
d
respected legal
orde
r
has the potential to save
lives, by providing pred
i
ctability and
preve
n
ting
conflicts, and by
p
roviding effective and peaceful means to resolve co
nfli
cts that do
arise. The third assump
ti
on was that, whi
l
e the fu
t
ure s
t
ate o
f
the legal order is
un-certain, it can, to some deg
r
ee, be mapped and
shaped, and-as
Thomas Friedman
remi
n
ds us-"the
future belongs to the shapers and adapters
.
"<f9
To avoid
what
the influential British
strategist Coli
n
Gray labels the
"sin of
presentism,"SO
t
he legal experts attemp
t
ed to wide
n
their temporal le
n
s b
y
explor-ing seve
r
al "alternative future
s,"
u
sing
the sce
n
ario-pla
n
n
i
ng method championed
by futurists like Pete
r
Schwartz a
n
d
P
hilip Bobbitt.
51They initially discussed six
strawman scenarios that would collective
l
y map the future global legal order,
be-fore
adopting an approach that focused o
n
twelve areas of
potentially s
i
g
n
ificant
changes in the
l
egal order. For each of the twe
l
ve a
r
eas,
the experts examined the
possib
l
e trends i
n
the rule
sets,
l
egal processes and institutions, and in compliance
levels
.
Next, they were asked to consider the consequences of
those changes to the
mari
ti
me stra
t
egy m
i
ssion inventory and for the mea
n
s and me
t
hods for ca
r
rying
out those missions. Finally, they we
r
e asked what
the
n
ew mar
i
time st
r
ategy shou
l
d
say-and not say-about internatio
n
al law.
One wou
l
d expect that forty-two
l
awyers from eleve
n
different nations wou
l
d
find
li
ttle o
n
which to agree.
To some extent, that was
the case
with this group
.
There was,
however,
one question on which every expert agreed: the new
mari-time strategy should include a
n
exp
r
ess refere
n
ce to internationa
l
law
.
As
one
ex-pert
p
ut it, i
n
ternational
l
aw "is the foundation on which we operate;
i
t is why we
are there."
T
h
e
I
n
flu
e
n
ce of
La
w o
n
Se
a
Po
w
e
r Do
c
trin
es
Th
e
R
o
l
e
of
Law inth
e New Mari
t
ime Str
at
egy
As
the lega
l
experts concluded,
there are
a
nwnber of
compelling
reasons to
em-brace
the r
ul
e
oflaw in the new maritime
strategy and
n
o s
u
fficie
n
t
r
eason
f
or
fa
il
-i
ng
t
o do
so
.
The new
strategy
m
u
st
be
co
n
sis
t
en
t
with
higher-
l
evel security
strateg
i
es.
The
2006
National Security Strategy
of
t
h
e
U
n
ited
Sta
t
es expressly
cites
the
i
mportance of
e
n
forcing the rule
oflaw.
52Similarly,
the presi
d
e
n
tial
directive
on
natio
nal
ma
r
itime
secur
i
ty
made it clear that i
n
deve
l
oping the National Strategy
for
Maritime
Security
(NS
MS
)
the
Un
i
ted
States
will
ac
t
cons
i
sten
tl
y with
i
n
te
rn
a-tiona
l
a
n
d
US
law.
53The
NSMS
ope
n
s
i
t
s chapter on "strategic o
b
jectives
"
by quot
-i
ng
t
he p
r
esidential
direct
i
ve
to
"take a
ll
necessary and approp
ri
ate actions,
consistent with
U
.S.
l
aw,
trea
t
ies,
and
othe
r
interna
t
ional
agreements
to which the
U
n
ited
States
is party ..
..
"$4But
even
if the higher
-
l
evel s
t
rategy documents
we
r
e silen
t
on the role oflaw,
a
m
arit
i
me
st
r
a
t
egy
t
ha
t
acknowledges the
im
porta
n
ce
of law
as
a
n
ordering force
and a
unifying theme for the
cruci
b
le
of
international relations-i
n
short,
the
"ce
ntre
"
Yeats
l
o
n
ged
for-
will
be
far
mo
r
e compelling
and durab
l
e. Such a
docu-ment
wo
ul
d also be a
source
of pride a
n
d
i
ns
pi
ra
ti
o
n
for the members of our
armed
forces,
a co
n
fide
n
ce-bu
il
di
n
g measure
for
our
friends and
allies,
an
d
a key
e
n
abler
i
n o
u
r
ab
ili
ty
to
shape
the
fu
tur
e
global orde
r.
L
a
w
as
an
O
rd
eri
n
g F
o
rc
e
T
h
e
Uni
t
ed S
t
ates
has a long tradi
t
ion of calli
n
g upon i
n
terna
t
io
n
al
l
aw
when it
serves
the national
i
nterest.
55I
n t
he
l
ate
e
i
gh
t
eenth a
n
d
ea
rl
y
n
i
neteen
th
centuries,
the infan
t
republic ra
i
sed
i
n
te
rn
a
t
ional
l
aw o
b
jections
to Great B
ri
tai
n
's
boa
r
ding
of US vessels
o
n
the high
seas
and impress
m
ent of
US sailors
i
nto the Roya
l
Navy,
an
d
aga
i
nst t
h
e
Ba
r
bary States
for p
ir
atical
attacks
o
n
US merchantme
n
i
n
the
Medite
rr
anean
Sea and
i
ts ap
pr
oaches. Two other disputes betwee
n
t
h
e Un
i
ted
S
t
ates
and Grea
t
Britai
n
-leading
r
espective1y
to the Caroline
exchange
of notes
an
d
the
Alabama arbit
r
a
ti
on awa
r
d-p
r
o
d
u
ced enduring
i
nternat
i
o
nal
princi
p
les
we
ll
know
n
to the reade
r
s o
f
this volu
m
e
.
56Mo
r
e
rece
n
tly, the na
ti
o
n
in
voked
in-te
rn
a
ti
o
n
al
l
aw against I
ran for b
r
eaching
the inviola
b
ility of the US
e
m
bassy
in
Tehran
an
d
holding
US
d
i
ploma
t
ic perso
n
nel an
d
other citizens hostage, a
n
d
against
the
P
eo
pl
e's
Rep
u
blic o
f
China
for its
cond
u
ct
w
h
en a
US
Navy
E
P
-3
was forced to
land on
H
ainan Is
l
a
n
d fo
ll
owi
n
g a mida
i
r
collisio
n
with
a C
h
inese
fi
ghter.
Although n
a
tional
in
terest
i
s s
u
rely the
m
idwife of
secur
i
ty
p
o
li
cy
and s
tr
ategy
,51
at the
same
t
ime
S
t
ates have repeatedly demonst
r
ated their willingness to
Craig
H
.
Allen
G
l
obalization and its
ju
st-in-time and just-enough
lo
gis
ti
cs
imperatives have
fun
·
damentally
a
lt
ered
the
strategic calcu
lus
,
vi
rtuall
y
mandating
a cooperative
ap·
proach to maritime
secu
ri
ty
.
Accordingly,
the new maritime
strategy
must be
mind
ful
of nationa
l
interests while remaining
ever
alert to
shared
interests.
A
strat-egy
that narrow
l
y
focuses on national interests
will surely
reinforce
existing
per·
ce
pti
o
n
s o
f
the United
S
t
ates and
driv
e
away
potential partners. By
contrast,
it takes
but
little imagination to
see
that a new
maritim
e st
rat
egy
th
at
defines and articu·
lates in
compell
in
g
terms a
framework for achieving s
har
ed goals
and joint
so
l
u·
tio
n
s
to
commo
n
problems is m
u
c
h mor
e
likely to
m
ake other States
want to flock
to the
na
sce
n
t
I
,OOO·ship
multinational navy.5
8
Finding
commo
n
ground
among
n
ational
i
n
terests
should
not
be
difficult.
For
some,
the need to promote and protect the international trade
and
transportation
system on which
th
e
globalized and
energy·hungry
world depends is a
vi
tal
n
a·
tional
interest.
59It is
a
l
so a shared
interest. In
th
e
word
s of so
m
e, "co
mmerce
c
ra
ves
sec
uri
ty
.
"
For
other States,
particular
l
y
those in
West
Africa,
South
America a
n
d
Sout
h
eas
t
Asia
,
prot
ecting
offshore fisheries
from poache
r
s
is not mere
l
y a pursuit
of
profit; it is
a survival
imperative.
Still
other
States co
n
sider
threats to the
envi·
ronment
as
national
"sec
urity" issues.
Consi
d
e
r
,
for
example, small·
island devel
-oping States,
for
w
hom
global
warming
and its
at
t
endant
rise in the
sea
level
present
an existe
n
tial
threat. A
strategy
that promotes
sustainable
and
equitab
l
e
ac·
cess
to marine living
r
esou
r
ces
and protection
of
the marine
environme
nt
is
sure
to
h
ave
b
r
oad
appeal. At
the
same t
im
e,
however
,
none
of
these interests
can
be
ob·
tai
n
ed
if the
l
arger system
is
fraught with
disorder
and violence.
I
n Abraham
Maslow's hierarchy
of
human needs, the
n
eed for secur
i
ty
is
exceeded only
by
basic
n
eeds, e
.g.
, food
.
60Professor
Coli
n
G
r
ay asserts
that
"order
is the prime
virtue;
it
is the
esse
n
tial
prerequisite for
security,
peace
,
and possibly
justice.
Disorder
i
s
the
wors
t
condi·
tio
n.
"61T
h
ere
i
s,
in the minds of many, no
l
onger
a "
war" to
be
won,
only
secu
ri
ty
to
be
secured, extended and
maintained,
so
that
war can be
preve
n
ted.
The
sp
r
ead
of te
rrori
sm
and
weapons o
f m
ass
destruction threatens
chaos,
as
effec
ti
ve
power
shifts away from States
to
non
·S
t
ate acto
r
s and super·empowe
r
ed
individuals.
To
the
extent
that civilization
r
ests
in part
on
th
e co
ntr
ol of vio
l
ence,
and the
growing
capacity
of non·State actors to inflict
such
violence
no
w casts a
menacing
shadow
over the p
l
anet, the role of
l
aw
as
th
e
deep
stra
tum
undergirding international
se·
curity becomes
more apparent
and
more urgent. Law has the potential to
serve as
the indispensable
binding force
to
check
and perhaps reverse our
social
and
in
sti-tutional entropy.
If the
States'
grip on
l
aw
l
essens,
and
Sta
t
es become
in
c
r
easingly
prone to use military force,
the
bindin
g
force
so vital
to
civilization may be
fatally
weakened.
The
Influ
ence of Law
o
n
Sea Power Doctrines
In a geo-strategic
e
n
vironme
nt
everywhere characterized
b
y
growing
uncer-tai
n
ty,
rapid
c
h
ange and
instability, rule
sets can
promote greater
pr
ed
ictabili
ty
and stability. At the same time, rule
sets
are not legal pixie dust that miraculously
brings
order
where
ther
e
was once
chaos.
They mu
s
t be given the l
evel
of
r
espect
and
enforcement
n
ecessary
for
c
r
edibility
or no
State w
ill
be willing to rely on
them. Rule
se
t
s
like the
UN Charter,
the
1982
LOS
Conven
tion
, a
nti
-
terrorism
treaties and the non
-
proliferation regime
can
increase order,
but
only if they are
com
plied with.
We recognize that not all
Sta
t
es a
nd n
o
n
-S
tat
e
actors will voluntarily
comp
l
y
with
the rule
sets,
whether the rules under
co
n
sideratio
n are those relating to non
-aggression
and
non
-prolife
ration or to traffickin
g
for profit.
If
vo
luntary
compli-ance falls
short,
we mu
s
t of
course
redouble
our efforts
t
o
rebuild it
to
the level
necessary for pu
blic
orde
r. That may
co
m
e
through
educatio
n
,
inducement,
de-terrence, or
capacity
building of
States,
or
of global or regional int
erna
tional
orga-nizations.
62
But mak
e
no mistake, while
each
of these app
roaches
will be vital
to
long-term
success,
they will likely n
ever
be
sufficie
nt unto th
e
m
selves
to provide
the
n
eeded
level of
securi
ty in
th
e co
ming
years.
For that, we
must
a
dd
en
for
cemen
t.
Because law is not
se
lf
-executing,
no
security s
trategy
should
be founded
on
un-r
ealistic expectat
i
o
n
s
r
egardi
ng the influ
ence
of l
aw o
n
Sta
te
s
(let
alon
e
on
non-S
tat
e
actors) in the conduct of their foreign and military
affairs-particularly
when
sUlVival
or vital
State
interests,
or "fun
dam
en
tal
"
religious beli
efs,
are at
stake. Nor
sho
uld
we delud
e
ourselves about th
e effectiveness
of in
t
ernational
organizations
in
preselVing or
r
esto
ring
peace
a
nd
security
. Yet,
eve
n
if, as Thomas
Ho
bbes
warned,
"covenants, w
ithout the
sword,
are but words and of
no
stre
n
gth
to
secu
r
e
a man at all,"
6)
even
the most
committed contra
ri
an
would not
counsel
us to turn
our backs on
covenants
. Int
e
rnational la
w and
int
ernatio
nal organizations like the
United Nations will
n
ever
be more
effective
or influential than the leading
S
tates
allow them to be.
64If the new US maritim
e strategy
ignores the rol
e
of
e
ither,
we
di-mini
s
h
the import
a
n
ce
of
both
an
d
undermine their effectiveness.
The result will
be a less ordered and less
secure
world. For that r
eason,
it is
vita
l that th
e
maritime
strategy provide
a
rule-based approach for
enforcing
the global legal order.
In
consi
d
e
rin
g
e
nforcem
ent
approaches I
suggest
that
effect
i
ve enforceme
nt of
global
rul
e se
t
s
will
r
e
quir
e
a new
way of
thinking that
tran
scends
the so-called
"
DIME"
constr
u
c
t. The DIME
app
roa
ch, whic
h looks to the
S
t
ate's
diplomatic,
in-formation
,
milit
ary
and
economic
"
in
struments of
national power,
"
i
s
too narrow
for a global
e
n
viro
nm
e
nt in which non-State actors pose
sign
ificant, even
cataclys-mic, risks to
States.os
This
Co
ld
War
artifact, which is
currently
taught at US war
Cra
i
g
H
.
A
ll
en
will be
used against
States.
66I
n the post-Co
l
d War
,
post-9I
I
I
,
post-Bali, Madrid,
London
subway and Lebanon 2006-2007 world,
i
t
is dear that instrume
n
ts of
na-tional power
will
increasingly
be
used against non
-S
tate actors, like AI Qaeda,
H
ezbollah
and tra
n
snatio
n
al
criminal syndicates, a
n
d
that
the
DIME approach
is
n
ot always well
suited
to t
h
em.
The United
States
already reaches
well
beyond the
DIME framework, using a
variety
ofleadership, ma
n
agerial,
institutiona
l
, cultural,
technological
,
law
enforceme
n
t, judicial
and fina
n
cial measures,
such
as freezing
assets.
67Some of
the rule
violations
that threaten pub
l
ic
order
are
and will
remain
"
M
" (
military
)
issues. But many
are "enhanced
L
"
(law e
n
forcemen
t
)
issues,
call-ing for
enhanced
law
enforcement
measures.
68This
broader, "DIME-p
l
us
"
frame-work
wil
l
be
vi
t
al
to
any
maritime
strategy--certai
n
ly for the
Coast Guard
a
n
d
other
in
t
e
r
age
n
cy
players
with
maritime
safety and security
missio
n
s.
The new
strategy
must
also
acknowledge tha
t
without
the
Coast
Guard, US maritime forces
will
not have a
seamless approach
to maritime
security,
for without it the
strategy
will
lack the
only
alternat
i
ve
"e
n
d game" to killing
your adversaries o
r
detaining
them on remote is
l
ands:
arresting
and prosecuting
them.
The
Coast Guard
puts the
"
L
"
factor in what is otherwise
a
limited DIME too
l
kit for
addressing
ma
n
y
of our
maritime
security
problems. The
n
ext strategy
must adapt itself
accordingly.
Law IU
a
Un
i
fying
Theme
Severa
l
o
f
the
outside experts engaged
in the mar
i
time
strategy
development
pro-cess
hosted
by
the
Naval
War
College
highlighted the
n
eed
for the new document
to include
a "compelli
n
g
narrative" that
will ensure
i
t is read,
studied
and
imple-mented. How do
you
s
elect a
theme
that will
counter
the
scores
of
centrifugal
forces
,
u
n
ify the
elements
of the
strategy,
a
n
d
serve as
the leadership
spark and
cat-alyst to bri
n
g
together the three maritime
services
with
overlapping yet
unique
iden
t
ities
,
the other i
n
teragency
p
l
ayers so essential
to
the
mission, and i
n
terna-tional friends
and allies, while at the
same time winning
over or
at
least muting
inter-governmental and
no
n
-governmental organizations?
I
sugges
t
that
l
aw and
i
ts
prove
n
, albeit
imperfect,
capability
to p
r
omote order
,
security and
prosperity
can
be
a powerful unifying theme and force
in
the new maritime
stra
t
egy
in the globalized,
media-sensitive world
in
which
we
find
ourselves.
I
n
fact,
the new
strategy
has the
po-tential to go
a long way
toward
rehabilitating the reputatio
n
of the
United S
t
at
es
as
an
ovelWeening
hegemo
n
that has
become
tone deaf to the
concerns
of its allies.
69Global security
requires global
cooperation
and, for many
,
law provides the
logic and language of
cooperatio
n
. Adherence
t
o shared rule
sets ca
n
b
e
an effective
unifying force.
Some would
go
so
far as
t
o
say
it is now
embedded
in the
cosmopol-i
ta
n
DNA. For that reason
,
an
explici
t
emb
r
ace of the rule oflaw
could
prove to be
The
In
fluence of Law
o
n
Sea Power Doctrines
one of
the most attractive
features
of the new maritime
strategy
for the
Navy's
in-teragency and international partners
.
Pr
o
motion
a
nd impl
ementation of
rule
sets
would
give the
strategy
internal
cohere
n
ce and
broad
external a
pp
eal.
Any
strategy
that
downplays, or
still worse
denigrates, international
l
aw
and international
orga-ni
za
tion
s,
as does the
current National
Defense Strategy
of
th
e United States,
ill
serves
the nation
'
s long-term interest
.
Much of the world
still
considers the United
Nat
ion
s
the primary if not
sole source
of legitimacy for the use of force. A
strategy
that
sugges
t
s
that military force
w
ill
be
deployed in
a
manner that
some
will
con-clude
violates
the
UN Charter,
which
prohibit
s
th
e
use of force or
even
the threat to
u
se
force against the political independence or
t
e
rrit
o
ri
a
l
integrity
of
a
State,
will
further isolate the nation.
The importance
o
f
co
mmon
rule
sets,
based on international
l
aw
as
a
unifying
force
in
combined operations, will
not
be
lo
st
on those who observed the
evol
u
-tion of the
Prolif
e
ration
Security
Initiative
(
PSI)
and
the recent
UN Security
Counc
il
resolutions on proliferation threats to international peace and
sec
uri
ty.
Both make clear that
mo
st
of the world
will
insist on
an a
ppr
oach
that respects
in-ternationallaw.
Early positio
n
s
taken by
th
e
n
-U
nd
er Secretary
of
Sta
t
e
John Bolton at the
J
uly
2003
PSI
-
participating
S
tat
es'
meeting
in
Brisbane
sugges
t
e
d
that with
r
espect
to
legal
ju
stifications
for PSI
boardings
,
th
e
United
S
tat
es
was
"
taking
nothin
g off
the
table," including the Article
5
1
right of
self-defe
n
se
.
That
was
understood
b
y
some
as
advocating
a
position on boarding foreign flag vessels believed to
be
transporting
weapons of mass destruction
that
might go beyond what
c
urr
ent
int
e
rn
atio
nal
law
pennits. At their meeting
in
Paris three months later
,
several
of the PSI-participating
S
tat
es
responded to the
US opening
position
with
a
ca
ll
for
all
participating
States
to
subsc
rib
e
to
a commo
n
Stateme
nt
of
Int
e
rdi
ction
Prin
ci
pl
es.
The two-page
statement
even
tuall
y
adopted at that meeting, and
still
in force, twice
ex
pr
esses
the
participating
Sta
t
es' co
mmitm
en
t
that
P
S
I
activities will be carried out in a manner
consistent
with international law.
Sim
ilarl
y, Sec
urity
Council
Resolutions
1
540,
condemning
prolif
erat
ion
of weapons of mass destruction to or by non
-S
tate
ac-tors, and
1
718,
applying
simila
r
prohibitions to
North
Korea, both
ti
e
any
enfo
r
ce-m
ent
m
eas
ur
es
to the
app
li
cab
l
e
rules of
int
ernatio
nal
law.
Law
