Grasping "the influence of law on sea power"

Naval War College Review, Summer, 2009 by James Kraska

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 contemporary focus of international maritime law now is constructive and prospective, broadening partnerships for enhancing port security, as well as coastal and inshore 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, re fining 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.

The remainder of this article is divided broadly into four sections. First, it is essential to describe briefly the major features of historical international maritime law, which traditionally focused on the law of naval warfare and naval arms control. This survey extends from the beginning of the Hague Law, at the turn of the nineteenth century and beginning of the twentieth, to the Jackson Hole Agreement between the superpowers at the end of the Cold War. Along the way, high points in the terrain include the treaty system negotiated by the five greatest naval powers at the Washington Conference in 1921-22, the naval arms-limitations agreements that were extended at the London Naval Conference of 1930, and the several Cold War treaties, such as the Seabed Treaty and the Incidents at Sea (INCSEA) agreement. (1) The dean of this school of traditional international maritime law was the late New Zealand scholar D. P. O'Connell, who published his influential The Influence of Law on Sea Power in 1975. (2) O'Connell passed away in 1979, and since that time both international maritime law and naval warfare have been transformed to reflect changing patterns in the distribution of power within the world system and in the role of naval forces. O'Connell delineated the function of international law in naval planning by focusing largely on the law of naval warfare, and his seminal volume epitomizes the relationship between sea power and international law over the previous century.

In the second section the article shifts toward an explanation of the relationship between law and sea power since the fall of the Berlin Wall and highlights the primary characteristics of international maritime law today. In doing so, this analysis fills a void by connecting the major legal initiatives for maritime security to the prevailing world political system, just as O'Connell did for a very different world more than thirty years ago. Recently emerging maritime treaties and partnerships have transformed international maritime law and thereby reconfigured the nature of sea power by creating agreements to unite collective efforts to enhance global shipping and combat maritime piracy, terrorism, proliferation of weapons of mass destruction, and narcotics trafficking. These new regimes presage an integrated and cooperative approach, and their development over the past two decades has shaped the diplomatic space to such extent that they now may be seen as collectively the principal impetus for the 2007 U.S. maritime strategy, A Cooperative Strategy for 21st Century Seapower. (3) In that sense, the new maritime strategy was not a revolutionary document but a lagging indicator of the changes in the legal and policy frameworks evolving in the global maritime system, and to that extent the document merely leveraged the emergence of new cooperative relationships. For the first time, international law is serving as a force multiplier for sea power, promoting maritime security both globally and regionally, by broadening maritime partnerships and developing emerging norms.

Third, the article turns to offer a roadmap of the most important international maritime security treaties, agreements, and partnerships. These treaties and agreements include the 1982 Law of the Sea Convention (UNCLOS), which entered into force in 1994 and is the umbrella framework for international law in the maritime domain, as well as such post-9/11 updates to older agreements as the 1948 Convention on the International Maritime Organization (IMO) and recent revisions to the 1974 Safety of Life at Sea (SOLAS) Convention. Furthermore, the authorities contained in the 1988 Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation and especially the 2005 protocols thereto, and even the applicability of enforcement action in the maritime domain under Chapter VII of the United Nations Charter by the Security Council, have all been expanded in recent years. These and other agreements are creating a network of complementary and interlocking legal and policy authorities that form the basis for the new maritime order.