Law, Force and Diplomacy at Sea (Routledge Revivals)

Ken Booth

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317669845
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Treaties
• Index: Politics & International Relations

Law, Force and Diplomacy at Sea, first published in 1985, is one of the few comprehensive treatments on the subject from a strategic perspective. It offers a detailed strategic analysis of the background and outcome of the Third UN Conference on the Law of the Sea, and its naval implications.

The interplay between the interest of the naval powers in freedom of navigation and the interest of coastal states in control provides the setting for the strategic problems. The sea is taking on more properties of the land: it is becoming 'territorialised', and this is presenting fresh challenges and opportunities to which navies and their national governments have to respond.

This study is designed for students of naval strategy, for international lawyers and for students of international affairs who wish to think about the important security questions in the maritime environment.

PART ONE

The Context

1

Between Law and War: The Problem

Naval strategy and the law of the sea have always been connected. But never has the character of the relationship, or its implications, been as complex as it promises to be in the years and decades ahead. International politics have entered, many of us believe, an era of manifold interaction and multicrisis, in which global problems and national assertiveness threaten to rip the fabric of order. Struggle will be the norm and some states will collapse under the strain. In such a setting the variables and issues which are the stuff of international politics promise to be more complicated and confused than ever before. This will be the case in maritime affairs, as elsewhere, and it is against these unsettled and unsettling prospects that speculation must take place about the future relationship between the changing law of the sea and the changing character of naval strategy.

The Neglected Military Dimension

Through the six years of preparation,¹ eight years of negotiation and eleven sessions which led up to the signing and in some cases the non-signing of the UN Convention On The Law Of The Sea at Montego Bay, Jamaica, on 10 December 1982, the public discussion of the changing law of the sea was sometimes akin to watching Hamlet without the Prince. The naval factor was crucial to the positions of some states, but it was not at centre stage – or did not seem to be. To the superficial observer, an essential part of the plot seemed to be missing. It has therefore been entirely appropriate to classify the military dimension of the changing law of the sea as a ‘neglected issue’.²

The apparent neglect of the military dimension in the public deliberations of UNCLOS III should be no surprise to close observers of the United Nations. On-stage performances in that organization often fail to hold up a mirror to the real world of affairs. The United Nations has some of the characteristics of a church, as well as all the characteristics of a debating chamber. The ritual incantations of this peculiar but indispensable forum are usually most evident when its members deal with disarmament. Consequently, it would have been difficult for UNCLOS III to have completely escaped the organization’s normal habits. As a result, UNCLOS III seemed to treat military considerations rather like Victorians in Britain treated sex, that is, as ‘an inexplicable incursion which must occasionally be indulged, but which should always be ignored’.³

The fact that the naval dimension did not seem to play its full part in UNCLOS III does not mean that everybody concerned thought the matter to be unimportant. Such an impression would be mistaken. It should not be forgotten that while reticent Victorian patriarchs might have ignored the subject of sex in the drawing room, elsewhere they took the opportunity to father many offspring. Similarly, while the naval dimension of the changing law of the sea was generally neglected in public UN forums, the subject did receive appropriate attention from naval establishments, and particularly those of the traditional naval powers.⁴ Through the 1970s the changing law of the sea was of some strategic concern to all those governments with an interest in deploying warships at some distance from their own coastlines.

There was therefore a ‘backroom’ quality to the diplomatic treatment of the military dimension of the changing law of the sea. But the subject was neglected in another sense by those groups which in the 1970s wrote at greatest length about the law of the sea, namely, international lawyers and those who might be called politico-ecologists. The neglect of these groups took the form of neglectful analysis. The politico-ecologists rejected thinking in military terms, or tried to cope with complex reality by reducing it to a few simple propositions and moral standpoints. As a result, nobody much listened to them: this was sometimes a pity. Among the few international lawyers who devoted time to thinking as opposed simply to talking about military strategy, some were decidely conservative, if not hawkish. As a result, they tended to gain the ear of officials: this was not always undesirable.

Despite the saturation of the market-place of ideas on general law of the sea issues, there is still a need for a comprehensive analysis of its military dimension, particularly if it is informed by strategic rather than legalistic or idealistic thinking, and if at the same time it goes beyond the generally narrow confines of most writing about the subject. Since the future of the law of the sea still remains to be settled, even after the arrival of the 1982 Convention, this need will remain for some while to come.

Falling between Stools

Strategists and international lawyers usually make strange bedfellows. Exponents in law and in the application of reason over power do not easily snuggle up to brokers in disorder and international conflict. There is a mutual coolness. Consequently, the issues which lie between them usually fail to get the attention they deserve.

In areas where strategists and international lawyers should have overlapping interests, such as the military implications of the changing law of the sea, both groups tend either to ignore the other’s area of expertise entirely, or embrace its ‘conventional convictions’ with enthusiasm and some relief, but perhaps with less than full understanding. As a result, issues of mutual interest have not attracted an appropriate standard of commentary. The military implications of the law of the sea is one impoverished subject straddling the boundary between law and strategy, and the laws of war are another. Only the surface of these subjects tends to be examined. This was certainly the case for a long time with the strategic dimensions of the law of the sea. For many years there was little subtle analysis and few new ideas. One still does not need to read much on this subject before one finds oneself digesting the same material. The record suggests that the changing law of the sea is too serious to be left to international lawyers.

Both strategists and international lawyers have suffered from what Anatol Rapoport has called the ‘blindness of involvement’, the tendency of any profession to focus so narrowly on its own area of expertise that it ignores the extent to which knowledge is a seamless web (Rapoport, 1960, ch. 16). In addition to this familiar habit, there is an extra element involved in the present case resulting from the almost quasi-ideological professional antipathy between the relevant professions. Strategists, on the one hand, tend to regard international law as inconsequential in the world of power and force, and they see international lawyers as unworldly pedants. In contrast, international lawyers tend to regard strategists and their subject matter as being not quite respectable, and rather crude. Each profession regards the other’s area of expertise as too specialized or technical, and therefore something best left to the strange experts interested in such matters. Knowledge, in consequence, becomes highly compartmentalized. Specialists rarely read each other’s professional journals, and rarely does specialist speak unto specialist. The drawbacks are obvious. The world is full of problems which are made worse for the want of shared information and ideas.

It is therefore important to resist the tendency to compartmentalization. Instead we should stress the unity of law and strategy. After all, they are not utterly distinct activities. Both the law of the sea and naval strategy have their roots in and are concerned with the national interests of states in using the oceans in desired ways, and in preventing their being used in an adverse fashion. Both areas of expertise seek to cope with problems which arise in the international market-place of power and influence. In short, both law and war are continuations of politics by other means.

In recent years talking about the law of the sea has become one of those growth industries so characteristic of modern academic life. At first such industries flourish in response to events in the world of affairs. After a time the industry often develops a momentum of its own, and the relevent specialists talk largely to themselves. Writing and talking tends to expand to fill the time which the experts have to develop their ideas, which over the prolonged history of UNCLOS III has been a great deal. Despite this, the military dimension of the law of the sea has nevertheless remained neglected. In part this was a reflection of the proclivities of the law of the sea ‘community’ and the distractions of naval establishments.

Through the 1970s, while the law of the sea industry flourished, Western naval strategists were for the most part preoccupied by a variety of more immediate concerns; this prevented them from thinking too much about what many of them saw as the UN talk-shop and its academic baggage-train. For each of the major naval establishments, the technical, political and economic perplexities involved in maintaining or enhancing the utility of naval forces in an increasingly hostile environment meant that law of the sea matters only forced their way in through the cracks. Furthermore, devising strategies for, and then fighting budgetary battles at home also took up an inordinate amount of time, energy and intellectual throw-weight. (It is not usually appreciated that the most troublesome day-to-day worry for naval establishments is not the strategic development of their potential wartime adversary, but the resource-hunger and hence budgetary ambitions of their own national armies and air forces.)

While the major naval establishments were distracted by more pressing concerns, the attention of the law of the sea community was dominated by the commercial and resource problems and prospects relating to the management of the oceans. This emphasis on resource rather than strategic questions accorded with the immediate interests of most of the countries involved in the changing maritime environment. In a broader sense it also seemed to be in line with the belief in the 1970s that international politics should be more concerned with economic, environmental and social issues than with the narrowly military concerns which had traditionally dominated national agendas. In the 1970s security and order came to be understood to rest on more than merely a balance of firepower. Ideas flourished about a ‘North–South dialogue’ and a ‘New International Economic Order’. But at the start of the 1980s the perspectives of many observers changed almost overnight. Realism came back into fashion. For the industrialized world immediate concerns about national economic stability elbowed out ideas about a new international economic order, and traditonal military anxieties rose to the top of many national agendas. For some, including the United States of Ronald Reagan and the Britain of Margaret Thatcher, this meant that narrower ‘defence’ problems replaced wider ‘security’ issues – a change which had loud echoes in the law of the sea negotiations.

In the relatively stable 1970s it was appropriate that military concerns were low on the agenda for many states: but in the more complex 1980s, when feelings about international insecurity have intensified dramatically, it is equally appropriate that military concerns are given more attention. Several countries see themselves at a strategic crossroads. Even so, the strategic problems of most countries are not primarily naval, since few have the capability or will to use warships at great distances from their own shores. Consequently, to date, their interest in the development of the law of the sea has been affected more by economic than by military considerations. So far, defence policy has not been a dominant factor in the national policies of most countries towards the law of the sea: but for a fistful of the most powerful states, strategy has been a major determinant, and this will remain so for the foreseeable future.

While naval strategy has not been the determining factor in the maritime policies of most countries, the law of the sea has not been a major determinant in the evolution of naval strategy. Naval strategy has been and will be shaped by threat perceptions, economic considerations and technological innovations rather than by changes in the legal regime at sea. Consequently we would expect naval strategy to change in the years ahead regardless of whether and how the legal regime at sea develops. Naval strategy cannot stand still, and remain effective. It has always to adjust to the material and psychological ‘realities’ of its time. That said, it is evident that developments in the law of the sea will affect the course of future naval strategy, though in the medium term – say, twenty years – it will be a matter of fine tuning rather than basic change. No international legal regime at sea which is likely in that time-span will fundamentally affect the exercise of naval power, though it will later be argued that this will not necessarily be the case thereafter. For the immediate future naval strategy can be conceived as a canoe being propelled downstream by an irresistible current. Developments in the law of the sea represent the paddle. The canoe has to ‘go’ with the current (the technical, political and economic changes) but the paddle will enable it to veer marginally to one side or the other, as usefully and successfully as the sense and strength of the occupants permit. Good navigation depends upon the judicious alignment of canoe, paddle and current, just as an effective policy depends upon the judicious alignment of strategy, tactics and the flow of events.

Approaches and Assumptions

From these introductory remarks, it should be evident that the problem we face is a complex one. Consequently, in thinking about such a diverse and unsettled set of interrelationships as those involved in the future military uses of the sea, it is sensible to avoid highly pinpointed prediction. Here, as elsewhere in international relations, any attempt to produce accurate prediction for more than a short time ahead (the time will vary with the subject matter) is an activity which cannot be taken seriously. The aim in this study is therefore modest. Instead of offering pin-pointed prediction, it is exercise in conjecture or speculation (Knorr and Morgenstern, 1968); it attempts to think ahead with what relevant evidence is available in order to identify types of legal and strategic developments and interrelationships which might arise out of likely trends in the maritime environment.

Confidence in the unpredictability of the future is entirely justified by the nature of the subject matter. Strategic doctrines that have been thought ‘timeless’ one year have dropped out of sight a few years later, and in a throwaway era of rapid research and development, military technology is often obsolete before the first rust-spot appears on the bodywork. Ten years can be a long time in international politics. In the 1970s, for example, some national attitudes on law of the sea matters changed almost overnight, as with the Afro-Asian ‘discovery’ of the sea or the rapid switch of attitude by the traditional maritime powers on the EEZ concept. Uncertainty about the future is further compounded by the fact that the outcome of several international conflicts, including some with a maritime dimension, is dependent upon the impact of the ‘contingent and unforeseen’, and on the dynamic interaction of various unpredictable developments. The maritime environment is an uncertain medium in more ways than one, and any attempt to make precise predictions is not only likely to turn out a failure, but is also likely to be dangerous or wasteful or both if specific policy decisions are taken on the basis of those predictions.

In addition to rejecting highly pin-pointed prediction, the student of this subject should also recognize that it is less meaningful than ever to conceive ‘naval strategy’ as a discrete segment of military affairs. Accordingly, in the discussion which follows it is to be understood that naval strategy no longer simply means warships. Not only is it increasingly important to stress the interconnectedness of land, sea and air forces, but more than ever ‘naval strategy’ has come to be concerned with the projection of military power or force against the shore. The idea that warships exist simply to fight warships has had its day, and the concept of naval strategy has had to expand to meet this change. Our concern is with the use of the sea in so far as it has military implications. These will mainly be ‘naval’, but by no means exclusively so.

Naval strategists, like other strategists, have a long tradition of being incurious about other nations (Booth, 1979a). Because of this, they have a poor record of being able to see how their own behaviour and ideas have appeared to others, and they have a poor record when it comes to understanding the hopes and fears of other nations. This in part explains why threat analysis and strategic forecasting have generally been done so badly. The profound and misleading ethnocentrism which characterizes much thinking about international relations extends to the issue of the law of the sea. It means, for example, that the literature which exists on the military implications of the law of the sea is dominated by Western and especially US hopes and fear. The present study hopes to suggest some different perspectives, and at least indicate possible implications for the navies of small and medium powers, as well as those of the superpowers and the other major powers. Unfortunately, however, it must be admitted that there is relatively little material available to help detailed speculation about these other navies. It is therefore hoped that the lacuna of this study will provoke and encourage area specialists to do the necessary work on regional naval developments. In a world of better communications (but not necessarily better communication), increased interaction (but not necessarily better understanding of it), and with the rise of new regional powers, it is more important than ever to have a global perspective when contemplating strategic developments.

While the variety of national outlooks which focus on the subject matter of this study is recognized, the main emphasis throughout will be on the problems and prospects for the major naval powers (‘naval powers’ being loosely defined through this book as those with an interest in deploying warships at some distance from their own coastlines, and not simply in contiguous waters). The emphasis on the major naval powers is easily justified since the major naval powers will be most affected by, and therefore have most interest in, the strategic implications of the changing law of the sea. Consequently this book will be of most interest to readers in North America and Great Britain.

It is widely expected that the 1980s and beyond will be a grim period in international affairs. Interdependence and violence will rub together closely, and produce an era of multicrisis. War and intervention seem to be back in season, and this must form part of the backdrop to any contemplation of the future of strategy. However, although this book is concerned with the threat and use of force, there will be little about nuclear war, the ultimate use of force. Nuclear war is possible, and in the long term even probable, but it cannot be regarded as a continuation of politics in any commonsense meaning of Clausewitz’s famous aphorism: any war which is as destructive as nuclear war promises to be can only be regarded as a failure of politics and the antithesis of reasonable strategic thinking. Because this book is about likely rather than unlikely contingencies, and is about strategy rather than the abnegation ...