Maritime Law

“Legal Finish” in Maritime Security is Too Often Lacking a Legal Start

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By Dr. Ian Ralby

“Legal Finish” is a term that has become commonplace in maritime security circles around the world. It refers to the process of putting a maritime law enforcement action through a legal mechanism – whether a prosecution, administrative proceeding or other adjudication – that formally assesses offenses under national law and where appropriate, penalizes perpetrators. Legal finish has rightly been identified as crucial because merely disrupting illicit activities does little to deter future criminal conduct; only enforcing legal consequences changes the risk-reward calculus for nefarious actors. The problem, however, is that with all the focus on the legal finish, many states, international organizations, and “capacity building” partners have forgotten the legal start. 

Maritime law enforcement is not a linear process, it is a cycle that starts and ends with the law. Recognizing its recursive nature is essential to establishing clear, consistent, and effective law enforcement and security operations.

Figure 1. The Maritime Security Cycle.

To begin with, the law is the framework by which the maritime domain is assessed. Armed with the legal framework, maritime watchstanders can monitor and surveil the maritime domain, looking for any anomalies. Once they find those anomalies, however, a rigorous analytical process is needed to ensure that information is turned into understanding –about both what is happening on the water and what can be done about it. That analytical process, therefore, relies heavily on understanding the law. The key questions are:

  1. Is the anomaly desirable or undesirable? (Not all anomalies are undesirable).
  2. If it is undesirable, is it legal or illegal? (Not all undesirable matters have been addressed by the law).
  3. If it is illegal, is it actionable or not? (Does the state have the authority and jurisdiction to do something about it?)
  4. If it is actionable, is it achievable or not? (Does the state have the right physical capacity and capability to interdict the matter?)
  5. Even if it is undesirable, illegal, actionable, and achievable, would interdicting the matter be wise? (Is it worth the fuel, is it worth the risk, could there be geopolitical blowback, etc.?)

If the answer to any of these questions is “no,” then there should still be consideration of one additional question: “Is there anything else that could be done?” Watching the situation further, notifying other agencies, issuing a notice to mariners, or contacting neighboring states are all on the long list of other things that might be worth doing, short of pursuing an interdiction.

If the analysis suggests that an on-the-water operation might be warranted, then the analysts must have access to some sort of mechanism for sharing information with the proper decision-makers. Whether it is operative within an agency or across agencies, that cooperative mechanism must be repeatable (so there is consistency in how things happen), documentable (so there is a chance to learn from both successes and mistakes), and structured in such a manner that adequate information gets to the appropriate decision makers efficiently. 

Once decision-makers have information about an anomaly that is undesirable, illegal, actionable, achievable, and worth pursuing, it is up to them to decide whether to conduct an operation. If they choose to do so, the operation must be planned and executed in a manner consistent with the law. That requires not only a clear understanding of the authorities that the respective agencies have for law enforcement, and the limitation of enforcement jurisdiction in the maritime domain, but also a sufficient grasp of all the elements of an offense to be able to identify and document those elements at sea. The collection and preservation of evidence in the maritime space is crucial, especially since revisiting a “crime scene” at sea is rarely, if ever possible. Thus, understanding the law at the operational stage – both in the sense of what the law enforcement officers do and concerning what they notice and record – is vital to legal finish. But that understanding is usually in the hands of completely different people than those responsible for the legal finish. 

Importantly, arrests of people do not happen at sea. While it is possible to arrest a vessel, the suspects themselves are detained at sea and brought back to shore. Only once on shore are they handed over to land-based authorities who, on reviewing whatever evidence has been collected, then conduct an arrest or initiate an administrative proceeding. An arrest would then trigger the start of a prosecution, adjudication, and, if successful, penalization of the case. An administrative proceeding would similarly assess some sort of penalty. In either case – both considered to be “legal finish” – the personnel responsible are almost always different than the ones involved in every prior step of the process. All too often, however, most of the support, training, capacity building, attention, and funding has gone to this final stage, while the role of the law and legal advisors has been ignored in all the others.

Legal advisors are rarely, if ever, part of the process of monitoring and surveilling the maritime domain, analyzing anomalies, sharing information, planning operations, or even executing operations. They are sometimes – but rarely – consulted regarding evidence collection and preservation. Usually, the first time lawyers are brought into the maritime security cycle is for the legal finish, and it is left to them to kick-save any legal mistake or oversight that has been made at any previous point in the cycle. There is only so much, however, that can be fixed at the end of the process. Additionally, there may have been operational options that would have been more impactful if legal consultations had occurred earlier. Maritime law is strange and it affords some rights and opportunities that are sometimes hard to believe. Operators may miss out on more effective operations due to a lack of legal input at that stage.

Because maritime law enforcement is a cycle rather than a linear process, it does not end if one of the steps breaks down or even if all of them are successful through to prosecution. The final step is to revisit the starting point – the law – to ensure that it is fit for purpose. Law has two main functions: to constrain bad action and to enable good. If the law does not address an undesirable activity occurring in the maritime domain, it should be expanded or amended. If that law is not creating space for “good,” economically productive, and desirable activities, it should also be amended. While maritime law enforcement focuses on “the bad,” governing the maritime domain requires recognizing a balance between the two. Only stamping out the bad is not possible; there must be ample opportunities for good, lawful activities as well – especially when they are vital to a state’s economic security. 

To be most effective, therefore, in both promoting good activities and stopping bad ones, the law must be seen as a tool or an asset for law enforcement – much the way a ship, radar system, or even a weapon would be seen. To be as impactful as possible, the law must be calibrated for the security operating environment. But even perfect law will be virtually worthless unless those who understand it and know how to use it are involved from the start of the maritime security cycle. Relegating the law to the legal finish phase betrays a lack of appreciation for the centrality of the law to the entire cycle, and sets up the state for failure.

Legal finish is incredibly important. But so is the legal start. If operational lawyers are not recognized as playing a vital role in all the phases leading up to the handover to land-based authorities, the prospects of both effective operations and successful legal finish are being undermined. So, for all the good attention that has been paid to prosecutors and judges, as well as to the work of coast guard and navy lawyers in support of those prosecutions or administrative proceedings, much more must be done to back up and start integrating sound legal advice throughout the maritime security cycle. While this can be a challenge, as operational cultures tend to not be welcoming to legal advisors, it is not about disrupting missions and operations with annoying legal points. It is about enhancing missions and operations by safeguarding the likelihood of their success. As simple as it sounds, we must not lose sight of the reality that legal finish needs a legal start.

Dr. Ian Ralby is a recognized expert in maritime and resource security. He has worked in more than 95 countries around the world, often assisting them with developing their maritime domain awareness capacity. He holds a JD from William & Mary and a PhD from the University of Cambridge. 

Featured Image: A commercial ship passes by San Francisco. (Photo via Wikimedia Commons)

Strategy

A Maritime Deterrence Strategy: The Key to an Overarching Navy Warfighting Concept

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By James Wirtz

As great power competition becomes an increasingly grim reality, senior officers are coming to terms with the end of a globally permissive, power projection environment. Strategists and planners can no longer assume that limited naval forces in theater can transit to some crisis epicenter and influence events by threatening or projecting power ashore with little interference.1 While this operational reality has been in the works for some time, its impact is only now reverberating across various Navy communities, raising the specter of profound disruption of long-standing procedures and the obsolescence of familiar capabilities.

Several emerging warfighting concepts also shape today’s Navy operations, adding further complexity. The quest to develop distributed maritime operations – that is, to disperse long-range fires, sensors, communications, and command and control nodes across platforms separated by significant distances – is an ongoing project intended to defeat opposing anti-access and area denial capabilities.2 The “One Atlantic” initiative, by contrast, is intended to transcend the command and control seams that exist between U.S. Northern Command and U.S. European Command to increase de facto availability of maritime assets for European contingencies.3 In the Pacific, non-traditional sea denial capabilities, so-called “hellscape” swarms of autonomous platforms, have become a centerpiece of the U.S. Pacific Fleet’s plan to defeat a cross-strait assault on the Island of Taiwan.4

This operational churn is a healthy reaction to the waves of techno-strategic change confronting the Navy. Nevertheless, it complicates efforts for Navy leaders to describe the maritime force’s outsized contribution to the Joint Force and today’s Joint Warfighting Concept. These competing operational initiatives and maritime concepts, however, are primarily internal Navy matters – the Joint Force is more concerned with the operational effects and strategic impact the Navy provides rather than the specific processes behind them. Additionally, since these operational concepts focus on warfighting, they fail to address the movement of U.S. defense strategy towards a more robust deterrent posture.

Eventually, the Navy will develop a more pervasive operational concept that reflects emergent techno-strategic realities. Until then, it needs to identify how the Navy of today and tomorrow will help deter great power war. The Navy needs to explain to a broader audience what it is trying to do – not how it is trying to do it. The Navy must identify its contribution to the emerging U.S. deterrent strategy. Synchronization of competing warfighting concepts can then follow in strategy’s wake.

The Navy’s Contribution to Deterrence Today

How does the Navy contribute to the U.S. deterrence posture from both a regional and global standpoint? Although the Biden administration introduced the notion of “integrated deterrence” into the strategic lexicon in 2022, Navy officials, academics, and defense observers have been relatively silent about the Navy’s contribution to deterrence in today’s techno-strategic setting.5 The integrated deterrence concept is simple enough: “In a world of multiple adversaries, emerging technologies, new domains of warfare, and globalized economic ties, deterrence requires a broader approach than traditional military methods alone.”

The new concept addresses these developments by calling for a whole-of-government, whole-of-alliance strategy that utilizes both non-kinetic and kinetic deterrent threats and capabilities. Integrated deterrence is ambitious; there is no formula to integrate the way these domains, agencies, and allies contribute to deterrence.6 Although the policy and academic response to the notion of integrated deterrence has been modest, virtually no one participating in this discussion has deemed it necessary to describe the Navy’s contribution to national security as strategic, or the role the Navy would play in an integrated deterrence strategy. This last observation should disturb naval strategists.

The Navy can make two key contributions to deterrence that signal to friend and foe alike the U.S. capability and willingness to make good on its diplomatic and military commitments. These contributions to deterrence take the form of a bi-modal deterrent strategy and concept of operations that draws a distinction between sea control and sea denial forces.

Sea Control

Across the conflict spectrum, the Navy’s sea control capability signals that the United States is ready to uphold its deterrence policies and to assure allies of the U.S. commitment to their defense. Come what may, the U.S. Navy will maintain global communications with allies and partners, preventing the isolation of key friends, countering coercion, and facilitating the movement of forces and materials to conflict regions. James H. Bergeron, for instance, describes how sea control plays an important role in bolstering NATO’s deterrent posture:

“The maritime dimension of NATO is a spectrum and continuum; a strategic unity that links the Sea Lines of Communication (SLOCS) across the Atlantic, the North Atlantic and GIUK Gap, the Norwegian Sea, the Arctic passages to the Pole, the Mediterranean, and the Black Sea. But also, beyond that, to the global seas and oceans that feed our trade and commerce . . .. the seas matter tactically due to the potential threat of sea-based missile attack on Allied ships or indeed land targets. It matters operationally in the ability of an adversary to disrupt SLOCs between North America and Europe and within the NATO Area of Responsibility. And it matters politically and strategically as the symbol of our essential connectedness as an Alliance.”7

America has global deterrent commitments, and its friends and allies are near great powers that are increasingly capable and belligerent. Sea control demonstrates that the United States will always be able to influence worldwide events and that opponents will not succeed in efforts to isolate allies and partners. Sea control is the glue that binds America’s alliances together.

Sea Denial

The Navy’s sea denial capability, which exists both in a day-alert and, if necessary, a generated-alert status, signals to all concerned that the United States is unwilling to cede the opening move in a nascent conflict or fait accompli to its adversary. Put simply, the U.S. Navy will always be prepared to disrupt hostile actions, and that the Navy’s response will be geared to the warning time available (whether that is hours, days, or weeks). A ready sea denial capability bolsters deterrence by compelling the adversary to anticipate active resistance, and to assess continuously evolving sea denial capabilities. The ongoing improvement of the sea denial force injects doubts into the opponent’s planning process – one can never be sure if some exquisite operation planned against a specific capability has accounted for the latest innovation. A ready sea denial capability reduces the attractiveness of attempting a fait accompli, which by definition would shift the onus of escalation onto Washington. Sea denial suggests that war will commence when aggression begins, not weeks or months later in the form of a long attritional campaign to return to the status quo ante bellum.

Sea denial deters aggression by complicating opponents’ planning, by placing the onus for initiating a significant conflict on the opponent, and by holding the line until the full weight of the Joint Force can be brought to bear in battle. A ready sea denial capability reduces the likelihood that an opponent might come to believe that U.S. officials might choose not to respond to some fait accompli – sea denial suggests to the opponent that there is no way to sidestep an active opponent, achieve limited objectives, and plan for the best.

A Bi-modal Maritime Deterrent

The concept of a bi-modal deterrent strategy not only aligns maritime strategy with today’s political demands, it also suggests a way to organize the operational and tactical churn within the Navy. When placed within the context of a maritime deterrent strategy, the Navy’s operational concepts no longer appear to be competitive but more complementary. The Hellscape initiative contributes to deterrence by providing sea denial, while the One Atlantic initiative bolsters the North Atlantic Treaty Organization and deterrence in Europe by increasing Atlantic sea control and even force projection onto the continent of Europe. 

Distributed maritime operations (DMO) could be seen as increasing both sea denial and sea control capabilities by harnessing the offensive capability of far-flung forces, while minimizing their vulnerability to hostile action. Most importantly, a maritime deterrent strategy that emphasizes bi-modal operations gives renewed emphasis to the Navy’s contribution to strategic deterrence and the role of the Joint Force in deterring aggression. This is the primary techno-strategic change that is unsettling Navy planners today, that is, the shift from globally permissive, power projection environment that emphasized warfighting to a world where deterrence dominates U.S. defense policy. 

Conclusion

The bi-modal, sea denial and sea control concept is not new. Wayne Hughes described the idea in a seminal article published in the Naval War College Review in 2007.8 Today, a bi-modal fleet is being advanced as an operational concept that would allow the Navy to use new technologies to deal with the proliferation of anti-access and area denial threats, while putting the existing Fleet to good use to achieve sea control.9 A maritime deterrent strategy, particularly one suited to today’s great power competition, can leverage the bi-modal concept to synchronize the many ideas and capabilities that are emerging in response to the changing techno-strategic environment. The proliferation of these innovations is a positive sign. It demonstrates that strategists, planners, and developers are searching for new ways to incorporate new capabilities and ideas to deal with increasingly significant threats. Nevertheless, this burst of creativity requires an overarching strategy to identify objectives and how new and existing capabilities might be used to obtain them. A Maritime Deterrent Strategy that adapts a bi-modal operational concept of operations would serve as a useful blueprint to synchronize the Navy’s response to today’s security setting.10

James J. Wirtz is a professor at the Naval Postgraduate School, Monterey, CA.

References

[1] James J. Wirtz, Jeffrey E. Kline, and James A. Russell, “A Maritime Conversation with America,” Orbis, Vol. 66, Iss. 2, 2022, pp. 166-183.

[2] “Report to Congress on Navy Distributed Maritime Operations,” Congressional Research Service, 3 July 2024. https://crsreports.congress.gov/product/pdf/download/IF/IF12599/IF12599.pdf/

[3] Meagan Eckstein, “Fleet forces chief wants to make a smaller Navy more lethal,” Defense News, 3 May 2024. https://www.defensenews.com/naval/2023/05/03/fleet-forces-chief-wants-to-make-a-smaller-navy-more-lethal/

[4] John Grady, “’Hellscape’ Swarms Could be a Cost-Effective Taiwan Defense, Report Says,” USNI News, 1 July 2024. https://news.usni.org/2024/07/01/hellscape-swarms-could-be-as-cost-effective-taiwan-defense-says-report

[5] See The White House, National Security Strategy (Washington: 12 October 2022), 8-November-Combined-PDF-for-Upload.pdf (whitehouse.gov); and 2022 Nuclear Posture Review, Annex 1 to 2022 US National Defense Strategy (Washington: Office of the Secretary of Defense, 27 October 2022), https://apps.dtic.mil/sti/trecms/pdf/AD1183514.pdf, 

[6] James J. Wirtz and Jeffrey A. Larsen, “Wanted: A Strategy to Integrate Deterrence,” Defense and Security Analysis, pp. 1-18. https://doi.org/10.1080/14751798.2024.2352943

[7] James H. Bergeron, “Reflecting on One Year of War: A Transformational Year in Maritime NATO,” Center for Maritime Strategy, February 17, 2023. https://centerformaritimestrategy.org/publications/reflecting-on-one-year-of-war-a-transformational-year-in-maritime-nato/

[8] Wayne P. Hughes, “A Bi-Modal Force for the National Maritime Strategy,” Naval War College Review, Vol. 60: No. 2, Article 5, 2007. https://digital-commons.usnwc.edu/nwc-review/vol60/iss2/5

[9] James J. Wirtz, Jeffrey E. Kline and James A. Russell, The U.S. Navy and the Rise of Great Power Competition: Looking Beyond the Western Pacific (London: Routledge, 2024), pp. 129-143.

[10] The opinions expressed here are the author’s alone and do not reflect the position of any government, government agency, commercial firm, or other organization.

Featured Image: SASEBO, JAPAN (Sept. 19, 2024) Amphibious transport dock ship USS San Diego (LPD 22) arrives pierside at Commander Fleet Activities Sasebo as part of a scheduled home port shift to Sasebo, Japan. (U.S. Navy photo by Mass Communication Specialist Seaman Darian Lord)

Podcast

Sea Control 550 – Six Marines Talk Force Design 2030

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By Walker Mills

CIMSEC Co-Host Walker Mills discusses Force Design 2030 with Travis Reese, Ian Brown, Zach Ota, Travis Hord, Leo Spaeder, and Brian Strom, who are all active or retired Marines in this wide-ranging conversation. They published an article “Trends in Maritime Challenges Indicate that Force Design 2030 is the Proper Path,” for War on the Rocks in January 2024.

Download Sea Control 550 – Six Marines Talk Force Design 2030

Links

1. Travis Reese, Ian Brown, Zach Ota, Travis Hord, Leo Spaeder, and Brian Strom “Trends in Maritime Challenges Indicate Force Design 2030 is the Proper Path,” War on the Rocks, January 29, 2024. 

2. “Force Design 2030,” Headquarters US Marine Corps, March 2020.

3. “Force Design 2030: Annual Update,” Headquarters US Marine Corps, June 2023.

C. Travis Reese retired from the Marine Corps after nearly 21 years of service. While on active duty he served in a variety of billets including tours in capabilities development, future scenario design, and institutional strategy. Mr. Reese is now the director of wargaming and net assessment for Troika Solutions in Reston, VA.

Ian T. Brown recently retired from the Marine Corps after 20 years of service. He frequently writes (and wargames) on modern and future war concepts. Ian currently works as a wargame analyst in the private sector.

Zach Ota is an infantry officer and an international affairs officer in the Marine Corps. LtCol Ota is also a non-resident fellow at the Brute Krulak Center for Innovation and Future Warfare who advances issues involving maritime security, alliances and partnerships, and military history in the Pacific. LtCol Ota currently serves as a future operations planner at U.S. Pacific Fleet and U.S. Marine Corps Forces, Pacific.

Travis Hord is an infantry officer. LtCol Hord contributed to future concept and capability development while assigned as a planner at the Marine Corps Warfighting Laboratory.

Leo Spaeder is the commanding officer of Combat Logistics Battalion 12 in Okinawa, Japan and a non-resident fellow at Marine Corps University’s Brute Krulak Center for Innovation & Future Warfare. In previous assignments, LtCol Spaeder participated in scenario design and capability development related to Force Design 2030. 

Brian Strom is an intelligence officer in the Marine Corps. Major Strom currently serves as the Marine Corps Forces Pacific Target Intelligence Officer and as part of the U.S. Pacific Fleet staff.

Walker Mills is Co-Host of the Sea Control podcast and an active-duty Marine. Contact the Sea Control team at Seacontrol@cimsec.org.

This episode was edited and produced by Andrew Frame.

Call for Articles

Call for Articles: Short Story Fiction

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Stories Due: November 18, 2024
Week Dates: December 2-6, 2024
Story Length: 1,5000-3,000 Words
Submit to: Content@cimsec.org

By Dmitry Filipoff

Fiction has long served as a powerful means for exploring hypotheticals and envisioning alternatives. In annual tradition, CIMSEC will be running a series of short stories looking to explore the nature of conflict and competition through fiction. 

Authors can explore the future and flesh out concepts for how potential clashes and warfighting challenges may play out. They can probe the past, and use historical fiction to explore alternative histories. Authors are invited to craft gripping narratives that illuminate the unforeseen and carve realistic detail into visions of future conflict.

Send all submissions to Content@cimsec.org.

For past CIMSEC Fiction Weeks, feel free to view our 2023, 2022, 2021, and 2020 fiction lineups.

Dmitry Filipoff is CIMSEC’s Director of Online Content. Contact him at Content@cimsec.org.

Featured Image: Futuristic warship art generated by Midjourney AI. 

Fostering the Discussion on Securing the Seas.