Notes to the New CNO Series

By James Kraska

The U.S. Navy must rebuild its capacity to shape and influence international maritime law. Since the first Code of Naval Warfare was published at the U.S. Naval War College in 1900 through the negotiations of the Law of the Sea Convention in the 1970s, the U.S. Navy was a thought leader in establishing and upholding the global rules of the game, producing influential scholarship, participating in international meetings alongside the Department of State, and engaging with counterparts around the world. In 1979, the United States launched the Freedom of Navigation program to ensure unimpeded global access to the world’s oceans.

These efforts have diminished greatly as both the aptitude or expertise of naval officers to articulate a vision for the legal order of the oceans and the bandwidth of the Navy to influence maritime law have declined in recent decades. The number of experts has dwindled from formerly dozens throughout the Navy and the U.S. government to a handful today. The reasons for this shortfall are manifold: U.S. hubris in thinking that the rules-based order of the oceans it shaped during the Cold War will continue as a matter of its own logic, failure to recognize and respond effectively to opposing views of maritime law from European states, developing countries and China, and since the Clinton Administration, deference to competing priorities like protection of the marine environment and climate change at the expense of naval and operational equities.

The consequences of ignoring naval and defense interests in maritime law are grave, as the rules for operating at sea during peacetime and armed conflict are shaped by other nations, officials, and scholars with different priorities. The Chief of Naval Operations has an opportunity to revitalize the Navy’s expertise and influence in international maritime law. First, mandate the law of the sea and the law of naval warfare are added to the core curriculum of the U.S. Naval War College, the Navy’s “home of thought.” In decades past, U.S. and international students received one week of instruction in all areas of international law, now it is three hours. Actively teaching maritime law throughout the force must be a priority.

Second, engage purposefully in the legal preparation of the battlespace by engaging in the numerous bilateral and multilateral negotiations on maritime law to ensure new rules do not restrain naval commanders in peace and war. The International Committee of the Red Cross, for example, which is heavily subsidized by the United States, is working to restrict the use of autonomous warships during armed conflict, the very same platforms envisioned for the future force.

Third, rebuild maritime law expertise and train the force in the law of the sea and the law of naval warfare. Much of our collective experience in international law is from the ground wars in Iraq and Afghanistan, not operations at sea. We should refocus on the laws that apply throughout the global commons – sea, air, and space – that surround our Homeland and connects us to allies in Asia and Europe.

James Kraska is Charles H. Stockton Chair of International Maritime Law and Department Chair of the Stockton Center for International Law at the U.S. Naval War College and Visiting Professor of Law and John Harvey Gregory Lecturer on World Organization at Harvard Law School, where he teaches a popular course on the International Law of the Sea. Professor Kraska served more than 20 years as a U.S. Navy officer and judge advocate, as a legal adviser with U.S. Seventh Fleet and U.S. Pacific Command task forces and in the Pentagon, where he was Director of International Negotiations Division and Oceans Law and Policy Adviser on the Joint Staff. His forthcoming book, Marine Technology, Ocean Governance, and the Law of the Sea (with Khanssa Lagdami), is being published by Cambridge University Press. He is co-author (with “Pete” Pedrozo) of Disruptive Technology and the Law of Naval Warfare‘ (Oxford University Press).

Featured Image: A cargo ship transiting San Francisco bay (Photo via Wikimedia Commons)