International Law Studies
Volume 83
Global Legal Challenges: Command of the Commons,
Strategic Communications and Natural Disasters
Michael D. Carsten
Editor
Naval War College
Newport, Rhode Island
2007
INTERNATIONAL LAW STUDIES SERIES
PRESIDENT, NAVAL WAR COLLEGE
Rear Admiral Jacob L. Shuford, USN
ACTING PROVOST and ASSOCIATE DEAN OF
ACADEMICS, NAVAL WAR COLLEGE
Professor William R. Spain
DEAN, CENTER FOR NAVAL WARFARE
STUDIES
Professor Robert Rubel
CHAIRMAN, INTERNATIONAL LAW
DEPARTMENT
Professor Dennis L. Mandsager
CHARLES H. STOCKTON CHAIR OF
INTERNATIONAL LAW
Professor Michael N. Schmitt
INTERNATIONAL LAW DEPARTMENT
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International Law Studies
Volume 83
Library of Congress Cataloging-in-Publication Data
Carsten, Michael D.
Global legal challenges : command of the commons, strategic communications,
and natural disasters / Michael D. Carsten.
p. cm. -- (International law studies ; v. 83)
Includes index.
ISBN 978-1-884733-48-2 (hard cover)
1. National security— Law and legislation. 2. Intelligence service— Law and legisla-
tion. 3. Terrorism. 4. Disaster relief— International cooperation. 5. Globalization.
I. Title.
K3278.C37 2008
343'.01-dc22
2007048127
Table of Contents
Global Legal Challenges: Command of the Commons,
Strategic Communications and Natural Disasters
Foreword ix
Introduction xi
Preface
Jane Gilliland Dalton xiii
Part I: Keynote Address
I Domestic Security and Maintenance of Liberty: Striking the Balance
PaulMcHale 3
Part II: Command of the Commons — The US Perspective
II Command of the Commons Boasts: An Invitation to Lawfare?
Craig H. Allen 21
III Global Commons and the Role for Intelligence
Lowell E. Jacoby 51
IV Maritime Domain Awareness: The Key to Maritime Security
Joseph L. Nimmich and Dana A. Goward 57
Part III: Command of the Commons — The International Perspective
V Threats from the Global Commons: Problems of Jurisdiction and
Enforcement
StuartKaye 69
VI Preemption by Armed Force of Trans-boundary Terrorist Threats:
The Russian Perspective
BakhtiyarR. Tuzmukhamedov 83
VII Security in the Strait of Malacca and the Regional Maritime Security
Initiative: Responses to the US Proposal
Yann-huei Song 97
VIII Actual and Future Threats Emanating from the Commons: A Chilean
Approach
Francisca Moller and Jorge Balaresque 157
Part IV: Public Perception and the Law
IX Piercing the Fog: National Security, Media and the Government
Harvey Rishikof 177
X The Military and the Media in Perspective: Finding the Necessary
Balance
James P. Terry 187
XI National Security, the Law and the Media: Shaping
Public Perceptions
Linda Robinson 197
PartV: Luncheon Address
XII International Legal Public Diplomacy
John B.Bellinger III 205
PART VI: CHALLENGES OF STRATEGIC COMMUNICATIONS
XIII Strategic Communications and the Decline of US Soft Power
GeneE. Bigler 217
XIV Strategic Communications and the Battle of Ideas
MariK.Eder 235
XV Challenges of Strategic Communication
Michael A. Brown 251
VI
Part VII: Global Disasters
XVI Global Disasters: Pakistan's Experience
Ikram ulHaq 257
XVII Australian Defence Force Experience with Non-Government
Organizations in Humanitarian Assistance and Disaster Relief
Operations
Evan Carlin 267
XVIII Disaster Response: Key Legal Issues for US Northern Command
Kurt Johnson 277
XIX The Law of International Disaster Response: Overview and
Ramifications for Military Actors
David Fisher 293
Contributors 321
Index 333
vn
Foreword
The International Law Studies "Blue Book" series was initiated by the Naval
War College in 1901 to publish essays, treatises and articles that contribute
to the broader understanding of international law. This, the eighty- third volume of
the series, contains the proceedings from a scholarly conference entitled Global
Legal Challenges: Command of the Commons, Strategic Communications and Natu-
ral Disasters, hosted here at the Naval War College on June 28-30, 2006.
The conference's mission was to examine legal standards (or lack thereof) applicable
to these challenges and to identify common themes that could guide those responsible for
addressing these challenges in the future. By initiating a dialogue between the responsi-
ble government officials (military and civilian) and the legal personnel who advise
them, the conference developed a number of practical suggestions in the form of les-
sons learned. One striking aspect of these lessons is that, though the panels dealt with
apparently diverse topics, the solutions have many common threads and characteris-
tics. In the truly "global" world in which we live, the challenges must be addressed by
solutions that are equally global, coordinated and consistent across the board.
Renowned international scholars and practitioners, both military and civilian,
representing government, non-government and academic institutions from
throughout the world participated in the event. The conference and this "Blue
Book" were cosponsored by the Lieber Society on the Law of Armed Conflict and
the Roger Williams University School of Law, Bristol, Rhode Island, with generous
support from the Naval War College Foundation and the Israel Yearbook on Human
Rights. The International Law Department of the Center for Naval Warfare
Studies, United States Naval War College, hosted the conference.
On behalf of the Secretary of the Navy, the Chief of Naval Operations, and the
Commandant of the Marine Corps, I extend to all the cosponsors and supporters, the
participants and the contributing authors, our thanks and gratitude for their invalu-
able contributions to this project and to the better understanding of the complex le-
gal issues involved in meeting and responding to future global operational challenges.
JACOB L. SHUFORD
Rear Admiral, US Navy
President, Naval War College
Introduction
The US Naval War College hosted its sixth annual International Law Confer-
ence during June 2006. The purpose of these conferences is to bring together
international scholars and practitioners, military experts and students to examine
legal issues impacting military operations of the day. Commencing with the inau-
gural conference in 2001, the Naval War College's internationally acclaimed Inter-
national Law Studies ("Blue Book") series has been devoted to the conference
subjects. This edition of the "Blue Book" continues that tradition. During 28-30
June, 2006, the Naval War College conducted a conference entitled Global Legal
Challenges: Command of the Commons, Strategic Communications and Natural Di-
sasters. Three main challenges were explored by the conference:
• Threats emanating from the global commons and the need to identify and
counter those threats;
• Combat operations in Afghanistan and Iraq, events that occurred during
those operations and worldwide perceptions of the US role in and responsibility
for those events; and
• Natural disasters of such magnitude international responses were required,
including within the United States of America.
This volume of the International Law Studies series is a compilation of remarks
made during the colloquium and articles which expand upon the thoughts articu-
lated during the colloquium by the authors.
The conference was organized by Professor Jane Dalton, the Naval War Col-
lege's Charles H. Stockton Professor of International Law, and Major Richard
Jaques, US Marine Corps, of the International Law Department. The conference
was cosponsored by the Lieber Society on the Law of Armed Conflict of the Ameri-
can Society of International Law, and was made possible through the support of
the Naval War College Foundation, Roger Williams University School of Law and
the Israel Yearbook on Human Rights. Without the dedicated efforts and support
and assistance of these individuals and organizations the conference would not
have been possible.
I also thank our editorial team, Professor Emeritus Jack Grunawalt and Captain
Ralph Thomas, JAGC, US Navy (Ret.). Their dedication, conscientiousness, and
perseverance were principally responsible for the production of this excellent addi-
tion to the International Law Studies series. Major Mike Carsten, US Marine
Corps, of the International Law Department served as managing editor of this vol-
ume. His dogged perseverance in communicating with contributing authors, mar-
shaling author contributions, packaging the volume, and overseeing the complex
publishing and distribution process also are deserving of special thanks. Without
their efforts, completing this volume would not have been possible.
Often forgotten when it comes time to acknowledge efforts are the personnel re-
sponsible for supervising and executing the expenditure of funds. I thank Colonel
Leo "Chip" Boucher, JA, US Army, of the International Law Department and Bud-
get Analysts Ms. Jamie Price and Ms. Mary Ann Hall for their efforts in managing
and executing the budget for the conference and this volume.
Additionally, special thanks go to Rear Admiral Jacob Shuford, president of
the Naval War College; Dr. James F. Giblin, Jr., the College's provost; and Dr.
Barney Rubel, dean of the Center for Naval Warfare Studies, for their leadership
and support in the planning and conduct of the conference and the publication of
this volume.
The International Law Studies series is published by the Naval War College and
distributed throughout the world to US and international military commands, ac-
ademic institutions and libraries. This publication reflects the Naval War College's
commitment to scholarly discourse and a better understanding of legal issues. The
2006 conference and the publication of this volume of the "Blue Book" continue
that tradition.
DENNIS L. MANDSAGER
Professor of Law & Chairman
International Law Department
xn
Preface
Jane Gilliland Dalton
Though it is early in this twenty-first century, a number of unanticipated,
large-scale events — some man-made, others natural — have brought us
face-to-face with the "global" nature of the world in which we live:
• Threats emanating from the global commons and the need to identify and
counter those threats;
• Combat operations in Afghanistan and Iraq, events that occurred during
those operations and worldwide perceptions of the US role in and responsibility
for those events; and
• Natural disasters of such magnitude that international responses were
required, including within the United States of America.
Though these apparently unconnected events could be viewed in isolation, em-
bedded within each were issues that could not be addressed by a single nation or a
single government agency. The hallmark of these events is the complexity and
global reach of legal, policy and operational issues, and the interrelationships among
them. In developing the theme and identifying the participants for this conference,
Global Legal Challenges: Command of the Commons, Strategic Communications, and
Natural Disasters, hosted at the Naval War College on June 28-30, 2006, the confer-
ence organizers hoped to initiate a dialogue between those who have to meet these
global challenges and the lawyers who advise them. We sought to explore the role
that law plays in shaping policy, how policy influences legal analysis, and how the
interaction of law and policy affect the operational outcomes. The goal was to iden-
tify common themes and lessons for future exploration — to learn from past events
and experiences how better to approach future challenges.
In addition, this conference did not focus primarily on the laws of war, but
rather on legal issues that confront the military commander when engaged in oper-
ations that do not fit the traditional concept of warfighting — protecting the home-
land from threats, whether natural or man-made, in the post-9/11 environment;
ensuring the message one's forces convey through words and deeds is consistent
Preface
with law and policy; and conducting disaster relief operations in a conflicted or in-
secure area, though not necessarily in a war zone.
The recurring theme of the conference, and, thus, this volume of the "Blue
Book" series, is that in an interdependent and complex world of post-9/1 1 global ter-
rorism, neither policymakers nor military commanders can focus only on domestic
or international issues, only on law or policy or operations, only on performing the
mission or communicating the message — rather, they have to accomplish all at
once. They have to interconnect and interact. The challenges are global and com-
plex. The solutions must be sophisticated and nuanced. From the two keynote
speakers and the five panels emerged a number of lessons learned to inform the
debate and to assist in developing solutions for the future.
Competing Interests: Striking the Balance
Assistant Secretary of Defense for Homeland Defense Paul McHale's opening key-
note address captured one of the primary themes that resonated throughout the
three days of the conference — the importance of striking a balance when dealing
with complex issues and competing priorities. In Secretary McHale's case, the bal-
ance is not unlike that America's founding fathers struck between security and lib-
erty. The founding fathers had to guard against creating a system that relied
disproportionately on the military to provide internal security, lest the citizenry's
lack of confidence in civilian law enforcement lead to a voluntary relinquishment
of those capabilities in favor of the military, and to a threat to the civilian character
of the US government. In the wake of Hurricane Katrina, a similar issue arose. The
rapid and effective military deployment to the Gulf Coast — arguably the largest,
fastest deployment of military capabilities in US history, according to Secretary
McHale — led some to argue the military should be in charge of future emergency
responses to domestic natural disasters. Secretary McHale found that identifying
the proper domestic role of the military requires "constant, sobering judgment."
"We ought not blindly commit military forces to missions that should remain in-
herently civilian in character. If we use the military within our own borders for
every mission that the military in theory could achieve, we will, in fact, tip the bal-
ance towards security and pay a price in terms of liberty."1
The luncheon keynote address demonstrated how one executive department
of the US government is seeking to strike the proper balance when addressing
complex issues with partners, allies and others around the world. Department of
State legal adviser John B. Bellinger III, at the request of the secretary of state, has
taken a leading role in the secretary's public diplomacy dialogue. This dialogue is
designed to garner support around the world for US policies and the legal
xiv
]ane Gilliland Dalton
theories underlying those policies related to the global war on terror, the status
and treatment of detainees and other post-9/11 issues. Mr. Bellinger noted that
some of the challenges in this arena involve dispelling myths that are not based
on fact or law and identifying and responding to policy differences that are re-
cast as disputes about the law. Mr. Bellinger's main goals have been to explain
with precision and clarity the legal basis for policy decisions and to place un-
founded and emotionally laden criticisms in perspective. "Unfortunately," com-
mented Mr. Bellinger, "it is easy to capture a criticism about a complex legal
matter in a pithy sound bite . . . but it requires paragraphs of explanation to de-
scribe how the United States is, in fact, complying with its legal obligations."2
Through his dialogues with legal advisers and other representatives from foreign
ministries, the European Union and international organizations, he has encour-
aged responsible officials and commentators in Europe to "promote more bal-
anced discussion within their own nations, among themselves and with the
United States about the issues."3
Secretary McHale recalled that "H.L. Mencken once said that for every complex
problem, there is a solution that is simple, neat and wrong."4 Just as there is no sim-
ple correct solution to the complex issues surrounding the proper role of the mili-
tary in a domestic context, so there is no simple correct solution to the complex
issues Mr. Bellinger addresses when he meets his counterparts overseas. Likewise,
the five panel discussions of this conference identified the complexity of the global
issues each panel was assigned to address and recognized that there are no simple,
clear-cut, easy answers. The solution to these global issues will be found only if
competing interests are balanced in a thoughtful, sober analysis of the law, the pol-
icy and the operational imperatives. The reader of the contributions in this volume
submitted by the panel participants will appreciate the crosscutting themes that
animated the discussions and the practical lessons the panelists offered based on
their experiences. Following is a short summary of the major themes and lessons
learned from the panelists.
See, Understand, Share: Developing Partnerships
"It seems safe to say that global maritime security is now seen by most as a team
sport. . . ."5 Thus the panel moderator, Professor Craig H. Allen, succinctly captured
the primary lesson of the first panel, "Command of the Commons — The United States
Perspective."6 Vice Admiral Lowell E. Jacoby, US Navy (Ret.), explained why that is so
from an intelligence perspective — it is a problem of scale, scope, complexity and the
challenges presented by a highly accomplished foe. "Command of the commons" is
simply not a realistic goal. "I take this position," said Vice Admiral Jacoby, "based
xv
Preface
upon what I believe is a realistic appreciation of what intelligence can achieve. If we
attempt to know everything about everything all the time ... we will fail Rather,
the key is to focus our efforts and dominate those portions of the 'commons' that
are integral to our priority objectives. The key is to be selective and to prioritize our
needs."7
The "see, understand, share" paradigm offered by Rear Admiral Joseph L.
Nimmich, US Coast Guard, provides a means to multiply the effectiveness of the
focused efforts Admiral Jacoby suggests the intelligence community must pursue.
Sharing what is known and understood with all who are stakeholders in ensuring
maritime security (federal, state and local governments; agencies of foreign gov-
ernments; industry partners; etc.) "empowers each player and fosters unity of ef-
fort in dozens of ways. . . . This enables each to bring the full force of its unique au-
thority, experience and expertise to the overall effort."8
This panel recognized that new kinds of partnerships involving new kinds of in-
teractions will best meet the requirements to see, understand and share knowledge
about the maritime domain and other areas of the global commons. Admiral
Jacoby noted with appreciation the close partnership that has to exist between in-
telligence professionals and legal counsel — a partnership that "must be in place
throughout the intelligence process. It must begin with the development of the
plan and continue throughout the operation. That partnership needs to be part of
the overall plan. It can't be attached at the end if it is to be effective."9 Rear Admiral
Nimmich noted that true awareness and understanding of the maritime domain
will only be achieved through a partnership of many government agencies and
through the dissemination of information between agencies and other stake-
holders.10
Professor Allen also recognized the need for new sorts of partnerships that are
multilateral and interagency, combined and joint, and that involve shared efforts
by all those who have a stake in global maritime security. "The advent of regional
maritime security initiatives and risk-specific approaches like the Proliferation
Security Initiative may portend the new modalities that will replace command and
control approaches."11 But Professor Allen also sounds a cautionary note for legal
professionals who advise maritime strategists and policymakers, particularly when
the strategists advocate unique and undefined concepts such as "command of the
commons." "[C]ommand of the commons advocates must be alert to several key
legal limits on their sea command, control and denial strategies,"12 and it is their le-
gal advisers who must not hesitate to engage and alert them to these limits. Vice
Admiral John G. Morgan, Jr., US Navy, during his remarks, likewise encouraged
the legal professionals to engage actively and aggressively in seeking answers to the
many questions that arise in the maritime context — how to respect claimed
xvi
Jane Gilliland Dalton
exclusive economic zones, how to patrol those zones and determine what activities
are authorized within them, and how to maintain "unfettered" access to the
world's oceans.
In advocating creative partnerships to enable policymakers and security strate-
gists to see, understand and share their knowledge about threats emanating from
the global commons, the moderator and panelists for this first panel all returned
repeatedly to the theme of the two keynote speakers — the imperative that these
complex and global issues must be addressed by striking a balance between com-
peting forces and competing interests. The need for security in the maritime do-
main must be balanced with the need for freedom of movement and action there;
the need for information must be balanced with the impossibility of knowing ev-
erything about such vast areas; and the need for command and control must be
balanced with the need to work cooperatively with others who have interests in
those same areas. As Rear Admiral Nimmich noted during his remarks, what is re-
quired is a change from a "need to know" culture to a "need to share" culture, from
operating on a national basis to operating on a global basis. These challenges will
face those operating in the global commons — the oceans, airspace, outer space and
cyberspace — now and into the future.
Threats from the Global Commons: Closing Gaps and Seams
The second panel of the conference, "Command of the Commons — The Interna-
tional Perspective," carried forward the themes of balance and partnership and
provided an international perspective on how best to close the gaps and seams that
exist in our ability to effectively counter threats from and in the global commons.
Based on a rich discussion of several specific issues, this panel identified a number
of "gaps and seams" in the current legal regime and developed a mosaic of practical
suggestions for those concerned about security in the maritime domain and in the
global commons as a whole.
Professor Stuart Kaye highlighted the considerable legal authorities that nations
have at their disposal to protect their ports, their shipping and their nationals from
attack. He surveyed several recent international conventions and protocols that
have enhanced the authorities available to port, coastal and flag States. Yet he cau-
tioned that "States have yet to create protection for the totality of activities that take
place beyond the territorial sea. Adequate jurisdictional mechanisms to ensure an
effective response to attacks on submarine cables and undersea pipelines do not ex-
ist, nor does it appear there are international efforts in progress to remedy the situ-
ation."13 Professor Kaye's theme is that international law provides States with the
tools necessary to respond to these threats, but States must move cooperatively to
xvn
Preface
actually put in place legal measures designed to protect submarine cables and pipe-
lines from terrorist threats, and to better cooperate in sharing data and intelligence.
Rear Admiral Jorge Balaresque, Chilean Navy (Ret.), and Professor Francisca
Moller offered the Chilean "Mar Presential" as a precedent for the recent US Mari-
time Domain Awareness strategy. Consistent with the United Nations Convention
on the Law of the Sea and freedom of navigation rights on the high seas, the Mar
Presential represents Chile's efforts to protect national interests and take part in
economic activities that contribute to national development. Quoting the Chilean
Defense White Book, these panelists explained that " [t]his concept expresses the will
to be present in this part of the high seas with the aim of projecting maritime inter-
ests regarding the rest of the international community, watch over the environ-
ment, preserve the natural resources, with exact adherence to International Law."14
But they also stress that mere presence is not enough. Like Professor Kaye, they rec-
ommended more multilateral cooperation to create a legal regime that addresses a
particular problem — in this case, a legal regime that would make proliferation of
weapons of mass destruction a global crime, like slavery or piracy.
Professor Yann-huei Song discussed some very encouraging developments in
maritime cooperation by the littoral States of the Strait of Malacca. Since July 2004,
Indonesia, Malaysia and Singapore have launched the Malsindo Coordinated Pa-
trol (MCP) program (routine sea and air patrols by the maritime security organi-
zations of these three States) and "Eyes in the Sky" (air patrols over the Malacca
Strait) to curb piracy and increase security. These, among several other multilateral
and bilateral initiatives, were undertaken in response to the increasing demand
from Malacca Strait user States and the international community for more effec-
tive law enforcement measures to deal with the problem of piracy and possible
maritime terrorist attacks. The tripartite patrol is "an open arrangement with op-
portunities for the international community to participate" and India has offered
to assist.15
Yet there are numerous gaps and seams that require more effective multilateral
cooperation: cross-border hot pursuit, maritime patrols in each other's territorial
seas, and sharing information and intelligence. When considering why those gaps
and seams still exist, it becomes apparent that sovereignty must become an enabler
of security, not a barrier to it. Professor Song quoted the secretary- general of the
International Maritime Organization, who noted in September 2005: "[w]ith re-
gard to the question of security versus sovereignty . . . , while I can understand and
fully respect the sensitivity of any State over the issue, I also believe that, whilst
States have the right of non-interference in their internal affairs, they also have
concurrent responsibilities towards their own people, the international commu-
nity and their international engagements. Whatever the answer to this, there can be
xvin
Jane Gilliland Dalton
no excuse for inactivity, whether the danger is clear and present or perceived as a
future possibility."16
Sovereignty was also a dominant issue in Professor Bakhtiyar Tuzmukhamedov's
analysis of the 2006 Russian Federation law, "On Counteracting Terrorism." "In a
conspicuous departure from the Soviet-era official and doctrinally strict, i.e., nar-
row, interpretation of the right of self-defense, Russian officials have, since 2002,
increasingly been indicating that it might be permissible to use armed force against
extraterritorial sources of imminent threat to Russian security, even in the absence
of an actual armed attack originating from those sources."17 The law appears to be
aimed, at least in part, at potential threats coming from the Pankissi Gorge in Geor-
gia, an area some Russian officials believe to be "an area where Georgian law and
order was nonexistent."18 Professor Tuzmukhamedov analyzed whether the law,
by its terms, contemplates preemptive actions to deal with threats that are not nec-
essarily imminent. Whatever the letter of the law, however, some, such as Defense
Minister Sergey Ivanov, appear to believe the spirit of the law provides sufficient
grounds for "unilateral and preemptive" use of force against terrorist targets on
foreign soil. If that is so, Professor Tuzmukhamedov poses a provocative question:
"As more nations, some of them bearing enormous might, submit that they would
use armed force in self-defense not only to react to an actual attack, but also to pre-
empt imminent assault, or even prevent it from materializing in the future, would
it not give impetus to claims that a customary rule of international law has already
been conceived?"19
Professor Yoram Dinstein, in his remarks, identified computer network attacks
occurring in that part of the commons known as cyberspace as a relatively new
method of warfare and an area that represents a lacuna in the law. A computer net-
work attack does not appear to fulfill the generally accepted requirement that an
"attack" constitute an act of "violence."20 Thus, with respect to the jus ad helium (or
law governing the resort to force), the crucial question is whether a computer net-
work attack by itself can amount to an "armed attack" as contemplated under Arti-
cle 51 of the United Nations Charter. Of course, the Security Council, acting under
Chapter VII of the Charter, can determine that any act, including a computer net-
work attack, constitutes a threat to the peace. However, absent a Security Council
determination, the question arises whether a computer network attack against a
State can trigger a lawful forcible response in individual or collective self-defense
under Article 5 1 .
Yet, in addition to serving as a method to gather intelligence or to blind the en-
emy and otherwise disrupt its communications, a computer network attack can
also produce devastating and deadly effects if a belligerent party gains actual con-
trol of an opponent's computer network (such as by launching the opponent's
xix
Preface
missiles against its own assets, opening the sluices of dams to cause a flood, or even
causing a meltdown of the adversary's nuclear power reactors). Further, identify-
ing the party actually responsible for a computer network attack can be time con-
suming and fraught with difficulties. Hence, responding promptly to such an
attack from an ostensible source is very dangerous, for a terrorist organization
could use a computer network attack — through a third party's computer net-
work— with a view to inducing State A to respond against State B, which is actually
an innocent party.
On the whole, concluded Professor Dinstein, the computer network attack issue
is complex, the possibilities are enormous and international lawyers are decidedly
behind in their study of the full dimensions of this new phenomenon. In truth, the
same could be said about all the gaps and seams identified by these panelists. There
is much work to be done to close them and the lawyers who advise policymakers
and operational experts can play a major role in shaping appropriate solutions.
The Military and the Media: Shaping the Public Debate
The second day of the conference dealt with communications — how best to com-
municate one's legal theories, policies, strategies and goals in these very complex
situations to a public that is accustomed to instant access and instant analysis: how
best to counter a "pithy sound bite" on an issue that requires pages of analysis to
understand and convey. The first panel of the day, "Public Perceptions and the
Law," concluded that public discourse today is marked by "more heat than light."21
Though the panelists differed concerning who bears the greatest responsibility for
creating that equation, they unanimously agreed that all stakeholders have an im-
portant role to play in shaping improvements.
U.S. News & World Report senior writer Linda Robinson commended the mili-
tary for adopting "effective policies that help provide news media with access to the
battlefield, senior officials and other events and voices that merit coverage."22 Pro-
viding more access and information assists the press in producing "better informed
and more in-depth coverage and analysis."23 It is then incumbent upon the media
to conduct the necessary sustained research to enable only the most accurate and
unbiased reporting. Professor Harvey Rishikof looked to the courts to help pierce
the "fog of confusion" on some of these complex legal issues and to strike the nec-
essary balance among leaks, information flow, national security, the First Amend-
ment and the right to know.24 The resolution of some of these contentious issues
will help shape the debate for the future, hopefully in a more calm and studied
manner, and may inform the public more accurately on these complex legal
matters.
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jane Gilliland Dalton
Colonel James P. Terry, US Marine Corps (Ret.), called for the military and the
media to work together to find practical solutions to areas of friction in communica-
tion between the two. " [O] ur ultimate quest must be how can we maintain a vibrant,
robust freedom of expression while protecting the nation's capacity to fight our
wars effectively."25 Colonel Terry challenged the media to make a more concerted
effort to understand and to explain the legal issues involved, such as the difference
between "terrorists" and "insurgents," how women and children who participate
actively and directly in support of combat activities themselves become combatants,
and why a civilian family providing safe haven for a terrorist in its home subjects
the home to a loss of protected status.26 As Ms. Robinson pointed out, " [t] he public
policy debate would greatly benefit from more sustained efforts to understand
what is an extremely complicated conflict that has eluded easy answers."27
Professor Robert F. Turner recalled that the Vietnam conflict demonstrated that
it is possible to win every major battle and nevertheless lose a war if the enemy de-
stroys the national will through propaganda, public diplomacy or what Leninists
called "political struggle." Professor Turner, in his remarks, noted that having the
moral high ground is critically important to Americans and their widespread igno-
rance— including that of members of the legal profession — about applicable laws
of armed conflict is a major impediment. The principle that enemy combatants
maybe lawfully detained without charge for the duration of the hostilities is lost on
many. While public and media education about the law of armed conflict (as well
as relevant constitutional and statutory law) is important to this process, it is
equally important that the government and the armed forces strive to obey their ob-
ligations under international law. Public support is crucially important in every sus-
tained conflict and the media is a primary source of information for the public. To
maintain this support, the country needs to have moral authority on its side and,
when mistakes are made, needs to be honest and open and promptly correct them.
The major theme and lesson learned from this first panel on communications
was that all those involved — the media, the judiciary, the government, the armed
forces, the lawyers who advise these organizations and institutions, and the pub-
lic— must make a concerted effort to fully understand the legal issues involved and
to accurately appreciate and convey the full extent of the legal complexities as they
address the issues. Recalling State Department legal adviser John Bellinger's lun-
cheon remarks, it is imperative that all engage in a "more balanced discussion."
Strategic Communications: Converging on a Message
The second panel on this topic, "Challenges of Strategic Communications," very
quickly identified a primary lesson for policymakers, legal advisers and those who
xxi
Preface
conduct operations — the imperative to have a single national process to move with
singular purpose to promulgate a consistent message.
Rear Admiral Frank Thorp IV, US Navy, likened this process to a symphony: ev-
ery element of national power, everything the government says and does, must be
synchronized. The professional communicators alone cannot successfully direct
this process — the policymakers and those who carry out the policy must be in-
volved. Policy and actions must agree, because inconsistency means failure. The
greatest strategic communication challenge, however, is to create good policy in
the first place. The legal community's role is crucial to the success of this effort to
ensure that the policy is legally sustainable and supportable and to ensure that
those who carry out the policy are trained in their legal obligations. Rear Admiral
Thorp identified three objectives essential to a successful communications process
for the Department of Defense. He suggests that the department must: 1 ) create a
"culture of communication" within the department; 2) develop a strategic com-
munication doctrine that defines roles, responsibilities and relationships; and 3)
provide the military services and the combatant commanders with the necessary
resources to enable them to create the processes to properly conduct strategic
communications. Then, the Department of Defense must work with the other el-
ements of national power to coordinate information, themes, plans, programs
and actions.
Professor Gene Bigler concurred that successful strategic communications re-
quire a unified process. He called this process "convergence," which is more than
simply getting all the messages on the same page, but involves insuring the mes-
sages are in harmony with people's expectations about those delivering the
messages.
Thus it is not just that the messages from the White House and DoS and DoD need to
be consistent with those from the presidency, as that these all need to harmonize with
people's expectations about the actions and values that America represents.
Convergence, then, speaks to the coincidence between message and behavior in order
to enable strategic communications to achieve the persuasive capacity or provide the
desirable model. . . .28
Particularly given the complexity of legal issues and lawyerly discourse, Professor
Bigler suggested that the Departments of State and Defense must present a more
balanced and unified message, one that takes into account the audience's capacity
to understand the issues and its expectations of the values for which the United
States stands.
Brigadier General Mari K. Eder, US Army, echoed this sentiment by expressing
concern that too often "the US Government sends 'mixed messages' or fails to
xxii
Jane Gilliland Dalton
clearly and consistently communicate policy."29 Brigadier General Eder repeatedly
stressed the need to forge a more resilient partnership among public affairs profes-
sionals, warfighters, policymakers, even the private sector, to better enable the
United States to communicate its policies quickly and effectively in a way that reso-
nates with the intended audiences. Likewise, Rear Admiral Michael A. Brown, US
Navy, espoused "an agile and coordinated approach both horizontally and verti-
cally through all levels of government. We can no longer focus on single areas of re-
sponsibility— every action or inaction has the potential to be global in nature."30
Rear Admiral Brown also stressed the importance of developing a rapid response
system: "Slow 'official' response damages credibility and undermines what is even-
tually released. We must plan from the beginning with an effects-based model de-
rived from our strategic goals."31
Professor Craig Allen's article in this volume, concerning the conference's first
panel on "Command of the Commons," envisions a worst-case scenario where the
synchronized strategic communications process falls out of sync. In his example, an
ill-advised communications plan, lacking appropriate legal and policy contexts,
could result in unanticipated negative reactions from the international community.
He suggests that just as the US Navy uses war games to analyze the efficacy and viability
of various political and military strategies, so too could war games be used to analyze
whether a strategic communications plan is, in fact, synchronized with a singular pur-
pose to convey a consistent and appropriate message. Decisionmakers could subject
a catchphrase such as "command of the commons" to red-teaming to assist them in
understanding the possible reactions worldwide to such a statement.32 This practical
suggestion, resulting from the dialogue among the conference participants and pan-
elists, demonstrates how the three major topics of the conference are connected and
how lessons learned in one area of global challenge may have benefit for
policymakers and the operational forces responsible for activities in other areas.
Disaster Response: Harmonizing Legal Structures
The fifth and last panel of the conference, "Global Disasters," tackled an area that
itself could dominate an entire conference. The issues involved are so complex, so
urgent and, unfortunately, so intractable that one wonders whether there will ever
be a coherent legal structure capable of meeting the needs of both the disaster-
stricken country and those seeking to provide relief. Many of the themes discussed
in other panels arose again in this context — that assertions of national sovereignty
often prevent effective and rapid response, that unity of command must inevitably
give precedence to unity of effort. The law as an enabler of operations was a com-
mon theme, though more often than not the various legal structures (local,
xxin
Preface
national and international) are not harmonized to optimize the number of lives
saved or amount of suffering relieved. And within the United States and through-
out the international community there is considerable debate whether the military
is the most appropriate organization to provide disaster assistance, for both legal
and policy reasons. This debate is similar to that concerning the proper role of the
military in strategic communications and in "command" of the commons, where
similar legal and policy considerations arise.
Mr. David Fisher, of the International Federation of Red Cross and Red Crescent
Societies, explained that despite the number of international instruments — at the
global, regional and bilateral levels — and important non-binding guidelines, models
and codes, there still is no coherent international disaster relief system. As a result, le-
gal obstacles to the entry and operation of international relief often exist and moni-
toring, coordination and regulation of international aid is generally inadequate.
These problems bedevil not only those seeking to provide relief to underdeveloped
parts of the world but also prevented the delivery of humanitarian aid to the United
States in the aftermath of Hurricane Katrina.33 The island nation of Fiji, however,
proves that progress can be made. After Fiji established a detailed legal and regula-
tory structure for international relief, subsequent disaster operations experienced
few coordination problems.34 Fortunately, international disaster relief is an area
where lawyers can take and are taking the lead to bring coherence to the process.
The International Conference of the Red Cross and Red Crescent is to take up a se-
ries of recommendations on these issues in November 2007 and the United Na-
tions International Law Commission has placed the "protection of persons in nat-
ural disasters" on its long-term program of work.35
Speaking as one whose nation had recently experienced a disaster of global mag-
nitude, Brigadier General Ikram ul Haq of Pakistan reflected on the institutional
and informational vacuums that resulted immediately after the October 2005
earthquake.36 A lesson learned from that experience is that those vacuums could be
more effectively managed if mechanisms were already in place in the form of
peacetime agreements with friends and allies. Such agreements could address not
only the specific capabilities that a particular nation could bring to the relief effort,
but also could establish procedures and schedules for joint mock disaster relief ex-
ercises. Brigadier General ul Haq also suggested that a "multinational forum to
share disaster relief and recovery experiences" would be helpful in enabling nations
who have suffered such disasters to learn through others' experiences.37
Lieutenant Colonel Evan Carlin, Australian Defence Force, observed firsthand
the difficulties in monitoring, coordinating and regulating international relief ef-
forts after the 2004 Boxing Day tsunami in Indonesia. A primary concern of Aus-
tralian, Singaporean and American military relief forces, a concern unfortunately
xxiv
Jane Gilliland Dalton
not shared by all relief providers, was "to ensure that the relief effort was in accor-
dance with Indonesian priorities. . . ."38 "Indonesians knew best what Indonesians
required " stated Lieutenant Colonel Carlin.39 Like Brigadier General ul Haq, he
emphasized the importance of sharing information. Those involved in the relief ef-
forts needed to know "the progress of the mission, road conditions, security con-
cerns, aid priorities, bottlenecks and expectations."40 But an important, and even
greater, challenge was to inform the rest of the world of Indonesian needs, to pre-
vent well-intended but misguided efforts.
Both Captain Kurt Johnson, JAGC, US Navy, and Mr. Gus Coldebella of the US
Department of Homeland Security reinforced the importance of coordination and
cooperation in arriving at practical solutions to pressing problems in a disaster sit-
uation and addressed some of the challenges involved in monitoring, regulating
and coordinating relief efforts. Mr. Coldebella observed that, while the nature and
speed of communications now gives almost all large natural disasters a "global"
character, all disasters are profoundly and basically local. The US approach is for
disasters to be handled in the first instance at the lowest jurisdictional level possi-
ble. The National Response Plan, adopted only eight short months before Hurri-
cane Katrina struck, provides the structure for federal, state and local governments
to work together. Given the plan's adoption date, however, there was little oppor-
tunity for exercises based on the plan before the plan actually had to be imple-
mented in a disaster. Further, Hurricane Katrina caused a situation in which, at
least for a time, there was no state or local apparatus to request, accept and coordi-
nate federal assistance, which caused initial difficulties. But because the National
Response Plan contemplated such a situation, it allowed federal assets to be moved
where needed without waiting for a state request.
Captain Johnson elaborated on a theme first introduced by Secretary McHale
and discussed by other panelists from an international perspective — the proper
role of the military in providing disaster response. His analysis of the various do-
mestic laws involved clarified the careful legal analysis that will be required, based
on the specific facts of each situation, to determine the Department of Defense role
and authorities in the wake of future major natural disasters. He also acknowledged
that challenges attended the acceptance of international assistance, such as medical
credentials for international medical personnel, Department of Agriculture food
regulations concerning food from foreign nations, gift acceptance authority and
rules for the use of force that foreign troops on the ground were to employ.41
The harmonization of legal structures in the disaster relief area will be compli-
cated and time consuming. It will require efforts at the international, national and
local levels, and must be tailored to accommodate the governmental system, cul-
tural mores and social priorities of each country. Lawyers, policymakers and those
xxv
Preface
who carry out the policies should focus on developing coordination and unity of
effort rather than seeking unity of command. The appropriate role of the military
should be addressed, as well as the most effective way to monitor, coordinate and
regulate the provision of aid from the international community. Sovereignty con-
cerns should be proactively harnessed to facilitate the rapid and comprehensive de-
livery of relief, rather than serving as a barrier thereto. In this area of global
challenge the law truly can serve as an enabler of all that is desirable and beneficial
to mankind. Lawyers can, and should, take the lead in this area to guide national
and local leadership to constructive and creative solutions.
Conclusion
There are many people to thank for their roles in bringing this work to fruition.
Foremost are the cosponsors, the financial contributors and the participants in the
conference from which this book is derived. My thanks to Professor Dennis
Mandsager, chairman of the Naval War College's International Law Department,
for his support, counsel and guidance during the planning and coordination of the
panels, the participants and the presentations. This eighty- third volume of the In-
ternational Law Studies series would not have been possible without the constant
and dedicated assistance of Major Michael D. Carsten, US Marine Corps, of the In-
ternational Law Department; Captain Richard J. Grunawalt, JAGC, US Navy
(Ret.); and Captain Ralph Thomas, JAGC, US Navy (Ret.), who shepherded the
publication from first draft to completion and handled the myriad administrative
details involved in publishing a work of this caliber. Thanks also to the unsung, but
always outstanding, efforts of Ms. Susan Meyer in Desktop Publishing, and the in-
credible proofreading from Susan Farley, Albert F. Fassbender III and Heather M.
Lightner, and publication support from Ms. Valerie Butler. It is only due to these
individuals' efforts that the International Law Department is able to bring you this
volume. However, there are sure to be errors, and these are my responsibility alone.
Finally, a special note of thanks to my husband, Harvey, who enthusiastically en-
couraged me to serve as the Stockton Professor of International Law, though it
meant yet another Navy "geo-bachelor" tour, and to former Stockton Professor
Howard Levie — whose clarity of legal thought and writing continue to inspire all
who work in this area of international law.
Notes
1. McHale, infra, at 7.
2. Bellinger, infra, at 209.
xxvi
Jane Gilliland Dalton
3. Id. at 208.
4. McHale, infra, at 16.
5. Allen, infra, at 32.
6. There is no generally accepted definition of the "global commons." The negotiators of
the United Nations Convention on the Law of the Sea frequently used the phrase to denote those
areas of the oceans and seabed beyond the jurisdiction of any nation. Today, the phrase is often
extended to encompass space, cyberspace, and even "ungoverned spaces" such as Somalia and
the Pankissi Gorge in Georgia. See, e.g., Jacoby, infra, at 52, and Tuzmukhamedov, infra, at 84. In
his prepared remarks, Vice Admiral Morgan suggested that even the global economy could be
considered a part of the global commons in that today's world order is economy based and "one
of the greatest dangers that the world faces right now is the collapse of the global economy." The
concept of "command of the commons" has recently surfaced in some US doctrinal discussions.
See, e.g., Allen, infra, at 30-33. Because at first glance the phrase appears to be inconsistent with
traditional notions of freedom of the seas and sea lanes of communication, the organizers of this
conference chose the topic to prompt debate and facilitate discussion concerning how one goes
about protecting against threats emanating from the global commons.
7. Jacoby, infra, at 53.
8. Nimmich & Goward, infra, at 62.
9. Jacoby, infra, at 55.
10. Nimmich & Goward, infra, at 63.
11. Allen, infra, at 32.
12. Id. at 3 4.
13. Kaye, infra, at 77.
14. Moller & Balaresque, infra, at 164.
15. Song, infra, at 125.
16. Mat 128.
17. Tuzmukhamedov, infra, at 84.
18. Id.
19. See id. at 90.
20. See, e.g., Article 48, 1977 Geneva Protocol I Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of International Armed Conflicts ("At-
tack means acts of violence against the adversary, whether in offence or in defence.")
21. Robinson, infra, at 198.
22. Mat 200.
23. Id.
24. Rishikof, infra, at 185.
25. Terry, infra, at 188.
26. Id. at 194.
27. Robinson, infra, at 200.
28. Bigler, infra, at 225.
29. Eder, infra, at 236.
30. Brown, infra, at 251.
31. Mat 252.
32. Allen, infra, at 37.
33. Fisher, infra, at 302.
34. Mat 306.
35. Id. at 310.
36. ul Haq, infra, at 258.
xxvii
Preface
37. Mat 265.
38. Carlin, infra, at 271.
39. Id.
40. Id.
41. Johnson, infra, at 288.
XXVlll
PARTI
KEYNOTE ADDRESS
I
Domestic Security and Maintenance of Liberty:
Striking the Balance
Paul McHale*
Introduction
We have seen extraordinary changes in the role of the military within do-
mestic American society since September 11, 2001. The National De-
fense Authorization Act of 2003 created the office that I now hold. The statutory
mission assigned to the assistant secretary of defense for homeland defense was —
and is — to supervise all of the homeland defense activities of the Department of
Defense. In short, to supervise the domestic role of the US military, to include both
the warfighting defense of the United States and the consequence management ac-
tivities of the Department of Defense when providing support to civilian authori-
ties. That is a sobering mission. It reflects the intent of Congress to bring a special
geographic focus to the department that reflects the paramount security consider-
ations associated with the immediate defense of the American people. It is a mis-
sion that sobers me every morning.
Constitutional Principles
When I was asked to take this position I thought seriously about the role of the mil-
itary within domestic society, the historic and statutory constraints upon that role
and the appropriate opportunity within the boundaries of those constraints for the
* Assistant Secretary of Defense for Homeland Defense.
Domestic Security and Maintenance of Liberty: Striking the Balance
US armed forces to make a contribution to the physical security of the American
people. It required me to re-examine some first principles of constitutional gov-
ernment and the effective protection of civilian democratic principles so deeply
embedded in our US Constitution.
With that as motivation, I returned to the Federalist papers. I served three terms
in the House of Representatives in the 1990s. When I left the House, I decided to
read the Federalist papers in their entirety. Like many political science majors, I
had read portions — Federalist 10 and Federalist 51 — but I had never read all
eighty-five from beginning to end.
I think most of you participating in this conference are familiar to at least some
degree with the Federalist papers. For those of you in the international community
who may not be familiar with them, just let me briefly set the stage. Over the sum-
mer of 1787 the Constitution of the United States was written in the city of Phila-
delphia. The framers of the Constitution finished their work in September 1787.
Then the question became whether or not the required nine of the original thirteen
states would ratify the framers' work. As in any political context there was serious
debate, on this occasion between the federalists and the anti- federalists. That de-
bate was carried on in the newspapers of the day. Between the time of the comple-
tion of the draft and the ultimate ratification of the Constitution, Alexander
Hamilton, James Madison and John Jay — principally Hamilton and Madison —
wrote eighty-five op-ed pieces. Those commentaries were ultimately bound to-
gether into the published work that we know today as The Federalist}
There are legal scholars who believe that The Federalist may be the finest work
of legal literature ever written in the English language. A few years ago Professor
Bernard Schwartz, Chapman Distinguished Professor of Law at the University of
Tulsa, came up with his list of the top ten legal books ever written in the English
language; at the top of the list was The Federalist.2 I'm not sure that I would go that
far, but I knew when I retired from Congress I wanted to read the Federalist papers.
I knew that the only way in which I would have the discipline to do so would be if I
volunteered to teach a course on the Federalist papers at one of the colleges in my
hometown. So I returned to Pennsylvania and taught a course on the Federalist pa-
pers for a year or so staying about three papers ahead of the students and develop-
ing my expertise in explaining their meaning.
Federalist Paper No. 8 talks with specificity about the role of the military within
the borders of our nation; it is a cautionary message. When I first read Alexander
Hamilton's words I thought they were an anachronism. He was concerned that the
role of the military would become too intrusive within domestic American society.
He feared that if that role were to be too powerful the character of our nation and
Paul McHale
the core principles of the Constitution would be adversely affected. Those fears
were expressed in the following words (to which I have added my own thoughts):
Safety from external danger is the most powerful director of national conduct. Even the
ardent love of liberty will, after a time, give way to its dictates. The violent destruction
of life and property incident to war [think September 11], the continual effort and
alarm attendant on a state of continual danger [think al-Qaeda], will compel nations
the most attached to liberty to resort for repose and security to institutions which have
a tendency to destroy their civil and political rights. To be more safe, they at length
become willing to run the risk of being less free.3
Later in Federalist 8 he talks very specifically about the US military in a manner
that, I think, was prescient. When I studied government in college and first looked
at the Federalist papers and first considered the role of the military, I knew there
was concern among our founders related to a large standing army. The implication
was that a large standing army would by brute force impose military values upon a
civilian government and a republican Constitution. The force of arms would be
seen as the danger.
That is not the rationale of Federalist 8 — it's much more sophisticated, much
more nuanced. It is not about brute force; it is about the choice to sacrifice liberty
in order to achieve security. Hamilton wrote about nations that are internally se-
cure from external attack, as opposed to nations which remain internally subject to
foreign attack; again think al-Qaeda. The twenty-first-century reality, at least from
our perspective within the Department of Defense, is that the United States is now
an inherent, integrated element of a global battlespace from the vantage point of
transnational terrorists.4 Indeed, I think it could be argued successfully that, from
the terrorist standpoint, we are the pre-eminent element of that battlespace. Their
intent is not to achieve victory through a war of attrition but to bring brutality into
the internal confines of the United States. By bringing death and destruction to our
citizens, they believe they can affect our political will. Well short of success in terms
of attrition, they believe they can shape our political conscious by acts of brutality
and if they can succeed in engaging in such acts within the United States they will
have achieved pre-eminent success.
Alexander Hamilton wrote of nations that must fear that kind of internal attack
versus those that are relatively secure within a domestic setting. Let me take those
in reverse order the way Hamilton did. He wrote, a[t]here is a wide difference . . .
between military establishments in a country seldom exposed by its situation to in-
ternal invasions. . . ."5 A recent example of such a country would be the United
States during the Cold War when there was little danger of attack upon our terri-
tory. In this, the first case, the civil state remains in full vigor:
Domestic Security and Maintenance of Liberty: Striking the Balance
The smallness of the army renders the natural strength of the community an
overmatch for it; and the citizens, not habituated to look up to the military power for
protection, or to submit to its oppressions, neither love nor fear the soldiery; they view
them with a spirit of jealous acquiescence in a necessary evil. . . .6
Hamilton then goes on to address, by contrast, the state of a nation that is "often
subject to them [internal invasions], and always apprehensive of them."7 Since
September 11, 2001 we in the United States, on a daily basis, remain uncertain as a
matter of harsh reality as to when and under what circumstances our transnational
terrorist adversaries might again strike us internally. Three thousand people were
killed on our own soil on September 1 1th. Another attack could conceivably occur
tomorrow so we remain subject to that continuing threat. Describing a nation in
that circumstance, Hamilton wrote (again with the insertion of my thoughts):
In a country, in the predicament last described, the contrary of all this happens. The
perpetual menacings of danger [al-Qaeda] oblige the government to be always
prepared to repel it. . . . The continual necessity for their services enhances the
importance of the soldier, and proportionably degrades the condition of the citizen.
The military state becomes elevated above the civil. The inhabitants ... are unavoidably
subjected to frequent infringements on their rights, which serve to weaken their sense
of those rights; and by degrees, the people are brought to consider the soldiery not only
as their protectors, but as their superiors. The transition from this disposition to that of
> considering them as masters, is neither remote, nor difficult. But it is very difficult to
prevail upon a people under such impressions, to make a bold, or effectual resistance,
to usurpations, supported by the military power.8
Hamilton's concern was that if we allowed ourselves to get to the point where we
were disproportionately dependent upon the military for internal security then we
in the military would become the saviors of society and citizens would no longer
trust civilian government to provide for their physical security. The citizenry
would conclude, perhaps correctly, that only the military could provide for its in-
ternal security. Once that recognition occurred, the military would be seen as the
masters and, ultimately, the leaders and superiors of society. In short, not brute
force but rather the voluntary relinquishment of the civilian character of our gov-
ernment would raise the role of the military disproportionately and ultimately
threaten the civilian character of our Constitution. It would not be by force but by
choice that the character of our nation would change because of the core mistake of
allowing a disproportionate dependence upon military power for internal security,
rather than a core dependence upon civilian law enforcement and civilian capabili-
ties to guarantee that same security.
Paul McHale
Striking the Balance
Those were sobering thoughts for me when I was nominated for the position in
which I now serve and those have remained sobering thoughts guiding me and
many others with whom I work. On a daily basis we consider the roles of the mili-
tary and civilian government and civilian capabilities when achieving security
within our own borders. Obviously when we begin to address national security is-
sues in terms of power projection and the ability to take the fight to the enemy
overseas, the role of the military historically has been dominant. In my judgment
that is correct. When we seek out terrorists and their supporters in places like Af-
ghanistan and Iraq, men and women in military uniform are at the vanguard of our
nation's effort to achieve physical security. We send men and women in the armed
forces forward in a lead role to engage the enemy and defeat such enemy attacks.
But within our own country, it remains an issue of constant, sobering judgment to
remain loyal and committed to the preservation of the civilian character of our
government and the democratic nature of our Constitution, and, within that bal-
ance, properly employ the military in a manner that will enhance our security,
while ensuring it remains ultimately subordinate to clear and decisive civilian au-
thority, which in turn will ensure the civilian character of our government. That is
the nature of the challenge. There are many things we can do with military power
within our own borders in order to achieve the security of the American people
while not endangering the civilian character of our Constitution. But that is a
continuing issue of sober assessment. We ought not blindly commit military
forces to missions that should remain inherently civilian in character. If we use
the military within our own borders for every mission that the military in theory
could achieve, we will, in fact, tip the balance towards security and pay a price in
terms of liberty.
Thus, the question becomes how do you strike that balance? The remainder of
my remarks will touch upon certain specific areas of operational activity where
there are significant legal implications. But as I go through these challenges, both
operational and legal, in each and every case I urge you to consider them in the
continuing context of that balance between security and liberty and between the
role of the military and the role of civilian government within the boundaries of
domestic American society. Underlying the determination of that balance is the
overarching requirement that those roles be consistent with the civilian core prin-
ciples of the US Constitution.
Domestic Security and Maintenance of Liberty: Striking the Balance
Homeland Security
It became operationally clear — indeed it was instinctively obvious — that in light of
the attack we had experienced on September 1 1th there was a need for enhanced
physical security within the borders of our nation; the enemy had struck and might
do so again. The Department of Defense, acting with operational prudence, created
rapid reaction forces that could act within our own country. US Army and Marine
Corps forces, in a classified number, were placed on alert for potential domestic de-
ployment of military force in order to defeat a follow-on al-Qaeda attack. It was
clear that having struck us once the enemy might strike us again and that there was
a role for military power in defeating such a foreign attack on our soil.
When I was confirmed as assistant secretary of defense for homeland defense
and began to exercise the responsibilities and authority of supervising the home-
land defense activities of the Department of Defense, I determined that having
rapid reaction Army and Marine Corps ground forces on alert for domestic de-
ployment was a reasonable course of action. But as a lawyer I asked myself, "Is that
constitutional?" Is the ground deployment of US Army forces consistent with the
Posse Comitatus Act of 1878?9 How do we deploy soldiers on our own soil in a
mariner consistent with the Constitution when to do so may potentially conflict
with the posse comitatus statute?10 How do we reconcile the need to defend against
another potential al-Qaeda attack with the Constitution and the law?
I know there are individuals in the audience today from a nation- State that is
today an extremely close friend and ally of the United States. But in 1812 that nation-
State — I am not going to say which one — deployed ground forces to the United
States. Those ground forces left, shall we say, a lasting impact upon the Capitol
of our nation. While those forces were en route to the capital, US Marines were
employed at Bladensburg, Maryland to defend against that attack. We were not
quite as successful as we hoped we would be, but we utilized US military forces to
defend our own soil under the same Constitution with which we live today
against a foreign attack in order to save American lives and defend American
property.
The Constitution has not fundamentally changed in that regard. Article 2 of the
Constitution provides "The President shall be commander in chief of the Army and
Navy of the United States. . . ."u That executive power remains essentially the same
today as it was 1814 when the defense of the capital occurred. As I thought it through,
I turned to the US Army's Domestic Operational Law Handbook where I read about
the Military Purpose Doctrine.12 The Military Purpose Doctrine states that the Posse
Comitatus Act does not apply to those missions which are being executed primar-
ily for a military purpose. The use of force for purposes other than arrest, search
8
Paul McHale
and seizure is not proscribed by posse comitatus. When those Marines were de-
ployed in Bladensburg in 1814 they weren't there to arrest anybody and when we
established quick reaction forces in the wake of September 11th the purpose was
not law enforcement but warfighting on our own soil as it had taken place during
the War of 1 8 1 2 and, some would argue, as Lincoln exercised that power during the
Civil War. It was not that the power was not there; it was that we had not used it on
our own soil for a military purpose in quite a long time. But I personally concluded
that the Military Purpose Doctrine allows us to have Army units on alert — and we
continue to have them on alert — prepared for ground deployment within the
United States to defend, for instance, critical infrastructure, perhaps a nuclear
power plant, against a transnational terrorist threat.
We do not anticipate, however, that the first several layers of our defense against
a foreign attack on our own soil would be military in character. We emphasize that
the primary dependence is upon civilian law enforcement. But if federal, state and
local law enforcement authorities and ultimately the National Guard cannot physi-
cally defend American citizens against a foreign threat on our soil, under the Mili-
tary Purpose Doctrine and consistent with the Posse Comitatus Act, we do have
quick reaction forces ready to be deployed, not for purposes of law enforcement,
but for purposes of warfighting under Article 2 of the Constitution in defense of
the American people.
Responding to Natural Disasters
Having considered and addressed the use of military forces for defensive purposes,
we then encountered the issue of the utilization of US military capabilities within
US borders in the event of a natural disaster. Hurricane Katrina emphasized the
challenges associated not with warfighting but the statutory authority related to in-
cident management. Arguably the worst natural disaster in American history took
place on August 29, 2005 when Hurricane Katrina came ashore along the Gulf
Coast. Nearly two thousand lives were lost; the damage is measured in the billions
of dollars. The performance of the US military in response to what were truly hor-
rific circumstances was by most accounts superbly competent. That is not to say
that the response to catastrophic events cannot be improved upon, but the simple
fact is that the military response to Hurricane Katrina was arguably the largest, fast-
est deployment of military capabilities in US history. Between August 29 and Sep-
tember 10, the United States deployed seventy- two thousand military personnel —
fifty thousand National Guardsmen, twenty-two thousand active duty — to the
Gulf Coast to provide humanitarian relief. Out of that military response came, I
believe, a significant respect for military capabilities, while simultaneously fairly
Domestic Security and Maintenance of Liberty: Striking the Balance
harsh criticism was being directed, often with justification, towards some civilian
response authorities.
The discussion began immediately thereafter as to the appropriate role of the
military in response to a catastrophic natural event. The Stafford Act13 and the
Economy Act,14 as well as other provisions of statutory law, provide the Depart-
ment of Defense authority to assist a lead civilian agency in responding to a natural
disaster or a man-made event. The issue then becomes: if the military does well in
such circumstances, why not put the military in charge? That, again, raises some of
the issues that were first raised in Federalist 8. President Bush sparked serious and
thoughtful discussion on that issue in a way that I think he consciously intended.
We were able to think through both the opportunities and the challenges associ-
ated with the use of military capabilities in providing such a response. There was
discussion in the media and at senior levels of government with regard to the possi-
bility of designating the Department of Defense as the lead federal agency replac-
ing, at least on a temporary basis, the Department of Homeland Security in
providing a federal response to a disaster. Then the lawyers got into the act.
I have learned something from the Department of Justice with regard to the
scope of the executive power under Article 2 of the Constitution and frankly it sur-
prised me; it might not have surprised Hamilton and Madison but it surprised me.
The Department of Justice in a series of opinions, the most fundamental of which
goes back to 2002, concluded that when the Congress of the United States assigns a
certain responsibility by statute to a particular cabinet-level department, the presi-
dent lacks the authority thereafter to re-delegate that responsibility from the desig-
nated agency to another. That theory of law came into play in preliminary analyses
of the issue of whether or not the authorities assigned to the Department of Home-
land Security under the Homeland Security Act of 2002 15 could be re-delegated by
the president to the Department of Defense. Some very thoughtful legal scholars,
including some within the Department of Justice, concluded that the president
could not do that.
The Department of Homeland Security has been uniquely and specifically as-
signed the responsibility as the lead federal agency in responding to catastrophic
events and in consequence management related to disasters. Whether or not it
makes operational sense to reassign that responsibility, because Congress had spo-
ken on the issue, in the absence of follow-on congressional reconsideration of the
Homeland Security Act of 2002, it would appear, at least for the time being, that by
law the lead federal agency in responding to natural disasters must remain the De-
partment of Homeland Security.
As lawyers I ask you to consider what a profound impact the law and your pro-
fession had on a significant public policy debate. The outcome of that debate, at
10
Paul McHale
least in the first phase, was conclusively determined by legal analysis. That doesn't
close the door on a more robust military role, but it means that that military role
will remain, at least under current law, subordinate to a lead federal agency which
is civilian in character. Whether or not one would agree with him, I suspect Alex-
ander Hamilton would feel pretty good about that result.
The position of the Office of General Counsel of the Department of Defense is
that we do not need to amend the Posse Comitatus Act of 1878. The Defense De-
partment has concluded the act does not impede in any significant way the military
missions that the Department of Defense has been assigned to execute nor does the
act present an unreasonable impediment to foreseeable military missions within
the United States. Senator Warner and others have, from time to time, said as a
matter of due diligence and prudence that a statute drafted in the Reconstruction
era perhaps ought to be re-examined for its continued utility in the vastly different
context of transnational terrorism of the twenty-first century.
I believe without question the terminology of the Posse Comitatus Act is out of
date. We found ourselves, for instance, in the aftermath of Katrina dealing with
civil disorder on the streets of New Orleans. If we were to experience a terrorist at-
tack involving a weapon of mass destruction, it is entirely possible that the social
chaos inevitably associated with such a catastrophic event would generate substan-
tial civil disorder. In those circumstances, it might well be that the principles of the
Posse Comitatus Act would come into play in terms of the use of Title 10 active-
duty military personnel in providing immediate protection of constitutional rights
and enforcement of federal statutes in circumstances where, for a limited period of
time, civilian law enforcement authorities found themselves incapable of guaran-
teeing those constitutional rights or enforcing those federal statutes.
Counterterrorism
It is those circumstances that authorize the federalization of the National Guard
and the use of the armed forces under the Insurrection Act of 1807. 16 But when we
examine transnational terrorism in the context of the Insurrection Act, we are not
really dealing with an insurrection as that act defines it. At a minimum, we need to
re-examine the archaic terminology of the Insurrection and the Posse Comitatus
acts in order to ensure that their language remains consistent with the character of
the threat that we face in the twenty-first century. The Defense Department's posi-
tion has been that the Posse Comitatus Act does not need to be substantively
amended, but that the terminology of both the Posse Comitatus and the Insurrec-
tion acts should be reconsidered in order to ensure the principles of law reflected in
those statutes remain relevant to the twenty-first-century threat.
11
Domestic Security and Maintenance of Liberty: Striking the Balance
Can we use the National Guard for domestic counterterrorism missions in
support of civilian law enforcement? I am not certain the law is clear on that
point. That too must be examined, probably by legislative authorities. Congress
about a year ago amended the law to provide that a joint task force (JTF) engaged
in counter-narcotic activities, typically along the borders of the United States,
could engage in counterterrorism activities domestically in support of civilian
law enforcement. It was a very brief amendment to the law. With virtually no
legislative history, we are still trying to figure out the legislative intent reflected
in that statutory change, but the law now provides that Title 10 active-duty mil-
itary forces, like JTF North in El Paso, Texas, may engage in counterterrorism
activity in support of civilian law enforcement authorities. There is no analo-
gous provision of law empowering the National Guard to engage in similar mis-
sions. As a result, we now have a disparity in the law in which Title 10 forces may
take on such counterterrorism missions, but National Guard forces may not,
even though they may be colocated.
In the absence of other specific legislation, we find ourselves straining, under
pre-existing authorities not particularly well suited to counterterrorism missions,
to shoehorn what are at least in appearance and perhaps in substance counter-
terrorism activities into other statutory authority. What I suggest needs to be un-
dertaken, in a sober, serious and deliberative manner, is an effort to better define the
counterterrorism mission assigned to Title 10 joint task forces and the parallel au-
thority, if any, granted to the National Guard to also engage in counterterrorism
activities in support of civilian law enforcement.
Intelligence Support
Another issue that I'm going to be unable to resolve in my remarks, but want to
pose for your consideration, is intelligence support for domestic uses of the armed
forces. When military forces are used within our own borders for certain
warfighting, counterterrorism and force protection missions, there is a require-
ment for intelligence, as is the case for all military missions. I suspect when those
Marines defended against those unnamed invading forces at Bladensburg in 1814
they had military intelligence requirements, such as: Where are the enemy forces?
By what means are they moving towards our positions? How many are there and
how are they equipped? In short, the information needed to better anticipate and
respond to the enemy attack.
That requirement is as necessary today as it was then. As we look at the domestic
warfighting responsibilities of both the Title 10 military forces and, under the re-
cent statutory amendment to Title 32, the National Guard, the question arises,
12
Paul McHale
how, consistent with the civilian character of our government and the preservation
of domestic civil liberties, do we acquire the intelligence information necessary to
support our domestic military missions? There is no easy answer to that question
and determining the answer will require sober judgment. We in the military see
ourselves as consumers, not collectors, of domestic intelligence. I believe the law
sees us as consumers as well. There are provisions of the law, very tightly con-
strained, that do allow certain military units, such as counterterrorism units, mili-
tary intelligence units and general utility forces, to collect intelligence domestically.
But, for reasons that are obvious and fundamental to the character of our nation,
the role of the military in collecting domestic intelligence is very tightly and, in my
judgment, appropriately constrained.
The military has statutory authority to collect domestic intelligence that relates
to anti-terrorism force protection. Our terrorist adversaries do see, as indicated
earlier, the United States as a part of the global battlespace. In the context of the
past precedent of the September 1 1 attacks and a continuing threat of domestic at-
tack, anti-terrorism force protection requirements for the military have been
heightened as a military mission as a matter of immediacy.
The question to be considered is, given the force protection mission of conduct-
ing an active defense against the transnational terrorist threat within our borders
and given the parameters of existing statutory authority that allow us to collect in-
telligence domestically for such a purpose, how do we bring to that framework an
appropriate degree of clarity and detail that both enables the successful intelligence
support of those military missions, while avoiding an intrusive and improper en-
gagement in domestic intelligence collection activities by military forces? It is part
of the balance that I addressed earlier. It is a balance that is subject to continuing as-
sessment because of the nature of the threat that we now face domestically and the
role of the military in defending against that threat.
Employment of Non-lethal Weapons
In response to Hurricane Katrina we deployed for either active or contingent
military missions about fifteen thousand security personnel. Most of those military
personnel were deployed to the New Orleans area. You may recall that about four
or five days after Katrina came ashore, the president deployed twenty-two thou-
sand Title 10 military forces on a humanitarian mission. They were there in con-
formity with the Posse Comitatus Act and also available for service in anticipation
of invocation of the Insurrection Act if civil disorder had continued within New
Orleans. The soldiers from the Army's 82nd Airborne and 1st Calvary divisions
and Marines from the 1st and 2nd Marine divisions deployed to New Orleans for a
13
Domestic Security and Maintenance of Liberty: Striking the Balance
humanitarian mission. But they also established a military presence and were avail-
able, subject to presidential authority, for security missions if the president had
chosen to invoke the Insurrection Act. In addition, we used seven thousand Na-
tional Guard forces, which were not subject to the Posse Comitatus Act, in direct
law enforcement roles, including over four thousand National Guard military po-
lice who actively and lawfully engaged in law enforcement-related activities.
Fifteen thousand men and women in uniform were deployed in the aftermath of
Hurricane Katrina into an area of civil disorder, either directly engaged in security
missions or potentially engaged in such missions. They were neither trained in the
use of nor equipped with non-lethal weapons. In my judgment that was a mistake
and we need to learn from that experience. Imagine, if you will, a need to respond
to a larger catastrophic event, perhaps a terrorist attack involving weapons of mass
destruction, where loss of life and physical devastation might be far worse than
what we experienced during the very difficult and tragic days of Hurricane Katrina.
We could and should anticipate that, in the context of related civil disorder, the
military may have a role to play and that role might include the use of lethal force.
But, again in my judgment, we should not limit the range of options available to
our military commanders. Commanders on the ground should have the flexibility
to restore civil order, protect constitutional rights and preserve federal statutory
authority with a proportionate degree of force which, in their determinations,
would be sufficient to fulfill mission requirements. The choice should not be pas-
sivity versus lethality. We have non-lethal weapons in our inventory that would be
sufficient in many circumstances to maintain or restore civil order without neces-
sarily threatening the actual loss of life.
Certainly the legal issues associated with that are profound. If we deploy sol-
diers on our own streets in a catastrophic circumstance reflecting a character of
civil disorder and if we do execute such a deployment for the purpose of preserving
constitutional rights, equal protection of the law for instance, and enforcing other
statutory authorities, what legal authority should be provided? What liability pro-
visions should be enacted in order to ensure the proper employment of such non-
lethal capabilities?
I spoke earlier about critical infrastructure protection. If we use military
forces to protect critical infrastructure such as nuclear power plants against po-
tential al-Qaeda attacks, we have non-lethal capabilities those forces can employ
that are very high tech in character. Some of those capabilities are quite well devel-
oped in terms of technology — microwave beams for instance — and can be used
without risking the loss of life. Defending domestic critical infrastructure under
the same circumstances with rifles and machine guns would pose obvious risks to
the surrounding civilian community. But what are the public policy issues related
14
Paul McHale
to use of non-lethal weapon systems? What are the legal issues? What liability ques-
tions are created? What if we were to use interlocking microwave beams to defend a
nuclear power plant as a humane alternative to the use of deadly force, such as
Ml 6s and .50 caliber machine guns?
Non-lethal weapon systems certainly have the potential to effectively defend
critical infrastructure. Lives, including innocent lives in the surrounding commu-
nities, could be saved through the use of such systems. But it is almost inevitable
that an innocent person would be struck by a microwave beam. It seems preferable
to me to be struck by a beam as opposed to a bullet from an Ml 6, but what are the
liability issues? What are the public policy questions that need to be examined? As
with so many of the questions involving the domestic use of military forces, inte-
gration of non-lethal weapons into use-of- force capabilities must be preceded by
public debate and legislative deliberation. In that way we can develop a legal frame-
work that properly supports the domestic use of non-lethal weapons as a humane
alternative to lethal force.
Who's in Charge?
The Hurricane Katrina experience witnessed multiple layers of local, state and fed-
eral government authorities (civilian and military) involved in the response with-
out clarity of intent and perhaps with some insensitivity to constitutional history. I
therefore ask the rather straightforward question, "Who's in charge?" I know there
are individuals in this audience from Israel. In Israel the answer to "who's in
charge" in responding to a disaster is pretty clear — it's the Israeli Defence Force
(IDF). When disaster occurs, the on-scene IDF commander is in charge.
I spent some time with the Home Front Command in Israel and have some fa-
miliarity with the system of government in Israel. It is a system that is not funda-
mentally federal in character.
Looking back to the historic events of 1 787, it is clear that our founders created a
more complex web of authorities that is consciously embedded and carefully inte-
grated into the US Constitution. Ours is a system of checks and balances, which
sounds pretty good until you have to mount an effective response to a catastrophic
event. The theory of our Constitution — the wonderful theory of our Constitu-
tion— is that we preserve liberty through competition. We decentralize power
throughout the federal government. But by federal I also mean the federal charac-
ter of our government, which includes not just the national government but the
fifty state and thousands and thousands of local governments. We defuse power in
order to have a system of checks and balances. We have a Constitution that created
three equal branches of government so that no one branch of government would
15
Domestic Security and Maintenance of Liberty: Striking the Balance
become too powerful and we gave certain powers to the national government and
reserved the remainder to the states.
We have provisions in the Constitution, including the Tenth Amendment,
guaranteeing certain authorities to the states, and others from the states to local
government. So we recognize — at least I recognize — that if we are to remain con-
sistent with the Constitution, the issue is really not "who's in charge." Under our
Constitution, we will never have absolute unity of command. Our founders in their
wisdom didn't want that. They dispersed power in a decentralized manner
throughout the various levels and branches of government. So our challenge is not
to achieve unity of command; our challenge is to achieve, in military terminology,
unity of effort within that system of decentralized authority, those checks and bal-
ances created by our founders. That requires very close coordination and detailed,
integrated planning among all levels of government and between civilian authori-
ties and military forces.
H.L. Mencken once said that for every complex problem, there is a solution that
is simple, neat and wrong. There is no simple solution consistent with a Constitu-
tion of checks and balances. It requires hard work, integrated planning, a common
understanding of the threat environment and careful consideration of foreseeable
missions in advance of a crisis so that in the context of checks and balances we
nonetheless achieve a unity of effort.
Conclusion
Forgive me for going on at such length, but I wanted to give you some sense of both
the complexity of the issues and the seriousness and purpose that have been
brought to those issues since September 11, 2001. We know that the US military
has a tremendous ability to provide for the physical security of the American peo-
ple, including the contingent missions related to domestic warfighting against for-
eign adversaries on our own soil if civilian law enforcement authorities are not
capable of meeting the perceived or very real threat. And, as was obvious in Hurri-
cane Katrina, we in the Department of Defense have a very important role to play
in providing consequence management capabilities to augment and reinforce ci-
vilian authorities. But in the overall context of enhanced core missions evolving for
the military domestically in the twenty- first century, we have not forgotten the
cautionary words of Federalist 8. The achievement of security while maintaining
our liberty remains our fundamental commitment and our core responsibility.
16
Paul McHale
Notes
1. Alexander Hamilton, James Madison & John Jay, The Federalist (Terence Ball
ed., Cambridge University Press 2003) (1788).
2. BERNARD SCHWARTZ, A BOOK OF LEGAL LISTS: THE BEST AND THE WORST IN AMERI-
CAN LAW (1997).
3. Alexander Hamilton, The Consequences of Hostilities Between the States, Federalist Paper
No. 8, NEW YORK PACKET, Nov. 20, 1787, reprinted in HAMILTON ET AL., supra note 1, at 31,
available at http://www.conservativetruth.org/library/fed08.html [hereinafter Federalist Paper
No. 8].
4. See Department of Defense, Strategy for Homeland Defense and Civil Support 7 (2005),
available at http://www.defenselink.mil/news/Jun2005/d20050630homeland.pdf.
5. Federalist Paper No. 8, supra note 3, at 33.
6. Id.
7. Id.
8. Id. at 33-34.
9. Act of June 18, 1878, ch. 263, 20 Stat. 145.
10. Use of the Army and Air Force as posse comitatus, 18 US Code sec. 1385 (2000), avail-
able at http://www2.law.cornell.edu/uscode/uscodel8/usc_sec_18_00001385 000-.html.
1 1. US Constitution, art. II, sec 2.
12. Now set forth in the Center for Law and Military Operations, Domestic Operational Law
(DOPLAW) Handbook for Judge Advocates 24-25 (2005).
13. Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 US Code sec. 5121—
5206 (2000), available at http://www.disastersrus.org/FEMA/Stafact.htm.
14. Economy Act, 31 US Code sec. 1535 (2006), available at http://frwebgate.access.gpo
.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+31 USC 1535.
15. Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (codified as
amended in various sections of 5, 6, 18, 44, and 49 US Code), available at http://frwebgate.access
.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ296. 107.pdf.
16. Insurrection Act of 1807, ch. 39, 2 Stat. 443 (current version at 10 US Code sec. 331-335
(2000)), available at http://www4.law.cornell.edu/uscode/html/uscodel0/usc_sup_01_10_10
A 20 I 30 15.html.
17
PART II
COMMAND OF THE COMMONS
THE US PERSPECTIVE
II
Command of the Commons Boasts:
An Invitation to Lawfare?
Craig H. Allen*
Roll on thou deep and dark blue ocean — roll!
Ten thousand fleets sweep over thee in vain
Man marks the earth with ruin — his control
Stops with the shore
Lord Byron, Childe Haroldes Pilgrimage1
Introduction
Lord Byron's humble respect for the sea contrasts sharply with the commonly
held view of the tenth-century Danish King Canute. Canute is often (mistak-
enly) said to have believed that he could hold back the incoming tide by dint of
royal will.2 To silence a group of courtiers prone to excessive flattery, the king is
said to have agreed to place his throne at the low tide line on the shore in Bosham,
to demonstrate the absurdity of their suggestion that he could "command the obe-
dience of the sea." Royal will failed to keep his majesty dry as the tide rose. "Just-
so," as Kipling would say.3 What might we learn from the King Canute fable? We
might start by expressing our envy for the ancient king, who at least had the good
* Judson Falknor Professor of Law, University of Washington, Seattle, Washington. Charles H.
Stockton Professor of International Law, US Naval War College (2006-07). The views expressed
are the author's and are not to be construed as reflecting the official views of the US Navy or any
other branch of the U.S. Government.
Command of the Commons Boasts: An Invitation to Lawfare?
fortune to face a "predictable" threat environment. Even in the tenth century, the
daily tidal cycle was probably well known. The challenge facing the king in his "in-
telligence preparation of the environment" was therefore minor. The same cannot
be said for the threat environment we face in the twenty-first century, which is ev-
erywhere described as one characterized by its uncertainty and accelerating pace of
change. As one astute observer of our current situation might put it: if you do not
expect to be surprised — even shocked — by what happens next, you are not paying
attention.4 Second, one must admire the king's practical modesty. He could have
accepted the flattery, but he knew he could not "command" that great commons
known as the sea.
The first panel in this, the 2006 Naval War College, International Law Depart-
ment conference on "Global Legal Challenges: Command of the Commons, Stra-
tegic Communications, and Natural Disasters," has been asked to offer a US
perspective on current assertions regarding the US command of the commons. It is
my privilege to moderate the discussion by a distinguished panel that includes Vice
Admiral Lowell E. ("Jake") Jacoby, US Navy (retired), the immediate past director
of the Defense Intelligence Agency; Vice Admiral John G. Morgan, Jr., US Navy,
deputy chief of naval operations for plans and strategy (N3/N5); and Rear Admiral
Joseph L. Nimmich, US Coast Guard, assistant commandant of the Coast Guard
for policy and planning.
- It is noteworthy that this conference takes place at a time when the intelligence
community has reliable indications that the Democratic People's Republic of Korea
(DPRK) has fueled one or more Taep'o-dong 2 missiles, in apparent preparation
for a test launch of the DPRK's new intermediate-range weapon. In response, the
US missile defense system has been activated and two Aegis-equipped cruisers are
stationed off the Korean peninsula. How did we obtain our information on missile
preparation going on within one of the world's most closed societies? Why are US
warships deployed to the far western Pacific to erect a missile defense thousands of
miles from the US mainland? What does the story unfolding on the Korean penin-
sula tell us about claims to a "command of the commons"?
As the sole lawyer on the panel, the task fell to me to identify the most salient legal
issues raised by claims to command of the commons. But I was also invited to
weigh in on the involved factual and policy questions. My goals in this short article
are modest. After setting out a lawyer's response to claims of command over the
commons, I turn to a brief legal analysis of the problems raised by this so-called
hegemonic approach. The first and most obvious problem is that any assertion of
command over the commons collides head-on with the relevant international law.
The second problem — and the one strategy drafters would do well to bear in
mind — is that such assertions could invite a response from lawfare practitioners, a
22
Craig H. Allen
move that could jeopardize the freedom of access and maritime mobility on which
our national security depends.5
I. The Panel's Precepts
The organizers of this year's conference might well have been moved to include a
command of the commons topic after seeing a banner to that effect displayed in the
Pentagon.6 The text of that banner is reproduced in the appendix to this article.
Our panel is asked to focus on the perspective of the United States to command of
the commons. We were provided a list of questions in advance. We are first asked,
"How broadly should the global commons be conceived (space, air, surface,
subsurface, seabed, cyber)?" Next, we are asked, "What are the primary threats em-
anating from the global commons?" Our third issue is "What role should elements
of the Intelligence Community play? How should they be integrated into a plan for
'command of the commons'?" Finally, we are told that "The CNO and the National
Plan to Achieve Maritime Domain Awareness call for a 'persistent' Intelligence, Sur-
veillance and Reconnaissance (ISR) capability in the global maritime commons,"
and then asked to consider "What obstacles will we face in achieving that? Are any
of those obstacles legal ones?"
In its reference to "the commons," the Pentagon banner lists the sea (including
undersea), air, space and cyberspace. As our discussion unfolds, the three panelists
appear to adopt a somewhat broader definition of the spatial dimensions of the
commons, which includes the airspace, waters and seabed and its subsoil outside
national jurisdiction, along with outer space and the electromagnetic spectrum.7
(Cyberspace was occasionally listed separately, though without distinguishing the
privately or publicly owned cyberspace components that fall outside the com-
mons.8) It takes but little imagination to appreciate the wide-ranging utility and
pervasive usage of the commons. Some serve as a buffer (particularly for insular
nations, like the United States), a highway of transit and transport, a place to lay ca-
bles and pipelines or to orbit satellites, and — infrequently for the last six decades —
a battlespace.9 Outside of naval planning circles, it is also recognized that the com-
mons are an important source of protein, a recreational arena, a key regulator of
our planetary carbon cycle and climate, and, not nearly often enough, a place of
scientific discovery. The importance of the commons in an era when the globaliza-
tion "mega-trend" penetrates nearly every corner of the planet is undeniable.
In addition to questions about the spatial dimensions of the commons, it is nec-
essary to address the more difficult temporal and conceptual dimensions of "com-
mand." By temporal, I mean whether the command referred to is meant to prevail
in times of peace and war (to the extent that dichotomy any longer has meaning).
23
Command of the Commons Boasts: An Invitation to Lawfare?
By conceptual, I mean the dimensions or degree attached to the claim of control. In
the law of the sea context, the relationship between the State and a body of water is
variously described in terms of "sovereignty," "sovereign rights," and "jurisdic-
tion."10 Assuming that "command" means something less than sovereignty over
the sea (or any other common), what are its conceptual dimensions? The goals of
sea command or control are relatively easy to identify. They typically include the
goal of ensuring freedom of access and movement for warships, auxiliaries and
supporting merchant vessels. Such access is essential to a power projection strat-
egy. The National Defense Strategy appears to stop here; calling only for a capability
to "operate from" the global commons, not to control them.11 At times, however,
claims to access take the form of presence, persistent presence, seabasing and per-
haps even "global fleet stations." And at times sea command or control strategies
include denying use of the sea to one's adversaries, at least during periods of
conflict.
In assessing the bounds of what might be included in a "command" of the com-
mons, my first recourse was to a common dictionary. Were I to attempt to explain
what I meant by command of the commons to a layperson, I should assume that
person would apply the common definition (a point we lawyers often forget). In
the dictionary I consulted, the most relevant definitions for "command" included
"to have authoritative control over; to rule; to have at one's disposal; to dominate
by position."12 "Authoritative" control implies for me some legitimate basis for ex-
ercising such control. "Rule" carries unfortunate connotations for many. On the
assumption that usage of the term in the actual national strategy documents or lit-
erature was also relevant, particularly in the present audience, I decided to conduct
a cursory literature search. The resulting definitions for command of the sea (and
its sister phrases) were all over the board. After reflecting on the US Navy's "Sea
Power 21" concept papers13 and the Australian Naval Strategy,14 1 came to the con-
clusion that the most useful definition of "command" over a space — physical or
virtual — would have to focus on the putative commander's capability,15 capacity16
and intent. It also became clear to me that one could distinguish the fact of "com-
mand" from the grand strategy that might lead a country to pursue such a com-
mand.17
Although it might have been easy to declare that the command of the commons
concept is too vague to serve as an organizing principle amenable to legal analysis, I
chose instead to craft a working definition that focused mainly on the sea com-
mand and would capture what appeared to be the commonly held attributes of
command constructs. For this article, I ultimately settled on a definition that in-
cludes the requisite capability and intent to ensure freedom of movement for one's
vessels (power projection) during times of peace and war; and, during times of
24
Craig H. Allen
armed conflict, to deny such movement to one's enemies (sea denial); and to exert
that measure of control over neutral or unidentified craft that the law of neutrality
permits (sea control).18
II. Assessing the Claim to US Command of the Commons
The claims espoused in the Pentagon banner find support in the 2003 article
"Command of the Commons: The Military Foundation of U.S. Hegemony," by
MIT professor and Strategic Studies Program Director Barry Posen. Indeed, one
suspects the banner authors had carefully studied Posen's works. Writing in Inter-
national Security, Professor Posen described his concept of command of the com-
mons as the capability to effectively deny use of the commons to any other nation
and to prevail in any military contest for the commons.19 He then went on to argue
that the United States already enjoys de facto command of the commons; by which
he means the sea, deep seabed, space and international airspace, and that com-
mand of the commons has supported the hegemonic grand strategy pursued by the
United States since the late 1990s.20 In explaining his use of the term, Posen
equated "command of the sea" with what the historian Paul Kennedy referred to as
"naval mastery" — more than mere superiority, but certainly less than claims to
"rule" over space.21 Posen admits that "command of the commons" does not mean
that other States cannot use the commons in peacetime, nor does the concept gain-
say that there will be contested areas — the littoral and riverine regions, continental
urban centers and jungles (but none of those areas are within anyone's working
definition of the commons anyway). The true commons, Posen asserts, are com-
manded, under his definition, by the United States. He then concludes with a
warning that "U.S. command of the commons provides an impressive foundation
for selective engagement. It is not adequate for a policy of primacy."22
A. The Claim to De Facto Command of the Commons
Applying the chosen test of capability, capacity and intent to claims of command of
the commons leaves me with considerable doubt regarding the accuracy of those
claims. Vice Admiral Jacoby's warning only increased that doubt.23 On the con-
trary, it seems to me that the claims to a command of the commons reflect a trou-
bling combination of unjustified confidence regarding a very uncertain threat
environment24 and a tin ear regarding the effect such claims are likely to have upon
much of the audience of greatest concern to us. I could add that assertions that the
United States presently enjoys command of the commons failed to impress the
conference attendees I overheard, who, like skeptical Missourians, insisted on
proof. Indeed, the reaction by one attendee to the title of this panel went something
25
Command of the Commons Boasts: An Invitation to Lawfare?
like: "We couldn't 'command' the commons with a 600-ship navy. How could we
be expected to do it with 280 ships, 200,000 fewer sailors, and an ever-shrinking
merchant fleet?"25 Another asked, "If we command the commons, why can't we
stem the flow of illegal migrants and narcotics into our country?"
A quick look at the numbers is not likely to instill confidence in the Missourians.
The seas cover 71% of the planet. The Pacific Ocean alone covers 64 million square
miles (admittedly, some of which falls within the national waters of coastal States).
If all 12 US Navy aircraft carriers were available to patrol the Pacific, each would
still be responsible for an area of more than 5 million square miles (if you assume
six-month deployment rotations, you must double that number). Those who sug-
gest that the focus should be on targets of potential interest, not surface area, would
do well to consider the United Nations Conference on Trade and Development's
recent annual report on shipping, which puts the number of merchant vessels in
the world at more than 600,000. 26 That would cut down the carrier workload to
just 5,000 vessels each. Of course, that does not include the growing fleet of un-
manned vehicles operating on, under and over the seas. As a final feasibility mea-
sure, I thought back to the 2004 Northern Command Homeland Defense
Symposium, where it was emphasized that the United States plainly lacks a mari-
time surveillance system anything like the one the North American Aerospace De-
fense Command (NORAD) provides for the air domain. Although some progress
has been made using Automatic Identification System (AIS) and Long Range Iden-
tification and Tracking (LRIT) systems, maritime domain awareness still has a long
way to go.
The lawyers among us will be quick to point out that any assessment of our "ca-
pability" to command the commons must include an assessment of our legal au-
thority to act. As the 2003 So San incident demonstrated,27 military capability
unaccompanied by an adequate prescriptive and enforcement regime will some-
times utterly fail to produce the desired end state. Spanish Marines proved to be
powerless to achieve a goal where the law fell short. Our legal authorities and capa-
bilities are plainly not adequate to even "secure" the commons, let alone "com-
mand" them sufficiently to protect us against maritime terrorism or weapons of
mass destruction (WMD) transport. The fact that the common four-part "DIME"
inventory of the instruments of national power (diplomatic, information, military
and economic) omits our law enforcement capabilities and capacities may be
partly to blame for this blind spot in most maritime strategy thinking.
Capability is also a function of vulnerability. Ex ante claims to command of
international airspace must be reassessed in an age when even terrorist organiza-
tions have access to unmanned aerial vehicles (UAVs) and missiles — including
missiles capable of taking one of Israel's most modern warships out of action.28
26
Craig H. Allen
Similarly, any claim to a "command" of outer space must be tempered by the
knowledge of the vulnerability of satellites to laser or missile attack, a high-altitude
nuclear explosion, or jamming from the ground,29 and to the growing ease of ac-
cess our adversaries now have to commercial satellites such as Google Earth™ and
Digital Globe®. The vulnerability of vital communication cables strung across the
deep seabed and of critical military and commercial networks to "cyber-attack"30
similarly renders doubtful any claim that the nation has attained "command" of ei-
ther of those domains. On the contrary, we can only hope that a defense establish-
ment that connects and leverages its now lighter and more dispersed forces
through a networked information and communications grid has studied the "un-
restricted warfare" battle plan and has not thrown out its semaphore flags.31 In re-
sponse to those who might argue that such vulnerability represents only the
potential to lose command of the commons, and does not diminish present com-
mand, I would be tempted to respond by asking how they distinguish "command"
from the more temporally limited concept of "superiority."
In short, my initial look at the numbers fails the Missouri "show me" test. In-
deed, one might be moved to remonstrate that the only reason that a claim to
"command" of the commons is plausible at present is because no one is out there
contesting the commons. The interest has moved to the littorals, ports and land
domains. Witness China's so-called "String of Pearls" ambition, to ensure access to
sea lines of communication connecting it to the Persian Gulf oil fields through a
string of bases stretching from Gwandar, Pakistan to Hainan Island.32 In these do-
mains— the favored battlespace of the fourth-generation warfare practitioners —
the fates of the USS Stark, USS Cole, USS Kearsarge and USS Ashland,33 and the INS
Hanit belie any notion of command. Here, there be dragons, and their riders are
reading Mao and Ho Chi Minh, the Small Wars Manual34 and the Sling and the
Stone35
B. Command of the Commons as a Hegemonic Grand Strategy Element
The Pentagon banner includes a citation to Rear Admiral Alfred Thayer Mahan,
suggesting that the banner authors' concept of command of the commons has its
roots in a larger strategy. Why Mahan, and why that particular passage? Is the De-
partment of Defense suggesting that a strategy calling for command of the com-
mons will be found in the old "foundations of strategy" that were "laid upon a
rock"? Did Mahan believe that the United States would "guarantee" other States
"their freedom to navigate the sea, air or space," as the banner claims? With the
trepidation any lawyer should feel before wading into national defense strategy, I
decided to see just what Mahan stood for.
27
Command of the Commons Boasts: An Invitation to Lawfare?
I took as my point of departure the belief that grand strategy, including its for-
eign policy elements, can be a useful window into a nation's intent with regard to
the commons.36 What do the US strategy documents say about the nation's intent
with respect to the commons? My brief study of the literature persuades me that
the evolutionary path of maritime and naval strategy in the United States has not
been linear (Justice Holmes made a similar remark with regard to the evolution of
the common law37). It demonstrates many of the characteristics of the dialectic,
while occasionally producing what economic historians might call a logistic surge,
what Thomas Kuhn described as a revolutionary paradigm shift,38 or what evolu-
tionary biologists refer to as punctuated equilibrium. Essentially all such con-
structs describe a cycle of peaceful interludes punctuated by dramatic revolutions.
Futurist Alvin Toffler warned that the frequency of that cycle is rising sharply.39
Peter Schwartz adds that surprise — by which he means discontinuities — should no
longer be surprising.40 Current indications suggest we might be on the verge of just
such a shift in grand strategy, as the mass of antithetical evidence and sentiment
grows. Justice Holmes, a battle-tested Civil War veteran, would likely agree.
Over the years, naval and maritime strategy documents and treatises have
adopted a variety of terminology to refer to the ends and means that make up the
grand strategy. The choices are informed by history, policy, capability and per-
haps even a little bit of law. Navies (and merchant fleets) figure prominently.
The Greek historian Herodotus makes it clear that the Athenian navy's defeat of
the much larger Persian fleet at the Battle of Salamis (480 BC) was a decisive vic-
tory for the Greeks. Indeed, Athens' naval "superiority," obtained more by strat-
egy and skill than by relative fleet size, was the city-State's signature strength for
nearly eight decades (it was lost when Athens executed most of its naval leaders,
leading to a defeat by Sparta).41 Moving forward from the Greek and Roman expe-
riences to the modern era, we see several shifts in the ends and means elements in
strategy documents. They raise questions regarding distinctions between "superi-
ority" in a given domain and "control" or "command" of that domain, and be-
tween the concept of "naval" superiority (or strategy) and "maritime" superiority
(or strategy), and whether these are ends or means, and whether they are merely
notional or aspirational. And finally, is it only the primacists who seek to "control"
the commons?
Any examination of "sea control" and the correlative opportunity for "power
projection" begins with Captain (later Rear Admiral) Alfred Thayer Mahan and
Rear Admiral Stephen Luce, first president of the US Naval War College. Mahan
was a naval officer and Naval War College professor (and later president) who
characterized the sea as a "wide common."42 The commons included potential
battlespaces, where the naval combatants would mass and meet, and sea lines of
28
Craig H. Allen
communication, through which both warships and merchant vessels traveled. His
magisterial 1894 book, The Influence of Sea Power Upon History, reveals Mahan as a
naval strategist who saw sea control as the paramount goal of naval strategy.43 He
rejected the coastal defense and commerce raiding strategy of the day and offered
in its place a vision of naval warfare as a contest for command of the sea. In
Mahan's view, sea control was essential for a belligerent to be assured of access to
the sea and freedom of mobility, while denying such access or movement to the op-
ponent.44 Later asymmetric strategies did not so much challenge Mahan's assump-
tions; rather, they looked for ways to circumvent the adversary's control of the seas.
In his 1911 treatise Some Principles of Maritime Strategy ', Sir Julian Corbett took
a broader and slightly less aggressive approach, rejecting what he considered to be a
"big-battle fixation" by writers who advocated the principle of concentration.45
Corbett distinguished "naval strategy," which focuses on command of the sea,
from "maritime strategy," which focuses on the interplay between naval and land
forces. To Corbett, naval strategy was but a subset of the maritime strategy, the
purpose of which was to accomplish the sovereign's broader goals. He admonished
that command of the sea was not a proper goal in and of itself but rather a strength
that could be employed to support the nation's overall military objective.46 Corbett
concluded (as does Vice Admiral Jacoby) that it is rarely possible to achieve full
control of the sea. He argued that a belligerent must always attempt to either secure
command of the sea or prevent its opponent from doing so.47 Nevertheless, he con-
cluded that the "most common situation in naval war is that neither side has the
command; that the normal position is not a commanded sea, but an uncommand-
ed sea."48
In 1954, a very young Samuel Huntington penned an unsettling article an-
nouncing that, in his view, the Mahanian strategy based on the clash of great fleets
massing against each other was obsolete.49 Viewing the Soviet Union as a massive
land-force power that posed little or no naval threat, Huntington concluded that
the US Navy force structure should be reshaped to prepare it for littoral warfare
and power projection ashore.50 John Keegan, in his Price of Admiralty, carries the
concept forward; or should I say upward and downward? Looking back to World
War II, and demonstrating how technology can quickly reshape the meaning of
command of the commons, he concludes that the US Navy's aircraft carriers were
the "supreme instrument of command of the sea" in that war.51 But, then, turning
to the present, he falls prey to the sin of presentism, asserting that "command of the
sea in the future unquestionably lies beneath rather than on the surface." Keegan
acknowledged, however — quite prophetically — that future naval battles will likely
be fought close to land, where there is less maneuvering space.52
29
Command of the Commons Boasts: An Invitation to Lawfare?
Command of the sea reached its most recent apogee with the appointment of
John Lehman to serve as President Reagan's secretary of the Navy. Secretary
Lehman is, of course, known as the author of the 600-ship Navy and "the" mari-
time strategy. Writing in his autobiography, Command of the Seas, Lehman reports
considerable pushback in response to his maritime superiority strategy by those
who considered it too ambitious and too provocative.53 Nevertheless, some give
considerable credit to the aggressiveness of Lehman's strategy and force buildup
for the eventual capitulation of the Soviet Union.
As the Reagan era came to a close and with it the Cold War, naval strategy took a
decisive turn inland. Two capstone documents of the 1990s, From the Sea in 199254
and Forward . . . From the Sea in 1995,55 demonstrated that the focus on command
of the sea had given way to a need to establish "forward presence," and that
Mahan's blue-water battles between major combatants would give way to green-
and brown-water activities and "maritime security operations."56 For some, it
looked like coastal defense and blockades were back in style. As one analyst put it
more than a decade ago: aFrom the Sea writes the epitaph to the command of the
sea 'system' that has dominated naval strategic thought since the sixteenth century
when, thanks to the growth of seaborne commerce and the development of war-
ships capable of keeping the sea, 'true naval war' replaced 'cross-ravaging' as the
main purpose of military power at sea."57 The intervening years have mostly borne
.that out, as naval forces have been extensively engaged in maritime security opera-
tions in the littorals of the Greater Mideast and in "projecting" power from the sea
into the former Yugoslavia, Afghanistan and Iraq.
As we reflect back on a history that includes Salamis, Trafalgar, Midway, the
Barbary Pirates and Cole, and briefly consider the various naval and maritime strat-
egies that have competed for adherents, the lesson may be that any notion of com-
mand of the commons is held hostage by the competition for the strategic vision.
Professor Posen makes a strong case for his claim of US hegemony.58 He traces the
path to our current hegemonic posture to the late 1990s, while recognizing that the
hegemonic character of the strategy got an injection of steroids with the 2002
National Security Strategy59 (though only for contested areas or with respect to
specific threats, not for the commons). But, as noted earlier, he concludes that the
hegemonic status, while sufficient for an effective strategy of selective engagement,
is not adequate to support a policy of primacy (elements of which are contained in
the 2002 National Security Strategy).60 In the dialectic of grand strategy, there are
clear signs that US thinking is backing away from its flirtation with primacy.
Whether it lands on Posen's selective engagement or some variant of offshore bal-
ancing or strategic restraint is an open question. Are the differences among the
strategies important for the legal analysis that follows? Perhaps. To the extent that
30
Craig H. Allen
both primacy and selective engagement rely on some level of hegemonic command
of the commons, they both raise legal questions. There is also good reason to be
concerned that a strategy that purports to command what others consider com-
mon is likely to be opposed; and the opposition might well draw on all of the in-
struments of national (and non-State) power, including lawfare to frustrate the
hegemon's design.
1. The National Security Strategy Capstone Documents
Current US high-level strategic plans embrace some elements of primacy, along
with cooperative security and selective engagement. The 2002 National Security
Strategy called on the Department of Defense to ensure its current military domi-
nance was not challenged.61 The 2006 National Security Strategy reiterates that
"[w]e must maintain a military without peer."62 The Clinton-era Department of
Defense Joint Vision 2020 established the goal of "full spectrum dominance," which
was carried into the 2004 National Military Strategy.63 At the same time, however,
both the 2006 National Security Strategy and the National Defense Strategy ac-
knowledge that the United States lacks the capability to address global security
alone.64 Moreover, the National Defense Strategy expressly disclaims any intent to
achieve "dominance" in all areas of military capability.65 And far from a pretension
of presently commanding the commons, it asserts that "[w]e will operate in and
from the commons by overcoming challenges to our global maritime, air, space
and cyberspace operations."66
Other national strategy documents embrace a cooperative, multilateral ap-
proach. The National Strategy to Combat Weapons of Mass Destruction67 and the
National Strategy for Combating Terrorism68 both rely on cooperative, multilateral
and interagency approaches. The National Strategy to Combat Weapons of Mass
Destruction recognizes that "it is vital that we work closely with like-minded coun-
tries on all elements of our comprehensive proliferation strategy."69 Similarly, the
National Strategy for Combating Terrorism calls for strengthened coalitions and
partnerships, including partnerships with international organizations.70 The Pro-
liferation Security Initiative71 and the concept once referred to as the 1,000-ship
navy72 similarly embrace the multilateral approach.
National Security Presidential Directive 41 on maritime security policy clearly
emphasizes the need for cooperation — combined, joint and interagency — in the
pursuit of security in the maritime domain.73 In calling for a new National Strategy
for Maritime Security (NSMS), the president described the "maritime domain" as
"all areas and things of, on, under, relating to, adjacent to, or bordering on a sea,
ocean, other navigable waterway, including all maritime-related activities, infra-
structure, people, cargo, and vessels and other conveyances."74 The NSMS and its
31
Command of the Commons Boasts: An Invitation to Lawfare?
eight supporting plans were promulgated in 2005. 75 Rear Admiral Joseph
Nimmich and Dana Goward, writing in this volume, explain that the hallmarks of
the national strategy for maritime security are its commitment to obtaining mari-
time domain awareness, sharing the intelligence, providing a common operating
picture, and establishing and enabling a layered defense.76 In the words of many,
"information superiority" will give way in the coming months to "information
sharing" (a concept that might not sit well with primacists). The president's direc-
tive also makes it clear that the strategy will be carried out in a way that respects the
rule of law and does not unnecessarily, impede legitimate maritime commerce.
2. The Coming Maritime Strategy: Has Command of the Commons Given Way to
11 Awareness" of the Maritime Domain and the Emerging Global Maritime
Partnership?
At the 2006 Current Strategy Forum held shortly before our conference, the Chief
of Naval Operations, Admiral Mike Mullen, called for the development of a new
maritime strategy to guide the Navy in the coming years.77 The new strategy docu-
ment will join three other capstone planning documents, including Sea Power 21™
the Navy Strategic Plan19 and the CNO-CMC Naval Operations Concept*0 along
with the forthcoming revision to the Naval Doctrine Publication on Naval Warfare
(NDP-1). The strategy is also likely to embrace what was once referred to as the
1,000-ship navy concept81 (now the Global Maritime Partnership) and the Na-
tional Fleet Policy.82 And the strategy will be consistent with higher-level plans, in-
cluding the National Security Strategy and the National Strategy for Maritime
Security. At the time this article was prepared, it was not clear what path the new
maritime strategy would take. Primacy, selective engagement,83 cooperative
security84 and offshore balancing were all being examined in what has been known
as a "competition of ideas" that seeks to cull the best from the "wisdom of groups."
Some have strongly advocated some version of offshore balancing,85 while Posen
and others appear to favor a return to Clinton- style selective engagement. The de-
bate over grand strategy has clearly moved beyond naval planning circles to both
the national and global stages.86
It seems safe to say that global maritime security is now seen by most as a team
sport, but one that involves States of disparate ability and willingness. The advent
of regional maritime security initiatives and risk-specific approaches like the Pro-
liferation Security Initiative may portend the new modalities that will replace com-
mand and control approaches. Whether the threat comes from regional armed
conflicts or Malaccan pirates, this increasingly globalized world plainly benefits
from a maritime security approach that protects the sea lines of communication
for peaceful navigation, commerce and overflight. While those common rights are
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Craig H. Allen
protected by international law, it is sometimes said that covenants without the
sword are but words.87
Ill, Command of the Commons and the Law
Turning from an amateur's examination of the policy questions presented to our
panel to the legal question, two issues present themselves. The first concerns the le-
gality of any claim to control over the commons, particularly if control takes the
form of sea denial or assertions regarding access or presence exceeding those pro-
tected by the law. The second is one well suited for the Naval War College audience
and concerns the potential lawfare use of a maritime strategy that purports to com-
mand the commons.
A. Command of the Commons and the International Law of the Commons
Lord Bryon was not available to the young Dutch jurist, Hugo Grotius, who wrote
his famous Mare Liberum (the sea is free) in 1608,88 but Grotius would almost cer-
tainly have appreciated Byron's respect for the sea. Grotius' Mare Liberum was the
opening salvo in the "battle of the books" with the Englishman John Selden. Selden
opposed Grotius' freedom of the seas concept with his own Mare Clausum (the sea
is closed) ten years later.89 Grotius eventually won the battle for freedom of the
seas. Even England eventually repudiated Selden's thesis. In one of Lord Stowell's
most often-quoted decisions while on the English High Court of Admiralty, he ex-
plained that two principles of public international law are recognized as
"fundamental":
One is the perfect equality and entire independence of all distinct states. Relative
magnitude creates no distinction of right; relative imbecility, whether permanent or
casual, gives no additional right to the more powerful neighbour; and any advantage
seized upon that ground is mere usurpation. This is the great foundation of public law,
which it mainly concerns the peace of mankind, both in their politic and private
capacities, to preserve inviolate.
The second is, that all nations being equal, all have an equal right to the uninterrupted
use of the unappropriated parts of the ocean for their navigation. In places where no
local authority exists, where the subjects of all states meet upon a footing of entire
equality and independence, no one state, or any of its subjects, has a right to assume or
exercise authority over the subjects of another. I can find no authority that gives the
right of interruption to the navigation of states in amity upon the high seas, excepting
that which the rights of war give to both belligerents against neutrals. . . .90
33
Command of the Commons Boasts: An Invitation to Lawfare?
Modernly, the sovereign equality of States is enshrined in the UN Charter, and the
freedom of the seas — at least of the high seas — is codified in articles 87 and 88 of
the 1982 Convention on the Law of the Sea (1982 LOS Convention).91
Military strategists are regarded by most international lawyers as contemptuous
of the law and legal institutions. Clausewitz's canonical text for strategists refers to
the "certain self-imposed, imperceptible limitations hardly worth mentioning,
known as international law and custom."92 Foreign policy pundit George F.
Kennan is remembered for his attack on what he saw as an excess of "legalism"
(and moralism) in American foreign policy during the Wilson presidency years.93
Although international and constitutional law scholar Philip Bobbitt has come to
Wilson's (and FDR's) defense,94 few from the strategy community have joined
him. Unfortunately, too many international lawyers are unwilling to engage the se-
curity strategists directly. They therefore have the potential to create what
Clausewitz would call "friction."95
Most international lawyers would likely agree that, under the law, the phrase
"command of the commons" is an oxymoron. It is in the very nature of a commons
that no State has sovereignty over it. Indeed, such commons as the seabed beyond
the limits of national jurisdiction are often referred to as the "common heritage of
mankind."96 That said, it must also be admitted that freedom within the commons
in peacetime does not necessarily prevail when the drums beat the call to quarters.
Accordingly, a distinction must be drawn in this analysis between laws applicable
in peacetime and those that control in times of armed conflict. The former is
largely set out in the UN Charter and 1982 LOS Convention. The latter is taken
from a variety of sources including the conventional and customary law of armed
conflict, the law of neutrality, specialized doctrines of blockade,97 and the right of
visit and search.98 No exhaustive treatment of either is attempted here; however,
command of the commons advocates must be alert to several key legal limits on
their sea command, control and denial strategies.
The UN Charter rests on the principle of the sovereign equality of all States
and prohibits the use of force — or the threat to use force — against the territorial
integrity or political independence of another State.99 Under the 1982 LOS Con-
vention, neither the high seas nor the deep seabed beyond national jurisdiction are
subject to any nation's sovereignty.100 The same is true for international airspace.
Over the years, the United States has jealously guarded high seas freedoms against
coastal State encroachments,101 as the recent US reaction to Australian measures
extending pilotage requirements to the Torres Strait demonstrates.102 The high
seas and the deep seabed beyond national jurisdiction are also reserved for "peace-
ful purposes."103 And what of those 600,000 merchant ships plying the oceans?
While on the high seas, merchant vessels (and warships) come under the exclusive
34
Craig H. Allen
jurisdiction and control of their respective flag States, thus limiting the extent to
which a hegemon can exert denial or control strategies against them.104
Under relevant laws applicable during armed conflicts, neutrals generally enjoy
most of the same freedoms that prevail during peacetime, so long as they do not aid
any of the belligerents or carry contraband on their behalf. That general statement
is subject to two important qualifications, including the belligerents' right of visit
and search,105 and the somewhat unsettled regime of maritime "zones."106 If, how-
ever, sea denial is reserved only for times of armed conflict, and is implemented in
accordance with the international law governing the rights and obligations of neu-
trals, the law cannot be said to preclude "command" in the sense of the ability to
deny uses of the sea in ways that conflict with those laws.
Although this brief comment will not focus on the outer space commons, it is
worth mentioning that any claim to command of outer space is difficult to recon-
cile with the legal regime established by the Outer Space Treaty.107 It is also inter-
esting to note the stark contrast between the "command" notion and the
provisions of the Treaty on Open Skies,108 which permit overflight of even the na-
tional territory of each party, to provide potential adversaries a "confidence build-
ing measure." Primacists would do well to consider why a global hegemon with
"command of the commons" would permit Russian military aircraft to overfly and
photograph its naval and air bases. But the logic in such confidence-building mea-
sures as a means of enhancing national security is likely to elude most primacists.109
In closing, it is important to acknowledge that our Janus-faced law both em-
powers and limits the United States. Boasts that the Navy has the capability to in-
timidate a hostile or potentially hostile coastal State or its government by parking a
carrier battle group or expeditionary strike group 12 miles off the State's coastline
carry with them a risk that the law is neither as clear nor as stable as the boaster
might hope.
B. Assertions of Command of the Commons as an Invitation to Lawfare
The foregoing analysis focused on the legal limits on attempts to exploit putative
command of the commons to deny vessels or aircraft of another State access or
transit rights protected by international law. This section is designed to alert the
reader to the danger that an aggressive command of the commons posture may
backfire and motivate other States to undertake measures to reduce the would-be
commander's access or transit rights. It begins with the often heard assumption
that when the stronger naval power controls the sea, the "correct" strategy for the
weaker power is to attempt to deny its opponent use of the sea as much as possible.1 10
The concept of lawfare might provide one means to deny, or at least to limit, a
hegemon's use of the sea.111
35
Command of the Commons Boasts: An Invitation to Lawfare?
The term "lawfare" was apparently coined in the 1970s, but initially lacked a co-
herent definition. Today the concept is most often associated with Air Force Major
General Charles Dunlap, who defines lawfare as the strategy of using or misusing
law as a substitute for traditional military means to achieve an operational objec-
tive.112 It is noteworthy that lawfare tactics are included in the Chinese book on
"Unrestricted Warfare."113 The authors suggest an approach that applies interna-
tional law asymmetrically: binding the more powerful nation, but not its less pow-
erful opponent. The authors also recognize the important role of a sympathetic
media to a lawfare strategy, as did Hezbollah during the 2006 conflict with Israel.
To be sure, the United States has never hesitated to use what has been described
as lawfare to advance its national interests. Witness the new republic's complaints
that British boardings of US merchantmen to impress seamen for duty in the Royal
Navy violated international law.114 Professor Davida Kellogg, among others, advo-
cates a principled, proactive use of lawfare.115 But she warns that we must also be
on guard against false or misleading versions of the law contained in the "pro-
nouncements of nongovernmental organizations (NGOs), terrorist sympathizers
and apologists, and uninformed reporters with political agendas."116
Concern for lawfare tactics found its way into at least one high-level strategy
document. The 2005 National Defense Strategy appears to expect that lawfare tactics
will be used against the United States, warning in its section on "vulnerabilities"
that " [o] ur strength as a nation will continue to be challenged by those who employ
a strategy of the weak using international fora, judicial processes and terrorism."117
"Judicial processes and terrorism"? Putting tactless juxtapositions to one side,118
the secretary is probably right to be concerned. A few suggestions show why.
If I were giving advice to a client seeking to bind a would-be maritime hegemon
through lawfare moves, several come to mind. First, I might advise the client to
identify those States that most resent claims to command of the commons and seek
their support within the United Nations General Assembly (UNGA) for, inter alia,
a request that the International Court of Justice (ICJ) issue an advisory opinion
condemning any attempt to "command of the commons" as a violation of the UN
Charter, the 1982 Law of the Sea Convention and the 1967 Outer Space Conven-
tion, which collectively stand for the proposition of equal access for all States to
those commons. Next I would suggest that the client work through the UN Infor-
mal Consultative Process on Ocean Affairs and the Law of the Sea to propose a
General Assembly resolution defining "due regard for the exercise of the freedom
of the high seas" and "peaceful use" under articles 87 and 88, respectively, of the
Law of the Sea Convention in a way that renders illegal any claim to "command" of
those seas or "sea control" by any nation's warships.119 At the same time, the client
might move for a resolution defining "innocent passage" to exclude any passage by
36
Craig H. Allen
warships (or unmanned vehicles, which are nowhere mentioned in the conven-
tion) the flag State of which purports to command the seas in ways that conflict
with the freedoms of other States, or to vessels en route to a "sea base" assignment
(where the vessel will, in the minds of some, "threaten" the use of force, in violation
of the UN Charter and the Law of the Sea Convention). Another tactic that is sure
to attract the support of a number of coastal States would utilize the ICJ or UNGA
to effectively reduce the commons, by legitimizing "security zones" of up to 200
nautical miles, within which no foreign warship, military aircraft (manned or un-
manned) or intelligence gathering platform could operate without the consent of
the coastal State, and only then when in full compliance with any applicable restric-
tions on vessel numbers, speed, weapons and means of propulsion, along with pos-
itive requirements to carry transponders and disclose to the coastal State any
information gathered during the transit. A final tactic might be to build upon the
suggestion of prominent publicists who argued in an earlier volume of the "Blue
Book" series that naval warfare doctrines like blockade and neutrality are no lon-
ger viable in the post-UN Charter era,120 and would thus provide no authority for
interfering with shipping in a manner inconsistent with the 1982 LOS Convention.
Lest the reader think my goal here is to feed ideas to the nation's enemies, let me
assure you I have no such intent. My goal is to alert public and military officials to
the risk that their assertions, whether in strategy documents or banner displays,
can have serious unintended consequences. A message intended to raise the morale
of service members or garner service support in congress might lead to legal
pushback from opponents within and beyond the nation, in ways that create un-
welcome and avoidable friction over access to the commons. The Navy war games
strategies. Why not war game strategic communications? Why not ask your red
team's legal expert to game a response to any proposal for a "command of the com-
mons" campaign?
Conclusion
De facto command of the commons will be seen by many as an unattainable goal in
an age of asymmetric warfare against amorphous enemies who operate through
dispersed cells. Those who confidently speak of having such command must be
prepared to answer the practical questions regarding how the putative "command"
would fare in response to an adversary's war plan that calls for the targeting of all of
the satellites and submarine cables on which the elaborately networked command
depends in the first 96 hours. The command advocates must also address the eco-
nomics of obtaining and maintaining command. The cost of restoring the Army
and Marine Corps to their pre-Operation Enduring Freedom/Operation Iraqi
37
Command of the Commons Boasts: An Invitation to Lawfare?
Freedom readiness levels will almost certainly make it impossible to build and
maintain the resources effective command would require. It is unlikely that the
world will soon realize the dream that we will beat our collective swords into plow-
shares. But the coming budget showdown in the United States does suggest that
there is a growing risk that in the coming decade four Navy aircraft carriers might,
in effect, be turned into armored Humvees for the Fleet Marine Force.121
Law is a vital enabler for liberal democracies and an important safeguard for our
military forces. That law respects the sovereign equality of States and precludes any
State from asserting dominion over the commons. Strategic statements that sug-
gest a cavalier disregard for legally protected rights will almost certainly generate
resentment and produce undesired effects. Those who might be tempted to post
banners announcing "command of the commons" would also do well to reflect on
what is to be learned from the "strategic communications" panel that follows in
Part III of this volume. To make such a claim in peacetime, while the United States
is simultaneously lobbying other States to join in a 1,000-ship navy to meet the ur-
gent need for maritime security, disserves the national interest. And in an age when
much of the world and virtually all of the media seem bent on discrediting the US
defense establishment, claims to a "command of the commons" seem unnecessar-
ily provocative.122
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Craig H. Allen
Appendix
Command of the Commons*
Command of the Commons is the key military enabler of the United States.
The United States now enjoys command of the commons — command of the sea
(including undersea), air, space and cyberspace. While other States can use the
commons in peacetime, the United States guarantees their freedom to navigate the
sea, air or space. Command of the commons is the key military enabler of the
United States' global power position. It allows us to utilize other sources of power,
including our own economic and military might, as well as the economic and mili-
tary might of our allies.
How do we maintain command of the commons?
Maintaining command of the sea/undersea. Command of the sea allows us to pro-
ject our national power and influence, and also enhances our country's economic
prosperity. 99% of the volume — and 80% of the value — of the world's interconti-
nental trade moves by sea. The Air Force provides battle space management, preci-
sion navigation, weather services, close air support targeting and air refueling for
both military and commercial users to solidify United States control over the sea.
From time to time the superstructure of tactics has to he altered or wholly torn down; hut
the old foundations of strategy so far remain, as though laid upon a rock.
Alfred Thayer Mahan
Maintaining command of the air. Unsurpassed by any nation, the United States Air
Force maintains joint air and space dominance across the globe. Specialized attack,
jamming and electronic intelligence aircraft combined with well-trained, profes-
sional airmen allows extensive control and exploitation of air, space and near-
space domains. Given the superior capabilities the Air Force possesses, the United
States is able to deter enemy threats and ensure forward operations providing an
essential contribution to global security.
Approximate text of a display in the Pentagon in 2006 (any formatting errors are mine alone).
39
Command of the Commons Boasts: An Invitation to Lawfare?
Freedom from attack; freedom to attack.
Maintaining command of space. Maintaining command of space allows the
United States to see across the entire globe in order to gather vast amounts of useful
information. Over the last 50 years the United States has invested $830 billion in
space assets. Through capabilities developed and executed by the Air Force, the
United States can track and identify military targets with fidelity and communicate
this actionable information in a timely fashion.
See first — understand first — act first.
Maintaining command of cyberspace. The new strategic communication of the
21st century is cyberspace. Like its conceptual predecessor, cyberspace is an interna-
tional domain of trade and intercontinental communication that connotes not only
the Internet but an area of information and cognition that includes the channels of
mass media and finance. Command of cyberspace can increase, sustain or diminish a
nation's position of power in economic, diplomatic or military terms.
A new medium for communications, command and control.
40
Craig H. Allen
Notes
1. George Gordon (Lord Byron), Childe Haroldes Pilgrimage (1812-1818). The term
"childe" was a medieval title for a young man who was a candidate for knighthood.
2. King Canute has been unfairly maligned for centuries. The "authoritative" version of the
king's apocryphal encounter with the sea makes it clear that the king never believed he could
hold back the tides.
3. Rudyard Kipling, The Crab that Played with the Sea, in JUST SO STORIES (1902) (attribut-
ing tidal cycle to Pau Amma, the disaffected crab).
4. Peter Schwartz, Inevitable Surprises: Thinking Ahead in Time of Turbulence
(2003). Schwartz argues that we live in a time of "perpetual discontinuity," a time in which
"bombshells and shockers" are part of everyday life.
5. See generally Department of Defense, National Security and the Convention on the Law
oftheSea(2ded. 1996).
6. My thanks to the 2006 International Law Department Conference Chair, Rear Admiral
and Stockton Professor Jane Dalton, for her notes on the text of the Pentagon banner. They are
reproduced in the appendix. Any errors in recording are mine alone.
7. The National Defense Strategy limits its definition to "space, international waters and
airspace, and cyberspace." Department of Defense, National Defense Strategy of the United
States 13 (Mar. 2005). Vice Admiral Jacoby argues for a broad definition of the global commons
"if it is to be a useful construct in this era of globalization, rapid information age advancements,
and the threats to terrorism and weapons of mass destruction." Interestingly, he would add "un-
governed areas," like parts of Somalia where there is no effective government and may therefore
serve as a haven for terrorists, as part of the global commons. Lowell Jacoby, The Global Com-
mons and the Role for Intelligence, which is Chapter III in this volume, at 51.
8. The Department of Defense Dictionary defines "cyberspace" as "the notional environ-
ment in which digitized information is communicated over computer networks." Chairman of
the Joint Chiefs of Staff, Joint Publication 1-02, DoD Dictionary of Military and Associated
Terms 138 (Apr. 2001, as amended through Aug. 2006) [hereinafter DoD Dictionary].
9. "Battlespace" is defined as "the environmental factors, and conditions which must be
understood to successfully apply combat power, protect the force, or complete the mission. This
includes the air, land, sea, space and the included enemy and friendly forces, facilities, weather,
terrain, the electromagnetic spectrum, and information environment within the operational ar-
eas and areas of interest." DoD Dictionary, id. at 64. The principal battlespace long ago shifted to
the littorals and landward, where asymmetric warfare is the most effective. See the discussion be-
low on naval and maritime strategies of the 1990s.
10. Lawyers fond of the bundle-of- sticks analogy explain that "sovereignty" denotes the full
bundle of sticks, while usufructuary rights of innocent or transit passage represent far fewer
"sticks." A variety of legal labels have been attached to the seas and the interests of the States in
those seas. One debate that concerned the deep seabed divided those who held the res nullius
view from those who espoused the res communis approach. In his dissent in United States v. Cali-
fornia, Justice Frankfurter concluded that the majority was confusing the concepts of imperium
and dominium. He explained that the Roman law concept of dominium was concerned with
property and ownership, while imperium related to political sovereignty. United States v. Cali-
fornia, 332 U.S. 19 (1947) (Frankfurter, J. dissenting).
11. National Defense Strategy, supra note 7, at 13.
12. Webster's II New Riverside University Dictionary (1988).
41
Command of the Commons Boasts: An Invitation to Lawfare?
13. Vern Clark, Sea Power 21: Projecting Decisive Joint Capabilities, U.S. NAVAL INSTITUTE
Proceedings, Oct. 2002, at 32.
14. Royal Australian Navy, Australian Maritime Doctrine - RAN Doctrine l -
2000 (2000), available at http://www.navy.gov.au/spc/amd/amdintro.html [hereinafter AUS-
TRALIAN Maritime Doctrine] .
15. The DoD Dictionary defines "capability" as " [t] he ability to execute a specified course of
action. (A capability may or may not be accompanied by an intention.)" DoD Dictionary, supra
note 8, at 76. The National Defense Strategy adopts a capabilities-based planning approach that
links capabilities to joint operating concepts across a broad range of scenarios. National Defense
Strategy, supra note 7, at 11. One writer defines military capability as "simply the ability to
achieve a desired effect in a specific operating environment." He also defines military capability
as having three pillars: readiness, sustainability and force structure. Alan Hinge, Preparedness,
excerpted at http://www.defence.gov.au/RAAF/organisation/info_on/operations/military
_capability.htm.
16. If "capability" is understood to refer to the nature of the ability, "capacity" refers to the
amount of that ability that can be delivered in a particular period of time.
17. An intent to command the commons does not necessarily imply a primacy strategy.
18. In its section on "command of the sea," the Australian doctrine concludes:
A modern analyst [*] has noted that all these commentators were interested in war and
they were concerned with dominance. They were acutely conscious of the historical
advantages that lay with the utilisation of the sea to further national power. One of the
first products of their thought was the concept of command of the sea, which was
considered to be the principal objective of naval forces operating in a maritime
campaign. This is defined as the possession of such a degree of superiority that one's
own operations are unchallenged by the adversary, while the latter is incapable of
utilising the sea to any degree.
Australian Maritime Doctrine, supra note 14, at 37.
*The "modern analyst" referred to is Rear Admiral J. Richard Hill (Royal Navy, ret.), author of
Maritime Strategy for Medium Powers (1986).
19. Barry R. Posen, Command of the Commons: The Military Foundation of U.S. Hegemony,
28 International Security, Spring 2003, at 5-46. See also Barry R. Posen, Inadvertent Es-
calation: Conventional War and Nuclear Risks (1992).
20. Definitions of "hegemony" vary, and I was not able to find a clear definition of what con-
stitutes a hegemonic grand strategy. One source describes hegemony as the dominance of one
group over other groups, with or without the threat of force, to the extent that, for instance, the
dominant party can dictate the terms of any intercourse to its advantage. It seems clear that the
term has accumulated a distinctly sinister connotation over the past ten years.
2 1 . Paul M. Kennedy, The Rise and Fall of British Naval Mastery (1976). Posen ob-
served that Kennedy distinguished "naval mastery" from a temporary, local naval superiority.
Posen, supra note 19, at 8.
22. Posen, supra note 19, at 44.
23. Vice Admiral Jacoby concluded that command of the commons was not a realistic goal,
particularly given the limits on intelligence. As he put it, "If we attempt to know everything
about everyone all the time, we will fail." Jacoby, supra note 7, at 53.
24. The secretary of defense asserts that uncertainty is "the defining characteristic of today's
strategy threat environment." National Defense Strategy, supra note 7, at 2. In assessing claims to
command of the commons, the entire threat environment, including threats from irregular, cat-
astrophic and disruptive threats, must be considered. Id. at 2-3.
42
Craig H. Allen
25. Navy ranks have dropped below 350,000 (down 220,000 from its 1991 level). Active duty
Marine Corps strength is about half that number. See also Summary of Remarks by Chief of Naval
Operations, Admiral Mike Mullen, at West 2006, January 12, 2006, in Neal Thompson, West
2006 Wrap Up, U.S. NAVAL INSTITUTE PROCEEDINGS, Feb. 2006, at 42 (reporting that the Navy's
current fleet strength of 281 ships is not enough to meet the service's growing responsibilities,
which include maintaining readiness to fight on two fronts, combating terrorist activities, drug
and weapons trafficking, and piracy at sea, along with rescue and recovery efforts in the wake of
Hurricane Katrina and the 2004 Asian tsunami).
26. United Nations Conference on Trade and Development, Review of Marine Transport,
2005, Annex III, at 123, available at http://www.unctad.org/en/docs/rmt2005annexes_en.pdf.
The precise count was 623,626. 1 admit that many of those are small craft, but how large must a
vessel be to serve as a launching platform for a Man-Portable Air Defense System (MANPADS)
missile or, for that matter, a cruise missile?
27. In late 2002, Spanish warships intercepted the freighter So San while on the high seas off
the coast of Yemen. The vessel was suspected of transporting missiles to an unknown destina-
tion. A boarding team of Spanish Marines from the Navarra, later joined by US Navy personnel,
conducted a non-compliant boarding of the So San, and during the subsequent search discov-
ered North Korean-made Scud missiles and components hidden beneath the vessel's cargo of
bagged cement. When it was determined that there was no basis to seize the vessel or her cargo,
the vessel was released. See Nuclear Threat Initiative, North Korea: U.S., Spanish Forces Seize Scud
Shipment, Dec. 11, 2002, available at http://www.nti.Org/d_newswire/issues//2002/12/ll/
7p.html.
28. Norman Polmar, Hezbollah Attack: Lessons for the LCS?, U.S. NAVAL INSTITUTE PRO-
CEEDINGS, Sept. 2006, at 88 (describing the July 21, 2006 attack on the Israel Navy Ship (INS)
Hanit (a corvette) by a C-802 cruise missile).
29. US Claims that China has Used Lasers to Attack Satellites, JANE'S DEFENCE WEEKLY, Oct.
18, 2006, at 7. The article points out that a high-altitude nuclear explosion would wipe out US
low-earth-orbit satellites.
30. See generally COMPUTER NETWORK ATTACK AND INTERNATIONAL LAW (Michael N.
Schmitt & Brian T. O'Donnell eds., 2002) (Vol. 76, US Naval War College International Law
Studies).
31. The US Armed Forces envision a global information grid (GIG) that stretches from the
commander in chief to deployed units. An examination of its "teleport" schematic reveals the
GIG's dependence on satellites. Chairman of the Joint Chiefs of Staff, Joint Publication 6-0, Joint
Communications System, at II- 1-24 (2006).
32. Lawrence Spinetta, Cutting China's String of Pearls, U.S. NAVAL INSTITUTE PROCEED-
INGS, Oct. 2006, at 40-42.
33. The vessels, assigned to an expeditionary strike group carrying the 26th Marine Expedi-
tionary Unit, were fired at with Katyusha rockets and mortars during a port call in the Jordanian
Red Sea port of Aqaba on August 19, 2005. None of the ships were hit.
34. US Marine Corps, Small Wars Manual (1940) (declassified in 1972).
35. Thomas X. Hammes, The Sling and the Stone: On War in the 21st Century
(2004). See also MARTIN VAN CREVELD, THE TRANSFORMATION OF WAR (1991).
36. National security strategy is defined as "[t]he art and science of developing, applying,
and coordinating the instruments of national power (diplomatic, economic, military and infor-
mational) to achieve objectives that contribute to national security. Also called national strat-
egy' or 'grand strategy'." DoD Dictionary, supra note 8, at 362.
43
Command of the Commons Boasts: An Invitation to Lawfare?
37. See Oliver Wendell Holmes, Jr., The Common Law l (1881) ("The life ofthe law has
not been logic, but experience").
38. See, e.g., THOMAS KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (1962).
39. See, e.g., ALVIN TOFFLER, FUTURE SHOCK (1970).
40. SCHWARTZ, supra note 4.
41. Following a relatively minor defeat in the battle at Arginusae, in which Athens lost 12
ships, the Athenian civilian leaders executed all of their top naval commanders, destroying the
morale of their navy. Shortly thereafter, the Spartan general-cum-naval commander Lysander
defeated the Athenian navy at the battle of Aegospotami, destroying 168 Athenian ships. See gen-
erally Donald Kagan, The peloponnesian War (2003).
42. Alfred Thayer Mahan, The Influence of Sea Power Upon History 1660-1783, at
25(5thed. 1894).
43. It is true that he also argued that navies exist for the protection of commerce, id. at 26,
but the means of protection come back to sea power. At the same time, for Mahan, "[s]ea power
in the broad sense . . . includes not only the military strength afloat that rules the sea or any part
of it by force of arms, but also the peaceful commerce and shipping from which alone a military
fleet naturally and healthfully springs, and on which it securely rests." Id. at 28.
44. His vision was taken up and acted upon by a former assistant secretary ofthe Navy who
ascended to the presidency in 1901, at the age of 43. Just how much Admiral Mahan's thinking
influenced Theodore Roosevelt's decisions to send Admiral Dewey and his Great White Fleet of
four battleship squadrons around the world (1907-19.09) or to construct a canal across the Pana-
manian isthmus (1904-1914) is a matter of speculation.
45. JULIAN CORBETT, SOME PRINCIPLES OF MARITIME STRATEGY, pt. Ill, ch. I (1911).
46. Corbett explains in his chapter on command ofthe sea: "That this vital feature [com-
mand ofthe sea] of naval warfare should be consecrated as a maxim is well, but when it is carica-
tured into a doctrine, as it sometimes is, that you cannot move a battalion oversea until you have
entirely overthrown your enemy's fleet, it deserves gibbeting." Id. at 101. The "gibbet" was a
form of gallows, where executed criminals were hung for public display.
47. Id., pt. Ill, ch. I.
48. Mat 87.
49. Samuel P. Huntington, National Policy and the Transoceanic Navy, U.S. NAVAL INSTI-
TUTE PROCEEDINGS, May 1954, at 483. Huntington pronounced that:
The fundamental element of a military service is its purpose or role in implementing
national policy. The statement of this role may be called the strategic concept of the
service If a military service does not possess such a concept, it becomes purposeless,
it wallows about amid a variety of conflicting and confusing goals, and ultimately it
suffers both physical and moral degradation.
A military service capable of meeting one threat to the national security loses its reason
for existence when that threat weakens or disappears. If the service is to continue to
exist, it must develop a new strategic concept related to some other security threat.
50. Huntington likely could not have been expected to foresee the Soviet's rapid naval
buildup after the embarrassing October 1962 Cuban missile encounter. See, e.g., Donald
Chipman, Admiral Gorshkov and the Soviet Navy, AIR UNIVERSITY REVIEW (July/ Aug. 1982),
available at http://www.airpower.maxwell.af.mil/airchronicles/aureview/1982/jul-aug/chipman
.html; David Fairhall, Russian Seapower: An account of Its Present Strength and
Strategy 18 (1971).
51. John Keegan, The Price of Admiralty: The Evolution of Naval Warfare 267
( 1988). Apparently, Admiral Raymond Spruance, who commanded Carrier Task Force 16 at the
44
Craig H. Allen
Battle of Midway, disagreed. He is reported to have said that "the submarine beat Japan." See AL-
EXANDER P. deSeversky, Victory Through Air Power 70 (1943).
52. KEEGAN, supra note 51, at 272. Although the book was written in 1988, shortly after the
Falklands-Malvinas conflict, he does not include the naval battles in that conflict within his anal-
ysis.
53. JOHN F. LEHMAN, Jr. COMMAND OF THE SEAS 116-17, 120(1988) (reporting that some
commentators objected that claims to maritime "superiority" might be newly provocative to the
Soviets).
54. US Navy Department, . . . From the Sea: Preparing the Naval Service for the 21st Century
(1992), reprinted, with commentary, in U.S. NAVAL STRATEGY IN THE 1990S: SELECTED DOCU-
MENTS 87-100 (John B. Hattendorf ed., 2006) (Vol. 27, US Naval War College Newport Papers).
Volume 27, Professor Hattendorf s most recent Newport Paper, continues the work he began in
volume 19. JOHN B. HATTENDORF, THE EVOLUTION OF THE U.S. NAVY'S MARITIME STRATEGY,
1977-1986 (2004) (Vol. 19, US Naval War College Newport Papers). Peter M. Swartz of the Cen-
ter for Naval Analyses has compiled a study titled "US Navy Capstone Strategies and Concepts
(1970-2006)." The study is available on The John Hopkins University Applied Physics Labora-
tory website, http://www.jhuapl.edu/maritimestrategy/historic/overview.htm (last visited Feb.
13,2006).
55. US Navy Department, Forward . . . From the Sea (1995), reprinted, with commentary, in
U.S. Naval Strategy in the 1990s, supra note 54, at 149-158.
56. The Royal Australian Navy Doctrine explains:
Command of the sea was theoretically achievable through the complete destruction or
neutralisation of the adversary's forces, but it was a concept that, however historically
valid, became increasingly unrealistic when naval forces were being faced by a range of
asymmetric threats brought about by technological innovations such as the mine, the
torpedo, the submarine and the aircraft. Furthermore, attempting to command the sea
carried the risk of dissipating resources by a failure to recognise that the sea, unlike the
land, was a dynamic medium and that the value of maritime operations was in relation
to the use of the sea for movement and not for possession of the sea itself. Julian
Corbett, in particular, recognised these dilemmas. He pointed out that all naval conflict
was fundamentally about the control of communications. With this in mind, Corbett
qualified the concept of command of the sea, a process which led in the 1970s to the
development of the contemporary term sea control.
Australian Maritime Doctrine, supra note 14, at 38.
57. Jan S. Breemer, The End of Naval Strategy, 22 STRATEGIC REVIEW 40 (1994). Not every-
one agreed. In 1999, noted grand strategist Colin Gray's Modern Strategy argued that Mahan was
(mainly) right. COLIN S. GRAY, MODERN STRATEGY 217-227 (1999) (concluding that Admiral
Mahan was "wiser than his critics"). After criticizing Paul Kennedy's treatment of Mahan, Gray
goes on to opine that Mahan might be the most under-rated theorist of modern strategy. Id. at
217.
58. Posen, supra note 19, distinguishes hegemony from primacy. See also STEPHEN WALT,
Taming American Power: The Global Response to U.S. Primacy (2006); Stephen M. Walt,
American Primacy: Its Prospects and Pitfalls, 55 NAVAL WAR COLLEGE REVIEW 9 (2002); Stephen
G. Brooks & William C. Wohlforth, American Primacy, 81 FOREIGN AFFAIRS 20 (2002).
59. Infra note 61.
60. He explains that "[pjerhaps the first problem that primacy will create for the U.S. com-
mand of the commons is greater difficulty in sustaining, improving, and expanding the global
base structure that the United States presently enjoys." Posen, supra note 19, at 45.
45
Command of the Commons Boasts: An Invitation to Lawfare?
61. The White House, The National Security Strategy of the United States of America 29-30
(2002), available at http://www.whitehouse.gov/nsc/nss.pdf.
62. The White House, The National Security Strategy of the United States of America, Intro-
duction (Mar. 2006), available at http://www.whitehouse.gov/nsc/nss/2006/nss2006.pdf. See
also National Defense Strategy, supra note 7, at 5 ("We will have no global peer competitor and
will remain unmatched in traditional military capability").
63. Chairman of the Joint Chiefs of Staff, JointVision 2020, at 6 (June 2000) (defining full
spectrum dominance as "the ability of US forces, operating unilaterally or in combination with
multinational and interagency partners, to defeat any adversary and control any situation across
the full range of military operations"). See also Chairman of the Joint Chiefs of Staff, National
Military Strategy of the United States 23-26 (2004). Beginning in 2004, the Joint Vision docu-
ment is incorporated into the National Military Strategy.
64. See 2006 National Security Strategy, supra note 62, Introduction (our strength "rests on
strong alliances, friendships, and international institutions"); National Defense Strategy, supra
note 7, at 5 (listing as a vulnerability: "[o]ur capacity to address global security challenges alone
will be insufficient"); id. at 18 ("our security is inextricably linked to that of our partners").
65. National Defense Strategy, supra note 7, at 12.
66. Mat 13.
67. The White House, National Strategy to Combat Weapons of Mass Destruction (Sept.
2006) [hereinafter NS-CWMD], available at http://www.whitehouse.gov/news/releases/2002/
12/ WMDStrategy.pdf.
68. The White House, National Strategy for Combating Terrorism (Dec. 2002; updated and
reissued 2006) [hereinafter NS-CT], available at http://www.whitehouse.gov/nsc/nsct/2006/
nsct2006.pdf.
69. NS-CWMD, supra note 67, at 6.
■> 70. NS-CT, supra note 68, at 19.
7 1 . Text and commentary available at http://www.usinfo.state.gov/products/pubs/proliferation.
72. An overview of the "1000-ship navy" concept is available at http://www.janes.com/
defence/naval_forces/news/jfs060612_l_n.shtml.
73. The White House, National Security Presidential Directive 41 /Homeland Security Presi-
dential Security Directive 13, at 5-6 (Dec. 21, 2004) (NSPD-41/HSPD-13), available at http://
www.fas.org/irp/offdocs/nspd/nspd4 1 .pdf.
74. Id. at 2.
75. The White House, National Strategy for Maritime Security (2005), available at http://
www.whitehouse.gov/homeland/4844-nsms.pdf. The supporting plans include the National
Plan to Achieve Domain Awareness, Global Maritime Intelligence Integration Plan, Maritime
Operational Threat Response Plan, International Outreach and Coordination Strategy, Mari-
time Infrastructure Recovery Plan, Maritime Transportation System Security Plan, Maritime
Commerce Security Plan, and Domestic Outreach Plan.
76. Joseph L. Nimmich & Dana A. Goward, Maritime Awareness: The Key to Maritime Secu-
rity, which is Chapter IV in this volume, at 61-64.
77. Remarks as delivered by Admiral Mike Mullen, Current Strategy Forum, Naval War Col-
lege, Newport, Rhode Island, June 14, 2006, available at http://www.navy.mil/navydata/people/cno/
Mullen/CNO_CSF 140606.pdf. See also Brendan M. Greeley, Jr., The CNO Calls for a New Mari-
time Strategy, U.S. NAVAL INSTITUTE PROCEEDINGS, July 2006, at 6.
78. Clark, supra note 13, at 32.
46
Craig H. Allen
79. Chief of Naval Operations, Navy Strategic Plan in Support of Program Objective Memo-
randum 08 (May 2006), available at http://www.jhuapl.edu/MaritimeRegistry/Documents/
nsp_2006.pdf.
80. Chief of Naval Operations & Commandant of the Marine Corps, Naval Operations Con-
cept 2006, available at http://www.mcwl.quantico.usmc.mil/concepts/ServiceConcepts/
NOC%20FINAL%2014%20Sep.pdf.
81. Supra note 72.
82. The CNO has defined the 1,000-ship navy as a network of international navies, coast
guards, maritime forces, port operators, commercial shippers and local law enforcement, all
working together.
83. See William J. Clinton, A National Security Strategy of Engagement and Enlargement
(Feb. 1995), available at http://www.au.af.mil/au/awc/awcgate/nss-95.pdf ("our engagement
must be selective"). The 1995 National Security Strategy included provisions for forward de-
ployments and power projection. Robert Art characterized the Clinton Strategy as one of selec-
tive engagement, a strategy Art advocates. ROBERT J. ART, A GRAND STRATEGY FOR AMERICA
(2003).
84. There are clearly elements of cooperative security in both the 2006 National Security
Strategy and the National Defense Strategy. See, e.g., National Defense Strategy, supra note 7, at
15.
85. Stephen Walt, In the National Interest, BOSTON REVIEW (Feb./Mar. 2005), available at
http://bostonreview.net/BR30.lZwalt. html.
86. see, e.g., walter russell mead, power, terror, peace, and war: america's
Grand Strategy in a World at Risk (2004); Christopher Layne, The Peace of Illu-
sions: American Grand Strategy From 1940 to the Present (2006); Colin Dueck, Re-
luctant CRUSADERS: POWER, CULTURE, AND CHANGE IN AMERICAN GRAND STRATEGY
(2006); G. John Ikenberry & Anne-Marie Slaughter, Forging a World of Liberty Under Law, U.S.
National Security In The 21st Century (Princeton University, Project on National Security), Sept.
26, 2006, available at http://www.wws.princeton.edu/ppns/report/FinalReport.pdf; Report of
the UN Secretary-General's High Level Panel on Threats, Challenges and Change, A More Secure
World: Our Shared Responsibility, U.N. Doc. A/59/565 (2004), available at http://www.un.org/
secureworld/.
87. THOMAS HOBBES, THE LEVIATHAN, ch. 17 (1651) ("covenants, without the sword, are
but words and of no strength to secure a man at all").
88. Hugo Grotius, The Freedom of the Seas: Or the Right Which Belongs to the
DUTCH TO TAKE PART IN THE EAST INDIAN TRADE (James Brown Scott ed., Ralph van Deman
Magoffin trans., 1916; reprinted 2001) (1608). Cynics might observe that the militarily weak
Dutch had no choice but to argue for such protection under the law against the much more capa-
ble English and Spanish. See ROBERT KAGAN, OF PARADISE AND POWER: AMERICA AND EUROPE
in the New World Order 10 (2003).
89. John Selden, Mare Clausum: Of the Dominion, Or, Ownership of the Sea (2004
reprint of the first edition by Lawbook Exchange Ltd.) (1635). Selden's book was written in 1617
or 1618 but was not published until 1635.
90. Le Louis, 2 Dods. 210, 165 Eng. Rep. 1464 (High Court of Admiralty 1817).
91. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3, re-
printed in 21 INTERNATIONAL LEGAL MATERIALS 1261 [hereinafter 1982 LOS Convention].
92. CARL VON CLAUSEWITZ, ON WAR 75 (ed. and trans, by Michael Howard & Peter Paret,
1984) (1827). He would not, however, ignore moral values in war. Id. at 137.
47
Command of the Commons Boasts: An Invitation to Lawfare?
93. George F. Kennan, American Diplomacy, 1900-1950 (1951). George Kennan is best
known as "X," the author of The Sources of Soviet Conduct, 25 FOREIGN AFFAIRS 566 (1947).
94. Philip Bobbitt, The Shield of Achilles: War, Peace and the Course of History
(2002). Bobbitt explains "What Wilson — and Roosevelt — understood quite clearly was the do-
mestic wellspring of a sustainable foreign policy. They sought popular endorsement by playing
the U.S. government's strongest card, the American commitment to constitutional ideas as law."
Id. at 362.
95. Clausewitz laments that "[everything in war is simple, but the simplest thing is diffi-
cult." CLAUSEWITZ, supra note 92, at 1 19. And the general's battlefields did not include 24-hour
news services, NGOs or congressional staffers.
96. 1982 LOS Convention, supra note 91, art. 136.
97. The most recent example was Israel's so-called "blockade" of Lebanon in the 2006 cross-
border conflict with Hezbollah. See Israel Imposes Blockade on Lebanon, REUTERS, July 13, 2006
(citing Israel military source who announced a "full naval closure on Lebanon, because Leba-
non's ports are used to transfer both terrorists and weapons to the terror organizations operating
in Lebanon").
98. The law of neutrality, which addresses the relationship between belligerents and neu-
trals, concerns questions of contraband, blockade and visit and search. The law of neutrality
must be distinguished from the law of armed conflict, which governs actions between and
among belligerents. See generally 10 MARJORIE M. WHITEMAN, DIGEST OF INTERNATIONAL LAW
644 (1968); 1 1 MARJORIE M. WHITEMAN, DIGEST OF INTERNATIONAL LAW ch. XXXIII (1968);
Hague Convention No. XII Concerning the Rights and Duties of Neutral Powers in Naval War,
Oct. 18, 1907, 36 Stat. 2415, reprinted in DOCUMENTS ON THE LAWS OF WAR 127 (Adam Roberts
& Richard Guelff eds., 3d ed. 2000); 4 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 409
(Rudolph Bernhardt ed., 2000) ("Ships: Visit and Search").
- 99. U.N. Charter art. 2, paras. 1, 4.
100. 1982 LOS Convention, supra note 91, arts. 89 ("No State may validly purport to subject
any part of the high seas to its sovereignty") and 137 ("No state shall claim or exercise sover-
eignty or sovereign rights over any part of the Area"). The "Area" is defined as the seabed and
ocean floor, and subsoil thereof, beyond the limits of national jurisdiction. Id., art. 1.
101. The second of the 1 4 Points President Wilson laid out in his address to Congress in 1 9 1 8
was "[a]bsolute freedom of navigation upon the seas, outside territorial waters, alike in peace
and in war, except as the seas may be closed in whole or part by international action for the en-
forcement of international covenants." Woodrow Wilson, Address to Joint Session of Congress,
Jan. 8, 1918, available at http://www.lib.byu.edu/~rdh/wwi/1918/14points.html.
102. See Report of the International Maritime Organization (IMO) Marine Environment
Protection Committee (MEPC), 53rd Session, July 2005, available at http://www.uscg.mil/hq/
gm/mso/docs/MEPC53_report_cable.doc.
103. 1982 LOS Convention, supra note 91, arts. 88, 141, 301.
104. Id., art. 92.
105. San Remo Manual on International Law Applicable to Armed Conflicts at
SEA 31-32, paras. 118-121 (Louise Doswald-Beck ed., 1995). See also 1 1 WHITEMAN, supra note
98, at §§ 1-6; ANNOTATED SUPPLEMENT TO THE COMMANDER'S HANDBOOK ON THE LAW OF
NAVAL OPERATIONS para. 7.6 (A.R. Thomas & James C. Duncan eds., 1999) (Vol. 73, US Naval
War College International Law Studies); Wolff Heintschel von Heinegg, Visit, Search, Diversion,
and Capture in Naval Warfare, Pts. I & II, 29 CANADIAN YEARBOOK OF INTERNATIONAL LAW 283
(1991) & 30 Canadian Yearbook of International Law 89 (1992).
48
Craig H. Allen
106. See US NAVAL WAR COLLEGE, MARITIME OPERATIONAL ZONES ch. 4 (2006) (law of na-
val warfare and zones).
107. Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610
U.N.T.S. 205. See, e.g., arts. I-IV.
108. Treaty on Open Skies, Mar. 24, 1992, S. Treaty Doc. No. 102-37 (1992), available at
http://www.state.gov/www/global/arms/treaties/openskil.html. Russia flew two open skies
flights over the United States (Alaska and the Southwest) in 2005 and planned four such flights
for 2006.
109. Confidence-building measures are seen by many as the key to providing the transpar-
ency necessary for effective arms control. Such measures may be found in the International
Atomic Energy Agency safeguards and in the Organization for the Prohibition of Chemical
Weapons (OPCW) challenge inspections under Article IX of the Convention on the Prohibition
of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their De-
struction, Jan. 13, 1993, 32 INTERNATIONAL LEGAL MATERIALS 800, reprinted in THE LAWS OF
ARMED CONFLICT 239 (Dietrich Schindler & Jiri Toman eds., 4th ed. 2004).
110. Mine warfare is an often cited example of a sea-denial strategy.
111. Measures to erode political support for basing or support facilities have been identified
as a key vulnerability for the US Navy's forward presence posture. Imagine a lawfare campaign
that successfully pressured the Spanish and Italian governments to terminate agreements for US
bases in Rota and Naples. See Owen R. Cote, Jr., Assuring Access and Projecting Power: The Navy
in the New Security Environment (MIT Security Studies Program paper, April 2002), available at
http://web.mit.edu/ssp/Publications/navy_report/navyreport.html.
112. Charles Dunlap, Legal Issues in Coalition Warfare: A US Perspective, 221, in THE LAW OF
War in the 21st Century: Weaponry and the Use of Force 221 (Anthony M. Helm ed.,
2007) (Vol. 82, US Naval War College International Law Studies). Lawfare was the subject of a
Roundtable on National Security convened by the Council on Foreign Relations on March 18,
2003.
113. The book, written in 1999 by People's Liberation Army (PLA) Colonels Qiao Liang and
Wang Xiangsui, lays out a strategy to defeat a technologically superior opponent, such as the
United States. One translation of the book is available at http://www.terrorism.com/documents/
TRC-Analysis/unrestricted.pdf.
114. See KAGAN, supra note 88, at 10. He explains:
George Washington, Alexander Hamilton, John Adams, and even Thomas Jefferson
were not Utopians. . . . They were realistic enough to know that they were weak, and
both consciously and unconsciously they used the strategies of the weak to get their way
in the world. . . . They appealed to international law as the best means of regulating the
behavior of nations, knowing well they had few other means of constraining Britain and
France. They knew from their reading of Vattel that in international law, 'strength or
weakness . . . counts for nothing. A dwarf is as much a man as a giant is; a small Republic
is no less a sovereign State than the most powerful Kingdom.'
1 1 5. Davida E. Kellogg, International Law and Terrorism, MILITARY REVIEW, Sept./Oct. 2005,
at 50-57.
116. Id. at 50
117. National Defense Strategy, supra note 7, at 5.
118. The phrase and its implications did not escape the media's attention. See Op-Ed, The
Pentagon and "Lawfare," WASHINGTON TIMES, Mar. 24, 2005, at A20.
49
Command of the Commons Boasts: An Invitation to Lawfare?
119. Consider, for example, General Assembly Resolution 3314 (XXIX) (1974), in which the
assembly adopted, without a vote, a definition of "aggression." The assembly's definition was
later picked up by the International Court of Justice in the case brought against the United States
by Nicaragua. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.),
1986 I.C.J. Rep. 1, para. 195 (June 27) (merits) (holding that the description in paragraph 3(g) of
the annexed definition "may be taken to reflect customary international law"). The tribunal
found it unnecessary to cite evidence of State practice or opinio juris to support its conclusion.
120. A.V. Lowe, The Commander's Handbook on the Law of Naval Operations and the Contem-
porary Law of the Sea, in THE LAW OF NAVAL OPERATIONS 109, 130-38 (Horace B. Robertson, Jr.
ed., 1999) (Vol. 64, US Naval War College International Law Studies); Mark W. Janis, Neutrality,
in supra at 148.
121. Former Naval War College president and Carter-era director of Central Intelligence Ad-
miral Stansfield Turner, is apparently ready to give up the carriers. Stansfield Turner, Do We
Need Carriers? U.S. NAVAL INSTITUTE PROCEEDINGS, July 2006, at 16.
122. See National Defense Strategy, supra note 7, at 5 ("Our leading position in world affairs
will continue to breed unease, a degree of resentment, and resistance").
50
Ill
Global Commons and the Role for
Intelligence
Lowell E. Jacoby*
Introduction
This article attempts to answer four questions concerning the global com-
mons and the role for intelligence in the evolving circumstances in which
transnational terrorism has replaced the military capabilities of a small set of po-
tential adversarial States to become the primary threat to the United States and its
interests. First, how broadly should the global commons be conceived (space, air,
surface, subsurface, seabed, cyberspace)? Second, what are the primary threats em-
anating from the global commons? Third, what role should elements of the intelli-
gence community play? How will they be integrated into a plan for command of
the commons? Finally, the Chief of Naval Operations and the National Strategy to
Achieve Maritime Domain Awareness1 call for a persistent intelligence, surveillance,
and reconnaissance (ISR) capability in the global maritime commons. What ob-
stacles will we face in achieving that? Are any of those obstacles legal ones?
Domains of the Global Commons
In a more rule-driven time, one or more of the space, air, surface, subsurface, seabed
and cyberspace domains might be excluded from the commons. Concepts such as
sovereignly, control of airspace or the seas, nation-State identity and prerogatives,
Vice Admiral, United States Navy (Ret.)
Global Commons and the Role for Intelligence
and territorial waters had great meaning. Much of the meaning of those concepts
and many of the accompanying rules are obsolete.
What forces have changed this situation? Globalization, the information age,
the threats of terrorism and weapons proliferation are some of the factors at work,
along with associated concerns over narcotics trafficking, smuggling and move-
ments of illegal aliens, just to name a few.
The threats have redefined the commons. We speak of "ungoverned spaces"
such as Somalia, or portions of nation-States where the government does not have
effective control, which is a relatively common occurrence in today's world. These
areas are part of the global commons. They become potential havens for terrorists,
or the source of other threatening activities. In the past, when nation-States lost
control of some of their territory it was typically of concern to that State and maybe
to its neighbors. Today, these situations are of far broader concern because of their
association with the global commons.
The information age has had a tremendous effect. Cyberspace is a difficult-to-
define, but an absolutely essential element of the global commons with great
potential for both good and evil. It's a largely ungoverned space apparently devoid
of strong international conventions, an extensive body of legal opinion and pre-
cedence, and effective enforcement mechanisms. The debate within the United
States over domestic surveillance is a manifestation of the issues concerning
cyberspace and its position as the nexus of the commons and threats in the infor-
mation age.
The components of the global commons are interconnected, interdependent
and mutually reinforcing, making the associated issues very complex. Consider the
following illustrative example. The threat is terrorist use of weapons of mass de-
struction (WMD) and the coordination of the planned operations occur over the
Internet using advanced commercial technologies combined with use of multiple
obscure dialects by a security conscious group with haven in ungoverned space.
The movement of associated personnel is through established smuggling routes,
the transportation of components for the weapon is facilitated by a narcotics net-
work and the final movement of WMD to the planned attack location takes advan-
tage of containers embedded in legitimate maritime trade. When viewed in this
context, both the scope of the problem, and the need to master the global com-
mons situation, come into focus. This scenario also captures the difficulties at-
tached to the intelligence problem — a problem of scale, scope, complexity and the
challenges presented by a highly accomplished foe.
52
Lowell £. Jacoby
The Primary Threats
Two conditions must exist for a threat to exist. An entity must have both the capa-
bility and intent to do harm.
The primary concerns are terrorism and proliferation of weapons of mass de-
struction. The worst case situation is the one where the two interconnect and ter-
rorist groups with broad reach possess WMD attack capabilities. In this situation,
capabilities and intent combine to present a threat of major proportions.
The global commons may play a key role in this threat scenario. The challenge
for intelligence is to present the information required by decision makers that will
enable them to defeat this threat. It is an awesome challenge and responsibility.
It is important to realize that a broad range of challenges to stability, economic
well-being, international commerce, health and welfare also originate or can be
abetted by employing the commons. Again, the intelligence challenges are
immense.
Finally, there's an additional capability that deserves great attention, and that is
the capability to disrupt or destroy the ability to communicate and access the data
that's the lifeblood of today's world and modern military capabilities. Major dis-
ruption or destruction of these capabilities could threaten the global economy.
The Role and Integration of the Intelligence Community
Command of the commons is not a realistic goal, if the global commons are
broadly defined. The ability of the adversary to hide and disguise activities, the lim-
ited value of traditional techniques such as deterrence and dissuasion, the pace of
globalization and information technology changes, the interconnected nature of
the problems, combine to make the concept of command of the commons in the
traditional sense of command of the sea unachievable.
I take this position based upon what I believe is a realistic appreciation of what
intelligence can achieve. If we attempt to know everything about everything all the
time, which is what command of the commons would entail, we will fail. The result
will be that we know some things about some things all the time and we will have
spread ourselves too thin to be effective in providing requisite knowledge to deci-
sion makers. Rather, the key is to focus our efforts and dominate those portions of
the commons that are integral to our priority objectives.
The key is to be selective and to prioritize our needs. Rather than control of the
commons, we should focus efforts on achieving domination of those portions of
the commons that are important at a specific time and place. This is akin to what is
typically done in counter-narcotics interdiction operations. Intelligence collection
53
Global Commons and the Role for Intelligence
and analysis, plus the operating forces, are focused on a specified area for a speci-
fied period of time. This focus is overlaid on a fundamental understanding of the
problem and operating patterns which has been achieved over time.
Intelligence must be agile and responsive to changing circumstances and deci-
sion makers priorities in this expansive common space. That requires intelligence
to simultaneously provide breadth and depth. Breadth provides the foundation for
the effort. It allows intelligence professionals to know something about everything
all the time. This breadth then enables the focused efforts needed to employ capa-
bilities and to inform decision makers as priorities are established.
Intelligence needs to be an integral part of the plan. The plan must establish pri-
orities. It is essential that intelligence planners work with operators and decision
makers to ensure that the intelligence capabilities are resourced and that the expec-
tations are realistic. The resultant intelligence plan needs to be an integral part of
the overall plan. And, as unforeseen circumstances are encountered, the agility and
responsiveness based upon intelligence breadth and depth will be tested. A key ele-
ment is that intelligence capabilities need to be in place early. They cannot be cre-
ated after the priorities change. By then it is too late.
Finally, intelligence capabilities must span from unclassified data that is avail-
able in the public domain to highly sensitive data collected by highly classified
means. These capabilities must encompass the data and expertise that friends and
allies can contribute to assist in solving these very difficult problems. The data must
be presented using the most modern information management techniques avail-
able and must reside on protected networks that employ the most advanced tools
and capabilities. And, since the output of the processes is knowledge, the data must
be processed through the minds of highly talented, dedicated and trained men and
women.
A Persistent ISR Capability
Persistent surveillance is the capability to linger on a specified problem for as long
as it takes to fully understand the issue or solve the problem. The problem may be
to track an individual ship. The problem maybe to monitor activities in a specified
port. The problem may be to understand the activities of a particular shipping
company that is potentially involved in illicit activities. The problem may be to un-
derstand the intentions of a specific individual. The problem may come down to
identifying and tracking a single container that is in intermodal international com-
merce. Obviously, these and other problems that are encountered are great in
terms of magnitude and complexity. It really is the issue of finding, and then main-
taining contact on that often-discussed needle in the haystack.
54
Lowell E. Jacoby
The solutions to the problems will come from a variety of sources ranging from
satellites in space, to human intelligence collectors, to examination of legal docu-
ments and financial records, to whatever sources of information may contribute to
solving the problem. Tracking that container, for example, requires a great deal of
international cooperation. The goal is to identify and begin the tracking at the
point of departure so it can be interdicted at the optimal point during its move-
ment. Once the target enters that intermodal transportation system, the surveil-
lance problem becomes very, very difficult.
There will be legal issues threaded throughout. I have great appreciation for the
close partnership that must exist between intelligence professionals and legal
counsel. That partnership must be in place throughout the intelligence process. It
must begin with the development of the plan and continue throughout the opera-
tion. That partnership needs to part of the overall plan. It can't be attached at the
end if it is to be effective.
Conclusion
The concept of global commons must be very broadly defined and encompass the
domains of space, air, surface, subsurface, sea beds and cyberspace if it is to be a
useful construct in this era of globalization, rapid information age advancements,
and the threats of terrorism and proliferation of weapons of mass destruction. The
domains of the global commons are interconnected, interdependent and mutually
reinforcing.
The capabilities of the US intelligence community, and those of friends and
allies, are integral to efforts to dominate the global commons. These intelligence
capabilities must be simultaneously broad and deep. Intelligence required to suc-
cessfully operate in the global commons will be derived through a broad variety of
sources from unclassified data that is publicly available to highly sensitive data col-
lected by highly classified means. The most modern information management
techniques must be applied to the data and the data must reside on secure networks
employing the most modern tools and capabilities.
Key to dominance in the global maritime commons will be an ability to provide
persistent surveillance. Persistent surveillance in the global maritime commons
will be achieved by fully integrating a broad variety of information sources into a
coherent, agile capability that allows analysts to generate the knowledge needed to
make informed decisions with respect to the global maritime commons.
The expanse and complexity of the global commons presents problems of scale,
scope and a convenient operating space for highly accomplished, sophisticated and
dedicated foes. Only by recognizing the broad expanse of the commons and
55
Global Commons and the Role for Intelligence
focusing our intelligence efforts on those portions that can yield the information
necessary to counter the wide array of threats can we address the new and emerging
security challenges of the twenty- first century.
Notes
1. Department of Homeland Security, National Strategy to Achieve Maritime Domain
Awareness (Oct., 2005), available at http://www.dhs.gov/xlibrary/assets/HSPD_MDAPlan.pdf.
56
IV
Maritime Domain Awareness:
The Key to Maritime Security
Joseph L. Nimmich and Dana A. Goward*
Maritime security is burdened by thousands of years of history and tradition.
We in the Coast Guard are reminded of this truism on a daily basis. One
particularly poignant reminder came in October of 2002, a scant thir-
teen months after the 9/11 attacks. In the middle of a weekday afternoon, a fifty-
foot long boat pulled up near the Rickenbacker Causeway in Miami, Florida and
offloaded 220 illegal aliens directly into the heart of downtown. Naturally, a news
helicopter was overhead and the event was almost instantly broadcast nationwide.1
The US Coast Guard is supposed to play a leading role in preventing these kinds of
incidents, and the commandant of the Coast Guard at the time, Admiral Thomas
Collins, ended up briefing the secretary of transportation. After he was told of the
incident, the secretary, in some disbelief, asked Admiral Collins, "How in the
world did they get through?" The Admiral's reply was "Sir, with all due respect,
how did they get through what?"
This is an amusing story for those of us in the maritime community because we
have long known and accepted the openness and vulnerabilities of our many port
and coastal areas. It should be an instructive story for us as well, though, as it makes
two important points. First, it dramatically reminds us of the vulnerability of these
* Rear Admiral Joseph L. Nimmich, US Coast Guard and Captain Dana A. Goward, US Coast
Guard (Ret.). An earlier version of this article was published in the April 2007 issue of the U.S.
Naval Institute Proceedings and is republished with permission.
Maritime Domain Awareness: The Key to Maritime Security
crucial parts of our transportation and economic systems. Our ports are essential
trans-shipment nodes that are responsible for 95 percent of our trade. Many are
highly specialized; all have high concentrations of expensive, difficult to replace in-
frastructure. Most ports are in population centers — and all are economic engines.
Yet security has often been seen as an expensive obstacle, rather than an essential
contributor, to the long-term, uninterrupted free flow of commerce.
Second, the incident in Miami, and the Secretary of Transportation's reaction,
tell us that we maritime professionals fall far short of the expectations of govern-
ment leaders and the populations they represent. The great majority of our leaders
and citizenry are landsmen with no maritime experience at all. They are familiar
with air travel, as a large portion of the population has traveled at least once by air-
plane. They know from movies and television that aircraft, airports, and the skies
are monitored by radar operators, and that aircraft off course or in trouble can be
quickly identified and assisted. Their experience at airports tells them that the flow
of air traffic is orderly, efficient, fairly secure and much the same from one place to
the next. Because few have experience with maritime transportation, they uncon-
sciously assume — and expect — that the kind of orderliness and security they see in
aviation also exists at seaports and on the ocean. When they discover to the con-
trary, they are disappointed, and often wonder why it is that the maritime commu-
nity has not entered the modern age.
A part of the answer is again that maritime security is burdened by thousands of
years of history and tradition. Unlike aviation, which sprang to life as we know it
today in less than a hundred years and which has a coherent, relatively complete ar-
chitecture of policies and supporting systems, maritime practices have evolved
over centuries. Maritime policies and supporting systems have likewise evolved
and have developed ad hoc. Unlike aviation where transparency has been the hall-
mark of safety and has been improved even more for security purposes, the mari-
time domain has long been marked by a culture of secrecy that now works against
both individual community members and society as a whole.
Policy and Systems Architectures
The world's aviation system has a clearly articulated policy architecture and is sup-
ported by a well-developed systems architecture designed to monitor compliance
and aid enforcement of the rules regulating flight operations. Maritime transporta-
tion, while there are local exceptions around the globe, has generally evolved over
the centuries into a hodgepodge of interconnecting, often disparate policies, sup-
ported by semi- or completely incompatible sensor and information systems.
58
Joseph L. Nimmich and Dana A. Goward
In the United States, the maritime domain is made even more complex by
highly fragmented, some might say near chaotic, governance. A National Academy
of Sciences study determined there were at least eighteen federal agencies that have
responsibility for regulating some aspect of US maritime transportation and that
there is little to no formal method of coordinating their efforts.2 Add to these fed-
eral agencies a variety of agencies and organizations from the individual states,
coastal cities, specially commissioned port authorities, marine exchanges, private
facility operators, etc., and you have a truly dizzying picture. It explains the old say-
ing that, "if you have seen one port, you've just seen one port." There are 361 com-
mercial seaports in the United States and all have different combinations of
geography, governance, sensors, operating rules, ownership, mix of activities and
so on. It is not a situation that easily lends itself to improvements in safety, security,
or the efficient flow of commerce.
While the attacks of September 1 1 were conducted through the aviation sys-
tem, the pre-existing aviation systems and policy architectures allowed for an ex-
ceptionally rapid and coordinated response. Near real-time visibility of the
airspace of the United States and effective means of communication throughout
the aviation system meant that the threat could rapidly be contained. Over five
thousand aircraft were safely landed in less than two hours. Afterward, those same
policy and system architectures provided forensics and made it very easy to insert
policy changes and systems modifications to prevent further attacks. While one
can debate whether or not those changes were the correct ones, once decided
upon, they were easily and effectively implemented as a part of overall, coherent
policy and systems structures.
We do not have the same advantages in the maritime domain. There is no mari-
time equivalent of the National Airspace System Plan3 that details the various parts
of the system and how they are to work together and ensure that each is appropri-
ately considered in governance. Maritime system policies, developed by eighteen
different federal agencies, have no uniting structure and, in aggregate, have huge
gaps. As one example, over thirteen million recreational craft have virtually unfet-
tered access to the nation's commercial and military harbors. While the individual
states require that these boats be registered, many have no or lax titling practices,
making boat registration much easier to obtain legitimately or fraudulently. And,
unlike motor vehicle registrations, vessel data is not easily exchangeable and acces-
sible by enforcement officials. An enforcement officer in Florida, for example, has a
very difficult time, if it can be done at all, verifying information for a vessel that ap-
pears to be registered in Michigan. Further, and most importantly, few boaters are
currently required to know how to safely operate their vessel and understand mari-
time rules and regulations. Most states do not even require that a boat operator
59
Maritime Domain Awareness: The Key to Maritime Security
carry personal identification. Imagine the impact on highway safety and law en-
forcement if drivers were not only untrained and unlicensed, but not even required
to carry photo identification.
Compounding the lack of a complete and coherent maritime policy structure is
a lack of systems to enforce those policies we do have. In 2003, four Cuban Coast
Guard members decided they no longer wanted to work in Castro's Cuba. One
night they drove their small patrol boat north until, at about three o'clock in the
morning, they found the Hyatt Hotel marina in Key West, Florida. They walked
around Key West for two hours until they located a patrolling police officer and
surrendered.4 One can imagine them handing over their side arms and explaining
that their AK-47s were still in the boat. Despite comprehensive laws that establish
strict requirements for international maritime arrivals, our lack of adequate mari-
time surveillance results in an average of fourteen successful, illegal, malicious in-
cursions into the United States each and every week. We can only hope that the
damage is limited to landing illegal migrants, tons of narcotics, and the occasional
well-armed Cuban Coast Guardsman.
A Culture of Secrecy
Another part of the burden of maritime history and tradition is a culture of secrecy.
Dealers in commodities don't want competitors to know the sources and destina-
tions of their cargos. Fishermen don't want others to fish their favorite spots. Owner-
ship of commercial vessels is often concealed through a network of contracts and
paper corporations. On the vast and largely ungoverned and unpoliced global com-
mons that are the world's oceans, being difficult to find has been key to protection
from pirates, the navies of hostile nations, and others that would do a vessel harm.
This tradition of secrecy, along with the nature of the sea and ships, has led to
maritime transportation being the preferred vector for some of the world's most
infamous and evil cargos. Slaves, contraband, narcotics, conventional weapons to
start a new war, or a weapon of mass destruction to inflict terror, all these and more
can be transported in greater quantities, and often with greater secrecy, by sea than
by any other mode. Maritime commerce brings near limitless good to the world,
but its culture of secrecy has allowed it to bring significant evil as well.
The international community has always struggled to maximize the good and
minimize the evil brought by maritime transportation. We want to take advantage
of the sea's bounty to feed our children but don't want to destroy the fishing
grounds and starve our grandchildren. We want to ensure the free flow of com-
merce but don't want illegal substances and people smuggled ashore. We want
freedom of navigation, but are concerned that a vessel carrying thousands of tons
60
Joseph L. Nimmich and Dana A. Goward
of explosive cargo can sail mere miles off our coast, en route from one foreign port
to another, with no obligation to report its position or course, or obey our direc-
tions. We are concerned that some day such a vessel will be transiting off one of our
ports or a defense facility or a large city when it suddenly turns toward shore — and
disaster will strike.
We understand that in an information age security lies not in secrecy, but in
transparency. And we are becoming convinced that it is time to begin shedding the
burden of thousands of years of maritime history and tradition.
So how shall this be done? Improving governance with a more coherent and sys-
tematic approach to maritime regimes (policies, rules, regulations, statutes) is cer-
tainly required. We must also ensure that sufficient patrol and enforcement assets
are deployed to deter and respond to violations of those policies. First and fore-
most though, we must understand the maritime domain and what is going on
within it, so that we can formulate good policy, effectively deploy assets and ensure
the uninterrupted free flow of commerce.
Maritime Domain Awareness — See, Understand, Share
Our goal must be to achieve " [a]n effective understanding of anything in the mari-
time environment that can effect [sic] the safety, security, economy, or environ-
ment of the United States," the definition of "maritime domain awareness" in the
National Strategy for Maritime Security.5 Achieving awareness will require that
maritime activities and actors become more transparent, that what is seen is prop-
erly understood, and that this visibility and understanding be shared as widely as
possible among members of the maritime community.
See.
We must overcome the traditional culture of secrecy and make all activity and ac-
tors more transparent. Evil can dwell only in dark and hidden places. Transparency
leads to self-correcting behavior by shining a light that exposes bad actors and rein-
forces the ethic of good ones. It levels the playing field by revealing the cheat and re-
moving his advantage. It improves safety and commerce by better informing users
of hazards, conditions and routes. And it helps us focus scarce enforcement re-
sources in the most important areas.
Understand.
Watching the flow of maritime activities and actors is of little use unless what is
being seen can be understood. Decision makers must be able to differentiate a nor-
mal and innocent scene from one containing anomalies that deserve further
61
Maritime Domain Awareness: The Key to Maritime Security
investigation. When available, intelligence, analysis and pattern recognition must
be integrated into a context of broad situational awareness to understand motives
and intent. The goal is to deter and prevent all threats and all hazards. Without un-
derstanding, the best surveillance system in the world will only be able to docu-
ment adverse events as they unfold.
Share.
If we are to be successful in our maritime safety, security, and stewardship efforts,
we will need to harness the abilities, authorities, time and efforts of all stakeholders.
"Unity of command" among various levels of our federal, state and local govern-
ments, agencies of foreign governments, industry partners, etc. is unachievable and
undesirable. Rather, we must foster "unity of effort" in pursuit of our mutual goals
and interests through proactive, aggressive information exchange. Sharing data,
analysis, operating pictures and the like as broadly as possible (given appropriate
security and permissions) will provide multiple benefits and help with at least two
significant problems:
• We don't know what we know. Information needed to make critical
decisions often exists but is not available and correlated by those who might use it.
Data that showed multiple men of foreign origin traveling with no luggage had
purchased airline tickets shortly before flight time on four different airlines
existed on the morning of September 11, 2001. Had this data been available and
shared widely in an aviation safety and security community that understood the
potential threat, the world today might be a far different place.
• The challenge of complexity. The pursuit of maritime safety, security and
stewardship involves widely diverse players with far different sets of authorities,
responsibilities and capabilities — and these players operate in unique and varied
geographic and maritime locations. Shared awareness empowers each player and
fosters unity of effort in dozens of ways, from better informing individual
missions and avoiding "blue on blue" conflict, to drawing on the unconscious
knowledge of local experts. Done properly, it enables each member of the
maritime community to use shared data and knowledge to create a unique picture
in support of its own needs and missions. This enables each to bring the full force
of its unique authority, experience and expertise to the overall effort.
The Way Ahead
In the abstract, Maritime Domain Awareness (MDA) is a state of being, a goal that
will never be completely obtained as we strive for ever greater understanding. More
62
Joseph L. Nimmich and Dana A. Goward
concretely, it is something that mariners have been obtaining, to a degree, since the
first dugout canoe was launched and people felt the pull of the current and the
pressure of the wind.
As now envisioned, Maritime Domain Awareness is a process that collects,
fuses, and analyzes data about activities in, and the conditions of, the maritime en-
vironment and then disseminates the data gathered and analysis results to decision
makers. Put another way, it's the ability to gather the information to detect what it
is that's the threat, fuse the information to truly know that it is a threat, analyze it so
that the necessary corrective action can be determined, and then be able to move
that information to a command and control mode (the decision maker) to order
the necessary action to be taken. It is a process that will be heavily dependent on
technology, some of which currently exists, some of which will require develop-
ment. The "observables" on which information is collected include the characteris-
tics of the vessel and its history, information on the passengers, crew and cargo,
infrastructure, sea lanes, threats and weather. The collection portion of the process
will involve a wide variety of sources: sensors, both short and long range; open
source; private sector; law enforcement; intelligence agencies; and, of course, our
international partners. Our surveillance capabilities must be persistent and perva-
sive. Some of the sensor technology to meet this requirement already exist, e.g., radars,
cameras and space-based imaging systems; however, nearly all existing systems re-
quire upgrades. Other technologies, including high-altitude, long-endurance un-
manned air vehicles; remotely piloted, unmanned surface and subsurface vessels;
and aerostats and buoys equipped with a variety of sensors are possibilities for the
future system.
The next step in the MDA process is to fuse and analyze data gathered. Unless
that can be accomplished in a timeframe that permits effective action to be taken
against identified threats, the utility of the data will be limited. Processing the mas-
sive quantities of data in a timely manner to create actionable information presents
an enormous challenge. Advanced, automated data-fusion technologies will be
critical to the task, and these do not exist today except as advanced research and de-
velopment projects.
Because MDA can only be achieved through a partnership of many government
agencies, the dissemination of information between agencies and other stake-
holders is essential. Today the sharing of information among agencies is dependent
on existing networks and communication processes. Unfortunately most of those
systems were designed for intra-agency not inter-agency dissemination of infor-
mation. These communication difficulties are further compounded when
nonfederal organizations are considered. While progress has been made, much
needs to be done to develop networked information sharing using Internet-based
63
Maritime Domain Awareness: The Key to Maritime Security
technologies that will be the key to ensuring that the necessary information is pre-
sented to operational commanders and other decision makers in a manner that en-
ables accurate, dynamic and confident decisions and responses to maritime threats.
While much remains to be done to create the MDA process of the future, our
awareness of activities in the maritime domain is better today than at any point in
history. Much of that progress has been made in the five years since 9/11. We now
require major vessels in international trade to carry Automatic Identification System
transmitters so that we can track their movements. US Customs and Border Pro-
tection's National Targeting Center has made huge progress in understanding the
supply chain and tracking cargoes. The International Maritime Organization has
agreed to a fundamental change in the world's view of information to which a
coastal State is entitled concerning ships on international voyages. In 2008 coastal
states will have the right under international convention to know about ships that
are just passing by up to 1,000 nautical miles offshore.6 Yet our understanding of
the sea and activities therein remains highly fragmented and contains huge gaps.
To use an aviation metaphor from 9/ 1 1 , in the maritime environment there are still
a lot of un-reinforced cockpit doors. We have a duty to do better.
To do substantially better will require unity of effort across the entire maritime
community. The National Plan to Achieve Maritime Domain Awareness,7 ap-
proved by the White House in October of 2005, envisioned such an effort and pro-
vided the first few tentative steps forward on what will be a continuing journey. In
the two years since its approval, the interagency process has developed an MDA
Concept of Operations that establishes both a maritime situational awareness en-
terprise and a national MDA governance structure. The new "Director, Global
Maritime Situational Awareness" (GMSA) is an interagency position hosted by the
Coast Guard. Along with the Director, Global Maritime Intelligence Integration (a
pre-existing position within the Office of the Director of National Intelligence), the
GMSA director will co-chair an inter-department MDA Stakeholder Board that
has responsibility for identifying needs, advocating for solutions and ensuring co-
ordination between departments and agencies.
Complementing the progress in governance has been the rapid development of
MDA technology and data sharing projects that are blossoming almost faster than
they can be harvested. One especially noteworthy effort is the MDA Data Sharing
Community of Interest. Jointly sponsored by the Coast Guard and US Navy, with
technical advice from the Defense Department Chief Information Officer's office,
the project is demonstrating the ease of data sharing in a publish-and-subscribe,
network-centric environment that can accommodate members as diverse as local
harbor police and national intelligence analysts. Even more importantly, it is
64
Joseph L. Nimmich and Dana A. Goward
proving once again that technology is the easy part of the equation compared to ad-
dressing political, process and people issues.
Conclusion
Maritime Domain Awareness is the key to Maritime Security. Our current
awareness capabilities fall far short of where we could be — and should be — given
available technologies and a reasonable willingness to work together. Our national
security depends upon continued progress on a journey that has only begun.
Moreover, the public expects we should already be far ahead of where we are. We
should make best speed to meet, and then exceed, those expectations.
Notes
1. For a report of the incident as it was occurring, see CNN.com, Haitian Refugees Jump
Ship and Walk to Shore, http://transcripts.cnn.com/TRANSCRIPTS/0210/29/bn.02.html (last
visited, Feb. 28,2007).
2. Transportation Research Board of the National Academy of Sciences, The Marine
Transportation System and the Federal Role: Measuring Performance, Targeting Improvement
83 (2004).
3. The National Airspace System Plan was developed by the Federal Aviation Administra-
tion. First published in 1981, and updated several times since then, it is a comprehensive plan to
modernize and improve air traffic control and airway facilities services.
4. See NBC6.net, Four Cuban Coast Guardsman Defect in Key West, Feb. 7, 2003, http://
www.nbc6.net/news/1963227/detail.html.
5. The White House, National Strategy for Maritime Security 27 (Sept. 2005), available at
http://www.whitehouse.gov/homeland/4844-nsms.pdf.
6. See International Maritime Organization, Maritime Safety Committee, Long Range
Identification and Tracking, http://www.imo. org/Safety/mainframe.asp?topic_id=905 (last vis-
ited Mar. 8, 2007).
7. The White House, National Plan to Achieve Maritime Domain Awareness (Oct. 2005),
available at http://www.uscg.mil/hq/cg-5/docs/MDA%20Plan%20Oct05-3.pdf.
65
PART III
COMMAND OF THE COMMONS
THE INTERNATIONAL PERSPECTIVE
V
Threats from the Global Commons:
Problems of Jurisdiction and Enforcement
Stuart Kaye*
Introduction
Oceans cover approximately 70 percent of the surface of the Earth. For inter-
national lawyers, this has long been an area which lay beyond the control
of States. Prior to the advent of jurisdiction based on the continental shelf and the
exclusive economic zone (EEZ), almost all of this area was beyond national juris-
diction. Only a tiny belt of sea of usually 3 to 4 nautical miles was subject to the di-
rect control of a coastal State.1 Even today under the 1982 United Nations
Convention on the Law of the Sea (1982 LOS Convention),2 where coastal States
can extend their jurisdiction to the seabed and waters around their littoral out to
200 nautical miles, and the seabed in limited circumstances to as much as 350 nau-
tical miles,3 two-thirds of the world's oceans are beyond any national jurisdiction.
This article considers the challenges facing coastal States attempting to combat
threats to their security that pass through this vast area of high seas, in areas where
the coastal State has no jurisdiction. It will consider the nature of the threats posed
in these areas, and what tools international law provides States in order to respond
to these threats. It will conclude by positing areas where further development may
assist in improving the coastal State's ability to react in a timely and effective fash-
ion to a threat in the global commons. However, before doing so, it is necessary to
consider the limits of the global commons for the purposes of the paper.
Dean of Law, University of Wollongong, Australia.
Threats from the Global Commons: Problems of Jurisdiction and Enforcement
The Global Commons
There are a number of different definitions possible for the extent of the oceanic
global commons. One would be to limit the commons to areas entirely beyond na-
tional jurisdiction and control. This would include the deep seabed, referred to in
the 1982 LOS Convention as the Area, consisting of all of the seabed outside the
continental shelf of any State, and the waters beyond the EEZ of any State.4 These
are commons as jurisdiction is vested, in the case of the Area, in the International
Seabed Authority as part of the common heritage of mankind,5 and in the case of
the high seas, jurisdiction by States is limited to vessels flying their flag, except in
very specific and limited circumstances.
Yet in a number of ways, restricting the global commons to these areas does not
adequately indicate the freedom from State jurisdiction that is available even in
the waters of the EEZ. The EEZ only gives a coastal State jurisdiction over eco-
nomic activity, marine scientific research and environmental matters.6 It does not
give a coastal State jurisdiction to interfere with freedom of navigation, the laying
of submarine cables or pipelines, or to stop and board vessels unless they infringe
coastal State laws concerned with the EEZ.7 This means that even if a foreign vessel
had individuals onboard who had committed serious crimes against the coastal
State, it would not be open for the coastal State to apply its law to that vessel. In
some respects then, the EEZ remains an area of commons, even though the coastal
State may still be able to regulate economic activities such as fishing and seabed
mining. A similar situation is reflected for aerial navigation, as the airspace over
the EEZ and high seas is international airspace, where there is a right of freedom of
aerial navigation.8
In the context of this article, the global commons will be treated as areas where
the activities of vessels not subject to effective flag-State control cannot, for the
most part, be regulated. This will certainly include the high seas, but would also en-
compass the EEZ, where, although the coastal State would possess the right to pro-
tect economic activities, it would lack the jurisdiction to regulate most other actors
and activities from whence a threat may come.
Threats from the Global Commons
There are two distinct types of threats that come from the high seas. The first en-
compasses threats against the ports and territory of a coastal State that originate
from the sea. Such threats might be through the shipment of weapons of mass de-
struction (WMD) or related delivery systems to a port for use against a State or its
allies, or the use of a vessel in a direct attack. In the latter case, this could be from a
70
Stuart Kaye
naval vessel, or could be accomplished using a commercial vessel which has been
chartered, commandeered or hijacked and which is destroyed in the port of a State
to cause damage to facilities or human life.
The first type of attack has yet to occur in the West, although it has occurred in the
Middle East against Western interests.9 Even so, threats from shipping have been the
focus of a tremendous amount of planning and cooperative effort internationally.
The Proliferation Security Initiative10 and the International Ship and Port Facility
Security Code (ISPS Code)11 at an international level, or the United States' Con-
tainer Security Initiative12 internally, are excellent examples of responses to this di-
rect threat from the sea. States have moved cooperatively to put in place legal
measures designed to protect shipping and maritime infrastructure from terrorist
threats, and to better cooperate in sharing data and intelligence.13 Significant prog-
ress in these areas has been made in a relatively short space of time, especially con-
sidering the scale and reach of the measures within the ISPS Code and that they
were adopted and functioning well within five years of the 9/11 attacks.14
The first type of threat in some ways is relatively easily dealt with from a legal
point of view. Once a vessel enters the port of a State, unless it is sovereign immune,
it becomes subject to the regulation of the port State, whose criminal laws can be
applied to activities taking place onboard.15 An attempt to ship WMD into a port
would attract the jurisdiction of the port State, and enforcement action against the
ship could be taken inside the port by local authorities. Even if the offending vessel
is sovereign immune, it can be asked to vacate the port and the territorial waters of
the port State, and must comply in an expeditious fashion. Additionally, the ac-
tions of the offending vessel may give rise to a valid claim for damages against the
flag State for any breaches of the law of the port State committed by the vessel.16
Port States can also close the port to international traffic or refuse vessels entry
for failure to comply with entry requirements. For example, the Australian Mari-
time Identification System requires vessels to provide data to Australian authori-
ties of the vessel's crew, cargo, route and previously visited ports. This data is
sought when the vessel is within 1,000 nautical miles of the Australian continent.
Although there is no territorial jurisdiction to enforce such a measure, it has been
effective because failure to provide the data may result in the vessel being refused
entry to the port and subsequent arrest if it enters the territorial sea with an inten-
tion to proceed to its intended port. The right of entry becomes tied to additional
conditions, which can be used to improve security and give operators a clearer pic-
ture of the maritime security environment in adjacent waters.17
The second type of threat is one directed at activities in the global commons. Ac-
tivities in the commons include transportation, fishing, oil and gas exploitation,
and communications via submarine cable. Each of these activities is vulnerable to
71
Threats from the Global Commons: Problems of Jurisdiction and Enforcement
attack from ships and aircraft on a range of levels, and it is appropriate to consider
each in turn.
Attacks on ships at sea have been a feature of maritime transportation since an-
cient times. The legal concept of piracy is of great antiquity, and the ability of States
to deal with piratical acts against their shipping is quite extensive.18 The 1982 LOS
Convention, codifying existing customary international law, provides for universal
jurisdiction over vessels engaged in piracy, provided that enforcement action is un-
dertaken by marked government vessels in areas outside the territorial sea of third
States.19 This potentially gives great freedom of action to flag States to use their
armed forces to protect their shipping from pirate activity.
In practice, the availability of universal jurisdiction to deal with piracy has been
limited by two key factors. Firstly, universal jurisdiction over piracy is limited to in-
cidents taking place outside the territorial sea. The 1982 LOS Convention retains
the paramountcy of the coastal State's sovereignty within the territorial sea, and
consistent with the regime of innocent passage, non-coastal State vessels lack the
power to effect an arrest of a pirate vessel in these waters.
The second factor is of greater relevance to recent concerns over security. The
traditional definition of piracy is the attacking of a vessel in pursuit of personal
profit.20 This motivation for profit distinguishes piratical acts from activities with a
purely political motivation. Since terrorists are generally not motivated in their at-
tacks by the possibility of personal profit, but rather the advancement of a political
cause or the desire to frighten and disrupt lawful activities, it has been accepted that
terrorist acts at sea do not fall under the umbrella of piracy.
While attacks on shipping present a threat from the global commons, there are
other and different threats posed to other activities taking place in the world's
oceans. Oil and gas exploitation of offshore fields means that there are large and ex-
pensive facilities permanently moored in areas remote from coastal areas. These
platforms, loading facilities and pipelines are extremely vulnerable to hostile action.
They are exploiting and storing quantities of flammable gases or liquids, which
could be set alight by terrorist action, or alternatively could be the source of signifi-
cant environmental harm.
Terrorist attacks against oil and gas platforms have not taken place, although the
occupation of Brent Spar by Greenpeace in 199521 demonstrated the relative ease
with which terrorists could occupy an offshore platform and the difficulties inher-
ent in their removal. Attacks against oil and gas facilities have taken place in the
context of armed conflicts, and the facilities are particularly vulnerable. The lack of
a terrorist attack has not prevented international concern over the potential threat,
and has led to international law providing coastal States and others greater powers
to protect such facilities.
72
Stuart Kaye
Submarine cables and pipelines are also an example of vulnerable assets in the
global commons. All States have the right to lay cables and pipelines along the sea
floor outside the territorial sea. These cables and pipelines cannot be restricted by
the coastal State, although there is a right for coastal States to be consulted with re-
spect to the route such cables or pipelines might take. As with oil and gas platforms,
a concrete terrorist threat against these facilities has yet to occur, but the possibility
of damage and disruption is not insignificant. Terrestrial attacks against pipelines
in Iraq and Nigeria have caused rises, albeit temporary, in world oil prices.22 At-
tacks against submarine pipelines would have the added difficulties of causing
widespread environmental harm, possibly to the EEZ of another State, and be far
more expensive and difficult to repair. Submarine cables, especially fiber optic ca-
bles, still carry the bulk of the world's telephonic and electronic data, and their dis-
ruption could harm world communication in some areas for an extended period.23
In both cases, the risk of harm from attack is not insubstantial. The locations of
pipelines and cables are marked on commercially available charts and the coordi-
nates of cables can be downloaded from the Internet without cost. This because
both pipelines and submarine cables are vulnerable to accidental damage by mari-
ners engaged in lawful activities. Notice of their location reduces the risk of harm.
The practical upshot of this legitimate and sensible precaution is to make the tar-
geting of such facilities much easier for those engaged in potential terrorist activi-
ties against them.
Responses
International law has for many years permitted ships and flag States to protect
themselves from attack. The fact that piracy attracts universal jurisdiction in areas
beyond the territorial sea emphasizes this fact. Any ship that is subjected to an at-
tack by pirates outside the territorial sea can receive assistance, and the pirates
taken into custody by the warships of any State.
In the context of responding to attacks on its nationals or ships flying its flag, a
flag State has a right of self-defense and can take steps to protect individuals and
ships. This would permit naval escort of ships by the flag State and a right to take
action to protect those ships from attack. Difficulties may arise where a State's
nationals are onboard vessels that are flagged to another State. This makes efforts at
protection problematic, and would require the flag State to consent to warships of
another State providing protection. However, the provision of protection to other
flagged vessels is by no means impossible with such consent and there is ample pre-
cedent for it during times of armed conflict.24 Such difficulties were avoided during
the Iran-Iraq war when, after tankers entering the Persian Gulf had come under
73
Threats from the Global Commons: Problems of Jurisdiction and Enforcement
fire from Iran, the United States Navy (and navies of other neutral nations) formed
convoys of neutral-flag merchant vessels, or escorted or accompanied neutral-flag
merchant vessels carrying cargoes to and from neutral States.25
In the context of protecting shipping from terrorist attack, a separate instru-
ment was negotiated under the auspices of the International Maritime Organiza-
tion (IMO) to facilitate a response. The Convention for the Suppression of Unlaw-
ful Acts Against the Safety of Maritime Navigation26 (SUA Convention) was nego-
tiated as a direct result of the 1985 hijacking of the Italian liner Achille Lauro.27 The
necessity for an international response was manifested in part because of differ-
ences within the international community as to whether the attack constituted pi-
racy. This was because of the requirement that piracy be for "private" ends, and the
fact the group that attacked the vessel, the Palestinian Liberation Front, staged the
attack for political purposes. Other States, including the United States, considered
that the attack amounted to piracy, and were concerned that responses to an inci-
dent of this type might be undermined if it were not considered a piratical act.28
Obviously, with this difference of view it was necessary to create an international
instrument to clarify the response to what was still manifestly an illegal act.
The response adopted was the 1988 SUA Convention. It dealt with certain acts
against shipping, including seizing a ship, acts of violence against individuals on a
ship, damage to a ship or its cargo so as to endanger its safe navigation, endanger-
ment of the safety of a ship by interfering with maritime navigational facilities or
sending a false signal.29 The purpose motivating the acts is not relevant, and there-
fore there would be some overlap with piracy, although the scope of the SUA Con-
vention is necessarily much wider. The SUA Convention applies to ships that have
journeyed outside the territorial sea of a single State, or are scheduled to pass out-
side the territorial sea.30 Parties to the SUA Convention have jurisdiction to deal
with such offenses, based on the ship's presence in their territorial sea, possession
of their flag or other means.31 However, the SUA Convention did not deal directly
with the boarding of vessels where jurisdiction might be asserted by another State.
The Preamble of the SUA Convention provides "matters not regulated by this
Convention continue to be governed by the rules and principles of general interna-
tional law," which would limit non-flag State intervention to acts covered under
Article 110 of the 1982 LOS Convention, in this context acts of piracy.32 There are
also provisions to allow for either prosecution or extradition of individuals be-
lieved to have committed offenses.33
In 2005 the SUA Convention was amended by a new protocol pertaining to
maritime terrorism against shipping.34 The focus of the 2005 amendments is
weapons of mass destruction (WMD) and their non-proliferation.35 New offenses
were created, including using a ship as a platform for terrorist activities,36 and the
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Stuart Kaye
transportation of a person who has committed offenses under the SUA Conven-
tion,37 or any of another nine listed anti-terrorism conventions.38 The 2005
amendments also widen the scope for third party boarding of ships, although flag-
State authorization is still required for such a boarding.39
States also were of the view that maritime terrorism need not be limited to ships,
but could also be directed at offshore oil and gas installations. This led to the adop-
tion of a protocol to the SUA Convention (1988 Protocol)40 that dealt with similar
acts committed against offshore petroleum installations at the same time as the
SUA Convention.41
The 1988 Protocol applies to "fixed platforms," which is liberally defined to in-
clude all petroleum producing structures.42 It also limits application to facilities on
the continental shelf. This excludes the application of the protocol to installations
in the territorial sea of a coastal State, in the ordinary course of events.43 The of-
fenses under the 1988 Protocol are analogous to those under the SUA Convention.
These include seizing a platform by force, destruction or damage threatening the
safety of a platform, the placing of a device designed to damage or destroy or en-
danger the safety of a platform, or threats, intimidation, or acts of violence against
persons onboard a platform.44
States under the 1988 Protocol have a similar jurisdictional envelope as under
the SUA Convention. The 1982 LOS Convention makes it clear that States have ju-
risdiction over offenses taking place on fixed platforms on their continental shelf,
and this is confirmed in the 1988 Protocol.45 In addition, under the Protocol, States
also have jurisdiction if either the offender or the victim is a national of the State, if
the offender is stateless and a habitual resident of the State, or if the offense is in-
tended to coerce the State concerned.46
The 1988 Protocol does not deal with the issue of boarding of fixed platforms,
and as with the SUA Convention, the preamble reiterates "that matters not regu-
lated by this Protocol continue to be governed by the rules and principles of general
international law," apparently limiting direct unilateral intervention against acts
against platforms to the coastal State. This was to ensure that a coastal State would
retain sole jurisdiction over activities on its platforms, and another State could not
assert it had a right to board a platform, based on having jurisdiction over an of-
fense. The absence of a boarding provision would not prevent a coastal State from
giving a third State an ad hoc authorization to board its installation.
The 1988 Protocol was also amended by protocol in 2005,47 with amendments
similar in nature to the 2005 SUA Convention amendments. New offenses, includ-
ing using explosives or radioactive material or a biological, chemical, nuclear
(BCN) weapon to cause death, serious injury or damage to an installation; 48 releas-
ing oil or gas from an installation in a manner calculated to cause death, serious
75
Threats from the Global Commons: Problems of Jurisdiction and Enforcement
injury or damage;49 or the threat to commit such offenses,50 were created.51 A State
party must take the measures necessary to apply its jurisdiction to its nationals and
fixed platforms on its continental shelf in respect to these offenses.52 Much of the
rest of the SUA Convention and the 2005 amendments, in relation to extradition,
cooperation concerning data and evidence, and domestic implementation, are ap-
plied by the 2005 Protocol mutatis mutandis.53
The 2005 SUA Convention amendments and 1988 Protocol amendments will
enter into force after the twelfth ratification without reservation54 for the SUA
Convention amendments55 and ninety days after the third ratification without
reservation56 for the Protocol amendments.57 Given the current wide participation
in the SUA Convention and 1988 Protocol, both the Convention amendments and
Protocol amendments are likely to enter into force relatively quickly.
Responses in relation to the protection of submarine cables and pipelines have
been less forthcoming. The 1982 LOS Convention does provide that a coastal State
must be consulted over the route a cable or pipeline on its continental shelf may take,
but not that the coastal State has jurisdiction over the cable or pipeline.58 If a cable or
pipeline owned by a coastal State or its nationals were damaged, the LOS Convention
provides that the flag State of the vessel, or of the nationality of the offender responsi-
ble, has jurisdiction to deal with the harm caused.59 A coastal State could only assert
jurisdiction in the event the damage to the cable or pipeline also caused harm to the
environment, on the basis of the coastal State's EEZ jurisdiction.60
A coastal State asserting jurisdiction over an attack on a pipeline presents more
options than the situation for submarine cables. An attack on an oil pipeline would
probably cause environmental damage, and therefore provide a basis for a coastal
State to assert its jurisdiction.61 Article 79(4) of the 1982 LOS Convention creates
an implication that a coastal State can make laws dealing with leaks from pipelines.
A coastal State might also respond to an attack on a cable or pipeline on the basis of
self-defense. To do so it would need to demonstrate the importance of the threat-
ened infrastructure to itself, and that a use offeree is proportionate in the circum-
stances. This will always be a question of fact, and would be dependent upon the
cable being vital telecommunications infrastructure, or a pipeline carrying essen-
tial oil or gas for the national economy.62 Even in those circumstances, an isolated
attack, not immediately detected by the coastal State, or indeed other States using
the cable or pipeline, might make it difficult to justify a response involving the use
of force.
One way to increase the ability of States to respond to attacks on pipelines and
submarine cables might be to base an argument upon Article 3fois(l)(a)(iii) of the
2005 SUA Convention amendments. This provision creates an offense where an
individual "uses a ship" to cause damage.63 If the employment of a ship to aid
76
Stuart Kaye
terrorists in attacking a cable or a pipeline could be described as a "use" of a ship
in the context of Article 3bis, then there could be jurisdiction. It is submitted that
such a wide definition is almost certainly beyond the anticipated scope of the of-
fense. If the definition could sustain such stretching, the consent of the flag State
would still be required to effect a boarding,64 and the flag State be a party to the
2005 Protocol amending the SUA Convention.
Placing jurisdiction over pipelines and submarine cables outside the territorial
sea in the control of the flag State of the offending vessel is, under the 1982 LOS
Convention, problematic. If terrorists attacked a pipeline or cable with a chartered
vessel, perhaps a fishing trawler, the vessel may well be flagged in a State with an
open registry. This would substantially undermine the prospects of enforcement
action, as it is clear that a number of States with open registries that have attracted
fishing vessels, such as Georgia, Togo or Equatorial Guinea,65 have no capacity to
deal with attacks even close to their coasts.
Reliance on flag-State jurisdiction in the context of cables and pipelines
serves to highlight a broader problem, that is, the limitations of flag-State juris-
diction over vessels. While the jurisdiction of a flag State remains the para-
mount mechanism to determine the applicable law aboard a vessel, in the case of
States with open registries the connection to flag States can be so diffuse as to be
meaningless. In that circumstance, it is difficult to conceive that effective enforce-
ment at sea can take place. Flag-of-convenience States have no capacity to enforce
their laws on ships flying their flag around the world, and may have little incentive
to cooperate with other States to remedy the deficiency. The United States has
sought to tackle the problem in the context of the Proliferation Security Initiative
with boarding agreements with a number of States with open registries, including
Liberia and Panama;66 they fall short of permitting boarding in a wider range of
circumstances.
Conclusion
The international community has shown great energy in tackling threats in the
global commons. The SUA Convention and Protocol in their 2005 iterations rep-
resent a substantial and positive step forward in the legal protection of ships and
platforms in the global commons beyond the territorial sea. However, it is appar-
ent that States have yet to create protection for the totality of activities that take
place beyond the territorial sea. Adequate jurisdictional mechanisms to ensure an
effective response to attacks on submarine cables and undersea pipelines do not ex-
ist, nor does it appear there are international efforts in progress to remedy the
11
Threats from the Global Commons: Problems of Jurisdiction and Enforcement
situation. It can only be hoped that it is not the reality of an attack that acts as the
catalyst to produce positive change in these areas.
Notes
1. The United States, the British Empire and France all maintained 3 nautical mile territo-
rial seas until after World War II. The Scandinavian nations asserted 4 nautical mile territorial
seas from the late eighteenth century until after the war. See D.P. O'CONNELL, 1 THE INTERNA-
TIONAL LAW OF THE SEA 131-138 (LA. Shearer ed., 1982).
2. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1834 U.N.T.S. 396
[hereinafter 1982 LOS Convention].
3. Article 76 of the Law of the Sea Convention deals with the limits of the continental shelf.
4. Id, art. 1(1).
5. Id,, art. 136.
6. Id., art. 56.
7. Id., art. 58(1).
8. Id.
9. For example, the separate attacks in Aden harbor against the French flagged tanker MV
Limburg and the US destroyer USS Cole (DDG 67) would fall into this category. See Jessica
Romero, Prevention of Maritime Terrorism: The Container Security Initiative, 4 CHICAGO JOUR-
NAL OF INTERNATIONAL LAW 597, 598 (2003).
10. See generally Stuart Kaye, Proliferation Security Initiative in the Maritime Domain, in IN-
TERNATIONAL Law Challenges: Homeland Security and Combating Terrorism 141-64
(Thomas McK. Sparks & Glenn M. Sulmasy eds., 2006) (Vol. 81, US Naval War College Interna-
tional Law Studies).
11. See generally Rachael B. Bralliar, Protecting U.S. Ports with Layered Security Measures for
Container Ships, 185 MILITARY LAW REVIEW 1, 23-35 (2005).
12. See generally Romero, supra note 9; Math Noortmann, The US Container Security Initia-
tive: A Maritime Transport Security Measure or an {international Public Security Measure?, 10
lus Gentium 139(2004).
13. See generally Michael A. Becker, The Shifting Public Order of the Oceans: Freedom of Nav-
igation and the Interdiction of Ships at Sea, 46 HARVARD INTERNATIONAL LAW JOURNAL 131
(2005); Justin S. C. Mellor, Missing the Boat: The Legal and Practical Problems of the Prevention of
Maritime Terrorism, 18 AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW 341 (2002).
14. See generally Rosalie Balkin, The International Maritime Organization and Maritime Se-
curity, 30 TULANE MARITIME LAW JOURNAL 1 (2006); Thomas J. Schoenbaum & Jessica C.
Langston, An All Hands Evolution: Port Security in the Wake of September 11th, 11 TULANE LAW
REVIEW 1333 (2003).
15. See Wildenhus's Case, 120 U.S. 1, 12 (1887).
16. 1982 LOS Convention, supra note 2, art. 31.
1 7. Natalie Klein, Legal Implications of Australia's Maritime Identification System, 55 INTER-
NATIONAL & Comparative Law QUARTERLY 337 (2006); Cameron Moore, Turning King
Canute into Lord Neptune: Australia's New Offshore Protection Measures, 3 UNIVERSITY OF NEW
England Law Review l (2006).
18. Ivan A. Shearer, Starke's International Law 247-250 (1994); Hersch Lauterpacht,
l International Law: A Treatise 557-567 (1948).
19. 1982 LOS Convention, supra note 2, arts. 107 and 110.
78
Stuart Kaye
20. Id., art. 101.
21. See http://www.greenpeace.org/international/about/history/the-brent-spar (last visited
Feb. 20, 2007).
22. See, e.g., Jaime Wilson, Iraq hit by Fresh Attack on Oil Pipeline, THE GUARDIAN (Lon-
don), Aug. 18, 2003, at 1, available at http://www.guardian.co. uk/Iraq/Story/0„ 1020878
,00.html; Edward Harris, Nigerian Militants Attack Oil Pipeline, Boat, DESERET NEWS (Salt
Lake City), Feb. 21, 2006 available at http://www.findarticles.eom/p/articles/mi_qn4188/
is_20060221/ai_nl6162905.
23. For example, the value of submarine cables to Australia alone has been estimated at over
US $5 billion per year to the national economy. See Australian Communications and Media Au-
thority, Information Sheet, Proposed Protection Zones Off Sydney, New South Wales, http://
www.acma.gov.au/acmainterwr/_assets/main/lib 1 00668/information%20sheet.pdf (last visited
Feb. 27, 2007).
24. For example, Allied convoys during both World War I and World War II were escorted
by a range of Allied warships and contained a variety of Allied merchant shipping.
25. George K. Walker, The Tanker War, 1980-88: Law and Policy 363 (2000) (Vol.
74, US Naval War College International Law Studies).
26. Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navi-
gation, Mar. 10, 1988, 1678 U.N.T.S. 201 [hereinafter SUA Convention].
27. Malvina Haberstam, Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO
Convention on Maritime Safety, 82 AMERICAN JOURNAL OF INTERNATIONAL LAW 347, 349
(1985). In 1985 the IMO adopted Assembly Resolution A. 584(14) to encourage States to take
measures to combat terrorist activity against ships.
28. Samuel Pyeatt Menefee, Anti-Piracy Law in the Year of the Ocean: Problems and Opportu-
nity 5 INTERNATIONAL LAW STUDENTS ASSOCIATION JOURNAL OF INTERNATIONAL & COMPAR-
ATIVE LAW 309, 310-313 (1999); Haberstam, supra note 27, at 270-291.
29. SUA Convention, supra note 26, art. 3.
30. Id., art. 4.
3 1 . The SUA Convention also contemplates jurisdiction based on passive personality, or at-
tempted coercion of the State concerned. See id., art. 6.
32. The deficiency was to some extent addressed by Article 8 of the SUA Convention, which
provided a mechanism for the master of a vessel to hand individuals over to a "receiving State,"
other than the flag State. See id., art. 8.
33. Id., art. 10.
34. Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the
Safety of Maritime Navigation, Oct. 14, 2005, IMO Doc. LEG/CONF. 15/21, available at
http://www.austlii.edu.aU//cgi-bin/disp.pl/au/other/dfat/treaties/notinforce/2005/30.htmPquery
=suppression %20of%20unlawful%20acts. [hereinafter 2005 SUA Safety of Maritime Naviga-
tion Protocol].
35. Id., art. 'ibis.
36. Jd.,art3fozs(D(a)(3).
37. Id., art iter.
38. Id., Annex.
39. Id., art 8. See the discussion in Ted L. McDorman, Maritime Terrorism and the Interna-
tional Law of Boarding Vessels at Sea: Assessing the New Developments, http://www.law.berkeley
.edu/centers/ilr/ona/pages/mcdorman.htm (last visited Feb. 20, 2007).
79
Threats from the Global Commons: Problems of Jurisdiction and Enforcement
40. Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Lo-
cated on the Continental Shelf, Mar. 10, 1988, 1678 U.N.T.S. 304 [hereinafter 1988 SUA Proto-
col].
4 1 . HOSSEIN ESMAELI, THE LEGAL REGIME OF OFFSHORE OIL RIGS IN INTERNATIONAL LAW
132(2001).
42. 1988 SUA Protocol, supra note 40, art. 1 . This definition includes artificial islands, instal-
lations and structures engaged in exploration or exploitation of the seabed or some other eco-
nomic purpose.
43. Id., art. 1(2).
44. Id., art. 2(1). The offenses include attempting, abetting and threatening to commit an of-
fense. Id., art. 2(2).
45. Given that Article 60 of the Law of the Sea Convention gives a coastal State exclusive ju-
risdiction to regulate the operation and use of an installation, and the Protocol does not displace
general international law upon matters to which it does not address itself. Id., Preamble.
46. Id., art. 3.
47. Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts Against the Safety
of Fixed Platforms Located on the Continental Shelf, Oct. 14, 2005, IMO Doc. LEG/CONF. 15/
22, available at http://bar.austlii.edu.au/au/other/dfat/treaties/notinforce/2005/31.html [here-
inafter 2005 Fixed Platforms Protocol].
48. Id., art. 2bis(&).
49. Id., art. 2&is(b).
50. Id., art. 2bis(c).
51. Id., art. Iter.
52. Id., art. 3(1).
53. Id., art 1.
54. 2005 SUA Safety of Maritime Navigation Protocol, supra note 34, art. 18.
55. Only State parties to the SUA Convention who have made no reservations to the applica-
tion of that Protocol can become parties to the 2005 SUA Convention amendments. See id., art. 17.
56. 2005 Fixed Platforms Protocol, supra note 47, art. 9.
57. Only State parties to the SUA Protocol who have made no reservations to the application
of that Protocol can become parties to the 2005 SUA Fixed Platforms Protocol. See id., art. 8.
58. 1982 LOS Convention, supra note 2, art. 79.
59. Id., art. 113.
60. Id., art. 79(4).
61. See discussion in 2 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA: A COM-
MENTARY 909-917 (Myron H. Nordquist ed., 1993).
62. For example, see W. Michael Reisman, International Legal Responses to Terrorism 22
Houston Journal of International Law 3, 55-8 (1999); Davis Brown, Use of Force Against
Terrorism After September 11th: State Responsibility, Self-Defense and Other Responses 11
Cardozo Journal of International & Comparative Law l, 40- 1 (2003).
63. 2005 SUA Safety of Maritime Navigation Protocol, supra note 34, art. 3bis(l).
64. Id., art. 8bis{5){b).
65. These States were identified by the Commission on the Conservation of Antarctic Ma-
rine Living Resources (CCAMLR) as "flags of non-compliance" in 2005. See CCAMLR Annual
Report, Report of the Standing Committee on Implementation and Compliance, Annex 5, avail-
able at http://www.ccamlr.Org/pu/e/e_pubs/cr/05/a5.pdf (last visited Feb. 20, 2007).
66. Agreement between the Government of the United States of America and the Govern-
ment of the Republic of Liberia Concerning Cooperation to Suppress the Proliferation of
80
Stuart Kaye
Weapons of Mass Destruction, their Delivery Systems, and Related Materials by Sea, Feb. 11,
2004, available at http://www.state.gOv/t/isn/trty/32403.htm. Amendment to the Supplemen-
tary Arrangement between the Government of the United States of America and the Govern-
ment of the Republic of Panama to the Arrangement between the Government of the United
States and the Government of Panama for Support and Assistance from the United States Coast
Guard for the National Maritime Service of the Ministry of Government and Justice, May 12,
2004, available at http://www.state.gOv/t/isn/trty/32858.htm.
81
VI
Preemption by Armed Force
of Trans-boundary Terrorist Threats:
The Russian Perspective
Bakhtiyar R. Tuzmukhamedov*
A zealous legalist would argue that Russia, or rather its predecessor the Soviet
Union, has repeatedly demonstrated its inclination to use armed force in
the absence of an actual attack against itself. Precedents that would likely be cited
include the "Winter War" of 1939-40 against Finland, and the interventions in
Hungary in 1956 and in Czechoslovakia in 1968. Some might add the deployment
to Afghanistan in 1979 or, in paradoxical contradistinction to those examples, the
Wehrmacht attack against the USSR which was launched in 1941, at least as
claimed by Nazi leaders and some contemporary historians, to forestall an immi-
nent Red Army assault.
Whatever the merits of those alleged precedents, in its declaratory policy and
formal acts, the Soviet Union abided by a rather narrow, or restrictive, interpreta-
tion of the principle of non-use of force. It acceded to the Treaty for the Renuncia-
tion of War (the Kellogg-Briand Pact) of 19281 and was a party to the Convention
for the Definition of Aggression of 1933. 2 Although the latter might seem a less
classical source, Justice Jackson in his opening address for the United States at the
* Professor, Diplomatic Academy, Moscow, Russia. The views expressed herein are solely those
of the author.
Preemption of Trans-boundary Terrorist Threats: The Russian Perspective
Nuremberg Military Tribunal described it as "one of the most authoritative
sources of international law on this subject."3
In a conspicuous departure from the Soviet-era official and doctrinally strict,
i.e., narrow, interpretation of the right of self-defense, Russian officials have, since
2002, increasingly been indicating that it might be permissible to use armed force
against extraterritorial sources of imminent threat to Russian security, even in the
absence of an actual armed attack originating from those sources. Those state-
ments, made by politicians, senior military commanders and ultimately by the
president, were enthusiastically endorsed by a handful of Russian legal academics.4
The qualifier that usually accompanies the term "use of force" is "preventive," and
Russian official statements do not seem to be sensitive to nuances of meaning be-
tween that and other adjectives, such as "preemptive," or "anticipatory," or "inter-
ceptive."5 As to the location and nature of the sources of those threats and the
targets of the preventive use of force, while earlier declarations announced an in-
tention to engage them globally,6 their personality notwithstanding, eventually the
declarations came to express a readiness to deal with sources of terrorist threats in
the space adjacent to the Russian territory.
The earlier remarks that caught international attention had been made in July
and August 2002 by Defense Minister Sergey Ivanov and other military command-
ers, and several ranking parliamentarians. These statements, incidentally, were
made soon after President George W. Bush broached preemption in his com-
mencement address at the US Military Academy.7
Those statements were prompted by the events that occurred on the Russian-
Georgian border. Russia claimed that Chechen insurgents found refuge in the
Pankissi Gorge in Georgia, an area where Georgian law and order was nonexistent.
The area was convenient for insurgent rest and recreation, and to regroup and re-
enter Russian territory. Those allegations had been vehemently denied by Geor-
gian authorities, although apparently the US "Train and Equip" mission to
Georgia8 had, as one of its principal objectives, the establishment of viable indige-
nous law-enforcement units that could regain control over the mountainous and
hard-to-reach Pankissi Gorge area. Russian politicians asserted that even though
Georgian authorities could not be implicated beyond doubt in providing shelter to
insurgents, they definitely lacked the capability and determination to deny access
to and freedom of insurgent activity in the area.
President Putin in his statement on September 11, 2002 commemorating the
victims of the 9/11 terrorist attack against the United States looked for legal sup-
port for the Russian position. He said that "should the Georgian leadership be un-
able to secure the area adjacent to the border and continue to ignore the UN SC
Resolution 1373 of 28 September, 2001 . . . , we shall reserve the right to act in
84
Bakhtiyar R. Tuzmukhamedov
accordance with Article 51 of the UN Charter that entitles every member-State of
the United Nations to enjoy an inherent right to individual or collective self-
defense."9 President Putin went further and instructed the uniformed services to
draft engagement plans "to pursue terrorists and destroy their bases that have been
reliably located and identified."10
That statement by President Putin prompted an angry response from the Coun-
cil of Europe whose Parliamentary Assembly insisted that "Article 5 1 of the UN
Charter and Resolution 1269 (1999) of the UN Security Council, as well as Resolu-
tion 1368 (2001) of the UN Security Council of 12 September do not authorize the
use of military force by the Russian Federation or any other State on Georgian ter-
ritory."11 It further called on the Russian authorities to refrain from "launching any
military action on Georgian territory as expressed by the President of the Russian
Federation on 11 September 2002. "12
Not only was the Parliamentary Assembly's declaration rather unfair to Presi-
dent Putin, it was also inaccurate. The Russian president looked to Security Coun-
cil Resolution 1373 for authority, and that reference was conspicuously ignored by
the Council of Europe. It should be recalled that Resolution 1373 specifically urged
UN member-States to deny terrorists movement across borders and to ensure that
refugee status is not granted to persons suspected of terrorist activity.13 Russia was
concerned that Georgia was unable or unwilling to abide by those and other provi-
sions of the resolution. Additionally, President Putin had not ordered that imme-
diate military action be undertaken on the territory of a sovereign State. Rather, he
ordered that contingency plans be made, conditional on Georgia's capacity to ef-
fectively control its own territory.
Putin's statement may also be interpreted as an implicit extrapolation, whether
conscious or not, of the right of hot pursuit from the realm of the law of the sea14 to
trans-boundary law-enforcement. His phrase about "pursuit of terrorists" obvi-
ously alluded to situations when culprits would be pursued and apprehended, or
accounted for, either on the Russian territory, or, pursuit having commenced on
the Russian territory and continued across the border, on the territory of an adja-
cent State.15 It is also worth noting that the Russian president construed Article 51
of the UN Charter as entitling a State to the right of self-defense against an armed
attack by actors other than a State.
It is true that Article 5 1 does not unequivocally refer to a State as a perpetrator of
an attack; however, if one were to accept that "Article 2 (4) explains what is prohib-
ited, Article 51 what is permitted,"16 and Article 2 (4) refers to relations between
members of the United Nations, that is, States, then Article 51 should apply to
States, too. It should be recalled that in its Advisory Opinion on the Legal Conse-
quences of the Construction of a Wall in the Occupied Palestinian Territory ■, the
85
Preemption of Trans-boundary Terrorist Threats: The Russian Perspective
International Court of Justice uttered a dictum, albeit argumentative, that "Article
51 of the Charter recognizes the existence of an inherent right of self-defence in the
case of armed attack by one State against another State."17
While suspected terrorist bases in certain neighboring countries and prospec-
tive targeting of those bases have been a recurring theme in remarks by Russian se-
nior officials since 2002, most often they have not been country- specific.18
In most instances, the statements describing situations that would justify the
employment of the armed forces beyond Russian territory to preempt an attack are
related to a terrorist threat. Occasional references to threats to lives and security of
large numbers of Russian citizens or a "Russian-speaking population" imply mili-
tary support for their evacuation from a zone of an armed conflict or a humanitar-
ian disaster. Even fewer statements are also made that it is admissible to use force
preemptively to meet the demands of unspecified "Russian interests" or of its alli-
ance commitments.
The declared targets of forceful action are individual terrorists, organized
groups of terrorists and their bases. The means to be used in a preemptive strike
against those targets are almost unrestricted, nuclear arms being the only clear ex-
ception. According to the defense minister, such a strike would not amount to full-
fledged combat action, but would be delivered "to avert a single terrorist threat."
As to the geography of preemptive action, it is realistic to look at areas adjacent
to Russian territory. An utterance by the chief of the General Staff that those strikes
could be delivered "anywhere on the globe"19 appeared inconsistent with the state-
ments of the commander-in-chief addressing "interdiction of organized terrorist
groups attempting to penetrate our territory" and "pursuing and engaging terror-
ists."20
Official declarations always underscored that Russian forces will target terror-
ists and their infrastructure, rather than persons and institutions of a sovereign
State on whose territory the former found refuge. Whether done consciously or
not, this seems to be an attempt to stave off prospective charges of committing an
act of aggression. It is worth noting that political and military leaders never miss a
chance to underscore that armed force would be used in strict compliance with the
constitution, statutes and international law.
So far those declarations have not comprised a comprehensive official doctrine
explaining under what circumstances and according to what criteria Russia would
be inclined to use a military tool to meet a ripening threat. The constitution, how-
ever, addresses "an imminent threat of aggression"21 against the Russian Federation
(Article 87.2), in which case the president shall introduce martial law by a decree. A
decree on the introduction of martial law and a decree on the introduction of the
86
Bakhtiyar R. Tuzmukhamedov
state of emergency are the only acts by the president that require approval by the
Council of Federation; all other decrees remain his unilateral prerogative.
The federal constitutional law "On Martial Law" describes the imminent threat
of aggression as "activities by a foreign State (States) committed in violation of the
UN Charter and generally recognized principles and norms of international law
that immediately indicate that an act of aggression against the Russian Federation
is being prepared, including the declaration of war against the Russian Federation"
(Article 3.3).22 The legal gap is further filled by a recent federal law "On Counter-
acting Terrorism" of 2006,23 as amended, which supersedes an earlier federal law
"On Combating Terrorism" of 1998,24 as amended.
The new law explicitly provides for the use of armed force against targets outside
Russian territory, on the high seas and, presumably, in international airspace. In
this context, it does not speak about preemption; however, the broad range of tasks
indicates that military power might be required to deal with threats that are not
necessarily imminent.
Terrorism is defined in very broad terms as "an ideology of violence and practi-
cal impact on the decision making by bodies of State power, bodies of local self-
government and international organizations, by way of intimidation of population
and/or by other illegal violent actions" (Article 3(1)). The law is more specific
when it further defines "terrorist activity" as comprising such diverse elements as
planning, preparation, funding and perpetration of a terrorist act; incitement to
commit a terrorist act; organizing a terrorist group; recruiting, arming and train-
ing of terrorists; complicity in planning and committing a terrorist act; and propa-
gandizing of terrorist ideology and calls to engage in it. Finally, a terrorist act is
defined as "explosion, arson or other acts intimidating population and putting
human life at risk of death, leading to substantial loss of property, or to other grave
consequences, with an intent to exert impact on the decision making by bodies of
State power or international organizations, as well as a threat to commit those acts
with same purposes" (Article 2(3), as amended).25 It is against those acts, or perpe-
trators thereof, or means employed to commit them that the armed forces shall be
used under the new law.
The law is conspicuously vague as to the outer limits of the airspace where the
military may be ordered to engage a terrorist threat. It does not speak about inter-
national airspace. Moreover, it refers to an aircraft "not responding to radio mes-
sages from ground controllers to cease violating the rules of navigation in the
airspace of the Russian Federation, or to radio messages and visual signals being
transmitted by the aircraft of the Russian Armed Forces" (Article 7(2)). Unad-
dressed is the question of whether that provision could come into conflict with
Article 3 bis of the Chicago Convention of 1944.26
87
Preemption of Trans-boundary Terrorist Threats: The Russian Perspective
Turning to sea space, the law refers to internal waters and the territorial sea, as
well as to the continental shelf and to "national maritime navigation." Obviously,
the continental shelf may extend as far as 350 nautical miles from the baselines. As
to "national maritime navigation," it is not immediately clear whether the law im-
plies navigation within territorial limits or extends to ships flying the Russian flag
anywhere on the seas, with a possible exception of those chartered by foreign
entities.
There is no need, however, to read between the lines of the law to deduce
grounds for the use of the Russian military against terrorist targets beyond national
borders. Article 10 specifically addresses the issue of trans-boundary deployment
of units, as well as engagement of targets outside Russian territory without crossing
the border.27 Remarkably, the law never mentions foreign territory as an area of de-
ployment; rather, the phrase that is used in the lead-in paragraph of Article 10.1 is
"interdiction of international terrorist activity beyond territorial bounds of the
Russian Federation."
As to internal procedures, the order to fire at terrorists from Russian territory
will be given by the president unilaterally in the exercise of his constitutional pow-
ers as the supreme commander-in-chief. To send troops across the border, the
president would first need to obtain consent from the Council of Federation.28
While the original version of the law required that the president submit informa-
tion regarding the proposed strength of the unit, the areas of deployment and its
duration, that provision was deleted by the Federal Law of July 27, 2006. 29
The law addresses "the interdiction of terrorist activity," which implies preemp-
tion due to the broad range of elements of "terrorist activity" as they are defined by
the law. The law makes a general reference to international treaties as sources of au-
thority, along with Russian legislation, for trans-boundary employment of the
armed forces; however, soon after the adoption of the federal law "On Counter-
acting Terrorism," Defense Minister Sergey Ivanov stated that the law by itself pro-
vides sufficient grounds for unilateral and preemptive use of force against terrorist
targets on foreign soil.30
This author is not qualified to appraise the true capacity of the Russian military
to engage terrorists who threaten Russian citizens and assets abroad. Unfortu-
nately, however, the recent drama with Russian embassy personnel in Baghdad
sadly proved that neither Russia nor local authorities, not even the occupying pow-
ers, were able to control the hostage crisis or save lives of internationally protected
persons.31
The law "On Counteracting Terrorism" lists several principles, some of which
would sound similar to ones found in the established international law. For exam-
ple, consider the principle of "proportionality of measures undertaken to counter
88
Bakhtiyar R. Tuzmukhamedov
terrorism to the level of terrorist threat" (Article 2 (2)). One can immediately trace
the origins of that principle back to the 1837 Caroline incident, in which the Caro-
line, a vessel used to supply Canadian rebels fighting British rule, was captured, set
ablaze and sent over Niagara Falls. One US citizen perished.
Several Soviet, and now Russian, students of international law have at least ac-
knowledged the Caroline doctrine, and some have given it a careful examination.32
While it has not been widely accepted in Russia, some of the official statements re-
garding the preemptive use of force could be construed as falling within the pur-
view of the Caroline doctrine, which, if properly adapted, could add a degree of
legitimacy to current approaches.
Traditionally, the most often quoted source for the Caroline doctrine has been a
paragraph in the diplomatic note from Daniel Webster, the US secretary of state, to
Henry Fox, the British minister in Washington, DC, dispatched on April 24, 1841.
It is from this note that current international law derives the principles of necessity
and proportionality.33 But we might discover no less substantive statements on
questions of law in other parts of Webster's letter, as well as in a later note from
Lord Ashburton, the British minister plenipotentiary on special mission, to Secre-
tary Webster, and in the address of President Tyler to the US Congress in the after-
math of the Caroline case.34
If the Russian government were to contemplate putting into effect provisions of
the federal law "On Counteracting Terrorism" that regulate deployment of Russian
armed forces outside Russian territory, it might consider several decision-making
guidelines on the preemptive use of force — first and foremost, necessity and pro-
portionality. Recourse might be had to Lord Ashburton's allusion to circumstances
under which the principle of "inviolable character of the territory of independent
nations"35 could be suspended. According to the British minister, "it must be so for
the shortest possible period, during the continuance of an admitted overruling ne-
cessity, and strictly confined within the narrowest limits imposed by that neces-
sity."36 That limitation could be developed further to include severe restrictions on
the choice of target, which should only be the immediate source of the threat, and
that that source ought to be in the space adjacent to the State's own territory. The
decision should also include consideration of the scale of the threat and the ex-
pected gravity of the consequences of inaction.
A decisive argument in favor of a preemptive use of force would be the explicit
consent to or request of a State on whose territory the source of the threat is located
because that State is not capable of coping with it. It might be worthwhile to con-
sider an attack if a neighboring State, on whose soil or under whose flag on the high
seas or in international airspace the threat is maturing, is expressly unwilling to
control it.
89
Preemption of Trans-boundary Terrorist Threats: The Russian Perspective
A unilateral resort to force might have to be considered if the imminence of
threat does not leave time to refer the issue to the United Nations Security Council
or to a regional arrangement, or if there is a continual record of passivity of those
institutions in similar situations, but in any case the Security Council will have to
be notified to comply with requirements of Article 51 ("Measures taken by Mem-
bers in the exercise of this right of self-defence shall be immediately reported to the
Security Council ") of the UN Charter. That means that the existence of a threat,
its gravity and imminence will have to be proven beyond reasonable doubt, and
that, in turn, would necessitate the disclosure of sources and means of collection of
information, bearing in mind that what one party would deem to be waterproof
evidence justifying a preemptive strike, could be strongly rejected by another party.
Resort to armed force would also be proof that other means, including diplomatic
and law-enforcement, turned out to be ineffective, or may have been used
unskillfully.
A State using armed force to divert a seemingly imminent attack shall be ex-
pected to bear full responsibility for injuries and damages inflicted upon innocent
persons and their property. A precursor for those injuries might well be inaccurate
information about the exact location of a source of terrorist threat and its pre-
paredness for an attack.
Finally, the location and duration of preemptive action must be clearly defined
to the personnel involved in it, who should be given precise orders and rules of en-
gagement. No action may commence without reliable and executable plans of
evacuation.
Those guidelines are general and some are self-evident. They would need to be
made specific for a particular contingency.
Russia is not the only State that declared its intention to use, as an extreme
means, armed force to eliminate an imminent threat of a massive terrorist attack
and, should dire need arise, project its force beyond its borders. Of course, those
making such statements should make sure that resolute declarations are supported
by adequate resources and the strong will to use them. Otherwise those declara-
tions are likely to be counterproductive and self-harming.
There is a question that could bother a zealous legalist: as more nations, some
of them bearing enormous might, submit that they would use armed force in self-
defense not only to react to an actual attack, but also to preempt an imminent as-
sault, or even prevent it from materializing in the future, would it not give impetus
to claims that a customary rule of international law has already been conceived?37
90
Bakhtiyar R. Tuzmukhamedov
Notes
1. Treaty Providing for the Renunciation of War as an Instrument of National Policy, Aug.
27, 1928, 46 Stat. 2343, 94 L.N.T.S. 57 available at http://www.fletcher.tufts.edu/multi/texts/his-
torical/bhl 15.txt.
2. Convention for the Definition of Aggression, July 3, 1933, 147 L.N.T.S. 52, available at
http://www.letton.ch/lvx 33da.htm.
3. 2 Trial of the Major War Criminals Before the International Military Tribunal:
Nuremberg, 14 November 1945 to 1 October 1946, at 98, 148.
4. E.g., S. Goltsov & Yu Maleev, Primeneniye Vooruzhennoy Sily Gosudarstvom Kak Mera
Preventivnoy Samozashchity Ad Hoc ot Vneshney Ugrozy (The Use of Armed Force by State as a
Measure of Ad Hoc Preventive Self-Protection From an External Threat), 4 MOSCOW JOURNAL
of International Law 45 (2004).
5. The latter term may be attributed to YORAM DlNSTEIN. See YORAM DlNSTEIN, WAR, AG-
GRESSION and Self Defence 190-92 (4th ed. 2005).
6. Chief of the General Staff General Yuri Baluyevsky warned that strikes could be delivered
"anywhere on the globe." KRASNAYA ZVEZDA (THE RED STAR), Sept. 9, 2004.
7. President George W. Bush, Graduation Address at West Point Qune 1, 2002), available
at http://www.whitehouse.gov/news/releases/2002/06/20020601-3.html.
8. Information on the Georgia Train and Equip Program may be found on the website of
the US embassy in Georgia at http://georgia.usembassy.gov/gtep.html.
9. President Vladimir Putin, Statement Commemorating the Victims of the 9/11 Attacks
(Sept. 11, 2002), available at http://president.kremlin.ru/text/appears/2002/09/29426.shtml.
10. Id.
1 1 . PARLIAMENTARY ASSEMBLY OF THE COUNCIL OF EUROPE, The situation in Georgia and
its consequences for the stability of the Caucasus region, 28th sitting, Recommendation 1580
(2002), available at http://assembly.coe. int/Main.asp?link=/Documents/AdoptedText/ta02/
EREC1580.htm.
12. Id.
13. In that Resolution (U.N. Doc. S/RES/1373 (Sept. 28, 2001)), the Security Council de-
cided that "all States shall prevent the movement of terrorists or terrorist groups by effective bor-
der controls and controls on issuance of identity papers and travel documents, and through
measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel
documents" (para. 2g), and called upon all States "to ensure, in conformity with international
law, that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist
acts, and that claims of political motivation are not recognized as grounds for refusing requests
for the extradition of alleged terrorists" (para. 3g).
14. The 1982 United Nations Convention on the Law of the Sea expounds the right of hot
pursuit in the homonymous Article 111:
1. The hot pursuit of a foreign ship may be undertaken when the competent
authorities of the coastal State have good reason to believe that the ship has violated the
laws and regulations of that State. Such pursuit must be commenced when the foreign
ship or one of its boats is within the internal waters, the archipelagic waters, the
territorial sea or the contiguous zone of the pursuing State, and may only be continued
outside the territorial sea or the contiguous zone if the pursuit has not been interrupted.
It is not necessary that, at the time when the foreign ship within the territorial sea or the
contiguous zone receives the order to stop, the ship giving the order should likewise be
91
Preemption of Trans-boundary Terrorist Threats: The Russian Perspective
within the territorial sea or the contiguous zone. If the foreign ship is within a
contiguous zone, as defined in article 33, the pursuit may only be undertaken if there
has been a violation of the rights for the protection of which the zone was established.
2. The right of hot pursuit shall apply mutates mutandis to violations in the exclusive
economic zone or on the continental shelf, including safety zones around continental
shelf installations, of the laws and regulations of the coastal State applicable in
accordance with this Convention to the exclusive economic zone or the continental
shelf, including such safety zones.
3. The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea
of its own State or of a third State.
4. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself
by such practicable means as may be available that the ship pursued or one of its boats
or other craft working as a team and using the ship pursued as a mother ship is within
the limits of the territorial sea, or, as the case may be, within the contiguous zone or the
exclusive economic zone or above the continental shelf. The pursuit may only be
commenced after a visual or auditory signal to stop has been given at a distance which
enables it to be seen or heard by the foreign ship.
5. The right of hot pursuit may be exercised only by warships or military aircraft, or
other ships or aircraft clearly marked and identifiable as being on government service
and authorized to that effect.
United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397.
15. In an attempt to foresee and deal with the consequences of possible intrusions of foreign
law enforcement officers, members of the Commonwealth of Independent States negotiated and
signed on June 4, 1999 the Treaty on the Procedures for the Stay of, and Interaction Between,
Law- Enforcement Officers on the Territories of States-Members of the Commonwealth of Inde-
pendent States. While such stays, as a general rule stated in the opening two sentences of Article
6(1), should have the consent of the receiving State, the remaining provisions of that paragraph
allowed for restricted non-consensual penetration of a foreign territory in "hot pursuit" of per-
sons who committed criminal offenses on the territory of a party engaged in such pursuit. The
treaty allowed for such penetration if timely and proper notification and a request for permis-
sion was impracticable. While effective February 6, 2001, the treaty was not ratified by Russia or
Georgia. For official publication of the treaty, see SODRUZHESTVO (COMMONWEALTH), THE IN-
FORMATION BULLETIN OF THE COUNCIL OF HEADS OF STATE AND COUNCIL OF HEADS OF GOV-
ERNMENT OF THE CIS, No. (32), at 27-33. On December 22, 2006 the Chairman of the
Government of the Russian Federation signed an executive order instructing the Ministry of
Foreign Affairs to notify the depositary of the treaty of Russia's "intention not to become a Party"
thereof. Sobraniye Zakonodatel'stva Rossiyskoy Federatsii (The Collection of Laws of the Rus-
sian Federation) No. 52 (Part III), art. 5640 (Dec. 2006) [hereinafter SZ RF].
16. ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE
IT 240 (1994).
1 7. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
2004 I.C.J. 56 (July 9), available at http://www.icj-cij.org/icjwww/idocket/imwp/
imwpframe.htm.
18. For a more extensive discussion of statements made by senior Russian officials and re-
spective citations, see Bakhtiyar Tuzmukhamedov, Uprezhdayushchee Primenenie Sily:
Vozmozhniye Kriterii Dopustimost (Pre-Emptive Use of Force: Conceivable Criteria of
Permissibility), RUSSIAN YEARBOOK OF INTERNATIONAL LAW 2005, at 47 (2006).
92
BakhtiyarR. Tuzmukhamedov
19. Supra note 6.
20. Supra note 9.
21. The Russian Constitution and statutes apply the term "aggression" at variance with its
use in the UN Charter and with the definition of aggression within the meaning of UN General
Assembly Resolution 3314. Under the latter, the act of aggression is to be established by the UN
Security Council, rather than by a national authority, and until the Council has acted, a trans-
boundary use of armed force remains an armed attack. G.A. Res. 3314, U.N. GAOR, 29th Sess.,
2319th plen. mtg., U.N. Doc. A/RES/3314 (Dec. 14, 1974). President Putin repeatedly referred to
incursions of insurgents from Chechnya, a constituent entity of the Russian Federation, into
Dagestan, another such entity, as "aggression." See, e.g., the Russian official version of his inter-
view on Larry King Live, Sept. 8, 2000 at http://president.kremlin.ru/appears/2000/09/08/
0000_type63379_28866.shtml. His words, "direct aggression," were translated into English as
"armed direct attack" in the transcript of the show at http://transcripts.cnn.com/
TRANSCRIPTS/0009/08/lkl.00.html. However, the term "aggression" applies to a trans-boundary
armed attack, rather than to a use of armed force confined to national borders, and it should not
be attributed to non-State actors unaffiliated with governments; otherwise, such attribution
might offer extra weight to such actors' claims to official status. President Putin occasionally
demonstrates awareness that the way he applies the term "aggression" may not be proper in the
legal sense. In the aftermath of the 1999 insurgent attack into Dagestan, he spoke about the "fear-
less resistance to aggression" of the Dagestani citizenry. But, according to Putin, "It should be
said that if we abstract ourselves from precise legal terms, that indeed was an aggression commit-
ted by international terrorists." See http://president.kremlin.ru/appears/2000/12/29/0000
_type63376type63378_595 1 1 .shtml.
22. SZRFNo. 2, art. 375 (Feb. 2002).
23. SZRFNo. 11, art. 1146 (Mar. 13,2006).
24. SZ RF No. 31, art. 3808 (Aug. 13, 1998).
25. In the absence of a universally recognized conventional definition of terrorism, the UN
Security Council suggested a legal ersatz definition according to which terrorism may be de-
scribed as
criminal acts, including against civilians, committed with the intent to cause death or
serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror
in the general public or in a group of persons or particular persons, intimidate a
population or compel a government or an international organization to do or to
abstain from doing any act, which constitute offences within the scope of and as defined
in the international conventions and protocols relating to terrorism, are under no
circumstances justifiable by considerations of a political, philosophical, ideological,
racial, ethnic, religious or other similar nature.
S.C. Res. 1566, 1 3, U.N. Doc. S/RES/1566 (Oct. 8, 2004).
26. The amendment, known as Article 3 bis, was adopted on May 10, 1984. It was prompted
by the downing nine months earlier by Soviet Air Defense of the Korean Air Lines Boeing 747-
200 Flight KAL 007. It provides as follows:
a) The contracting States recognize that every State must refrain from resorting to the
use of weapons against civil aircraft in flight and that, in case of interception, the lives of
persons on board and the safety of aircraft must not be endangered. This provision shall
not be interpreted as modifying in any way the rights and obligations of States set forth
in the Charter of the United Nations.
93
Preemption of Trans-boundary Terrorist Threats: The Russian Perspective
b) The contracting States recognize that every State, in the exercise of its sovereignty,
is entitled to require the landing at some designated airport of a civil aircraft flying
above its territory without authority or if there are reasonable grounds to conclude that
it is being used for any purpose inconsistent with the aims of this Convention; it may
also give such aircraft any other instructions to put an end to such violations. For this
purpose, the contracting States may resort to any appropriate means consistent with
relevant rules of international law, including the relevant provisions of this
Convention, specifically paragraph a) of this Article. Each contracting State agrees to
publish its regulations in force regarding the interception of civil aircraft.
c) Every civil aircraft shall comply with an order given in conformity with paragraph
b) of this Article. To this end each contracting State shall establish all necessary
provisions in its national laws or regulations to make such compliance mandatory for
any civil aircraft registered in that State or operated by an operator who has his
principal place of business or permanent residence in that State. Each contracting State
shall make any violation of such applicable laws or regulations punishable by severe
penalties and shall submit the case to its competent authorities in accordance with its
laws or regulations.
d) Each contracting State shall take appropriate measures to prohibit the deliberate
use of any civil aircraft registered in that State or operated by an operator who has his
principal place of business or permanent residence in that State for any purpose
inconsistent with the aims of this Convention. This provision shall not affect paragraph
a) or derogate from paragraphs b) and c) of this Article.
Amendment of Convention on International Civil Aviation with Regard to Interception of Civil
Aircraft, ICAO Doc. 9437, A25-Res. (May 10, 1984), reprinted in 23 INTERNATIONAL LEGAL
MATERIALS 705 (1984).
27. The latter is described as "employment of armaments from the territory of the Russian
Federation against terrorists and (or) their bases beyond" the territory of the Russian Federation
(Art. 10.1 (1)).
28. Article 102.1(d) of the Russian Constitution delegates to the Council of Federation the
power of "making decisions on the possibility of the use of the Armed Forces of the Russian Fed-
eration outside the territory of the Russian Federation." Until the adoption of the federal law
"On Counteracting Terrorism," that provision had been invoked to authorize the deployment of
Russian units to international peacekeeping operations. For an in-depth discussion of the distri-
bution of national defense powers in Russia, see Bahktiyar Tuzmukhamedov, Russian Federa-
tion: the pendulum of powers and accountability, in DEMOCRATIC ACCOUNTABILITY AND THE
USE OF FORCE IN INTERNATIONAL LAW 257 (Charlotte Ku & Harold K. lacobson eds., 2002).
29. SZRFNo. 31 (Part 1), art. 3452 (July 29, 2006).
30. Sergey Ivanov, Press Conference (Mar. 28, 2006), http://www.mil.ru/articles/articlel2865
.shtml.
3 1 . Four Russian embassy personnel were kidnapped in Baghdad on June 3, 2006 from a Rus-
sian embassy vehicle. A fifth was killed during the attack on the vehicle. On June 25, a group
linked to al-Qaida reported that it executed the four diplomats. See Al-Qaida group claims Rus-
sian deaths, UPI, June 25, 2006, available at http://www.arcamax.com/cgi-bin/news/
newsheadlines/s-88252-152190review=4.
32. Most notable are DAVID LEVIN, MEZHDUNARODNOYE PRAVO I SOKHRANENIYE MlRA
(International Law and the preservation of Peace) 148 (1971); Eduard Skakunov,
Samooborona v Mezhdunarodnom Prave (Self-Defense in International Law) 21,
57-58, 80-81 (1973). More recent references may be found in Vladimir Kotlyar, Pravo na
94
Bakhtiyar R. Tuzmukhamedov
Preventivnuyu Samooboronu i Sovremennoe Mezhdunarodnoe Pravo (The Right to Preventive Self-
Defense and Contemporary International Law) GOSUDARSTVO I PRAVO (STATE AND LAW), No.
10 (2005), at 76-77. See also Tuzmukhamedov, supra note 18, at 37-40 and Tuzmukhamedov,
Uprezhdeniye Siloy: "Karolina" I Sovremennosf (Preemption by Force: "Caroline" and Modernity),
ROSSIYA V GLOBALNOY POLITIKE (RUSSIA IN GLOBAL AFFAIRS) No. 2 (2006), at 205.
33. Daniel Webster wrote, "It will be for that Government [Her Majesty's] to show a neces-
sity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for de-
liberation." Letter from Daniel Webster, US Secretary of State, to Henry Fox, British Minister in
Washington (Apr. 24, 1841 ), IN 4 TREATIES AND OTHER INTERNATIONAL ACTS OF THE UNITED
STATES OF AMERICA 449 (Hunter Miller ed., 1934).
34. The letters exchanged between Webster, Fox and Ashburton and an extract from Presi-
dent Tyler's message to the Congress are also available at http://www.yale.edu/lawweb/avalon/
diplomacy/britain/br- 1 842d.htm.
35. Letter from Lord Ashburton, Minister Plenipotentiary on Special Mission, to Daniel
Webster, US Secretary of State (July 28, 1 842), 4 TREATIES AND OTHER INTERNATIONAL ACTS OF
THE UNITED STATES OF AMERICA, supra note 33, at 451.
36. Id.
37. Interviewed by the Italian daily newspaper Corriere Delia Sera on November 3, 2003,
President Putin stated that "if the principle of preventive use of force would assert itself in inter-
national practice, in international life, then Russia shall reserve the right to act in a similar mode
to protect its own national interests," http://www.kremlin.rU/text/appears/2003/l 1/54926. shtml
(last visited Sept. 30, 2006). See also W. Michael Reisman & Andrea Armstrong, The Past and Fu-
ture of the Claim of Preemptive Self-Defense, 100 AMERICAN JOURNAL OF INTERNATIONAL LAW
525 (2006).
95
VII
Security in the Strait of Malacca and the
Regional Maritime Security Initiative:
Responses to the US Proposal
Yann-huei Song*
Introduction
The Regional Maritime Security Initiative (RMSI), proposed in 2004 by Admiral
Thomas B. Fargo, former commander of the US Pacific Command, is one of
the American maritime security programs and initiatives designed to promote re-
gional cooperation and improve maritime security in the East Asia and Pacific re-
gion, especially in the straits of Malacca and Singapore.1 The main goal of RMSI is
to develop a partnership of willing nations, working together under international
and domestic law, to identify, monitor and intercept transnational maritime
threats, in particular piracy, armed robbery and terrorist attacks at sea.2 This initia-
tive is now coordinated jointly by the US Pacific Command and the US Depart-
ment of State.3
The Strait of Malacca, six hundred miles long and only one and a half miles
wide at its narrowest point, is a confined stretch of water between Peninsular Ma-
laysia and the Indonesian island of Sumatra. From an economic and strategic
perspective, it is one of the most important shipping lanes in the world, the
equivalent of the Suez Canal or Panama Canal. The Strait of Malacca forms the
* Research Fellow, Academia Sinica, Taiwan. Fulbright Visiting Scholar, the Asia-Pacific
Research Center, Stanford University.
Security in the Strait of Malacca and Regional Responses to the US Proposal
seaway connecting the Indian Ocean with the South China Sea and the Pacific
Ocean, linking three of the world's most populous nations: India, Indonesia and
China. Annually, approximately fifty thousand large vessels, and daily, an average
of forty-five oil tankers, pass through the strait.4 Daily, about six hundred cargo
vessels carrying everything from Japanese nuclear waste bound for reprocessing fa-
cilities in Europe to raw materials for China's booming economy traverse the Strait
of Malacca.5 It is estimated that two-thirds of the world's liquefied natural gas
(LNG);6 between one-fifth and one-quarter of the world's sea trade; half of the
global oil shipments carried by sea; and over 80 percent of the oil and gas imports
of China, Japan, Taiwan and South Korea come through the Strait of Malacca. The
number of ships passing through the strait is projected to increase due to the rapid
economic growth of the countries in the Asia-Pacific region. It has been estimated
that within the next twenty years two-thirds of China's petroleum imports will
flow from the Middle East, most probably through the Strait of Malacca.7 While
two alternative waterways are available for international shipping (the Sunda Strait
and the Lombok and Makassar straits through Indonesian archipelagic waters), if
the Strait of Malacca was closed a detour through these alternative routes would
add a significant amount of shipping time and cost.
In recent years the Strait of Malacca has increasingly become the target of piracy
and armed robbery against vessels. This upsurge in the violence directed against
shipping is not surprising given the high volume of transiting traffic, the geograph-
ical nature of the strait, the significant political and economic instability in the
area, and the lack of resources and weak maritime law enforcement capacity of the
littoral States. Since the September 11, 2001 terrorist attacks in the United States,
increasing attention has been given to the threat of maritime terrorism, prolifera-
tion of weapons of mass destruction (WMD) and the security of the maritime
transport sector in general. As a result of this changed strategic environment in the
Strait of Malacca area, there has also been a growing conviction among the littoral
States of the need to establish a burden-sharing arrangement, based on Article 43
of the 1982 United Nations Convention on the Law of the Sea (1982 LOS Conven-
tion).8 Such an arrangement would be designed to help cover the gradually increas-
ing cost of providing essential maritime infrastructure in the Strait of Malacca and,
over the years, to keep the waters clear of pollution, safe for navigation, and free
from the threat of pirate and terrorist attacks.
User States, especially China, Japan, South Korea and Taiwan, which are depen-
dent on the strait for the smooth and efficient transit of cargo, in particular energy
supplies, also raised concerns about the safety and security of their vessels and have
demanded that enhanced security measures be taken by the States that border the
Strait of Malacca.9 Other user States that are among the major maritime powers,
98
Yann-huei Song
such as the United States, also raised maritime security concerns regarding the po-
tential threat of transnational crimes, maritime terrorism and armed attacks
against their naval and commercial vessels traversing the strait. As a result, the mar-
itime powers began to explore possible means of becoming involved more directly in
the management of security matters in the Strait of Malacca. These efforts, how-
ever, were regarded by the littoral States as an attempt to "internationalize" the
safety and security of the Strait of Malacca. In response, the littoral States reiterated
their positions that enhancing safety and security and managing environmental is-
sues in the strait are primarily their responsibility.
It is against this background that, when the idea of a RMSI was first introduced
in Admiral Fargo's speech to the US Congress on March 31, 2004, Indonesia and
Malaysia strongly rejected the idea of patrols by foreign powers in the Strait of
Malacca. The governments of these two nations also raised the concern that a US
naval presence in the strait would actually attract terrorist attacks and bolster the
appeal of extremists. However, Singapore, with its economy heavily dependent on
global commercial traffic through the strait, sees piracy, armed robbery and mari-
time terrorism as major security threats, and therefore supported the RMSI, argu-
ing that it is an intensive and complex task to safeguard the waterways against
maritime terrorism and that no single State has the resources to deal effectively
with the maritime security threat in the Strait of Malacca.
In response to the serious concerns of Indonesia and Malaysia, the American se-
curity initiative was modified to delete the original proposal to deploy US forces to
conduct patrols in the strait. On the other hand, due in large measure to the pros-
pect of foreign intervention in safeguarding the security of the Strait of Malacca,
Indonesia, Malaysia and Singapore agreed to carry out coordinated sea and air patrols
to curb piracy and armed robbery, and to increase maritime security. The decision
of the Joint War Committee (JWC) of Lloyd's Market Association in June 2005 to
declare the Strait of Malacca a "war-risk and terrorist zone" also prompted the
three littoral States to take a series of unilateral, bilateral and trilateral cooperative
actions to improve the security environment of the Strait of Malacca.
Malaysia, for instance, announced that its armed police will be placed on board
selected tug boats and barges traversing the Strait of Malacca. In addition, an
escort service will be provided for vessels carrying valuable goods in the strait.
Malaysia also declared that it will begin twenty-four-hour surveillance of the
strait.10 A new Malaysian Maritime Enforcement Agency (MMEA) was also estab-
lished and began patrolling the Strait of Malacca in November 2005. Bilateral coor-
dinated patrols between Malaysia and Indonesia, and between Indonesia and
Singapore, have also been worked out to bring together their respective agencies
involved in anti-piracy and anti-robbery activities. In July 2004, Indonesia,
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Security in the Strait of Malacca and Regional Responses to the US Proposal
Malaysia and Singapore launched a new trilateral coordinated patrols initiative
(Malsindo) in the Strait of Malacca, which was seen as another major response of
the littoral States to the increasingly challenging issue of safety and security of the
strait. In addition, in August 2005, the three littoral States agreed to implement
joint air patrols over the Strait of Malacca in a bid to boost security in the waterway,
which has been dubbed the "Eyes in the Sky" plan. In April 2006, Indonesia, Ma-
laysia and Singapore signed an agreement to form a Joint Coordinating Committee
on the Malacca Straits Patrols (MSP) and Standard Operational Procedures on Co-
ordinated Patrols.11
The purpose of this article is to examine the development of the US-proposed
RMSI and its influence on national and regional efforts being undertaken to en-
hance security in the Malacca strait and will focus, in particular, on the littoral
States' responses to the American security initiative. The paper first looks into the
background of the introduction of the idea of RMSI by the US Pacific Command in
March 2004; second, it provides an overview of the RMSI and the implementation
of the initiative; third, it examines the preliminary national responses of the three
States that border the Strait of Malacca to the US initiative; fourth, it summarizes
the views of selected ocean law and maritime security experts on the legality, justifi-
cation and political implications of the initiative; fifth, it addresses the steps taken
by the littoral States unilaterally, bilaterally and multilaterally, between July 2004
and June 2006, to enhance security in the Strait of Malacca; sixth, it summarizes the
important regional responses and efforts to help enhance security in the Malacca
strait; seventh, it discusses the role played by existing mechanisms in the region in
processes to help develop cooperative efforts to improve security in the strait; and
finally, it offers the author's observations regarding policy outcomes in terms of lit-
toral States' responses to the US-proposed RMSI and the challenges lying ahead for
advancing maritime security in the Strait of Malacca.
Background for the Regional Maritime Security Initiative Concept
The September 11, 2001 attacks and subsequent anthrax attacks in the United
States profoundly changed the Bush administration's strategic thinking on na-
tional security. This change was reflected in the National Security Strategy of the
United States of America and the National Strategy to Combat Weapons of
Mass Destruction, which were released by the White House in September 2002
and December 2002, respectively.12 This new strategic thinking is defined by ( 1 )
the way in which the United States uses force in the post-9/1 1 world, (2) how the
United States defines defense and (3) the way the United States approaches prolif-
eration.13 Under the new strategy, winning the war against terrorism and stopping
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Yann-huei Song
the proliferation of WMD have become priority missions of the American armed
forces. In the maritime domain,14 preventing terrorist attacks and criminal or hos-
tile acts has also emerged as one of the key US policy objectives that guide the na-
tion's maritime security activities.
In October 2000, terrorists in a boat laden with explosives carried out a suicide
bombing of the USS Cole (DDG 67) in the harbor at Aden, Yemen. Seventeen US
sailors were killed and over thirty others were wounded. The attack, organized by
Osama bin Laden's al-Qaeda terrorist organization, was carried out by suicide
bombers Ibrahim al-Thawr and Abdullah al-Misawa.15 After the September 11th
attacks, the United States became more concerned about potential terrorist attacks
in the Strait of Malacca area, as demonstrated in late 2001 and early 2002 when US
and Indian naval forces collaborated to protect American merchant shipping at the
northern end of the strait.16 The US perception of the maritime security threat in
Southeast Asia and the Malacca strait was further reinforced in late 2002 and 2003
by three elements: (1) increasing concerns over the association of piracy with ter-
rorist organizations in the region; (2) US and foreign security intelligence reports
indicating that US-flag vessels, both civilian and military, could be attacked by ter-
rorist groups when sailing through the strait or anchoring at ports; and (3) the in-
creasing number of reports of pirate and maritime terrorist attack incidents that
occurred in Southeast Asia and in the Strait of Malacca.
According to the available evidence obtained by the US Central Intelligence
Agency (CIA) and other Western intelligence services, terrorist groups have al-
ready considered striking at maritime targets, particularly in the Strait of Malacca.
The video tapes seized from the Indonesian terrorist group Jemaah Islamiyya (JI),
which included footage of Malaysian maritime police patrols, indicate that this ter-
rorist group was observing security procedures operating in the strait. Members of JI
have been trained in seaborne guerrilla tactics, such as suicide diving capabilities and
ramming. A basic diving manual recovered in Kandahar in Afghanistan was seen as
further evidence of a larger plan to launch maritime attacks by the al-Qaeda net-
works and it is well known that JI has links with al-Qaeda.17 It is believed that other
terrorist groups in Southeast Asia, such as the Free Aceh Movement (also known as
Gerakan Aceh Merdeka (GAM)), the Abu Sayyaf Group, the Moro Islamic Libera-
tion Front (MILF) and the Moro National Liberation Front (MNLF), are also en-
gaging in maritime piracy or terrorist attacks in the region. Following the arrests of
several JI operatives in Singapore in December 2001, it was revealed that the terrorist
group was plotting to blow up US warships docked at the Changi Naval Base in Singa-
pore.18 Warnings about terrorist groups' plans to seize US-flag vessels in the Strait of
Malacca had also been issued by US intelligence services.19
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Security in the Strait of Malacca and Regional Responses to the US Proposal
A number of reports on pirate and maritime terrorist attacks in late 2002 and
2003 also increased US concerns about possible attacks against its vessels transiting
the waterways in the Strait of Malacca and Southeast Asia. In October 2002, the
MV Limburg, a French oil tanker, was attacked by an explosive-laden boat.20 The
organizer of the attack was Abd al Rahman al Nashir, who was also believed to have
been responsible for the attack on the Cole. The Limburg attack not only high-
lighted the vulnerability of cargo ships to terrorist attacks but also confirmed US
concerns that it is not beyond the capabilities of terrorist groups to carry out assaults
on maritime interests such as vessels and ports. In March 2003, the Indonesian
chemical tanker Dewi Madrim was boarded by ten pirates from a speedboat in the
congested southern reaches of the Strait of Malacca. The pirates were equipped
with machine guns and machetes and carried VHF radios. Having disabled the
tanker's communications and tied up the crew, the pirates took the helm and navi-
gated the vessel for about an hour before departing with the master and first officer
as hostages. According to a study by Aegis Defence Services, a London-based de-
fense and security consultancy, the temporary hijacking of the Dewi Madrim was
an attempt by terrorists to learn how to pilot a ship, and the kidnapping was aimed
at acquiring expertise to help the terrorists mount a maritime attack. The Dewi
Madrim attack was therefore considered the equivalent of the tactics of the al-
Qaeda hijackers who perpetrated the September 1 1th attacks after going to a flight
school in Florida.21 Singapore's defense minister, Tony Tan, also stated that the
Dewi Madrim incident and others like it were practice runs for a terrorist attack.22
In February 2004, six al-Qaeda-linked Muslim militants of the Abu Sayyaf Group
bombed SuperFerry 14, leaving over one hundred people dead. Philippine presi-
dent Gloria Arroyo confirmed that the attack was the work of terrorists.23 In addi-
tion to the maritime terrorist attacks, pirate attacks in the Strait of Malacca also
increased from sixteen to twenty-eight in 2003 and from twenty-eight to thirty-
seven in 2004.24 According to the International Maritime Bureau's piracy report-
ing center, seventy of the 251 global reports of piratical attacks in the first nine
months of 2004 occurred in the Strait of Malacca.25
The US Pacific Command is the headquarters responsible for all American air,
ground and maritime military forces in the Asia-Pacific region. The Strait of
Malacca and Southeast Asia are within the area of responsibility of this command,
the mission of which is to promote security and peaceful development in the re-
gion by deterring aggression, advancing regional security cooperation, responding
to crises, and fighting to win.26 Since the September 1 1 attacks, prosecuting and
winning the global war on terrorism has become one of the command's major fo-
cus areas. In response to the increasing maritime security threat in the Strait of
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Yann-huei Song
Malacca and Southeast Asia, as demonstrated above, the US Pacific Command de-
veloped the concept of RMSI.
The Development and Overview of the Regional Maritime Security Initiative
On March 31, 2004, in testimony before the House Armed Services Committee re-
garding US Pacific Command posture, Admiral Thomas B. Fargo, its commander,
stated that despite notable successes in the war on terrorism, the United States re-
mained deeply concerned about transnational threats from terrorist organizations
such as al-Qaeda, JI and the Abu Sayyaf Group in the Asia-Pacific region. The
United States sensed increasing synergy between transnational threats like terror-
ism, illicit drugs, trafficking in humans, piracy and especially WMD proliferation.
To improve international cooperation against these transnational security threats,
President George Bush launched the Proliferation Security Initiative (PSI) and the
State Department proposed the Malacca Straits Initiative in 2003. To help
operationalize these initiatives, the US Pacific Command introduced the concept
of RMSI.27 During the question and answer session at the same hearings, in re-
sponse to the questions raised by Congressman Rick Larsen about RMSI and its re-
lationship to the PSI, Admiral Fargo cited the lack of information and intelligence
on the transnational maritime threat. The Admiral noted that there was wide-
spread support for RMSI and stated:
I just came back from Singapore and had a very solid conversation with the "Sings" and
they're going to help us with this. My instinct, it probably ought to start at the Strait of
[Malacca] and work its way out, because the Straits of [Malacca] are fundamental to
the movement of all of the energy through the region. . . . We need to know who's
moving through the sea space. We need to know the status of ships. We need
participation from the vast majority of them so that we can single out and cue on those
that aren't within the law.28
It was Admiral Fargo's belief that RMSI would receive a very broad range of sup-
port from the countries in the region, including the three littoral States of the
Malacca strait.29
As far as the means to implement the initiative are concerned — in particular, to
carry out maritime interdiction operations in the Strait of Malacca — the Admiral
indicated that
We're looking at things like high-speed vessels, putting Special Operations Forces on
high-speed vessels, putting, potentially, Marines on high-speed vessels so that we can
use boats that might be incorporated with these vessels to conduct effective
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Security in the Strait of Malacca and Regional Responses to the US Proposal
interdiction in . . . these sea lines of communications where terrorists are known to
move about and transit throughout the region.30
This proposal later became the main reason two of the littoral States of the Malacca
strait — Indonesia and Malaysia — rejected the idea of RMSI. In response to the
strong reactions from the littoral States, US ambassador to Indonesia Ralph L.
Boyce clarified the statement in Jakarta in April 2004, saying, "Admiral Fargo never
said the US was going to send its marines or special forces to the Straits of Malacca.
The AFP story . . . was misleading."31 The US embassy in Malaysia also made the
same clarification, adding that the RMSI would be conducted within existing inter-
national laws.32 Having clarified Admiral Fargo's proposal, the US State Depart-
ment continued to call on the nations in the Asia-Pacific region to work more
closely to deal with the transnational threats, in particular, terrorism, piracy and
other crimes, including drug trafficking and human trafficking. US deputy assis-
tant secretary of state for East Asia Matthew Daley, for instance, warned at the Dia-
logue on Security in Asia, held in Singapore in April 2004, that "Asia's waters are
prime targets for Al-Qaeda and other terrorists" and "[wjhether we are talking
about acts of piracy or terrorist attacks or even transnational problems, such as
trafficking of persons or drugs, the terrorist aspect is not to be underestimated."33
Daley also stressed that the concern over the potential maritime terrorist attacks
was not simply theoretical but was going to be an essential area of multilateral co-
operation in the Asia-Pacific region in the months and years to come.34
In May 2004, Admiral Fargo further elaborated his idea of RMSI at the Military
Operations and Law Conference held in Victoria, British Columbia, where he also
emphasized the importance of conducting the initiative under existing interna-
tional laws, including the laws of war and respect for national sovereignty. As he
explained at the conference:
The goal of RMSI is to develop a partnership of willing regional nations with varying
capabilities and capacities to identify, monitor, and intercept transnational maritime
threats under existing international and domestic laws. This collective effort will
empower each participating nation with the timely information and capabilities it
needs to act against maritime threats in its own territorial seas. As always, each nation
will have to decide for itself what response, if any, it will take in its own waters.
Information sharing will also contribute to the security of international seas, creating
an environment hostile to terrorism and other criminal activities. Any RMSI activity in
international waters will, again, be in accordance with existing international law.35
There were five elements in the RMSI proposed by Admiral Fargo. These are
(1) increased situational awareness and information sharing, (2) responsive
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Yann-huei Song
decision-making architectures, (3) maritime interdiction capabilities, (4) littoral
security and (5) interagency cooperation. He also made it clear that RMSI is not a
treaty or an alliance and that the initiative will not result in a standing naval force
patrolling the Pacific. Admiral Fargo added that the initiative differs from the PSI in
the sense that it is not a global effort, but will focus on maritime transnational
threats in the Asia-Pacific region. Moreover, RMSI is not a challenge to sovereignty,
and activities undertaken under the initiative will not violate existing international
and domestic laws.36
In July 2004, the United States and the Philippines co-hosted the Maritime
Threats Workshop held in Cebu in the Philippines. A major topic of the workshop
was the US-proposed RMSI, which "emphasizes information sharing, providing
cueing of emerging threats, contributing to the security of international seas, and
most important, creating an environment hostile to terrorism and other criminal
activities."37 It was stated that RMSI could empower each nation to take action it
deems necessary to protect itself in its own waters, thereby enhancing the region's
collective security. While the participants agreed that RMSI could provide a plan of
action to address the transnational maritime threats in the region, they also recom-
mended the use of existing fora and international/regional programs that are ap-
propriate to address RMSI objectives in order to avoid establishing additional
mechanisms. The existing mechanisms include the Association of Southeast Asian
Nations (ASEAN), the ASEAN Regional Forum (ARF) and the Asia-Pacific Eco-
nomic Cooperation group (APEC).38
In November 2004, an overview of RMSI was provided on the website of the US
Pacific Command, along with links to the US Pacific Command Strategy for Re-
gional Maritime Security and other RMSI-related documents. These documents
provide a more accurate understanding of RMSI, its strategic intent and status.39
The Strategy for Regional Maritime Security stated clearly in its executive sum-
mary that RMSI "is designed to deny the use of the maritime domain by those who
pose a threat to the Asia-Pacific region's maritime security, including transnational
terrorists and criminals."40 The nations participating in this initiative will utilize a
cross-discipline, interagency approach to facilitate the development of regional
maritime security capacities and conduct activities to establish and maintain a se-
cure maritime environment. Implementation of RMSI will be accomplished by co-
ordinating activities between the United States and the participating nations in the
region that support the following common elements of maritime security: (1) in-
creased situational awareness and information sharing; (2) responsive decision-
making architectures; (3) enhanced maritime interception capacity; and (4)
agency, ministerial and international cooperation.41
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Security in the Strait of Malacca and Regional Responses to the US Proposal
According to the regional maritime security strategy, RMSI activities will be un-
dertaken in the territorial waters of the participating nations and international wa-
ters of the Pacific and Indian oceans to counter "maritime threats" that include
terrorism, maritime piracy, illegal trafficking (i.e., narcotics, weapons, human and
illicit cargo) and other criminal activities in the maritime domain.42 RMSI will be
implemented through a cooperative effort, emphasizing interactions with the gov-
ernments, international organizations and private sectors in the region, and will be
based upon existing bilateral and multilateral arrangements. The international or-
ganizations dealing with maritime security issues in the region include, but are not
limited to, ASEAN, ARF, ASEAN Security Community (ASC), APEC, Council for
Security Cooperation in the Asia Pacific (CSCAP), International Maritime Bureau
(1MB), North Pacific Heads of Coast Guard Agencies, United Nations International
Maritime Organization (IMO) and the Western Pacific Naval Symposium
(WPNS).43
The strategic intent of RMSI is to carry out the four common elements of mari-
time security mentioned earlier through cooperative efforts. Accordingly, the
RMSI-participating nations will establish procedures, processes and standards to
fuse information and the means to share the information; support the develop-
ment of responsive decision-making architectures and regional maritime security
capacity through agency, ministerial and international unity of effort; engage in
appropriate fora to gain the requisite understanding of existing maritime security
capacities; and develop cooperative arrangements to monitor, identify and inter-
cept suspect vessels and transnational threats in territorial and international waters,
consistent with international and domestic law. RMSI will also leverage appropri-
ate elements of national and international resources and capabilities and will com-
plement ongoing cooperative security activities such as bilateral and multilateral
exercises, the Container Security Initiative (CSI), Counterdrug (CD) Operations,
Customs-Trade Partnership Against Terrorism (C-TPAT), International Port Secu-
rity Program (IPSP), International Ship and Port Facility Security (ISPS) Code,
Maritime Domain Awareness (MDA), Multinational Planning Augmentation
Team (MPAT), Proliferation Security Initiative (PSI), Regional Cooperation Agree-
ment on Anti-Piracy (ReCAAP), and Secure Trade in the APEC Region (STAR).44
Table 1 (below) illustrates security in the Asia-Pacific maritime continuum.
In December 2004, President Bush promulgated National Security Presidential
Directive 41 and Homeland Security Presidential Directive 13 (NSPD-41/HSPD-13),
which established US policy, guidelines and implementation actions to enhance
US national interests and homeland security by protecting US maritime interests.
The directives also established a Maritime Security Policy Coordinating Commit-
tee to coordinate interagency maritime security policy efforts. In recognition of the
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Yann-huei Song
importance of the maritime domain to US national security interests, and given the
potential threat to US maritime security, the US government decided to
[Djeploy the full range of its operational assets and capabilities to prevent the Maritime
Domain from being used by terrorists, criminals, and hostile States to commit acts of
terrorism and criminal or other unlawful or hostile acts against the United States, its
people, economy, property, territory, allies, and friends, while recognizing that
maritime security policies are most effective when the strategic importance of
international trade, economic cooperation, and the free flow of commerce are
considered appropriately.45
It thus became US policy "to take all necessary and appropriate actions, consistent
with U.S. law, treaties and other international agreements to which the United States
is a party, and customary international law as determined for the United States by the
President, to enhance security and protect U.S. interests in the Maritime Domain."46
PSI
MDA
CSI
RMSI
ISPS
TITLE
Proliferation
Security Initiative
Maritime Domain
Awareness
Container
Security Initiative
Regional Maritime
Security Initiative
International Ship &
Port Facility Security
Code
US & INTL.
AGENCIES
National
Security Council
US Coast Guard
US Navy
US Department
of Homeland
Security-
Customs &
Border
Protection (CBP)
US Department of
State
United Nations
US Department of
State
USPACOM
International Maritime
Organization
US Department of
Defense
AREA
Worldwide/Global
US & Territories
Worldwide/Global
Asia-Pacific Region
Worldwide/Global
FOCUS
Deter & disrupt
WMD (& related
material/delivery
systems)
proliferation
transported on the
sea, air & ground.
Reduce
proliferation by
deterring suppliers
& customers, &
making
proliferation more
costly & difficult.
Attain effective
understanding of
anything
associated with
the global
maritime
environment that
could impact the
security, safety,
economy or
environment of
the US.
US-bound
shipping cargo
container safety.
Exchange
program with
CBP officers
stationed in
select ports.
About 7 million
containers
arriving in US
ports annually.
90% of global
trade via cargo
containers.
Partnership of
willing nations
enhancing
capabilities &
leveraging
capacities through
unity of effort to
identify, monitor &
intercept
transnational
maritime threats
consistent with
existing
international &
domestic laws.
Provide a
standardized,
consistent framework
for evaluating risk &
enabling governments
to offset changes in
threats with changes
in vulnerability for
ships & port facilities.
Table 1: Security in the Asia-Pacific Maritime Continuum
Source: US Pacific Command, RMSI: The Idea, The Facts47
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Security in the Strait of Malacca and Regional Responses to the US Proposal
Accordingly, President Bush directed the secretaries of defense and homeland
security to jointly lead a collaborative interagency effort to draft a recommended
National Strategy for Maritime Security.48 In concert with the development of the
national strategy, the following actions were tasked: ( 1 ) Maritime Domain Awareness,
(2) Global Maritime Intelligence Integration, (3) Domestic Outreach, (4) Coordi-
nation of International Efforts and International Outreach, (5) Maritime Threat
Response, (6) Maritime Infrastructure Recovery, (7) Maritime Transportation
System Security, and (8) Maritime Commerce Security.49 While the term "Regional
Maritime Security Initiative" was not found in the directive, it is clear that Admiral
Fargo's concept of RMSI had been incorporated into NSPD-41/HSPD-13.
In February 2005, Admiral William J. Fallon was nominated by President Bush
and confirmed by the US Senate to succeed Admiral Fargo as the new Commander,
US Pacific Command. Thereafter, RMSI continued to constitute an integral part of
the command's maritime security strategy. As reflected in Admiral Fallon's re-
marks at the 4th Annual Shangri-La Dialogue held in Singapore in June 2005, the
concept of RMSI remains very much alive. He noted that RMSI was launched by
his predecessor and reiterated US Pacific Command's concern over the maritime
security threat in the Asia-Pacific region. He pointed out that because knowledge
of activities in the sea space is incomplete, unseen threats can develop and therefore
it is essential to develop close cooperation among nations and between maritime
organizations, both State and non-governmental, in the region. In addition, with
due respect for national sovereignty, Admiral Fallon suggested that organizational
and operational issues should be priority items for agreement for the purpose of
enhancing maritime security in the Asia-Pacific region.50
In September 2005, the National Strategy for Maritime Security51 was issued by
the White House, listing the following threats to US maritime security: ( 1 ) nation-
State threats associated with terrorism and WMD attacks; (2) terrorist threats, in
particular those associated with attacks by possible use of WMD and attacks at or
from the sea; (3) transnational criminal and piracy threats; (4) environmental de-
struction; and (5) illegal seaborne immigration. The US perception of maritime
terrorist threats is reflected in the following security assessment:
Terrorists can also develop effective attack capabilities relatively quickly using a variety
of platforms, including explosives-laden suicide boats . . . and light aircraft; merchant
and cruise ships as kinetic weapons to ram another vessel, warship, port facility, or
offshore platform; commercial vessels as launch platforms for missile attacks;
underwater swimmers to. infiltrate ports; and unmanned underwater explosive
delivery vehicles. Mines are also an effective weapon because they are low-cost, readily
available, easily deployed, difficult to counter and require minimal training. Terrorists
can also take advantage of a vessel's legitimate cargo, such as chemicals, petroleum, or
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Yann-huei Song
liquefied natural gas, as the explosive component of an attack. Vessels can be used to
transport powerful conventional explosives or WMD for detonation in a port or
alongside an offshore facility.52
To achieve the objectives of the National Strategy for Maritime Security, the fol-
lowing five strategic actions are to be taken collectively by the United States, other
willing nations and international organizations: ( 1 ) enhance international cooper-
ation, (2) maximize domain awareness, (3) embed security into commercial prac-
tices, (4) deploy layered security and (5) assure continuity of the marine
transportation system.53 Specifically referring to the management of security in the
Strait of Malacca, it is the policy of the United States to "use the agencies and com-
ponents of the Federal Government in innovative ways to improve the security of
sea-lanes that pass through international straits."54 The United States intends to
work with its regional and international partners to expand maritime security ef-
forts. Since regional maritime security regimes are a major international compo-
nent of the US national strategy, and are essential for ensuring the effective security
of regional seas, the United States is willing to work closely with other governments
and international and regional organizations to enhance the maritime security ca-
pabilities of other key nations by adopting the following measures:
• Offering maritime and port security assistance, training and consultation;
• Coordinating and prioritizing maritime security assistance and liaison
within regions;
• Allocating economic assistance to developing nations for maritime security
to enhance security and prosperity;
• Promoting implementation of the Convention for the Suppression of
Unlawful Acts Against the Safety of Maritime Navigation and its amendment and
other international agreements; and
• Expanding the International Port Security and Maritime Liaison Officer
programs, and the number of agency attaches.55
In addition to the National Strategy for Maritime Security, the relevant US de-
partments and agencies have developed eight supporting plans to address the spe-
cific threats and challenges of the maritime environment, which include:
• The National Plan to Achieve Maritime Domain Awareness;56
• The Global Maritime Intelligence Integration Plan;57
• The Maritime Operational Threat Response Plan;58
• The International Outreach and Coordination Strategy;59
• The Maritime Infrastructure Recovery Plan;60
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Security in the Strait of Malacca and Regional Responses to the US Proposal
• The Maritime Transportation System Security Recommendations;61
• The Maritime Commerce Security Plan;62 and
• The Domestic Outreach Plan.63
In November 2005, the Department of State submitted the International Out-
reach and Coordination Strategy for the National Strategy for Maritime Security64
to the White House. The strategy aims to advance the policies set by President Bush
in the National Security Strategy,65 the National Strategy for Homeland Security66
and the National Strategy for Maritime Security and to help accomplish the presi-
dent's vision of a fully coordinated US government effort to protect the nation's in-
terests in the maritime domain. In order to achieve the strategic goals of the
International Outreach and Coordination Strategy, the US Department of State
works together with the US Pacific Command to implement RMSI. In February
2006, it was reported that the State Department has proposed a $4.8 billion military
aid budget for Fiscal Year 2007, in which $2 million is allocated to RMSI.67 On
March 7, 2006, Admiral Fallon, in testimony before the Senate Armed Services
Committee, stated that "[w] inning the war on terrorism is U.S. Pacific Com-
mand's highest priority" and that Southeast Asia remains the command's focal
point in the war on terror.68
On February 15-17, 2006, the United States held a conference in Alameda, Cali-
fornia to discuss ways and means to help coordinate potential donor contributions
in maritime security efforts in the Malacca strait. Sponsored by the US Department
of State and the US Coast Guard, this meeting was attended by the US Pacific Com-
mand, like-minded countries using the strait, the International Maritime Bureau
(1MB), private sector representatives and other observers. The three littoral States
of the Malacca strait — Indonesia, Malaysia and Singapore — were not invited to the
conference. China was invited to the conference but did not attend. Taiwan was
not invited because of sensitive political reasons.
The Alameda conference was an important initiative and was held under the IMO
framework. However, in comparison with the news coverage on the US-proposed
RMSI back in May 2004, surprisingly no reports on the Alameda conference were re-
ported in the media, except an item in the Defense News regarding India's announce-
ment during the conference that its maritime surveillance force would jointly patrol
the Strait of Malacca with the United States,69 a very brief report on the conference at
the US Department of State's Fact Sheet on Maritime Security in the East Asian and
Pacific Region,70 and the commentary on the Institute of Defence and Strategic
Studies website entitled "Burden Sharing in the Straits: Not So Straightforward" by
Sam Bateman.71 The latter commented that the Alameda conference appeared to
pre-empt the initial task of the littoral States in identifying and prioritizing their
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needs to enhance safety and security and manage environmental matters, and allo-
cated a leading role to the user States of the Strait of Malacca. In addition, this meet-
ing appeared to attach little significance to Article 43 of the 1982 LOS Convention72
that has been the key focus of the littoral States over the past five years and the cor-
nerstone of the IMO initiative that was discussed and agreed to at the Meeting on the
Straits of Malacca and Singapore: Enhancing Safety, Security and Environmental
Protection held in Jakarta, Indonesia in September 2005.
Before proceeding to the discussion of the littoral States' initial responses to the
US-proposed RMSI, it is important to mention briefly a fact sheet provided by the
US Department of State,73 mainly because the document describes the US mari-
time security policy, especially in the Malacca strait area. According to this fact
sheet, it is the US policy to seek to develop cooperative mechanisms to enhance the
safety, security and environmental protection of strategic waterways in the East
Asia and Pacific region, in particular the Strait of Malacca. The United States will
work with like-minded countries and those littoral States responsible for safe-
guarding the important strategic waterways in the region. The fact sheet further
provides that it is the common goal of the United States, like-minded nations and
the littoral States bordering the strategic waterways "bilaterally and multilaterally,
to develop a partnership of willing nations to enhance the overall capabilities and
capacities to identify, monitor, and respond to maritime threats consistent with le-
gal authorities and frameworks."74
Especially in the Strait of Malacca, the United States will work with global part-
ners to ensure ( 1 ) recipient and user-State donor coordination based on the bur-
den sharing of resources, (2) the interoperability of the partners' activities, (3) the
sustainability of the joint strategies and (4) the prevention of redundancy among
other maritime security efforts. Each of these four aims, as set forth in the fact
sheet, must match both the priorities and needs of recipient States. The United
States will work with responsible States, user States, multilateral organizations and
private sector partners75 on planning, capacity building, information sharing, In-
ternational Ship and Port Facilities Security (ISPS) Code implementation, techni-
cal assistance, training and exercises, private sector outreach, maritime
environmental stewardship and counterterrorism.
Littoral States' Perceptions of the Regional Maritime Security Initiative
It is clear that right before the US Pacific Command's announcement of the RMSI
concept, Admiral Fargo had secured support for the initiative from the government
of Singapore, as demonstrated in the question and answer portion of his testimony
before the House Armed Services Committee on March 31, 2004. Admiral Fargo
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Security in the Strait of Malacca and Regional Responses to the US Proposal
stated that "I just came back from Singapore and had a very solid conversation with
the [Singaporeans] and they're going to help us with [RMSI]."76 The Admiral ex-
pected a very broad range of support for RMSI, mainly because "[a] 11 of the coun-
tries in the region are concerned about the transnational threat,"77 which includes
terrorism, proliferation and the trafficking in humans. The initial reactions from
the governments of Indonesia and Malaysia to the RMSI proposal in May and June
2004 proved that Admiral Fargo's assessment of regional support for the initiative
was incorrect, especially in regard to the notion of putting US Special Operations
Forces or marines on high-speed vessels to conduct maritime interdiction in the
Strait of Malacca. The three littoral States' perceptions of, and initial reactions to,
RMSI are examined below.
Indonesia
Shortly after the media's disclosure of the US plan to deploy troops in the Strait of
Malacca, Indonesia's Ministry of Foreign Affairs issued a statement on the official
position of the country in its opposition to the plan, arguing that Indonesia and
Malaysia, in accordance with the 1982 LOS Convention, were solely responsible for
guarding the Strait of Malacca.78 Nugroho Wisnumurti, former director general
for political affairs of Indonesia's Ministry of Foreign Affairs, pointed out that
Fighting terrorism through regional cooperation in Southeast Asia, or any part of the
globe for that matter, is something to be applauded. However, fighting terrorism in the
Malacca and Singapore Straits by allowing the use of military force by any country
other than the coastal states (Malaysia, Indonesia and Singapore) is another matter.79
Indonesian Navy Chief Admiral Bernard Kent Sondakh joined the opposition,
calling the idea of sending special operations troops to the Strait of Malacca under
RMSI "baseless."80 During the Second Indonesia-United States Security Dialogue,
held in Washington, DC, April 22-23, 2004, the Indonesian delegation sought clar-
ification regarding the US policy towards the Strait of Malacca. In response, the US
delegation clarified the concept of RMSI and gave assurances that the United States
would respect Indonesia's sovereignty over its waters. The US delegation further
agreed to continue to consult with Indonesia and other regional nations.81
In June 2004, when attending the 3rd Asian Security Conference (known as the
"Shangri-La Dialogue") in Singapore, US defense secretary Donald H. Rumsfeld
told a group of Asian reporters that RMSI was an idea in its early stage and would
not threaten sovereignty. The Secretary clarified that "[a]ny implications that it
would impinge in any way on the sovereign territorial waters of some countries
would be inaccurate."82 Admiral Walter F. Doran, the United States Pacific Fleet
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commander, who accompanied Secretary Rumsfeld at the conference, also told re-
porters that Admiral Fargo's testimony did not imply that establishing new US
bases and units or stationing elite forces in the region are part of RMSI. Admiral
Doran pointed out that the main idea of the initiative was to build on normal navy-
to-navy contacts and discussions to raise maritime situational awareness in the
Asia-Pacific region.83
Despite the clarification made by high-ranking officials of the US government,
including Admiral Fargo and Defense Secretary Rumsfeld, Indonesia's concerns
over the possible intervention by foreign maritime powers, in particular the United
States, in the management of the Strait of Malacca remained. As reported, Indonesia
was displeased with joint naval patrols conducted by the navies of India and the
United States for several months in 2003. 84 The reasoning behind this displeasure
was Indonesia's worries about US involvement in a broader strategy that favored a
permanent Indian presence in Southeast Asia, with the endorsement of Singapore.85
According to another analysis, while the US government repeatedly stated that
RMSI was still in its early stage and was mainly concerned with sharing informa-
tion, rather than with deploying US troops in the Strait of Malacca, Indonesia con-
tinued to raise its objection to the US proposal, largely because of its long-standing
policy of seeking regional solutions to regional security problems, and its govern-
ment's need to appease a large, anti- American nationalist and Islamist domestic
political audience. In addition, Indonesia perceived that the US proposal repre-
sented a challenge to regional self-management of security issues.86
Malaysia
The government of Malaysia, taking the same position as that of Indonesia, ob-
jected strongly to the US idea of sending troops to help patrol in the Strait of
Malacca under the proposed RMSI. Yab Dato Seri and Najib Tun Razak, Malay-
sia's deputy prime minister and defence minister respectively, stated in early April
2004 that "[i]n principle, ensuring the security of the Straits of Malacca is the re-
sponsibility of Malaysia and Indonesia and for the present we do not propose to in-
vite the United States to join the security operations we have mounted there."87
The defence minister continued, a[e]ven if they [the Americans] wished to act,
they should get our permission, as this touches on the question of our national
sovereignty."88 Najib Razak denied that Malaysia and Indonesia needed help from
non-littoral States to police the Malacca strait which, despite periodic raids by pi-
rates on smaller cargo vessels, was generally safe for shipping. Moreover, he
pointed out that while Malaysia maintained good relations with the United States,
including joint military training, and that US vessels, including warships, were free
to use the strait, to launch military operations in those waters the United States
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Security in the Strait of Malacca and Regional Responses to the US Proposal
should first obtain permission from the governments of Malaysia and Indonesia.89
Mohamed Nazri Abdul Aziz, a minister in Malaysia's Prime Minister's Depart-
ment, warned that if the littoral States do not properly safeguard security in the
Strait of Malacca, foreign powers maybe prone to intervene in managing the secu-
rity matters in the strait, which would pose a threat to Malaysia's sovereignty.90
In June 2004, while continuing to reject the notion of the sending of US troops
to the Strait of Malacca, Malaysia agreed to discuss the issue of protecting the strait
from piracy and potential terrorist attacks with the United States.91 In the same
month at the 3rd Shangri-La Dialogue, Malaysia again stressed its opposition to a
US military presence in defending the Strait of Malacca and Southeast Asia from
terrorist attacks but also agreed to the principles of sharing intelligence and block-
ing terrorists' financial and logistical networks. Najib Tun Razak reminded the
participating defense ministers of Malaysia's concerns over the negative impact of
a foreign military presence on security and political stability in the region, because
it would "set us back in our ideological battle against extremism and militancy."92
The government of Malaysia was aware of Singapore's strong support for the
US-proposed RMSI and accused Singapore of calling on foreign powers to inter-
vene in security matters in the Strait of Malacca. Malaysia also disagreed with Singa-
pore's security assessment with regard to the link between pirate attacks and mari-
time terrorism. Malaysia did not believe that the problem of piracy in the Strait of
Malacca was critical; what occurred were only minor robberies, as pointed out by
Rahim Husin, Malaysia's director of the Maritime Security Policy Directorate. In ad-
dition, Malaysia claimed that its law enforcement agencies were more than capable
to ensure security in the strait without intervention from anyone.93
Singapore
Since the September 11 attacks, Singapore has been working closely with the
United States to deal with the potential threats posed by terrorism and WMD pro-
liferation. Similar to the actions taken by Japan, Singapore participates actively in
US-led security initiatives, such as the CSI and PSI. In August 2005, Singapore
hosted the multinational PSI interdiction training exercise, Deep Sabre, in the
South China Sea. Singapore also signed a new framework agreement with the
United States for a strategic cooperation partnership in defense and security. The
agreement expands the scope of bilateral cooperation between the two nations in
such areas as anti-terrorism, anti-proliferation of WMD, joint military exercises
and training, policy dialogues, and defense technology.94 Based on the close secu-
rity relations between Singapore and the United States, it comes as no surprise to
see Singapore expressing its strong support for the US-proposed RMSI. As stated
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earlier, shortly before the announcement of RMSI, Admiral Fargo had talks with
the government of Singapore and obtained its support for the initiative.95
In the area of managing security in the Strait of Malacca, Singapore complained
frequently about the lack of political will to take effective actions and weak law en-
forcement capacities of the other States that border the Malacca strait to counter
the threat posed by transnational crimes, such as piracy and armed robberies at sea.
To enhance the safety and security in the strait, Singapore has been calling upon re-
gional States and interested extra-regional powers to put pressure on the littoral
States, in particular Indonesia. Singapore's perception of the maritime security
threat has been greatly reinforced by the attacks on Cole in 2000, Limburg in 2002
and Dewi Madrim in 2003. It has become Singapore's major worry that pirate at-
tacks might be linked to terrorist organizations that may launch terrorist attacks in
the Malacca strait area.
Singapore's reactions to the US-proposed RMSI were first reflected in the state-
ment made by its defence minister Teo Chee Hean in April 2004 that "the task of
safeguarding the regional waters against maritime terrorism was complex and no
single State had the resources to deal effectively with this threat."96 In response to
this statement, Malaysia's foreign minister Datuk Seri Syed Hamid pointed out
that if Singapore had concerns about security in the Strait of Malacca, it should first
discuss them with the littoral States of Malaysia and Indonesia.97 In May 2004, dep-
uty prime minister and coordinating minister for security and defence Tony Tan
Keng Yam further elaborated Singapore's concerns over the threat of maritime ter-
rorism in Southeast Asia and the lack of security in the Strait of Malacca. Tony Tan
stated that "[t]he possible nexus between piracy and maritime terrorism is proba-
bly the greatest concern to maritime security."98 To counter the threat posed by pi-
racy and maritime terrorism, Singapore advocates a comprehensive approach that
covers three overlapping domains, namely domestic, regional and international.
Domestically, each country can tighten its port security by putting in place addi-
tional or enhanced measures. Regionally, the responsibility of the littoral States for
the maritime security in the region must be recognized. At the same time, the litto-
ral States should take unified and concerted action to enhance the security of stra-
tegic waterways. Internationally, key players, such as the United Nations, IMO and
other nations that have a stake in the safety and security of international water-
ways, must be involved to protect important sea lines of communications (SLOC)
against pirate attacks and maritime terrorism.99
At the 3rd Shangri-La Dialogue held in June 2004, Tony Tan reiterated Singa-
pore's concern over potential maritime attacks, pointing out that a ship sunk in the
right spot in the Strait of Malacca would cripple world trade. He also raised the
possibility of hijacked ships being turned into "floating bombs" and crashed into
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Security in the Strait of Malacca and Regional Responses to the US Proposal
critical infrastructure such as oil refineries or ports.100 It was later reported that
Singapore proposed the idea that US Marines help patrol the Strait of Malacca,
which further reinforced the belief of Malaysia and Indonesia that Singapore was
using the terrorist threat as a tool to justify the US presence in the region.101
Selected Ocean Law and Maritime Security Experts' Views on RMSI
In addition to the initial reactions of the three littoral States to the US-proposed
RMSI, there can also be found comments made by ocean law and maritime experts
in the region on the legitimacy, implications and possible impact of the initiative,
some of which are summarized below.
Malaysian Ocean Law and Maritime Security Experts
Mohd Zaki Mohd Salleh102 viewed the US concept of sending its troops to the Strait
of Malacca under RMSI as a political ploy by Singapore. If the United States were
allowed to patrol the strait on grounds of security, he argued, it would indirectly
mean that Malaysia and Indonesia had recognized the presence of a superpower in
the region. Mohd Zaki expressed the opinion that Singapore was concerned about
Malaysia's efforts to modernize its armed forces, which posed a threat to Singa-
pore's sense of superiority in the region. To maintain that feeling of superiority,
Singapore needed the US military presence in the Strait of Malacca and Southeast
Asia. In addition, he did not believe that the problem of piracy in the region had
reached a critical stage. The main reason for the sharp increase of pirate attacks in
the Strait of Malacca area was, he argued, the economic slowdown in 1 997-98. 103
B.A. Hamzah104 maintained that the idea of inviting the US Navy to patrol the
Strait of Malacca had no legal basis. Hamzah argued that since the adoption of the
1982 LOS Convention, which introduced transit passage rights in straits used for
international navigation, the littoral States' control over the Strait of Malacca has
been effectively eroded, given the fact that Malaysia, Indonesia and Singapore had
ratified, and were bound by the convention. However, while foreign ships and air-
craft enjoy the right of transit passage through the straits, they must refrain from
any threat or use of force against the sovereignty, territorial integrity and political
independence of the States that border the strait. In particular, foreign ships and
aircraft are prohibited from taking any military or non-military posture that can be
construed by the littoral States as undermining their security. Hamzah elaborated
that such posture includes naval patrols and training flights by foreign forces which
are considered inconsistent with transit passage rights. Accordingly, both Malaysia
and Indonesia were right in opposing the US proposal to send troops to patrol the
Strait of Malacca. In short, in Hamzah's view, clearly there is no legal basis under
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international law, especially the 1982 LOS Convention, for a third party to conduct
enforcement action in strategic waterways, except when asked or permitted by the
States bordering the strait concerned. He also rebutted the argument that the lack
of effective enforcement capacity of the bordering States constitutes a justification
for foreign intervention in managing security matters in the Strait of Malacca.105
He said,
The idea of a maritime power putting undue pressure on the bordering countries to
allow their navy to patrol the Straits of Malacca is ludicrous even if the bordering states
had no adequate capabilities to undertake enforcement on their own. What is more, in
this case, when both Indonesia and Malaysia have adequate military capabilities to deal
effectively with the current level of maritime threats in the Straits of Malacca.106
Hamzah also questioned the real intention of the United States and Singapore in
introducing the idea of sending naval forces to patrol the Strait of Malacca under
RMSI, as he wrote: " [a] re the US and its ally looking for a new enemy in the region
using the Straits of Malacca as a pretext? Or, are we witnessing the unfolding of a
hidden agenda?"107
Mat Taib Yasin108 offered five reasons to explain why both Malaysia and Indo-
nesia rejected the US proposal of sending troops to help patrol the Malacca
strait.109 First, the two nations doubted the sincerity of the US offers. This doubt
centered around the question of why US assistance would come only in the form of
naval patrols since there are other ways and means to help the littoral States to en-
hance security in the strait. "Given that deployment of military forces is often con-
strued as symbols of intervention and aggression . . . the Littoral States should be
forgiven for harboring this doubt," he stated.110 The US proposal also reminded
Malaysia and Indonesia of the past history of colonialism. Second, Malaysia and
Indonesia opposed the US proposal because of the problem of legality. Under ex-
isting international law, in particular the 1982 LOS Convention, "there is no legal
rationale for foreign powers to patrol the Straits unless or until requested by Litto-
ral States."111 The third reason was the littoral States' fear of "loss of command and
control." As demonstrated in the past, once foreign powers are in the strait, it is dif-
ficult to persuade them to leave. Fourth, the littoral States were concerned that the
United States may resort to the use of excessive force as demonstrated in its global
war against terrorism. And finally, Malaysia and Indonesia were concerned about
the spillover effects of geopolitical rivalry between the major powers in the Strait of
Malacca, which includes the US strategy to contain China by controlling China's
access to the strait.112
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Security in the Strait of Malacca and Regional Responses to the US Proposal
American Maritime Security Expert
Mark J. Valencia113 viewed the dispute over the legitimacy of the US-proposed
RMSI as a clash between the littoral States, which retain their sovereignty over the
Strait of Malacca under the legal regimes of innocent passage and transit passage,
and foreign maritime powers, which want passage of their naval and commercial
vessels in the strait to be absolutely guaranteed. As the number of pirate attacks and
the concern over the potential security threat posed by maritime terrorism in
Southeast Asia, and especially in the Strait of Malacca area, continued to grow, the
United States and other nations such as Japan and Australia began to advocate the
right to intervene in the management of the strait. The intention to intervene was
further reinforced by the worries that the littoral States — Malaysia and Indonesia —
either did not have the will or capability to fulfill their responsibility to protect the
strait. As a result, Singapore, the United States and other like-minded nations
claim that it is the responsibility of the "international community" to intervene.
However, Malaysia and Indonesia believed that the threat has been exaggerated for
the purpose of justifying international intervention. To avoid unilateral and pre-
emptive intervention led by the United States, the littoral States — Malaysia, Indo-
nesia and Singapore — should act proactively. The only defense of the littoral States
against the possibility of unilateral foreign intervention in the management of se-
curity matters in the Strait of Malacca is to agree to jointly patrol the strait and sup-
press piracy and the threat of terrorism there.114
Chinese Maritime Security Expert
Ji Guoxing115 pointed out that China was concerned that the US-proposed RMSI
will exceed transit passage rights and encroach upon the sovereignly and sovereign
rights of the littoral States, in contravention of the 1982 LOS Convention.116 Due to
its rapid economic growth, China relies more on maritime transportation and oil
imports, which makes it more important to ensure the security of SLOC. Around 60
percent of China's oil imports come from the Middle East and must go through the
Strait of Malacca. The strait has been closely linked with China's economic and energy
security. Accordingly, China is very much concerned about security in the Strait of
Malacca and who is in control of the strait. Ji Guoxing pointed out that it is doubt-
ful whether the US-proposed RMSI aims to block China's energy channel and to
contain China's economic development. China's policy is to support global anti-
terrorism efforts, support the idea of enhancing security in the Strait of Malacca
and participate in regional cooperation to guarantee SLOC security. It is also
China's hope that the United States and related nations could establish a terrorism
prevention mechanism in the strait through consultative cooperation under the
framework of the 1982 LOS Convention to safeguard the strait's security.117
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Littoral States' Responses to RMSI: July 2004 to June 2006
In response to the US-proposed anti-terrorism patrols in the Strait of Malacca un-
der RMSI, and perceiving a foreign intervention in the management of security
matters in the strait and a foreign military presence in the region to be a threat to
their sovereignty, Malaysia and Indonesia began to take domestic measures and
cooperate with Singapore to enhance security in the strait. In addition, they also
began to seek US and other user States' involvement in their efforts to enhance se-
curity in the Malacca strait, mainly by providing training, logistic support, patrol-
ling vessels, or technological and financial aids. International organizations, such
as the IMO, and regional cooperative mechanisms such as ARF and APEC, were
also called upon to provide help. The littoral States' political willingness to take
more effective actions to improve security in the strait was further motivated by a
decision of the Joint War Committee (JWC) of Lloyd's Market Association in June
2005, which declared the Strait of Malacca a "high-risk zone" and added it to its list
of areas which are at risk to war, strikes, terrorism and related perils.118 The littoral
States were very much concerned over the JWC decision, mainly because it could
result in higher insurance premiums for the ships that transit the strait or call at lit-
toral States' ports, which, in turn, would hurt their economy. While repeatedly
claiming that the JWC decision was not justified, the littoral States also realize that
unless more effective action was taken to improve safety and security in the Strait
of Malacca, the strait would not be removed from the JWC "high-risk zone" list. In
this section, the national responses of the three littoral States of the Malacca strait
to the US-proposed RMSI from July 2004 until June 2006 are examined.
Domestic Actions Taken by Littoral States to Combat Maritime Crimes
Indonesia
To improve its capacity to handle the security problems in the Strait of Malacca,
Indonesia formed Navy Control Command Centers (Puskodal) in Batam and
Belawan119 and set up six regencies at the immediate borders of the Strait of
Malacca and Strait of Singapore, namely, Rokan Hilir, Bengkalis, Siak, Palawan,
Indragiri Ilir and Karimun, which are believed the most vulnerable and dangerous
areas for pirate attacks.120 The main purpose of setting up these regencies was to in-
crease the people's welfare, alleviate poverty, and thus dissuade the local people
from engaging in piratical activities. Tens of regencies along the straits of Malacca
and Singapore and around the three chokepoints will be set up in the future.121 In
July 2005, an Indonesian maritime policy unit was established to help fight pirates
and maintain Malacca security.122
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Security in the Strait of Malacca and Regional Responses to the US Proposal
In September 2005, Indonesia decided to install radars at nine locations along
the Strait of Malacca to strengthen security in the area and announced that the In-
tegrated Maritime Security System (IMSS) in the strait will soon be introduced.123
Given that most of the cases involving maritime crimes in Indonesia's conven-
tional courts often produce problematic verdicts, which do not have the required
deterrent effect, the government of Indonesia considered establishing maritime
courts to try criminals operating in Indonesian waters.124 Anti-piracy and anti-terror
exercises were also being held to enhance security in the Strait of Malacca. For in-
stance, in July 2005, the Indonesian Navy launched a three-month operation,
named Gurita (Octopus) in a bid to fight rampant pirate attacks in the strait125 and
in March 2006, an anti-terrorism drill was held in the Strait of Malacca.126
Malaysia
The government of Malaysia has also adopted a number of domestic measures to
deal with the maritime threat posed by piracy and armed robberies in the Strait of
Malacca. In fact, some of these measures had been implemented before RMSI was
announced in May 2004. For instance, in 2003, Malaysia erected a string of radar
tracking stations along the Strait of Malacca to monitor traffic and acquired new
patrol boats to combat piracy.127 In 2004, the Royal Malaysian Navy intensified its
training activities and patrols in the northern reaches of the Strait of Malacca be-
yond the one- fathom curve in an effort to combat piracy and maritime terror-
ism.128 In April 2005, it was reported that the Malaysian Maritime Enforcement
Agency (MMEA) would be formed to be responsible for patrols in the Strait of
Malacca.129 This new agency began patrolling the strait in December 2005. 13° Ma-
laysian maritime police were also asked to increase anti-piracy operations and to
help ensure the safety and security of the Strait of Malacca.131 In February 2006,
Malaysia announced its plan to step up anti-piracy patrols in the Strait of Malacca
by adding up to fifteen new high-speed police boats and conducting joint maritime
exercises with Indonesia, Thailand and Singapore.132
Singapore
When undertaking efforts to fight piracy and maritime terrorism, the government
of Singapore encounters a dilemma of conflicting interests between protecting its
shipping industries and stressing that maritime threats in the Strait of Malacca are
real and therefore asking the littoral States to adopt more cooperative law enforce-
ment measures to protect against pirate and maritime terrorist attacks. The basis
for the JWC to declare the strait a high-risk zone was the security assessment done
by its consultant, Aegis Defence Services. In August 2005, the JWC stated that the
Strait of Malacca would remain on the "high-risk zone" list "until it was clear that
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the measures planned by governments and other agencies in the area had been im-
plemented and were effective."133 While taking note of shipping industry concerns
over rising insurance costs, the government of Singapore has consistently empha-
sized the potential maritime security threat in the Strait of Malacca and asked co-
operation from the other two littoral States to enhance security in the strait. A
number of unilateral anti-piracy and anti- terrorism measures have also been taken
by Singapore, such as deploying a fleet of remote-controlled vessels,134 providing
two Fokker planes for joint Malacca strait patrols,135 deploying armed security teams
on board selected merchant vessels entering and leaving its territorial waters,136 and
laying high-tech sonar arrays on the seabed across the Malacca strait.137 More im-
portantly, Singapore has been very active in pressing Malaysia and Indonesia to
agree to a tripartite coordinated patrolling program in the strait and to the involve-
ment of other ARF members and user States in the management of security matters
in the Malacca strait.
In addition to the selected domestic anti-piracy and anti-terrorism measures as
mentioned above, Malaysia, Indonesia and Singapore have also cooperated closely
with the IMO by implementing amendments to Chapter XI-2 (Special Measures to
Enhance Maritime Security) of the International Convention for the Safety of Life
at Sea, in particular to the International Ships and Port Facility Security (ISPS)
Code and to the Automatic Identification System (AIS).138 Indonesia and Malaysia
also held a special meeting in Jakarta in September 2005 to enhance security in the
Strait of Malacca. Both joined the US Container Security Initiative, Indonesia in
March 2003 and Malaysia in March 2004.
Bilateral Cooperative Programs in the Strait of Malacca
Between Littoral States
In 1992, long before the announcement of the RMSI concept by the US Pacific
Command, Indonesia and Singapore agreed to establish a bilateral program to pa-
trol the Strait of Singapore, which involved the setting up of direct communication
links between the navies and the relevant agencies of the two littoral States. Coordi-
nated patrols under the program were carried out for three months in the strait.139
In May 2005, the navies of both Indonesia and Singapore launched Project
SURPIC, which is a sea surveillance system. Under the system, the two navies can
share a common real-time sea situation picture of the Singapore strait.140
Similarly, bilateral cooperative efforts had also been made by Indonesia and
Malaysia to help improve safety and security in the Strait of Malacca. In 1992, a
Maritime Operation Planning Team was established by the two nations to coordi-
nate their joint patrols in the strait, which are conducted four times a year and
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Security in the Strait of Malacca and Regional Responses to the US Proposal
involve maritime institutions such as customs, search and rescue, and police.141 In-
donesia and Malaysia also carry out joint patrols in the Strait of Malacca under the
agreed Malindo program. In November 2005, Malaysia and Singapore conducted a
joint exercise, codename Ex Malapura, in the Malacca strait to promote security in
the area, which was the seventeenth joint exercise between the two navies.142 In April
2006, Malaysia and Indonesia held another joint aerial exercise, code-named Elang
Malindo XXII.143
Between Littoral States and User States
Bilateral cooperative programs or agreements have also been concluded between
the littoral States and user States of the Malacca strait, in particular, the United
States. In July 2005, as mentioned earlier, a strategic framework agreement for a
closer cooperation partnership in defense and security was signed between Singa-
pore and the United States, in which the two nations agreed to work toward en-
hanced cooperation in the areas of anti-WMD, anti-terrorism, search and rescue
and disaster management, intelligence exchange and defense technology.144 While
both Malaysia and Indonesia raised concerns over the US-Singapore Strategic
Framework Agreement, in particular their perception that a strong US military
presence in the region would constitute a potential threat to their sovereignty,145
they are willing to improve their military relations with the United States. In 2004
and 2005, Indonesia and the United States held the second and third security dia-
logue respectively, in which the two countries exchanged views on a wide range of
security and defense issues, including security in the Strait of Malacca.146 In May
2005, joint anti-terrorism exercises between the United States and Indonesia were
held at sea off Jakarta.147 At the end of 2005, the United States offered to help Indo-
nesia modernize its armed forces and provide technical assistance to support joint
security operations in the Strait of Malacca by Indonesia, Malaysia and Singapore.148
In January 2006, it was reported that Indonesia and the United States would re-
evaluate their security cooperation following the lifting of the US arms embargo in
November 2005, especially in dealing with terrorism and security in the Strait of
Malacca and in Southeast Asia.149 In the same month, the government of Indonesia
submitted its request to the United States for technical support in the form of ra-
dar, sensors and improved patrol boat capability to secure the Strait of Malacca.150
Indonesia's cooperation with the United States to fight terrorism and enhance se-
curity in the Malacca strait was also discussed during the visit of US secretary of
state Condoleezza Rice to Jakarta in mid-March 2006. 151 Later that same month,
Indonesia and the United States conducted a joint exercise on small craft
counterterrorism maritime interdiction techniques.152 During her visit to Indone-
sia in March 2006, Secretary Rice noted that maritime security is a top priority in
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Southeast Asia, and that the United States is working with Indonesia and others to
close the strait to drug smugglers and human traffickers, pirates and weapons
proliferators.153 $1 million in aid was allocated to Indonesia to help that nation im-
prove security in the Strait of Malacca, according to Admiral Fallon.154 In April
2006, it was reported that the United States would soon provide Indonesia with an
early warning system to support security maintenance in the Strait of Malacca. It
will be installed at several points along Indonesia's territory on the waterway and on
maritime patrol aircraft. In addition, the United States also promised to exchange in-
telligence information with the three littoral States on various matters relating to the
situation and condition of the Malacca strait.155 Indonesia also announced that dis-
cussions would be held with the United States at the fourth Indonesia-United States
Security Dialogue in Washington on April 23-30, 2006 on issues relating to the secu-
rity of the Strait of Malacca, anti-terrorism, bioterrorism and cyberterrorism, as well
as the security of Southeast Asia generally.156
While differences over the question of securing the Strait of Malacca and the
concern about an enhanced US military presence in the strait still exist, Malaysia
also moved to consider accepting help from the United States to strengthen secu-
rity in the strait through improved military relations between the two nations. In
May 2005, for instance, Malaysia's deputy prime minister and defence minister
Najib Razak discussed security in the Malacca strait with visiting US deputy secre-
tary of state Robert Zoellick. During the visit, the Acquisition and Cross-Servicing
Agreement (ACSA) was signed, which provides a framework for cooperation in
military logistic matters between the two nations.157 During his visit, Deputy Secre-
tary Zoellick stated that the United States respects the role of the littoral States as
the players with the responsibility for maritime security in the strait but at the same
time is exploring ways to help Malaysia and Indonesia develop their capacities to
deal with piracy and other crimes in the strait.158 In February 2006, Deputy Prime
Minister Najib Razak and Admiral Fallon held talks in Kuala Lumpur to discuss pi-
racy and potential terrorist threats in the Strait of Malacca and the waters of
Sabah.159 In early June 2006, Defense Secretary Rumsfeld urged increased ties be-
tween the militaries of the United States and Indonesia during his Jakarta visit. He
also discussed with Indonesian Defense Minister Juwono Sudarsono enhancing
cooperation between the two nations in the fight against terrorism and the threat
of piracy in the Strait of Malacca. They also discussed how the United States could
provide military equipment to Indonesia to enhance Indonesia's military capabil-
ity to eradicate piracy in the Malacca strait.160
In addition to the bilateral cooperation between the littoral States and the
United States, cooperation has also been developed between the littoral States and
other main user States of the Malacca strait, such as Japan. In March 2005, in
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Security in the Strait of Malacca and Regional Responses to the US Proposal
response to a pirate attack against a Japanese-owned tugboat in the Strait of Malacca,
Japan advised the littoral States of the strait that it was ready to send patrol vessels
and aircraft to combat piracy. This offer was met with objections by both Malaysia
and Indonesia.161 In May 2005, Indonesia's navy chief of staff Admiral Slamet
Soebijanto said that Indonesia welcomed any assistance from foreign nations in se-
curing the Strait of Malacca, including from Japan, as long as it was not in the form
of military force. In response, Japan sent a team to Indonesia tasked with studying
what type of patrol ships Indonesia needed to deal with maritime crime in the
strait.162 In June 2005, during bilateral trade talks, Japan and Indonesia agreed to
strengthen their cooperation to enhance the safety of navigation in the Strait of
Malacca.163 In July of that year, Indonesia announced that four patrol boats pro-
vided by Japan would carry out patrolling missions in the Malacca strait. In addi-
tion, Japan donated US$50 million to Jakarta to help safeguard the waterways.164 It
was also reported in December 2005 that Japan and the three littoral States jointly
drew up electronic sea charts of the Straits of Malacca and Singapore to help pre-
vent accidents or piracy in the areas.165 In February 2006 the government of Japan
pledged again to grant technical aid consisting of detectors and patrol boats to pro-
tect the Malacca strait from possible terrorist attacks. Japan's Nippon Foundation
also announced its decision to donate a patrol training vessel to Malaysia as part of
ongoing efforts to reduce piracy and improve maritime security in the Strait of
Malacca.166 In June 2006, the Japanese government announced that it would do-
nate three patrol boats to Indonesia to help fight terrorism and piracy.167 In April
2006, Malaysian and Australian naval forces conducted a five-day exercise, code-
named Mastex, in the Malacca strait.168 In May 2006, Japan and Indonesia held in-
tensive talks on security in the Malacca strait.169
Tripartite Cooperative Patrolling Programs of the Littoral States
It seems safe to point out that the most important development in terms of en-
hancing security in the Strait of Malacca is the establishment of routine sea and air
patrols by the maritime security organizations of Indonesia, Malaysia and Singa-
pore. As stated earlier, the main motivations for reaching the tripartite cooperative
patrolling agreements among the three littoral States were the increasing demand
from the user States and the international community for more effective law en-
forcement measures to deal with the problem of piracy and possible maritime ter-
rorist attacks, the increasing concern of the littoral States over possible
intervention of foreign powers by sending their troops to the area and the decision
of Lloyd's JWC that declared the Strait of Malacca a war-risk area. In July 2004 In-
donesia, Malaysia and Singapore launched a coordinated patrol program, known
as the Malsindo Coordinated Patrol (MCP). Under the program, seven warships
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Yann-huei Song
from Indonesia, five from Malaysia and five from Singapore are deployed to main-
tain security in the Strait of Malacca. However, it should be noted that the warships
of the participating nations are prohibited from carrying out patrolling activities in
another participating nation's territorial waters.170 In securing the Malacca strait
under the MCP, control points have been set up in Belawan and Batam (Indone-
sia), Lumut (Malaysia) and Changi (Singapore). Another control point, Phuket
(Thailand), will be set up when Thailand joins the "Eyes in the Sky" program.171
In addition to the tripartite coordinated sea patrol program, the three littoral
States also reached agreement to begin air patrols over the Malacca strait to curb
piracy and increase security in the strategic waterway under the "Eyes in the Sky"
program. The initiative for multinational maritime air patrols was proposed by
Malaysia's deputy prime minister and defence minister Najib Razak at the Shangri-
La Dialogue held in June 2005. 172 Under the "Eyes in the Sky" program, each litto-
ral State of the Malacca strait will provide two maritime aircraft per week to patrol
the strait. The aircraft will only patrol the waterway and will not be allowed to fly
over the land. While the maritime patrol aircraft would be allowed to fly above an-
other participating nation's waters in the strait, they must fly no less than three
nautical miles from that country's land. It was also agreed that each patrol aircraft
will have a Combined Maritime Patrol Team (CMPT) on board, consisting of a
military officer from each of the participating nations. The CMPT will establish a
comprehensive surface picture over the patrol area. During the initiative stage for
the implementation of the maritime air patrol program, only the three littoral
States and Thailand can participate. But the implementation of the second phase of
the "Eyes in the Sky" program could involve participation by extra-regional na-
tions, such as the United States, subject to the principle that the sovereignty of the
littoral States must be respected.173 Although the "Eyes in the Sky" program was
launched in September 2005, it was not until April 2006 that the three littoral States
signed an agreement on the formation of a joint coordinating committee on the
Malacca Straits Patrols (MSP) and Standard Operational Procedures on Coordi-
nated Patrols.174 Under the agreement, cross-border hot pursuit cannot be carried
out without prior arrangements between the littoral States. While Singapore and
Indonesia, as well as Malaysia and Indonesia, have bilateral agreements allowing
for cross-border hot pursuit, Singapore and Malaysia have no such agreement and
must seek permission before entering each other's territorial waters. It was pointed
out that the tripartite patrol agreement is an "open arrangement with opportuni-
ties for the international community to participate," but only with the consent of
Indonesia, Malaysia and Singapore.175 In June 2006, at the 5th Shangri-La Dia-
logue, held in Singapore, both India and Japan expressed their willingness to assist
the littoral States in patrolling the Strait of Malacca.176
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Security in the Strait of Malacca and Regional Responses to the US Proposal
Regional Responses and Efforts in Helping Improve Security in
the Malacca Strait
Regional Maritime Security Discussion in the Shangri-La Dialogue
Maritime security in the Strait of Malacca has become one of the important issues
discussed at the Asian Security Conference, organized by the International Insti-
tute for Strategic Studies and dubbed the "Shangri-La Dialogue." At the 3rd
Shangri-La Dialogue, held in Singapore in June 2004, the US-proposed RMSI and
the concept of sending American troops to help patrol the Strait of Malacca were
heatedly discussed. Malaysia opposed strongly an enhanced US military presence
in defending the strait and Southeast Asia from terrorists but agreed to the princi-
ples of shared intelligence and blocking terrorists' financial and logistical networks.
US defense secretary Donald Rumsfeld, in his speech at the same meeting, de-
scribed the global war on terrorism as a battle against ideological extremism and
stressed the need to cooperate and share intelligence to fight terrorism effectively.
At the same time, he sought to ease fears among the Southeast Asian nations, par-
ticularly Malaysia and Indonesia, that RMSI might encroach on their sovereignty.
The secretary clarified that the initiative was still in its infancy and that " [a]ny im-
plications that it would impinge in any way on the territorial waters of some coun-
tries would be inaccurate."177
The American-proposed RMSI and the possible involvement of foreign powers
in the management of security in the Strait of Malacca were continuously discussed
at the 4th Shangri-La Dialogue in June 2005. At the conference, the participating
defense ministers agreed that regional maritime security, particularly in the Strait
of Malacca, was a matter of common concern in the region. A consensus was
reached based on three broad principles: ( 1 ) the littoral States must shoulder the
primary responsibility for the security of regional waterways, (2) the user States
and the international community have a significant role to play and (3) new coop-
erative measures should be forged in a manner that was respectful of sovereignty
and consistent with international law. Nations in the region recognized the need to
enhance practical forms of maritime security cooperation in accordance with these
principles.178 In June 2006, the participating defense ministers at the 5th Shangri-
La Dialogue discussed ways to advance maritime security cooperation. However,
the discussions were strictly off the record.179 It seems clear that both the littoral
States and user States (particularly the United States) of the Malacca strait are
adopting an approach of closed door consultations and collaboration to enhance
maritime security in the Strait of Malacca.
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Tripartite Ministerial Meeting of the Littoral States on the Malacca and
Singapore Straits
In August 2005, ministers of foreign affairs of the three littoral States met in Batam,
Indonesia to discuss matters relating to the safety of navigation, maritime security
and environmental protection in the straits of Malacca and Singapore.180 A Joint
Statement was issued after the meeting, in which the three nations reaffirmed their
sovereignty and sovereign rights over the Malacca and Singapore straits, which are
defined under the 1982 LOS Convention as straits used for international naviga-
tion. The ministers stressed that the main responsibility for the safety, security and
environmental protection in the straits lies with the littoral States. The ministers
emphasized that measures undertaken in the straits in the future should be in ac-
cordance with international law, including the 1982 LOS Convention. It is based
on this understanding that the three littoral States acknowledged the interest of
user States and relevant international agencies and the role they could play in respect
to the straits. Moreover, in recognition of the importance of engaging the States
bordering the funnels leading to the Malacca and Singapore straits and the major
users of the straits, the three littoral States supported continuing discussion on the
overall subject of maritime security in the Southeast Asia region within the frame-
work of ASEAN and ARF. They also acknowledged the good work carried out by
the Tripartite Technical Experts Group (TTEG) on Safety of Navigation in the straits
of Malacca and Singapore and recognized the efforts of the Revolving Fund Com-
mittee (RFC) in dealing with issues of environmental protection in the straits.181
The ministers recognized the importance of the Tripartite Ministerial Meeting
on the straits of Malacca and Singapore in providing the overall framework for co-
operation among them and supported the convening of the chiefs of defence forces
of Malaysia, Indonesia, Singapore and Thailand Informal Meeting in Kuala
Lumpur on August 1-2, 2005. More importantly, the ministers agreed to address
the issue of maritime security comprehensively, which includes trans-boundary
crimes such as piracy, armed robbery and terrorism. They also perceived the need
to address the issue of trafficking in persons, smuggling of people and weapons,
and other trans-boundary crimes through appropriate mechanisms. In recogni-
tion of the interest of others in maintaining the safety of navigation, maritime secu-
rity and environmental protection in the straits, the ministers welcomed the
assistance of the user States, relevant international agencies and the shipping com-
munity in the areas of capacity building, training and technology transfer, and
other forms of assistance, provided that the main responsibility of the littoral States
in managing the straits is respected and that the assistance is offered in accordance
with the 1982 LOS Convention. The ministers expressed their displeasure with the
decision of the Joint War Committee of Lloyd's Market Association that declared
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Security in the Strait of Malacca and Regional Responses to the US Proposal
the straits of Malacca and Singapore a high-risk zone for piracy and terrorism with-
out consulting with the littoral States and taking into account the existing anti-piracy
and anti-terrorism measures undertaken by them. Finally, the ministers welcomed a
special meeting on enhancing safely, security and environmental protection in the
Malacca and Singapore straits to be held in Jakarta in September 2005. 182
IMO Jakarta Meeting on the Straits of Malacca and Singapore: Enhancing
Safety, Security and Environmental Protection
Due to a genuine concern over possible terrorist attacks in the Strait of Malacca,
the IMO Council decided in November 2004 to convene a high-level conference to
consider ways and means of enhancing safety, security and environmental protec-
tion in the straits.183 Accordingly, the IMO Jakarta Meeting on the Straits of
Malacca and Singapore: Enhancing Safety, Security and Environmental Protection
was held in September 2005. At the conference, Mr. Efthimios Mitropoulos, secretary-
general of the IMO, pointed out in his opening remarks that
[w]ith regard to the question of security versus sovereignty (or vice versa), while I can
understand and fully respect the sensitivity of any State over the issue, I also believe
that, whilst States have the right of non-interference in their internal affairs, they also
have concurrent responsibilities towards their own people, the international
community and their international engagements. Whatever the answer to this, there
can be no excuse for inactivity, whether the danger is clear and present or perceived as a
future possibility.184
Accordingly, the secretary-general called on the three littoral States bordering
the straits of Malacca and Singapore, user States of the straits, industry and all other
stakeholders to work together to produce an outcome conducive to building confi-
dence in any efforts undertaken jointly to enhance safety, security and environ-
mental protection in the straits. The secretary- general also made it clear that any
action undertaken in the future should be based on the consent, support and coop-
eration of the littoral States concerned, which should be invited to play a principal
role in all developments. In addition, any action undertaken must be consistent
with international law, including the relevant provisions of the 1982 LOS Conven-
tion.185 The meeting produced the Jakarta Statement,
which emphasizes the need to balance the interest of the littoral States and the user
States while respecting the littoral States' sovereignty, and to establish a mechanism to
facilitate cooperation between them to discuss issues relating to the safety, security and
environmental protection of the Straits of Malacca and Singapore, including exploring
possible options for burden sharing.186
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Yann-huei Song
For the purpose of enhancing the safety, security and environmental protection
of the Malacca and Singapore straits, the thirty-four nations participating in the
meeting agreed
• that the work of the Tripartite Technical Experts Group (TTEG) on Safety of
Navigation in enhancing the safety of navigation and in protecting the marine
environment in the Straits, including the efforts of the TTEG in relation to the
implementation of Article 43 of the 1982 LOS Convention in the Straits, should
continue to be supported and encouraged;
• that a mechanism be established by the three littoral States to meet, on a
regular basis, with user States, the shipping industry and others with an interest in
safe navigation through the Straits, to discuss issues relating to the safety, security
and environmental protection of the Straits, as well as to facilitate cooperation in
keeping the Straits safe and open to navigation, including exploring the possible
options for burden sharing, and to keep the IMO informed, as appropriate, of the
outcome of such meetings;
• that efforts should be made through the three littoral States to establish and
enhance mechanisms for information exchange within and between States,
building, where possible, on existing arrangements, such as TTEG mechanisms,
so as to enhance maritime domain awareness in the Straits and thus contribute to
the enhancement of co-operative measures in the areas of safety, security and
environmental protection; and
• to promote, build upon and expand co-operative and operational
arrangements of the three littoral States, including the Tripartite Technical Expert
Group on Maritime Security, coordinated maritime patrols in the Straits through,
inter alia, maritime security training programs and other forms of cooperation,
such as maritime exercises, with a view to further strengthening capacity building
in the littoral States to address security threats to shipping.187
The IMO has also been invited to consider, in consultation with the littoral
States, convening a series of follow-on meetings for the littoral States to identify
and prioritize their needs, and for user States to identify possible assistance to re-
spond to those needs, which may include information exchange, capacity build-
ing, training and technical support, with a view to promote and coordinate
cooperative measures.188 A Memorandum of Understanding (MOU) by and
among the governments of the three littoral States and IMO for the implementa-
tion of a regional Marine Electronic Highway (MEH) demonstration project in
the straits of Malacca and Singapore (MEH MOU) and a Memorandum on Ar-
rangements by and among the three littoral States, IMO, International Hydro-
graphic Organization (IHO), International Association of Independent Tanker
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Security in the Strait of Malacca and Regional Responses to the US Proposal
Owners (INTERTANKO) and International Chamber of Shipping (ICS) to imple-
ment specific activities of Article 4 of the MEH MOU were signed.189 Also at the
meeting, China, South Korea and Norway were encouraged to join Japan in mak-
ing financial contributions to the Malacca Straits Council. Over the past thirty-
five years or so, the Nippon Foundation of Japan had contributed more than
US$100 million to the council.190
Tokyo Ministerial Conference on International Transport Security
In January 2006, the Ministerial Conference on International Transport Security
was held in Tokyo, attended by the transport ministers of the G-8 members and
six Asian nations, namely, Australia, China, Indonesia, Malaysia, Singapore and
South Korea. The purpose of this conference was to discuss international trans-
port security issues. A ministerial declaration and three ministerial statements on
security in the international maritime transport sector, aviation security and land
transport security were adopted by the conference. The Ministerial Statement on
Security in the International Maritime Transport Sector stressed the importance
of ensuring continued compliance with the provisions of Chapter XI-2 of the 1974
International Convention for the Safety of Life at Sea (SOLAS Convention) and
the ISPS Code, which were adopted in December 2002 and entered into force in
July 2004. 191
The participants in the conference welcomed the adoption of the 2005 Proto-
col to the 1988 Convention for the Suppression of Unlawful Acts Against the
Safety of Maritime Navigation (SUA Convention), and the 2005 Protocol to the
1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed
Platforms Located on the Continental Shelf. Among the unlawful acts covered by
the 1988 SUA Convention in Article 3 are the seizure of ships by force, acts of vio-
lence against persons on board ships and the placing of devices on board a ship
which are likely to destroy or damage it.192 In addition, the IMO was invited by the
transport ministers
[t]o consider, in cooperation with WCO [World Customs Organization], the
development and adoption, as necessary, of appropriate measures to enhance the
security of the maritime transport of containers in the international supply chain,
while respecting efficiency and international harmonization;
to undertake a study and make, as necessary, recommendations to enhance the security
of ships other than those already covered by SOLAS chapter XI-2 and the ISPS Code, in
an effort to protect them from becoming targets of acts of terrorism, piracy, or armed
robbery and to prevent them from being exploited or used as means for committing
such acts.193
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Yann-huei Song
In May 2006, the IMO announced that parties to the SOLAS Convention had
given initial acceptance to new security measures, which require ships to be tracked
by satellite to fight terrorism and to prevent the introduction of WMD into the
supply chain. Under the new Long-Range Identification and Tracking (LRIT) reg-
ulation, which is expected to become effective in January 2008, merchant ships will
be required to transmit information about their identity, location and date and
time of their position through satellite-based technology.194 The new regulation on
LRIT is included in the 1974 SOLAS Convention's Chapter V on Safety of Naviga-
tion, through which LRIT is introduced as a mandatory requirement for passenger
ships, including high-speed craft and cargo ships of three-hundred gross tonnage
and upwards, as well as mobile offshore drilling units on international voyages.195
The Plan to Establish the ReCAAP Information Sharing Center
To help enhance safety and security in the Strait of Malacca, Japan launched an ini-
tiative in 2001, aiming to set up an anti-piracy cooperative framework among
ASEAN countries, China, Japan, South Korea, India, Sri Lanka and Bangladesh. As
a result, the Regional Cooperation Agreement on Combating Piracy and Armed
Robbery Against Ships in Asia (ReCAAP) was concluded in Tokyo in November
2004. 196 The agreement was opened for signature by Bangladesh, Brunei, Cambo-
dia, China, India, Indonesia, Japan, Laos, Malaysia, Myanmar, the Philippines,
South Korea, Sri Lanka, Thailand and Vietnam, and enters into force ninety days
after the date on which the tenth instrument of notification by a State mentioned
above, indicating the completion of its domestic requirements, is submitted to the
government of Singapore, the depository of the agreement.197 As of June 2006,
twelve nations198 had signed, and with the exception of Brunei, had ratified the
ReCAAP agreement, which entered into force on September 4, 2006. 199
A key pillar of the ReCAAP is the Information Sharing Center (ISC), which will
be established in accordance with Part II of the agreement. The ISC, located in Sin-
gapore, is an international organization with major functions of facilitating com-
munication and information exchanges between the member nations and
improving the quality of statistics and reports on piracy and armed robbery against
ships in the region. It was reported that one of the major reasons for the failure of
Malaysia and Indonesia to sign the agreement to date was their displeasure with the
decision to set up the ISC in Singapore. However, it should be noted that it was
mentioned in the Batam Agreement that Malaysia and Indonesia "take note of the
ISC, and agreed to cooperate with the center.200
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Security in the Strait of Malacca and Regional Responses to the US Proposal
The Role of Existing Regional Mechanisms Promoting Maritime
Security Cooperation
ASEAN and ARF
Cooperative measures to deal with the problem of piracy and maritime security
threats among member States of the ASEAN201 and participating nations in the
ASEAN Regional Forum (ARF)202 had been sought long before the announcement
of RMSI by the US Pacific Command in May of 2004. As early as November 2001
ASEAN adopted a declaration on joint action to counter terrorism.203 In May 2002
a special ASEAN ministerial meeting on terrorism was held in Kuala Lumpur in
which a joint communique on terrorism and the Work Program to Implement the
ASEAN Action Plan to Combat Transnational Crimes were adopted.204 In August
2002, the United States and ASEAN, and in January 2003 the European Union and
ASEAN, issued joint declarations of cooperation to combat international terror-
ism.205 All member States of ASEAN, including the three littoral States of the
Strait of Malacca, were called upon to solidify governmental efforts in areas of in-
formation exchange, training, legislation, law enforcement, institution building
and extra-regional cooperation. In December 2003, the ASEAN-Japan Seminar
on Maritime Security and Combating Piracy was held in Tokyo. This was fol-
lowed by another ASEAN-US Workshop on Enhancing Maritime Anti-piracy
and Counter-terrorism Cooperation in the ASEAN Region held in Manila in
April 2004.206
On May 9, 2006, the first ASEAN defense ministers meeting was held in Kuala
Lumpur, at which the issues of human security and transnational crimes such as
terrorism, piracy, trafficking, smuggling and cooperation for disaster relief were
discussed. To deal with these issues, considered as ASEAN's immediate security
challenges, the ministers agreed
• to promote regional peace and stability through dialogue and cooperation
in defense and security;
• to give guidance to existing senior defense and military officials' dialogue
and cooperation in the field of defense and security within ASEAN and with
dialogue partners;
• to promote mutual trust and confidence through greater understanding of
defense policies and threat perceptions, security challenges as well as
enhancement of transparency and openness; and
• to contribute to the establishment of the ASEAN Security Community as
stipulated in the Bali Concord II and to promote the implementation of the
Vientiane Action Programme.207
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Yann-huei Song
As far as efforts undertaken by the participating nations of ARF are concerned,
in June 2003 the Statement on Cooperation Against Piracy and Other Threats to
Maritime Safety was adopted at the tenth ARF meeting.208 In the statement, the
participating States and organizations recognized that "[pjiracy and armed rob-
bery against ships and the potential for terrorist attacks on vulnerable sea shipping
threaten the growth of the Asia-Pacific region, and disrupt the stability of global
commerce, particularly as these have become tools of transnational organized
crime."209 They also recognized that "[mjaritime security is an indispensable and
fundamental condition for the welfare and economic security of the ARF region"
and that a[e]nsuring this security is in the direct interest of all countries, and in
particular the ARF countries."210 They promised to achieve effective implementa-
tion of relevant international maritime instruments that aim to enhance the safety
and security of shipping and port operations. The relevant instruments include the
1982 LOS Convention, the 1988 SUA and its Protocol for the Suppression of Un-
lawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf,
the 1974 SOLAS Convention and the relevant amendments to that convention,
and the ISPS Code. ARF member nations are encouraged to become parties to the
relevant international maritime conventions, if they had not yet done so.211 At the
1 lth ARF meeting, held in July 2004, the participating ministers affirmed that "ter-
rorism, irrespective of its origins, motivations or objectives, constitutes a threat to
all peoples and countries, and to the common interest in ensuring peace, stability,
security and economic prosperity in the region and beyond."212 They also adopted
the ARF Statement on Strengthening Transport Security against International Ter-
rorism, which expressed the determination of the ARF participants to take con-
crete and cooperative measures in safeguarding their means of transportation from
terrorist threats.213
In September 2004 the ARF Workshop on Maritime Security was held in Kuala
Lumpur, Malaysia. During the discussion, the participants identified piracy, trans-
national organized crimes (such as smuggling) and terrorist activities as major
threats to maritime security.214 They concurred that there was no single nation that
could handle maritime security alone and therefore cooperation, based on inter-
national law, is a must to manage maritime security effectively. In the context of
the Malacca strait, the participants welcomed the coordinated sea patrols among
Indonesia, Malaysia and Singapore, and other bilateral cooperation with India, noting
that this was in line with the primary responsibility of the three littoral States of the
straits of Malacca and Singapore. They also noted that the proposed Maritime
Electronic Highway to be applied in the straits could enhance the transparency of
navigation and overall traffic control and also provide the basis for intensive moni-
toring of the real-time navigational situation.215 During the discussion on the way
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Security in the Strait of Malacca and Regional Responses to the US Proposal
to enhance cooperation on maritime security, the participants recognized that col-
lective effort is vital to address maritime security threats. However, the collective
effort should be undertaken on the basis of mutual respect for sovereignty, territo-
rial integrity and in accordance with the UN Charter and other recognized interna-
tional law. The use of bilateral and regional agreements was believed to be a useful
method to enhance maritime security. It was also pointed out that there is need for
comprehensive action, including enhancing cooperation on fighting piracy and
armed robbery in the region between ARF participants' shipping and international
organizations. The meeting was divided into three breakout sessions to further
discuss the issue of maritime security. Breakout Session I (Managing Maritime
Challenges and Threats) highlighted the need to establish intergovernmental
agreements, such as standard operating procedures, and to develop a regional con-
tingency plan where and when possible and appropriate.216 Breakout Session III
(Enhancing Cooperation on Maritime Security) identified four areas for enhanc-
ing cooperation on maritime security, namely, cooperative frameworks; common
understanding of threats; information exchange mechanisms, policies and proce-
dures; and national capacities.217
In March 2005 Singapore and the United States co-hosted a meeting on an ARF
Confidence Building Measure (CBM) on Regional Cooperation in Maritime Secu-
rity in Singapore. In his speech at the meeting, Singapore's Defence Minister Teo
Chee Hean urged that "[i]t would be useful for the ARF to move beyond dialogue
on maritime security and work towards conducting an ARF maritime security ex-
ercise in the near future."218 During the discussion at the meeting, some partici-
pants suggested that maritime security cooperation in the region should be
formulated in accordance with the following three broad principles: (1) the pri-
mary responsibility for the safety and security of key waterways like the Malacca
and Singapore straits should lay with the littoral States; (2) due to the multiplicity
of stakeholders, and the complexity of the task at hand, there should be a role for all
stakeholders, including interested nations, international organizations like the
IMO, the shipping community and even multinational organizations; and (3) the
cooperative effort should proceed on the basis of consultation and in accordance
with international law.219 Meeting participants agreed that ARF should play an im-
portant role in forging regional cooperation in maritime security, given that its wide
membership encompasses the key stakeholders in regional maritime security.220 In
July 2005, at the 12th ARF meeting, the participating ministers welcomed ARF's sus-
tained efforts in promoting maritime safety and security and noted the following
four areas for future cooperation: multilateral cooperation, operational solutions to
maritime safety and security, shipping and port security, and application of tech-
nology for maritime safety and security.221 They also adopted the ARF Statement
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on Information Sharing and Intelligence Exchange and Document Integrity and
Security in Enhancing Cooperation to Combat Terrorism and Other Transna-
tional Crimes.222 The establishment of a Regional Marine Training Centre had also
been discussed at the ARF workshops and the ARF Senior Officers Meeting.223
Council for Security Cooperation in the Asia Pacific
The Council for Security Cooperation in the Asia Pacific (CSCAP) was established
at a meeting in Kuala Lumpur in June 1993.224 The CSCAP Charter was adopted in
December 1993 and was subsequently amended in August 1995.225 The purpose of
setting up the CSCAP was to provide a structured process for regional confidence
building and security cooperation among nations and territories in the Asia- Pacific
region. Working groups are the primary mechanism for CSCAP activity. Four
working groups were established in 1993-94. These were concerned with (1) mari-
time cooperation, (2) the enhancement of security cooperation in the North Pacific/
Northeast Asia, (3) confidence- and security-building measures, and (4) coopera-
tive and comprehensive security. In December 2004, a restructuring of the CSCAP
working groups was undertaken to better reflect changes taking place in the strate-
gic environment in the region. Consequently, the four CSCAP working groups are
no longer active. Instead, six study groups were established: ( 1 ) Capacity-building
for Maritime Security Cooperation in the Asia Pacific, (2) Countering the Prolifer-
ation of WMD in the Asia Pacific, (3) Future Prospects for Multilateral Security
Frameworks in Northeast Asia, (4) Human Trafficking, (5) Regional Peacekeeping
and Peacebuilding, and (6) Enhancing the Effectiveness of the Campaign Against
International Terrorism with Specific Reference to the Asia Pacific Region. These
study groups were to complete their functions in December 2006. CSCAP held
general meetings before 2003 on a regular basis in accordance with its charter. In
December 2002, it was decided to change the term "General Meeting" to "General
Conference." The first CSCAP General Conference was held in December 2003,
but was referred to as the 4th CSCAP General Conference. The 5th CSCAP General
Conference was held in December 2005.
A number of non-binding documents had previously been adopted at different
CSCAP working group meetings to address the issues concerning maritime safety
and shipping security before the September 11th terrorist attacks in the United
States.226 CSCAP Memorandum No. 1, for example, encourages CSCAP members
to undertake "[cooperative efforts to ensure the security of sea-lanes and sea lines
of communication, with the enhancement of capabilities and maritime surveil-
lance, safety, and search rescue operations."227 Paragraph 3 of CSCAP Memoran-
dum No. 4 encourages member nations to become parties to the 1982 LOS Con-
vention and other relevant international instruments, recognizing that this will
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Security in the Strait of Malacca and Regional Responses to the US Proposal
contribute to the strengthening of peace, security, cooperation, sustainable devel-
opment and friendly relations in the Asia-Pacific region. Paragraph 15 of the same
Memorandum encourages CSCAP member nations to consult with regard to the
ratification, implementation and participation in relevant international conven-
tions and instruments concerning maritime safety. CSCAP Memorandum No. 5
urges member nations to adopt measures that would promote law and order at sea
and reduce the incidence of maritime crime, which includes piracy and maritime
terrorism.
Since the September 11th terrorist attacks, CSCAP Memorandums No. 6 and
No. 7 were adopted in December 2002 and July 2003 respectively,228 and a "Report
on International Terrorism" was issued in March 2002 after the CSCAP Study
Group Meeting held in Kuala Lumpur, Malaysia in February 2002. CSCAP Mem-
orandum No. 7 recognizes the importance of the concept of human security and
encourages CSCAP member nations to, inter alia, endorse and implement rele-
vant UN conventions and protocols, and supporting regional agreements, against
terrorism and transnational crimes. The Report on International Terrorism
identifies the elements of a comprehensive strategy to combat terrorism in the
Asia-Pacific region. It urges CSCAP working groups to coordinate their research
agendas in order to advance collective efforts in combating international terror-
ism. CSCAP member nations are encouraged to ratify the various UN conven-
tions in relation to transnational crimes and related issues, adopt the UN resolu-
tion on terrorism and implement international and regional resolutions on
transnational crimes and terrorism. In addition, it is stated in the report that the
CSCAP Working Group on Maritime Cooperation will continue to examine the
following issues: ( 1 ) the vulnerability of naval and commercial shipping, off-
shore platforms, ports and harbors and coastal settlements to terrorist attack;
(2) the threat of maritime terrorism generally, including the use of ships as ve-
hicles for conducting terrorist attacks; and (3) the potential for reducing vulner-
abilities and countering the threat from maritime terrorist attacks.229
At the 5th CSCAP General Conference, emerging security challenges in the
Asia-Pacific region were widely discussed, which included terrorism, human traf-
ficking, the development of WMD, maritime security threats, natural disasters and
the recent threat of infectious diseases in the region. Maritime security is one of the
seven topics chosen to be discussed at the conference. In addition, one of the spe-
cial speeches delivered at the meeting was on the Indonesian perspective of security
in the Strait of Malacca. During the discussion, there were common concerns
among Indonesia and other States which are also stakeholders in the security of the
Strait of Malacca, which included the safety of navigation, the protection of the
marine environment, the need to cooperate on search and rescue, contingency
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plans against pollution, elimination of piracy and armed robberies, and preventing
maritime terrorism. Based on experience over the last three decades, it was the In-
donesian view that
• the problems of the Straits of Malacca and Singapore could be solved
through practical/technical mechanisms and cooperation;
• cost and burden sharing in promoting safety and security of navigation are
possible with the cooperation of Japan, and are increasingly necessary and
essential;
• user States should voluntarily cooperate with the coastal nations to promote
the safety of navigation and to protect the marine environment in the straits, as
well as in law enforcement activities;
• what is needed now is a more authoritative and permanent institution to
follow up on previous measures; and
• while cooperation and assistance from user States are needed and required
under the 1982 LOS Convention, there are certain situations with which
Indonesia would not be comfortable, such as the stationing or hiring of foreign
navies or marines, arming commercial vessels with offensive weapons, and joint
patrols of foreign navies in the straits.230
During discussion after the speech, the debate about the relationship between
piracy and terrorism was raised. There was also a discussion on sovereignty, espe-
cially linking issues such as the resistance towards foreign navies, and also relations
with user States.231
APEC
In October 2001, APEC leaders meeting in Shanghai signed a statement on
counterterrorism in which they pledged to cooperate fully, through close commu-
nication and cooperation among economic policy and financial authorities, to en-
sure that international terrorism does not disrupt economies and markets.232 In
October 2002, APEC leaders in Los Cabos, Mexico issued a Statement on Recent
Acts of Terrorism in APEC Members Economies, in which they condemned ter-
rorist acts in the APEC region, including those that occurred in Bali, in the Philip-
pines and in Moscow earlier that month. They also encouraged joint efforts of
APEC economies in mitigating the adverse impact of terrorist attacks in the af-
fected economies and called for strengthened international cooperation to support
efforts to eliminate terrorism and restore confidence in the region.233
In the Statement on Fighting Terrorism and Promoting Growth, adopted on
October 26, 2002, APEC leaders declared their intention to work together to secure
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Security in the Strait of Malacca and Regional Responses to the US Proposal
the flow of goods and people through measures to, inter alia, promote ship and
port security plans, install automatic identification systems on certain ships, and
enhance cooperation on righting piracy in the region between APEC fora and orga-
nizations such as the International Maritime Bureau Piracy Reporting Center and
the IMO. The Secure Trade in the APEC Region (STAR) program aims to increase
container and port security and to develop mechanisms to track shipments more
effectively throughout the supply chain. In addition, APEC countries are asked to
ratify the International Convention for the Suppression of the Financing of Terror-
ism, and to implement quickly and decisively all measures needed to prevent ter-
rorists and their supporters from accessing the international financial system, as
called for in UN Security Council Resolutions 1373 and 1390.234 At the APEC
STAR III Conference,235 held in Incheon, Korea, February 25-26, 2005, Maritime
Security Panel 3 discussions explored possible means of cooperation among APEC
economies and relevant international organizations in protecting key APEC sea
lanes such as the straits of Malacca and Singapore from terrorist attacks and acts of
piracy, and provided suggestions in relation to trade implications from an APEC-
specific perspective. It was concluded that
• APEC should provide proactive law enforcement support in the search for a
long-term solution to deal with maritime security,
• various levels of cooperation are required,
• APEC economies should endeavor to share information and intelligence,
and
• an "Assistance Fund" that brings all stakeholders together would be
helpful.236
The Western Pacific Naval Symposium and the Five Power Defence
Arrangement
The basic structure of the Western Pacific Naval Symposium (WPNS)237 and the
Five Power Defence Arrangement (FPDA),238 with their traditional focus on mili-
tary security, precluded dealing with non-conventional security threats, such as piracy
and maritime terrorism. However, in response to the changing regional maritime
security environment, both WPNS and FPDA felt the need to reconsider the focus
of some of their activities. In June 2004, Malaysia's deputy prime minister Najib
Razak stated that for the FPDA to stay relevant, it has to be "reconfigured" to deal
with new threats in the form of terrorism. Australian defence minister Robert Hill
also agreed that the FPDA should extend the scope of its activities to include
counterterrorism training.239 At the 3rd Shangri-La Dialogue, held in Singapore in
June 2004, the need to expand beyond traditional territorial threats to deal with
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non-conventional security threats such as maritime terrorism was recognized. It
was believed that maritime security exercises could soon be commonplace among
the FPDA armed forces.240 As a result, in September 2005 the five powers held a
joint naval exercise in the waters off Malaysia and Singapore that was designed to
tackle terrorism rather than wage conventional war. The exercise reflected the
growing concerns in Southeast Asia and, in particular, the Strait of Malacca over
the problem of piracy and terrorist attacks.241 In March 2006 it was proposed that
Australia, Britain and New Zealand, the three non-littoral member States of the
FPDA, be invited to join the "Eyes in the Sky" program as long as the sovereignty of
the littoral States of the Malacca strait is respected.242
The WPNS is also slowly adapting to the new maritime security environment in
the Asia-Pacific region, in particular dealing with the threat of piracy, sea robbery
and maritime terrorist attack. To adjust its focus of activities, the WPNS may need
to consider how the maritime security environment is changing and how to engage
with coast guards so that regional maritime security issues can be effectively ad-
dressed.243 More importantly, the WPNS might be selected by the US Pacific Com-
mand as an alternative regional forum to discuss maritime security issues.244
Possible adjustments were to be addressed by the WPNS in WPNS Workshop 2006
and in the 10th WPNS to be held in Hawaii June 25-29 and October 29 to Novem-
ber 2, 2006, respectively.
Positive Results from Littoral States' Responses to the US-Proposed RMSI
Within such a short period of time, about three years since May 2004 until today, secu-
rity in the Strait of Malacca has been improved significantly mainly because of the
cooperative efforts undertaken by the littoral States in response to the US-pro-
posed RMSI and the likelihood of American unilateral deployment of its forces to
help patrol the strait, and also in response to the decision by the British-based Joint
War Committee of Lloyd's Market Association to put the strait on its list of war-risk
areas in June 2005. According to the figures released by the 1MB in its 2005 Annual
Report on Piracy Against Ships, the number of pirate attacks in the Malacca strait
dropped from thirty-eight in 2004 to only twelve attacks in 2005. 245 There were no
reported pirate attacks in the Strait of Malacca from January 1 to March 31, 2006,
compared with eight in 2004 and four in 2005. 246 "Action by law enforcement agen-
cies, notably in Indonesia and the Malacca strait, has continued to be effective" and
"Indonesia in particular, has increased its efforts to defeat piracy by way of a show of
force in known (pirate) hotspots," said the 1MB in April 2006.247
In addition to the Malsindo joint sea patrols and the "Eyes in the Sky" joint air pa-
trols, launched by Indonesia, Malaysia and Singapore in July 2004 and in September
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Security in the Strait of Malacca and Regional Responses to the US Proposal
2005, respectively, a number of domestic anti-piracy and anti-terrorism measures
and bilateral cooperative programs have also been developed to safeguard the
Strait of Malacca. New national organizations or units such as Malaysia's Maritime
Enforcement Agency (MMEA) and Singapore's Accompanying Sea Security Team
(ASSeT) were established to be responsible for maritime security matters. The
ReCAAP Information Network System was launched in April 2006 and the
ReCAAP Information Sharing Centre was to be established after the entrance into
force of the ReCAAP Agreement. Moreover, bilateral cooperation between the lit-
toral States and user States, in particular, the United States, Japan and India, has
been strengthened to help improve maritime security in the Strait of Malacca and
in Southeast Asia. The littoral States, especially Indonesia, have received the offer
by user States of technical aids, patrol training and equipment. It is expected that
the littoral States will receive more financial and technical assistance from the user
States, including China and South Korea in the future. At the same time, it has been
reiterated that the sovereignty of the littoral States will be respected. Regional and
international concerns over safety and security in the Strait of Malacca will con-
tinue to serve as an important external policy factor in the process of enhancing se-
curity in the strait and in the region. Continued discussions on the issue of
enhancing maritime security in the Strait of Malacca under the IMO framework
and in the existing regional security organizations, such as ASEAN, ARF, CSCAP,
APEC, FPDA, WPNS and the Shangri-La Dialogue, are anticipated.
Challenges Ahead for the Management of Security in the Malacca Strait
Notwithstanding the many positive developments in relation to the management
of security in the Strait of Malacca since June 2004, there are challenges lying ahead
for both littoral and user States. One of the challenges is to petition the Joint War
Committee to remove the Strait of Malacca from its list of war-risk areas. The ship-
ping industries of the three littoral States of the strait have been asking the Com-
mittee to change its risk assessment, but without avail. Unless the littoral States are
able to prove the effectiveness of their coordinated patrolling programs, it is likely
that the strait will remain on the list.
The effectiveness of the tripartite coordinated air and sea patrolling programs
agreed to by the three littoral States has also been questioned. A Singaporean mari-
time security analyst listed three limitations to the effectiveness of the cooperative
programs: ( 1 ) the nations view independence and sovereignty very strongly and
therefore generally are reluctant to agree to participate more actively in coopera-
tive activities; (2) there is a gap between the nations with regard to law enforcement
capacities; and (3) there exists political suspicion among them, in addition to the
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lack of political frameworks that could facilitate more cooperative maritime secu-
rity efforts. Ironing out their differences over the seriousness of the maritime secu-
rity threats and the possible association between piracy and maritime terrorism in
the Strait of Malacca and in Southeast Asia will be a challenge to the littoral States.
It has been pointed out that the law enforcement capacities of Malaysia and Sin-
gapore are good, but Indonesia's difficult resource problems need to be resolved if
piracy and possible maritime terrorist attacks are to be dealt with effectively. It re-
mains to be seen to what extent and how soon these problems can be resolved, either
by significant investment provided by the littoral States themselves or by financial
and technical aid from user States, such as the United States, Japan and India now,
as well as Australia, China and South Korea in the future. The development of a
closer strategic and military cooperation between the littoral States and foreign
powers, in particular, the United States, could help justify the decision to offer
more assistance to help the littoral States enhance their maritime security capabili-
ties. The United States and Indonesia have resumed military ties, but progress to-
wards greater accountability and complete military reform in Indonesia remains to
be seen. The governments of Indonesia and Malaysia could reconsider their posi-
tion on the PSI, such as by partially or selectively participating in the PSI activities.
A positive development in this regard is the announcement made by the US gov-
ernment that it "stand [s] ready to help Indonesia and Malaysia, Singapore and
Thailand to secure the Straits of Malacca."248 In addition, the signing of the Strate-
gic Framework Agreement between the United States and Singapore in July 2005
could be welcomed by the other two littoral States as a positive development help-
ful to the enhancement of maritime security in the Strait of Malacca in particular
and in Southeast Asia in general.
Another challenge to the effective management of security in the Strait of
Malacca is how to find an acceptable approach that can compromise between the
littoral States' sovereign concerns and the user States' demand for a more direct in-
volvement in security matters in the strait. This requires that both sides reach
agreement on establishing a burden-sharing mechanism or a multilateral/interna-
tional cooperative security mechanism in the Strait of Malacca area. To help estab-
lish a burden-sharing mechanism, there is a need to amend Article 43 of the 1982
LOS Convention for the purpose of expanding the scope of burden sharing to in-
clude those costs associated with the management of security in the Strait of
Malacca. The early establishment of a regional marine training center or a piracy/
terrorism information sharing center would be seen as another important test of
the political will of the littoral States and the concerned nations in the region to en-
hance security in the Strait of Malacca and in Southeast Asia.
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Security in the Strait of Malacca and Regional Responses to the US Proposal
Finally, it would be important for the littoral States to become contracting par-
ties to the IMO's 1988 SUA Convention, the 2005 Protocol to the 1988 SUA Con-
vention, and the 2004 ReCAAP agreement. At present, among the littoral States of
the Malacca strait, only Singapore has ratified the 1988 SUA Convention and the
ReCAAP agreement. It remains a challenge to have both Indonesia and Malaysia
ratify the aforementioned maritime security-related international treaties.
Conclusion
Under the pressure spreading outwards from the United States, in particular
through the proposal of RMSI and the consideration of deploying forces to deal
with potential maritime security threats in the Strait of Malacca and Southeast
Asia, the three littoral States — Indonesia, Malaysia and Singapore — were forced to
adopt additional domestic anti-piracy and anti-terrorism measures and to develop
tripartite coordinated sea and air patrol programs to improve security in the strait.
New governmental agencies or units, such as the Malaysian Maritime Enforcement
Agency, the Singaporean Accompanying Sea Security Team, and the Indonesian
Maritime Policy Unit, have been formed to be responsible for managing security in
the strait. More patrol boats have been acquired and new monitoring systems have
been set up to help strengthen the littoral States' control over traffic in the strait. Bi-
lateral cooperative programs have also been developed between the littoral States
themselves and between the littoral States and user States, such as the United
States, Japan and India, and perhaps in the future with China, South Korea and
other nations, to keep the region's important waterways safe.
A number of important political statements, such as the Batam Agreement, the
Jakarta Agreement of 2005 and the first ASEAN Defence Ministers' Statement of
May 2006 have been adopted or issued, in which both littoral and user States are
urged to take more cooperative actions to help enhance security in the Malacca
strait. It seems that a more effective, collaborative approach to deal with the mari-
time security matters in the Malacca strait and in Southeast Asia has been devel-
oped since the first half of 2004. It is believed that this development will benefit the
international maritime community and, in particular, the shipping industries that
rely heavily on safe navigation of the Strait of Malacca. However, piracy and mari-
time terrorism and other transnational crimes in the strait and in Southeast Asia
are likely to remain a major maritime security concern for governments and ship-
ping industries for some years to come.
To deal effectively with maritime security threats in the Strait of Malacca, a
number of challenges need to be overcome. These include the effectiveness of the
implementation of the agreed tripartite coordinated sea and air patrols programs,
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and the littoral States' ratification of the maritime security-related international
conventions, in particular, the 2004 ReCAAP agreement, the 1988 SUA Conven-
tion and the 2005 protocol to the 1988 SUA Convention. There is also a need to es-
tablish a burden-sharing agreement that is acceptable to both the littoral and user
States. But the challenge to be overcome as soon as possible is to have Lloyd's Joint
War Committee remove the Strait of Malacca from its list of war-risk areas.
Notes
1 . Other maritime security programs and initiatives include the Advance Electronic Cargo
Information (24-Hour Rule), Container Security Initiative (CSI), Megaports Initiative, Trans-
shipment Country Export Control Initiative (TECI), Proliferation Security Initiative (PSI),
Maritime Transportation Security Act (MTSA), the International Ship and Port Facility Security
(ISPS) Code, International Port Security Program (IPSP), Customs-Trade Partnership Against
Terrorism (C-TPAT), US Coast Guard International Training Programs, Smart Box Initiative,
96-Hour Advance Notice of Arrival, Advance Passenger Information System Rule (APIS), the
National Plan to Achieve Maritime Domain Awareness, the Global Maritime Intelligence Inte-
gration Plan, the Maritime Operation Threat Response Plan, the International Outreach and
Coordination Strategy, the Maritime Infrastructure Recovery Plan, Maritime Transportation
System Security Recommendations, the Maritime Commerce Security Plan and the Domestic
Outreach Plan. See US Department of State, International Outreach and Coordination Strategy
for the National Strategy for Maritime Security (2005), available at http://www.dhs.gov/
xlibrary/assets/HSPDJOCPlan.pdf.
2. For the principal threats to US maritime security, see US Department of Homeland Se-
curity & US Department of Defense, The National Strategy for Maritime Security 3-6 (2005),
available at http://www.whitehouse.gov/homeland/4844-nsms.pdf.
3. International Outreach and Coordination Strategy for the National Strategy for Mari-
time Security, supra note 1, app. B, at 4.
4. Strait of Malacca, Wikipedia, the Free Encyclopedia, http://en.wikipedia.org/wiki/
Strait_of_Malacca (last visited Mar. 27, 2007); C. S. Kuppuswamy, Straits of Malacca: Security
Implications, Paper No. 1033, South Asia Analysis Group (SAAG), June 18, 2004, http://
www.saag.org/papersll/paperl033.html.
5. Gal Laft & Anne Korin, Terrorism Goes to Sea, FOREIGN AFFAIRS, Nov.-Dec. 2004, at 67.
6. Id.
7. Henry J. Kenny, China and the Competition for Oil and Gas in Asia, ASIA-PACIFIC RE-
VIEW, Nov. 2004, at 41.
8. The 1982 LOS Convention opened for signature on December 10, 1982 and entered into
force on November 16, 1994. For the text, see UN Doc. A/Conf.62/122, Oct. 7, 1982, reprinted in
21 INTERNATIONAL LEGAL MATERIALS 1261-1354 (Nov. 1982). As of April 28, 2006, the Con-
vention had 149 contracting parties. For the status of the Convention visit the website of the
United Nations' Division for Ocean Affairs and the Law of the Sea, http://www.un.org/Depts/
los/reference_files/status2006.pdf.
9. Thomas Orszag-Land, UN Launches Global Initiative to Defend Malacca Straits, JANE'S
TERRORISM & SECURITY MONITOR, Jan. 19, 2005, http://www.janes.com/security/international
_security/news/jtsm/jtsm050125_l_n.shtml.
143
Security in the Strait of Malacca and Regional Responses to the US Proposal
10. Malaysia to Boost Malacca Straits Security with 24-Hour Radar System — Report, AFX IN-
TERNATIONAL FOCUS, Mar. 18, 2005, http://www.mpsint.com/newsletter/archives/_2005/
03182005.html#0003.
11. Thailand to Join Malacca Strait Security System, THAI PRESS REPORTS, Apr. 22, 2006,
http://www.thaivisa.com/forum/index.php?showtopic=668748cmode=threaded.
12. President of the United States, The National Security Strategy of the United States of
America (2002), available at http://www.whitehouse.gov/nsc/nss.pdf; President of the United
States, National Strategy to Combat Weapons of Mass Destruction (2002), available at http://
www.whitehouse.gov/news/releases/2002/ 1 2/WMDStrategy.pdf.
13. Ilan Berman, The Bush Strategy at War, NATIONAL INTEREST, Winter 2003/2004, at 51.
14. The term "maritime domain" was defined in the 2004 National Security Presidential Di-
rective NSPD-41 /Homeland Security Presidential Directive HSPD-13 as "all areas and things of,
on, under, relating to, adjacent to, or bordering on a sea, ocean, or other navigable waterway, in-
cluding all maritime-related activities, infrastructure, people, cargo, and vessels and other con-
veyances." NSPD-41/HSPD-13 is available at http://www.fas.org/irp/offdocs/nspd/nspd41.pdf.
15. USS Cole Bombing, Wikipedia, the Free Encyclopedia, http://en.wikipedia.org/wiki/
USS_Cole_bonibing.
16. Prabhu Chawla, Indo-US Military Alliance: Falling Back On India, INDIA TODAY, Nov.
19, 2001, at 24; India Plays Water Cop in Malacca with US, INDIAN EXPRESS, Apr. 19, 2002.
17. See Ali M. Koknar, Terror on the High Seas, SECURITY MANAGEMENT ONLINE, June 2004,
http://www.securitymanagement.com/library/001617.html; The Sinister Strait — The Next Target
for Terrorism and US Intervention, JANE'S FOREIGN REPORT, July 1, 2004, http://www.janes.com/
security/international_security/news/fr/fr040630_l_n.shtml; Briefings, Malaysia's Terrorism
Dilemma, JANE'S INTELLIGENCE DIGEST, June 18, 2004, http://jid.janes.com/docs/jid/search.jsp
(then search for "Malaysia's Terrorism Dilemma"); Catherine Zara Raymond, How Real is the
Threat From Maritime Terrorism? THE POWER AND INTEREST NEWS REPORT (PINR), Dec. 12,
2005, http://www.pinr.com/report.php?ac=view_report&report_id=4108danguage_id=l; Next
for Terrorists: Seaborne Attacks, WORLDNETDAILY.COM, Mar. 18, 2005, http://www
.worldnetdaily.com/news/article.asp?ARTICLE_ID=43358.
1 8. Ellen Nakashima & Alan Sipress, Singapore Announces Arrest of 21 Militants, WASHING-
TON POST, Sept. 17, 2002, at A14.
19. Catherine Zara Raymond, The Malacca Straits and the Threat of Maritime Terrorism,
The Power and Interest News Report (PINR), Aug. 24, 2005, http://www.pinr.com/report
.php?ac=view_report&report_id=3528danguage_id= 1 .
20. Jack Plaxe, International Maritime Terror and Security, JOURNAL OF
COUNTERTERRORISM & HOMELAND SECURITY INTERNATIONAL, Fall 2004, at 16, 17.
21. Peril on the Sea, THE ECONOMIST (US Edition), Oct. 4, 2003; Christopher Myrick, Piracy
Doubts Over Attacks on Chem. Ships in Malacca Straits, CHEMICAL NEWS & INTELLIGENCE, Mar.
27, 2003.
22. John S. Burnett, The Next 9/1 1 Could Happen at Sea, NEW YORK TIMES, Feb. 22, 2005, at
A17, available at http://www.nytimes.com/2005/02/22/opinion/22burnett.html?ex= 12668 14800&en
=94f6daa54bb 1 803c&ei=5090&partner=rssuserland.
23. Philippines Charges Six Al-Qaeda- Linked Militants for Ferry Bombing, AGENCE FRANCE-
PRESSE, Oct. 11, 2004; Bong Reblando, Task Force Aboard Ship Holds Man Suspected as Terrorist,
MANILA BULLETIN, Mar. 12, 2004.
24. Richard Scott, Increased Piracy Makes High Seas More Dangerous, JANE'S DEFENCE
WEEKLY, Mar. 31, 2004, at 24; Richard Scott, Piracy— Scourge of the Seas, JANE'S DEFENCE
WEEKLY, May 11, 2005, at 20.
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Yann-huei Song
25. Niall Chorney, Japan Urges Increased Protection in Malacca Strait, JANES.COM, Jan. 21,
2005, http://www2.janes.com/index.html (search by article title then follow hyperlink).
26. Details of the missions and area of responsibility of the US Pacific Command are avail-
able at http://www.pacom.mil/about/pacom.shtml (last visited Mar. 28, 2007).
27. Admiral Thomas B. Fargo, US Navy, Commander, US Pacific Command, Testimony be-
fore the House Armed Services Committee, United States House of Representatives, Mar. 3 1 , 2004,
available at http://www.pacom.mil/speeches/sst2004/04033 lhousearmedsvcscomm.shtml.
28. Id., Q&A Session, available at http://www.pacom.mil/speeches/sst2004/040331hasc-qa
.shtml.
29. Id.
30. Id.
31. Veeramalla Anjaiah, No Plan to Deploy Troops to Malacca Strait: U.S., JAKARTA POST,
Apr. 20, 2004, at 2.
32. Indonesia Shuns US Help in Malacca, CHINA DAILY, Apr. 13, 2004.
33. US Warns Asian Maritime Terror Threat Needs Closer Government Cooperation, AFP.COM,
Apr. 22, 2004, http://findarticles.eom/p/articles/mi_kmafp/is_200404/ai_kepm452294.
34. Id.
35. Admiral Thomas B. Fargo, US Navy, Commander, US Pacific Command, Remarks at
US Pacific Command, Military Operations and Law Conference, Victoria, British Columbia,
Canada, May 3, 2004, available at http://www.pacom.mil/speeches/sst2004/040503milops
.shtml.
36. Id.
37. Robert Wohlschlegel, Curtis W. Turner & Kent Butts, Maritime Threats Workshop,
United States Army Pacific's: Defense Environmental and International Cooperation (DEIC)
Workshop, Center for Strategic Leadership, US Army War College, Issue Paper, Vol. 09-04, Oct.
2004, at 2, available at http://www.carlisle.army.mil/usacsl/Publications/IP09-04.pdf.
38. Id.
39. Information on the RMSI and other RMSI-relevant documents were removed from the
Pacific Command's website (http://www.pacom.mil/about/pacom.shtml). My last visit was on
October 16, 2005.
40. Commander, United States Pacific Command, Strategy for Regional Maritime Security,
Nov. 2004, at 3.
41. Id.
42. Mat 5-6.
43. Id. at 6-7.
44. Mat 11-13.
45. NSPD-41/HSPD-13, supra note 14, at 2.
46. Mat 2-3.
47. Available at http://www.pacom.mil/rmsi (last visited Oct. 16, 2005).
48. NSPD-41/HSPD-13, supra note 14, at 4.
49. Id. at 5-9.
50. Admiral William J. Fallon, US Navy, Commander, US Pacific Command, Remarks at
the 4th Shangri-La Dialogue, Enhancing Maritime Security Cooperation, June 5, 2005, available
at http://www.pacom.mil/speeches/sst2005/050606-emsi-shangrila.shtml.
51. The National Strategy for Maritime Security, supra note 2.
52. Id. at 4.
53. For details of these strategic actions, see id. at 13-24.
54. Id. at 15.
145
Security in the Strait of Malacca and Regional Responses to the US Proposal
55. Id.
56. This plan lays the foundation for an effective understanding of anything associated with
the maritime domain that could impact the security, safety, economy or environment of the
United States, and of identifying threats as early and as distant from our shores as possible. Text
available at http://www.dhs.gov/xlibrary/assets/HSPD_MDAPlan.pdf.
57. This plan uses existing capabilities to integrate all available intelligence regarding poten-
tial threats to US interests in the maritime domain.
58. This plan facilitates a coordinated US government response to threats against the United
States and its interests in the maritime domain by establishing roles and responsibilities that en-
able the government to respond quickly and decisively.
59. This strategy provides a framework to coordinate all maritime security initiatives under-
taken with foreign governments and international organizations, and solicits international sup-
port for enhanced maritime security. Text available at http://www.state.gov/organization/
64251.pdf.
60. This plan recommends procedures and standards for the recovery of the maritime infra-
structure following an attack or similar disruption. Text available at http://www.dhs.gov/
xlibrary/assets/HSPD_MIRPPlan.pdf.
6 1 . These recommendations provide strategic context to holistically improve the security of
the Marine Transportation System. Text available at http://www.dhs.gov/xlibrary/assets/
HSPD_MTSSPlan.pdf.
62. This plan establishes a comprehensive methodology to secure the maritime supply
chain. Text available at http://www.dhs.gov/xlibrary/assets/HSPD_MCSPlan.pdf.
63. This plan engages non-Federal input to assist with the development and implementation
of maritime security policies resulting from NSPD-41/HSPD-13. Text available at http://
www.dhs.gov/xlibrary/assets/HSPD_DomesticOutreach.pdf.
64. The text of this strategy is available at http://www.state.gOv/r/pa/prs/ps/2005/57280
.htm.
65. Text available at http://www.whitehouse.gov/nsc/nss.html.
66. Text available at http://www.whitehouse.gov/homeland/book.
67. Joshua Kucera, US Military Aid Totals $4.8bn, JANE'S DEFENCE WEEKLY, Feb. 15, 2006,
at 13.
68. See Samantha L. Quigley, War on Terror Victory Tops PACOM's Priorities, AMERICAN
FORCES PRESS SERVICE NEWS ARTICLES, Mar. 7, 2006, available at http://www.defenselink.mil/
news/newsarticle.aspx?id= 1 5243.
69. Vivek Raghuvanshi, India — New Delhi to Join Malacca Patrols, DEFENSENEWS.COM,
Feb. 23, 2006, http://www.defensenews.com/story.php?F=1555509&C=navwar.
70. Fact Sheet, U.S. Department of State, Bureau of Public Affairs, Maritime Security in the
East Asia and Pacific Region, Apr. 21, 2006, available at http://www.state.gOv/r/pa/scp/2006/
64956.htm.
71. Sam Bateman is co-chair of the CSCAP Study Group on Capacity Building for Maritime
Security Cooperation, and senior fellow at the Institute of Defence and Strategic Studies,
Nanyang Technology University, Singapore. For the commentary, see Sam Bateman, Burden
Sharing in the Straits: Not So Straightforward, IDSS COMMENTARIES (17/2006), Mar. 20, 2006,
http://www.rsis.edu.sg/publications/Perspective/IDSSO 1 72006.pdf.
72. Supra note 8.
73. Fact Sheet, supra note 70.
74. Id.
146
Yann-huei Song
75. "Responsible States" refers to the littoral States and those nations whose sovereign terri-
tory encompasses strategic waterways, such as Indonesia, Malaysia and Singapore, in the Strait of
Malacca area. "User States" includes the international community, shipping nations and other
potential assistance providers. "Multilateral Organizations" includes the IMO and other related
UN agencies, World Customs Organization, ASEAN, ARF, and APEC. "Private Sector Partners"
refers to the shipping industry, including passenger and cargo carriers, seafarers, and other inter-
ested parties. Id.
76. Q & A Session, supra note 28.
77. Id.
78. Tiarma Siboro, RI Opposes U.S. Deployment in Malacca Straits, JAKARTA POST, Apr. 7,
2004, at 4.
79. Nughoho Wisnumurti, Upholding Security in the Malacca Straits, JAKARTA POST, Apr.
12, 2004, at 7.
80. U.S. Initiative in Malacca Strait 'Baseless': RI Navy, JAKARTA POST, Apr. 12, 2004, at 4.
8 1 . Press Release, Joint Statement Between the United States of America and the Republic of
Indonesia (Apr. 23, 2004), http://www.whitehouse.gov/news/releases/2003/10/20031022-l.html
[hereinafter Joint Statement].
82. John D. Banusiewicz, Officials Clarify Maritime Initiative Amid Controversy, AMERICAN
FORCES PRESS SERVICE NEWS ARTICLE, June 4, 2004, available at http://www.defenselink.mil/
news/Jun2004/n06042004_200406048.html.
83. Id.
84. See Vivian L. Forbes & Encik Mokhzani Zubir, Ensuring Security in the Malacca Strait:
Solutions Offered and Suggested Implementation, paper presented at LIMA International Mari-
time Conference on Enhancing Security in the Straits of Malacca: Amalgamation of Solutions to
Keep the Straits Open to All, Awana Porto Malai, Langkawi, Malaysia, Dec. 4-5, 2005, at 4, avail-
able at http://www.mima.gov.my/mima/htmls/conferences/LIMA05/index.htm (then follow
"Ensuring Security in the Malacca Strait: Solutions Offered and Suggested Implementation"
hyperlink).
85. Id.
86. Tim Huxley, Piracy and Maritime Terror in Southeast Asia: Dire Straits, IISS STRATEGIC
Comments, July 2004, at l.
87. Mark Baker, Malaysia Rebuffs US Sea Force Plan, GLOBAL POLICY FORUM, Apr. 6, 2004,
http://www.globalpolicy.org/empire/intervention/2004/0406usmalacca.htm. See also Malaysia
Rejects US Help to Guard Malacca Straits Against Terrorists, AFX- ASIA, Apr. 4, 2004; V. Ramanan,
US Cannot Deploy Forces in Straits, NEW STRAITS TIMES (Malaysia), Apr. 5, 2004, at 3.
88. Baker, supra note 87.
89. Id.
90. Donald Urquhart, Asian Coast Guard Meeting to Focus on Terrorism Threat; Malaysia
Announces Creation of Coast Guard, BUSINESS TIMES (Singapore), June 17, 2004.
9 1 . Richard Hubbard, Malaysia Rejects Use of Outside Forces in SEAsia, REUTERS, June 6, 2004,
http://www.iiss.org/conferences/the-shangri-la-dialogue/press-coverage/press-coverage-2004/
reuters— -malaysia-rejects-use-of-outside.
92. See Foreign Military Presence a Setback to War on Terror, IISS.ORG, June 6, 2004,
http://www.iiss.org/conferences/the-shangri-la-dialogue/press-coverage/press-coverage-2004/
bernamacom-malaysian-national-news-agency.
93. Shahrullizan Rusli & Noor Soraya Mohd Jamal, American Intervention on Piracy in
Straits ofMalaka Not Needed, BERNAMA.COM, Apr. 28, 2004.
147
Security in the Strait of Malacca and Regional Responses to the US Proposal
94. See Strategic Framework Agreement between the United States and the Republic of Sin-
gapore for a Closer Cooperation Partnership in Defense and Security, July 12, 2005, http://
www.us-asean.org/DefSec/SFA.doc.
95. Singapore Confirms Talks With US Over Troops in Malacca Straits, AFX.COM, Apr. 5,
2004.
96. P. Vijian, M'sia Continues to Bolster Maritime Security, FINANCIAL TIMES, Apr. 27, 2004.
97. Id.
98. Tony Tan, deputy prime minister and coordinating minister for security and defence,
Keynote Address at the 2004 IDSS Maritime Security Conference (May 21, 2004). A summary of
Dr. Tan's address is available at http://www.rsis.edu.sg/publications/conference_reports/
MaritimeConference04.pdf.
99. Id.
100. Going for the Jugular; Shipping in South-East Asia, THE ECONOMIST (US edition), June
12, 2004.
101. Kuppuswamy, supra note 4.
102. Rush & Jamal, supra note 93.
103. Id.
104. Mr. Hamzah is the former director general of the Maritime Institute Malaysia (MIMA).
1 05. B.A. Hamzah, No Basis for US Patrols, NEW STRAITS TIMES (Malaysia), July 3 1 , 2004, at 8.
106. Id.
107. Id.
108. Retired from the Royal Malaysian Navy in the rank of Captain and now a research fellow
at MIMA.
1 09. Mat Taib Yasin, Sharing the Burden of Ensuring Safety and Security of Navigation in the Straits
of Malacca, paper presented at the Symposium on Maritime Security in the South China Sea,
Dec. 8-9, 2005, at 4-5, http://www.mima.gov.my/mima/htmls/conferences/LIMA05/MTaib%20
-%20Sharing%20the%20burden%20of%20maintenance%20of%20safety%20and%20security
%20of%20navigation%20in%20the%20Straits%20of%20Malacca.pdf.
110. Mat 4.
111. Id. Quoting B.A. Hamzah, supra note 105.
112. Id. at 5.
113. Former senior research fellow at the East-West Center in Honolulu.
114. Mark J. Valencia, Malacca Strait: Clash of Sovereignty?, JAKARTA POST, Nov. 8, 2004.
115. Professor at the School of International and Public Affairs, Shanghai Jiao Tong Univer-
sity, China.
116. Ji Guoxing, U.S. RMSI Contravenes UN Convention on the Law of the Sea, Center for Stra-
tegic & International Studies, PACNET #29, July 8, 2004, available at http://www.csis.org/media/
csis/pubs/pac0429.pdf.
117. Id.
118. Marcus Hand & James Brewer, Malacca Strait Declared a High Risk Zone by Joint War
Committee: Decision Could Increase Premiums in Affected Area, LLOYD'S LIST, July 1, 2005, at 3.
119. Bernard Kent Sondakh, National Sovereignty and Security in the Strait of Malacca, paper
presented at the conference on "The Straits of Malacca: Building a Comprehensive Security En-
vironment", Maritime Institute of Malaysia, Kuala Lumpur, Malaysia, Oct. 11-13, 2004, at 8,
http://www.mima.gov.my/mima/htmls/conferences/som04/papers/sondakh.pdf.
120. Robert Mangindaan, Maritime Terrorism Threat: An Indonesian Perspective, paper pre-
sented at the Observer Research Foundation Workshop on Maritime Counter Terrorism, Nov.
29-30, 2004, at 4, http://www.observerindia.com/reports/maritime/paper_indn.pdf.
148
Yann-huei Song
121. Id.
122. Indonesian Maritime Policy Contributes to Security in Malacca Straits, THAI PRESS RE-
PORTS, July 20, 2005.
123. RINavy to Install Radar Along Malacca Strait, ANTARA (Indonesia), Sept. 3, 2005; Indo-
nesian Defence Minister Attends Border Committee Meeting in Malaysia, BBC WORLDWIDE MON-
ITORING, Dec. 16, 2005; Integrated Maritime Security System to Debut in Malacca Strait, ASIA
PULSE, Sept. 9, 2005.
124. Tony Hotland, Admiralty Courts in the Making, JAKARTA POST, June 23, 2005, at 4.
125. Navy Launches Operation to Secure Malacca Strait, JAKARTA POST, July 13, 2005, at 4.
126. Irwan Firdaus, Indonesian Navy Holds Anti-Terror Drill in the Malacca Strait, ASSOCI-
ATED PRESS, Mar. 8, 2006; Indonesian Navy Holds Anti-Terror Drill in Malacca Strait, THAI PRESS
REPORTS, Mar. 10,2006.
127. Nick Brown, Malaysia Asks for Help to Fight Piracy, JANES.COM, Oct. 3, 2003, http://
www2.janes.com/index.html (search by article title then follow hyperlink); Iskander Sazlan,
Counter Maritime Terrorism: Malaysia's Perspective, paper presented at the Observer Research
Foundation Workshop on Maritime Counter Terrorism, Nov. 29-30, 2004, at 13, http://
www.observerindia.com/reports/maritime/paper_maly.pdf.
128. Admiral Dato Sri Mohd Anwar bin H.J. Mohd Nor, Chief of Navy, Royal Malaysian
Navy, Malaysia's Approach, Presentation at ARF Regional Cooperation in Maritime Security
Conference (Mar. 2-4, 2005).
129. Report: Malaysia Forms New Maritime Agency to Patrol Malacca Straits From June, ASSO-
CIATED PRESS, Apr. 27, 2005.
130. Malaysia to Increase Patrol in Malacca Strait, THAI PRESS REPORTS, Dec. 6, 2005.
131. Malaysia's Maritime Police Increase Anti-Piracy Operations, BBC WORLDWIDE MONI-
TORING, June 1,2005.
132. Malaysia to Step Up Anti-Piracy Patrols in Malacca Strait, AFX INTERNATIONAL FOCUS,
Feb. 9, 2006, available at http://www.homelandsecurityus.net/ports%20and%20maritime
%20terrorism/malacca%20straitmalaysia_to_step_up_anti.htm.
1 33. James Brewer, Joint War Committee Stands by Strait Ruling, LLOYD'S LIST, Aug. 1 7, 2005,
at 1.
134. Singapore Navy Unveils Fleet of Remote- Controlled Vessels, AGENCE FRANCE-PRESSE,
May 17, 2005, available at http://www.defensenews.com/story.php?F=854788&C=asiapac.
135. Singapore to Contribute 2 Fokker Planes for Joint Malacca Strait Patrols, CHANNEL
NEWSASIA, Sept. 8, 2005, available at http://sg.news.yahoo.eom/050908/5/singaporel67228.html.
1 36. Singapore — Navy Will Escort Commercial Ships, REUTERS, Mar. 2, 2005; Armed Teams to
Guard Merchant Ships Entering Singapore Port, LLOYD'S LIST, Mar. 1, 2005, at 1.
137. Singapore Newspaper Highlights, ASIA PULSE, Mar. 30, 2005.
138. Current information regarding the Convention and its various amendments is available
at http://www.imo.org/ (then follow "Conventions," then "Status of Conventions," then
"SOLAS" hyperlinks) (last visited Mar. 30, 2007).
139. Robert Go, Singapore Strait Patrols Keep Pirates at Bay, STRAITS TIMES (Singapore), May
16,2002.
140. News Release, Ministry of Defense, Singapore, Singapore and Indonesian Navies Launch
Sea Surveillance System (May 27, 2005), available at http://www.mindef.gov.sg/imindef/
news_and_events/nr/2005/may/27may05_nr2.html.
141. Sondakh, supra note 1 19, at 11.
142. Malaysia, Singapore Conduct Joint Exercise in Malacca Strait, THAI PRESS REPORTS, Nov.
29, 2005.
149
Security in the Strait of Malacca and Regional Responses to the US Proposal
143. Joint Exercise Expected to Enhance RI, KL Diplomatic Ties, ANTARA (Indonesia), Apr. 24,
2006.
144. Strategic Framework Agreement between the United States of America and the Republic
of Singapore for a Closer Cooperation Partnership in Defense and Security, supra note 94. See
also Joint Statement between President Bush and Prime Minister Lee of Singapore, July 12, 2005,
available at http://www.whitehouse.gov/news/releases/2005/07/20050712.html.
145. Singapore: Country Outlooks, EIU VlEWSWlRE.COM, Aug. 9, 2005.
146. Joint Statement, Indonesia-United States Security Dialogue III, Jakarta, Aug. 2-3, 2005,
available at http://unitkom.indonesian-embassy.or.jp/menue/index.htm (then follow "Indonesia-
United States Security Dialogue III" hyperlink); Joint Statement, supra note 81.
147. U.S., Indonesian Navies Hold Joint Anti-Terror Exercise off Jakarta, ASSOCIATED PRESS,
May 10, 2005.
148. P.S. Suryanarayana, A Strategic Move, FRONTLINE, Jan. 14-27, 2006, available at http://
www.flonnet.com/fl2301/stories/20060127001405900.htm; US Offers Technical Aid for Malacca
Strait Security, ANTARA (Indonesia), Dec. 2, 2005; U.S. to Donate Old Ships to Indonesia to Help
Secure Malacca Strait, Official Says, ASSOCIATED PRESS, Dec. 7, 2005.
149. RI, US to Re-Formulate Security Cooperation, ANTARA (Indonesia), Jan. 13, 2006.
150. Indonesia Requests US Technical Assistance for Malacca Strait Security, BBC WORLDWIDE
MONITORING, Jan. 23, 2006.
151. Rice Visit to Strengthen RI-US Ties in Fighting Terrorism: Legislator, ANTARA (Indonesia),
Mar. 2, 2006.
152. Indonesian and US Navies Conduct Counter-Terrorism Exercise, ANTARA (Indonesia),
Mar. 14, 2006.
153. Piracy Remains Threat in Southeast Asia, ASSOCIATED PRESS, Mar. 20, 2006, available at
http://www.cbsnews.com/stories/2006/03/20/ap/world/mainD8GF7SVG0.shtml.
154. Rumsfeld Calls for New Indonesian Ties, NINEMSN.COM, Mar. 10, 2006, available at
http://news.ninemsn.com. au/article.aspx?id=9076 1 .
155. US Offers Early Warning System to Secure Malacca Strait, XINHUA GENERAL NEWS SER-
VICE, Apr. 22, 2006.
156. RI to Seek US Affirmation on Proposed Strategic Partnership, ANTARA (Indonesia), Apr.
19, 2006.
157. Malaysia, U.S. Ink Military Pact, Seek Malacca Strait Security, ASIA POLITICAL NEWS,
May 9, 2005, available at http://www.findarticles.eom/p/articles/mi_mOWDQ/is_2005_May_9/
ai_n 13829466; Malaysia and US Renew Defence Pact, Discuss Malacca Strait Security, AGENCE
FRANCE- PRESSE, May 9, 2005, available at http://www.defensenews.com/story.php?F
=837204&C=asiapac; US Looks at Malacca Piracy Fight Options, LLOYD'S LIST, May 10, 2005, at
12.
158. Robert Zoellick, US deputy secretary of state, Remarks at the US Ambassador's Resi-
dence, Kuala Lumpur, Malaysia (May 9, 2005), http://usunrome.usmission.gov/UNISSUES/
sustdev/docs/a505 1205.htm.
159. Malaysia, US Discuss Counter-Terrorism Cooperation in Malacca Straits, THAI PRESS RE-
PORTS, Mar. 3, 2006.
160. US Wanted Military Cooperation Boosted, JAKARTA POST, June 7, 2006, at 1; US, Polish
Defense Ministers Visit RI to Boost Military Ties, JAKARTA POST, June 6, 2006, at 23.
161. Koizumi Seeks Anti-Piracy Cooperation with Asian Nations, ASIA POLITICAL NEWS, Mar.
28, 2005, available at http://www.findarticles.eom/p/articles/mi_mOWDQ/is_2005_March_28/
ai nl3481892.
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Yann-huei Song
162. Japan to Provide Vessels to Assist Indonesia with Malacca Strait Security, BBC MONI-
TORING International reports, May 23, 2005.
163. Japanese, Indonesian Leaders Agree to Launch Trade Talks, Cooperation on UN Reform,
BBC MONITORING INTERNATIONAL REPORTS, June 2, 2005.
1 64. Indonesia May Deploy Four Japanese Ships to Tackle Piracy in Malacca Straits, BBC MON-
ITORING INTERNATIONAL REPORTS, July 20, 2005; Japan, Indonesia to Discuss Security Aid for
Malacca Straits, ASIA PULSE, Sept. 29, 2005.
165. Japan, 3 Nations Draw Up Electronic Sea Charts of Malacca Strait, JAPAN ECONOMIC
NEWSWIRE, Dec. 19, 2005.
166. Japan to Provide Technical Aid to Safeguard Malacca Strait, ANTARA (Indonesia), Feb. 7,
2006; News In Brief, LLOYD'S LIST, Mar. 24, 2006, at 5.
167. Japan to Give Patrol Boats to Indonesia, to Relax Arms Export Ban, BBC MONITORING IN-
TERNATIONAL REPORT, June 8, 2006.
168. Malaysia, Australia Conduct Naval Exercise in Malacca Strait, BBC MONITORING ASIA
PACIFIC— POLITICAL, Apr. 21, 2006.
169. RI, Japan Intensifying Talks on Malacca Strait Security, ANTARA (Indonesia), May 24,
2006.
170. K.C. Vijavan, 3-Nation Patrols of Strait Launched; Year-Round Patrols of Malacca Straits
by Navies of Singapore, Indonesia, Malaysia Aimed at Deterring Piracy and Terrorism, STRAITS
Times Interactive, July 21, 2004.
171. Thailand to Join Malacca Strait Security System, THAI PRESS REPORTS, Apr. 25, 2006.
172. Interactions Among World Powers Can Be Source of Strength: Minister Teo, CHANNEL
NEWSASIA, Aug. 4, 2005.
1 73. Graham Ong & Joshua Ho, Maritime Air Patrols: The New Weapons Against Piracy in the
Malacca Straits, IDSS COMMENTARIES, 70/2005, Oct. 13, 2005, http://www.idss.edu.sg/publications/
Perspective/IDSS702005.pdf.
174. Indonesia, Malaysia, Singapore Agree to Malacca Strait Security Procedures, BBC MONI-
TORING ASIA PACIFIC— POLITICAL, Apr. 22, 2006.
175. Donald Urquhart, Malacca Strait Air and Sea Patrols Under One Umbrella, BUSINESS
TIMES (Singapore), Apr. 22, 2006.
176. Marcus Hand, Asia-Pacific Nations Pledge Joint Action on Malacca Strait Protection:
Terrorism Threat Adds to Concern Over Piracy, LLOYD'S LIST, June 6, 2006, at 3; S. Ramesh, In-
dia Willing to Help Littoral States Patrol Malacca Straits, CHANNEL NEWSASIA, June 3, 2006,
available at http://www.iiss.org/whats-new/iiss-in-the-press/press-coverage-2006/june-2006/
india-willing-to-help-littoral-states-patrol-.
177. Christopher Marquis, U.S. Tries to Soothe Southeast Asia on Security Initiative, NYTlMES
.COM, June 4, 2004, http://www.nytimes.com/2004/06/04/international/asia/04CND-RUMS
.html?ex= 1 1 69 1 82800&en=d9a66565fe42750 1 &ei=5070.
178. Regional Maritime Security Being Common Concern, CHINA NEWS, June 4, 2005, avail-
able at http://www.iiss.org.uk/whats-new/iiss-in-the-press/press-coverage-2005/june-2005/
regional-maritime-security-being-common-conce.
179. The sideline discussion on Advancing Maritime Security Cooperation was chaired by
Professor Tommy Koh, chairman of Singapore's Institute of Policy Studies, and included presen-
tations from Malaysia's Admiral Tan Sri Dato'Sri Mohd Anwar bin Hj Mohd, Chief of Defence
Force, Malaysia; Air Chief Marshal Djoko Suyanto, Commander in Chief, National Defence
Forces, Indonesia; and Admiral William J. Fallon, Commander, United States Pacific Com-
mand.
151
Security in the Strait of Malacca and Regional Responses to the US Proposal
180. This was the 4th Tripartite Ministerial Meeting of the Littoral States on the Straits of
Malacca and Singapore. It was held on August 1-2, 2005.
181. Batam Joint Statement of the 4th Tripartite Ministerial Meeting of the Littoral States on
the Straits of Malacca and Singapore, Batam, Indonesia, Aug. 1-2, 2005, available at http://
app.mfa.gov.sg/2006/press/view_press.asp?post_id=1406 [hereinafter Batam Joint Statement].
182. Id.
183. Press Briefing, IMO to Take Straits Initiative, Nov. 19, 2004, available at http://
www.imo.org/ About/mainframe. asp?topic_id=848&doc_id=4466.
184. Efthimios E. Mitropoulos, secretary-general, International Maritime Organization,
Opening Remarks, http://www.imo. org/Newsroom/mainframe.asp?topic_id= 1 028&doc_id
=5269 (Sept. 7, 2005).
185. Id.
186. See Identical letters dated 28 October 2005 from the Permanent Representatives of Indo-
nesia, Malaysia and Singapore to the United Nations addressed to the Secretary-General and the
President of the General Assembly, 60th Session, A/60/529, (Nov. 1, 2005), available at http://
daccessdds.un.org/doc/UNDOC/GEN/N05/583/13/PDF/N0558313.pdf?OpenElement. The text
of the Jakarta Statement is at Annex II.
187. Id., Annex II, at 9-10.
188. Mat 10.
1 89. Nicolaos L. Charalambous, Protection of Vital Shipping Lanes 5-6, paper presented at the
Maritime Cyprus 2005 Conference (Sept. 26-28, 2005), available at http://www.shipping
.gov.cy/maritime_cyprus/downloads/speakers/speech/n_charalambous.pdf.
190. See High-Powered Jakarta Meeting Agrees That Vessels Should Chip In, THESTAR.COM,
Sept. 12, 2005; Abd. Rahim Hussin, The Management of Straits of Malacca: Burden Sharing as the
Basis for Co-Operation, paper presented at the LIMA International Maritime Conference 2005,
Awana Porto Malai, Langkawi, Malaysia (Dec. 4-5, 2005).
191. The Ministerial Declaration and Ministerial Statements adopted at the Ministerial Con-
ference on International Transport Security, Tokyo, Japan, Jan. 12-13, 2006, http://www
.mlit.go.jp/sogoseisaku/kokusai_e/minister/outline_e.pdf.
192. The 2005 Protocol to the SUA Convention adds a new Article 3 bis which states that a
person commits an offense within the meaning of the Convention if that person unlawfully and
intentionally
• when the purpose of the act, by its nature or context, is to intimidate a
population, or to compel a government or an international organization to do or
to abstain from any act
• uses against or on a ship or discharges from a ship any explosive, radioactive
material or BCN (biological, chemical, nuclear) weapon in a manner that
causes or is likely to cause death or serious injury or damage;
• discharges, from a ship, oil, liquefied natural gas, or other hazardous or
noxious substance, in such quantity or concentration that causes or is likely to
cause death or serious injury or damage;
• uses a ship in a manner that causes death or serious injury or damage;
• transports on board a ship any explosive or radioactive material, knowing that it
is intended to be used to cause, or in a threat to cause, death or serious injury or
damage for the purpose of intimidating a population or compelling a government
or an international organization to do or to abstain from doing any act;
• transports on board a ship any BCN weapon, knowing it to be a BCN weapon;
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Yann-huei Song
• transports on board a ship any source material, special fissionable material, or
equipment or material especially designed or prepared for the processing, use or
production of special fissionable material, knowing that it is intended to be used
in a nuclear explosive activity or in any other nuclear activity not under
safeguards pursuant to an IAEA comprehensive safeguards agreement; and
• transports on board a ship any equipment, materials or software or related
technology that significantly contributes to the design, manufacture or delivery
of a BCN weapon, with the intention that it will be used for such purpose.
Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation,
1988, http://www.imo. org/Conventions/mainframe.asp?topic_id=259&doc_id=686.
193. Ministerial Statement on Security in International Maritime Transport Sector para. 10,
adopted at the Ministerial Conference on International Transport Security, Tokyo, Japan, Jan.
12-13, 2006, http://www.mlit.go.jp/sogoseisaku/kokusai_e/minister/maritime_e.pdf.
194. Shipping Nations Agree Satellite Tracking Rule, REUTERS, May 19, 2006.
195. The SOLAS regulation on LRIT establishes a multilateral agreement for sharing LRIT in-
formation for security and search and rescue purposes, among SOLAS contracting governments,
in order to meet the maritime security needs and other concerns of such governments. This new
regulation does not create or affirm any new rights of States over ships beyond those existing in
international law, particularly, the 1982 LOS Convention, nor does it alter or affect the rights, ju-
risdiction, duties and obligations of States in connection with that convention. The LRIT infor-
mation that ships will be required to transmit includes the ship's identity, location and date and
time of their position. There will be no interface between LRIT and AIS. One of the more impor-
tant distinctions between LRIT and AIS, apart from the obvious one of range, is that, whereas
AIS is a broadcast system, data derived through LRIT will be available only to the recipients who
are entitled to receive such information, and safeguards concerning the confidentiality of those
data have been built into the regulatory provisions. SOLAS contracting governments will be en-
titled to receive information about ships navigating within a distance not exceeding 1000 nauti-
cal miles off their coast. Additional information on the new regulation is available at http://
www.imo.org (then follow "Conventions," then "SOLAS," then "Amendments year by year,"
then "May 2006 amendments — LRIT" hyperlinks).
196. Moritaka Hayashi, Introductory Note to the Regional Agreement on Combating Piracy and
Armed Robbery Against Ships in Asia, 44 INTERNATIONAL LEGAL MATERIALS 826 (2005).
197. Regional Agreement on Combating Piracy and Armed Robbery Against Ships in Asia,
art. 18, 44 INTERNATIONAL LEGAL MATERIALS 829, 834, available at http://www.mofa.go.jp/
mofaj/gaiko/kaiyo/pdfs/kyotei_s.pdf.
198. They are Brunei, Cambodia, India, Japan, Laos, Myanmar, the Philippines, Singapore,
South Korea, Sri Lanka, Thailand and Vietnam.
199. See Rebecca Chew, ReCAAP Off to a Good Start, NAUTILUS, 3d Qtr., 2006, at 4, available
at http://www.mpa.gov.sg/infocentre/pdfs/nl06-03.pdf.
200. Batam Joint Statement, supra note 181, para. 10.
201. The ten members of ASEAN are Brunei, Cambodia, Indonesia, Laos, Malaysia,
Myanmar, the Philippines, Singapore, Thailand and Vietnam.
202. ARF groups twenty-five nations, comprising the ten members of ASEAN and Australia,
Canada, China, East Timor, the European Union, India, lapan, Mongolia, New Zealand, North
Korea, Pakistan, Papua New Guinea, Russia, South Korea and the United States.
203. 2001 ASEAN Declaration on Joint Action to Counter Terrorism, http://www.dfa
.gov.ph/about/offices/7thasean.htm.
204. The text of the communique is available at http://www.aseansec.org/5961.htm.
153
Security in the Strait of Malacca and Regional Responses to the US Proposal
205. The texts of the ASEAN-US Joint Declaration for Cooperation to Combat International
Terrorism and of the Joint Declaration on Cooperation to Combat Terrorism between the Euro-
pean Union and ASEAN are available at http://www.aseansec.org/10574.htm and http://
www.aseansec.org/14031.htm, respectively.
206. See ASEAN Marine Related Activities, 2005/MRCWG/016, Agenda Item: 13, informa-
tion submitted by ASEAN to APEC Marine Resource Conservation Working Group meeting,
Phuket, Thailand, May 17-19, 2005.
207. Lianita Prawindarti, The First ASEAN Defence Ministers Meeting: An Early Test for the
ASEAN Security Community?, IDSS COMMENTARIES, May 16, 2006, http://www.rsis.edu.sg/
publications/Perspective/IDSS0342006.pdf.
208. The full text of the Statement is available at http://www.aseansec.org/14837.htm.
209. Id., para. 1 (a).
210. M,para. 1 (c).
211. Id., para. 2.
212. See para. 19, Chairman's Statement, Eleventh Meeting of ASEAN Regional Forum, Ja-
karta, Indonesia, July 2, 2004, available at http://www.aseansec.org.
213. Id., para. 26.
214. See Co-Chair's Report, ASEAN Regional Forum Workshop on Maritime Security, Sep.
22-24, 2004, Kuala Lumpur, Malaysia, para. 9, available at http://www.aseansec.org.
215. Id., paras. 11 8c 15.
216. Id., para. 25.
217. Id., para. 33.
218. Singapore Proposes Maritime Security Exercises for Asian Security Forum, AGENCE
FRANCE-PRESSE, Mar. 2, 2005.
219. Co-Chairs' Report, ARF CBM on Regional Cooperation in Maritime Security, Mar. 2-4,
2005, Singapore, para. 19, available at http://www.aseansec.org.
220. Id., para. 20.
221. Chairman's Statement, Twelfth Meeting of the ASEAN Regional Forum (ARF), Vientiane,
July 29, 2005, available at http://www.aseansec.org.
222. Id., para. 37.
223. Increase Asia-Pacific Cooperation for Maritime Security: Defence Minister, ZEE NEWS,
June 3, 2006, available at http://www.iiss.org/whats-new/iiss-in-the-press/press-coverage-2006/
june-2006/increase-asia-pacifk-cooperation.
224. See Kuala Lumpur Statement 8 June 1993: Establishment of the Council for Security Co-
operation in the Asia Pacific, http://www.cscap.org/kl.htm.
225. The CSCAP Charter and revised CSCAP Charter are available at http://www.cscap.org/
charter.htm.
226. CSCAP Memorandum No. 1: The Security of the Asia Pacific Region (Apr. 1994);
CSCAP Memorandum No. 2: Asia Pacific Confidence and Security Building Measures; CSCAP
Memorandum No. 3: The Concepts of Comprehensive Security and Cooperative Security;
CSCAP Memorandum No. 4: Guidelines for Regional Maritime Cooperation (Dec. 1997);
CSCAP Memorandum No. 5: Cooperation for Law and Order at Sea (Feb. 2001), all available at
http://www.cscap.org/publications.htm.
227. CSCAP Memorandum No. 1, para. C (4), supra note 226.
228. CSCAP Memorandum No. 6: The Practice of the Law of the Sea in the Asia Pacific (Dec.
2002) and CSCAP Memorandum No. 7: The Relationship between Terrorism and Transna-
tional Crime (July 2003). CSCAP Memorandum No. 6 is available at http://www.cscap.org/
publications.htm. A copy of CSCAP Memorandum No. 7 is on file with author.
154
Yann-huei Song
229. Terrorism in Southeast Asia: Perspectives from the Region, A CSCAP Roundtable Discus-
sion Featuring Kumar Ramakrishna, Dino Patti Djalal, Carolina Hernandez, and Mohamed
J awhar Hassan, ISSUES & INSIGHTS, PACIFIC FORUM CSIS (Feb. 2003), Appendix D (Report on
International Terrorism CSCAP Study Group Meeting, Kuala Lumpur, Mar. 25-26, 2003),
http://www.csis.org/media/csis/pubs/issuesinsights_v03n02.pdf.
230. Addressing Emerging Security Challenges in the Asia Pacific Region, Report, Council for
Security Cooperation in the Asia Pacific, 5th General Conference, Jakarta, Dec. 6-7, 2005 at 17,
http://www.cscap.ca/pdf/2005%20General%20Conference%20Report.pdf.
231. Id.
232. APEC Leaders Statement on Counter-Terrorism, Shanghai, China, Oct. 21, 2001, http://
www.infojapan.org/policy/economy/apec/2001/leader.html.
233. APEC Leaders' Statement on Recent Acts of Terrorism in APEC Member Economies, Los
Cabos, Mexico, Oct. 26, 2002, http://www.mofa.go.jp/policy/economy/apec/2002/state_terro2
.html.
234. APEC Leaders' Statement on Fighting Terrorism and Promoting Growth, Oct. 26, 2002,
http://www.sccp.org/sccplibrary/otherdocs/LeadersStmtFightTerroNGrowth.pdf.
235. The First APEC STAR Conference was held in Bangkok, Thailand in 2003; the Second
STAR Conference in Vina del Mar, Chile, 2004; the Third STAR Conference in Incheon, Korea,
2005; and the Fourth STAR Conference in Hanoi, Vietnam in February 2006.
236. Chairman's Summary Report and Recommendations of the APEC STAR III Conference,
Incheon, Korea, Feb. 25-26, 2005, http://www.apec.org/apec/documents_reports/counter_terrorism
_task_force/2005.html#STAR (then follow "STAR Conference" and "Chairman's Summary Re-
port and Recommendations of the APEC STAR III Conference" hyperlinks).
237. The origin of WPNS lies in the biennial International Seapower Symposium conducted
by the United States Navy. It changed in 1988 when the Australian chief of naval staff agreed to
host the first WPNS in Sydney. Members of the WPNS include Australia, Brunei, Cambodia,
China, France, Indonesia, Japan, Malaysia, New Zealand, Papua New Guinea, the Philippines,
Russia, Singapore, South Korea, Thailand, Tonga, the United States and Vietnam. Four observ-
ers are Bangladesh, Canada, Chile and India.
238. The FPDA was established in 1971 to ensure the defense of Malaysia and Singapore. Par-
ticipating nations are Australia, Britain, Malaysia, New Zealand and Singapore.
239. Azrin Asmani, FPDA: Malaysia Open to Review of its Scope, STRAITS TIMES (Singapore),
June 7, 2004.
240. Dominique Loh, FPDA to Focus on Non-Conventional Threats to Regional Maritime Se-
curity, CHANNEL NEWSASIA, June 7, 2004, available at http://app-stg.nscc.gov.sg/data/
2004_04_7FPDA.doc.
241. Maritime Concerns Drive Southeast Asia War Games, REUTERS, Sept. 5, 2005.
242. Malaysia Says Australia, UK, New Zealand May Play Role in Malacca Strait Security, AFX
INTERNATIONAL FOCUS, Mar. 27, 2006.
243. See The Western Pacific Naval Symposium, SEMAPHORE, Newsletter of the Sea Power
Centre — Australia, Issue 14, July 2005, available at http://www.navy.gov.au/spc/semaphore/
2006_14.pdf.
244. Evelyn Goh, Singapore and the United States: Cooperation on Transnational Security
Threats, paper presented for 26th Annual Pacific Symposium, Honolulu, Hawaii, June 8-10,
2005, at 7, available at http://www.ndu.edu/inss/symposia/Pacific2005/goh.pdf.
245. Frank Kennedy, Piracy Declines Sharply in Malacca Straits, GULFNEWS.COM, Feb. 6,
2006, http://archive.gulfnews.com/articles/06/02/06/ 1 00 1 6604.html.
155
Security in the Strait of Malacca and Regional Responses to the US Proposal
246. Based on the April 2006 IMB's Piracy and Armed Robbery Against Ships report for the
period January 1 to March 31, 2006. See Katy Glassborow, 1MB Report Charts Piracy's Shifting
Trends, JANES.COM, May 4, 2006, http://www2.janes.com/index.html (search by article title then
follow hyperlink).
247. En-Lai Yoh, Pirate Attacks Drop to Zero in Malacca Strait But Global Attacks Rise, Says
Watchdog, ASSOCIATED PRESS WORLDSTREAM, May 3, 2006.
248. See Paul X. Rutz, Rice: U.S., Indonesia Must Continue Work on 'True Partnership, ' AMERI-
CAN FORCES PRESS SERVICE, Mar. 16, 2006, http://www.defenselink.mil/news/newsarticle
,aspx?id= 15153.
156
VIII
Actual and Future Threats Emanating
from the Commons: A Chilean Approach
Francisca Moller and Jorge Balaresque*
Introduction
Strategy is about solving problems — in fact, the best strategy is the best solu-
tion to that problem. This very simple way of looking at strategy is in itself
very complex. The problem that needs to be solved must be well defined and un-
derstood and the strategic solution has to be feasible with the means that are in
hand. To complicate things further, most of the situations that need solving are
probably all "in the future." Additionally, the problem may be simply stated as
"terrorism," but we all know that is not enough. Apart from some novelist, who
could have conceived that commercial airplanes could be used in such a horrible
manner as they were on September 11?
This "solution" must also fit scenarios that themselves will undoubtedly differ
from region to region throughout the world, even from country to country. A reso-
lution that is good for one region or country may not be applicable to another.
Thus, when in 1947, a Chilean lawyer from Vina del Mar — does anybody today re-
member his name?1 — presented his theory of an expanded coastal State territorial
* Francisca Moller is Professor of International Law, Chilean Naval War College ( Academia de
Guerra Naval). Rear Admiral Jorge Balaresque, Chilean Navy (Ret.), is Professor and Head of the
Strategy Department, Chilean Naval War College. The views expressed in this article are those of
the authors alone and do not necessarily represent the views of the Chilean Government, the
Chilean Navy or the Chilean Naval War College.
Threats Emanating from the Commons: A Chilean Approach
sea, who anticipated that it would evolve into the 200-nautical-mile exclusive eco-
nomic zone (EEZ) that is now universally accepted? In 1947, he was presenting a
solution for the risk to the national whaling industry as foreign whalers operating
just off Chilean shores were very quickly exterminating the mammals.
Solutions also have their own levels of responsibility: the political or grand strategic level
decision makers have to be able to recognize the problems, state their objectives and
create the necessary means — and perhaps the legal structure — to attain them. On the
other hand, the "means" or forces that will implement the policies need clear-cut in-
structions as to what they can or cannot do in resolving the problem. As we all know
with regard to threats at sea, there will always be a conflict between the freedom of the
seas and certain control measures that would help to confront the threats effectively.
Globalization has resulted in the rapid advance of communications capabilities
and technology, a great mobility of humans and capital, a weakening of commercial
barriers and the creation of important multinational corporations, which every day
acquire a greater importance in international affairs. All this has made borders
more permeable and the world economies more interdependent, with all the ad-
vantages and disadvantages that this entails. Globalization provides enormous ben-
efits and opportunities, but it also has negative effects. Unfortunately the benefits
are still concentrated in a few nations, creating false expectations, rivalries, tensions
and divisions among the rest. We know that today most conflicts are intra-State
conflicts. These originate for multiple reasons, including lack of governance, cor-
ruption and ethnic and religious problems. All of these are causes of instability, civil
war, social disorder, systematic violations of human rights, massive migration and
frontier tensions. These effects not only create instability in the States where they oc-
cur but also have the potential to cause negative repercussions within the region or
throughout the whole international system. The world has seen a polarization of
those who support and those who oppose globalization. The former focus on the
possible benefits associated with participating in the global economy. The latter are
concerned that they are too far removed from the level of economic development
that would permit them access to globalization's benefits, or they consider global-
ization to be the cause of all their problems — the loss of national identity, the relax-
ation of moral values and the weakening of the principle of sovereignty of States.
In a globalized world, we have not only the traditional threats, but new threats
giving rise to new risks have emerged. These are not planned or organized by a
State — at least not openly. These risks rise from the proliferation of international
criminal organizations, piracy, cyber attacks, small arms trafficking, the spread of
weapons of mass destruction, drug trafficking and terrorism. We must also men-
tion potential AIDS and bird flu pandemics and natural disasters and other prob-
lems, such as droughts, floods, soil degradation and overexploitation of natural
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Francisca Moller and Jorge Balaresque
resources. All these phenomena are considered transnational, as they cross inter-
national boundaries.
Writing from the perspective of a distant country our objective is to show the
importance of the sea to Chile as a maritime nation and how turning to some "old"
ideas may help find an effective and efficient way to create the indispensable coop-
eration needed to confront the "new" threats that affect the world.
The New Threats at Sea
The sea has always contributed to human development through its four main at-
tributes: its resources, its utility as a means of transportation and trade, as a means of
exchanging information and, finally, as a source of power and dominion.2 In the
past, the maritime resources of most States were mainly dedicated to pursuing their
national interests relating to military power and dominion. Today the new threats,
particularly those which threaten the environment and transportation, must be con-
fronted in a new way. "Good order at sea"3 requires three very important issues to be
addressed effectively: maritime awareness, maritime policy and integrated maritime
governance. Simply reflecting on the titles of these issues indicates the need for a
wide base of understanding if we are to succeed in combating the new threats.
Today the use of the global commons presents much more complex problems
than when it was referred to as a "wide common" by Admiral Mahan late in the
nineteenth century.4 Today the threats and risks cover a very wide range. We will
only discuss some that we consider especially important.
As addressed at the ASEAN Regional Forum in 2003, piracy, which has existed
from time immemorial, has now emerged in a new form: "Piracy and armed rob-
bery against ships and the potential for terrorist attacks on vulnerable sea shipping
threaten the growth of the Asia- Pacific region and disrupt the stability of global
commerce, particularly as these have become tools for transnational organized
crime."5 Other threats from and on the global commons include smuggling, drug
trafficking, illegal immigration, banditry, human smuggling and slavery, environ-
mental attack, trade disruption, and weapons proliferation, including weapons of
mass destruction and terrorism.6
Chilean Maritime Interests
Chile, with its unique shape, is not a very large country in terms of its land territory,
but its length entitles it to a huge expanse of territorial and exclusive economic
zone waters. If you add to this Chile's geographical position in the world, plus an
159
Threats Emanating from the Commons: A Chilean Approach
economic system that is outward looking, you can understand that for Chileans the
sea is of great importance.
From 1990 to 2005, Chile's foreign trade by sea rose from thirty million metric tons
to seventy million tons. In 2005, 85 percent of Chile's foreign trade was by sea. That
year, Chilean exports transported by ship totaled $14.5 billion to Asia and Oceania,
$9.8 billion to Europe, $7.6 billion to North America and $125 million to Africa.7
Although Chile is far removed from many areas of the world, events occurring
elsewhere can quickly and negatively impact Chile. As an example, although the
rise in foreign trade was generally steady from 1990 to 2005, the 1997 Asian eco-
nomic crisis, which had nothing to do with Chile, led to a decrease in Chilean ship-
ping and hardships for the Chilean economy that lasted for several years.
Key Vulnerabilities
Chile heavily depends on its sea lines of communication. Nearly 90 percent of its
increasing foreign trade must travel by sea, 100 percent of fuel imports come by sea
and by 2009 most of the natural gas needed will come as liquefied natural gas on
ships whose cargoes can themselves be a weapon of mass destruction in the hands
of terrorists and will, of course, require special security.
Although Chile is in a geographic region that to date has not been the subject of
serious terrorist threats, the government is aware of the dangers that terrorism
presents. This is why Chile is party to numerous international conventions.8 The
latest international treaties ratified are an expression of our agreement with the in-
ternational effort to combat terrorism following the 9/11 attacks.
Illegal fishing and overexploitation of fishery resources are a worldwide concern
and Chile is no exception. To address these, the government has imposed quotas
on Chilean fishing companies that fish in our exclusive economic zone and
Presential Sea, but it has not been possible to prevent illegal fishing by foreign en-
terprises that are obviously overexploiting some areas and endangering certain
highly migratory and straddling stocks.
Pollution of our seas is also a major threat to Chile. As one example, Chile is one
of the most important producers of salmon, which require clean water.
The Panama Canal is of primary importance for Chile. Chilean shipping is the
fourth largest world user and largest South American user of the canal. Any inter-
ruption to the flow of shipping through the canal will immediately affect our econ-
omy and Chilean exports may become uncompetitive because of increased
shipping costs and times.
The Strait of Magellan and Drake Passage, although not the busiest sea lanes in
the world, are of great importance as an alternative to the Panama Canal. The use
160
Francisca Moller and Jorge Balaresque
of these passages is growing yearly as a consequence not only of the increase in
world trade, but also due to the increase in post-Panamax vessels (those too large to
transit the Panama Canal), vessels carrying dangerous cargoes prohibited from ca-
nal transits, and technology advances that now allow larger ships to sail the high
latitudes safely. These increases in the use of the Strait of Magellan and Drake Pas-
sage raise the risk of collisions.
Chilean Policy
Chilean defense policy recognizes that — apart from providing the traditional aspects
of protecting the citizens and national interests and safeguarding territorial integrity
and sovereignty — a modern view must include international security and stability as
factors that affect Chile's own national security.9 Although oriented in the first place to
dissuade any threats, it recognizes that defense forces must be prepared to act coer-
cively in defense of national interests if dissuasion doesn't work. It also quite definitely
expresses that Chile is prepared to cooperate with other States,10 especially under UN
mandates, as the best way to address non-conventional threats.
In the near term, Chilean foreign policy has the challenge of increasing Chile's
place in this new globalized and interdependent world. Chile is today a nation that
has left behind its traditional insularity, and, faced with globalization, has chosen
to try to influence it so as to minimize its risks and to take part in its opportunities.
Accomplishing these objectives will require diversified strategies.11
Taken together Chilean defense and foreign policies present three challenges:
first, contributing to international peace and security; second, participating in
Latin American governability and social cohesion; and, finally, becoming a bridge
and platform between Latin America and Asia.
In meeting these challenges, the Chilean Navy is prepared — no easy task,
considering the size of the area to protect, the limited assets available and the
growing maritime interests — not only to fulfill the traditional naval role of national
defense, but to participate actively in preserving Chile's other maritime interests.
In that regard, in Chile the functions normally performed by coast guards in
other nations are the responsibility of the navy. Finally, the navy also participates
in international cooperation initiatives with other countries, particularly, as indi-
cated previously, in operations conducted under UN auspices.
For many years, the navy has participated in multilateral and bilateral exercises
with other navies to develop the interoperability necessary for effective operations
in the maritime environment. An interesting example was the sponsorship of Pan-
amanian Maritime Force training, and creating and participating in special exer-
cises to increase security in the Panama Canal area.
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Threats Emanating from the Commons: A Chilean Approach
The Chilean navy is today a very efficient armed service comprised of a sound
and modern organization of men, infrastructure and the technical means to pro-
vide effective command and control. It is a navy that is fully capable of the necessary —
and indispensable — coordination in its operations with international and govern-
ment specialized agencies. The navy effectively covers Chilean territory from the
maritime boundary with Peru in the north to the Antarctic in the south and is
equipped with the aircraft and ships to control the open waters under Chilean ju-
risdiction and our littoral and internal waters.
Chile has developed a maritime power appropriate for its level of development
and a navy that is organized and equipped consistent with the principle that "a fleet
that concentrates on maintaining a presence on the high seas and patrolling in sup-
port of the sea lanes of communication is far more effective in identifying and
countering threats to one's national security than a coastal-defense fleet."12
Confronting the New Threats
It is important to point out initially that in confronting the threats of the twenty-
first century, it is necessary to find appropriate responses to those threats within
the international system and responses that are consistent with international law.
Under the law of the sea, the flag State has the responsibility of exercising jurisdic-
tion and control over vessels registered under its flag and has the obligation of carry-
ing it out in accordance with its own national legislation, the 1982 United Nations
Convention on the Law of the Sea (1982 LOS Convention)13 and international
conventions approved within the International Maritime Organization (IMO)
framework. The 1982 LOS Convention permits a State that has reason to believe
that jurisdiction and control have not been executed properly regarding a specific
vessel registered with another State to communicate this to the flag State, which is
to investigate and take any necessary actions to remedy the situation.14
Recognizing that the flag State has not always effectively fulfilled its obligation
of exercising jurisdiction and control over its flag vessels, the principle of port-
State control is provided for by various international conventions.15 This principle
empowers their port State to inspect foreign shipping in their ports. In addressing
port-State control, special mention must be made of the International Ship and
Port Facility Security Code (ISPS Code).16 The primary objective of the ISPS Code
is to strengthen the security of international shipping, ports, waterways and the
high seas by directing governments, shipping companies and port operators to en-
hance the security of the maritime enterprise. The ISPS Code also places responsi-
bility on port authorities to undertake detailed security assessments, including
response plans, to identify threats and vulnerabilities.17
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Francisca Moller and Jorge Balaresque
On the other hand, the 1982 LOS Convention provides explicit rights to the
coastal State within its EEZ regarding fishing and to prevent, reduce and control
pollution of the maritime environment.18 There also are conventions that permit a
coastal State to act beyond its EEZ, such as the International Intervention
Convention19 in instances in which an accident beyond the EEZ causes pollution
that may affect the coastal State, the International Convention for Search and Res-
cue (SAR)20 and others.
The Presential Sea as a Useful Tool for Confronting the New Threats
When the Presential Sea concept was first advanced, the threat was uncontrolled
exploitation of fishing stocks, particularly migratory and straddling fishing re-
sources. Today the threats are far more diverse, but we believe the Presential Sea is
an alternative that can be useful in confronting these new threats.21
But, what is the Chilean Presential Sea? Geographically, it is that part of the ocean
space between the outer limits of Chile's continental exclusive economic zone and
the meridian which, passing through the western edge of Easter Island's continental
shelf, extends north to the international boundary with Peru and south to the South
Pole.22 It is depicted as follows:
: ■■■.-■:..,'.,' '. .i.
Figure 1. Chilean Presential Sea and SAR Area of Responsibility
163
23
Threats Emanating from the Commons: A Chilean Approach
The Presential Sea is an area in which Chile maintains a presence to protect the
national interests and takes part in economic activities that will contribute to na-
tional development. "This concept expresses the will to be present in this part of
the high seas with the aim of projecting maritime interests regarding the rest of the
international community, watch over the environment, preserve the natural re-
sources, with exact adherence to International Law."24
The Presential Sea is Consistent with International Law
The concept of the Presential Sea was first articulated in 1991. Immediately there
were critics who expressed concern that the Presential Sea was an attempt to assert
Chilean jurisdiction beyond those limits established in the 1982 LOS Convention.
One writer described it as "a very disturbing precedent."25
Professor Vicuna, who served as president of the Chilean Delegation to the
Third United Nations Conference on the Law of the Sea (1973-1983), responded
to those critics:
The meaning and extent of the Presential Sea can be explained in the light of the
developments set forth above since it closely responds to the expression of a special
interest of the coastal State, in this instance Chile, but which can also be applied to
many other geographical situations throughout the World. ... [I]t involves firstly the
participation in and surveillance of the activities undertaken by other States in the high
seas areas of particular interest to the coastal State. In this regard it is not a question of
excluding any State from such areas, but, on the contrary, of ensuring the active
inclusion of the coastal State concerned. . . .
There is no question of exclusive coastal State rights involved in this concept, or the
drawing of new maritime boundaries in a legal sense; neither should participation in
such activities be understood as a kind of compulsory intervention by the coastal State
in the activities undertaken in by other countries, but only as ensuring its own right to
operate actively in the area. The concept expressly safeguards the legal status of the high
seas established by the United Nations Convention on the Law of the Sea It follows
that the approach has been conceived in a manner entirely consistent with the current
status of the Law of the Sea.26
Satya Nandan, who headed the Fijian delegation to the Third United Nations
Conference on the Law of the Sea and served as chairman of the conference work-
ing groups on the exclusive economic zone, delimitation of maritime boundaries
and the high seas, in addressing the accomplishments of the 1982 LOS Convention,
believed:
164
Francisca Moller and Jorge Balaresque
A major achievement of the 1982 Convention was to rationalize different uses and
thereby reconcile the competing interests of states. The balance thus attained has
greatly reduced the proliferation of incoherent regimes, as states adopt national
legislation to conform to the regimes of the Convention. In that sense, the Convention
has had a stabilizing effect, reducing uncertainty and instability in the peaceful use of
the oceans.27
He continued:
For the future, the interest of all nations in a peaceful order of the oceans lies in
uniform and consistent application of the principles established in the Convention.
Differences between parties and non parties to the Treaty, and even between non
parties, may be resolved by observing the norms of cooperative conduct and
international resolution established by the Convention. Open conflicts and
confrontations and unilateral assertions of new jurisdictional regimes will not
contribute to the stability and certainty necessary in the international movement
toward the rule of law. . . .28
Jane Dalton observed a few years later that
[T]he Mar Presencial is a juridical concept offered to support Chilean national
aspirations. The challenge to Chile and the international community is to attain
Chilean aspirations within the framework of the existing Convention regime. The Mar
Presencial may be the tool that enables Chile to do so. It must not be the tool by which
the erosion of the regime begins.29
Beyond the fact that Chile desires a greater participation in Pacific Ocean activi-
ties, whether those are international trade, protection of the maritime environ-
ment, conservation of its resources or addressing threats arising on or coming
from its waters, it has never been Chile's intention to act unilaterally, but through
active participation in international organizations, specifically, the United Nations,
the Organization of American States and the International Maritime Organization.
Maritime Domain Awareness
It is interesting to note how a similar concept to the Presential Sea has been devel-
oped by the United States, which has labeled it Maritime Domain Awareness
(MDA).30 Admiral Thomas Collins, commandant of the US Coast Guard, speaking
at the US Naval War College, stated:
From a risk- mitigation perspective, MDA is perhaps the highest return element of our
application of maritime power. Simply put, MDA is processing comprehensive
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Threats Emanating from the Commons: A Chilean Approach
awareness of the vulnerabilities, threats, and all matters of interest on the water. It
means having extensive knowledge of geography, weather, position of friendly vessels
and potential threats, trends, key indicators, anomalies, intent and the activities of all
vessels in an area of concern, including the innocent. ... If knowledge is power, and
MDA provides us the requisite knowledge of the maritime [spectrum], then MDA is
the key to maritime power. MDA, and the knowledge it will bring, will allow maritime
forces to respond with measured and appropriate force to meet any threat on, below or
above the sea and, taken to an ultimate state, will provide the necessary awareness to
create "nonevents," proactively preventing incidents, challenges, and devastation.31
International Cooperation and Voluntary Agreements
Vice Admiral John Morgan, deputy chief of naval operations for information,
plans and strategy, and Rear Admiral Charles Martoglio, director of the Strategy
and Policy Division, in the US Navy's Office of the Chief of Naval Operations, in
describing the importance of the seas and the interests of all nations in ensuring the
security of the oceans, stated:
Promoting and maintaining the security of the global maritime commons is a key
element because freedom of the seas is critical to any nation's long-term economic
well-being. The impact of the commons on trade, international commerce, and the
movement of people is significant, making security on the high seas, and in the world's
littorals, harbors, and ports, a cornerstone of prosperity. Likewise, the exploitation of
the maritime domain by nations, groups, or individuals must be considered a global
challenge. Policing and protecting the maritime commons against a wide spectrum of
threats is a high priority for all nations interested in the economic prosperity and
security that comes from a safe and free maritime domain."32
Admiral Collins, in his 2003 address at the International Seapower Symposium,
described how 9/11 forced the United States to rethink its approach to maritime
power in the context of maritime security as resting purely on military power in
indicating:
[Mjaritime security is a concerted effort that encompasses more than just protecting
the nation's national interest against hostile nations, clearly. It includes protection
against terrorist attacks; protection of our sovereign natural resources, environment,
and the like. To reduce these risks in this new security environment, it requires a special
application, I think, of concerted, integrated maritime power at four major areas of
emphasis: to (1) increase our awareness of all activities and events in the maritime
environment; (2) very importantly, build and administer an effective maritime
security regime both domestically and internationally; (3) increase military and civil
operational presence — persistent presence — in our ports and coastal zones and
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Francisca Moller and Jorge Balaresque
beyond, for a layered security posture; and (4) improve our response posture in the
event a security incident does occur.33
The twenty-three States attending the 2003 ASEAN Regional Forum empha-
sized the importance of national and regional cooperation to the maintenance of
maritime security:
To deal with this increasingly violent international crime, it is necessary to step up
broad-based regional cooperative efforts to combat transnational organized crime,
including through cooperation and coordination among all institutions concerned,
such as naval units, coastal patrol and law enforcement agencies, shipping companies,
crews, and port authorities;
Such efforts must be based on relevant international law, including the 1982 Law of the
Sea Convention;
It is important that there be national and regional cooperation to ensure that maritime
criminals and pirates do not evade prosecution;
Effective response to maritime crime requires regional maritime security strategies and
multilateral cooperation in their implementation;
National, Regional and International efforts to combat terrorism also enhance the
ability to combat transnational organized crime and armed- robberies [sic] against
ships.34
We think international organizations have an important role, particularly the
International Maritime Organization (IMO), which effectively addresses a wide
variety of maritime affairs, in furthering international cooperation. International
instruments and recommendations/guidelines have been approved for the sup-
pression of piracy and armed robbery against ships and fixed platforms, including
the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of
Maritime Navigation35 and its Protocol for the Suppression of Unlawful Acts
Against the Safety of Fixed Platforms Located on the Continental Shelf36; the 1974
International Convention for the Safety of Life at Sea,37 particularly the new Chap-
ter XI-2, the International Ship and Port Facilities Security Code38; the 2005 Proto-
col of the Convention for the Suppression of Unlawful Acts Against the Safety of
Maritime Navigation39; and the Protocol of 2005 for the Suppression of Unlawful
Acts Against the Safety of Fixed Platforms Located on the Continental Shelf.40 IMO
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Threats Emanating from the Commons: A Chilean Approach
measures adopted to enhance maritime security have greatly contributed to
strengthening international maritime security.
The contributions of international organizations have been recognized in a
range of international conferences; for example, in January 2006, the Tokyo Minis-
terial Conference on International Transport Security "welcomed and supported
the vigorous maritime security activities undertaken by relevant international or-
ganizations, particularly, the International Maritime Organization (IMO) and the
World Customs Organization (WCO)."41
Also, the Ninth Asia Pacific Heads of Maritime Safety Agencies (APHMSA) Forum,
held in Vina del Mar, Chile from April 18-22, 2006,42 stressed that the fight against
international terrorism and criminal acts at sea constitutes a goal for all States, with
the purpose of assuring people's integrity and development through safe and free
trade, and that cooperation among member States is imperative in addressing
these non-traditional threats. During the forum, the US delegation explained the
meaning of Maritime Domain Awareness (MDA). The communique issued at the
conclusion of the forum addressed MDA as follows:
It was also acknowledged by the Forum that for MDA to be effective, information from
all maritime mission areas must be integrated, and that the sharing of maritime
information among international partners, particularly among APHMSA members, is
essential in achieving transparency. . . .
Noting the great potential for MDA to contribute to many aspect [s] of maritime safety,
SAR, environmental protection, as well as security, the Forum suggested further work
should be carried out or discussed at [a] future meeting regarding the precise benefits
which can be derived.43
There are a number of voluntary agreements created by the United States after
9/11 that are designed to address threats from and on the sea. These include the
Container Security Initiative (CSI),44 the Proliferation Security Initiative (PSI)45
and the Regional Maritime Security Initiative (RMSI),46 directed specifically at the
Strait of Malacca. While the international community supports their objectives,
[They] have received a mixed bag of responses from the maritime nations. The PSI
raises some fundamental issues under the United Nations Convention of the Law of
the Sea (UNCLOS). Maritime specialists argue that under the customary international
law all vessels have the freedom of movement on the high seas and therefore the
freedom of navigation on the high seas is absolute. Therefore, there is no justification
in boarding and searching a ship if it has a nationality, not engaged in piracy or slave
trade. Analysts doubt the right of the powerful nations to violate the basic principles
and norms enshrined in the UNCLOS The daunting challenge however, is how to
168
Francisca Moller and Jorge Balaresque
address these Initiatives in a comprehensive, yet cost-effective way, without
challenging sovereignty issues and dramatically restraining the flow of commerce."47
Another author's concerns were not just with the legal issues raised by the CSI
and PSI but with their focus on protecting US interests and the unilateral process
by which they were created:
So far, many states have gone along with CSI and PSI. However, the high costs of
compliance evoke images of colonialism and hegemony. The stationing of U.S.
Customs officials in the sovereign ports of foreign states might be seen as intrusive. PSI
and CSI may also limit the rights of commercial vessels operating internationally to
remain free from arbitrary search and seizure. The initiatives are directed exclusively
toward safeguarding U.S.-bound shipping Further, they exclude WMD and related
shipments by the U.S. to its allies. On the whole, CSI and PSI lack transparency,
reciprocity, and accountability; they are unilateral U.S. measures prompted by the 9/11
attacks.
It may be that this is the necessary cost of increased maritime security in the twenty-
first century. If many countries are willing to accept this type of non-consultative and
unilaterally- driven process that would indicate a very significant change in the way
international regulations are framed and implemented. It would constitute a major
shift from negotiated multilateralism of the post-war system to cooperative
unilateralism under post- Cold War American hegemony.48
We believe that necessary changes or modifications to international legislation
must be accomplished within the framework of the United Nations. The history of
efforts to create new international conventions or modify existing ones has shown,
however, that this can sometimes be a lengthy process. In the face of the new
threats and the dangers they create, the international community must be prepared
to act promptly to adopt procedures that provide effective responses to terrorism
and proliferation.
The law of the sea has developed and evolved over centuries of the use of the
oceans. Sometimes those changes can occur rapidly; other times — and more fre-
quently— changes require a lengthy period. An example of the latter is the defini-
tion of piracy as it appears in the 1982 LOS Convention,49 a definition that has
existed essentially unchanged for hundreds of years. In addressing the need to
change the law, the political advisor to Striking Force NATO observes:
In recent years, efforts have been made to loosen the restrictive UNCLOS definition [of
piracy]. The 1988 Rome Convention on Suppression of Unlawful Acts at Sea (SUA)
dropped the high seas and private act limitations of Article 101, but SUA focuses on
jurisdiction, not enforcement. The signatories are required to criminalize such acts,
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and to either exercise jurisdiction over persons in their territory, or to extradite them to
another state with a valid stake in the action. Crucially, it does not authorize hot
pursuit.
What then, can states and navies, legally do?
On the high seas, and within one's own waters, boarding and arrest can be exercised
under the universal jurisdiction rubric, or where the pirates are of that state's
nationality. . . .
Also relevant are recent anti-terrorist initiatives, such as the 2005 revisions to the SUA
convention that allow states to agree that others may board vessels flying their flag after
notification.
In practice, acts of piracy and maritime terrorism may be indistinguishable, the
question of intent usually determined after the fact. Thus initiatives to suppress
terrorism may assist in the fight against piracy, and vice versa.50
We believe a more straightforward approach is to make proliferation of weap-
ons of mass destruction a global crime, like slavery or piracy. Today the law pro-
vides that warships of any nation have the right to visit a ship where there is
reasonable ground for suspecting that the ship is engaged in slavery or piracy or is
stateless.51 Given the new threats, it is not reasonable that action cannot be taken in
cases of terrorism at sea.
Conclusion
Chile is dependent on the sea. In our opinion, Chile recognizes the threats created
by the current international environment to the use of the oceans and is forward
looking in identifying future circumstances that could affect the nation. The Chil-
ean government has developed and articulated policies that provide appropriate
guidance to government agencies in directing their organizations to carry out
those policies. Specifically in the case of the navy, it has developed and adapted its
means towards the objectives established by the government.
Effective responses to illicit acts require multilateral cooperation at both the in-
ternational and regional level. While the possible solutions to the new threats are to
be found principally working with the United Nations and the International Mari-
time Organization, we must look beyond them to various national public and pri-
vate agencies and organizations that are in charge of maritime security. The
solutions adopted to date are properly focused by involving not only governments
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Francisca Moller and Jorge Balaresque
but also shipping companies, port authorities, customs officials, navies, coast
guards, etc.
We believe that ensuring "good order at sea" worldwide requires an improved
level of awareness, effective policy and integrated governance. The United Nations
must be the structure within which States act to develop the long-term legal frame-
work. We recognize, however, that there must be a mechanism, such as that pro-
vided by the International Maritime Organization, there to provide the short-term
guidance required for the maritime power of States to effectively confront the
threats not just as they arise, but hopefully before they appear.
The 1982 Law of the Sea Convention has been the vital legal structure to keep
order at sea. Even if the prerogatives of the flag State are irreplaceable, port-State
control has become an efficient complement. Even so, we think that whatever pre-
rogatives the law of the sea confers upon individual States, the Presential Sea con-
cept is a useful tool for the surveillance of the high seas adjacent to the exclusive
economic zone. It provides an "area of responsibility" for States to provide the
control of that sea space necessary to address the new threats, without affecting in
the least the freedom of the seas. On the contrary, it preserves the freedom to use
the seas and makes that use safer for mankind.
Notes
1. Fernando Guarello Fitz-Henry.
2. Geoffrey Till, Seapower: A Guide for the Twenty-First Century (2004).
3. Id.
4. Alfred Thayer Mahan, The Influence of Sea Power Upon History 1660-1783, at
25(5thed. 1894).
5. Chairman's Statement, Tenth ASEAN Regional Forum, Annex D, ARF Statement on
Cooperation Against Piracy and Other Threats to Maritime Security, July 18, 2003, available at
http://www.dfat.gov.au/arf/statements/ 1 0_piracy.html.
6. John G. Morgan, Jr. & Charles W. Martoglio, The 1000-Ship Navy Global Maritime Net-
work, NAVAL INSTITUTE PROCEEDINGS, Nov. 2005, at 15, available at http://www.military.com/
forums/0, 1 5240,8 1 652,00.html.
7. Chilean Maritime Authority (Direccion General del Territorio Maritimo),
boletin estaditico maritimo 95 (2005).
8. For a listing of the conventions which Chile has signed and ratified, see MINISTER OF NA-
TIONAL DEFENSE, BOOK OF THE NATIONAL DEFENSE OF CHILE 47 (2002), available at http://
www.defensa.cl/libro_2002/ingles/index.htm [hereinafter CHILEAN DEFENSE WHITE BOOK],
9. Mat 52.
10. Id. at 46.
11. Ignacio Walker, Chilean Foreign Minister, Scenarios Facing Chile for the Bicentennial:
A Vision of State, Address at the Opening of the Academic Year, National Academy of Political
and Strategic Studies, Santiago, Chile, Apr. 1, 2005, available at http://www.anepe.cl/3_foro/
Conferencias/clasemag_walker.htm.
171
Threats Emanating from the Commons: A Chilean Approach
12. Jane Gilliland Dalton, The Chilean Mar Presencial: A Harmless Concept or a Dangerous
Precedent?, 8 The International Journal of Marine and Coastal Law 397, 409 (1993).
"Mar Presencial" and "Mar Presential" are two terms for the same concept.
13. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3, re-
printed in 21 INTERNATIONAL LEGAL MATERIALS 1261 [hereinafter 1982 LOS Convention]. The
convention was ratified by Chile in 1997.
14. Id., art. 94.6
15. See, e.g., 1982 LOS Convention, supra note 13, art. 218. In addition, the IMO has encour-
aged the establishment of regional port State control organizations. Chile is a member of both
the Vina del Mar (Latin America) and Tokyo (Asia and Pacific) regional Memorandums of Un-
derstanding.
16. The ISPS Code imposes new international regulations upon the shipping industry, in-
cluding, inter alia, requirements for security plans for "ships and port facilities." See The Interna-
tional Ship and Port Facility Security Code, http://www.imo.org/Newsroom/
mainframe.asp?topic_id=583&doc_id=2689#code (last visited Mar. 13, 2007).
17. Vijay Sakhuja, Looking Beyond International Ship and Port Facility Security (ISPS) Code,
South Asia Analysis Group, http://www.mima.gov.my/mima/htmls/mimarc/news/newsflash
_files/news-cut/aug05.htm (last visited Mar. 19, 2007).
18. 1982 LOS Convention, supra note 13, Parts V and XII.
19. International Convention Relating to Intervention on the High Seas in Cases of Oil Pol-
lution Casualties, Nov. 29, 1969, 26 U.S.T. 765.
20. International Convention on Maritime Search and Rescue, Apr. 27, 1979, 1405 U.N.T.S. 97.
21. In May 1990, Admiral Jorge Martinez Busch, commander-in-chief of the Chilean Navy,
speaking in Vina del Mar, Chile, said, "The great task of the present generation is the effective
utilization of our seas." Perhaps today's "great task" is to preserve the ability to effectively coun-
ter threats from and on the seas.
22. Chilean Defense White Book, supra note 8, at 24.
23. Chilean Maritime Authority (Direccion General del Territorio Maritimo), Chilean
Presential Sea and SAR Area of Responsibility, Presentation at the Chilean Naval War College
(2005).
24. Chilean Defense White Book, supra note 8, at 24.
25. Dalton, supra note 12, at 415.
26. Francisco Orrego Vicuna, "The Presential Sea": Defining Coastal States' Special Interests
in High Seas Fisheries and Other Activities, 35 GERMAN YEARBOOK OF INTERNATIONAL LAW 265
(1992).
27. Dalton, supra note 12, at 417, summarizing the views expressed in Satya Nandan, Pros-
pects for the Future: The UN and Peaceful Uses of the Oceans, 18 LAW OF THE SEA INSTITUTE PRO-
CEEDINGS 259, 261 (1985).
28. Dalton, supra note 12, at 417, summarizing Nandan, supra note 27, at 263.
29. Dalton, supra note 12, at 418.
30. For a discussion of Maritime Domain Awareness from a US perspective, see Joseph L.
Nimmich & Dana A. Goward, Maritime Domain Awareness: The Key to Maritime Security, which
is Chapter IV in this volume, at 58.
3 1 . Thomas H. Collins, Maritime Power for the Twenty-First Century, Luncheon Address at
the Sixteenth International Seapower Symposium, US Naval War College, Newport, Rhode Is-
land, Oct. 27, 2003.
32. Morgan & Martoglio, supra note 6, at 14.
33. Collins, supra note 31.
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Francisca Moller and Jorge Balaresque
34. Statement on Cooperation Against Piracy and Other Threats to Maritime Security, supra
note 5.
35. Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navi-
gation, Mar. 10, 1988, 1678 U.N.T.S. 201.
36. Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Lo-
cated on the Continental Shelf, Mar. 10, 1988, 1678 U.N.T.S. 304.
37. International Convention for the Safety of Life at Sea (SOLAS), 1974, http://www.imo.org/
Conventions/contents.asp?topic_id=257&doc_id=647 (last visited Mar. 19, 2006).
38. See supra text accompanying note 17.
39. Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the
Safety of Maritime Navigation, Oct. 14, 2005, IMO Doc. LEG/CONF. 15/21, available athttp://
www.austlii.edu.au//cgi-bin/disp.pl/au/other/dfat/treaties/notinforce/2005/30.html?query
=suppression%20of%20unlawful%20acts.
40. Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts Against the Safety
of Fixed Platforms Located on the Continental Shelf, Oct. 14, 2005, IMO Doc. LEG/CONF. 15/
22, available at http://bar.austlii.edu.au/au/other/dfat/treaties/notinforce/2005/31.html.
41. Tokyo Ministerial Conference on International Transport Security pays tribute to IMO
measures, IMO NEWS, Mar. 5, 2006, at 8, available at http://www.imo.org/includes/
blastDataOnly.asp/data_id%3D14397/IMONews 12006.pdf. Transport ministers from Austra-
lia, Canada, China, Germany, Indonesia, Republic of Korea, Russian Federation, Singapore,
United Kingdom and United States participated in the conference.
42. The forum was attended by delegations from Australia, Canada, Chile, China, Hong
Kong, Japan, Malaysia, New Zealand, Solomon Islands, Philippines, Korea, Singapore, United
States, Vanuatu and Vietnam.
43. Ninth Asia Pacific Heads of Maritime Safety Agencies Forum, Communique, available at
http://www.directemar.cl/apec/documents/ChileCommunique.pdf (last visited Mar. 19, 2007).
44. For a discussion of the CSI, see Ryan P. Stiles, The International Dimension of Homeland
Security, in INTERNATIONAL LAW CHALLENGES: HOMELAND SECURITY AND COMBATING TER-
RORISM 3, 11-12 (Thomas McK. Sparks 8c Glenn M.Sulmasyeds., 2006) (Vol. 81, US Naval War
College International Law Studies).
45. For a discussion of the PSI, see Stuart Kaye, The Proliferation Security Initiative in the
Maritime Domain, in id. at 141.
46. For a discussion of the RMSI, see Yann-huei Song, Security in the Strait of Malacca and
the Regional Maritime Security Initiative: Responses to the US Proposal, which is Chapter VII in
this volume, at 97.
47. Vijay Sakhuja, Securing Maritime Landscape in a Post-9/11 World (Jan. 31, 2005), http://
203.201.253. 16/cms/sites/orfonline/modules/strategictrend/StrategicTrendDetail.html?cmaid
= 1 903&mmacmaid= 1 904.
48. David Rosenberg, Dire Straits: Competing Security Priorities in the South China Sea (Apr.
13, 2005), http://www.zmag.org/content/showarticle.cfm?SectionID=17&ItemID=7632.
49. 1982 LOS Convention, supra note 13, art. 101.
50. James Henry Bergeron, Piracy and the Law, JANE'S NAVY INTERNATIONAL, May 1, 2006,
at 14.
51. 1982 LOS Convention, supra note 13, art. 110.
173
PART IV
PUBLIC PERCEPTION AND THE LAW
IX
Piercing the Fog:
National Security, Media and the Government
Harvey Rishikof *
Introduction
At the Naval War College's 2006 Global Legal Challenges conference, I sat as a
member of the Public Perceptions Under the Law panel. The panel was
charged with the following questions:
1 . How does the media shape public perceptions of the law? Does the media
generally shape such public perceptions in an accurate way? Does the
media understand the law well enough to accurately inform the public of
legal issues — and the related law — surrounding such issues? Does the
media have an obligation to understand — and then provide an accurate
recitation/analysis of — such law? Is there any responsibility on the part
of the government to "educate" the media concerning legal issues and
the law?
2. Do public perceptions of the law ever serve to help shape national policy
decisions? Should policy makers be attuned to the public's perception of
the law affecting a particular legal issue? Or, can policy makers effect
* Chair, Department of National Security Strategy and Professor of National Security Law,
National War College, Washington, D.C. The views expressed in this article are those of the
author and do not reflect the official policy or position of the National Defense University, the
National War College, the Department of Defense or the US Government.
Piercing the Fog: National Security, Media and the Government
decisions on the basis that the "national interests" concerns of the
American populace will often outweigh its concern as to whether certain
US actions are — or are not — lawful?
3. Is the general public generally well or ill informed on legal issues? Should
the government play an active role in "educating" the public on such
issues through the media? For example, should the government act to
correct an incorrect media analysis of the law affecting a current event?
Does the government itself have a responsibility to accurately reflect the
law? That is, to what extent should the government advocate a particular
analysis of a legal issue when there are clearly differing views of the
applicable law? Is the American public's view of/respect for the law affected
by its perception of its elected representatives' "respect" for such law?
4. What role do other "players" in the international community play in
shaping the public's view of the law, that is, the Arab, the Israeli, the
British, the Chinese, the Russian and Korean street? How?
5. What role should academia play in "educating" the public on the law?
Should academia see itself as a counterweight to any governmental
attempt to "shape" the public's perception of the law? Is this a
productive — or divisive — role that academia might play?
My article answers these provocative questions in four parts: The Media — Pro-
fession or Business?; Government and Media: Public Law Diplomacy — Facts and
Fictions; The International Community and the Public: The Image Struggle; and
The Academic Community — The Proper Role? My goal is to provide perspective
on the issues and raise some provocative points for future discussion and analysis.
The Media — Profession or Business?
The media is a critical shaper of public opinion about the law. But the definition of
media has evolved. In the modern era we have become inundated with law and me-
dia from general press publications, specialized press publications, general televi-
sion shows, Court TV, movie documentaries, "mockumentaries," Hollywood
movies, fiction thrillers, news magazine shows (e.g., Frontline), websites and, the
newest, the blogosphere. Since legal opinions on complicated subjects can easily be
50 to 100 pages in length, the logic of legal opinions are hard to summarize for the
general public. In the end, the final result of some cases is clear — guilty or not
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Harvey Rishikof
guilty, constitutional or not constitutional. Many other cases, however, are much
more subtle and deal with the nuances of congressional fact-finding and the defer-
ence owed to judicial review. These cases construe the inner workings of separation
of power, federalism and/or political power. Easy and facile summaries usually dis-
tort the meanings. Increasingly fact and fiction, entertainment and education
merge, and the lines between advocacy and information blend and blur.
In many cases involving the Supreme Court, there may be vigorous dissents and
multiple concurrences in the majority. Sorting out the holding or the center of
gravity of the logic of the analysis can be challenging. Television commentators are
usually given two or three minutes to explain the case. Print media has more space,
but, unless the case addresses a "high-profile" issue, there is immediate coverage
the day the opinion is handed down, and then little follow up editorial discussion.
Perhaps the Sunday papers will have a more in-depth analysis or the Sunday talk
shows will take up the issue. Although law reviews remain the serious vehicle for
the legal academic community, their style and format condemn them to the
rarified communities of law students and professors.
Occasionally a "news magazine show," e.g., 60 Minutes, will do an extended 20-
minute segment. These shows will help shape the "general" sense of the meaning of
the case or issue. Increasingly, websites and blog pages have become, by default, the
place of extended commentary, analysis and focus. But this, in the end, is a limited
conversation among a select group of the "legal elite chattering class."
What is the media's obligation or responsibility? To my mind, this is a tricky
question. As a first proposition, and at the risk of being overly controversial, let us
conceive of the media as a business, not a profession. Reporters, journalists and
producers work for corporations that need to sell their products. Print media is
under severe attack by the new emerging technologies. Print reporters for national
papers, magazines, blogs and journals have gained personal reputations and fol-
lowings. Some media or commentators claim to be "neutral" in their reporting
and analysis; others clearly reflect a bias or viewpoint and write with a "spin," e.g.,
"Activist liberal judges are rewriting the Constitution and should be impeached."
Particular commentators stand out and have become "opinion makers." Their as-
sessments carry weight, and often in conversation one notes the dialogue: "Did you
see X's (column, commentary or blog)? Do you agree?" Their influence turns on
a number of factors — quality of analysis, accuracy in reporting, position in the
media, insightfulness and clever commentary. The marketplace determines their in-
fluence; some markets prefer reinforcement, others accuracy and some satire, e.g.,
The Daily Show.
Rather than a "profession," however, the media are more akin to skilled arti-
sans, writers and performers commenting on the law and legal events, giving
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Piercing the Fog: National Security, Media and the Government
perspectives and views. Although there is some distinction between the "op-ed"
section and "news" sections of the media, increasingly the market place is eroding
what once was an arguable separation. The obligation of the media is to "inform."
There is no constitutional or statutory requirement for "accuracy or analysis." Re-
porters are not sanctioned or regulated by the State and are not disbarred from the
profession — no one can arrest them for practicing without a license. In fact, the
First Amendment protects the media/press function from the preying regulatory
interests of Congress:
Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the government for a redress of
grievances.
Both rumor and fact are protected by the speech and press clauses. Lawyers and
doctors have no such protection — imagine if they did? Albeit there are libel suits,
but for public figures the bar is high. The concept of "if it bleeds, it leads" is alive
and well in the United States. Moreover, US news and commentary crowds out
news from other parts of the world.
War correspondents have a particular challenge. Reporting the truth may dam-
age the war effort. Revealing military mistakes undermines confidence in the over-
all ability of US forces. Yet once embedded with the troops, the identification with
the effort and the fact that the troops are protecting the reporter has to have an ef-
fect. Giving the "soda straw" perspective is powerful, immediate and visceral, but is
it relevant to the grand campaign? Finally, a hard professional question for the US
media is the following hypothetical. Imagine a situation whereby Osama bin Laden
contacts a US reporter and offers an exclusive interview to tell his side of the story
in a third country location — not in the United States or in Iraq. Would a US re-
porter contact the military to tell of the offer? Would the US reporter agree to have
a "global positioning" chip embedded in or on his person? Would a foreign jour-
nalist, offered the same opportunity, make the same choices as the US journalist?
Are US reporters reporters, US nationals or professionals?
Government and Media: Public Law Diplomacy — Facts and Fictions
Faced with a media that is a business and a First Amendment that protects the in-
forming function, broadly defined, how should a government respond? What is
the government's role in the public perception of the law? Should the government
play an active role in "educating" the public on such issues through the media? For
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example, should the government act to correct an incorrect media analysis of the
law affecting a current event? What is the appropriate role for the government in
responding to the shaping of the legal message for the public?
First, the concept of government must be defined. Our government is com-
posed of the executive, legislative and judicial branches. Historically, the federal ju-
dicial branch has not involved itself in public information or public diplomacy
campaigns. State judges, some of whom compete for public office, have been more
"active" in explaining themselves during election periods. US federal judges, how-
ever, have been unique in the restraint they have shown as controversy mounts
about the role of federal judges or the interpretation of an opinion. Although
judges have written books, articles and law reviews, they rarely consent to be inter-
viewed and refuse to comment on current cases. Often is heard the refrain, "The
case speaks for itself." This is not true in all legal jurisdictions. In Canada, for exam-
ple, the Administrative Assistant to the Chief Justice will hold press conferences to
explain the meaning of a case recently handed down. This would be unprecedented
in the US federal system.
Judicial independence is protected by bar associations, nongovernmental orga-
nizations, think tanks and law schools speaking on behalf of the judiciary. In fact,
attacking judges' independence has been a recurring historical phenomenon in the
United States and public opinion heretofore has been mobilized to prevent other
parts of the government from disciplining the courts. The defeat of the proposed
Franklin Delano Roosevelt "court packing" plan in the 1930s resulted in even more
independence being granted to the judiciary.1 Prior to the failed plan, the judiciary
submitted its budget through the Department of Justice and the Attorney General
of the United States. Once the plan was defeated, Congress passed legislation so
that the judiciary submits its budget independently and directly to Congress
through the Office of Management and Budget.
This leaves the executive and the legislative branches. It is often the case that the
government is divided, with one party controlling the presidency and the other
controlling one or both houses. The legislature, with its power to hold public hear-
ings, can address judicial opinions directly with extensive deliberations. Scores of
witnesses — experts, pundits and academics — can be called to testify even under
oath and render their opinions about critical legal issues. A legislative record is cre-
ated, and these proceedings are covered by the media and commentated upon. Vir-
tual media frenzies can be created with daily interviews, stories and gavel-to-gavel
coverage of high-interest committee hearings.
Senators and members of the House of Representatives have enormous power
to shape the public debate through this process. The legislature can fill the public
space with interviews, studies and research papers and conduct behind-the-scenes
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Piercing the Fog: National Security, Media and the Government
lobbying and negotiating with the executive branch. In fact, members of the execu-
tive branch can be subpoenaed and forced to testify about events, positions and
views. Although the President can invoke executive privilege, the Congress, public
and media carefully scrutinize such tactics.
The executive has an enormous array of tools at its disposal to "spin" legal issues
and positions taken by the President. It is now a well-established Sunday morning
ritual to have the President's men and women fan out across the talk shows with
the same song sheet and present the White House position. The President's press
conferences and ability to address the nation from the Oval Office, to "go directly"
to the people over the heads of the media, is a powerful tool to influence the debate
on legal policy issues. Pronouncements on legal issues by the President carry signif-
icant weight since it is assumed the leading legal minds of the administration have
researched those issues and support the positions being taken.
Recently the prosecution of "leaks" of even high-ranking government officials
and the subpoenaing of reporters by US attorneys for the identity of sources have
demonstrated a new weapon by the executive to control the flow of information.
The revelation by syndicated columnist Robert Novak of Valerie Plame Wilson as
an undercover CIA officer, and the subsequent investigation by the US Attorney
for the Northern District of Illinois, Patrick J. Fitzgerald, involving I. Lewis
"Scooter" Libby, Vice President Dick Cheney's former chief of staff and national
security adviser, and the holding of Judith Miller of the New York Times for con-
tempt in not revealing her source is clear evidence of the executive's power to shape
the terrain for the flow of information.
Moreover, the prosecution of the American Israel Public Affairs Committee's
(AIPAC) director of foreign policy, Steve Rosen, and an Iran specialist, Keith
Weissman, in addition to Lawrence Franklin, an Iran analyst at the Department of
Defense (DoD), will be the first time the federal government has charged two pri-
vate citizens with leaking State secrets. According to the indictment, Rosen and
Weissman repeatedly sought and received sensitive information, both classified
and unclassified, and then passed it on to others in order to advance their policy
agenda. In the case, it is alleged that Rosen and Weissman received the information
from a DoD official, Franklin, who wanted the information passed on to other offi-
cials. For some legal experts, the prosecution threatens political and press freedom
by making the flow of information and ideas a crime. Federal prosecutors are using
the Espionage Act for the first time against Americans who are not government of-
ficials, do not have security clearances and, by all indications, are not a part of a for-
eign spy operation. The prosecution of the strategic leak whereby one part of the
executive charges another part of the executive raises the question of who is using
whom in the process of shaping opinion.
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The press and the legal communities are carefully watching these cases to see
how the courts will strike the balance between leaks, information flow, national se-
curity, the First Amendment and the right to know. The resolution will help shape
the debate for the future.
The International Community and the Public: The Image Struggle
What role do other "players" in the international community have in shaping the
public's view of the law — that is, the Arab, the Israeli, the British, the Chinese, the
Russian and Korean street? The issue of the public is best understood in the context
of public diplomacy to include the several publics involved, for example, in the
War on Terrorism (US, European, Afghani, Iraqi, other Middle Eastern). Since 9/
11, the US public's approval rating for the Iraqi conflict has steadily trended down-
ward from 90% to about 40%. The world media are central to shaping public per-
ceptions, but the expectation that the media will simply be "fair" is misplaced. How
much the US public is affected by foreign press is unclear. Aljazeera loops pictures
of noncombatant Palestinians being killed by Israeli forces and then cuts to US
forces in Iraq and noncombatant Iraqi corpses. The number of Iraqi dead is still
not fully reported in the US media, but the world community opposed to the war
focuses on the civilian casualties. The world media approaches the subject with its
own views and that is the way it is and should be.
Covering the war by leaving Baghdad's Green Zone is a dangerous enterprise.
According to Reporters Without Borders, the war in Iraq has proved to be the dead-
liest for journalists since World War II. As of November 2006, a total of 135 jour-
nalists and media assistants have been killed in Iraq since the war began on March
20, 2003. This is more than the number killed during 20 years of war in Vietnam or
the civil war in Algeria. Iraq is also one of the world's biggest marketplaces for hos-
tages, with 38 journalists kidnapped in three years. Five of them were executed.
Three are still being held by their abductors. Around 63 journalists were killed in
Vietnam during the 20 years from 1955 to 1975. A total of 49 media professionals
were killed in the course of their work during the war in the former Yugoslavia
from 1991 to 1995. During the civil war in Algeria from 1993 to 1996, 77 journalists
and media assistants were killed.2
One can have only admiration and deep respect for those reporters and com-
mentators willing to sacrifice their lives to tell the story of Iraq. Informing the pub-
lic accurately on legal issues emanating from the conflict is even more problematic,
especially given the growing gap between US and European views on relevant in-
ternational law questions. The gap is largely a topic of conversation among elites,
however, and the participation of the media and the public is not central. The 2006
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Piercing the Fog: National Security, Media and the Government
US election demonstrates, however, that the status of the war affected the Ameri-
can people and coverage and commentary was critical.
But there are critical cultural differences between the United States and the
world. Europe, for example, believes that the death penalty is a violation of human
rights while the United States and the Supreme Court hold that the death penalty is
part of US culture and heritage. In this sense, "soft power," as understood by Jo-
seph Nye,3 is not effective if the message runs counter to world opinion.
Legal commentators are a new, vibrant phenomenon; they and other shapers of
public perceptions are delivering information very rapidly and in ever-new ways
technologically. Commentators on the blogosphere now have tremendous power,
as do the dominant images that ultimately become adopted as emblems of a con-
flict in the public consciousness. Which picture will be the iconic emblem of the
war — the statue of Saddam Hussein coming down? Or the hooded detainee from
Abu Ghraib? Or the pictures of the long lines of a free and democratic Iraq voting?
For Vietnam, the pictures of Saigon police chief Nguyen Ngoc Loan's raised pis-
tol to the temple of a suspect and of the young girl, Kim Phuc, who ran naked from
the napalm attack on her village became the public's images of the war frozen in the
minds of the US population.
These pictures of Vietnam captured what appeared to be violations of interna-
tional law, and became metaphors, right or wrong, for the war. Reality may be very
different from the image or perception. Recently, Dominic Johnson and Dominic
Tierney have argued that the Tet offensive of January 1968 was actually an unmiti-
gated disaster for the communists (no targets were held and approximately 40,000
Vietcong were killed), but the attack was viewed as a defeat for the United States
due to the previous overblown expectations of public opinion that victory was near
following President Johnson's expansive rhetoric before the offensive, the fact the
US embassy was placed under direct fire, and the way the media portrayed the of-
fensive and the Vietcong resurgence.4 The fog of battle can cloud press coverage
and portrayal. As has often been noted, truth is the first casualty of war. Perception
is critical. When the stakes are high, however, and pictures and facts of casualties
contradict the government's portrayal of reality, the public's mood can swing dra-
matically, particularly in election season.
The Academic Community — The Proper Role?
What role should academia play in educating the public on the law? Should aca-
demia see itself as a counterweight to any governmental attempt to shape the pub-
lic's perception of the law? Is this a productive — or divisive — role that academia
might play?
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The academic role in educating the public is often equivocal: the academic
search for long-term truths and guiding principles does not often yield informa-
tion that readily impacts public perceptions. Increasingly, academics are flooding
the airwaves, blogs and documentaries, and giving on-the-spot commentary. The
O.J. Simpson trial began a trend that has continued in force. From the perspective
of John Stuart Mill, this is all good — the more speech in a democracy the better. Let
the marketplace of ideas sort out the cacophony of voices. Often the same "usual
suspects" show up for the pithy quote in the article by the well-known journalist or
commentator. (I must confess to pleading guilty on this charge.) Other academics
have chosen to start their own blogs where they keep a running commentary on the
legal issues that fall under their expertise. It is only a question of time before the Su-
preme Court cites a blog as a source of authority for an opinion.
Independence and tenure give academia a special voice in the legal debates.
When the legal community uniformly disagrees with the government's position, it
has an impact on the public's sense of propriety. How much impact is unclear.
Moreover, the most significant question is what effect the community has on the
court deciding the issues. Are judges or justices swayed by amicus briefs from re-
spected members of the legal community overwhelmingly agreeing on a position?
More often than not, the community will be divided, with respected voices on both
sides of the "vs." The judge's own independence is the final arbiter, not the aca-
demic community. The academic community acts more like a searchlight illumi-
nating the different paths. The court must choose the route, and then be held
responsible.
Conclusion
So where does this leave the debate of national security, media and the govern-
ment? Piercing the fog of confusion is never an easy task. Essential to our democ-
racy is open debate. Our cacophony, like our democracy, is the best approach given
the alternatives. Unlike the United Kingdom, the United States has no Official Se-
crets Act,5 although the combination of the Title 18 provisions criminalizing fraud
and related activity in connection with computers6 and the State-secrets privilege,
tied to prosecutions under the Espionage Act,7 brings such a regime closer. Faced
with such a threat, some have called for a federal shield law for reporters and Sena-
tors Richard Lugar, Arlen Specter, Christopher Dodd and Charles Schumer spon-
sored the Free Flow of Information Act of 2006. 8
Until such time when such a United Kingdom approach takes hold, our system
remains one of no prior restraints, few media regulations (e.g., the Federal Com-
munication Commission), private law suits for defamation, a private multi-faceted
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Piercing the Fog: National Security, Media and the Government
media, an independent legal system, unregulated new worldwide technologies of
communication, a ship of State that "leaks" from the top and a literate audience.
True, it is an audience more interested in Monday Night Football, Judge Judy, The
Daily Show, and Dancing with the Stars, but it is an audience that has the right and
the ability to engage and become involved if it so chooses. We call it, in short, free-
dom of the press. Warts and all, the best remedy is more commentary, to para-
phrase John Stuart Mill.
Notes
1. FDR allegedly presented the Judiciary Reorganization Bill of 1937 to relieve the work-
load of elderly judges. The bill would have allowed FDR to appoint one judge for each sitting
judge over age 70 and six months with at least ten years of experience. FDR could have appointed
six more Supreme Court justices immediately, increasing the size of the court to 15 members. A
Congress dominated by Democrats would have been expected to appoint judges friendly to FDR
and his New Deal agenda. The measure was opposed by senior leaders of the Democratic party
and defeated. Controversy still surrounds the reason why Supreme Court Justice Owen Roberts
changed his vote, prior to the bill's defeat in Congress, on a minimum wage law, but his vote be-
came known as "the switch in time that saved nine."
2. This information is compiled from the Reporters Without Borders website. See http://
www.rsf.org/special_iraq_en.php3 and http://www.rsf.org/article. php3?id_article= 16793 (both
last visited Dec. 27, 2006). The numbers of journalists and media killed in Iraq are continually
increasing. For example, by December that figure had risen from 135 in November to 139.
3. See, e.g., JOSEPH S. NYE, JR., SOFT POWER: THE MEANS TO SUCCESS IN WORLD POLITICS
(2004).
4. See Dominic Johnson & Dominic Tierney, The Wars of Perception, NEW YORK TIMES,
Nov. 28, 2006, at A23.
5. Official Secrets Act, 1989.
6. 18 US Code sec. 1030 (2000).
7. Public Law No. 65-24, 40 Statutes at Large 217 (1917).
8. S. 2831, 109th Congress (2006).
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X
The Military and the Media in Perspective:
Finding the Necessary Balance
James P. Terry*
In reviewing the recent events in Iraq and the War on Terrorism vis-a-vis the
media, the one obvious question asked by all Americans today, including those
in military service, is who do the media represent. Do they represent the voice of
the American people, or do they represent a defined elite concerned with a change
in the political landscape in the United States?
Recent Background to Current Contentiousness
Two recent incidents, I believe, are indicative of the current unease between the
military and the media and force us to reflect on who and what the media repre-
sents in their reporting on military activities. In early 2005, Newsweek, owned by
the Washington Post Company, published a story by Michael Ishikoff claiming
that a copy of the Koran had been flushed down a toilet by an American interroga-
tor at Guantanamo, Cuba, in front of Muslim interviewees. When evidence was
produced that showed it to be false, Newsweek belatedly retracted the story but only
after much damage to the US military's image occurred in those countries with
whom we must cooperate in the War on Terrorism.1 More importantly, the rioting
that followed resulted in 16 deaths in Afghanistan and elsewhere. Newsweek,
* Colonel, United States Marine Corps (Ret.).
The Military and the Media in Perspective: Finding the Necessary Balance
moreover, wanted no part of the White House's request that it help repair the dam-
age. And, unfortunately, no journalist from any major news organization wrote
that they should.
The current reporting of the Haditha story also bears mentioning. The rush to
judgment of the Marines involved by the US media without waiting until the facts
are determined has been viewed by many as simply reflective of the media's ten-
dency to believe the worst. More significantly, the fact that the incident was re-
ported immediately to superiors by the Marines involved, that those in command
were made aware of the civilian deaths contemporaneous with the incident, and
that the squad involved has consistently claimed that they followed their rules of
engagement in clearing the buildings from which they took fire, have all been con-
veniently overlooked by the mainstream media in their reporting. More impor-
tantly, there has been no investigative reporting on standard procedures for
clearing buildings from which fire is taken and no interest in reporting the context
in which these deaths occurred.
What is most difficult to understand is why the press, most of whom have not
served in the military, so often chooses to believe foreign sources proven incorrect
in the past, and disregard the voices of fellow Americans who are daily placing
themselves in harm's way for our nation's foreign interests. Military lawyers also
ask why the press ignores the basic legal principles that apply in irregular
belligerencies where unlawful combatants are engaged with national forces — in
this case coalition forces and forces of the new Iraqi government. We must also ask
why there is such a bent to discredit and criticize US efforts rather than understand
the rationale behind coalition actions aimed at ensuring we can "stay the course" in
Iraq and the reasons for the immediate actions in support thereof.
With that said, our charge must be to assess the relationship between the media
and the military as it relates to an understanding and articulation of the legal pa-
rameters of the current conflict in Iraq as covered by the press — that is, Operation
Iraqi Freedom. Our goal should be to increase mutual understanding at both the
personal and institutional levels of what the legal regime actually represents with
respect to the military's operational requirements in the War on Terrorism and the
legal framework under which the current conflict is being pursued. One would
hope that the effort here today can help lead to practical solutions to areas of friction
in communication between the two. Finally, our ultimate quest must be how can
we maintain a vibrant, robust freedom of expression while protecting the nation's
capacity to fight our wars effectively.
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James P. Terry
The Legal Principles Underlying Irregular Belligerencies:
Often Ignored in the Reporting on Iraq
The Nature of the Current Violence
As discussed below in detail, the media's use of the now firmly ingrained term, "in-
surgents," or "insurgency," is both factually and legally incorrect and reflects the
media's misunderstanding of the conflict.
The Global War on Terrorism was clearly not contemplated when the four
Geneva Conventions, addressing wars between national entities, were signed in
1949.2 The violence in Iraq currently perpetrated by al Qaeda and elements of the
former regime is being spearheaded by individuals under no known national au-
thority, with no command structure that enforces the laws and customs of warfare,
and with no recognizable, distinguishing military insignia. More importantly, they
represent no identifiable national minority in Iraq. Their attacks have injured and
killed civilians of all ethnic groups, as well as more than 2,500 US military person-
nel attempting to assist the democratic government in Baghdad to succeed. Their
use of children and women as lookouts and information gatherers is reminiscent of
Vietnam and raises serious questions about the status of those individuals when
acting on behalf of terrorist fighters in Iraq. The fact that this status is seldom, if
ever, acknowledged by the press raises serious concerns for the military in their ef-
forts to assure the public of our adherence to the law of war.
It is important to understand that terrorist violence provides no legal gloss for
its perpetrators. The critical international law principles applicable to the violence
in Iraq are found in the 1949 Geneva Conventions in Common Article 33 relating
to internal armed conflicts and the principles enunciated in the two Additional
Protocols to these Conventions negotiated in 1977.4 The minimal protections af-
forded by Common Article 3, for example, include prohibitions on inhumane
treatment of noncombatants, including members of the armed forces who have
laid down their arms. Specifically forbidden are "murder of all kinds, mutilation,
cruel treatment and torture; taking of hostages; outrages upon personal dignity, in
particular, humiliating and degrading treatment," and extrajudicial executions.
Provision must also be made for collecting and caring for the sick and wounded.
The 1977 Geneva Protocols had their roots in wars of national liberation follow-
ing World War II. Colonial powers, to include the United States, France, Great
Britain, and the Netherlands, had engaged these liberation movements militarily,
often with little regard for the law of armed conflict. In the 1974 conference
hosted by the Swiss government in Geneva, the need to regulate conflicts of a
non-international character was addressed in Article 96(3) of Additional Protocol I
and is the subject of Additional Protocol II. At the conference, the Swiss
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The Military and the Media in Perspective: Finding the Necessary Balance
Government invited members of national liberation organizations to participate,
but not vote.
The participation of non-State actors helped shape the drafting of Article 96,
paragraph 3 of Additional Protocol I. This section provides that a party to a conflict
with a State army can unilaterally declare it wants the 1949 Geneva Conventions
and the 1977 Protocols to apply. This would, of course, offer greater protection for
members of national liberation movements. Under Article 96, however, parties
authorized to make such a declaration had to establish that they were involved
in "armed conflicts in which people are fighting against colonial domination
and alien occupation and against racist regimes in the exercise of their right of
self-determination."5 In Iraq, however, terrorists are trying to unseat the govern-
ment that has been overwhelmingly approved by the people. Moreover, al Qaeda
has made no statement that it desires the Geneva Conventions to apply.
These terrorists, or unlawful combatants, however described, have no juridical
existence other than as common criminals. Additional Protocol I, Article I con-
flicts, or those between a nation and a recognized insurgency seeking a legal status,
differ from the present terrorist violence in that participants in Article I conflicts
opposing government forces are required to meet certain minimum requirements.
These are: ( 1 ) that they operate under responsible command and are subject to in-
ternal military discipline; (2) that they carry their arms openly; and (3) that they
otherwise distinguish themselves clearly from the civilian population.6 In return
they are accorded certain protections when captured. It is doubtful that those per-
petuating violence in Iraq today meet these criteria for the status of insurgent.
Moreover, they are exploiting every ethnic group for their own vicious ends, with-
out regard for these requirements.
The fact that these terrorists have no recognized and protected status under the
Geneva Conventions or their Protocols, and employ methods completely banned
by the laws of armed conflict, is likewise seldom articulated by mainstream report-
ers. In addition, al Qaeda's failure to adhere to the most basic tenets of interna-
tional law on the battlefield is never addressed. What is addressed is every claimed
violation of the law by American service members, often responding to acts of sav-
agery by Muslim extremists claiming to act on behalf of Allah, not on behalf of a
national or sub-national entity. The fact that these claimed violations of the law of
war by Americans are often subsequently found to be without substance seems to
never appear in print.
The Status of the Al Qaeda and Other Anti-Government Participants
While the press today insists on calling these terrorists "insurgents" the fact that
they are the basest of criminals, and not insurgents with minimal juridical status
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James P. Terry
under Article I, Protocol I, as discussed above, is never recited. The fact that they do
not represent even a significant minority of the Sunnis, Shiites or Kurds is never ex-
plained. (We know this because 70% from all sectors voted in the December 2005
elections for a democratic government.) And there is never a call in the press for the
Iraqi people to stand up and denounce these perpetrators of violence who are even
now sucking the lifeblood from the fledgling Iraqi Government.
The law of armed conflict is based largely on the distinction between combat-
ants and noncombatants. Unfortunately, in Iraq, the clear distinction normally
witnessed in conflict (i.e., belligerents on the one hand and the civilian populace on
the other) is significantly blurred. Nor are all elements that are perpetuating the vi-
olence today working toward the same ends. Baathist operatives within the Sunni
elite who were formerly within Saddam's inner circle are trying to prevent the
fledgling democracy from succeeding. The al Qaeda leadership is focused on driv-
ing the Western influences from Iraq and it is likewise targeting any supporters of
the current coalition effort to help the new Iraqi government sustain democracy.
Certain members of the Shiite leadership have used the turmoil as an opportunity
to settle scores while at the same time refusing to commit completely to the new re-
gime until it is determined that it can succeed. Shiite religious leaders like Sistani
are remaining silent. The Kurds have opted to remain on the sidelines in the north
and take a wait and see approach while at the same time ostensibly supporting the
new regime. Then there are the local rivalries, and in Iraq, all politics are local. I saw
that in Fallujah in late 2004 and in early 2005 when I was there on behalf of the Sec-
retary of State.
The point is that the Marines under scrutiny at Haditha responded to attack in a
very complex environment. The key question had to be whether they followed the
legally scrubbed rules of engagement and, equally important, whether the rules of
engagement followed, if in fact they were followed, actually applied to the facts on
the ground as they presented themselves to the Marines involved. Major General
Bargewell, the investigating officer, is now carefully examining these questions on
behalf of the Secretary of Defense.
These cross currents, and the fact that our Marines and Army forces are dealing
with a period of carefully orchestrated violence, need to be more accurately por-
trayed by the media. The fact that individuals, including women and children, who
participate actively and directly in support of combat activities (such as providing
combat intelligence, physically shielding combatants, etc.) themselves become
combatants and are legitimate targets of attack, needs to be explained. That is why
it is so critical that reporting on events such as the Haditha killings receive careful
review and careful attention.
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The Military and the Media in Perspective: Finding the Necessary Balance
Finding the Appropriate Military-Media Relationship
We must ask then, what is the appropriate balance in reporting in the current
struggle in Iraq? How can the media report events in a more accurate way? What
can the military do to provide the legal insights necessary for the media to fully un-
derstand the operational legal issues that have and will arise? There is no question
that public perceptions of the law and, more specifically, perceived violations of the
law shape national policy decisions. This was never more true than in Vietnam,
where the My Lai murders helped to sour the Vietnamese public on our continued
presence there, and the US public on our continued participation in that conflict.
In the present conflict in Iraq, the allegations concerning the alleged murders at
Haditha and other similar incidents are even now shaping national policy deci-
sions. It was no accident that when President Bush visited Baghdad on June 13,
2006 he met with the new Iraqi Prime Minister and expressed support for contin-
ued US presence on the one hand, while urging the Iraqis to move quickly to train
their own forces and to take the lead in their own defense.
There is also no question that the climate under which the military and the me-
dia operate has intensified since September 1 1, 2001. A 2005 Gallup Poll found that
large majorities of both the military respondents and the public believe that news
stories about the military tend to be too negative.7 Members of all three groups,
military, media and the public, however, believe that embedding the media within
the operational forces enhances the public's understanding of the war, helps the
morale of the troops, improves the public's perception of the military and im-
proves the credibility of the media coverage. It is the understanding which flows
from embedding, not mere information, which makes the difference between fair
coverage and something less.
The Practical Effects of Embedding
It was during the Bosnian peacekeeping operation in 1995 that reporters were first
authorized and assigned to accompany US forces as part of an authorized compre-
hensive program. This was short-lived, however, as a sensitive conversation be-
tween a commander and his men concerning racist attitudes of one of the Balkan
parties to the conflict was reported by a Wall Street Journal reporter (Tom Ricks).
The program was robustly adopted, however, by US military commanders in Op-
eration Iraqi Freedom in 2003. The more than 600 reporters who were approved
for the program received a week-long "boot camp" of sorts aboard ship and at sites
such as Marine Corps Base Quantico, Virginia; Fort Dix, New Jersey; and facilities
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James P. Terry
in Kuwait.8 New York Times journalist Andrew Jacobs found it to be "alternatively
enlightening, entertaining, horrifying, and physically exhausting."9
While nearly all reporters involved in the program during Operation Iraqi Free-
dom believed it gave them a greater feel for the war and a better understanding of
the military as a result of their training and experience, there were concerns by
publishers that negative stories by embedded reporters never caught the public's
attention. These included stories of failed supply planning, civilian casualties, frat-
ricide and theft. I believe that this lack of traction for negative stories can be largely
attributed to the overwhelming success of the initial campaign and the belief on the
part of most Americans that the coalition force had done a remarkable job, despite
the reported negative events.
While the embedding program was not institutionalized during Vietnam and
earlier, one only has to recall the excellent reporting of Ernie Pyle in the Pacific dur-
ing World War II to understand that the embedding of individual reporters has a
long and proud history. In Vietnam, Joe Galloway, who subsequently wrote We
Were Soldiers Once, with Major General Hal Moore, spent 25 years traveling "up
close and personal" with military units — primarily Marine and Army infantry
commands. It was his reporting in the la Drang Valley (pronounced Na Trang) in
November 1965 with an Army Battalion of the 1st Cavalry Division facing over-
whelming odds which catapulted him onto the world stage. Galloway described his
feelings on his reporting this way:
There, in the mud, is where war is most visible and easiest understood. There no one
will lie to you; no one will try to put a spin on the truth. Those for whom death waits
around the next bend or across the next rice paddy have no time and little taste for the
games that are played with such relish in the rear. No one ever lied to me within the
sounds of the guns.10
The commitment by the media to embedding their reporters in Iraq has now
waned. While at one time several hundred reporters were assigned to operating
units, today that number stands at no more than 25. More than 40 media person-
nel, to include reporters, cameramen and assistants, have perished in attacks dur-
ing the War on Terror. When a newsperson is attacked, as has happened recently in
the case of Bob Woodruff and others, the story becomes their injuries and their
prognosis and not that of the American servicemen who may have died in service
to his or her nation while providing them protection. That aspect of the military-
media relationship and the related reporting has not been ignored by the American
people.
What marked the initial success of the embedding process, in my view, was the
fact that the additional experience and training provided these reporters enabled
193
The Military and the Media in Perspective: Finding the Necessary Balance
them to turn the situation into an educational opportunity for their audience.
Through their understanding of the events in the context of the operational re-
quirements of the conflict, they were less likely to resort to quick criticism, "got-
cha" reporting and wildly negative predictions. As Navy Commander Brendon
McClane has suggested in an excellent recent article in Parameters magazine, the
next step should be to bring trusted reporters into the operations center to gain a
needed context for their stories.11 While this would have to be carefully tailored de-
pending on the conflict and the sensitivity of the information, one can reasonably
conclude that reporters like Rick Atkinson, Major Garrett and Ted Koppel, with a
long history of trust by commanders, would be likely first candidates.
Access to the operations center would also give access to an understanding of
the rules of engagement approved for and employed by the force involved. Rules of
engagement, although highly classified, nevertheless provide the legal and opera-
tional roadmap for our military's response to attack, both geographically and with
regard to weapons systems and procedures. The understanding of these approved
operational procedures, which are trained to by our forces, would preclude un-
founded claims of violations, because these rules are drafted after careful review of
the legal restrictions applicable and after a careful review of the combatant status of
individuals engaged. When a civilian woman or child is acting as a combatant, the
fact that the individual no longer enjoys civilian protections should be understood
by every journalist reporting the story, even if that fact is personally distasteful.
When a civilian family is harboring a terrorist in their house who is firing on US
troops serving in Iraq and representing the interests of the democratically elected
government, as is alleged to have happened at Haditha, the reporters need to know
that the home is no longer a protected place but has become a safe haven for the en-
emy. These are the basics, but they often seem not to be within the lexicon used by
the fourth estate.
When we have reporters who understand the law, have good judgment and have
integrity, their reporting tends to be clear, more accurate and in context. When
they do not exhibit these traits, their reporting can be misleading and worse, it
tends to frustrate the military and, as we witnessed after Vietnam, preclude an ef-
fective dialogue in future military engagements.
Notes
1. See Howard Kurtz, Media vs. the Military, WASHINGTONPOST.COM, May 23, 2005, http://
www. findarticles.eom/p/articles/mi_mONTQ/is_2005_May_23/ai_nl 38 10 168 for an insightful
discussion of how this unfounded report and the similar inaccurate reporting by Dan Rather on
60 Minutes Wednesday in late 2004 concerning President Bush's Air National Guard service have
soured many Americans on the credibility of the press with respect to military reporting.
194
James P. Terry
2. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 31 [Geneva Convention I]; Convention for the
Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at
Sea, Aug. 12, 1949, 75 U.N.T.S. 85 [Geneva Convention II]; Convention Relative to the Treat-
ment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135 [Geneva Convention III]; and Con-
vention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S.
287 [Geneva Convention IV], all reprinted in DOCUMENTS ON THE LAWS OF WAR (Adam Rob-
erts & Richard Guelff eds., 3d ed. 2000), at 197, 222, 244 and 301, respectively.
3. The text of Common Article 3 may be found in id. at 198.
4. Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S.
3, and Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, re-
printed in id. at 422 and 483, respectively.
5. See discussion in Waldmar Solf & Edward Cummings, A Survey of Penal Sanctions Under
Protocol I to the Geneva Conventions of August 12, 1949, CASE WESTERN RESERVE UNIVERSITY
Journal Of International Law, Spring 1977, at 205.
6. DOCUMENTS ON THE LAWS OF WAR, supra note 2, at 423. Article 1(2) of Protocol I states
that "civilians and combatants remain under the protection and authority of the principles of in-
ternational law derived from established custom, from the principles of humanity and from the
dictates of public conscience." Id.
7. The Gallup Poll conducted in 2005 showed a comparison of public perceptions and the
changes that have occurred in the military- media relationship since a similar poll was conducted
in 1999. The complete Gallup Poll results can be found at http://www.mccormicktribune.org/
journalism/militarymedia2005.pdf#search=%22site%3Awww.mccormicktribune.org%22 (last
visited Aug. 24, 2005).
8. See Mark Mazzetti, Dispatches from Media Boot Camp, SLATE, Nov. 18, 2002, http://
www.slate.com/id/2073993/entry/2074127/ (with the Navy); Mark Mazzetti, Dispatches from
Media Boot Camp, SLATE, Nov. 20, 2002, http://www.slate.com/id/2073993/entry/2074330/
(with the Marines).
9. Andrew Jacobs, My Week at Embed Boot Camp, NEW YORK TIMES SUNDAY MAGAZINE,
Feb. 3, 2003, at 34-35.
10. Joseph Galloway, The Military and the Media: One Man's Experience, Address De-
livered at the US Army War College (2001), recounting experiences from la Drang Valley in
Vietnam (on file with author).
11. See Brendon McClane, Reporting from the Sandstorm: An Appraisal of Embedding, PA-
RAMETERS, Spring 2004, at 77.
195
XI
National Security, the Law and the Media:
Shaping Public Perceptions
Linda Robinson*
The American news media play a significant role in shaping public percep-
tions of national security policies and their legality, and therefore have a
great responsibility to carry out their function with the highest possible degree of
professionalism. Since the September 11, 2001 terrorist attacks, many complex and
sensitive issues involving national security and the law have arisen, which have in-
creased the challenge for the news media to perform its role with diligence and ac-
curacy. Some of the cases reflect inherent tensions between principles of civil
liberties, privacy rights, due process and national security; for example when pub-
lic disclosure and debate can conflict with national security imperatives that may
require secrecy for success of a policy that aims to protect citizens. A given policy's
legality may be called into question, or there may be no settled law or legal interpre-
tation governing that policy. While media coverage of national security policies
can provoke controversy, it can also result in legislative, judicial or executive action
to clarify legal gray areas. This has been the case with detention and interrogation
policies for those captured in Iraq, Afghanistan, and in connection with the war on
terrorism. In some cases, the media is alleged to mislead the public with distorted,
partial or erroneous characterizations of national security policies or events. This
issue has arisen with regard particularly to the coverage of the war in Iraq. Media
* Senior Writer, U.S. News & World Report.
National Security, the Law and the Media: Shaping Public Perceptions
and government practices may contribute to the perception that the "full story" is
not being told. Systemic trends in the news media business have made it more diffi-
cult in many instances to meet professional standards, which have been tradition-
ally embraced but are not formally codified. Finally, a polarized and partisan
political climate in the country has contributed to a public discourse marked by
more heat than light.
The press sees itself as performing a watchdog function to protect the public's
interest and to inform the public on the vital issues of the day. It has been a hall-
mark of the news media to guard its independence and to investigate alleged
wrongdoing, particularly on the part of government and those in positions of
power. Such a predisposition should not, however, become a presumption of
wrongdoing. Journalists should aggressively pursue the facts and let them speak for
themselves. When covering national security issues, journalists may encounter di-
lemmas over handling classified information or information that may provide as-
sistance to those who would do the country harm. While there are certainly many
cases where information is overly classified with scant justification, as was ac-
knowledged in the 9/11 commission report,1 the news media have a responsibility
to carefully weigh the consequences of publishing classified information.
Two news stories amply illustrate the challenges of reporting on national secu-
rity law. The New York Times reported that the National Security Agency (NSA)
was conducting warrantless surveillance of Americans inside the United States, re-
lying on a classified legal opinion that it was legal to do so when the NSA had reason
to believe that the person was in contact with a suspected agent of a foreign power
or terrorist entity. The article reported concerns by other US officials that the pol-
icy, which was adopted after the 9/11 attacks, violated the 1978 Foreign Intelligence
Surveillance Act (FISA)2 by not obtaining warrants from the FISA court. The law
requires warrants for eavesdropping on "U.S. persons," but the policy's legal pro-
ponents considered that the executive branch has the authority needed so long as
one of the parties was outside the United States.3
In this very complicated case, there is a clear legal gray area that is now under re-
view by the Justice Department, and which was questioned by the head FISA court
judge and by some legislators who were briefed on the policy. Technology has also
evolved since the 1978 law was written and subsequently amended. Yet the admin-
istration did not seek its revision by Congress or judicial review for fear of compro-
mising the secrecy it felt the program required. The New York Times withheld
publication of some details that the executive branch argued would harm US na-
tional security interests, but it disagreed with the government's contention that the
very disclosure of the program would render it ineffective and decided to publish
the story.4 The extremely sensitive nature of the case led the executive branch to
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Linda Robinson
restrict the explanations it offered to both the public and to Congress. In 2007 the
Bush administration decided to submit requests for surveillance warrants to the
FISA court rather than contest the legality of its program.
Another news story that generated a great deal of controversy (as well as acco-
lades, for like the NSA story, it too won a Pulitzer prize) was the Washington Post's
revelation that the Central Intelligence Agency (CIA) had been holding suspected
terrorists at secret detention sites in several countries since 9/1 1.5 The policy of ex-
traordinary renditions has been in effect since the previous decade, but in the days
after 9/11 the executive branch decided to detain US suspects outside US territory
to keep them out of the US courts' jurisdiction. Those suspects have now been re-
manded to their countries of origin or transferred to Guantanamo Bay Naval Base
in Cuba, to a US detention facility run by the US military and monitored by the In-
ternational Committee of the Red Cross. Court rulings led to legislation establish-
ing new legal processes for detainees, and military policy on interrogation tactics
has been changed to explicitly prohibit some of the practices (such as simulated
drowning or "waterboarding") allegedly used at the CIA sites.
There has been no determination in the US justice system of the legality of the
practices of rendition and secret detention, although some of the detainees are pur-
suing the matter in court. Investigations were also conducted in Europe, where
some of the secret sites were allegedly located. The exposure of a practice in which
US and foreign intelligence agencies have cooperated has led to controversy and
strains in those countries. The description of alleged coercive interrogation tech-
niques by the CIA also coincided with the ongoing controversy over interrogation
and detention practices in Iraq. The abuses of detainees at Abu Ghraib prison in
Iraq, as recorded on digital photos that a US soldier turned over to investigators,
led to prosecution of some of the US soldiers involved. The photos had already
been circulating among soldiers, but the publication and dissemination of them
caused widespread outrage and attention to the issue. Investigations and congres-
sional hearings brought to light many of the administrative and policy shortcom-
ings that contributed to the occurrence of the abuses. While the issuance of new
rules for detention and interrogation practices may help prevent recurrences and
mitigate the perceptions created abroad, the Abu Ghraib scandal and the wide cov-
erage it received remains one of the symbolic events of the Iraq war.
There have been criticisms more generally that the press coverage of the Iraq
war has been inaccurate and has undermined Americans' support for the war. In
addition, US officials have been frustrated in their efforts to respond to the very
effective use of media by adversaries in Iraq and in the al Qaeda movement. Their
pronouncements and their videotapes of attacks on US soldiers or of their cap-
tives quickly find their way onto the Internet and the airwaves, enabling the
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National Security, the Law and the Media: Shaping Public Perceptions
adversaries to disseminate their message and, in many instances, give the first ac-
count of events.
Regarding the quality of American news coverage of the war in Iraq, the allega-
tion of bias in coverage can be partly attributed to a "shoot the messenger" phe-
nomenon, since the war effort has been bedeviled by numerous setbacks and errors
of commission and omission. In this reporter's judgment, however, the media can
also be fairly criticized for emphasizing violent attacks over less salacious and often
positive events such as reconstruction efforts. But the more serious lapses have oc-
curred either through media ignorance of military affairs or a failure to seek and
weigh all the relevant data and analyses to produce in-depth, comprehensive ex-
aminations of the war's conduct. The public policy debate would greatly benefit
from more sustained efforts to understand what is an extremely complicated con-
flict that has eluded easy answers.
The US government, including the US military, has lamented that it is losing the
"battle of ideas" and that it often has a much longer response time than its adver-
saries. Frequently, the decision-making chain regarding release of information is
long and cumbersome. Yet the military in particular has adopted some effective
policies that help provide news media with access to the battlefield, senior officials
and other events and voices that merit coverage. Embedding media with military
units has provided journalists with firsthand information that they cannot obtain
elsewhere. While the process of embedding media has been criticized by some as a
means to control journalists, in this reporter's experience, the ground rules im-
posed primarily restrict the timing of news dispatches to protect operational secu-
rity and, in some instances, specific tactics whose effectiveness would be
compromised by detailed description. In any event, embedded reporting provides
one avenue for reporting and should not be the sole means of news gathering. US
commanders have in some cases taken extraordinary steps to provide access or in-
formation, allowing selected reporters wide access to battlefields and commanders'
deliberations. In one case the commander of the Multi-National Force-Iraq re-
leased video footage of a Predator that was tracking insurgents in order to provide
fuller news coverage of an attack on the US embassy in Baghdad, when the partial
coverage had led the news media to dwell on the attack even after its perpetrators
had been identified and apprehended.6
Providing more access and information often helps the press produce better in-
formed and more in-depth coverage and analysis, provided that it invests the necessary
time to take advantage of the opportunity for sustained research. Unfortunately, many
pressures within the news business today militate against such "best practices." At
times the news media is driven by competing pressures, and while journalists should
200
Linda Robinson
always insist on the time and resources to do work that meets professional standards,
they can be forced into less than ideal compromises.
There are several developments and trends that affect the nature and quality of
news gathering and interpretation, many of which are not widely known or under-
stood outside news media circles. Some of the country's largest newspapers, which
have suffered declining circulation, have been sold or are for sale. The quest for
continued double-digit profit margins continues despite the fact that revenues are
shrinking along with advertising bases. Most notably, the number of personnel and
the size of budgets for news gathering have declined markedly in the past decade.
Foreign news gathering has been de-funded to a significant degree. News organiza-
tions now rely more heavily on contract and freelance personnel known as "string-
ers" and "fixers" and contract video footage. These contract personnel, who are
sometimes foreign nationals, may not have the same training, experience or pro-
fessional standards that prevail in the mainstream US media.
Even as personnel have been reduced, the demand for output has grown. The
evolution of the media has produced more outlets that have to be supplied with
news "content": typically a journalist will file stories to his or her primary publica-
tion or broadcast show, but be required as well to supply stories to one or more
websites, blogs, newsletters, and commentary or analysis to other media outlets
which may be owned by the parent company or merely as part of the growing phe-
nomenon known as "media convergence." Fortunately, senior reporters at na-
tional publications can often secure the time and resources necessary for complex
and sensitive stories, but the pressures are real and growing. The rise of 24-hour ca-
ble news and now the Internet's proliferating platforms have created enormous de-
mand for "content" which must be supplied and updated regularly.
Commentary frequently fills this demand since it costs virtually nothing to pro-
duce, compared to reported content. All "expert" opinion is not equal, however,
and often the commentators do not fully understand the complex issues on which
they speak. Ratings pressures can also feed this tendency toward opinion journal-
ism, which was ushered in by the rise of talk radio stations. While the news media
have always included columnists and editorials, which feature opinions, some
practitioners feel that opinion and bias can creep into news coverage if reporters
and editors are not vigilant in maintaining the traditional distinction between re-
portage and opinion writing.7
Americans' sources of information have diversified in the past decade, but the
traditional news media remain a primary source of and conduit for information,
analysis and commentary about national security issues, even as nontraditional
media such as blogs and webzines continue to grow. The continuing influence of
the "mainstream media," particularly large-circulation daily newspapers, national
201
National Security, the Law and the Media: Shaping Public Perceptions
newsmagazines and network and cable news is such that they play a powerful role
in framing the national debate, defining top news stories and shaping public opin-
ion through the approaches they take to these stories. In cases where the news me-
dia breaks a story, they single-handedly inject a new topic into the national debate
and force others to react to the issue as framed by the media. The tremendous in-
fluence that the news media wields makes it incumbent on them to practice their
craft according to the highest standards of professionalism. If the media is per-
ceived as inaccurate or biased, it will lose credibility and find its ability to perform a
useful societal function greatly diminished.
Notes
1. 9/11 Commission Report: Final Report of the National Commission on Terrorist At-
tacks Upon the United States (2004), available at http://www.9-llcommission.gov/report/
911Report.pdf.
2. 50 US Code sec. 1801-1811 (2000).
3. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, NEW YORK
TIMES, Dec. 16, 2005, at Al.
4. Id.
5. Dana Priest, CIA Holds Terror Suspects in Secret Prisons, WASHINGTON POST, Nov. 2,
2005, at Al.
6. Thomas F. Metz et al., Massing Effects in the Information Domain: A Case Study in Aggres-
sive Information Operations, MILITARY REVIEW, May-June 2006, at 2.
7. John Carroll, then editor of the Los Angeles Times, expressed this concern in an internal
memo that he sent to his editors on May 22, 2003, which was widely commented on in media cir-
cles. The memo is available at www.laobserved.com/carrollmemo.html (last visited Jan. 22,
2007).
202
PARTY
LUNCHEON ADDRESS
XII
Luncheon Address
International Legal Public Diplomacy
John B. Bellinger III
*
From the beginning of this Administration, Secretary Rice has made very clear
to me that, in addition to providing first-rate legal advice to the State Depart-
ment's officials, she expects the Office of the Legal Adviser to play a key role in our
public diplomacy dialogue. Secretary Rice is aware that the historic commitment of
the United States to international law and the rule of law has been questioned after
September 11th, and she has personally and repeatedly reaffirmed our respect for
and adherence to the rule of law, and our strong commitment to meeting our inter-
national legal obligations. "The United States," she has said, "has been and will
continue to be the world's strongest voice for the development and defense of in-
ternational legal norms." She said that we respect our international legal obliga-
tions and international law and we will continue to do so. And, apropos for today's
discussion, she added this: "We're going to continue to make that very clear to the
world."
Secretary Rice has asked me to ensure that I and my staff play a lead role in this
effort, as we work to garner support around the world for US positions. I have
therefore made it one of my top priorities as Legal Adviser to ensure that we effec-
tively communicate our message to the rest of the world so that the international
community understands our commitment to international law and the rule of law,
Legal Adviser to the Secretary of State of the United States.
International Legal Public Diplomacy
as well as the carefully considered legal bases and rationales underpinning policy
decisions made by the United States.
Countering Myths
This task is not always an easy one. We hear increasingly that the United States is
not strongly committed to international law and international institutions. We
hear that the United States acts "lawlessly" on the world stage. The United States
refused to ratify the Kyoto Protocol. We "unsigned" the Rome Statute. We with-
drew from the ABM Treaty. We went to war in Iraq without a legal basis under in-
ternational law. And we have violated the Geneva Conventions by holding
terrorists in Guantanamo without giving them lawyers or charging them with
crimes. This is a troubling pattern of criticism, but US experts in international and
national security law, including the lawyers in my office and many of you, are well
positioned to explain why none of these acts were "lawless" and why many of these
criticisms are simply wrong.
Of course, there are some challenges in public legal communications that do not
necessarily exist with respect to our public communications generally. We need,
for example, to maintain applicable legal privileges and cannot therefore always
discuss exactly how we came to a particular position. Moreover, while legal strate-
gic communications is about persuasion and listening, our commitment to stating
the law correctly provides a firm limit to what we can say. Likewise, we are not al-
ways able to counter the facts underlying a legal debate because we cannot discuss
information that could compromise the success of intelligence, law enforcement
and military operations. This dilemma has made the job of explaining our legal po-
sition on renditions particularly difficult. Before asserting legal positions, we also
need to consider carefully whether and how this might prejudice future policy po-
sitions or options. For example, one difficulty with publicizing lawful interroga-
tion techniques to help address concerns of allies is that this public disclosure
might facilitate terrorists' training activities.
Another challenge unique to legal communications is identifying and respond-
ing to policy differences that are recast as disputes about law. The United States is,
for example, often criticized for not supporting international law because it failed
to sign or ratify a treaty. This happened with respect to the Kyoto Protocol, which
the United States did not think was sound public policy and would harm the US
economy. The decision not to ratify the Protocol was made on that basis and per-
fectly legal under international law.
With that background, I want to describe some of the specific public diplomacy
efforts of the Office of the Legal Adviser, and I hope to encourage the US military
206
John B. Bellinger III
and other government lawyers and officials participating in this colloquium to en-
gage in strategic dialogue about important legal issues as part of your work in the
international arena. President Bush has said that public diplomacy is the job of
every member of his Administration, and has directed Under Secretary for Public
Diplomacy and Public Affairs Karen Hughes to ensure that every agency and de-
partment gives public diplomacy the same high level of priority that he does. By
talking more clearly — and more often — about our legal positions, as Secretary Rice
has said we must do, we can dispel myths, correct misunderstandings, and share
and communicate some of America's most basic values.
The Broader Context
The State Department's overall communications strategy involves three strategic
imperatives. Our first objective is to offer people throughout the world a positive
vision of hope that is rooted in America's belief in freedom, justice, opportunity
and respect for all. President Bush and Secretary Rice have emphasized that people
around the world should know that we stand for human rights and human free-
dom everywhere. Second, we seek to isolate and marginalize violent extremists and
confront their ideology of tyranny and hate. One of the chief ways we do this is by
undermining the efforts of extremists to portray the United States and the West as
in conflict with Islam. We work to empower mainstream voices and demonstrate
respect for Muslim cultures and contributions. Finally, we seek to foster a sense of
common interests and values between Americans and people of different coun-
tries, cultures and faiths throughout the world.
Work of the Office of the Legal Adviser
Communications about our legal positions are an important part of the Depart-
ment's overall strategy. Some of the key communications challenges in our war
with al Qaeda and the Taliban, and the conflict in Iraq, illustrate the point. For ex-
ample, my office has had a central role in explaining the legal basis for our deten-
tion operations in Guantanamo and Iraq. We have also responded to the terrible
abuses at Abu Ghraib and recent allegations of misconduct by US Marines at
Haditha. More generally, I have personally participated in numerous meetings,
conferences, symposia and similar gatherings in the United States and abroad re-
garding important legal topics relating to the conflict with al Qaeda and other is-
sues, and I have led several delegations of US government officials to international
conferences in Geneva.
207
International Legal Public Diplomacy
In each of these instances, I and my staff talk about the law to help our counter-
parts in ministries of foreign affairs around the world, as well as international orga-
nizations, non-governmental organizations, opinion makers and the public,
understand our legal rationales and, in nations that lack a strong rule of law tradi-
tion, to help people understand the importance of law in forming good policy. At
the same time, we listen to what colleagues, opinion makers and the general public
around the world are saying about the law. By listening to their views and paying
attention to their concerns, we show respect for them and we ultimately provide
better advice to our clients.
Detention Operations
Let me turn to my first example of how the Office of the Legal Adviser has engaged
in public diplomacy to advance the Department's overall communications strat-
egy, namely our central role in explaining the legal basis for our detention
operations.
The Office of the Legal Adviser is clearly aware of the concerns people have
raised with respect to our detention operations, especially the detention facilities at
Guantanamo Bay and our rendition of terrorists in limited circumstances. I have
personally engaged directly with my counterparts around the world to explain our
legal positions on these matters and to discuss our shared interests in preventing
terrorist attacks, gathering intelligence and bringing terrorists to justice. I have
traveled to numerous European capitals to meet with legal advisers and other rep-
resentatives from foreign ministries, the EU and international organizations, and
conducted press events and roundtables with those that have a key influence on
public opinions and policies. My main goal has been to explain more clearly the le-
gal bases for our detention activities and address the legal concerns that have been
raised over the last few years, including by our friends and partners. To do this, I
have had to do three main things. First, I have explained with specificity how the
US government complies with its Constitution, its laws and its international legal
obligations in its detention activities. Second, I have worked to clarify misconcep-
tions about various decisions by our government as well as misunderstandings
about various aspects of international law and the Geneva Conventions. Finally, I
have emphasized that the US government recognizes that many issues relating to
our detention of captured enemy fighters remain a matter of concern in Europe,
and elsewhere, and promised to talk more often and more clearly about the issues;
at the same time, I have asked that responsible officials and commentators in Eu-
rope promote more balanced discussion within their own nations, among them-
selves and with the United States about the issues.
208
John B. Bellinger III
With respect to compliance with our legal obligations, it has not been enough
for me to reiterate that the US government complies with its Constitution, its laws
and its treaty commitments in its detention activities. I have spent many hours sit-
ting with lawyers, officials, reporters and commentators explaining the various US
criminal laws and international legal obligations that prohibit torture, and describ-
ing how US courts have interpreted those laws in specific circumstances. Likewise,
I have talked about specific cases of unlawful treatment of detainees and described
how the United States vigorously investigated and, where the facts have warranted
it, prosecuted and punished those responsible. Unfortunately, it is easy to capture a
criticism about a complex legal matter in a pithy sound bite — "prisoners linger in
Guantanamo no-man's land" or "US torture camp at Guantanamo" — but it re-
quires paragraphs of explanation to describe how the United States is, in fact, com-
plying with its legal obligations.
In each of these discussions I emphasize that, even if I cannot persuade my lis-
teners that the position of the US government is clearly correct, at least there is
"method" to what some perceive as our "madness," and that the positions we have
taken are legally defensible.
One particular area that has been largely misunderstood by Europeans is the
way in which the United States applies the Convention Against Torture's prohibi-
tion against sending a person to a country "where there are substantial grounds
that he would be in danger of being subjected to torture." The European Court of
Human Rights has interpreted this prohibition such that it is impermissible for
members of the Council of Europe to remove a person to a country where that per-
son might be tortured. Our Senate, on the other hand, has opted for a standard that
it is impermissible to remove a person to a country where it is "more likely than
not" that that person would be tortured. Both of these standards are valid and each
ensures compliance with the relevant Convention Against Torture obligation.
It has been extremely helpful to describe our standard in detail to my European
colleagues and to explain that our standard emerged from a democratic process
when our Senate ratified the Convention Against Torture in 1990 and was not de-
veloped by this or any other Administration. Many Europeans have been receptive
to the point that our standard, although different than theirs, was carefully consid-
ered, promulgated by our Senate and intended to fulfill our obligations under the
Convention. Also, I have emphasized that we share common values — above all
a prohibition on torture and on cruel, inhuman or degrading treatment of any
detainee — and common objectives in our counterterrorism efforts, including
gathering potentially life-saving intelligence from captured terrorists. And, I have
pointed out that we have foiled a number of deadly plots against cities and citizens
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International Legal Public Diplomacy
in Europe and elsewhere as a result of our law enforcement and intelligence
cooperation.
Another area of concern with respect to our detention activities has involved
our use of the concept of unlawful combatants. Certain academics and others have
asserted that the term is not found in the Geneva Conventions but rather was in-
vented by this Administration. I consistently point out that these criticisms are
wrong: the concept of unlawful combatants is well recognized in international law
by courts, in military manuals and by international legal scholars. By citing specific
historical examples of the use of the term unlawful combatants and showing that
the United States did not simply make up this term for its own purposes, I have
persuaded many European colleagues that the term does, in fact, describe a long-
standing category of actors. Some of these colleagues, of course, continue to dis-
agree with our application of the concept, but they know that our legal analysis is
rigorous and that we are genuinely concerned with ensuring that our detention ac-
tivities comport with all of our relevant legal obligations.
Another important misconception that I have tried to correct involves Presi-
dent Bush's signing statement in bringing into law the Detainee Treatment Act, the
legislation that includes the well-known McCain Amendment. The President's
signing statement included a standard statement indicating that he would interpret
the Act consistent with his authorities under our Constitution. Critics argue, and it
has almost become urban legend, that the President's statement "proves" that he
intends to rely on his constitutional authority to ignore the McCain Amendment.
In response, I point out that the President's signing statement reflects a frequently
used executive branch position about the execution of laws within the context of
the President's constitutional responsibilities, and was not meant to indicate that
the President planned to ignore the provisions of the Act.
Our detention activities involve complex legal questions and people around the
world have raised concerns about those activities. Often, our job is not so much a
matter of explaining the Geneva Conventions or international legal principles,
about which foreign audiences tend to be reasonably well informed — albeit some-
times with different views — as it is about communicating our commitment to
those principles and explaining clearly US law and the bases for our legal decisions
and practices. We talk about how US law comports with our international legal ob-
ligations, how US legal positions are well considered by all branches of our govern-
ment, and we offer alternative explanations for what may seem to be substantive
legal differences. When people understand our strong commitment to treating de-
tainees in accordance with our constitutional, statutory and international legal ob-
ligations, they understand that we stand for the proper treatment of all people in all
contexts.
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John B. Bellinger III
Abu Ghraib and Haditha
A second example of how the Office of the Legal Adviser has engaged in public di-
plomacy to advance the Department's overall communications is our work in re-
sponding to the terrible abuses at Abu Ghraib and recent allegations of misconduct
by US Marines at Haditha.
I have personally engaged in outreach on both of these subjects at home and
abroad, in coordination with the Department of Defense and other relevant agen-
cies, and people have appreciated hearing candidly from the State Department's
Legal Adviser that the United States takes these incidents very seriously, acts on
them promptly, investigates thoroughly and holds the wrongdoers accountable for
their actions. We know that one of the great strengths of our nation is its ability to
recognize its failures, deal with them and act to make things better. When we ex-
plain that we continue to do just that in the war on terror, we reaffirm one of our
most basic values for people around the world. In addition, as a practical matter,
lawyers play an important role in responding to events like Abu Ghraib and
Haditha because we can discuss with authority the specific legal procedures to in-
vestigate the incidents and prosecute wrongdoers. Since extremists take full advan-
tage of incidents like Abu Ghraib and Haditha to portray the United States as evil,
only rhetorically concerned about human rights and in conflict with Islam, we
undercut the terrorists' efforts by addressing abuses and allegations head-on and
describing our investigative and prosecutorial procedures.
With respect to crises like the abuses at Abu Ghraib and the allegations of mis-
conduct at Haditha, one of the most important elements of our communications
strategy is speed. In an age of mass media and electronic communication, the
United States is competing for attention and credibility in a time when rumors can
spark riots and protests, as we saw in connection with the inaccurate Newsweek
report regarding a US soldier flushing a Koran down a toilet, and information,
whether it is substantiated by facts or based on mere rumors, spreads instantly
around the world and across the Internet. In these circumstances, we need to act
quickly to counter misinformation and undermine the efforts of extremists to por-
tray us as evil.
One of the key ways we achieve speed at the State Department is through our
rapid response unit, a recent initiative of the Secretary and Karen Hughes. Early
each morning our rapid response unit meets to determine what the critical media
issues for that day are around the world and what our strategy should be to respond
to them. Our lawyers work closely with the rapid response unit to ensure legal is-
sues are properly addressed and that the legal bases for our positions and decisions
are accurately and appropriately communicated.
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International Legal Public Diplomacy
Whether we are responding to a crisis like Abu Ghraib or Haditha or working to
explain our legal positions to audiences around the world, talking directly to the
press is an important element of our communication strategy. The media plays an
important role in shaping perceptions around the world so, just as it is necessary to
meet privately with government officials, NGOs and opinion makers, we need to
speak publicly to the press to explain our positions. Outreach to Arab media has
been especially important after September 1 1th and I have reached out to them, and
the foreign press center generally, as often as possible during my tenure. The foreign
press, including Arab media like al- Jazeera, has been very receptive to hearing our le-
gal positions and replaying them in the Arab and Muslim world and elsewhere.
Delegations and Meetings
Before closing, let me briefly touch on the final example where I and my staff en-
gage in public diplomacy as an important part of the Department's overall com-
munications strategy — an example that actually cuts across all of our legal public
diplomacy efforts. In addition to the strategic dialogues about critical issues of mu-
tual interest with my European colleagues that I mentioned, I have made it a prior-
ity, at the urging of Secretary Rice and Under Secretary Hughes, for me and my
staff to talk more often and more clearly about legal matters around the world. We
look for opportunities and have increased our budget to attend meetings, confer-
ences, symposia and similar gatherings to listen carefully to our colleagues; show
respect for important issues and international law and institutions generally; ex-
plain clearly the legal bases for our policies and actions; and advocate forcefully
to convince other nations to cooperate with us and live up to their own
commitments.
Since becoming Legal Adviser, I have spoken at events hosted by the American
Society of International Law, the American Bar Association, the Atlantic Council
of the United States, George Washington University Law School, Princeton Uni-
versity and other institutions. Last year, I spoke at the Round Table on Current
Problems of International Humanitarian Law in San Remo, Italy, which is the pre-
mier conference in the field. I have invited numerous groups and colleagues from
around the world to the State Department to discuss critical issues of mutual inter-
est. Whenever possible and appropriate, I have tried to involve the Secretary and
other colleagues in our international legal public diplomacy efforts. Many of you
might have heard or read the Secretary's remarks at the last two Annual Meetings
of the American Society of International Law, the American Bar Association's re-
cent Rule of Law Symposium in Washington, DC, or the Diplomatic Reception of
the Washington Foreign Law Society at the State Department last year.
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John B. Bellinger III
I have led two delegations to international conferences in Geneva to work to en-
able the Israeli national society, the Magen David Adorn, to join the International
Movement of the Red Cross and Red Crescent. In May 2006, 1 led another delega-
tion of senior US government officials to Geneva where we presented our second
periodic report to the UN Committee Against Torture, and then responded to the
Committee's subsequent report, which contained its main findings and recom-
mendations to the United States.
The Office of the Legal Adviser's leadership of the delegation to the UN Com-
mittee Against Torture is an excellent example of how the Department's lawyers
contribute to the Department's overall communications strategy by effectively
participating in meetings, conferences and delegations around the world. We pro-
vided the Committee with an extensive report and thorough answers to the many
questions they posed, demonstrating our commitment not only to fulfilling our
obligations under the Convention Against Torture, but to engaging in a productive
dialogue with the Committee. Moreover, by sending a high-level delegation to
Geneva to present our report and engaging in a dialogue with the Committee, we
demonstrated our respect for our obligations under international law and our
commitment to the Convention's principles.
Conclusion
Our legal public diplomacy efforts have not gone unnoticed. Following our Con-
vention Against Torture presentation, for example, the Economist newspaper de-
voted an entire article to describing "some welcome signs of a change of tone from
the Bush administration." They commended our delegation for fielding tough
questions on the treatment of detainees with unusual candor and even deference,
and cited our discussion with European colleagues on renditions and other deten-
tion issues. The Economist was unwilling to applaud our policies, but they were
willing at least to say that "public relations are improving."
I hear time and again from people around the world that they are grateful for
our increased dialogue about critical matters of law — even if we only agree to dis-
agree in some cases, the dialogue is essential. People want to know what we stand
for and why. And if we do not tell them, our critics — or worse, extremists — will tell
them for us. This is why I and my staff will continue to work to communicate effec-
tively our message to the rest of the world so that the international community
understands our commitment to international law and the rule of law, as well as
the carefully considered legal bases and rationales underpinning our actions. I en-
courage each of the US military and other government lawyers and officials — or
future lawyers and officials — here to review your own work and consider how you,
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too, can play a role in our public diplomacy dialogue. As the President has said,
public diplomacy is an important part of each of our jobs. We each need to see our-
selves as international diplomats as we conduct our work.
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PART VI
CHALLENGES OF
STRATEGIC COMMUNICATIONS
XIII
Strategic Communications and the Decline of
US Soft Power
Gene E. Bigler*
Abstract
Four strategic communications practices tend to build on one another in con-
tributing to the widely noted and continuing decline in US soft power. First
is the problem of inattention to audiences. By neglecting them as we prosecute the
war on terrorism, the war of ideas seems to swell more with critics and combatants
than allies. Second, recent approaches to strategic communications tend to em-
phasize process and consistency in uniting messages, but the role of the national
executive in achieving convergence maybe more crucial. That is, sending identical
or even reinforcing messages may not be as important as making sure that the mes-
sages are consistent with audience expectations about US policy. Third, Depart-
ment of State (DoS) financing for public diplomacy has increased only
incrementally, if that, while the Department of Defense (DoD) weight in the total
flow of strategic communications, as in foreign policy generally, seems to have es-
calated along with its budget. The continuing deterioration of opinion suggests
that the mix of communications is not working, and it certainly contradicts expert
advice on the resources needed for public diplomacy.
Finally, the growing concern about the militarization of US foreign policy may
reflect the rejection of the "military as messenger" for the United States, even if
* Visiting Professor-Practitioner of International Relations, University of the Pacific, Stockton,
California.
Strategic Communications and the Decline of US Soft Power
civilians actually make the policy. The US affirmation of the preemptive use of
force puts the military at the forefront of US strategic policy, just as the conflicts in
Afghanistan and Iraq have overwhelmed and tended to color the perception about
the rest of our policy. Thus, the increasingly dominant role and resource endow-
ment of DoD in strategic communications might actually worsen the impact on US
soft power. While general flaws in US policy and deficiencies in the work of DoS
may also contribute to the deterioration of America's international image, recent
experience suggests that DoD dominance of strategic communications, and of for-
eign policy in general, may be increasingly responsible for the deterioration of US
international standing.
Opinions of the United States and American Soft Power
Continue to Decline Together
Notwithstanding the global outpouring of sympathy for the United States follow-
ing the September 11, 2001, terrorist attacks on the World Trade Center and the
Pentagon, many observers noted a downturn in public support for the United
States during 2002 that reflected widespread deterioration in opinions of the
United States. The Pew Research Center for People and the Press reported in De-
cember 2002 that images of the United States had become increasingly tarnished
in the publics of NATO allies, former East European nations, developing nations
and especially Muslim nations and on a variety of dimensions.1 That report went
on to detail how pluralities had become critical of American unilateralism, but
this did not extend to rejection, except in Muslim nations, of the approach the
United States was taking to the war on terrorism. On the other hand, the report
was prescient in recognizing that a potential war with Iraq might "further fuel
anti- American sentiment."
As the Pew Center expected, important policy actions, such as the invasion of
Iraq, apparently caused a further deterioration in opinions of the United States. At-
titudes, even among allied nations, toward the US approach to the war on
terrorism also turned sharply negative, and despite some break in the trend during
2005, the overall slide in global opinion of the United States continued to worsen
and spread.2 Of course, this is a heavily nuanced phenomenon, and lots of other
variables and the particular circumstances of each nation are important. This is
also characteristic of the factors which are closely related to soft power, a nation's
ability to attract and persuade others. Opinions are really a snapshot of people's
orientations at a specific moment in time.
Professor Joseph S. Nye, Jr., and a number of others have shown that soft power
is also highly situational.3 While acknowledging the influence of other factors that
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Gene E. Bigler
contribute to anti-Americanism and the decline in soft power, Nye's perspective
concurs with the observation of Australian foreign policy commentator Paul Kelly
that:
[T]he lesson of Iraq is that the US's soft power is in decline. Bush went to war having
failed to win a broader military coalition or UN authorization. This had two
consequences: a rise in anti-American sentiment, lifting terrorist recruitment; and a
higher cost to the US for the war and reconstruction effort.4
Besides the loss of soft power to influence the situation in Iraq, the growing anti-
Americanism and deterioration in opinions of the United States will influence our
soft power in other contests as well. For instance, recent research on human rights
shows that majorities in such allied nations as Great Britain and Germany no lon-
ger see the United States as an effective advocate of human rights.5 Without enter-
ing into details, it is not surprising to hear corridor concerns and read blogger
speculation about declining US soft power as a contributor to such differing for-
eign policy problems as cooperation in managing nuclear confrontations with Iran
and North Korea, the improvement of multinational peacekeeping and humani-
tarian operations in Darfur, or even the advancement of America's trade agenda.
This forum is not the place for a full exegesis of the way in which public diplo-
macy, strategic communications and propaganda are intertwined in wielding soft
power. The broad tendencies of interest here and the degree of consensus about the
interconnectivity among them was manifest in the use of a common frame of refer-
ence for our conference discussions provided in a timely article by Linda Robin-
son.6 In that article, Robinson describes a visit Secretary of Defense Donald
Rumsfeld made to the Army War College in March 2003 in which he lumped all
these concepts into a broad "war of ideas" in which he believes America is doing a
very poor job: "If I were grading, I would say we probably deserve a D or D plus as a
country as to how well we're doing in the battle of ideas that's taking place in the
world today. . . ."7
Not surprisingly, Secretary Rumsfeld has followed up his expression of con-
cern with some specific actions to study and improve the strategic communica-
tions morass in which America has been entrapped for several years. In this re-
gard, his reaction has been concrete and definitely action oriented because of his
executive authority, but the realizations that prompted his action are not dissimi-
lar to the concerns that motivated the production of over thirty studies and rec-
ommendations within the US government over the last few years to address the
problem of public diplomacy. Nor indeed has DoD been alone in trying to deal
with the issue. In fact, prior to the recent actions in DoD, much of the effort had
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Strategic Communications and the Decline of US Soft Power
been concentrated at DoS through the appointment of high profile individuals to
take charge of the public diplomacy effort. Prominent advertising executive
Charlotte Beers was appointed under secretary for public diplomacy and public
affairs in December 2002. She was followed by former State Department spokes-
person Margaret Tutwiler, and then after a two-and-a-half-year vacancy, the presi-
dent called on his campaign and White House communications adviser Karen
Hughes to take the job and launch yet another reform effort in the fall of 2005.
In 2006, Secretary Rumsfeld proposed some important new initiatives, many of
which will only get under way as this volume is being published. Despite the good
intentions of all those involved (and in which the author was also personally en-
gaged until July 2005), the hypothesis that informs this analysis is that the new stra-
tegic communications effort in DoD may, as we have seen to a certain degree with
the increasing efforts and new leadership at DoS, actually be prelude to further
worsening of the US image and a greater loss of soft power. It may even be possible
that the increasing effort in strategic communications at DoD will actually aggra-
vate and further spread and deepen America's soft power problem. As suggested by
the Pew study in 2002, 8 the fundamental problem is one of policy. This analysis
takes that idea a step further by demonstrating that a fundamental part of the pol-
icy problem centers on the increasing visibility and ubiquity of the military in
America's global communications. Indeed, this may be increasingly at the root of
America's loss of soft power as we shall see later.9
Audience May Be as Crucial as the Message
As mentioned previously, policy is the crucial issue for the deterioration in opin-
ions of America and American soft power.10 Yet strategic communications plays an
important role, and despite the increasing overall effort put forth by the United
States, a good deal of the effort may even be counterproductive. One of the key
problems is simply an inattention to audiences or attention to the wrong audi-
ences, especially at the highest levels of government. Implicitly, the US Executive
Branch and Congress appear to have decided that they don't care about the opin-
ion of most of the English-speaking world and traditional American allies in West-
ern Europe. Congress has pushed for, and the Executive has complied with, the
drastic reductions of public diplomacy spending, cut back or transferred out per-
sonnel, and curtailed the broadcasting of the Voice of America to countries that
have been traditional friends and allies. Not surprisingly, opinions of the United
States have declined markedly in most of these countries. Expanding private-sector
communications, increasing tourism and trade, and even the popularity of
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Gene E. Bigler
American films and TV shows obviously does nothing to stem nor reverse this in-
creasing trend.
The private sector has, however, helped us understand and become more aware
of just how bad the opinion trends are because they have learned, especially from
the once path-breaking work on global public opinion performed by the United
States Information Agency (USIA), that tracking what people think around the
world is important. The Office of Intelligence and Research (INR) in DoS inherited
this tradition, and it continues to do technically respected, policy relevant research,
but not much of it in comparison to yesteryear.11 Today, there is a lot more publicly
available data in the private sector on how German or Italian or Spanish or Latin
American attitudes toward the United States are changing, so at least we do have a
broad sense of what's happening.12
The problem for policy is that these private studies provide only a tiny window
on the broad trend in audience opinions. The research needed for the formulation
of a communications strategy is much more complicated and expensive. INR still
does some of this research, but rather than showing the way to the private sector,
the work that INR does now on DoS's global audiences is just a fragment of what is
done for most international private- sector marketing campaigns or in presidential
elections in many countries. Candidates for governor or senator in most states
have far more research resources available for shaping their campaigns than do US
embassies in important posts over a two- or three-year span. Most of the studies
about improving public diplomacy place a lot of emphasis on the need for more
public opinion and other types of audience research, but overall funding for re-
search has increased only incrementally over the last few years. The funds that are
available have been concentrated much more on the Middle East and a few other
priority regions and, even with the increases, the overall effort and systematic at-
tention to audiences in the US government has declined greatly since the Cold War
began to wind down.
The audience problem has also become more complicated because of changing
technology. Without entering into detail, it has to be recognized that speeches de-
livered by the president and other high administration officials are often intended
more for a domestic audience than overseas publics. However, words intended to
arouse patriotism in the United States often have different, if not always opposite,
effects overseas, but virtually any speech or op-ed piece or other public position
taken by senior American officials is often disseminated more widely outside the
United States than in and is readily available for hostile exploitation. For many in
the Middle East, the "war of ideas" to which many US officials have made reference
has been misunderstood, and partly because it has been wickedly portrayed, as a
confrontation with Islam itself. In the context of a war on terrorism in which the
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Strategic Communications and the Decline of US Soft Power
support of foreign publics is vital, the need for more cautious and restrained rheto-
ric at home is obvious.
Technology complicates the issue further, especially in Iraq and Afghanistan
where the United States has suddenly opened the doors, not just to freedom, but to
a media diversity that those people have never before experienced. Saddam
Hussein used nearly universal access to terrestrial TV broadcasts, while repressing
radio, satellite TV, computer/Internet and every other form of media access, to
dummy down and shape the information that people had in his "brave new
world." The freedom provided by the United States after the invasion included a
sudden explosion of exposure to information and the right to opine that the Iraqis
love, as shown by the meteoric spread in the use of satellite TV and their high par-
ticipation rates in polls and election turnout. Whenever even a few hours of elec-
tricity could be had, the availability of inexpensive satellite dishes also brought
Arab, Iranian and lots of other new media sources. Afghanistan also opened up
dramatically in comparison with the past, albeit the geographic, economic and
other limitations are much more severe than in Iraq so the opening has not been
nearly as pervasive.
Still another dimension, and in the long run in Iraq and Afghanistan perhaps the
most serious of the audience problems, is that insurgents intermingle with other
groups of people ranging from the actual supporters of enemy combatants to sympa-
thizers with the United States. In these nations and those on the margin of every con-
flict, DoS and elements of DoD are separately engaged, have different missions and
separately conduct political communications operations in the same arena and ad-
dress overlapping populations. This is much less a problem of DoS than it is for
DoD and our military units in the field because the nature of the DoS message is, in
fact, public diplomacy. The intention is to be persuasive, arouse sympathy, create
goodwill and so on. For military units, much of the time, the purpose of the unit's
presence is combat or combat support or force protection. All these missions, by
their nature and before there is any communications per se, at least partially convey
a message of potential threat and danger. By early 2004, polls in Iraq consistently
showed that most Iraqi people did not want the United States to withdraw forces be-
cause of their fear of anarchy, but they also didn't want them anywhere nearby be-
cause of the danger of those forces being targeted or engaging in combat.
This paper cannot do more than raise a serious concern about the audience is-
sue in combat zones, but experience in Iraq also suggested that we may not have
paid as close attention to the importance of not contaminating messages to the
noncombatant population with those actually intended for the enemy. Discussions
with officers involved in information operations in Iraq first raised this question,
especially when hostilities became particularly widespread or prolonged in a given
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Gene E. Bigler
area. After all, at both the practical level and conceptually, in a combat zone, the
overriding mission of the armed forces is the application of force to subdue the en-
emy, not win hearts and minds.13
Evidence for the difficulty of separating out this condition conceptually is fairly
common in the military literature and suggests that operationally the difficulty
would be much greater. For instance, a thoughtful article by William Darley on the
application of Von Clausewitz's traditional war theory to information operations
fails to distinguish at all between the mission of compelling an enemy and the
problem of that enemy being in the midst of a population that we seek to make our
friends. That is, in writing about examples related to Desert Storm where the
United States was and departed as an invading force, he fails to mention the all per-
vasive distinction of our having become an occupying power trying to befriend the
Iraqi people as we are during Operation Iraqi Freedom.14 In another far more com-
plex study that centers on information operations during the 2004 combat that
raged in Fallujah, the authors pay more attention, and rightly so, to enemy informa-
tion operations.15 Yet, the study lacks as careful attention to the actual engagement of
the audience both before and after the attack, thus implying that the deterioration of
Iraqi opinion afterwards was largely due to the success of enemy information opera-
tions. However, given the predisposition of the Iraqi people toward intensive combat
operations of the sort launched in Fallujah, opinion may have declined even without
the enemy's apparently successful information operations.
Legal issues in the national security arena raise particularly thorny problems for
strategic communications because of their complexity. Here the chief audience
consideration centers on the capacity of the audience to comprehend the issue in
comparison with the likelihood that a few simplistic images will totally dominate
the perceptions and conclusions of the mass public and most other audiences. The
debate over whether adherence to the Geneva Conventions should be included in
the US military code of conduct or the treatment of detainees is a perfect example.
Certainly lawyers and political leaders may perceive ambiguity in the text of the
Geneva Conventions, but what most people understand is simply that the Geneva
Conventions have symbolized a globally accepted minimal standard of conduct in
war for generations.
Getting On the Same Page Counts Less Than Whose Page We Are On
Rear Admiral Thorp initiated this panel with an articulate analysis of the impor-
tance of "process" for strategic communications in order to keep all the elements of
an organization in harmony with respect to "a good policy." He emphasized the
importance of consistency in policy and actions and the extraordinary difficulty of
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Strategic Communications and the Decline of US Soft Power
accomplishing this in the context of national security, public diplomacy and inter-
national relations, thereby going beyond the natural emphasis of his remarks on
developing a "culture of communications" within DoD. In my view that approach
is analogous to the problem of ensuring that all the elements of an organization are
on the same page, and I would agree with that approach for a single, even very com-
plex organization, such as DoD. However, I think it falls short of the nature of the
interrelatedness required for our national strategic communications and the rela-
tionship of DoD to the national undertaking.16
For the strategic communications of the United States to function properly in
advancing our national interests, especially in the soft power arena, the policy and
actions of at least our most visible national organizations and disparate actors must
be understood "to converge" on a single purpose. In the myriad reports related to
America's public diplomacy problem, this concern has generally been related to
the need to integrate the public diplomacy effort with the executive leadership for
foreign policy. For instance, in a Defense Science Board report, this is described as
"leadership from the top":
A unifying vision of strategic communication starts with Presidential direction. Only
White House leadership, with support from cabinet secretaries and Congress, can
bring about the sweeping reforms that are required.
Nothing shapes U.S. policies and global perceptions of U.S. foreign and national
security objectives more powerfully than the President's statements and actions, and
those of senior officials.17
In another excellent analysis and proposal by the Public Diplomacy Council
about what needs to be done, the stress is more on the institutional connections to
the presidency that are needed. Two of the five major recommendations — num-
bers one and four — that are advanced focus on this concern:
1 . Establish an agency within the Department of State and the National Security
Council process, the U.S. Agency for Public Diplomacy (USAPD), to manage the
U.S. government's civilian information and exchanges functions and to coordinate
all U.S. government public diplomacy efforts. . . .
4. Establish by Presidential Directive an Interagency Committee on Public
Diplomacy at the Cabinet Level to coordinate and direct the national public
diplomacy strategy, with a permanent secretariat and associated working groups, co-
chaired by the Deputy National Security Advisor for Communication and the
Director of the new USAPD Agency.18
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Gene E. Bigler
The concern here could also be understood as one of process if that involves mak-
ing sure that the entire US government strategic communications effort converges
on the direction that the president, and through him, the National Security Council
and its key components provide for the comprehensive enterprise.19 However, the
American experience since the start of the US effort to respond in earnest to the Sep-
tember 1 1 terrorist attacks suggests that a still broader definition of convergence is
needed. One of the remarkable consequences of those attacks was the sense of global
empathy that they evoked. In an obvious allusion to President Kennedy's quip to the
beleaguered people of Berlin, Paris' Le Monde showed just how strong the feelings
were around the world in its September 12 headline, "we are all Americans!" Yet not
long after the Bush Administration began to prosecute the war on terrorism and to
hunt the perpetrators of the attacks, opinion of the United States began to decline.
Although there may have been widespread sympathy for the United States, it
also appears that there were some definite expectations about how the United
States would conduct the war on terrorism that were rapidly frustrated, and that
this type of frustration definitely escalated and spread antipathy. Accordingly, con-
vergence in strategic communications needs to be concerned with more than sim-
ply getting all the messages on the same page as the president's, but for these to have a
favorable impact they must also be in harmony with people's expectations about
those producing them. Thus it is not just that the messages from the White House
and DoS and DoD need to be consistent with those from the presidency, as that
these all need to harmonize with people's expectations about the actions and values
that America represents. Convergence, then, speaks to the coincidence between
message and behavior in order to enable strategic communications to achieve the
persuasive capacity or provide the desirable model that creates soft power.20
Many early frustrations about the US conduct of the war on terror came most
vividly and boisterously from Muslim nations and Muslim people living in the
West as a result of the sudden dramatic increase in security operations in which
the negative profile always involved them. The characteristics of the September 1 1
terrorists suddenly intruded on the lives of tens of thousands of students,
businesspeople, international travelers and immigrants, and, despite the over-
whelming sympathy of most of these people for prosecuting the war on terrorism,
it suddenly called into question the sincerity of the US commitment to respect
human and civil rights, as well as religious and ethnic tolerance.
Gradually, a series of other actions by the United States further contradicted val-
ues that the United States was expected to honor and advance in the world arena.
For instance, the open questioning by senior US officials about the applicability of
the protections under the Geneva Conventions long before actual revelations
about abuses was not expected. After all, the United States had already been the
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Strategic Communications and the Decline of US Soft Power
overwhelming global military power for the better part of a generation, so if the
Geneva Conventions did not apply to the United States, then why should they apply
to anyone. The recent harsh rejection by the Bush Administration of the Interna-
tional Criminal Court (ICC) was quickly linked to the questioning of the Geneva
Conventions as a sign that the United States was putting itself above the law after
having represented itself as one of the leading advocates of international law for over
fifty years.
Despite the fact that it was under the Clinton Administration that the United
States had opted out of joining both the Kyoto Protocol and the ICC after taking
part in their negotiation, the way the Bush Administration opted to harden the US
position seemed to represent a sudden increase in US unilateralism, and that in-
creased resentment. Since the United States was viewed as the supreme power of
the era, it appeared to be rebuffing its global responsibilities and undermining for-
eign perceptions of institutions that provided for the common good.21 Anyone can
Google "truth President Bush" and immediately find harsh, partisan criticisms of the
president that may not, however, be recognized as partisan by outside observers.22
Once the war in Iraq got under way, this pattern of perceptions in foreign audi-
ences was repeatedly reaffirmed by events which seemed to constitute prima facie
contradictions of the US assertion of lawfulness in the conduct of the war against
terrorism. Media stories appeared all over the world about ambiguity in rules of
engagement in combat and how individual troops interpreted them or said they
were taught to interpret them.23 The revelation of the abuses of Abu Ghraib prison-
ers was just the most sensational of a series of cases in which US troops were
brought up on charges of misconduct and while that perhaps should have been ex-
pected, the majority of the Iraqi people reacted with surprise and disappointment
that American troops had proven just as fallible as any others might be. Finally, the
long-running saga of Guantanamo scandals, court reversals of government prac-
tices, and the Administration's widely lampooned discussion of alternative proce-
dures and other euphemisms for torture communicated a sense of American
disdain for the protections of the Geneva Conventions. Rather than converging to
demonstrate the consistency of American behavior with the rhetoric we projected,
whatever consistency there may have been in our messages was being completely
overwhelmed by contradictions in our performance.24
When Resources Matter
Nearly all the major reports on fixing public diplomacy call for major increases in
the allocations available for DoS and for the functions that used to be performed by
USIA. The Defense Science Board Report calls for the current resources (both
226
Gene E. Bigler
funding and personnel) of DoS to be tripled,25 but neglects the subject of additional
resource needs of DoD to support strategic communications almost entirely. The
Public Diplomacy Council recommends a 300-percent increase in personnel and a
four-fold increase in program budgets over a five-year period.26
Such reports directly attribute the loss of the US voice and the declining public
image around the world to a decline in funding, pointing out how despite the suc-
cess during the Cold War there was a subsequent pattern of neglect.27 Certainly, the
constantly declining overall resource base and the constraint it placed on public di-
plomacy activities was a major consideration at every stage of my career experience
in the field. On the other hand, organization, coordination and technique seem to
have been the more important issues for DoD and the work of its professionals in
the field of strategic communications. And while my personal experience in direct
discussion of strategic communications with DoD and military colleagues was
largely limited to four years of service in Italy during the Balkans conflicts and on
other theater-wide issues that promoted extensive collaboration and during the
last few years in Iraq and Washington, DC, I don't recall that declining resources
was ever a major concern of theirs.
Of course, part of the answer for this difference in perspective may be attribut-
able simply to the fact that the DoD budget is dozens of multiples of the size of the
foreign affairs budget, before even counting the costs of Iraq and Afghanistan.28 In-
deed, the order of magnitude of the difference in resource availability probably has
a great deal to do with the reasons that a sophomoric mistake could be made in
DoD to enable the Lincoln Group to pay journalists in Iraq for writing friendly sto-
ries, thereby undermining the credibility of any favorable information that might
appear.29 And during the days of the Coalition Provisional Authority when re-
sources were carefully husbanded for public diplomacy operations per se, a British
production company could be paid millions of dollars out of military funds to run
vague, feel-good-about-democracy advertisements on Iraqi television.30
The tendency to confuse strategic communications with advertising may be in
part responsible for the tendency in the US government to fund DoD strategic com-
munications relatively lavishly in comparison with the starvation diet for public di-
plomacy.31 Every member of Congress understands how expensive media
advertising can be and vaguely recognizes that DoS does not engage in that activity
because the broadcasting function was handed off to the Broadcasting Board of Gov-
ernors when USIA was merged into DoS. Moreover, additional ad hoc funding goes
to DoD for direct support of military operations. All this means that strategic com-
munications becomes the umbrella for consideration of resource allocations and
moves all the further from public diplomacy. Yet it also means that the broader con-
cerns of public diplomacy and its practitioners will be harder to integrate into the
227
Strategic Communications and the Decline of US Soft Power
frameworks for orienting and controlling strategic communications. Practically
speaking, this also explains why there were no public diplomacy specialists in the
direct chain of command over the "feel good" advertising in Iraq.
More basic than the focus on strategic communications is the problem of
whether it is the strategic communications or the public diplomacy effort that ac-
tually breeds the soft power. With a few exceptions, I think that this point is often
lost because of the failure to understand the fundamental difference between the
way soft power is developed and used. Strategic communications tends to be con-
sidered within the context of the achievement of a relatively specific government
objective, while public diplomacy includes such communications but places them
in the context of the broader relationship of societal trust, empathy and, hopefully,
admiration.32 Since a broader objective and a non-specific time frame are also in-
volved in public diplomacy, this makes it harder for the government to fund it as
part of the traditional annual appropriations process.
Thus, the budgetary process disfavors the needed funding of public diplomacy,
but in doing so, it may also prejudice strategic communications, or help explain
why the Bush Administration drive is still not bearing fruit. That is, I think it rea-
sonable to hypothesize that many, and certainly some of the more important, stra-
tegic communications objectives require the existence of a somewhat favorable
climate of opinion for the messages to be credible and effective. Accordingly, the
neglect for the longer-term public diplomacy effort may doom even a very intense
strategic communications campaign.
Undermining the Credibility of the Military as Messenger
The Bush administration's conduct of the war against terrorism has given rise to an
increasing chorus of concern about the militarization of US foreign policy over the
last few years. Of course, some of the most articulate voices, such as Chalmers
Johnson's, had begun to raise concerns and link them to historic arguments, espe-
cially about American imperialism, and how the conduct of American policy had
been associated with antipathy toward America in a given region, especially East
Asia and the Philippines, in response to specific actions, such as the expansion of
the Vietnam conflict, even before the September 1 1 attacks.33 Johnson pursues his
basic argument and expands it in the light of developments in the war on
terrorism34 and Andrew Bacevich provides a broader focus on military history to
develop parallel concerns focused on the Middle East.35 The problem in Johnson's
view is that
228
Gene E. Bigler
[s] lowly but surely the Department of Defense is obscuring and displacing the
Department of State as the primary agency for making and administering foreign
policy. We now station innumerably more uniformed officers than civilian diplomats,
aid workers, or environmental specialists in foreign countries — a point not lost on the
lands to which they are assigned. Our garrisons send a daily message that the United
States prefers to deal with other nations through the use or threat of force rather than
negotiations, commerce, or cultural interaction and through military-to-military, not
civilian-to-civilian, relations.36
While the militarization of policy may be responsible for the deterioration of
the US image, it is not something for which the military bears direct responsibility
or can even fix.37 The problem is akin to that which each military unit now faces
when they enter the field in Iraq. Most Iraqis fear having any contact with or even
being in the vicinity of the US military, not because they have personally had a
bad experience, but because they are aware that Americans are the targets of at-
tacks that are dangerous to anyone near them and that the response to attacks has
led to great damage in the surrounding areas, whether intentional or not. Indeed,
the crux of the US problem, at least for the war on terrorism, may be in the strat-
egy that the United States elected for pursuing the war on terrorism. That is, in
the decision to justify the preemptive use of force for defending American
interests.
President Bush's speech at the opening of the United Nations General Assem-
bly on September 12, 2002, provided the first public exposition and justification
for the use of preemptive military force by the United States against Saddam
Hussein's regime in Iraq. That speech unleashed a wave of global controversy
and debate because the US position seemed to hark back to a classical legitimat-
ing of war that was supposed to have been superseded by the creation of the
United Nations collective security system. Within a few days, the Congressional
Research Service, much better known for the quality than the celerity of its
work, issued a report stating that "the historical record indicates that the United
States has never, to date, engaged in a 'preemptive' military attack against another
nation."38
Yet on September 19, 2002, the preemptive use of military force was incorpo-
rated as a cornerstone of the US national security strategy and the war on terrorism
and thereby set the stage for the subsequent US invasion of Iraq in 2003. Despite
the initial military success in Iraq, the reaction of much of the international com-
munity continued to worsen and harden despite any justification by the United
States about the potential threat of weapons of mass destruction or links to terror-
ist organizations that had attacked the United States. Not only were the ethics of
the US position questioned, but the gradual debunking of every rationale for the
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Strategic Communications and the Decline of US Soft Power
attack except the spread of democracy further weakened the preemptive doc-
trine.39 According to foreign policy analyst Julia Sweig, the US loss of global respect
was due to the imposition of US hegemony on the world community in the way
that it had long exercised power in Latin America.
It had been one thing for the global powers that once held a stake in the region to yield
grudgingly to U.S. hegemony with the Western Hemisphere in the nineteenth and
twentieth centuries. But it was quite another for the United States to subject the entire
world community — including former and aspiring world powers — to the fast-and-
loose approach to diplomacy, military intervention, sovereignly, and international law
that had long been the U.S. currency in America's regional sphere of influence.40
Other commentators have emphasized graver problems than the unilateralism and
arrogance represented by the US action. Stanley Hoffman comments on how sev-
eral international analysts link the preemptive strike doctrine to the deterioration
of a sense of international order and cites a commentary on the US national secu-
rity strategy by Henry Kissinger to that effect: "if each nation claims that right to
define its preemptive rights, the absence of any rules could spell international
chaos."41 More to the point for this analysis, British commentator David Mepham
notes how the negative impact of the loss of US credibility directly undermines
public trust in the United States and actually increases the sense of insecurity in the
global community that the United States is supposedly making safer.42
Conclusion
The discussion of the first three areas of strategic communications practices dis-
cussed in this analysis was made in the spirit of offering experience-based sugges-
tions for improving foreign opinions of the United States and supporting better
achievement of policy objectives. For instance, a more explicit focus on the nature
of the understanding that an audience brings to an issue should provide the frame-
work for shaping of messages for it, especially given the complexity of legal issues
and lawyerly discourse. However, the observation that these practices tend to be
building upon one another is intended to suggest how limited the prospects may
actually be for improvement in any area to make a difference for the soft power
trend overall. That is, simply transferring resources from the strategic communica-
tions effort in DoD to the public diplomacy work of DoS probably won't begin to
reverse the negative trend. The crucial consideration now probably relates to the
way the world has come to consider the exercise of power by the United States. Un-
til we show that we are less inclined to rely on the use of our military or the use of
preemptive military force in the face of strategic frustrations, the improvement in
230
Gene E. Bigler
our strategic communications craft will not actually serve to increase US soft
power or to improve our long-term ability to advance our interests.
Notes
1. What the World Thinks in 2002, PEW GLOBAL ATTITUDES PROJECT (The Pew Research
Center for People & the Press, Washington, DC), Dec. 4, 2002, http://people-press.org/reports/
pdf/165.pdf.
2. America's Image Slips, But Allies Share US Concerns About Iran, Hamas, PEW GLOBAL AT-
TITUDES PROJECT (The Pew Research Center for People & the Press, Washington, DC), June 13,
2006, http://pewglobal.org/reports/display.php?ReportID=252.
3. Since developing the concept of soft power in 1990, Professor Nye has returned to it in a
number of works. The most comprehensive is JOSEPH S. NYE, SOFT POWER: THE MEANS TO
Success in World Politics (2004).
4. Paul Kelly, Power Pact, THE AUSTRALIAN (Sydney), July 26, 2003, at 1, cited in id. at 127.
5. Publics in Europe and India See US as Violating International Law at Guantanamo,
WORLD PUBLIC 0PINI0N.ORG, Jan. 23, 2007, http://www.worldpublicopinion.org/pipa/articles/
btjusticehuman_rightsra/229.php?nid=&id=8cpnt=229.
6. Linda Robinson, The Propaganda War, U.S. NEWS & WORLD REPORT, May 29, 2006, at 29.
7. Id.
8. What the World Thinks in 2002, supra note 1.
9. This conclusion has been partially influenced by the growing literature on the
militarization of America's foreign policy, but it has also been developed empirically. It was orig-
inally inspired by observations and experience as the counselor for public opinion and polling
for the Coalition Provisional Authority in Baghdad during 2004. That prompted the inquiry and
findings reported here. The results of these polls have not been widely disseminated, but a few
well known public accounts are available, such as Robin Wright, Iraqis Back New Leaders, Poll
Says, WASHINGTON POST, June 25, 2004, at A19 and John Solomon, Poll of Iraqis Reveals Anger
Toward U.S., ASSOCIATED PRESS, June 15, 2004, available at http://www.commondreams.org/
headlines04/06 15-08.htm. Militarization will be discussed further below.
10. Leon Hadar ridicules the idea of using marketing and communications gurus and ap-
proaches to address such a fundamental issue as the loss of American credibility, and perhaps the
greatest anti-Americanism yet experienced, with the quip: "You can't sell a soap that doesn't
wash. It's the policy, stupid." See Leon Hadar, Innocent Abroad, AMERICAN CONSERVATIVE, Dec.
19, 2005, available at http://www.amconmag.com/2005/2005_12_19/article2.html.
1 1 . The author was on the staff of USIA's Office of Research from 1 984-88. My work as the
counselor for public opinion and polling for the Coalition Provisional Authority during 2004
was closely coordinated with the current Office of Research in INR.
12. Pew Research Center studies have already been cited {supra notes 1 & 2), but there are
many excellent sources ranging from organizations that mainly provide access to polling data
from others, such as http://www.angus-reid.com, to organizations that do their own research,
e.g., http://www.latinobarometro.org, to those that combine these functions and a lot more, e.g.,
http://worldpublicopinion.org.
13. The report of the Defense Science Board makes this point more generally with respect to
the special problem of the terrorism frame of communications that marginalizes other signifi-
cant issues and obscures the difference between tactical and strategic considerations. See Office of
the Secretary of Defense for Acquisition, Technology and Logistics, Report of the Defense Science
231
Strategic Communications and the Decline of US Soft Power
Board Task Force on Strategic Communication 17 (2004), available at http://www.acq.osd.mil/
dsb/reports/2004-09-Strategic_Communication.pdf.
14. William M. Darley, Clausewitzs Theory of War and Information Operations, 40 JOINT
Force Quarterly 74 (2006).
15. The most important reference to noncombatants was to the successful effort made to get
them to leave the city. Thomas F. Metz et al., Massing Effects in the Information Domain: A Case
Study in Aggressive Information Operations, MILITARY REVIEW, May-June 2006, at 26, available
at http://www.army.mil/professionalwriting/volumes/volume4/july_2006/7_06_2.html.
16. The emphasis here is on DoD, but DoS does not differ in emphasizing unity of message.
For instance, Luanne Traud highlights the emphasis Karen Hughes placed on the creation of a
new rapid response unit to get the US government on the same page. See Luanne Traud, Stay the
Course; Speak on Message, ROANOKE TIMES, May 17, 2006, at B9, available at http://
uscpublicdiplomacy.com/index.php/newsroom/johnbrown_detail/060519_pdpr/.
17. Report of the Defense Science Board Task Force on Strategic Communication, supra
note 13, at 3.
18. Public Diplomacy Council, a Call for Action on Public Diplomacy 3-4
(2005), available at http://pdi.gwu.edU/merlin-cgi/p/downloadFile/d/7536/n/off/other/l/name/
ACALLFORACTIONONPUBLICDIPLOMACYO 1 -2005prin/.
19. A significant step in this direction was taken in 2005 with the establishment of the Policy
Coordination Committee on Public Diplomacy and Strategic Communications and the position
of deputy national security advisor for strategic communications and global outreach as part of
the reorganization of the National Security Council. Karen Hughes emphasizes the importance
of the creation by DoS of a rapid response unit as a measure that "literally gets the U.S. govern-
ment on the same page." See Traud, supra note 16. Yet the argument here is that even getting the
entire US government on message is still not the crucial consideration.
20. Intellectual discourse about public diplomacy has grown rapidly in recent years and is
benefiting from significant contributions from outside the United States. Jan Melissen has been
one of the more significant international contributors. Although his focus tends to be more on
actions centered in the foreign ministry, the concept of "societization" of public diplomacy that
he has advanced is similar to the idea of convergence mentioned here. While Melissen also
stresses the increasing significance of two-way communications in the field, he does not include
the two-way perspective within the concept of "societization." See Jan Melissen, Reflections on
Public Diplomacy Today, Remarks Before the Conference on Public Diplomacy (Feb. 6, 2006),
available at http://ics.leeds.ac.uk/papers/vpO 1 .cfm?outfit=pmt&folder=7&paper=2655.
21. Unilateralism and U.S. Foreign Policy 15 (David M. Malone & Yuen Foong eds.,
2003).
22. This is consistent with the underlying problem of fragmentation of political culture, the
subject of the brilliant analysis in Donna Oglesby's paper, A Pox on Both Our Houses, delivered at
the American Political Science Association Conference on International Communication and
Conflict on August 3 1 , 2005. Oglesby suggests that the problem is still more profound because of
the fragmentation of political culture.
23. See, e.g., Rod Nordland & Babak Dehghanisheh, Rides of Engagement, NEWSWEEK, Nov.
29, 2004, at 24, available at http://www.msnbc.msn.com/id/6542346/site/newsweek/.
24. This discussion has concentrated on legal issues and is concerned with the global context
of strategic communications. Within Iraq itself, the discord, rather than convergence, between
communications and perceptions was much less concerned with legal matters. Polls in 2003-04
repeatedly demonstrated that the failure of the United States to deliver the promised benefits of
232
Gene E. Bigler
improved peace and security and quality of life, including availability of electricity, jobs and so
on, was strongly related to the steady increase in negative attitudes toward the United States.
25. Report of the Defense Science Board Task Force on Strategic Communication, supra
note 13, at 8.
26. A CALL FOR ACTION, supra note 18, at 3.
27. Stephen Johnson & Helle Dale, How to Reinvigorate U.S. Public Diplomacy 2-6, HERI-
TAGE FOUNDATION BACKGROUNDER, No. 1645, Apr. 23, 2003, available at http://www.heritage
.org/Research/NationalSecurity/bgl645.cfm.
28. DoS may have been the original source of its own funding disadvantage in the foreign
policy arena when it joined with the still fledgling DoD to endorse the call for a dramatic buildup
of military forces in the famous National Security Council Report No. 68, United States Objec-
tives and Programs for National Security, Apr. 14, 1950, available at http://www.fas.org/irp/
offdocs/nsc-hst/nsc-68.htm. Describing the resource imbalance that had been developed thirty
years later, Zbigniew Brzezinski said: "In the Department of State you have the glory of the office,
to fly around in a big plane and to appear at international meetings. But you don't have the clout.
The Secretary of Defense spends money while the Secretary of State begs for money." Quoted in
DAVID ROTHKOPF, RUNNING THE WORLD: THE INSIDE STORY OF THE NATIONAL SECURITY
Council and the Architects of American Power 181 (2005). Of course, as the merger of
USIA into DoS was undertaken during the 1990s, the overall post-Cold War decline in funding
for public diplomacy first accelerated and then kept deteriorating until at least 2004, despite the
statutory safeguards for Fulbright exchanges and a few favored programs, the appointment of
politically prominent under secretaries, and the many studies that called for more funding.
29. A DoD inquiry led by Rear Admiral Scott Van Buskirk concluded that propaganda ef-
forts, including the paying of reporters, could damage US credibility and should be stopped. Da-
vid S. Cloud, U.S. Urged to Stop Paying Iraqi Reporters, NEW YORK TIMES, May 23, 2006, at A19,
available at http://www.nytimes.com/2006/05/24/world/middleeast/24propaganda.html?ex
= 1306123200&en=87f776e901aal26a&ei=5088&partner=r. Of course, military public affairs
manuals have always taught this, and the many competent, hard-working military public affairs
officers at the field grade level and above that I have known have been well aware of this precept.
Accordingly, I am left with the impression that there was inadequate military supervision of the
activity or such an abundance of resources that the decision may have been made at a lower level.
30. One commercial upon which much hope was based showed Iraqi youth of apparently
different backgrounds joyfully playing soccer together as an apparent metaphor for the task of
national unification. Unfortunately, the use of the spot had to be curtailed abruptly when news
got out that it had been produced in a neighboring country with local children, presumably be-
cause security conditions in Iraq prevented filming it there with Iraqi children.
31. In a survey of embassy public affairs officers in 2003, half reported to the US Govern-
ment Accountability Office (GAO) that they lacked sufficient officers to carry out public diplo-
macy activities. See Jess T. Ford, State Department Efforts Lack Certain Communications
Elements and Face Persistent Challenges (May 3, 2006), available at http://www.gao.gov/
new.items/d06707t.pdf. Mr. Ford, the Director, International Affairs and Trade, GAO, was testi-
fying before the Subcommittee on Science, the Departments of State, Justice, and Commerce,
and Related Agencies, House Committee on Appropriations.
32. For instance, Professor Nye argues that one of the most successful of all soft power epi-
sodes was the Cold War exchange program that brought Alexander Yakovlev to the United States
in 1958 and exposed him to the pluralist ideas that later influenced the development oiglasnost
and perestroika. This, and most of the other classic episodes of public diplomacy described nicely
233
Strategic Communications and the Decline of US Soft Power
on http://www.softpowerbeacon.blogspot.com by Mark Safranski, emphasize the long-term
framework in which successful public diplomacy takes place.
33. Chalmers Johnson's book, BLOWBACK: THE COSTS AND CONSEQUENCES OF AMERICAN
EMPIRE (2000), focuses specifically on the unexpected consequences of America's overseas mili-
tary presence and actions. Stuart C. Miller's work, BENEVOLENT ASSIMILATION: THE CONQUEST
OF THE PHILIPPINES, 1899-1903 (1982), is more limited in scope. Both analyses are rooted in a
concern for overseas expansion through military action that harks back to Charles Beard, Wil-
liam Appelman Williams, Richard Van Allstyne and others.
34. Chalmers Johnson, The Sorrows of Empire: Militarism, Secrecy and the End
of the Republic (2004).
35. Andrew Bacevich, The New American Militarism: How Americans Are Se-
duced by War (2005).
36. JOHNSON, supra note 34, at 5.
37. Further evidence for Bush Administration preference in the use of the military over civil-
ian resources in the conduct of foreign policy came out just as this paper was being completed.
See Mark Mazzetti, Military Role in U.S. Embassies Creates Strains, Report Says, NEW YORK
TIMES, Dec. 20, 2006, at A8, available at http://www.nytimes.com/2006/12/20/washington/
20embassy.html?ex=1324270800&en=e8eb89f0fecldf44&:ei=5088&partner=rssnyt&:emc=rss.
Mazzetti reported that the Senate Foreign Relations Committee staff had just completed a report
showing that "the expansion of the Pentagon's presence in American embassies is creating fric-
tions and overlapping missions that could undermine efforts to combat Islamic radicalism." Id.
38. See Richard F. Grimmett, U.S. Use of Preemptive Military Force, Congressional Research
Service (Sep. 18, 2002), available at http://fpc.state.gov/documents/organization/13841.pdf.
39. The Carnegie Council organized a high-level debate on the question of evaluating the
preemptive use of force that was the subject of an entire issue of volume 17, no. 1 of their journal
ETHICS AND INTERNATIONAL AFFAIRS (Spring 2003). On the deepening of the controversy, see
Howard LaFranchi, Bush's 'Preventive War' Doctrine Under Seige, CHRISTIAN SCIENCE MONI-
TOR, Feb. 4, 2004, at 1, available at http://www.commondreams.org/headlines04/0204-03.htm.
40. Julia E. Sweig, Friendly Fire: Losing Friends and Making Enemies in the Anti-
American Century 53 (2006).
41 . Stanley Hoffman, The Foreign Policy the U.S. Needs, THE NEW YORK REVIEW OF BOOKS
(Aug. 10, 2006), available at http://www.nybooks.com/articles/19217. Hoffman quotes Henry
Kissinger's statement in American strategy and pre-emptive war, TRIBUNE MEDIA SERVICES, Apr.
13, 2006, available at http://www.iht.com/articles/2006/04/13/opinion/edkiss.php.
42. LaFranchi, supra note 39, quotes the associate director of the London-based Institute for
Public Policy Research as saying: "The lack of credibility brought on by going to war in Iraq on
the basis of inaccurate intelligence has undermined public trust and made the world more inse-
cure."
234
XIV
Strategic Communications and
the Battle of Ideas
Mari K. Eder*
[I] have been commenting on the challenges our country — not just our gov-
ernment— but our country faces in fighting a war in this new media age. And
while the enemy is increasingly skillful at manipulating the media and using the
tools of communications to their advantage, it should be noted that we have an
advantage as well: and that is, quite simply, that truth is on our side and ulti-
mately . . . truth wins out.
/ believe with every bone in my body that free people, exposed to sufficient informa-
tion, will, over time, find their way to right decisions.
Donald Rumsfeld1
This quote and other like comments in recent months have served to reignite
the public debate about strategic communications, propaganda and how
our government communicates, at home and to the world.
A great deal of that frustration centers on the existing capability of current pub-
lic affairs communications structures to deliver the nebulous benefits of "strategic
communications." This situation is not unique to the Department of State, the De-
partment of Defense (DoD), the Army and the other military Services or elsewhere
in the executive branch of government. Yet as our government works on trans-
forming to meet the requirements of a new age, the question of how to transform
and strategically develop communications is one of great concern.
Brigadier General, US Army.
Strategic Communications and the Battle of Ideas
At issue is the concern that America does not communicate clearly with the
world. Oftentimes there is concern that the US government sends "mixed mes-
sages" or fails to clearly and consistently communicate policy. While this has the
potential to frustrate allies and confuse both potential friends and enemies, it also
conveys weakness in the national will to any nation seeking to understand the in-
tent of the United States with regard to international relations. The recent Supreme
Court ruling on tribunals is a case in point.2 Did the Court's ruling that military tri-
bunals are illegal convey a strategic or mixed political message to international
audiences?
A review of international news in the days following the ruling reveals reactions
ranging from appreciation of the American democratic process to cautious opti-
mism or even outright skepticism. BBC News from London bluntly termed the rul-
ing a "Stunning rebuff to President Bush," and the French press generally followed
a similar theme of "Supreme Court Disavows Bush." German national radio hailed
the ruling as a "Victory for the Rule of Law." Civilian news media from Spain and
Italy to Pakistan and China agreed, while in Sweden editorial writer Henrik
Bredberg, in the liberal South Sweden newspaper Sydsvenskan, commented "Now
the judicial power has put a check on the executive power. Thanks for that."3
The Arab press reaction was more skeptical. In London's Al-Hayat Arabic news-
paper, columnist Jihad al-Khazin commented,
This was all great news, so great that it was reported by all American and international
media outlets and continues to draw reactions until this very day, but none of it is true,
or, if we wish to be accurate, will never see the light of day, because on the same day that
the Bush Administration declared its commitment to the Supreme Court's ruling, the
Senate Judiciary Committee was holding hearings on the treatment of accused
terrorists.4
In March 2006, Under Secretary of State for Public Diplomacy and Public Af-
fairs Karen Hughes gave a speech on transformational public diplomacy at the
Baker Institute for Public Policy. In her remarks she talked about six key areas in
which transformation is fundamentally changing the way the State Department
does business. She first discussed how funding is increasing for programs that are
working. In particular, she mentioned international exchange programs, a direct
form of community outreach, albeit on a global scale. She noted, "People who
come here see America, make up their own minds about us and almost always go
home with a different and much more positive view of our country."5
Hughes went on to discuss the State Department's emerging strategy concern-
ing public communications. While acknowledging the rapidity of global commu-
nications, she touted the Department's new Rapid Response Center — not a
236
Man K. Eder
completely new concept, but a hybrid based on the successful model used by De-
partment of Defense public affairs during the kinetic phases of the recent wars in
Afghanistan and Iraq. The Center monitors daily communications worldwide and
provides a summary to diplomatic outposts, along with America's message in re-
sponse. This information enables American government representatives to be
more effective advocates for US policy. Additionally, the establishment of regional
hubs to position spokesmen in key media centers like Dubai will ensure even
greater presence and reach. Hughes has likewise given ambassadors and foreign
service officers greater freedom to reach out, both directly and through the civilian
news media.
Finally, Hughes said the State Department is placing greater emphasis on using
public diplomacy to shape policy. From her travels, she learned that America hasn't
always shaped programs to make their benefits clear to average people. She said,
" [The President has] now instructed us to look at ways to make our programs more
effective, to set clearer goals, focus our programs and partner with the private sec-
tor .. . then make sure we communicate what we are doing — a perfect example of
the intersection of public diplomacy and policy."6
Defense Communications Strategy
In his recent speech to the Council on Foreign Relations, Secretary of Defense
Donald Rumsfeld commented on the Defense Department's view of the way
ahead:
[Gjovernment public affairs and public diplomacy efforts must reorient staffing,
schedules and culture to engage the full range of media that are having such an impact
today.
Our U.S. Central Command, for example, has launched an online communications
effort that includes electronic news updates and a links campaign, that has resulted in
several hundred blogs receiving and publishing Centcom content.
The U.S. government will have to develop the institutional capability to anticipate and
act within the same news cycle. That will require instituting 24-hour press operation
centers, elevating Internet operations and other channels of communications to the
equal status of traditional 20th century press relations. It will result in much less
reliance on the traditional print press, just as the publics of the U.S. and the world are
relying less on newspapers as their principal source of information.
And it will require attracting more experts in these areas from the private sector to
government service. . . .
237
Strategic Communications and the Battle of Ideas
We need to consider the possibility of new organizations and programs that can serve a
similarly valuable role in the war on terror in this new century. . . . There's no
guidebook ... no roadmap ... to tell our hard working folks what to do to meet these
new challenges.7
DoD efforts to focus on the need to improve public affairs were brought to the
forefront in 2004 during a "Tank brief to the Service chiefs of staff on the subject of
public affairs. That session was held as the result of a continuing debate centering on
the frustration of commanders with a communications process that had not only
been ill defined, but little understood. It is reminiscent of the comment by Admiral
Ernest J. King, Chief of Naval Operations, who reportedly said the following in the
early days of WWII, "I don't know what the hell this 'logistics' is that Marshall [Army
Chief of Staff General George C. Marshall] is always talking about, but I want some
of it!"8 Many felt the same about strategic communications although few knew what
it was or how it should work. To this day, strategic communications remains poten-
tially the most misused and misunderstood term in the military lexicon.
Following that session, DoD began to move to grow a strategic communications
capability and structure, supported by the findings of the Quadrennial Defense
Review (QDR). Recognizing the importance of applying strategy to communica-
tion, the position of Deputy Assistant Secretary of Defense (Joint Communication)
(DASD(JC))was created in December 2005. This billet was established to "Shape
DoD-wide processes, policy, doctrine, organization and training of the primary
communication supporting capabilities of the Department. These include public
affairs, defense support for public diplomacy, visual information, and information
operations including psychological operations."9 The terms of reference estab-
lished for the creation of this position state that it exists to maximize DoD's capa-
bility to communicate in an aggressive and synchronized manner. It clearly
represents the first formal recognition of the need for a military communication
advocate at the highest level.
One of the primary tasks of the DASD(JC) is to drive communications transfor-
mation in DoD and to implement decisions from the 2006 QDR to improve all as-
pects of strategic communications. A working roadmap is being developed to
provide strategic direction, objectives, milestones and metrics for success. Just as
importantly, the roadmap identifies program and budget implications of strategic
communications initiatives.10 There are three overarching objectives the roadmap
seeks to achieve:
1 . To define roles and develop Strategic Communications doctrine for the primary
communication supporting capabilities: public affairs, information operations,
military diplomacy and defense support to public diplomacy.
238
Marl K. Eder
2. Resource, organize, train and equip the DoD's primary communication support
capabilities.
3. Institutionalize a DoD process in which Strategic Communication is
incorporated in the development of strategic policy, planning and execution.
There has never been a validated joint requirement for public affairs. No re-
quirement had been established for a public affairs capability to support joint/
combined/expeditionary operations. The consequences of this omission set the
groundwork for failure in communicating operations that developed rapidly and
on the global media stage. What commanders expect/want is not described in any
detailed fashion so the Services were left to estimate requirements through their
own doctrine; thus there should be no surprise that capabilities did not match de-
mands or expectations.
Along with the establishment of the position of the DASD(JC), DoD took steps
to formally assign responsibility for communication proponency, to establish a
joint structure to provide a rapidly deployable communications capability and to
build a capacity to develop both communications doctrine and materiel. These
capabilities were embedded in the mission set and function of the Joint Forces
Command-based Joint Public Affairs Support Element (JPASE).
The evolving JPASE organization exists to support the integration of communi-
cations into warfighter training, to develop operational public communications
programs and policies to support the warfighter and to provide the combatant
commander with a rapidly deployable military public affairs capability at the begin-
ning of an operation, when public communications are most critical and have the
potential to be most effective.
In the past several years, much discussion in the Army has centered on the in-
ability of the existing public affairs structure to serve the Army with a strategic
communications capability. In fact, the function had not been empowered and has
been barely resourced to succeed. Despite repeated recommendations from studies
such as the McCormick Foundation's report America s Team; The Odd Couple — A
Report on the Relationship Between the Media and the Military11 following the Gulf
War, the Army did not prioritize the public affairs resources necessary for it to
serve as the information combat force multiplier it can — and should be. Journalist
Richard Halloran explained it this way more than fifteen years ago:
The most important element in the relationship between a journalist and a PAO
[public affairs officer] is the policy of the PAO's commander. A commander with an
open attitude communicates that tone to his subordinates and enables the PAO to do
his job. A commander who wants a palace guard will get it, and with it, most likely, a
239
Strategic Communications and the Battle of Ideas
bundle of bad press clippings. . . . Equally important, when things beyond the PAO's
reach go wrong, and they will, the commander must protect him against the wrath
from above, just as he would protect another staff officer.12
The Army public affairs field not only failed to improve in the years following
the first Gulf War, its stature even declined. How did this happen to a career field
that seemed to be advancing well, as recently as a few years ago? It happened sur-
prisingly in plain view — of Army leaders, public affairs practitioners and the audi-
ences the Army serves. It happened despite a plethora of studies on the "military-
media relationship," although nearly all of these deal with the relationship between
military leaders and the media. Very few ever address the actual communications
business of public affairs or the public affairs professionals who facilitate relation-
ships on both sides of issues.
The balance may have changed as the role of Information Operations began to
rise and gain influence and recognition, at the expense of the less- well-funded and
operationally regarded public affairs organization. This occurred concurrently
with the advent of the term strategic communications and its subsequent growth in
appeal and stature. It seems that one reason for the appeal of both information op-
erations and strategic communications lies in the inherent nature of the one-way
communications that use of the term invokes. Many senior Army operators, as
they have historically, don't trust the press and by association, similarly distrust
their press officers. And while some believe Information Operations, by its very na-
ture, doesn't necessarily require or involve interaction with public affairs or the
media, it is absolutely essential that public affairs professionals have complete ac-
cess to, and situational awareness of, any communication interaction in the global
information environment. It can be, after all, the most seemingly insignificant
communication that can have international or strategic consequences.
Even as the QDR addressed the need to implement a culture of strategic com-
munications within the Department of Defense via the Strategic Communications
Execution Roadmap, the Services were beginning to move forward to make sense
of a concept that has been broadly but poorly defined, and often little understood.
In the Army, the concept of developing a strategic communications process was
initiated in 2004 with the establishment of a Strategic Communications team
within the Office of the Director of the Army Staff.
While the team's charter required linking communications to Army strategy
and priority programs, it has taken nearly two years for the effort to mature to a
level that can best be described as "walk" in the "crawl, walk, run" paradigm. Since
then, the responsibility for all Army strategic communications planning was trans-
ferred to the Office of the Chief of Public Affairs, along with the attendant staffing
240
Mart K. Eder
and funding for contract support. Using an enterprise approach to communica-
tions across the Army, the new staff is tasked to understand and define their char-
ter; develop relationships with Headquarters strategists, subject matter experts and
other communicators; and create the structure, processes, culture and image to
communicate the Army's story. Through the Strategic Communications Coordi-
nation Group they moved to develop plans and associated products, such as the
Army Communications Guide, furthering understanding of significant Army
themes and messages, campaigns and events by a variety of audiences.
Today, there is growing senior staff-level support for the application of strategy to
communications and acceptance of collaborative planning processes in crafting ma-
jor communications campaigns. This initial framework for public affairs is serving as
a sense-making device, a construct that allows us to make sense of a new idea.
The progress to date cannot be described as grand strategy on the national level,
or even DoD-level application of strategic communications. The impact of strate-
gic communications planning and processes at the Department of the Army is that
strategic communications has become well-nested in the Army's strategy for trans-
formation and solidly linked to the National Military Strategy (Addendum, Figure
1). This is significant. By beginning the hard, detailed, day-to-day work of estab-
lishing coordination and development/design processes for communications
planning first at the Headquarters, and in the next year, throughout the Army's
subordinate commands, the Army has taken the initial difficult steps of building an
understanding of what strategic communications is and how strategic communi-
cations planning can work.
These efforts have already paid dividends in linking communications to the
Army's long-term programs and processes in supporting transformation (Adden-
dum, Figure 2). As national concepts of strategic communications planning mature
and the Department of Defense implementation of strategic communications pro-
cesses evolve, the Army's efforts to date will ensure the Army is ready to support
and complement those efforts.
Former Special Assistant to the Secretary of Defense Larry DiRita said the head-
ache of transformation is worth it: "The old-fashioned idea that you develop the
policy and then pitch it over the transom to the communicator is over. You're con-
tinually thinking about communication throughout the course of the policy devel-
opment process."13 This is the baseline for, and well-codified in, the recent QDR.
The Public Affairs Officer
At the unified commands, public affairs capabilities had been historically dimin-
ished through restrictions in force and grade structure. A colonel/captain-level
241
Strategic Communications and the Battle of Ideas
public affairs officer (PAO) serving on the Unified Commander's staff absolutely
cannot compete on a level playing field with the two-star J-3s and J-4s for the Com-
mander's time and attention. The senior communicator on a four-star combatant
commander's staff must be, at a minimum, a one-star flag officer. Otherwise, the
message is that the communications function is significantly less important than
the other command and staff functions.
An effort to remedy this situation through a proposal for brevet promotions did
not advance this past year at DoD, but shows promise for the future. Recommen-
dations supporting this change first surfaced over fifteen years ago and, while the
recommendations have great merit, they have languished in a zero-growth envi-
ronment as being "just too hard" to accomplish.
In 1995 the Freedom Forum First Amendment Center's report, America s Team;
The Odd Couple, focused on the relationship between the media and the military.
The study was extensive and the recommendations detailed and exacting. The re-
port recognized the need for strategic public affairs leadership at the unified com-
mands, stating, "In major conflicts such as Desert Storm, the Secretary of Defense
and the Chairman of the Joint Chiefs of Staff should consider assigning an officer
of flag or general rank in the combat theater to coordinate the news media aspects
of the operation under the commander of U.S. military forces."14
This did occur at US Central Command in the early days of Operation Iraqi
Freedom. As operations in the Central Command theater began to generate opera-
tional velocity on the international stage, it became apparent the public affairs col-
onel did not have the staff muscle to serve the command at that required level. Rear
Admiral Craig Quigley, a career public affairs officer, was detailed from the Office
of the Secretary of Defense Public Affairs to Central Command to serve as the
Director of Public Affairs. Upon his retirement, Jim Wilkinson, a White House ap-
pointee with general officer-commensurate rank, was assigned to take his place.
When Wilkinson left at the conclusion of major ground combat operations, US
Central Command looked for a civilian of his stature, experience and connections
to take his place. That search was unsuccessful and the Central Command public
affairs effort slowly began to revert back to its pre-war configuration and
capability.
By the summer of 2004, US Central Command's public affairs staff complexion
had changed drastically from what it was at the height of the conflict. From a staff
of 70, headed by a general officer or civilian equivalent, to a staff of barely ten, the
office remained functional despite the split operations between Tampa, Florida
and Doha in Qatar. Obviously, such a limited staff was unable to deal with the
tempo of communications requirements, either with American or international
audiences, that had increased since the end of the conflict. This was not due to a
242
Mart K. Eder
lack of proficiency on the part of the staff, but was a direct result of the immense
nature of the continuing demands of the global information environment.
Information Operations began to expand to fill that void, although later the
overlap in mission sets was largely resolved with an expanded staff in the public af-
fairs office. That office generated a strategic communications approach to reaching
American, allied and Iraqi audiences and initiated an aggressive communications
outreach focus.
The Army's position is that all general officers are both senior leaders and senior
communicators. The Army focuses on the need to broaden the baseline communi-
cations skills of all Army officers and make them all communicators. Those who
choose the Public Affairs Functional Area career path must understand this reality.
Following DoD's lead, Army public affairs proponency is likewise reviewing the ca-
reer paths, training and education for all its public affairs officers. For example, ad-
vanced degree opportunities are much broader, including such disciplines as mass
communications, strategic communications, diplomacy, international relations or
even public administration. The Army recognizes its communications profession-
als need to be more broadly capable, culturally aware and able to operate in vola-
tile, uncertain and stressful information environments.
The PAO is grounded in the operational Army through a base career as a soldier
and a leader, commander and staff officer. Once entering the communications
career field, this pentathlete can provide a broad range of communications capa-
bilities to a commander. The PAO typically manages a portfolio that spans the full
spectrum of information delivery, from internal product development, to staff
participation in the military decision-making process, to outreach innovation, leg-
islative liaison, crisis communications, speech/testimony writing and communica-
tions operations, as well as strategic communications planning.
Army public affairs officers are already leaders, spokesmen and Army champi-
ons, translators and advocates. They are strategic communications planners and
independent thinkers and decision makers. Future plans are to broaden their expe-
rience base to ensure that PAOs are agile, flexible, culturally aware, sophisticated in
emerging communications technologies and savvy in dealing with all types of media.
Additionally, the notion of "broadening" career experiences for all Army officers is
expanding through the Joint, Interagency, Intergovernmental, Multinational
(JIIM) opportunities program. There are a number of other natural opportunities
for an officer with this broad skill set to pursue: recruiting/marketing, legislative li-
aison, strategist, scholar or interagency fellow.
Of late, both the Army and the Air Force have placed individuals with opera-
tional backgrounds in the position of chief of Service communications. Kenneth
Bacon, a former reporter who became Pentagon spokesman during the Clinton
243
Strategic Communications and the Battle of Ideas
administration, has commented on this recent trend. "By far, the Navy and the
Marines have been the most successful at public affairs,"15 he said. In the Navy in
particular, he added, "They get these guys as young lieutenants, they work their
way up through the system, and they know one of them is going to end up as Chief
of Naval Information [the top Navy spokesman] ."16 This is not true in the Army or
the Air Force.
In his recent testimony before the House Armed Services Subcommittee on Ter-
rorism, Unconventional Threats and Capabilities, Rear Admiral Frank Thorp
agreed. "The Navy ... is the only military service to consistently promote Public Af-
fairs professionals to flag rank," he stated. And now, "Only one of the four services
communication efforts are led by a career-qualified communication professional."17
So while the officers now heading Air Force public affairs have made "a good
start," Bacon said, "if you really want to improve public affairs, you need to make it
a productive career path: Build a strong cadre of young officers and promote them
up the chain until one of them becomes the top person in public affairs."18 The ad-
vent of broad-based strategic communications processes and the pentathlete con-
cept for officer career development certainly makes this outcome possible for the
Army's public affairs career professionals.
Vision
The emergence of strategic communications as a concept around which we can
build solid, meaningful and timely national communication of policy is logical and
ripe for development. At the national level our greatest asset is the recognition that
from the seat of government, communications must be tied to national strategy
and policy. Strategic communications is evolving as a process, one of necessity
born in collaboration and integrated into every operation emanating from the na-
tional security strategy of the United States. Within the executive branch of gov-
ernment, we must be able to communicate consistently and clearly with America's
allies and foes, with international audiences across the world stage and remove the
haze of suspicion born of mixed, changing or incomplete messages.
In DoD, our most promising efforts center on the evolving QDR Roadmap and
ongoing efforts to organize, equip, and train career public affairs officers and sup-
port change in the communications field, while educating the force as to the broad
range of capabilities this joint field can offer the joint commander. Strategic com-
munications is not public affairs, but what it brings to public affairs is the strategic
tie, focus and structure.
In the Army, the advent of strategic communications offers the resurrection of a
small, historically marginalized career field, providing both challenge and
244
Man K. Eder
opportunity for sophisticated career communications professionals. The door is
open for these pentathletes to fulfill the need for strategic communications plan-
ning, to teach awareness and broaden the communications capabilities across the
Army, and to provide strong communications support to the warfighter. This is the
potential for strategic communications — to offer insight and understanding of
how to apply information as a formidable element of national power.
Strategic communications is the process that serves as our route to the future,
an acknowledgement of the need to craft communications with forethought, in-
sight, and necessary ties to national strategy and US government policy objectives.
It is logically led by career public affairs officers who have the training, experience,
capability and potential to make it successful.
Notes
1. Donald Rumsfeld, Remarks at the Council on Foreign Relations (Feb. 17, 2006), avail-
able at http://www.defenselink.mil/Speeches/Speech.aspx?SpeechID=27 (emphasis added).
2. Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
3. Henrik Bredberg, SYDSVENSKAN, June 30, 2006.
4. Al-Khazin, Commander in Chief Who Never Commanded, AL-HAYAT (London), July 17,
2006, at 20.
5. Karen P. Hughes, Remarks at the Shell Distinguished Lecture Series, Baker Institute for
Public Policy (Mar. 29, 2006), available at http://www.state.gOv/r/us/64106.htm.
6. Id.
7. Rumsfeld, supra note 1.
8. Robert D. Heinl, Jr., DICTIONARY OF MILITARY AND NAVAL QUOTATIONS 175 (1966).
9. Lawrence DiRita, Terms of Reference, Deputy Assistant Secretary of Defense (Joint
Communication) in the Office of the Assistant Secretary of Defense (Public Affairs), (Jan. 6,
2005) (on file with author).
10. Draft Quadrennial Defense Review Execution Roadmap for Strategic Communication
(Feb. 2006) (on file with author).
1 1 . America's Team; the Odd Couple — A Report on the Relationship Between the
MEDIA AND THE MILITARY (Frank Aukofer & William P. Lawrence eds., 1995) [hereinafter
America's Team; The Odd Couple].
12. Richard Halloran, Soldiers and Scribblers Revisited: Working With the Media, PARAME-
TERS, Spring 1991, at 10.
13. Linda Robinson, The Propaganda War, U.S. NEWS & WORLD REPORT, May 29, 2006, at
29-31.
14. America's Team; The Odd Couple, supra note 1 1, at 3.
15. Sydney Freedberg, Jr., NATIONAL JOURNAL Daily Briefing, Feb. 17, 2006.
16. Id.
17. Statement of Frank Thorp, Deputy Assistant Secretary of Defense (Joint Communica-
tion) at a closed door hearing of the House Armed Services Subcommittee on Terrorism, Un-
conventional Threats and Capabilities, 109th Congress (July 19, 2006).
18. Freedberg, supra note 15.
245
Man K. Eder
ADDENDUM
247
Strategic Communications and the Battle of Ideas
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249
XV
Challenges of Strategic Communication
Michael A. Brown
*
Successful strategic communication is vital to ensure the success of US policy
abroad and at home and to restore global credibility damaged by recent scan-
dals and our inability to compete in a global market for American ideals on a timely
and relevant basis. The United States is constantly under the international micro-
scope, and how we deal with issues like North Korea, Iran and the recent outbreak
of hostilities between Lebanon and Israel is debated, discussed, supported and vili-
fied in the international community on a daily basis. It is critical that we do not fall
into the realm of "Do as I say, not as I do" as we craft our strategic message to the
global community. Too often the actions we take speak louder than what we say —
most especially when those actions are not consistent with our strategic message.
We need to consider many points of view when dealing with the issue of strate-
gic communication, with generational, ideological, religious, global and regional
impacts requiring a consistent and coordinated theme or message. Strategic com-
munication is about shaping choices at many levels to avoid crisis or lessen crisis,
defeat propaganda, explain a position (legally, morally or ethically) and shape the
future. The message is dynamic, continually requiring assessment and change, and
requires an agile and coordinated approach both horizontally and vertically
through all levels of government. We can no longer focus on single areas of respon-
sibility— every action or inaction has the potential to be global in nature. The wider
Rear Admiral, United States Navy.
Challenges of Strategic Communication
coordination of strategic communication as a consideration into all aspects of mil-
itary planning and operations will not only enhance military effectiveness as a tool
to advance US strategic interests, but will heighten awareness of both legal and eth-
ical considerations that are vital in allowing the United States to regain, then main-
tain, the high ground in global perception management. This is where our
challenge lies. We must ensure a common understanding of strategic goals/
themes/messages with cooperation and message alignment across legislative liai-
son, interagency coordination, public affairs, fleet operations and information op-
erations, while remaining credible and garnering trust. Key considerations are
balancing credibility with ethical, legal and political considerations to create effec-
tive strategic communications policy. Slow "official" response damages credibility
and undermines what is eventually released. We must plan from the beginning
with an effects-based model derived from our strategic goals.
What are our liabilities when employing the news media, public opinion and the
Internet as weapons of war? Who coordinates all the information activities under
the strategic communication umbrella? How is it synchronized? Should it be
through designated personnel in the field or at senior levels in the Pentagon or the
State Department where sometimes sensitive policy decisions can be made? At
what point does trading speed for "the right answer" hurt our overall strategic
communication effort, when our enemies are capable of responding faster and
faster? Timeliness has become critical; the hostilities in Lebanon being a prime ex-
ample. Since the cessation of hostilities, Hezbollah has already made news as they
begin to rebuild the damage done by Israeli missiles and provide services and funds
to the people of southern Lebanon who are returning to their homes, while the
United Nations is still struggling to reach a satisfactory agreement with all parties
regarding a UN peacekeeping force.
Coordinating a coherent strategic message is further complicated by new media
outlets such as blogs, chat rooms and text messaging, which are becoming pre-
ferred sources for information — regardless of validity — in some demographic
groups, and make "managing" information release impossible. Yet they also offer
new opportunities to influence key audiences and undermine adversaries. How are
we to compete in this Infosphere? What is the role of the military and how do we
synchronize within the government? The globalization of media and the abbrevi-
ated news cycle (anyone with a cell phone can become a potential "reporter") can
transform all levels of military operations into potentially devastating strategic lia-
bilities (e.g., the alleged murder of Iraqi civilians by US marines in Haditha in
November 2005). The public will accept some level of moral ambiguity if the stakes
are high. However, if there is not a jointly negotiated, practical ethical standard of
252
Michael A. Brown
conduct, and despite the overall legality of the undertaking, the operation can re-
sult in a tactical win but a strategic loss.
In the end, strategic communication, via public affairs, information operations
and other capabilities, involves complex legal issues requiring careful review and
national level coordination. We must divine the proper roles and responsibilities
for all and develop a process which is both timely and meets the needs of all partici-
pants in the Department of Defense and the rest of the government. Considering
the stakes involved in "fighting the long war"1 against dispersed, global terrorist
networks, the balance between ethical considerations, credibility and gain (e.g., the
potential reduction in US casualties, damage to infrastructure, domestic and global
economies and deterrence of enemy actions) makes strategic communication a job
for all — ambassadors, Foreign Service Officers, Cabinet officials and members of
Congress, as well as those of us in the Department of Defense.2
Notes
1. Department of Defense, Quadrennial Defense Review Report 9-18 (Feb 6, 2006), avail-
able at http://www.defenselink.mil/pubs/pdfs/QDR20060203.pdf.
2. An Around-the-World Review of Public Diplomacy: Hearing Before the House Committee
on International Relations, 109th Congress 34-42 (2005) (statement of Karen Hughes, Under
Secretary for Public Diplomacy and Public Affairs, US Department of State).
253
PART VII
GLOBAL DISASTERS
XVI
Global Disasters: Pakistan's Experience
Ikram ul Haq*
Introduction
The earthquake that struck Pakistan on October 8, 2005 left behind wide-
spread devastation and enormous loss of life with extensive damage to eco-
nomic assets, infrastructure and social service delivery. The devastation was spread
over 30,000 square kilometers of Himalayan terrain. It affected half a million
households, destroyed most of the educational institutions in the affected area and
killed over 73,000 people, including 18,000 children. The majority of health care
units collapsed, communications infrastructure was rendered unusable, all essen-
tial utilities were disrupted and the area was strewn with two hundred million tons
of debris. Families lost their breadwinners, senior citizens were left alone to fend
for themselves, children lost their parents and parents are still mourning lost and
injured children. Infrastructure that took years to construct, disappeared in six
minutes. The misery did not end there. Hundreds of post-earthquake tremors
multiplied the shock and trauma. The administrative machinery that could have
helped the victims survive the disaster, itself collapsed and perished. The rugged
mountainous terrain made it more difficult and winter in the Himalayas threat-
ened the lives of the survivors, already traumatized. This, the worst natural calam-
ity in Pakistan's history, has changed the lives of millions and is one from which it
will take many years and at a cost of billions of dollars to recover.
* Brigadier General, Pakistan Army. The views expressed in this article are those of the author
alone and do not necessarily represent the views of the Pakistan government, the Pakistan
Defence Force, or the Pakistan Army.
Global Disasters: Pakistan's Experience
This article will focus on an assessment of the damage caused by the disaster, an
examination of the impediments and challenges faced in the conception and con-
duct of relief operations, and the lessons that were learned.
Damage Assessment
The earthquake struck Pakistan without warning at 8:50 am (local time) on the
morning of October 8, 2005. With its epicenter several miles northeast of the city of
Muzaffarabad, the earthquake registered 7.6 on the Richter scale, similar in inten-
sity to the earthquake that devastated San Francisco in 1906. Widespread destruc-
tion occurred throughout Pakistan-administered Kashmir, Pakistan's North-West
Frontier Province (NWFP) and the western and southern parts of the Kashmir val-
ley in Indian-administered Kashmir. A total of 147 aftershocks were experienced
throughout that day. By October 27, that number had swelled to 978 and included
aftershocks reaching intensities of up to 6.2 on the Richter scale. By early Novem-
ber, the official Pakistan government estimate of Pakistani dead reached 73,338,
with 128,304 being injured, many very severely. The earthquake triggered land-
slides that literally buried entire villages and roads. Some 59 percent of the residen-
tial structures in the region were leveled, including 67 percent of education
institutions in which 18,095 children perished in collapsed school buildings.
Health care facilities were similarly devastated, with 63 percent of the region's
medical capacity being damaged or destroyed. Rescue and recovery operations in
the mountainous area were hampered by the destruction of up to 37 percent of the
road infrastructure, including critical bridges. Government services were equally
impacted with estimates of damage to electric capability reaching 60 to 70 percent,
telecommunications 30 to 40 percent and water supply 30 to 40 percent.1
Response Challenges
Among the major challenges that were faced in the immediate aftermath of the di-
saster were both institutional and informational vacuums. With respect to the for-
mer, Pakistan had a National Crisis Management Cell (NCMC), but this
institution lacked the necessary resources and capacity. Once the earthquake shook
Pakistan, it was soon realized that the gravity of the disaster had overwhelmed the
ability of the NCMC to handle the situation. As a result, we were pretty much left in
an institutional vacuum to deal with the enormity of the crisis. This institutional
failing was compounded by the informational vacuum. The scale of devastation
and human trauma, coupled with the idiosyncrasies of the mountainous terrain
and weather, and the administrative paralysis that engulfed the region, led to an
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Ikram ul Hag
information vacuum as to the exact nature and extent of the damage and, in turn,
the appropriate response to generate. Among the major challenges faced were the
rescue of the injured and the location and removal of the dead, facilitation of the
rapid induction of disaster relief forces, and reaching out to remote villages, while
confronting chaos in the impacted cities. To illustrate the scope of the problem, it
was determined that some 470,000 tents were immediately needed to shelter the
multitudes rendered homeless.
Conception and Conduct of Relief Operations
At the National Level
The ability to organize a swift response to the enormous magnitude of the destruc-
tion and suffering was made even more difficult by the reality that the existing in-
frastructure was either very poor or totally destroyed. Realizing the gravity of the
disaster, the government immediately established the Federal Relief Commission
(FRC) with a mandate to manage the entire spectrum of relief efforts. All national
agencies concerned with the relief and rehabilitation efforts, including the armed
forces, the cabinet ministries of health, interior and foreign affairs, as well as corre-
sponding communication and information divisions, functioned through the FRC
and formed a part of the national team. FRC served as the primary interface be-
tween the government and international organizations, as well as foreign authori-
ties and various nongovernmental organizations (NGOs) focusing on the relief
and rehabilitation of the stricken area.
The FRC was organized to work with two distinct wings, the civilian and the
military. The civilian wing, comprised of ministerial representatives and coordina-
tors, looked after the inter-department and inter-agency issues, while the military
wing was responsible for the operationalization of rescue and relief efforts.
The disaster response concept consisted of four complementary strategies, i.e.,
search, rescue, relief and recovery; consequent management; rehabilitation; and
reconstruction. The FRC focused on the first two strategies while the rehabilitation
and restoration domains were addressed by the Earthquake Rehabilitation and Re-
construction Authority (ERRA). The entire effort was undertaken under one lead-
ership platform, thereby ensuring judicious distribution of disaster relief through a
synergized operation. The maintenance of law and order, the revival of civic order,
and restoration and early recovery aspects of the concept were the main thrust
lines. The FRC was fully supported by the nation, key players and stakeholders. The
decisive vision and leadership by the government throughout the crisis provided
ideal working parameters and impetus to the FRC, foreign governments, individ-
ual donors, the public and all of the governmental departments.
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Global Disasters: Pakistan's Experience
The approach adopted at the national level to meet the crises was premised on
several distinct but interfacing considerations. The FRA functioned on the basic
principle of a "one-window operation" with accessibility to all. This ensured the
maximum possible coordination at both the national and operational levels to re-
alize an economy of effort in achieving the desired results. "Reaching out" in all af-
fected areas was given top priority. All available means of transportation, to
include foot movement, animal transport, motor vehicles and helicopters, were
used to "reach out" to affected people to provide systematic, timely and equitable
distribution of relief goods and services. Of immediate concern as the weather de-
teriorated was the implementation of a strategy for the speedy construction of tem-
porary shelters and a functioning logistic chain that extended to the forward-most
places. For the first time, the government put into practice the UN "cluster ap-
proach" to managing various aspects of disaster management.2 Of particular utility
was the Strategic Leaders Forum consisting of the heads of the main international
relief and non-governmental organizations, and individual donors.
At the Operational Level
The Pakistan Armed Forces, in general, and the Pakistan Army in particular, were
responsible for all operational aspects of multi-agency and multi-organization re-
lief efforts. Two Army infantry brigades were deployed within 24 hours of the ini-
tial shock, and within 48 hours a full division had been deployed. The decision to
deploy three divisional headquarters was taken within the first 72 hours as the
enormity of the task became clearer. By the end of October, over 80,000 troops
were deployed in the disaster zone.
At the operational level, the relief operation was conceived and executed in
three stages, with each stage gradually blending into the subsequent stage, and with
considerable overlap in some areas.
Stage One (October 8-20) was the immediate rescue and relief operation. The
main focus of Stage One was the rescue of survivors, the location and removal of
dead bodies from the debris, the evacuation and treatment of the injured and the
provision of food and shelter to those most in need. Special emphasis was placed
on providing for the care and protection of vulnerable women and children.
Stage Two (October 20-December 31) concentrated on creation of stability in
the face of widespread chaos. It was a very crucial effort, as Stage Two became a race
against time, i.e., about 3.5 million homeless people had to be adequately
provisioned and protected against the fast approaching winter. The urgency of the
endeavor was reflected in the fact that the United Nations and other relief agencies
were predicting a second wave of deaths due to exposure of the vulnerable popula-
tion to the harsh winter. The main activities conducted during this stage were the
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Ikram ul Hag
provision of shelter (tents and robust transitional shelters) and the creation of tent
villages; providing food and medical support; distribution of monetary compensa-
tion for the dead, the injured and damaged homes; restoration of civic and social
amenities and institutions, with priority given to health and education sectors;
and, perhaps most importantly, bringing local government and administration
back to its feet.
Stage Three (January 1-March 31) sought to ensure that the stability created
during the previous stage was maintained throughout the harsh winter. Key ele-
ments of Stage Three included monitoring the provision of critical support activi-
ties to ensure that food, shelter and medical services were sustained throughout the
winter and into the spring, and working to ensure a smooth transition from provi-
sion of relief to the reconstruction and rehabilitation of devastated urban and rural
areas.
Reconstruction and Rehabilitation
After six months, the emergency relief phase was over and focus shifted towards re-
building the shattered areas. The Earthquake Reconstruction and Rehabilitation
Authority (commonly known as ERRA) was established to plan, coordinate, moni-
tor and regulate reconstruction and rehabilitation activities in all earthquake af-
fected areas. The ERRA developed a comprehensive three-year plan involving
eleven development sectors, with special focus on housing, health, education and
livelihood in earthquake- affected areas. Some $3.5 billion was earmarked for that
purpose, effective as of the first week of April of 2006.
The National Response
The spontaneous outpouring of compassion and generosity by the people of Paki-
stan, both at home and abroad, on a scale never witnessed before, helped the gov-
ernment meet fiscal shortfalls. Pakistanis from all walks of life stepped forward,
demonstrating our nation's highest values of caring and sharing that brought con-
solation and hope to the affected. From soldiers and voluntary relief workers to lo-
cal NGOs, the people of Pakistan stepped forward to protect and nurture the
earthquake victims.
The International Response
The people of Pakistan were overwhelmed by the generosity of the response of the
world community and voluntary organizations. Simply put, they have been of
great support to us. I take this opportunity to praise in the highest possible terms
the work of the volunteers, men and women, foreign governments, armed forces of
261
Global Disasters: Pakistan's Experience
friendly countries, the aid workers, the international organizations, NGOs and the
global civil society who worked tirelessly and selflessly to make a difference to those
who suffered. We are also deeply grateful for the generous support and assistance
of individual donors worldwide in providing desperately needed relief to the earth-
quake victims.
United States
I had the opportunity to personally observe US relief efforts while at the US Central
Command (CENTCOM). The United States responded immediately and gener-
ously to Pakistan's call for assistance following the earthquake. The US military was
in Pakistan on October 10, just two days after the earthquake. At the peak of the
initial relief efforts, more than 1,200 personnel and 25 helicopters provided vital
transport, logistics, medical and engineering support in the affected areas. US heli-
copters, nicknamed "Angels of Mercy," changed the dimension of relief efforts and
helped save hundreds of lives. I have not the words to begin to thank the United
States for its assistance. To give you some idea of the assistance provided by the
United States, a total of $510 million was pledged for earthquake relief and recon-
struction efforts. Over 250 US military and civilian cargo airlift flights delivered
more than 7,000 tons of medical supplies, food, shelter material, blankets and res-
cue equipment to Pakistan. Approximately 5,200 helicopter missions were flown,
delivering 15,000 tons of supplies and transporting more than 18,000 people. US
medical teams treated approximately 35,000 patients, while US engineers cleared
40,000 tons of debris, built a camp for displaced people, completed numerous sani-
tation projects and adopted a village that included building five schools and 50
homes. Moreover, the United States donated an 84-bed Mobile Army Surgical
Hospital and established two forward-area refueling point systems to increase heli-
copter efficiency during reconstruction.
North Atlantic Treaty Organization
NATO was a vital part of a very large effort aimed at providing disaster relief in Pa-
kistan. In total, some 1,000 NATO engineers and supporting staff, as well as 200
medical personnel, worked in Pakistan during the operation. NATO airlifted sup-
plies, donated by NATO member and partner nations, as well as by the UN High
Commissioner for Refugees, via two air bridges from Germany and Turkey. That
critical effort required 168 NATO flights that delivered almost 3,500 tons of relief
supplies. NATO helicopters transported more than 1,750 tons of relief goods to
remote mountain villages and evacuated over 7,650 disaster victims. A NATO
hospital treated approximately 4,890 patients and conducted 160 major surgeries,
while mobile NATO medical units treated 3,424 patients in the remote mountain
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Ikram ul Hag
villages. NATO also contributed significantly to the World Health Organization
immunization program that has helped to prevent the outbreak of disease. NATO
engineers were active in repairing nearly 60 kilometers of roads and removing
over 41,500 tons of debris, thereby enabling the flow of aid, commerce and hu-
manitarian assistance. NATO engineers also supported the Pakistan Army in Op-
eration Winter Race, by constructing 110 multi-purpose shelters for the
population living in the mountains. An additional nine school and health struc-
tures were completed and thirteen tent schools erected. NATO also set up an avi-
ation fuel farm in Abbottabad, which carried out some 1,000 refuelings for
civilian and military helicopters.
Lessons Learned
Combating the disastrous earthquake has been a unique and challenging experi-
ence, which fostered many lessons that can serve as guidelines for dealing with such
a calamity in the future. Among the lessons that have universal application are
those concerned with government institutions, disaster management strategy, ex-
peditious acquisition of information, the role of the media, mobilization and de-
ployment of friendly forces, cooperation with friendly armed forces and nations,
capacity building and the development and enforcement of design codes.
Institutions
Creation of the FRC within the Prime Minister Secretariat, which works directly
under the prime minister, has been a success story. A proposal is now under active
consideration to create a permanent National Disaster Management Authority
(NDMA), with appropriate legislative authority to work directly under the Prime
Minister's Secretariat. Similar disaster management capabilities are likely to be es-
tablished at the provincial level, to include control centers with requisite facilities.
Each will be maintained by a small nucleus staff, which can be suitably augmented
during a crisis.
Disaster Management Strategy
A well-thought-out and comprehensive disaster management strategy, encom-
passing the likely scenarios, delineation of responsibilities and capacity-building
guidelines must be evolved.
Expeditious Acquisition of Information
Expeditious acquisition of information regarding the extent of damage to essential
infrastructure can greatly assist in the provision of rapid and effective relief and
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Global Disasters: Pakistan's Experience
rescue. It soon became apparent that serious information shortfalls existed in our
system. Our experience demonstrates that up-to-date data pertaining to housing,
civic facilities and other details about each area should be available in the national
database. Clearly, this would be most useful for rapid damage assessment.
Some capability to undertake rapid mapping and damage assessment in the disas-
ter zone should be created. High-resolution satellite imagery/aerial photography
could prove crucial to ascertaining the location and nature of the damage
sustained.
Role of the Media
The media can make a major contribution in any relief operation. The main areas
of media contribution during the earthquake relief operation in Pakistan included
the transmission of graphic images of the destruction and the miseries of the af-
fected populace and timely, on-scene reports of the progress of relief and recovery
operations. Media reporting of the devastation stirred up great emotions within
the country, which created a flood of relief activity. Similarly, the international
media was able to mobilize the relief effort at the international level.
Local media acted as a potent watchdog on the progress of the relief and recov-
ery operation. Although at times unfairly critical, the media helped in keeping us
on our toes. Lastly, sustained media coverage proved instrumental in keeping do-
nors, both national and international, motivated to continue their generous
support.
Mobilization and Deployment of Friendly Forces
Disaster management is basically a race against time. Mobilization and deploy-
ment of some friendly forces took as long as two months because of the limited ca-
pability of the providing nation to mobilize sooner. It is recommended that
nations and alliances having the potential — and the will — to provide much needed
assistance develop the capability for rapid deployment for timely disaster response.
Cooperation with Friendly Armed Forces and Nations
The support received from friendly nations and their armed forces proved to be ex-
tremely useful. This reality highlights the need to formalize mechanisms for more
effective cooperation and coordination should the need arise in the future. To that
end, peacetime agreements with friends and allies with the potential to assist in di-
saster management and the willingness to do so must be in place before disaster
strikes. These agreements should include memoranda of understanding between
participating nations pledging delineated capabilities. This, in turn, will facilitate
the conduct of joint mock disaster relief exercises.
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Ikram ul Hag
A multinational forum to share disaster relief and recovery experiences with
each other should be created. Many nations have suffered major disasters in the re-
cent past. There is much that can be learned through the sharing of each other's
experiences.
Capacity Building
Although some agencies in Pakistan had the experience and appropriate potential
to assist in disaster management, it became painfully apparent that they did not
possess the expertise nor were they equipped to handle a large-scale earthquake.
Accordingly, additional capacity must be created, both in trained manpower and
in equipment, for specific disaster relief and rescue tasks.
Development and Enforcement of Design Codes
The extent of damage in a major calamity can be greatly reduced if residential and
commercial buildings are constructed in accordance with proper architectural de-
signs. There is a clear and impelling need to develop building design codes based
upon rigorous scientific studies. Effective provision must then be made for their
enforcement through legislative measures.
Conclusion
As noted previously, Pakistan was overwhelmed by the caring and enthusiasm of
the world community and voluntary organizations which have been so generous in
providing desperately needed relief to the earthquake victims. Having transitioned
from the relief and crisis control stage to the rehabilitation and reconstruction
phase of the recovery, the Government of Pakistan is maintaining its thrust to rein-
troduce the normalcy of life through the revival of essential infrastructure and the
civil order. At the same time, we are brainstorming a permanent "Disaster Man-
agement Agency" for preparedness and coordination of a coherent response to any
future challenge.
Notes
1 . Depictions of the widespread human and physical devastation caused by the earthquake
are available at http://en.wikipedia.org/wiki/2005_Kashmir_earthquake (last visited Mar. 12,
2007).
2. See Action Aid International, The Evolving UN Cluster Approach in the Aftermath of
the Pakistan Earthquake: an NGO Perspective, available at http://www.actionaid.org/pakistan/
images/ ActionAid%20Report%20on%20UN%20Cluster%20Approach%20April%202006.pdf
(last visited Mar. 12, 2007).
265
XVII
Australian Defence Force Experience with
Non-Government Organizations in
Humanitarian Assistance and Disaster Relief
Operations
Evan Carlin
*
Recent experience suggests that humanitarian assistance and disaster relief
operations are a growth industry for military forces. In the last 12 months
alone, the Australian Defence Force (ADF) has provided emergency aid to victims
of the Pakistan earthquake; the Indian Ocean tsunami; the Nias, Indonesia earth-
quake (in which nine ADF personnel died in a helicopter crash); and Cyclone
Larry, a category 5 tropical cyclone that tore across the north Queensland coastline
of Australia in early 2006.
Figures from the World Health Organization's Centre for Research on Epide-
miology of Disasters show that from 1990 to 2003 there was a 180% increase in the
number of people affected by natural disasters: 255 million people in 2003 up from
90 million in 1990.1 Between 1990 and 2000 in Asia alone there were 215 so-called
"non-complex" relief operations (floods, earthquakes, volcanic eruptions, etc.,
where host nations were the primary responders).2 Operation Shaddock, for
* Lieutenant Colonel, Australian Defence Force. The author is not authorized, nor does he
purport, to speak for the Australian government or the Australian Defence Force.
Australian Experience with NGOs in Humanitarian Operations
example, saw the ADF come to the aid of Papua New Guinea following a tsunami
on July 17, 1998 that killed over 3,000 people.
Complex relief operations, on the other hand, involve the delivery of humani-
tarian assistance to societies riven by warring factions, civil disorder or population
displacement, any or all of which problems might be compounded by the misery of
a natural disaster. One example is the multinational force led by the ADF to render
humanitarian aid, provide security and instill the rule of law in guiding Timor-
Leste to become the first new nation of the twenty-first century.
However one might categorize emergency relief operations, it is traditionally
the case that military forces are called upon to provide the humanitarian or disaster
aid required often with little, or indeed no, notice. Military forces have the re-
sources at hand to quickly reach inaccessible places. But increasingly, some non-
government organizations (NGOs) rival the capacity of military forces to transport
large volumes of supplies in relief operations. The Brookings Institution cites a case
in point: "During the highly visible airlift of food into Afghanistan during the win-
ter of 2001-02, the U.S. military delivered only a tiny fraction of the total brought
in through conventional operations by WFP [World Food Program] and NGOs
like IRC [International Red Cross] ."3 Not only do such NGOs have the capacity to
deliver aid where required — they can do it cheaper than military forces.
Perhaps relief operations should be left to specialist NGOs. This is the prefer-
ence of some NGOs, such as Medecins Sans Frontieres, who seek to provide aid re-
lief unencumbered by politics and military association. This would permit military
forces to maintain their focus on their core function of warfighting. Military forces
usually are only too pleased to hand over the reins of relief operations as soon as
practicable to NGOs or UN agencies. For some time the United States has been un-
easy about the resources of its armed forces being diverted from its core function,
as noted by the US Congressional Research Service (CRS):
For over a decade, some Members of Congress have expressed reservations about U.S.
military involvement in peacekeeping. The Bush Administration's decision to reduce
the commitment of U.S. troops to international peacekeeping seems to reflect a major
concern: that peacekeeping duties [defined by the CRS to include "providing security
for humanitarian relief efforts"] are detrimental to military "readiness," i.e., the ability
of U.S. troops to defend the nation.4
Certainly there is no shortage of NGOs around the world ready and willing to assist
in relief operations. It is estimated that within three weeks of the 2004 Boxing Day
tsunami in Southeast Asia there were over 109 NGOs operating in Indonesia, 84 in
Sri Lanka and 35 in Thailand.5
268
Evan Carlin
The fact remains, of course, that military forces are indispensable for relief oper-
ations in hostile or uncertain security environments. Moreover, despite the capac-
ity of NGOs for economical long-term lease of aircraft in relief operations, military
forces are unmatched in their ability to rapidly deliver aid to remote places, partic-
ularly in the maritime environment. The day after the 2004 tsunami, Australian
soldiers departed for Sumatra and within a week had established a water purifica-
tion plant in Banda Aceh. Military forces have the capacity to bring instantaneous
infrastructure to a devastated area. As simply stated in Royal Australian Navy doc-
trine: "Naval forces are self-supporting and do not create logistic burdens in situa-
tions where infrastructure has been destroyed or severely damaged."6
The NATO Review neatly assessed the military contribution to relief operations
in these terms:
The recent disasters in the United States and Pakistan have highlighted how useful
certain military capabilities can be when first responders find themselves
overwhelmed. Strategic airlift is crucial to transport urgently needed relief supplies as
commercial aircraft are not always available in sufficient numbers. Moreover,
helicopters have proven essential in the first phase of a disaster-relief operation when
roads are often too badly damaged to be passable and sealift capabilities are critical to
sustaining the relief effort in a more cost-effective way in the weeks and months
following a disaster. Rapidly deployable military hospitals and medical personnel can
also help out overburdened first responders. In addition, military engineers, water
purification units and search-and-rescue teams all have the skills that can greatly
improve crisis-response capabilities and save lives.7
Whether wrought by climate change or happenstance, the world has recently
witnessed a succession of natural disasters of such scale as to pose transnational
challenges that require international cooperation and understanding. This need
was clearly evident in the most devastating of these disasters, the Indian Ocean tsu-
nami of Boxing Day 2004.8 The tsunami was triggered by an enormous undersea
earthquake (9.3 on the Richter scale) that ruptured the earth's crust for over 1,000
kilometers, releasing tremendous energy. This, the second most powerful earth-
quake ever recorded,9 generated a tsunami whose destruction in the immediate re-
gion was shocking, and a global tragedy.
What frameworks exist for civilian-military and international cooperation in re-
lief operations? On December 19, 1991, UN General Assembly Resolution 46/1 82 10
created the Department of Humanitarian Affairs, designed to strengthen the coordi-
nation of humanitarian emergency assistance. The resolution outlined 30 guiding
principles "in accordance with the principles of humanity, neutrality and impartial-
ity"11 for the provision of relief aid. It reaffirmed the primary responsibility of States
269
Australian Experience with NGOs in Humanitarian Operations
to care for the victims of natural disasters within their borders but asserted that
"the United Nations has a central and unique role to play in providing leadership
and coordinating the efforts of the international community to support the af-
fected countries."12 The resolution makes it clear that coordination is the key tool
in humanitarian operations.
The UN Charter makes no specific reference to the use of military forces in hu-
manitarian operations. There is an inherent tension between the roles of civilian
agencies and military forces in relief operations. This was evident, for example, in
1994 during Operation Restore Hope in which US military and international civil-
ian aid agencies worked through a Civil Military Operations Center (CMOC) to
overcome their "cultural differences" for the common good of Rwandan refugees
in Zaire.13
In a perfect world there should naturally be complementarity between military
forces and NGOs in relief operations. The Geneva Conventions and their Addi-
tional Protocols14 refer to impartial relief societies concerned with the provision of
humanitarian aid and the protection of relief agency personnel. Surely this pro-
vides common ground with military forces whose duty it is to protect civilians un-
der the law of armed conflict.
In 1994 the Oslo Guidelines on the Use of Military and Civil Defence Assets in
Disaster Relief15 were adopted by various nations to provide effective interaction of
military and civilian actors in disaster relief operations. In subsequent years, the
Oslo Guidelines were developed by the UN's Office for the Coordination of Hu-
manitarian Affairs (OCHA). After a review of a number of operations, OCHA con-
ceded that in a range of international relief operations:
[T]he coordination between the international military forces and the responding UN
humanitarian agencies and other international civilian actors has been critically
examined by a number of participants and observers and found to be in need of
improvement. The success that was achieved in the use of military resources and
coordination was due largely to the extraordinary efforts of the personnel in the field. 16
Also in 1994, the International Red Cross and Red Crescent Movement pub-
lished its Code of Conduct for disaster relief operations.17 This code stipulates ten
principles founded upon the need for impartiality — that aid should be given on the
basis of and in proportion to need alone.
The conduct of civil-military relief operations requires impartiality and cooper-
ation but also cultural sensitivity and political sagacity. This was evident no more
so than in the international relief operation in the wake of the 2004 Boxing Day
tsunami.
270
Evan Carlin
About 250 kilometers from the epicenter of the earthquake, Aceh suffered the
full brunt of the tsunami's force. This was a catastrophe in one of the most iso-
lated and politically charged areas of Southeast Asia and a source of political in-
stability for more than a century.18 Before the arrival of international aid workers,
the Indonesian government had quarantined Aceh. Indonesian forces regularly
clashed with the Free Aceh Movement, or GAM, rebels. The local population is as
devoutly Muslim as anywhere in the world and Sharia law is in force. For nearly
three decades, Aceh was embattled, silent and closed off from the outside world.
The earthquake and tsunami left survivors devastated and prey to the entreaties
of al-Qaida and Jamah Islamia, whose members, undoubtedly, were gathering to
hand.
The first foreigners on the scene and with the greatest lift capacity were forces
from Australia, Singapore and the United States. Troops were unarmed and relied
upon Indonesian security to conduct relief operations. As an Indonesian com-
mander remarked, "If you want to carry a weapon, you'd better choose a side."
During the three months that the ADF conducted relief operations in Aceh, some
200 people were killed in skirmishes between GAM and Indonesian forces.
It was into this situation that thousands of troops and hundreds of civilian re-
lief workers descended. While foreign forces and NGOs scurried to organize
themselves, stoic Indonesian soldiers set about the grimmest of tasks, tirelessly
clearing waste and debris and disposing of the dead in accordance with local prac-
tice. Many of these soldiers had themselves lost loved ones. Many had no family or
homes to which to return. When the tsunami struck, Indonesian troops were con-
ducting an amphibious landing exercise. All those soldiers perished, along with
some 1,000 of their comrades at their headquarters at Banda Aceh. Offshore the
USS Bonhomme Richard Expeditionary Strike Group and USS Abraham Lincoln
provided considerable muscle and heavy lift. US Navy aviation assets were crucial
to the aid effort.
The ADF's primary concern was to ensure that the relief effort was in accor-
dance with Indonesian priorities. The view that Indonesians knew best what Indo-
nesians required was a fundamental precept of Australian, Singaporean and
American forces. Through the Civil- Military Aid Coordination Conference
(CMAC) this view was shared by other foreign forces and the majority of NGOs.
The CMAC met daily in Medan, the transport hub of northern Sumatra. An Indo-
nesian colonel, with an Australian lieutenant colonel as deputy, chaired the meet-
ings. The CMAC was the principal means of sharing information about the
progress of the mission, road conditions, security concerns, aid priorities, bottle-
necks and expectations.
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Australian Experience with NGOs in Humanitarian Operations
Expectation management was a prime concern for the CMAC. The thousands
of military and civilian aid workers who descended upon Indonesia burned with
the desire to help. The mood was reflected by Dr. Fiona Terry, founder of the Aus-
tralian section of Medecins Sans Frontieres: "Humanitarian action is more than a
technical exercise at nourishing or healing a population defined as in need; it is a
moral endeavor based on solidarity with other members of humanity."19 The role
of the CMAC (and its Secretariat comprised initially of ADF, Singaporean and US
officers, with representatives of the Australian Government Aid Program
(AUSAID), the US Agency for International Development (USAID) and the UN
Joint Logistic Centre (UNJLC)) was to manage the prosaic but crucial tasks of set-
ting priorities, allocating scarce air assets and ensuring that relief supplies were effi-
ciently and effectively distributed.
In those early weeks of the operation, certain misconceptions about the needs of
Aceh proved difficult to dispel. It fairly quickly became evident that the survivors
suffered relatively few serious injuries and that there were sufficient medical staff
and equipment for their needs. It proved challenging to stem the tide of doctors
and nurses to the region. The real needs were engineers for reconstruction, envi-
ronmental health officers to counter disease and qualified NGOs to manage the
camps of displaced persons.
A considerable amount of aid donated from around the world was undoubtedly
well intended but misguided. The warehouses in Medan were brimming with
sweaters, Western-style tinned baby food, hillocks of canned baked beans, crates of
boiled fruitcake and mounds of precooked meals for which the people of tropical
Aceh had neither the need nor the appetite. Truckloads of disposable diapers were
a mystery to these people and contributed yet more waste in a region blanketed in
litter. The pressing need was, in fact, for dried fish, rice noodles, powdered milk
and cloth diapers.20
The best NGOs were informed, organized and relatively self-sufficient. In par-
ticular, the International Organization for Migration (IOM) had vehicles and was
well organized. The World Food Program (WFP) had aircraft and their own tem-
porary accommodation. The Red Cross and Red Crescent Movement and
Medecins Sans Frontieres were experienced, politically informed and focused on
finding solutions, and Caritas efficiently directed its energies to pastoral care.
The NGOs who experienced the most frustration and were perhaps less effective
were those who were impractical, ignorant of Sharia law, failed to calibrate security
concerns into their plans, complained that the Indonesian government did not un-
derstand them and failed to appreciate that a humanitarian disaster must be ad-
dressed in its context. Some NGOs, in their callow enthusiasm, failed to appreciate
that the consent of any nation to welcome large and diverse numbers of
272
Evan Carlin
international military and civilian relief workers is rarely unconditional and open-
ended. The most egregious error by a few naive aid workers was to unilaterally set
off for Aceh by road through Sumatran jungles only to break down and themselves
become "secondary victims" of the disaster requiring assistance.
The most effective NGOs were not necessarily the large, established organiza-
tions. A capable group of well-connected volunteers from a Sydney suburban
council proved effective. Surfers Without Borders diligently hired boats and ac-
cessed the otherwise inaccessible parts of western Sumatra to paddle ashore with
supplies. And, improbably, Save the Sumatran Orangutans delighted the CMAC
by arriving with a sumptuous swag of donations to put to good use — for humans.
The ADF completed its mission in Aceh in three months. "Completed," of
course, is a relative term. The measure of success in relief operations is a matter of
delivering the greatest good in the time available. The CMAC worked efficiently,
certainly diligently, and aid was directed purposefully and quickly. It proved an ef-
fective mechanism, as OCHA describes, for bridging the "humanitarian gap be-
tween the disaster needs that the relief community is being asked to satisfy and the
resources available to meet them."21
Notes
1. Salvano Briceno, Director, United Nations Inter-agency Secretariat of the International
Strategy for Disaster Reduction (UN/ISDR), Statement at the Conference on Education, United
Nations Educational, Scientific and Cultural Organization (UNESCO), International Bureau of
Education (IBE), Geneva (Sept. 9, 2004).
2. Report from the Conference on Evolving Roles of the Military in the Asia-Pacific (Mar.
28-30, 2000), Honolulu, Hawaii, hosted by the Asia-Pacific Center for Strategic Studies, avail-
able at http:/ /www. apcss.org/Publications/Report_Evolving_Roles.html.
3. Steven Hansch, Humanitarian Assistance Expands in Scale and Scope, in SECURITY BY
Other Means: Foreign Assistance, Global Poverty and American Leadership (Lael
Brainard ed., 2006).
4. Nina M. Serafino, Peacekeeping and Related Stability Operations: Issues of U.S. Military
Involvement, Congressional Research Service (Oct. 4, 2004), available at http://www.senate.gov/
~hutchison/IB94040.pdf.
5. Commander, US Navy Warfare Development Command, Tactical Memo 3-07.6-05,
Humanitarian Assistance/Disaster Relief Operations Planning 4-2 (2005), available at http://
www.au.af.mil/au/awc/awcgate/navy/tm_3-07-6-05_navy_ha&dr_ops_plng.pdf.
6. Australian Maritime Doctrine - RAN Doctrine l - 2000, ch. 7 (D.J. Shackleton
ed., 2000), available at http://www.navy.gov.au/spc/amd/amdintro.html.
7. Maurits Jochems, NATO's Growing Humanitarian Role, NATO REVIEW, Spring 2006,
http://www.nato.int/docu/review/2006/issuel/english/art4.html.
8. The 2004 Boxing Day tsunami is listed by the Congressional Research Service as the sixth-
deadliest natural disaster since 1900:
273
Australian Experience with NGOs in Humanitarian Operations
Date
Location
July 1931
China
July 1959
China
July 1939
China
Nov. 12, 1970
Bangladesh
July 27, 1976
China
Dec. 26, 2004
Indian Ocean
Event
Estimated
Fatalities
Flood
3.7 million
Flood
2 million
Flood
500,000
Cyclone
300,000
Earthquake
242,000
Earthquake and Tsunami
224,495
[Note: Other figures estimate the tsunami death toll at between 229,866 and 275,000]
May 22, 1927 China Earthquake 200,000
Dec. 16, 1920 China Earthquake 180,000
Sep. 1, 1923 Japan Earthquake 143,000
1935 China Flood 142,000
Daniel Kronenfeld & Rhode Margesson, The Earthquake in South Asia: Humanitarian Assistance
and Relief Operations 20, Congressional Research Service (Mar. 24, 2006), available at http://
www.whprp.org/NLE/CRSreports/06May/RL33196.pdf.
9. The most powerful earthquake recorded was one measuring 9.5 that struck Chile in
1960. Seth Stein & Emile Okal, Size and Speed of the Sumatra Earthquake, NATURE, Mar. 3, 2005,
at 434, 581.
10. Strengthening of the Coordination of Humanitarian Emergency Assistance of the
United Nations, G.A. Res. 46/582, U.N. Doc. A/RES/46/182 (Dec. 19, 1991).
11. Id., Annex, Guiding Principles, para. 2.
12. Id., Annex, Guiding Principles, para. 12.
13. John E. Lange, Civilian-Military Cooperation and Humanitarian Assistance: Lessons from
Rwanda, PARAMETERS, Summer 1998, at 106.
14. See, e.g., Common Article 3 of Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 31 [Geneva Conven-
tion I]; Convention for the Amelioration of the Condition of the Wounded, Sick and Ship-
wrecked Members of the Armed Forces at Sea, Aug. 12, 1949, 75 U.N.T.S. 85 [Geneva
Convention II]; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75
U.N.T.S. 135 [Geneva Convention III]; and Convention Relative to the Protection of Civilian
Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287 [Geneva Convention IV]; all reprinted in
DOCUMENTS ON THE LAWS OF WAR (Adam Roberts & Richard Guelff eds., 3d ed. 2000) at 197,
222, 244 and 301, respectively. See also Article 17 of Protocol Additional to the Geneva Conven-
tions of 12 August 1949, and Relating to the Protection of Victims of International Armed Con-
flicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3; and Article 18 of Protocol Additional to the
Geneva Conventions of 12 August 1949 and Relating to the Victims of Non-International
Armed Conflicts (Protocol II), June 8, 1977, 1125 U.N.T.S. 609; reprinted in id. at 419 and 481,
respectively.
15. An updated (November 2006) version of the 1994 Oslo Guidelines on the Use of Military
and Civil Defence Assets in Disaster Relief is available at http://www.reliefweb.int/rw/lib.nsf/
db900SID/AMMF-6VXJVG/$FILE/OCHA-Nov2006.pdf?OpenElement.
16. OCHA, http://ochaonline.un.org/ (last visited Aug. 27, 2006).
274
Evan Carlin
17. See Code of Conduct for the International Red Cross and Red Crescent Movement and
NGOs in Disaster Relief, available at http://www.gdrc.org/ngo/codesofconduct/ifrc-codeconduct
.html.
18. In 1 883 when Krakatoa exploded in the Sunda Strait, the noise impelled the Dutch garri-
son at the other end of Sumatra to battle stations, they having assumed that Achinese insurgents
had blown up a local fort. See SIMON WINCHESTER, KRAKATOA: THE DAY THE WORLD EX-
PLODED 264 (2003).
19. Fiona Terry, Condemned to Repeat? The Paradox of Humanitarian Action
244 (2002).
20. For further discussion of these issues, see Steven Hansch, Humanitarian Assistance Ex-
pands in Scale and Scope, in SECURITY BY OTHER MEANS, supra note 3.
21. November 2006 version of the 1994 Oslo Guidelines, supra note 15, at 7.
275
XVIII
Disaster Response:
Key Legal Issues for US Northern Command
Kurt Johnson*
Introduction
During Labor Day weekend 2005, Hurricane Katrina had its own impact in
Colorado Springs, Colorado. Over 100 men and women worked at a fever-
ish pace in the Joint Operations Center and the Combined Intelligence Fusion
Center at US Northern Command (NORTHCOM) as New Orleans residents were
threatened by floodwaters creeping up to their rooftop safe havens. Similar scenar-
ios were repeated for days.
As this was the first time within the United States that a natural disaster of this
proportion had involved NORTHCOM, unique issues arose regarding the use of
Department of Defense (DoD) resources and capabilities in support of hurricane
relief operations within the United States. This article discusses NORTHCOM' s
missions, authorities and significant legal issues associated with defense support of
civil authorities during disaster relief operations.
Dual Missions
NORTHCOM is a unique geographic combatant command as it has dual missions —
homeland defense (HLD) and defense support of civil authorities (DSCA) — that
must be performed in our nation's homeland. The legal authority for
Captain, JAGC, US Navy.
Disaster Response: Key Legal Issues for US Northern Command
NORTHCOM's HLD mission is rooted in Article II, Section 2 of the US Constitu-
tion: the President's authority as Commander-in-Chief. The legal authority for the
DSCA mission is based in statute. An example is the Stafford Act.1
Legal Authorities
Stafford Act
The Stafford Act is the primary legal authority for federal emergency and disaster
assistance to state, local and tribal governments. Under the Act, federal disaster re-
lief may be initiated in four circumstances:
a. Presidential declaration of a major disaster2 at the request of a governor,3
b. Presidential declaration of an emergency4 at the request of a governor,5
c. Secretary of Defense (SECDEF) utilization of DoD resources, upon
request of a governor and at the direction of the President, to perform
emergency work for the preservation of life and property during the
immediate aftermath of an incident (before the President makes a major
disaster or emergency declaration),6 or
d. Presidential declaration of an emergency when the affected area is one in
which "the United States exercises exclusive or preeminent responsibility
and authority" under the Constitution or laws of the United States.7 The
President may make this declaration on his own volition without a
governor's request.
In the first two circumstances, the Stafford Act requires that the governor of an
affected state request a presidential declaration of a major disaster or emergency.
The governor's request must be based on a finding that the disaster "is of such se-
verity and magnitude that effective response is beyond the capabilities of the state
and the affected local governments and that Federal assistance is necessary."8 The
governor must certify that he or she has executed the state's emergency plan and
will comply with the cost-sharing requirements of the Stafford Act. The President
may then declare that a major disaster or emergency exists.
Upon the declaration of a major disaster or emergency, the governor and the
Federal Emergency Management Agency (FEMA) Regional Director execute a
FEMA-state agreement.9 The agreement describes the incident, the period for
which assistance will be made available, and the type and extent of the federal assis-
tance. It also contains the commitment of the state and local government(s) with
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Kurt Johnson
respect to the amount of funds to be expended. An emergency is an event that does
not qualify under the definition of major disaster.10 Assistance authorized by an
emergency declaration is limited to immediate and short-term assistance essential
to save lives, to protect property and public health and safety, or to lessen or avert
the threat of a catastrophe.11 Total assistance provided in any given emergency dec-
laration may not exceed five million dollars, except when FEMA determines that
continued emergency assistance is immediately required; there is a continuing and
immediate risk to lives, property, public health and safety; and necessary assistance
will not otherwise be provided on a timely basis.12
The third circumstance occurs in the immediate aftermath of an incident which
may ultimately qualify for Stafford Act assistance but before the President actually
makes a major disaster or emergency declaration. The governor may request DoD
resources to perform emergency work on public and private lands that is essential
for the preservation of life and property.13 "Emergency work" is defined as includ-
ing "clearance and removal of debris and wreckage and temporary restoration of
essential public facilities and services,"14 but may also include search and rescue,
emergency medical care and reduction of immediate threats to life, property and
public health and safety.15
The fourth circumstance that initiates federal disaster relief does not require a
request from a governor.16 The President may declare an emergency and provide
federal assistance to the governor when the affected area is one in which "the
United States exercises exclusive or preeminent responsibility and authority."17
The President is required to consult the governor, if practicable, to determine if an
emergency exists. President Clinton exercised this authority in the aftermath of the
bombing of the Alfred P. Murrah Federal Building in Oklahoma City.18 This was
the first and only use of this authority since its inception in 1988 and was likely used
because the Murrah was a federal building housing multiple federal agencies.
In comparing the power of the federal government with that of the states in
terms of disaster response and assistance, one must consider the Tenth Amend-
ment to the US Constitution, which reads, "The powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people." State and local governments derive their
authority to respond to disasters and emergencies and to enforce law from their
"police power," which is inherent in the sovereignty of every state and is reserved to
the states through the Tenth Amendment. The Stafford Act affirms the primacy of
the state's role in disaster response, because federal assistance is premised on a re-
quest from the state governor and is not imposed on the state, except in those cases
where the federal government exercises exclusive or preeminent authority over the
area affected.
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Disaster Response: Key Legal Issues for US Northern Command
NORTHCOM's dual missions present an interesting spectrum of authority
within which to act. The line between civil support and homeland defense is not
easily distinguishable and often one leads into, or overlaps with, the other. In re-
sponding to a major disaster or emergency, authorities must decide if DoD's role is
one of civil support or homeland defense, which of course depends on the nature
of the major disaster or emergency. One can think of a number of scenarios where
this determination could go either way. Without limiting DoD's national defense
mission, Homeland Security Presidential Directive (HSPD) 5 establishes a pre-
sumption that domestic incidents including "terrorist attacks, major disasters, and
other emergencies" shall be addressed by the US government in a single, compre-
hensive response, with the Secretary of Homeland Security acting as principal fed-
eral official and coordinating all federal operations in response and recovery.19
National Response Plan
Where DoD's civil support mission is clear, it begins with the National Response
Plan (NRP).20 Under the NRP, incidents begin as local events with local police, fire
and emergency medical services as the first responders. If these first responders are
overwhelmed, they request assistance from the governor of the state. The governor
may choose to deploy his/her state's National Guard to assist, and may also rely on
assistance from other states if an Emergency Management Assistance Compact
(EMAC) exists.
An EMAC is an agreement among member states that outlines the legal agree-
ments and procedures for providing assistance to other member states in the event
of an emergency or disaster. It was established in 1996, has weathered the storm
when put to the test, and stands today as the cornerstone of mutual aid. The EMAC
mutual aid agreement and partnership between states exist because from hurri-
canes to earthquakes, wildfires to toxic waste spills, and terrorist attacks to biologi-
cal and chemical incidents, all states share a common enemy: the threat of disaster.
Since being ratified by Congress and signed into law in 1996, 50 states, the Dis-
trict of Columbia, Puerto Rico and the Virgin Islands have enacted legislation to
become members of EMAC. EMAC is the first national disaster-relief compact to
be ratified by Congress since the Civil Defense and Disaster Compact of 1950.
The strength of an EMAC and the quality that distinguishes it from other plans
and compacts lies in its governance structure, its relationship with federal organi-
zations, states, counties, territories and regions, and the ability to move just about
any resource one state has to assist another state, including medical resources.
If the state is overwhelmed or the governor determines specific assistance is
needed from the federal government, the governor will call the President or his
staff and request a declaration of major disaster or emergency. The President will
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Kurt Johnson
turn to the Secretary of Homeland Security, who will take the appropriate action
for incident management. The primary federal agency, most often FEMA, may re-
quest military support through the Office of the Secretary of Defense. The Joint Di-
rector of Military Support (JDOMS) will evaluate the request based on legality,
lethality, risk, readiness, budget and appropriateness.21 If approved, SECDEF will
give the mission to NORTHCOM and NORTHCOM will support the primary fed-
eral agency as directed. It should be clearly understood that the National Response
Plan is only a plan. It does not provide statutory authority under which DoD may
expend federal funds and take action.
Posse Comitatus Act
Although civil support within the homeland is not new to the military, the nature
of support needed during the 2005 hurricane season presented some unique issues
for NORTHCOM. Whenever military operations are conducted within the home-
land, authorities must consider the Posse Comitatus Act (PCA).22 Since the Con-
stitution leaves police power to the states, the PCA ensures that the Army and Air
Force are not used as a police power. The PCA applies to the Navy and Marine
Corps by DoD policy. The PCA restrictions essentially prohibit the direct, active
participation of military forces in enforcing civil criminal laws. This includes pro-
hibitions against arrest, search and seizure, and detention. The PCA does not apply
to the Coast Guard.23 It also does not apply to the National Guard in state active
duty (SAD) or Title 32 (Federally Funded) statuses. Congress has provided many
exceptions to the PCA, most notably the Insurrection Act.24 Although there has
been much discussion of amending the PCA, NORTHCOM's position is that its
ability to execute its mission is not adversely affected by PCA restrictions.
Enforcement of the Laws to Restore Public Order
The John Warner National Defense Authorization Act for Fiscal Year 2007 (NDAA
FY07) changed the name of chapter 15 of Title 10 from "Insurrection" to "Enforce-
ment of the Laws to Restore Public Order."25 Formerly and commonly referred to
as the Insurrection Act statutes, 10 US Code 331-333 provides statutory exceptions
to the PCA that could involve the execution of NORTHCOM's civil support mis-
sion. During Hurricane Katrina, early news coverage depicted a city of lawlessness:
police were gone, looting was common and violence was rampant. This news cov-
erage led to discussions about whether the President should invoke the Insurrec-
tion Act. As the Insurrection Act statutes existed at the time of the Hurricane
Katrina disaster, it did not appear that legal authority existed for the President to
invoke the Insurrection Act.
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Disaster Response: Key Legal Issues for US Northern Command
The Insurrection Act statutes describe three triggers that allow the President to
use military force to suppress insurrections. The first trigger is a state request, as
was done in the 1992 Los Angeles riots.26 The second trigger is when unlawful ob-
structions, combinations, or assemblages, or rebellion against the authority of the
United States make it impracticable to enforce federal law.27 This was done in the
1957 and 1963 public school desegregation cases. The third trigger, now expanded
as a result of language in the Fiscal Year 07 National Defense Authorization Act, al-
lows the President to restore public order and enforce the laws of the United States
when, as a result of a natural disaster, epidemic, or other serious public health
emergency, terrorist attack or incident, or other condition in any State or posses-
sion of the United States, the President determines that domestic violence has oc-
curred to such an extent that the authorities of the State or possession are incapable
of maintaining public order, and such violence results in a condition that deprives
the people of constitutional rights or obstructs execution of US laws.28 The Presi-
dent may also do so to suppress in a state any insurrection, domestic violence, un-
lawful combination, or conspiracy, if such insurrection, violation, combination or
conspiracy results in a condition that deprives the people of constitutional rights or
obstructs execution of US laws.
Where the President invokes the "Laws to Restore Public Order" because public
order cannot be maintained and the violence deprives people of constitutional
rights, the President may federalize the National Guard and Reserve for not more
than 365 days. He may also direct SECDEF to provide supplies, services and equip-
ment to affected persons (independent of the normal process under the Stafford Act).
Although the new provisions of the NDAA FY07 expanded the President's au-
thority, the provisions would not necessarily have completely addressed the "law-
lessness" situation that existed in New Orleans during Hurricane Katrina. Under
the new provisions, the President would have had two significant hurdles to over-
come before he could invoke the "Enforcement of the Laws to Restore Public Or-
der" provisions that now exist and send in Title 10 troops over the objection of or
absent a request from the governor. While the first hurdle would have been met
(authority to act in public emergencies such as natural disaster) in the absence of
effective government, the second hurdle (finding deprivation of constitutional
rights) would arguably still have presented problems. Although Katrina-like situa-
tions are now clearly contemplated in statute, the President must still find an asso-
ciated deprivation of constitutional rights. No President since 1963 (public school
desegregation) has been willing to make such a finding.
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Kurt Johnson
Unity of Effort
As stated earlier, the federal government's ability to respond to an emergency is
constrained by the constitutional provisions which reserve police power to the
states. The states have authority to call forth militias (the National Guard) to sup-
press insurrections, quell civil disturbances or respond to natural disasters and
other catastrophic events. Given that each state sovereign has its own militia, it is
impossible for Title 10 forces in the homeland to achieve unity of command with a
state's militia. However, unity of effort is a goal that can be achieved through im-
proved communication and coordination. The "Forces for Unified Commands"
memorandum29 envisions the establishment of a "coordinating authority" be-
tween Title 10 forces and non-federalized National Guard forces so that this unity
of effort may be achieved. This authority is not command authority or authority to
compel agreement, but rather authority delegated to a commander for coordinat-
ing specific functions and activities involving two or more forces. It is an authority
to require consultation. This type of coordination would give SECDEF insight into
how Title 32 funds are spent and give NORTHCOM and the National Guard situa-
tional awareness of each other's missions, locations, platforms, capabilities and
rules for the use of force, promoting unity of effort among all forces. This coordi-
nation could be a condition precedent to SECDEF approval of Title 32 funding.
Dual-Status Commander
Another way to achieve unity of effort is through the establishment of a dual-status
commander, a command arrangement discussed, but not used, during the 2005
hurricane season. There are two types of dual-status commanders. One involves
providing a Title 10 officer a commission in a state National Guard thereby allow-
ing him or her to exercise command and control over federal status (Title 10)
forces and state status (Title 32/SAD) National Guard forces. The other involves
placing a National Guard officer on Title 10 orders, while allowing that officer to
retain his or her state authority, thereby enabling unity of command of both fed-
eral and state status forces.
32 US Code 315 authorizes the detail of regular members of the Army and Air
Force to duty with a state National Guard by the Secretary of the Army or Secretary
of the Air Force. With permission of the President, it allows an Army or Air Force
officer to accept a commission in the National Guard if such is offered by the gov-
ernor of the respective state. This authority has been used to authorize Title 10 offi-
cers to exercise command and control over National Guard units.
32 US Code 325 authorizes a National Guard officer familiar with the state and
local area of operations to command in both a federal and state status. This author-
ity was used in the 2004 G8 Summit, the 2004 Democratic and Republican national
283
Disaster Response: Key Legal Issues for US Northern Command
conventions and Operation Winter Freeze, a five-month NORTHCOM mission in
late 2004 and early 2005, which occurred on the northeast border of the United
States. This is also the command arrangement that will be used for the Ground Based
Midcourse Missile Defense units of the Colorado and Alaska National Guards.
Both options provide unity of effort, rather than unity of command, allowing
both federal and state military forces to enhance their situational awareness.
There is no formal approval process for either situation. It usually begins with
informal coordination between the state and NORTHCOM. Typically, action offi-
cers at NORTHCOM and the National Guard discuss various courses of action
with a recommendation for the use of a dual-status commander. Then the state
National Guard staff and NORTHCOM staff determine whether to seek approval
from their respective chains of command. In all four 2004 events in which dual-
status National Guard officer arrangements were approved, the governor sent an
approval package, including a signed Memorandum of Agreement, to the Presi-
dent and/or SECDEF for signature (for certain events, the President has delegated
approval to SECDEF).
The dual-status commander arrangement does not simultaneously authorize
the use of Title 32 funding30 for National Guard forces for operational missions.
Title 32 funding approval is a separate process. Moreover, this arrangement does
not "dual status" the forces or staff, whether federal or state status, commanded by
the dual-status commander. The dual-status commander has two reporting chains
and must consider the implications of the different rules and restrictions for each
force under his or her command. It is likewise important that staff members,
whether Title 10 or National Guard, understand their separate roles and missions.
DoD as Lead Federal Agency
Could DoD ever be tasked by the President to be the lead federal agency in a cata-
strophic event? Clearly, the Homeland Security Act of 200231 confers statutory re-
sponsibility for federal response to catastrophic incidents to the Department of
Homeland Security (DHS). One could argue that DoD could lead a component of
the federal response as long as DHS maintained overall responsibility for the re-
sponse as a whole. One could also conceive of a situation in which an incident is of
such magnitude as to jeopardize national security, such that the President, under
his Article II authority, could place DoD in the lead.
Conceptually, there is a critical void in the immediate aftermath of a major di-
saster (for discussion purposes, the first 48-72 hours after a disaster). Conceivably,
local responders are incapacitated or busy attending to their own families; state as-
sistance is forthcoming, but will take time to assemble sufficient National Guard
forces and other responders into effective units; the governor has not yet requested
284
Kurt Johnson
federal assistance or, if requested, it will take a short period of time for the National
Response Plan to gear up and provide that assistance. In the meantime, American
lives are at risk. DoD has the capability to respond quickly with well-trained units
in constant communications unaffected by the disaster, and to sustain itself indefi-
nitely. The overarching question is whether DoD has legal authority to fill that
early and critical void.
Immediate Response Authority
There are situations that allow DoD to respond without prior approval from the
chain of command. When imminently serious conditions resulting from any civil
emergency or attack exist and time does not permit prior approval from higher
headquarters, local military commanders and responsible officials of other DoD
components are authorized to take necessary and immediate action to respond to
requests of domestic civil authorities in order "to save lives, prevent human suffer-
ing or mitigate great property damage." Such actions are generally referred to as
"immediate response."32
Ordinarily, assistance to civilian authorities is provided on a cost reimburse-
ment basis. However, it should not be delayed or denied because of the inability or
unwillingness of the requester to make a commitment to reimburse DoD. Addi-
tionally, those providing immediate response are required to notify the National
Military Command Center (NMCC), through the chain of command, as soon as
practical of the request for assistance, the nature of the response and any other rele-
vant information related to assistance provided.
Generally, notice should reach the NMCC within hours of the decision to pro-
vide assistance. Immediate response has generally been contemplated as assistance
provided in response to a natural disaster or other catastrophic incident. The assis-
tance provided is in support of local officials and at their request. This response is
generally limited in terms of time and geographic proximity of the commander
and/or the requested capability to the incident.
Incident Awareness and Assessment
One of the most sensitive issues in the homeland is the use of intelligence assets
during domestic operations. Consider the ramifications of flying a U-2 reconnais-
sance plane over the Gulf Coast during hurricane disaster relief operations. Beyond
perceptions, one must consider if there is authority to use intelligence capabilities
for non-intelligence missions (such as search and rescue and damage assessment)
following a natural disaster. "Incident Awareness and Assessment" (IAA) is the
term used to describe the use of intelligence assets, specifically intelligence, surveil-
lance and reconnaissance (ISR) assets, in support of disaster relief operations.
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Disaster Response: Key Legal Issues for US Northern Command
Foreign intelligence (FI) and counterintelligence (CI) are the only authorized
"intelligence activities" of the DoD intelligence community and must be con-
ducted consistent with DoD Directive 5240.1 and DoD 5240. 1-R.33 In essence, this
means that whenever DoD conducts an "intelligence activity," there must be a for-
eign nexus, as required by the definitions of foreign intelligence and
counterintelligence. DoD intelligence community officials have opined that
SECDEF may approve use of DoD intelligence component capabilities for mis-
sions "other than intelligence activities" because the SECDEF has inherent author-
ity to use any assets or personnel within the DoD to complete a DoD mission. In
those instances, the mission must be a valid DoD mission, and SECDEF must ap-
prove both the mission and specific use of the DoD intelligence component
capabilities.
Essentially, in order to use DoD intelligence component capabilities (personnel,
units, planning, collection, analysis, production) for non-intelligence activities,
there must be a Request for Forces (RFF) submitted through the command to the
Joint Staff for review and approval by SECDEF. The request must identify the mis-
sion and specify the DoD intelligence component capability requested. The result-
ing execute order will be approved by SECDEF and specify what DoD intelligence
component capabilities maybe used and any operational parameters or limitations
on the use of that capability.
These procedures give SECDEF the flexibility to use DoD assets for dual mis-
sions. For example, during a hurricane disaster support mission, the DoD intelli-
gence components could be conducting intelligence activities (FI and CI) under
existing authorities. Additionally, DoD intelligence component capabilities could
be used for a non-intelligence mission by doing planning, tasking, analysis and
production in support of search and rescue (SAR) and damage assessment. The
second mission could involve a Request for Assistance (RFA) from a primary fed-
eral agency to DoD. In this situation, SECDEF approval would authorize the use of
intelligence assets for non-intelligence purposes. Mission direction would be coor-
dinated with the primary federal agency. Additionally, the RFA process is a "fee for
service" operation. The primary federal agency would agree to pay for the cost of
the IAA employment.
Leaders, at all levels, frequently seek to build situational awareness. Building sit-
uational awareness requires data to be collected by a combination of satellite, air-
borne, and ground sensors. The key is to create a means to bring all of this disparate
data together into one coherent picture for decisionmakers and planners. The
amount and type of data required differs depending on whether the leader is mak-
ing strategic, operational or first responder decisions. The requirement for
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Kurt Johnson
situational awareness must be evaluated carefully, so that IAA assets are efficiently
and effectively used.
Sensitive Information
The use of information about US persons and non-DoD persons and organizations
is restricted depending on the mission of the DoD component involved. During di-
saster relief operations, force protection is always a concern when sending troops
into a joint operating area. While this is true whether operating overseas or in the
homeland, the rules in the homeland are more restrictive. Sensitive information
falls into two major categories. The first category deals with information on US
persons subject to intelligence oversight (IO) rules. The rules for this category of
information apply only to DoD intelligence components.34 The second category
deals with information concerning the activities of persons and organizations not
affiliated with DoD. The rules for this category apply to everyone except DoD intel-
ligence components. The policy set forth in a 1980 directive, DoD Directive
5200.27, applies.35
The general rule for this second category is that collecting, reporting, processing
or storing information concerning individuals or organizations not affiliated with
DoD is not permitted. This includes non-DoD persons/organizations within the
50 states, the District of Columbia, Puerto Rico, US territories and non-DoD affili-
ated US citizens anywhere in the world. There are exceptions to the general rule.
Information maybe gathered if it is essential to the accomplishment of the follow-
ing defense missions:
• Protection of DoD functions and property. This exception encompasses
threats to DoD military and civilian personnel and defense activities, installations
and property. Only the following activities justify acquisition of non-DoD
persons/organizations information:
• Subversion of loyalty, discipline or morale of DoD military or civilian
personnel by encouraging violations of law, disobedience of orders or
disruption of military activities;
• Theft of arms, ammunition or equipment; or destruction or sabotage
of DoD facilities, equipment or records;
• Unauthorized demonstrations on DoD active or reserve installations;
• Direct threats to DoD military/civilian personnel in connection with
their duties or to other persons authorized protection by DoD resources;
• Activities endangering facilities that have classified defense contracts
or that have been officially designated as "key defense facilities"; and
287
Disaster Response: Key Legal Issues for US Northern Command
• Crimes for which DoD has responsibility for investigating or
prosecuting.
• Personnel security. Investigations regarding clearances for members of DoD
and DoD applicants and persons needing access to classified information.
• Operations related to civil disturbances. If specifically authorized by
SECDEF and there is a distinct threat of civil disturbance exceeding the law
enforcement capability of state and local authorities.
Information collected under DoD Directive 5200.27 authority must be de-
stroyed within 90 days unless retention is otherwise authorized. The dilemma is
drawing the line between information needed for force protection purposes and
information that is more appropriately handled by local law enforcement.
International Assistance
The United States has extensive experience providing assistance to other nations in
the wake of disasters, but there is little recent precedent for the United States to re-
ceive international assistance following a homeland disaster. During Hurricane
Katrina, many foreign countries offered assistance. For example, Canada sent
ground troops, Mexico sent a mobile kitchen to provide food, and Germany and
Denmark offered water pumps. Federal regulations, however, hindered the provi-
sion of the assistance in some cases. US Department of Agriculture regulations pre-
vented the use of food from foreign nations whose health regulations did not meet
US standards. In addition, the process to accept these "gifts" of assistance often
meant assistance did not come as quickly as it was needed. In the case of foreign
troops on the ground assisting in relief efforts, issues regarding the rules under
which they would operate arose. Examples include rules for the use of force and
medical credentials. The United States clearly has to resolve these issues as the par-
adigm of international assistance has changed.
Conclusion
As new hurricane seasons approach, NORTHCOM will continue to grapple with
these legal issues and others that arise from various manmade and natural disaster
relief situations. While homeland defense is NORTHCOM's number one respon-
sibility, the mission to support civil authorities is very important, and often at the
forefront of NORTHCOM's daily activities. NORTHCOM is called upon on a reg-
ular basis to assist other federal agencies in responding to natural and man-made
disasters at the direction of the President or the Secretary of Defense. Because DoD
support is often unique, NORTHCOM will continue to coordinate with federal,
288
Kurt Johnson
state and local authorities to provide assistance, as directed, whenever and wher-
ever it is needed.
Notes
1 . Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 US Code sec. 5 1 2 1 -
5206 (2000).
2. "Major disaster" is defined as any natural catastrophe (including any hurricane, tor-
nado, storm, high water, wind driven water, tidal wave, tsunami, earthquake, volcanic eruption,
landslide, mudslide, snowstorm or drought) or, regardless of cause, any fire, flood or explosion,
in any part of the United States, which in the determination of the President causes damage of
sufficient severity and magnitude to warrant major disaster assistance under this chapter to sup-
plement the efforts and available resources of States, local governments and disaster relief orga-
nizations in alleviating the damage, loss, hardship or suffering caused thereby. 42 US Code sec.
5122(2) (2000).
3. 42 US Code sec. 5170(2000).
4. "Emergency" is defined as any occasion or instance for which, in the determination of
the President, federal assistance is needed to supplement state and local efforts and capabilities to
save lives and to protect property and public health and safety, or to lessen or avert the threat of a
catastrophe in any part of the United States. 42 US Code sec. 5122(1) (2000). Such response
should not be confused with Emergency Response authority discussed in DoD Directive
3025.12, infra note 32.
5. 42 US Code sec. 5170(2000).
6. 42 US Code sec. 5170b(c) (2000).
7. 42 US Code sec. 5191(b) (2000).
8. 42 US Code sec. 5170, 5191 (2000).
9. 44 Code of Federal Regulations sec. 206.44 (2005).
10. 44 Code of Federal Regulations sec. 206.35 (2005).
1 1. 46 Code of Federal Regulations sec. 206.63 (2005).
12. 46 Code of Federal Regulations sec. 206.66 (2005).
13. 42 US Code sec. 5 170b(c)( 1 ) (2000); 44 Code of Federal Regulations sec. 206.34 (2005).
14. 42 US Code sec. 5170b(c)(6)(B) (2000).
15. See US Code sec. 5170b(a)(3) (2000), which addresses "work and services to save lives
and protect property."
16. "The President may exercise any authority vested in him by section 5192 of this title
[emergency declaration] or section 5193 of this title [amount of assistance] with respect to an
emergency when he determines an emergency exists for which the primary responsibility for the
response rests with the United States because the emergency involves a subject area for which,
under the Constitution or the laws of the United States, the United States exercises exclusive or
preeminent responsibility and authority. In determining whether or not such an emergency ex-
ists, the President shall consult the Governor of any affected State, if practicable. The President's
determination maybe made without regard to subsection (a) of this section [i.e., a request for as-
sistance from the Governor]." 42 US Code sec. 5191(b) (2000).
17. Id.
18. Notice of Presidential Declaration of a Major Disaster for the State of Oklahoma
(FEMA-1048-DR), 60 Federal Register 21819-02 (1995).
289
Disaster Response: Key Legal Issues for US Northern Command
19. Press Release, White House, Homeland Security Presidential Directive/HSPD-5 (Feb.
28, 2003), http://www.whitehouse.gov/news/releases/2003/02/20030228-9.html.
20. The National Response Plan of May 25, 2006 establishes a comprehensive all-hazards
approach to enhance the ability of the United States to manage domestic incidents. It forms the
basis of how the federal government coordinates with state, local and tribal governments and the
private sector during incidents. The NRP is available at http://www.dhs.gov/xlibrary/assets/
NRP_FullText.pdf.
21. Department of Defense, DoD Directive 3025.15, Military Assistance to Civil Authorities
para 4.2 (1997), available at http://west.dtic.mil/whs/directives/corres/pdf/d302515_021897/
d302515p.pdf.
22. 18 US Code sec. 1385 (2000).
23. The PCA does not apply to the Coast Guard. Jackson v. Alaska, 572 P. 2d 87 (Alaska
1977). This is most clear in terms of the Coast Guard's Title 14 (Armed Forces) operations. PCA
limitations are also inapplicable to the Coast Guard's Title 10 (Coast Guard) authority because
the PCA, on its face, does not reference or limit the Coast Guard. Additionally, the PCA makes
an explicit exception "in cases and under circumstances expressly authorized by . . . Act of Con-
gress." Congress has expressly given the Coast Guard certain federal law enforcement duties by
statute, e.g., 14 US Code sec. 2 and 89 (2000). While a DoD directive places PCA-like restrictions
on the Navy and Marine Corps, the Coast Guard is not subject to this regulation. Department of
Defense, DoD Directive 5525.5, DoD Cooperation with Civilian Law Enforcement Officials
(1986), available at http://www.fas.org/irp/doddir/dod/d5525_5.pdf. The Coast Guard would
only be subject to DoD and Department of the Navy policy limitations if made "a service in the
Navy" by Presidential order or in a declaration of war by Congress. 14 US Code sec. 3 (2000).
24. 10 US Code sec. 331-333(2000).
25. John Warner National Defense Authorization Act for Fiscal Year 2007, Public Law No.
109-364, sec. 1075(2006).
26. 10 US Code sec. 331 (2000).
27. 10 US Code sec. 332(2000).
28. 10 US Code sec. 333 (2000), amended by John Warner National Defense Authorization
Act for Fiscal Year 2007, supra note 25.
29. The "Forces for Unified Commands" is a memorandum in which the Secretary of De-
fense documents his direction for the assignment of forces to combatant commands and to US
Element North American Aerospace Defense Command.
30. When performing duty pursuant to Title 32, US Code, a National Guard member is un-
der the command and control of the state but paid with federal funds.
31. Homeland Security Act of 2002, Public Law No. 107-296, sec. 101 (b)(1)(D), 116 Stat-
utes at Large 2142 (2002).
32. See Department of Defense, DoD Directive 3025. 1, Military Support to Civil Authorities
para. 4.5 (1993), available at http://www.dtic.mil/whs/directives/corres/pdf/d30251_011593/
d30251p.pdf; Department of Defense, DoD Directive 3025.15, Military Assistance to Civil Au-
thorities para. 4.7.1 (1997), available at http://west.dtic.mil/whs/directives/corres/pdf/
d302515_021897/d3025 15p.pdf; and Memorandum from the Deputy Secretary of Defense, Re-
porting "Immediate Response" Requests from Civil Authorities (Apr. 25, 2005).
33. Department of Defense, DoD Directive 5240.1, DoD Intelligence Activities (1988),
available at http://www.dtic.mil/whs/directives/corres/pdf/d52401_042588/d52401p.pdf, con-
tains guidance for DoD intelligence components for the collection, retention and dissemination
of information concerning US persons. Department of Defense, DoD 5240. 1-R, Procedures
Governing the Activities of DoD Intelligence Components that Affect United States Persons
290
Kurt Johnson
(1982), available at http://www.dtic.mil/whs/directives/corres/pdf/52401r_1282/p52401r.pdf,
contains detailed procedures to enable DoD intelligence components to carry out their assigned
functions while ensuring their activities that affect US individuals are carried out in a manner
that protects the constitutional rights and privacy of such persons.
34. Executive Order No. 12,333, 46 Federal Register 59,941 (Dec. 4, 1981); DoD Directive
5240.1, supra note 33; and DoD 5240. 1-R, supra note 33, IO rules apply.
35. By directive, DoD establishes policy, limitations, procedures and operational guidance
pertaining to the collecting, processing, storing and disseminating of information concerning
persons and organizations not affiliated with DoD. It is the non-intelligence component equiva-
lent of intelligence oversight rules. Department of Defense, DoD Directive 5200.27, Acquisition
of Information Concerning Persons and Organizations Not Affiliated with the Department of
Defense (1980), available at http://www.dtic.mil/whs/directives/corres/pdf/d520027_010780/
d520027p.pdf.
291
XIX
The Law of International Disaster Response:
Overview and Ramifications
for Military Actors
David Fisher
*
As military lawyers are well aware, the international legal framework for the
protection and assistance of civilians in conflict situations is well developed
and deeply integrated into the ways lawyers and laypeople think and talk about
war. The Geneva Conventions of 1949, the cornerstone of international humani-
tarian law (IHL), have now achieved universal adhesion;1 over seventy nations
have formed national commissions on IHL;2 and IHL is being studied and written
about in universities, military academies and other forums around the world. In
contrast, the law of international disaster response, referred to in recent years as
"International Disaster Response Laws, Rules and Principles" or "IDRL," has been
described as "neglected"3 and "far from complete,"4 with no centralized regime
equivalent to the Geneva Conventions, few academic resources dedicated to the is-
sue and, until recently, little attention from the international disaster relief
community.
* Senior Legal Research Officer for the International Federation of Red Cross and Red Crescent
Societies' program on International Disaster Response Laws, Rules and Principles. The views
and opinions expressed in this paper are those of the author and do not necessarily represent
those of the International Federation.
The Law of International Disaster Response
Yet, over the last thirty- five years, there have been over fourteen thousand non-
conflict disasters worldwide, resulting in more than 2.3 million deaths and affect-
ing an astonishing 5.8 billion persons.5 In the overwhelming majority of these di-
sasters, the governments, civil society and communities of the affected States have
borne the brunt of relief and recovery themselves. However, international response
activities have also necessarily been frequent6 and are increasing in proportion to
the growing number and severity of disasters in recent years.7 Moreover, interna-
tional disaster operations can sometimes be just as legally challenging as conflict
relief, commonly involving barriers to the entry and effective use of relief person-
nel, goods, equipment and transport vehicles, as well as regulatory dilemmas for af-
fected States — particularly in light of the growing number and diversity of
international disaster responders.
For their part, military actors have long been engaged in disaster relief,8 but their
involvement at the international level also appears to be on the rise. This increased
engagement has led to a greater concern among military lawyers about the legal
pitfalls involved,9 as well as concerns in the humanitarian community about the
consequences of the "militarization" of international disaster assistance.
This paper will sketch the history and broad outlines of the current interna-
tional legal framework for transborder disaster relief and recovery10 and discuss
some of the most common legal problems that arise in international operations. It
will then look — from a civilian's perspective — at some of the ramifications for mil-
itary actors. It will conclude with some thoughts on where the international com-
munity might choose to go from here.
Historical Background
While there are early precedents for international relief in peacetime, it was not un-
til the mid-nineteenth century that momentum slowly began to build toward in-
ternational systems to address national calamities.11 For example, in 1851, France
convened the first of a series of international sanitary conferences to negotiate
agreements to combat the cross-border spread of diseases.12 In 1869, a resolution
of the second International Conference of the Red Cross affirmed the role of na-
tional Red Cross societies in providing relief "in case of public calamity which, like
war, demands immediate and organized assistance."13 In the late nineteenth and
early twentieth centuries, multilateral telegraph and telecommunications treaties
were adopted with specific provisions about emergency communications,14 and
maritime agreements were reached codifying customary norms on rescue and as-
sistance to vessels in distress.15 -
294
David Fisher
It was under the auspices of the League of Nations that the first serious attempt
was made to create a comprehensive approach to international disaster relief. In
1927, a conference of forty- three States adopted the Convention and Statutes Es-
tablishing an International Relief Union (IRU).16 The Convention stipulated that
the IRU should serve as a centralized operational agency, funneling international
funds and support in disaster settings, coordinating other actors and promoting
study and research on disaster management.17 It entered into force in 1932 and
eventually attracted thirty member States. However, it was never able to effectively
carry out its mission, due mainly to the crippling lack of funds incident to its in-
ability to command regular contributions from member States.18 It intervened in
two disasters and sponsored several scientific studies, but by the late 1930s, the IRU
had already effectively ceased to function, though it was not officially terminated
until 1967.19
After the failure of the IRU, international law on disaster relief developed in a
fragmented and mostly unplanned manner, and institutional mandates were
shared among a number of actors. In the 1950s, several States, notably the United
States, began concluding bilateral treaties regulating the delivery of relief goods.20
A second and third wave of bilateral treaties, mainly concerned with mutual
assistance, were agreed upon in the 1970s and the 1990s respectively, mainly in
Europe.21 Moreover, a number of multilateral treaties in other sectors of the law
(such as customs harmonization,22 marine and air transport23 and environmental
protection24) began to include provisions relevant to international disaster re-
sponse, and recent decades have seen an upsurge in disaster-focused instruments
(both "hard" and "soft"), particularly at the regional level.
A second attempt to develop a comprehensive treaty on disaster relief was made
in 1984, when the United Nations Disaster Response Office (UNDRO), the fore-
runner to the Office for the Coordination of Humanitarian Affairs (OCHA), devel-
oped a "Draft Convention on Expediting the Delivery of Emergency Assistance"
and presented it to the Economic and Social Council (ECOSOC).25 The Draft Con-
vention sought to set out basic rules for the entry and operation of international di-
saster relief from States and humanitarian organizations, including with regard to
visas, customs clearance, transport rules, communications and liability. ECOSOC
referred the text to the UN's Second Committee,26 which, despite expressions of
support from several States,27 took no official action on it, and the convention was
never adopted.
295
The Law of International Disaster Response
The Current International Legal Framework
As a result of the foregoing, the current international legal and institutional frame-
work for IDRL is dispersed, with gaps of scope, geographic coverage and precision.
Still, there are a number of instruments that are worth highlighting — both for their
potential uses and for their weaknesses.
Global Treaties
One of the most successful disaster law instruments in terms of ratification is the
Convention on Assistance in the Case of a Nuclear Accident or Radiological Emer-
gency of 1 986 (hereinafter Nuclear Accident Convention) ,28 Adopted in the imme-
diate wake of the Chernobyl accident, the Nuclear Accident Convention has
garnered ninety-six State parties.29 It lays out basic rules for the initiation, coordi-
nation and operation of international assistance operations in case of nuclear or ra-
diological events, touching on the transit of equipment and personnel, privileges
and immunities, and costs. However, as its name indicates, it is relevant only to nu-
clear and radiological emergencies — among the least frequent of the various types
of major disasters.30 Moreover, by its terms, it applies only to States, the Interna-
tional Atomic Energy Agency (IAEA) and other "inter-governmental organiza-
tions," despite the essential role that the Red Cross/Red Crescent Movement, non-
governmental organizations (NGOs) and other non-State actors have played in the
recovery from the Chernobyl disaster.31
In contrast, the two global customs treaties with specific provisions on disaster
response both apply to "relief consignments" regardless of their source. They are
thus relevant to the full range of international relief actors. Specifically, Annexes
B.3 and J. 5 of the Convention on Simplification and Harmonization of Customs
Procedures ("Kyoto Convention") as amended in 199932 call on States to exempt
"relief consignments" from many normal customs processes, duties and restric-
tions. Similarly, Annex B.9 of the Convention on Temporary Admission ("Istanbul
Convention") of 199033 provides for exemptions from customs duties for certain
types of equipment intended for re-export after a disaster relief operation. How-
ever, their membership is quite small,34 and, in particular, includes only a handful
of the most disaster-prone States.35
Another recent convention that applies to the full range of international disas-
ter responders is the Tampere Convention on the Provision of Telecommunica-
tion Resources for Disaster Mitigation and Relief Operations of 1998.39 The
Tampere Convention calls for the elimination or reduction of regulatory barriers
to the importation and operation of telecommunications equipment and person-
nel for disaster response purposes. It is the only instrument of its kind that extends
296
David Fisher
privileges and immunities, equivalent to those granted to the United Nations, to
NGO personnel (though only those directly connected to relief telecommunica-
tions).40
The Tampere Convention entered into force on January 8, 2005, and its first test
came in Sri Lanka (which had ratified it in 1999) with regard to the response to the
December 26, 2004 tsunami. Unfortunately, it appears that its provisions were in-
voked neither by the government nor by international relief providers, although
some of them encountered problems with regard to the import and use of telecom-
munications equipment.41 On the other hand, some practitioners have reported
success in referring to the treaty, even with regard to operations in States not party
to it, as evidence of an international consensus on the need to facilitate the use of
telecommunications in relief.42 Still, like the customs conventions, membership in
the Tampere Convention remains limited43 and currently includes only four of the
twenty-five most disaster-prone States.44
In 2000, the International Civil Defence Organization drafted a Framework
Convention on Civil Defence Assistance36 to improve mutual assistance between
civil defense organizations in international disaster response operations. The
Framework Convention sets out mechanisms for the offer and acceptance of assis-
tance, regulations for how such assistance should be carried out, provisions for the
reduction of administrative and customs barriers and "necessary" privileges and
immunities for responders, and commitments to facilitate transit of civil defense
units. It also calls on parties to supplement its provisions with more detailed agree-
ments to carry out its spirit.37 Though it has twenty-six signatories, to date only
thirteen States have ratified or acceded to it, including no Western States.38
A further IDRL convention with limited membership (twenty-two parties, in-
cluding twenty-one States and the European Community45) is the Food Aid Con-
vention.46 Originally adopted in 1967, it has gone through several revisions, the
most recent of which was in 1999. It sets out annual quotas of certain types of food
aid47 to be provided by each member (whether bilaterally or through NGOs or
"multilateral channels") to certain recipient States, covering both emergency and
non-emergency situations. It also sets out a number of guidelines as to the type and
manner in which food aid should be delivered, including adherence to "basic hu-
manitarian principles," international quality standards and local dietary habits,
and attention to the particular needs of women and children and other vulnerable
groups, as well as potential harmful effects on local harvests and markets.
Critics have charged that the Food Aid Convention fails to effectively stabilize
food aid because quotas have been set very low (substantially below the total
amount of food aid given by most members) and have been repeatedly renegoti-
ated downward in periods of tight supplies and that little effort is made to monitor
297
The Law of International Disaster Response
the quality requirements.48 The convention is currently set to expire on June 30,
2007, if it is not extended or renegotiated.49
Limited membership is unlikely to be a problem for the revised International
Health Regulations (IHR) adopted by the World Health Assembly in 2005 and
scheduled to enter into force in 2007,50 inasmuch as the constitution of the assem-
bly provides that all instruments adopted by that body will be binding on all mem-
ber States unless they explicitly "opt out."51 The revised IHR were prompted by
communications failures in the SARS outbreak of 2003 and has been described as a
radical development in international health law.52 It expands the scope of its prede-
cessor instrument (which only applied to three types of disease) by obligating State
parties to report on all diseases that might constitute a transborder public health
threat and by greatly expanding the authority of the World Health Organization
(WHO) to act upon information of outbreaks. Significantly, this includes for-
malizing WHO's authority to receive and act upon reports originating from non-
governmental actors.53 Beyond this preventive aspect, the IHR's provisions requir-
ing national public health restrictions on import of goods to be kept to a reasonable
minimum in line with the potential threat might also be of use in a disaster re-
sponse setting in which goods and personnel must quickly cross borders.
Regional Law
Each of the major regions has also adopted at least some law on disaster response,
though there is great variation in its scope. As in other areas of international law,
Europe boasts the most elaborate framework of agreements. These include, among
others, the Fourth Lome Convention of 1989,54 which sets out guidelines for assis-
tance by Europe to African, Caribbean and Pacific States; the Council of Europe —
Open Partial Agreement (EUR-OPA) Major Hazards Agreement of 1987, which
created a framework of regular high-level meetings to improve cooperation in di-
saster response and prevention;55 the European Community Civil Protection
Mechanism, first adopted in 2001, which helps to coordinate the extraterritorial
work of civil protection offices;56 the Convention on the Transboundary Effects of
Industrial Accidents of 1992, one of the most important treaties on man-made di-
sasters;57 subregional instruments such as the Agreement between Denmark, Fin-
land, Norway and Sweden on Cooperation across State Frontiers to Prevent or
Limit Damage to Persons or Property or to the Environment in the Case of AcciT
dents of 1989;58 and the Agreement among the Governments of the Participating
States of the Black Sea Economic Cooperation (BSEC) on Collaboration in Emer-
gency Assistance and Emergency Response to Natural and Man-Made Disasters of
1998 (hereinafter BSEC Agreement).59
298
David Fisher
In the Americas, the Inter-American Convention to Facilitate Disaster Assis-
tance was adopted in 199160 with a number of provisions designed to lower bu-
reaucratic and other barriers to easy entry of foreign disaster assistance; however, it
was only ratified by three States.61 Greater success was seen with the agreements
creating subregional inter-governmental mechanisms for disaster response, in-
cluding the Coordination Centre for Natural Disaster Prevention in Central Amer-
ica (CEPREDENAC),62 the Andean Committee for the Prevention and Response
to Disasters (CAPRADE),63 and the Caribbean Disaster Emergency Response
Agency (CDERA).64
In Africa, there has been little systematic lawmaking at the regional level on di-
saster response.65 One exception is the Inter-Governmental Authority on Develop-
ment (IGAD),66 originally created with the primary purpose of building
cooperation to address issues of drought and desertification. Moreover, in recent
years, proposals have been discussed to adopt a disaster-specific instrument in the
Southern African Development Community (SADC).67
The most recent regional IDRL treaty was adopted in Asia in the wake of the
2004 tsunami. The Association of Southeast Asian Nations' (ASEAN) South Asian
Association for Regional Cooperation Agreement on Disaster Management and
Emergency Response of 2005 (not yet in force) (hereinafter ASEAN Agreement)68
is remarkable for its broad scope — covering disaster risk reduction, relief and re-
covery and addressing all types of international disaster responders — as well as for
its attention to some of the key problem areas, including visas, customs, transport
and coordination issues in international operations. It will also create a dedicated
"Asian Coordinating Centre for Humanitarian Assistance" with broad responsi-
bilities to share information and assist in coordinating disaster assistance to mem-
ber States both in the region and from international actors.
Bilateral Treaties and Agreements
The overwhelming bulk of existing international IDRL instruments are bilateral
agreements between States and between States and international humanitarian or-
ganizations. There are well over one hundred bilateral treaties, most of them in Eu-
rope.69 In general, they tend to cover issues of initiation of assistance, entry of
personnel and goods, command and control of response teams, assignment of
costs (generally to the receiving State), and guarantees against liability (always in
favor of the responding State). Bilateral agreements with humanitarian organiza-
tions (mostly with international organizations, such as UN agencies, but also, in-
creasingly, with major international NGOs) tend to set out the parameters of the
organization's long-term activities in the nation as well as any applicable legal
privileges.
299
The Law of International Disaster Response
Soft Law, Guidelines and Models
Beyond the "hard law" described above, there are an important number of relevant
"soft law" instruments, such as resolutions or declarations of international bodies,
as well as guidelines, models and codes developed mainly by experts or by the hu-
manitarian community itself. Some of these, though admirably crafted, have been
mainly forgotten. However, others have formed the basis for systems of interna-
tional cooperation in disaster response that are certainly as important as any cur-
rently based on "hard law."
Among the best-known resolutions are UN General Assembly Resolution 46/
182 of 1991, which sets out general parameters for UN humanitarian assistance
and the role of the Office for the Coordination of Humanitarian Affairs (OCHA),
and 57/150 of 2002, which called on States to facilitate the entry and operation of
international urban search and rescue teams in disaster settings and, in turn, called
on those teams to comply with the quality standards set out in guidelines devel-
oped and facilitated by an international advisory group. The Hyogo Framework for
Action, adopted by an international conference in 200570 and later affirmed by a
resolution of the UN General Assembly, also includes institutional and regional
preparedness for relief among its primary priorities,71 but this element has not
been emphasized in the follow-up activities of States and the United Nations.
An important resolution that is less well known today is the Measures to Expe-
dite International Relief, adopted by both the International Conference of the Red
Cross and the UN General Assembly in 1977.72 This resolution discussed in some
detail some of the most practical types of legal facilities governments should ensure
for international disaster assistance providers. Unfortunately, it has rarely been
evoked in modern operations.
A number of "off-the-shelf models and guidelines have also been produced
with the intention to speed agreements between affected States and international
actors wishing to provide assistance. For military actors, the Oslo Guidelines on the
Use of Military and Civil Defence Assets in Disaster Relief, as updated in 2006 and
discussed in greater detail below, is the most important example. Further guidance
can be found in the UNITAR Model Rules for Disaster Relief of 1996 and the Max
Planck Institution Draft International Guidelines for Humanitarian Assistance of
199 1.73 However, few of these latter documents are well known by disaster re-
sponse professionals.
The most important instruments relating to the responsibilities of disaster assis-
tance providers are the Code of Conduct of the International Red Cross and Red
Crescent Movement and Non-Governmental Organizations in Disaster Relief of
1994 and the Sphere Project Humanitarian Charter and Minimum Standards in
Disaster Response as updated in 2004, both developed by humanitarian
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organizations to serve as minimum standards of behavior and performance in di-
saster relief.74 Both have been well disseminated, and most established humanitar-
ian organizations have indicated that they use them. However, the absence of any
formal mechanism for monitoring and verification of these claims renders an as-
sessment of their impact difficult.
Institutional Mandates and Privileges
In addition to these disaster-specific instruments, the international community
has provided a number of institutions with formal mandates to engage in humani-
tarian relief, including in disaster situations. The intricacies of this institutional
structure have been described elsewhere75 and will not be explored here, except to
note that they include both global and regional institutions. At the global level,
these include UN agencies and organs and the Red Cross/Red Crescent Movement
among others. At the regional level, organizations such as ASEAN, the South Asian
Association for Regional Cooperation (SAARC), IGAD, the European Commu-
nity Civil Protection Mechanism, CEPREDENAC and CDERA have also been ac-
corded important roles with regard to the coordination of international disaster
response.
To a varying extent, these entities have also been provided specific facilities per-
tinent to their operations. For example, the Convention on Privileges and Immu-
nities of the United Nations of 194676 and the Convention on Privileges and
Immunities of the Specialized Agencies of 194777 provide the basis for the recogni-
tion of domestic legal personality of UN entities, as well as important exemptions
to normal rules concerning visas, customs, judicial oversight and other regulatory
systems. Similar privileges and immunities have been accorded to the international
components of the Red Cross/Red Crescent Movement in bilateral agreements
with States.78
Importantly, the NGO sector lacks a formal international legal mandate for its
activities, although its effectiveness and prominence is large and growing, as dis-
cussed further below.
Summary
In short, there are a number of international instruments relevant to disaster re-
sponse but their proliferation has not resulted in a coherent legal system. Likewise,
it has been argued with regard to institutional mandates that "there is no interna-
tional relief system per se, as the diverse set of actors displays little structural inter-
dependence [and lacks] a common boundary, other than the fact that each
component may on occasion contribute to the relief process."79 OCHA is currently
leading a process of reform to address structural coordination and cooperation
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problems among UN agencies and their humanitarian partners;80 however, the in-
ternational humanitarian community has yet to pay significant attention to the
harmonization of the legal framework.
Legal Problems in International Disaster Response
The absence of a comprehensive system of international law on any particular
topic is not necessarily a reason for concern. The question is whether there are
problems of a legal or regulatory nature that have been left unaddressed. Insofar as
international disaster response is concerned, the answer to this question is that
there are indeed a number of such problems that arise consistently in major inter-
national operations and constitute a substantial drag on their speed, efficiency and
effectiveness. In significant part, these problems can be attributed to the absence of
previously established laws, regulations and institutional structures focused on in-
ternational assistance at the national level. Thus, for example, the Pakistani gov-
ernment has acknowledged that "Pakistan suffered from the lack of a pre-existing
National Disaster Management Authority" and applicable legal structure when the
earthquake struck in October 2005. 81 Likewise, the United States Government Ac-
countability Office issued a report in the wake of Hurricane Katrina concluding
that "FEMA and other agencies did not have policies and procedures in place to en-
sure the proper acceptance and distribution of in-kind assistance donated by for-
eign countries and militaries."82
Typical problems in international response can be roughly divided into two
main categories: legal obstacles to the entry and operation of international relief;
and failures of monitoring, coordination and regulation of international aid. Prob-
lems of both categories usually coincide in the same disaster operations. This sec-
tion will provide a few recent examples.
Obstacles to Entry and Operations
The initiation of international disaster assistance can be difficult for political,
rather than legal, reasons, as some governments have been reluctant to request or
accept needed aid for fear of appearing weak or dependent, to avoid publicity for a
disaster, and/or to demonstrate their disapproval of the offering party.83 Govern-
ments are likewise sometimes unwilling to provide basic information about a di-
saster for similar reasons, leaving potential responders at a loss as to how best to
react.84 On the other hand, it has also been the case that foreign donors have pres-
sured governments to accept assistance they did not really need. For example, it was
reported that a large number of foreign governments insisted on sending field hos-
pitals and medical personnel to Indonesia in the wake of the 2004 tsunami, despite
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pleas from the Indonesian government and the World Health Organization that
they were not required.85
Frequently, however, the problem is more technical. While many States have
some provision in their law as to which department (frequently the office of the
prime minister or president) may initiate a request for international disaster assis-
tance, the lack of standardized systems for making the determination that outside
help is needed has led to long delays,86 and communication about specific needs is
often imperfect. Thus, for example, after Hurricane Katrina struck in August 2005,
it was reported that a Swedish government plane loaded with water purification
gear, blankets and telecommunications equipment was kept on a runway for
eleven days awaiting clearance to fly to the United States.87 By the time permission
was granted and the plane was able to depart, none of the supplies it carried were
still needed.
Sometimes, entry visas for international disaster response personnel have been
either delayed or refused by the governments of affected States, even after interna-
tional assistance has been requested. For example, several States in Central Amer-
ica have refused visas to relief personnel from other parts of Latin America, in part
due to heightened concerns about illegal immigration.88 In most cases, however,
response personnel have been able to enter affected States on tourist or short-term
visas, but problems have emerged later in the operation. For instance, interna-
tional personnel responding to the 2004 tsunami in Thailand and Indonesia were
required to frequently exit and re-enter those nations in order to renew short-term
visas, incurring both significant expense and disruption to their operations.89
Regulations on the passage of relief transport vehicles and customs delays on in-
coming goods and equipment are other critical barriers in many operations.90 For
example, one year after the tsunami struck Indonesia, over four hundred contain-
ers of relief goods were still awaiting customs clearance in Jakarta and Medan.91 In
the meantime, many of the perishable items rotted, medicines expired, and some
items that were needed at the onset of the response operation (such as tents and
surgical equipment) were no longer required.92 After Hurricane Katrina struck the
United States, the British Ministry of Defence sent five hundred thousand "Meals
Ready to Eat" (MREs) by civil aircraft.93 However, after their arrival in Arkansas, it
was determined that they contained meat products prohibited by US health regula-
tions, and they were therefore stored in a warehouse at significant expense for a
number of months pending distribution to other countries.94
Delays can also arise before goods even reach the borders of the affected nation.
For example, in August 2006, after strong winds in Swaziland left thirteen thousand
persons homeless and exposed to ongoing heavy rains, the IFRC's regional delega-
tion in Harare, Zimbabwe sent a shipment of tarpaulins and tents.95 However, the
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The Law of International Disaster Response
shipment was delayed at the border with South Africa for five days before they
could proceed to the destination nation, due to problems with customs. Analo-
gously, overflight of transit States can occasionally raise difficulties, as when Paki-
stan reportedly refused to allow flights of Indian aid to Afghanistan to cross its
airspace.96
Sometimes customs delays cause headaches over and above the obvious issue of
forestalling the intended use of the affected goods and equipment. For instance, af-
ter the 1999 earthquake in Turkey, it was reported that relief goods delayed in cus-
toms beyond the statutory storage deadline had been summarily nationalized.97
Somewhat analogously, in Indonesia, storage fees for tsunami relief cargo awaiting
customs clearance mounted so high due to delays that they sometimes exceeded
the value of the relief consignments themselves.98 Charges of this type, as well as
customs duties and other types of taxes, tolls and fees on disaster operations, have
dramatically increased their costs and lowered their effectiveness. In Sri Lanka, for
example, Oxfam was required to pay a £550,000 customs duty in June 2005 to im-
port twenty-five four-wheel vehicles for its tsunami rehabilitation operations.99
Another common issue that some international disaster responders encounter
is obtaining recognition of their domestic legal status in the affected State. In Thai-
land, for example, international NGOs found the local registration process so diffi-
cult to navigate that nearly none were successful in doing so.100 As a result, some
had difficulty opening bank accounts, obtaining work permits, hiring local staff
and applying for tax exemptions.101
Similarly, obtaining recognition of the foreign qualifications of medical person-
nel has frequently proven difficult. In Nepal, for instance, it was reported that
[wjhilst some organisations were aware of the process of obtaining permission from
the Medical Council of Nepal, the process was a lengthy one and not easily adapted to
emergency situations. Other organisations were not aware of the necessary processes,
and in at least one instance a prominent medical NGO was asked to cease activities
altogether for failing to comply with the regulations.102
Furthermore, foreign actors lacking diplomatic or inter-governmental privi-
leges and immunities find themselves exposed to the risk of civil and/or criminal li-
ability in unfamiliar legal systems. On the civil side, local employee recruitment
and termination reportedly provide particularly fertile ground for litigation in di-
saster response operations as domestic labor laws generally fail to accommodate
the speedy and short-term staffing requirements of international disaster response
operations.103 Medical malpractice has also been identified as an area of particular
concern.104 Exposure to criminal investigation was raised as an issue by a number
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David Fisher
of disaster responders to the 1999 earthquake in Turkey, and one that substantially
affected their operations.105
Problems of Quality and Coordination
Closely related to entry and operation barriers are issues of quality and adequate
coordination of international relief and recovery assistance. In the absence of effec-
tive international mechanisms of control, affected State governments have often
struggled to address the flood of external actors responding to those major disas-
ters with the highest media attention.106
Perhaps the most important quality issue is the arrival of vast quantities of un-
wanted, unneeded and inappropriate relief goods, which embroil customs offices,
fill airports and warehouses, and block the flow of needed goods. For example, in
each of the largest disaster operations of 2005 (e.g., the tsunami in Indonesia, Thai-
land and India; the earthquake in Pakistan; and Hurricane Katrina in the United
States), heaps of used clothing appeared. In tropical Sri Lanka, these included win-
ter coats and hats, dress shoes, pyjama tops (without bottoms) and even "thong
underwear."107 In Muzaffarabad, Pakistan, piles of useless warm-weather clothes
were burned for warmth.108 As noted by the Tsunami Evaluation Coalition (TEC)
report — a major multiagency study of the international response to the 2004 tsu-
nami— "assistance" in the form of used clothes, expired or poorly labeled medi-
cines, inappropriate food (such as canned pork sent to Muslim Indonesia), and
other assorted eccentric items is "not just worthless to the recipients; it has a nega-
tive value. It occupies storage and transport space at the very time when this is
needed for real aid. It then requires special handling to dispose of — all an addi-
tional burden on a response."109
In addition to increased shipments of goods, major disasters are attracting
larger numbers of international actors on the ground. The growth in the numbers
of NGOs becoming involved in disaster response has been particularly impressive.
For example, after the December 2004 tsunami, it was reported that there were two
hundred NGOs working in Aceh.110 In India, nearly three hundred NGOs were re-
ported to be working in Nagapattinam District alone.111 While particularly pro-
nounced after the tsunami, this trend can be seen in other highly televised disasters
as well.112 In addition, more UN agencies, Red Cross and Red Crescent societies,
private companies and unaffiliated individuals are travelling to disaster sites seek-
ing to help.113
Among these new actors, many are inexperienced and some act without suffi-
cient understanding of, or regard for, international standards of quality in disaster
response. As noted by the TEC report, " [t ] here is general agreement that there were
far too many agencies present in Indonesia and Sri Lanka. The low entry barrier to
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the system permits the entry of inexperienced and incompetent actors," and while
"[experienced agencies are not immune from low quality work . . . the risks are
higher with inexperienced actors."114 Thus, for example, an unidentified NGO was
found to have vaccinated children in a village near Banda Aceh, Indonesia after the
tsunami, leaving no records and no way to determine who had been vaccinated and
who had not.115
Many "traditional" humanitarians in tsunami-affected nations were also
shocked to find themselves working alongside "Scientologist trauma care" workers
who purported to heal tsunami victims by influencing energy waves with their
hands.116 To their dismay, and as noted in one media report from India, "[i]n the
eyes of the local public, [Scientology's] operations are indistinguishable from those
of UNICEF and CARE and the Red Cross."117 Other purportedly "humanitarian"
organizations were accused of proselytizing in several tsunami- affected nations,
and even conditioning aid on religious conversion.118
Probably the most common complaints in disaster operations revolve around
problems of coordination and sharing of information between the various actors.
The proliferation of international responders has done nothing to improve these
problems. In the tsunami operations, for example, "[ajchieving adequate repre-
sentation and consensus among even the larger, mature INGOs and Red Cross
agencies was not easy; but with such a large number of smaller agencies also on the
ground in the first six months, coherent joint planning and implementation was
unlikely."119 Aceh was dubbed an "information black hole" where overfunded hu-
manitarian agencies competed for beneficiaries, overserving some communities
and ignoring the needs of others.120
International coordination mechanisms remain largely voluntary — even
among UN agencies — and have struggled to prevent irregular coverage of disaster-
affected persons.121 For their part, national institutional frameworks for monitor-
ing and coordination of international relief were overwhelmed in both Indonesia
and Sri Lanka, leading to multiple structural changes over the course of the relief
and recovery operations in both nations.122
However, even with a more modest international intervention, governments of
the affected States have experienced significant difficulty in the absence of strong
regulatory and institutional mechanisms. For example, after Tropical Storm Stan
caused massive flooding in Guatemala in October 2005, it was widely recognized
that the national disaster management network "CONRED" and its secretariat
were unable to track and coordinate the activities of the several dozen foreign orga-
nizations and States that arrived to provide assistance.123 In contrast, in Fiji, after a
detailed legal and regulatory structure was put in place for international relief, few
coordination problems were noted in recent disaster operations.124
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Ramifications for Military Actors
How does all of this relate to military actors? First, as noted above, militaries in a
number of nations are becoming increasingly keen on international disaster relief,
both on a bilateral and multilateral basis. As noted by the United Nations, "Mem-
ber States, even those who do not give a primary role to their military forces in do-
mestic response, are now using their military capacity for relief operations on a
global basis."125 For example, in 1992, Japan amended its law on international di-
saster relief to provide a specific role for its military forces, which have been active
in operations ever since.126 Similarly, in 1996, the Canadian military created a per-
manent disaster response team to be used for foreign disaster operations.127 The
US military, long mandated to participate in international disaster relief, has also
increased its emphasis on "humanitarian" activities in recent years.128 For instance,
its contribution after the 2004 tsunami was its biggest operation in the Asia-Pacific
region since the Vietnam War.129 The Americans, Japanese and Canadians joined
no less than thirty- two other national militaries that responded to the tsunami.130
Similarly, in 1998 NATO created its Euro- Atlantic Disaster Response Coordina-
tion Centre (EADRCC) and has also embraced a "growing humanitarian role" in
disaster response operations, including for Hurricane Katrina in the United States
and the October 2005 earthquake in Pakistan.131 NATO has even gone so far as to
negotiate its own memorandum of understanding with member States for the fa-
cilitation of civilian relief personnel and materiel.132 Proposals have recently been
raised for regional military cooperation mechanisms in Central America and Asia
to facilitate military involvement in disaster relief.133
Second, military responders experience many of the same legal issues and con-
cerns as civilian actors in disaster response operations, as well as issues uniquely re-
lated to the commonly strict domestic regulation of their mandates and roles in
international operations and the special sovereignty and security concerns that the
presence of foreign troops raise for affected States.134 As noted in one summary of
the "lessons learned" from NATO's intervention in Pakistan, "[t]he importance of
working with host governments must not be underestimated. Many issues must be
resolved before operations forces arrive, including terms of entry, force protection,
legal status, communication channels, liaison arrangements, contracting arrange-
ments, use of land for basing and translators."135
Third, military responders face a similarly patchy normative framework. Few
existing disaster-related treaties make specific reference to military involvement,
though many of their more general provisions (for example, on facilitating entry of
goods and personnel) should also apply to military responders. Those that do have
specific reference, such as the ASEAN Agreement,136 the BSEC Agreement,137 and
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The Law of International Disaster Response
the Agreement of 1974 between Sweden and Norway concerning the Improvement
of Rescue Services in Frontier Areas138 commonly seek to address issues of the
command relationship between the assisting and affected State forces, identifica-
tion of foreign forces (e.g., uniforms) and the carriage of arms. When they are in
place, bilateral or regional (e.g., NATO) status offerees agreements or MOUs ad-
dress a number of the issues that might arise for military actors in disaster opera-
tions.139 However, they are limited in number and difficult to negotiate at the
outset of a disaster.
The pre-eminent "soft law" instrument on military involvement in disaster re-
lief is the Oslo Guidelines on the Use of Military and Civil Defence Assets in Disas-
ter Relief. First developed by the United Nations and endorsed by an international
conference in Oslo in 1994, the Oslo Guidelines were updated and "relaunched" at
a new conference in November 2006. 140 Particularly as updated this year, the
guidelines stress that military relief assets should be considered a last resort when
no civilian alternatives are available.141 They also encourage (though do not re-
quire) military and civil defense forces to act "under UN control" in disaster opera-
tions.142 They set out minimum facilities that should be offered by affected States,
in areas such as legal status, customs, visas, overflight and security, and also set out
coordination structures and basic principles to which military and civil defense op-
erations should adhere. They also include a model agreement addressing these
sorts of issues as an annex.
The emphasis in the Oslo Guidelines on civilian control reflects the current am-
biguity in the humanitarian community about the increasing role of the military in
disaster operations. On the one hand, the capacities and achievements of military
actors in international disaster relief — particularly in the areas of transport and lo-
gistics— are undeniable. For instance, the international military contributions to
the tsunami relief have been described as pivotal to the success in avoiding the
feared "second tsunami" of starvation and disease.143 On the other hand, military
assistance is expensive — sometimes many times more costly than when the same
services are provided by civilian sources144 — and its identification and integration
with humanitarian activities raises thorny policy issues. These are particularly
acute in armed conflict settings, when military attempts to "win hearts and minds"
can confuse the distinction between military and humanitarian agencies, render-
ing the latter more liable to attack.145 However, even in disaster settings, an overly
close identification has been seen as dangerous for public perceptions of the neu-
trality of humanitarian actors. Moreover, there is concern that precedent set for
close integration between military and humanitarian actors in a disaster setting
maybe difficult to alter in a later situation of conflict.146 Thus, the Oslo Guidelines
call for "direct assistance" to be provided as much as possible by humanitarian
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David Fisher
actors, with militaries instead providing "indirect assistance" (such as transport
and logistical aid) and "infrastructure support" (such as rebuilding roads and gen-
erating power).147
Conclusion and Prospects for the Future
It seems plain that some improvements in the way that international disaster assis-
tance is generally facilitated and regulated would be desirable. While every disaster
setting is in some ways unique, and the very nature of the enterprise (particularly in
sudden-onset disasters) lends itself to some level of improvisation, the fact that a
consistent set of legal problems tends to crop up in disaster settings around the
world suggests that better regulation may have a role in improving the outcome of
disaster relief operations.
At the national level, a workable balance still remains to be struck in most States
between sufficient openness to allow quick entry and easy operation of interna-
tional disaster assistance and sufficient control to ensure the quality and overall ef-
fectiveness of a relief and recovery effort. International actors (both civilian and
military) and affected State governments have suffered alike from this imbalance,
to the detriment of efficient support to affected persons. To address this, more gov-
ernments need to thoroughly analyze such issues and adopt appropriate legislation
and regulations prior to being struck by a disaster. Some — particularly those struck
by major disasters in 2005 148 — are beginning to do so, and others might be led to it
through their activities pursuant to the Hyogo Framework.
At the international level, the dissemination and use of existing instruments
could be much improved.149 Even if this occurs, however, there are significant gaps
in the current framework when measured against the common problem areas.
Nevertheless, one commentator, noting the spotty historical development of inter-
national norms in this area, ongoing State concerns about sovereignty, and the re-
cently enhanced emphasis of the international community on disaster risk
reduction has concluded that "the direct role of international law with respect to
the policy on natural disasters will not grow significantly."150 On the other hand, as
described above, recent years have seen significant "hard" and "soft" law develop-
ments, including the ASEAN Agreement, the International Health Regulations, the
entry into force of the Tampere Convention, the NATO MOU and the revision and
reaffirmation of the Oslo Guidelines. In fact, there seems to be no shortage of will
to address some of the relevant issues, but rather a continuing lack of coherence
and comprehensiveness among current initiatives.
Looking to the future, the International Conference of the Red Cross and Red
Crescent, a forum including all State parties to the Geneva Conventions as well as
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the various components of the Red Cross/Red Crescent Movement, is scheduled to
take up a set of recommendations on the issues described in this paper in Novem-
ber 2007 — particularly with regard to what States might be encouraged to include
in domestic law and policy. The consultation process leading to that conference,
including regional forums organized with governmental and inter-governmental
partners around the globe, has already begun generating greater publicity and
attention to these issues.151 Moreover, the International Law Commission (a UN
body whose object is the "promotion of the progressive development of international
law and its codification"152) recently decided to place the issue of the "protection of
persons in natural disasters" on its long-term program of work.153 There is thus reason
to hope that there will be greater progress on these issues in the near future.
Notes
1. See Press Release, Jean-Philippe Lavoyer, Head of Legal Division, International Com-
mittee of the Red Cross, A milestone for international humanitarian law (Sept. 22, 2006), avail-
able at http://www.icrc.org.
2. International Committee of the Red Cross, Annual Report 2005, at 26, available at http://
www.icrc.org.
3. International Federation of Red Cross and Red Crescent Societies, World
Disasters report 2000, at 157 (2000).
4. Bosko Jakovljevic, Some Reflections on International Disaster Relief Law, 16 INTERNA-
TIONAL Civil defence Journal 32, 34 (2006).
5. Source: Emergency Disasters Data Base (EM-DAT): The Office of US Foreign Disaster
Assistance/Centre for Research on the Epidemiology of Disasters (OFDA/CRED) International
Disaster Database, http://www.em-dat.net [hereinafter CRED Database] (last visited Oct. 21,
2006).
6. While figures for interventions by the international humanitarian sector as a whole are
difficult to locate, the International Federation of Red Cross and Red Crescent Societies alone
has recorded nearly two thousand international relief operations in 153 nations since its found-
ing in 1919. See International Federation of Red Cross and Red Crescent Societies Powerpoint
Presentation, To improve the lives of vulnerable people by mobilizing the power of humanity
(July 2006) (on file with author).
7. See, e.g., INTER- AGENCY SECRETARIAT OF THE INTERNATIONAL STRATEGY FOR DISAS-
TER Reduction (UN/ISDR), living with Risk: A Global Review of disaster Reduction
INITIATIVES 45 (2004) (noting the increasing incidence of disasters).
8. See, e.g., Fred Cuny, Uses of the Military in Humanitarian Relief, Presentation to the In-
ternational Peace Academy, Niinsalo, Finland (Nov. 1989), available at http://www.pbs.org/
wgbh/pages/frontline/shows/cuny/laptop/humanrelief.html.
9. For example, the United States Defense Threat Reduction Agency is currently develop-
ing a "legal deskbook" that will describe the "U.S. and international laws, regulations and poli-
cies that apply when a foreign government requests U.S. assistance after a chemical, biological,
radiological or nuclear, and/or high-yield explosives (CBRNE) event[.]" United States Defense
Threat Reduction Agency, Foreign Consequence Management Legal Deskbook Workshop I
Report, Vicenza, Italy (Sept. 27-28, 2005) (on file with author). See also United States Defense
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David Fisher
Threat Reduction Agency, Foreign Consequence Management Legal Deskbook Workshop II
Report, McLean, Virginia, (Feb. 2, 2006) (on file with author).
10. For a more exhaustive discussion of the existing instruments, see Victoria Bannon,
Strengthening Disaster Response Laws, Rules and Principles: Overview of the Current System and a
New Way Forward, in TSUNAMI AND DISASTER MANAGEMENT: LAW AND GOVERNANCE (C. Raj
Kumar & D.K. Srivastava eds., 2006).
11. See Peter Macalister-Smith, international Humanitarian Assistance: Disas-
ter Relief Actions in international Law and Organization 17 (1985); Yves Beigbeder,
The Role and Status of International Humanitarian Volunteers and Organiza-
tions 8-9 (1991).
12. See Obijiofor Aginam, International Law and Communicable Diseases, 80 BULLETIN OF
the World Health Organization 946, 947 (2002).
13. See MACALISTER-SMITH, supra note 11, at 17-18. This role was later solidified by the
Constitution of the League of Red Cross Societies (now known as the International Federation of
Red Cross and Red Crescent Societies (IFRC), formed in 1919, and in Article 25 of the Covenant
of the League of Nations, which called on member States to "encourage and promote the estab-
lishment and cooperation of duly authorized national Red Cross organizations having as pur-
poses the improvement of health, the prevention of disease and the mitigation of suffering
throughout the world."
14. See International Federation of Red Cross and Red Crescent Societies, Background In-
formation Sheet: International Regulation of Telecommunications in Disaster Relief (Apr. 25,
2006), available at http://www.ifrc.org/what/disasters/idrl/publication.asp.
15. See, e.g., Convention for the Unification of Certain Rules of Law in Regard to Collisions Be-
tween Vessels, Sept. 23, 1910, 1930 Austl. T.S. No. 14, available at http://www.admiraltylawguide
.com/conven/collisionsl910.html, and the Convention for the Unification of Certain Rules
With Respect to Assistance and Salvage at Sea, Sept. 23 1910, 1936 Austl. T.S. No. 9, available at
http://www.admiraltylawguide.com/conven/salvagel910.html.
16. See Peter Macalister-Smith, Reflections on the Convention Establishing an International
Relief Union of July 12, 1927, 54 LEGAL HISTORY REVIEW 363, 364 (1986).
17. Convention and Statute Establishing an International Relief Union, July 12, 1927,
L.N.T.S. 3115 (1932) [hereinafter IRU Convention].
18. See Macalister-Smith, supra note 16, at 370.
19. Mat 370-72.
20. See Horst Fischer, International disaster response law treaties: trends, patterns and lacunae,
in International Disaster Response Laws, Principles and Practice: Reflections, Pros-
pects AND CHALLENGES 24, 25 (Victoria Bannon ed., 2003).
21. Id.
22. See International Convention on the Simplification and Harmonization of Customs
Procedures, May 18, 1973, 950 U.N.T.S. 269, T.I.A.S. 6633 (1973), and its 1999 Protocol of
Amendment, infra note 32.
23. See, e.g., Convention on Facilitation of International Maritime Traffic, annex 1, sees.
5.11-5.12, Apr. 9, 1965, 591 U.N.T.S. 265; 4 INTERNATIONAL LEGAL MATERIALS 502; Conven-
tion on International Civil Aviation, annex 9, sec. 8.8, Dec. 7, 1944, 61 Stat. 1180, 15 U.N.T.S.
295, reprinted in INTERNATIONAL CIVIL AVIATION ORGANIZATION, INTERNATIONAL STAN-
DARDS and Recommended Practices: Facilitation - Annex 9 to the Convention on In-
ternational Civil Aviation ( 12th ed. 2005).
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24. See, e.g., Agreement for Cooperation in Dealing with Pollution of the North Sea by Oil
and other Harmful Substances, art. 7, Sept. 13, 1984, Official Journal of the European Commu-
nities, No. L 188/9 (July 16, 1984).
25. See U.N. Doc. No. A/39/267/Add.2 - E/1984/96/Add. 2 (June 18, 1984), available at
http://www.ifrc.org/what/disasters/idrl/publication.asp.
26. See Decision 1984/175, reprinted in Resolutions and Decisions of the Economic and Social
Council: Second Regular Session of 1984, Geneva 4-27 July 1983, Supplement No. 1A (United
Nations, 1984) (taking note of the draft convention and referring it to the General Assembly).
27. See, e.g., Summary Record of the 32nd Meeting, UNGAOR, 39th Sess., UN Doc. No. A/
C.2/39/Sr.32 (Nov. 6, 1984) at 10 (Ecuador); Summary Record of the 35th Meeting, UNGAOR
39th Sess., U.N. Doc. No. A/C.2/39/SR.35 (Nov. 7, 1984) at 3 (Indonesia); Summary Record of
the 37th Meeting, UNGAOR 39th Sess., U.N. Doc. No. A/C.2/39/SR.37 (Nov. 12, 1984) at 12
(Zambia). Several States publicly called for more time for discussion on the Draft Convention.
See, e.g., Summary Record of the 37th Meeting, UNGAOR 39th Sess., U.N. Doc. No. A/C.2/39/
SR.37 (Nov. 12, 1984) at 12 (Philippines); Summary Record of the 34th Meeting, UNGAOR 39th
Sess., U.N. Doc. No. A/C.2/39/SR.34 (Nov. 12, 1984) at 7 (Nordic States).
28. 1439 U.N.T.S. 275(1986).
29. See http://www.iaea.org/Publications/Documents/Conventions/cacnare_status.pdf (last
visited Nov. 1,2006).
30. The CRED EM-DAT database includes radiological emergencies and explosions as sub-
categories along with many other types of man-made disaster under the heading "Industrial Ac-
cidents." See EM-DAT Glossary, http://www.em-dat.net/glossary.htm#I (last visited Nov. 1,
2006). According to the database, industrial accidents as a whole represented 7.1% of all non-
conflict disasters from 1970-2006, amounting to less than half of the number of wind storms
(16.1%) and of floods (19.4%). See CRED Database, supra note 5.
31. An online database on the response to the Chernobyl disaster maintained by the Swiss
Agency for Development and Cooperation lists over one hundred (mostly international) non-
State organizations still actively involved in the response, over twenty years after the accident. See
http://www.chernobylinfo.int (last visited Nov. 1, 2006).
32. Protocol of Amendment to the International Convention on the Simplification and
Harmonization of Customs Procedures of 18 May 1973, June 26, 1999, S. TREATY DOC. No. 108-
6 available at http://www.ifrc.org/what/disasters/idrl/publication.asp (hereinafter Kyoto Con-
vention). This amended version has now superseded the old one for 50 of its original 63 State
parties. The original convention is expected to eventually be entirely defunct as additional State
parties "switch over." See Press Release, World Customs Organization, Revised Kyoto Conven-
tion Continues to Grow (Aug. 3, 2006), available at http://www.wcoomd.org/ie/En/en.html. Of
the two annexes of the original version of the Kyoto Convention directly relevant to disaster re-
lief, only one (Annex F.5) is currently (and probably only temporarily) still in effect during this
transition period, and only between two parties, Kenya and Israel. See World Customs Organiza-
tion, Position as Regards Ratifications and Accessions (at July 1, 2006): International Conven-
tion on the Simplification and Harmonization of Customs Procedures, Doc. No. PG0138Ela,
July 25, 2006, available at http://www.wcoomd.org. Neither of the original annexes ever gar-
nered more than a dozen State adherents. See World Customs Organization, Position as Regards
Ratifications and Accessions (at June 30, 2004): International Convention on the Simplification
and Harmonization of Customs Procedures.
33. Convention on Temporary Admission, June 26, 1990, 1993 Austl. T.S. No. 43, available
at http://www.wcoomd.org [hereinafter Istanbul Convention].
312
David Fisher
34. There are currently eight State parties to Specific Annex B.3, seven parties to Specific An-
nex J. 5 of the Kyoto Convention and thirty-seven parties to Annex B.9 of the Istanbul Conven-
tion. See World Customs Organization, Position as Regards Ratifications and Accessions (as of
July 1, 2006): International Convention on the Simplification and Harmonization of Customs
Procedures (as amended), Doc. No. PG0137Ela; and Position as Regards Ratifications and Ac-
cessions (as of July 1, 2006): Convention on Temporary Admission (as amended), Doc. No.
PG0139Ela; both available at http://www.wcoomd.org/ie/en/Conventions/conventions.html.
35. Of the twenty- five States that have experienced the greatest number of non-conflict
disasters over the last fourteen years (per the CRED Database, supra note 5), three have signed
Kyoto Convention Specific Annex B.3, two have signed its Specific Annex J. 5, and four have
signed Annex B.9 of the Istanbul Convention. Other customs instruments, although lacking spe-
cific reference to disaster situations, might also be helpful. These include the ATA Carnet for the
Temporary Admission of Goods of 1963, available at http://www.wcoomd.org, which allows for
passage without inspection of goods across the borders of transit States, and the Customs Con-
vention on the Temporary Importation of Professional Equipment, June 8, 1961, 1968 Austl.
T.S. No. 6, available at http://www.austlii.edu.au., which allows for duty-free importation of
"any . . . equipment necessary for the exercise of the calling, trade or profession of a person visit-
ing the territory of another country to perform a specific task."
36. 2172 U.N.T.S. 231 (2000).
37. Id., art. 4(b).
38. As of December 1, 2005. See International Civil Defence Organization, Framework Con-
vention on Civil Defence Assistance, May 22, 2000, 2172 U.N.T.S. 38131, http://www.icdo.org/pdf/
org/act-coop-frame-signatures-en.pdf.
39. Tampere Convention on the Provision of Telecommunication Resources for Disaster
Mitigation and Relief Operations, June 18, 1998, United Nations depositary notification
C.N.608.1998.TREATIES-8 of 4 December 1998 (entered into force Jan. 8, 2005). The full text is
available at http://www.ifrc.org/what/disasters/idrl/publication.asp.
40. Id., art. V.
41. See International Federation of Red Cross and Red Crescent Societies, Legal issues from
the international response to the tsunami in Sri Lanka: An International Disaster Response Laws,
Rules and Principles (IDRL) Programme Case Study 16 (July 2006), available at http://
www.ifrc.org/docs/pubs/idrl/report-srilanka.pdf [hereinafter Sri Lanka Case Study].
42. Field interviews by the author.
43. There are currently thirty-five parties to the convention. See United Nations Treaty Da-
tabase, http://untreaty.un.org (last visited Oct. 31, 2006).
44. According to disaster data obtained from the CRED Database, supra note 5.
45. This information was obtained from the United Nations Treaty Service website, http://
untreaty.un.org/ (last visited Jan. 4, 2007). By its terms, ratification or accession to the treaty is
limited to a prescribed list, or those approved by the Food Aid Committee. See Food Aid Con-
vention, infra note 46, art. XXII.
46. The Food Aid Convention is one of two components of the International Grains Agree-
ment of 1995, Apr. 13, 1999, 2073 U.N.T.S. 135, availa ble at http://www.igc.org.uk/en/downloads/
brochure/iga 1 995 .pdf.
47. The "eligible products" — in other words, those that a member State can report toward
its agreed annual quota — are grains, grain and rice products of primary or secondary processing,
pulses, edible oil, root crops, skimmed milk powder, sugar, seed for eligible products and, to a
limited extent, other products "which are a component of the traditional diet of vulnerable
groups or . . . of supplementary feeding programs [.]" Food Aid Convention, supra note 46, at
313
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art. III. The Convention does not limit contributions of other types of foods, but they cannot be
counted toward the member's quota.
48. See H. Bruce Huff & Michelle Jimenez, The Food Aid Convention: Past Performance and
Future Role Within the Global Trade and Development Environment 6-7, conference paper pre-
sented at the International Conference on Agricultural Policy Reform and the WTO: Where Are
We Heading?, in Capri, Italy, June 23-26, 2003, available at http://www.ecostat.unical.it/
2003agtradeconf/Contributed%20papers/Huff%20and%20Jimenez.PDF; Sophia Murphy &
Kathy McAfee, U.S. Food Aid: Time to Get It Right 15 (Institute for Agriculture and Trade Policy,
2005), available at http://www.tradeobservatory.org/library.cfm?refid=73512.
49. At its December 2006 session, the Food Aid Committee reportedly also agreed "in principle"
to extend the Convention for another year beyond the June 2007 deadline, subject to confirma-
tion at its next meeting. However, it also agreed to consider amending the treaty at that meeting.
See Press Release, IGC-FAC (Dec. 14, 2006), available at http://www.igc.org.uk/downloads/pr/
pr06071.pdf.
50. World Health Assembly, Revision of the International Health Regulations, Doc. No.
WHA58.3 (May 23, 2005) [hereinafter revised IHR]. In light of the alarming implications of the
recent outbreak of avian influenza, the World Health Assembly adopted a resolution in May
2006 urging member States to voluntarily begin implementing pertinent provisions of the re-
vised IHR immediately. See 59th World Health Assembly, Resolution EB117.R7, Agenda Item
11.1, WHO Doc. A59/87 (May 26, 2006), available at http://www.who.int/gb/eZe_eb 11 7.html.
51. See Constitution of the World Health Organization art. 22, July 22, 1946, available at
http://www.yale.edu/lawweb/avalon/decade/decad05 1 .htm.
52. See Michael Baker & David Fidler, Global Public Health Surveillance Under New Interna-
tional Health Regulations, 12 EMERGING INFECTIOUS DISEASES 1058 (2006).
53. Unfortunately, the revised IHR does not directly provide for measures to protect or even
maintain the confidentiality of these non-State whistleblowers. See David Fidler, From Interna-
tional Sanitary Conventions to Global Health Security: The New International Health Regulations,
4 Chinese Journal of International Law 325, 375 (2005).
54. 1991 Official Journal of the European Communities, Legislation 229.
55. Also known as the "Open Partial Agreement on the Prevention of, Protection against
and Organization of Relief in Major Natural and Technological Disasters," established by Coun-
cil of Europe Committee of Ministers Resolution 87(2) of March 20, 1987. The agreement is
open to both European and non-European States and currently has twenty-five members. See
http://www.coe.int/t/dg4/majorhazards/presentation/presentation_en.asp.
56. Council Decision 200 1 /792/EC, establishing a Community mechanism to facilitate rein-
forced cooperation in civil protection assistance interventions of October 23, 2001, Euratom,
Official Journal L 297/7, Nov. 15, 2001, available at http://eur-lex.europa.eu/LexUriServ/site/en/
oj/200 1 /1_297/1_297200 1111 5en000700 1 1 .pdf.
57. Mar. 17, 1992, 2105 U.N.T.S. 460. See in particular Article 12 and Annex X.
58. Jan. 20, 1989, 1777 U.N.T.S. 249 (No. 31001).
59. Available at http://www.ifrc.org/what/disasters/idrl/publication.asp.
60. Inter-American Convention to Facilitate Assistance in Cases of Disaster (1984), avail-
able at http://www.oas.org/legal/intro.htm.
61. They are Panama, Peru and Uruguay. See IDRL Document Information Sheet, available
at http://www.ifrc.org/Docs/idrl/I128EN_I.pdf.
62. See Nuevo Convenio Constitutive del Centro de Coordinacion para la Prevencion de los
Desastres naturales en America Central (CEPREDENAC), Sept. 3, 2003, SICA Doc. No. STD/C/
314
David Fisher
071/03, available at http://www.cepredenac.org. CEPREDENAC was first formed on October
29, 1993. See CEPREDENAC: Antecedentes, http://www.cepredenac.org/antecedentes.htm.
63. Consejo Andino de Ministros de Relaciones Exteriores, Decision 529, Creadon del
Comite Andino para la Prevencion y Atencion de Desastres (CAPRADE), July 7, 2002, available
at http://www.comunidadandina.org/normativa/dec/D529.htm.
64. See Agreement Establishing the Caribbean Disaster Emergency Response Agency, Feb.
26, 1991, available at http://www.caricom.org/jsp/community/agreement-cdera.htm.
65. See Tracy- Lynn Field, International Disaster Response Law in a Southern Africa Context,
in International Disaster Response, supra note 20, at 83.
66. See Agreement Establishing the Inter- Governmental Authority on Development
(IGAD), Mar. 21, 1996, Doc. No. IGAD/SUM-96/AGRE-Do, available at http://www.igad.org/
aboutZagreement_establishing_igad.pdf. Although IGAD has extended its activities and is now
mainly known for its conflict resolution initiatives, it is still active on issues of drought. See, e.g.,
IGAD Council of Ministers, Resolution on the Drought and Famine Situation in the IGAD
Region, Mar. 18, 2006, available at http://www.igad.org.
67. See L. Amathila, Deputy Prime Minister of the Republic of Namibia, Statement at the
Opening of the SADC Pre-Season Disaster Management Meeting, Windhoek, Namibia, Sept.
19-20, 2005, available at http://www.grnnet.gov.na/News/Archive/2005/september/week3/
disaster _rpt.htm.
68. ASEAN Agreement on Disaster Management and Emergency Response (2005), available
at http://www.aseansec.org.
69. See Horst Fischer, supra note 20, at 24. These treaties have been collected and are avail-
able on the IFRC's IDRL Database at http://www.ifrc.org/what/disasters/idrl/publication.asp.
70. See Report of the World Conference on Disaster Reduction, U.N. Doc. No. A/Conf.206/
6 (Mar. 6, 2005), Resolution 2.
71. See id. at 17-18 (describing "Priority 5").
72. See 23rd International Conference of the Red Cross (1977), res. VI; ECOSOC Res. 2012
(LXIII) (1977); and U.N. GAOR 32nd Sess., 98th plenary meeting, Doc. A/RES/32/56 (1977).
The latter is available at http://www.ifrc.org/what/disaster/idrl/publication.asp.
73. All three instruments are available at http://www.ifrc.org/what/disaster/idrl/publication
.asp.
74. Both documents are available at http://www.ifrc.org/what/disaster/idrl/publication.asp.
75. See, e.g., MACALISTER- SMITH, supra note 11.
76. Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, 1
U.N.T.S. 15.
77. Convention on the Privileges and Immunities of the Specialized Agencies, Nov. 21,1 947,
33 U.N.T.S. 261.
78. See Elise Baudot-Queguiner, The Laws and Principles Governing Preparedness, Relief and
Rehabilitation Operations: The Unique Case of the International Federation of Red Cross and Red
Crescent Societies, in INTERNATIONAL DISASTER RESPONSE LAWS, supra note 20, at 127, 131;
Gabor Rona, The ICRCs Status: In a Class of Its Own (Feb. 17, 2004), http://www.icrc.org/web/
eng/siteeng0.nsf/html/5W9FJY.
79. See BEIGBEDER, supra note 1 1, at 10 (citing Randolph Kent).
80. See Office for the Coordination of Humanitarian Affairs, Appeal for Improving Humani-
tarian Response Capacity: Cluster 2006 (Mar. 29, 2006), available at http://www.who.int/hac/network/
interagency/news/2006_Cluster_Appeal.pdf.
81. Farooq Ahmad Khan, Remarks at the ISDR Side Event to ECOSOC 2006: Panel discus-
sion and briefing on progress of the implementation of the Hyogo Framework for Action 2005-
315
The Law of International Disaster Response
2015: Building Resilience of Nations and Communities to Disasters (July 19, 2006), available at
http://www.unisdr.org/eng/isdr-system/docs/ecosoc-19jul-Pakistan%20.ppt.
82. United States Government Accountability Office, Hurricane Katrina: Comprehensive
Policies and Procedures are Needed to Ensure Appropriate Use and Accountability for International
Assistance, at i, Doc. No. GAO-06-460 (Apr. 2006), available at http://www.gao.gov/new.items/
d06460.pdf.
83. See, e.g., Rohan Hardcastle & Adrian Chua, Humanitarian assistance: towards a right of
access to victims of natural disasters, 325 INTERNATIONAL REVIEW OF THE RED CROSS 589 (1998),
available at http://www.icrc.org/Web/eng/siteengO.nsf/html/57JPJD (providing examples).
84. See, e.g., Barbara Demick, Aid Groups in Dark About North Korean Flood, LOS ANGELES
TIMES, Sept. 4, 2006, at A4 (reporting complaints from aid groups about the lack of information
provided by the North Korean government about the effects of recent flooding).
85. See Matthew Moore & Lindsay Murdoch, Water, Not Hospitals, Needed in Aceh, SYDNEY
MORNING HERALD (Jan. 10, 2005), available at http://www.smh.com.au/news/Asia-Tsunami/
Water-not-hospitals-needed-in-Aceh/2005/0 1/09/ 1105205983764.html.
86. See, e.g., International Federation of the Red Cross and Red Crescent Societies, IDRL
Asia-Pacific Study, Fiji, Laws, Policies, Planning and Practices on International Disaster Response
30 (July 2005), available at http://www.ifrc.org/docs/pubs/idrl/idrl-fiji.pdf [hereinafter Fiji Case
Study]; Turkish Red Crescent Society, International Disaster Response Law, 1999 Marmara
Earthquake: Case Study 38 (2006), available at http://www.ifrc.org/Docs/pubs/idrl/report-turkey
.pdf [hereinafter Turkey Case Study].
87. see anne c. richard, role reversal: offers of help from other countries in
- Response to Hurricane Katrina 16 (2006).
88. Based on interviews by the author with Red Cross actors in the region. For examples in
other regions, see, e.g., Fiji Case Study, supra note 86, at 31 (noting delays with visas); Turkey
Case Study, supra note 86, at 48 (same); Sri Lanka Case Study, supra note 41, at 14-15 (noting
that the government of Sri Lanka delayed or refused visas for certain relief personnel — particularly fi-
nance staff — in order to induce responding agencies to hire local staff for those functions).
89. See International Federation of Red Cross and Red Crescent Societies, Legal issues from
the international response to the tsunami in Indonesia: An International Disaster Response Laws,
Rules and Principles (IDRL) Programme Case Study 14 (forthcoming 2007) [hereinafter Indone-
sia Case Study]; International Federation of the Red Cross and Red Crescent Societies, Legal is-
sues from the international response to the tsunami in Thailand: An International Disaster Response
Laws, Rules and Principles (IDRL) Programme Case Study 15 (July 2006) available at http://
www.ifrc.org/docs/pubs/idrl/report-thailand.pdf [hereinafter Thailand Case Study].
90. As a 2003 case study compiling interviews from thirteen countries in South Asia, South-
ern Africa and Central America noted, "[t]he import of relief goods and equipment was an issue
of great concern to the various international actors. In most countries, the imposition of heavy
taxes or cumbersome bureaucratic procedures on the import of goods necessary for relief efforts
presented a source of constant frustration for international assistance." International Federation
of Red Cross and Red Crescent Societies, International Disaster Response Law Project: Report on
findings from South Asia, Southern Africa and Central America 14 (Mar. 2003) [hereinafter Multi-
country Case Study] .
9 1 . See Indonesia Case Study, supra note 89, at 2 1 (citing Help on the Way for Stuck Tsunami
Aid, Jakarta Post, Jan. 14, 2006).
92. Id.
93. See RICHARD, supra note 87, at 18.
94. Id. at 18-19.
316
David Fisher
95. International Federation of Red Cross and Red Crescent Societies, Swaziland: Storm,
DREF Bulletin No. MDRSZ001, Update No. 1 (Aug. 17, 2006), available at http://www.ifrc.org/
cgi/pdf_appeals.pl?06/MDRSZ00101.pdf.
96. Transit Denial by Pak Hampering Afghan Reconstruction, ISLAMIC REPUBLIC NEWS
AGENCY (Aug. 9, 2006), available at http://www.irna.ir/en/news/view/menu-236/
0608097142181634.htm.
97. See Turkey Case Study, supra note 86.
98. See Indonesia Case Study, supra note 89, at 22.
99. See Sri Lanka Case Study, supra note 41, at 17.
100. See Thailand Case Study, supra note 89, at 14.
101. Id.
102. See International Federation of Red Cross and Red Crescent Societies, IDRL Asia-Pacfic
Study: Nepal - Laws, Policies, Planning and Practices on International Disaster Response 28 (July
2005), available at http://www.ifrc.org/docs/pubs/idrl/idrl-nepal.pdf [hereinafter Nepal Case
Study].
103. Based on author's interviews of legal counsel of major international NGOs.
1 04. See, e.g., Ruth Blackham & Karin Margolius, The Legal Standing of Disaster Relief Workers
Abroad: An Australian Perspective, 2 LEGAL MEDICINE JOURNAL No. 1, Abstract 6 (July 2005).
105. See Turkey Case Study, supra note 86, at 49 (noting that over a quarter of organizations
surveyed on this question had been the object of a criminal investigation, which, for most of
them, had seriously hindered their operations).
106. It must be noted, however, that many disasters provoke nowhere near the attention and
assistance required from the international community. This issue of "forgotten emergencies"
might also be seen as a result of the anarchic international assistance "system." They do not
present a particular regulatory problem at the national level, however, and so are not discussed
here in depth.
107. See Patrick Barta & Eric Bellman, Sri Lanka is Grateful, but What to Do with the Ski
Parkas?, WALL STREET JOURNAL, Feb. 3, 2005, at Al.
108. See Aamer Ahmad Khan, Resilience Among Ruins of Muzaffarabad, BBC NEWS (Oct. 28,
2005), http://news.bbc.co.Uk/2/hi/south_asia/4385234.stm.
109. John Telford & John Cosgrave, Joint Evaluation of the International Response to the In-
dian Ocean Tsunami: Synthesis Report 52 (Tsunami Evaluation Coalition, 2006) [hereinafter
TEC Report], available at http://www. tsunami-evaluation. org/The+TEC+Synthesis+Report/
Full+Report.htm.
110. Mat 55.
111. Id.
112. For instance, nearly one hundred NGOs responded to the 2001 earthquake in Gujarat,
India and one hundred twenty responded to the 2003 earthquake in Bam, Iran. See Disasters
Emergency Committee, The Earthquake in Gujarat, India: Report of a monitoring visit for
the DEC para. 15 (Mar. 2001), available at http://apps.odi. org.uk/erd/advsearch. aspx?CallNo
=699,698,666,632,665,499,41 1,416,664,343,357,296,314,415,533,400,100,134,103,380; Interna-
tional Federation of Red Cross and Red Crescent Societies and the Iranian Red Crescent Soci-
ety, Operations Review of the Red Cross Red Crescent Movement Response to the Earthquake in
Bam, Iran 12 n. 19 (May 20, 2004), available at http://www.ifrc.org/cgi/pdf_evaluation.pl?eval04/
Bam-operations-review.pdf.
113. See Arjun Katoch, The Responders' Cauldron: The Uniqueness of International Disaster
Response, 59 JOURNAL OF INTERNATIONAL AFFAIRS 153, 164 (2006).
114. See TEC Report, supra note 109, at 107 & n. 131.
317
The Law of International Disaster Response
115. INTERNATIONAL FEDERATION OF RED CROSS AND RED CRESCENT SOCIETIES, WORLD
Disasters Report: Focus on Information in Disasters 93 (2005) [hereinafter World
Disaster Report].
116. Id. See also Peter Goodman, For Tsunami Survivors, a Touch of Scientology, WASHING-
TON POST, Jan. 28, 2005, at C01, available at http://www.msnbc.msn.com/id/6878931/.
117. Id.
118. See Australian Broadcasting Corporation: The World Today, Claims Tsunami Aid Used
as Evangelical Opportunity (Dec. 19, 2005), http://www.abc.net.au/worldtoday/content/2005/
sl534097.htm; Michael Gartland, Christians Defy Law to Convert Muslims in Tsunami Aftermath,
Johns Hopkins University International Reporting Project (2005), available at http://www
.pewfellowships.org/stories/indonesia/indonesia_christians.htm.
119. Jon Bennett et al., Coordination of International Humanitarian Assistance in Tsunami-
Affected Countries 77 (Tsunami Evaluation Coalition, 2006), available at http://www.tsunami
-evaluation.org/NR/rdonlyres/0E43484A-B99 1 -4EF6-8230-BC3 1 548 1 2BC/0/coordination_final
_report.pdf.
120. See WORLD DISASTER REPORT, supra note 1 15, at 89-92.
121. Id. See also Constanza Adinolfi et al., Humanitarian Response Review (Office for the Co-
ordination of Humanitarian Assistance, 2005), available at http://www.reliefweb.int/library/
documents/2005/ocha-gen-02sep.pdf.
1 22. See Sri Lanka Case Study, supra note 4 1 , at 3-8; Indonesia Case Study, supra note 89, at 5-7.
123. Based on interviews performed by the author in Guatemala City in November 2006 in
preparation of a case study due to be published in early 2007. For a list of foreign organizations
that participated in the relief effort, see the dedicated website created for the disaster by UNDP:
http://www.pnudguatemala.org/stan.
124. See Fiji Case Study, supra note 86, at 31.
125. Press Release, United Nations, UN Updates Guidelines for International Military Aid in
Disaster Relief Operations (Nov. 27, 2006), available at http://www.un.org/apps/news/story
.asp?NewsID=20733&Cr=disaster&Crl=relief.
1 26. See Go Ito & Kazuyuki Sasaki, The Self-Defense Forces Overseas: Japan s Lessons from the In-
dian Ocean Tsunami Assistance, LIAISON, vol. 3, no. 3 (web version), http://www.coe-dmha .org/
Liaison/Vol_3No_3/Dept 1 8.htm.
127. See Disaster Relief: Canada's Rapid-response Team, CBC NEWS, Oct. 17, 2005, at http://
www.cbc.ca/news/background/cdnmilitary/dart.html.
128. See George Topic, A Long Tradition of Cooperation and Support, E- JOURNAL USA,
United States Department of State (Nov. 2004), http://usinfo.state.gov/journals/itps/1104/ijpe/
topic.htm.
129. See TEC Report, supra note 109, at 60.
130. See Katoch, supra note 1 13, at 158.
131. See Maurits Jochems, NATO's growing humanitarian role, NATO REVIEW, Spring 2006,
at 15, available at http://www.nato.int/docu/review/2006/issuel/english/art4.html. For a list of
other operations in which NATO has participated, see NATO Civil Emergency Planning,
NATO's Role in Disaster Assistance (2d ed. 2001), available at http://www.nato.int/eadrcc/mcda-e
.pdf.
132. See Press Release 109 (2006), NATO, NATO Allies and Partners Agree a Memorandum
of Understanding on Crises Assistance (Sept. 13, 2006), available at http://nids.hq.nato.int/
docu/pr/2006/p06- 109e.htm.
133. See Sam Logan, Central America Talks Regional Military Force, ISN Security Watch (Oct. 10,
2006), http://www.isn.ethz.ch/news/sw/details.cfm?id= 16771; Dominique Loh, FPDA Ministers
318
David Fisher
Want to Set Up Disaster Relief Coordination Centre, Channelnewsasia.com, June 5, 2006,
www.channelnewsasia.com/stories/singaporelocalnews/view/21 205 l/1/.html.
134. For example, legal concerns regarding initiation of aid, entry of personnel, vehicles and
goods, liability and coordination were prominently featured in the workshops the United States
Department of Defense has organized on "Foreign Consequence Management." See supra note 9.
135. Tyler Fitzgerald & Salvatore Moccia, Lessons Learned from Pakistan: NATO Response
Force Debuts, Sharpens its Focus, DefenseNews.com, Dec. 5, 2005, http://www.defensenews.com/
story.php?F= 1 405428&C=commentary.
136. See supra note 68.
137. See supra note 58.
138. Mar. 19, 1974, 1424 U.N.T.S. 307 (No. 24063), available at http://www.ifrc.org/Docs/
idrVl98EN.pdf.
139. See Role of the Southern European Task Force in FCM, Remarks of Mark Oswald, in
Defense Threat Reduction Agency, Foreign Consequence Management Legal Deskbook Work-
shop I Report, Vicenza, Italy, 27-28 September 2005 (on file with author).
140. See supra note 125.
141. See Oslo Guidelines on the Use of Military and Civil Defence Assets in Disaster Relief
para. 5 (Rev. Nov. 2006), available at http://ochaonline.un. org/DocView.asp?DocID=5247.
142. Id. at para. 3.
143. See TEC Report, supra note 109, at 59.
1 44. See id. at 57; Jane Barry, A Bridge Too Far: Aid Agencies and the Military in Humanitarian
Response, Humanitarian Practice Network Paper No. 37 (Jan. 2002), available at http://www
.reliefweb.int/rw/lib.nsf/db900SID/LGEL-5FKHH5/$FILE/odi-bridge-jan02.pdf?OpenElement
(providing multiple examples in the conflict context).
145. See Barry, supra note 144, at 1 1-12; Raj Rana, Contemporary Challenges in the Civil- Military
Relationship: Complementarity or Incompatibility?, 86 INTERNATIONAL REVIEW OF THE RED
CROSS 565 (2004), available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/66DDF7/$File/
irrc_855_Rana.pdf.
146. See Guidance Document on Relations between the Components of the Movement and
Military Bodies, para. 6, adopted by Council of Delegates of the Red Cross and Red Crescent,
res. 7, Nov. 18,2005.
147. See Oslo Guidelines, supra note 141, para. 32. The Oslo Guidelines (para. 1) define "di-
rect assistance" as "the face-to-face distribution of goods and services"; "indirect assistance" as
"at least one step removed from the population and involving] such activities as transporting
relief goods and personnel"; and "infrastructure support" as "providing general services, such as
road repair, airspace management and power generation that facilitate relief, but are not neces-
sarily visible to or solely for the benefit of the affected population."
148. These include Pakistan (see supra note 81) and Sri Lanka (see Sri Lanka Ministry of Disaster
Management, Towards a Safer Sri Lanka: A Roadmapfor Disaster Risk Management (Dec. 2005) ),
among others.
149. The IFRC's IDRL Programme has been working toward this end through training, pub-
lications and the creation of a database of existing instruments, http://www.ifrc.org/idrl.
150. See David Fidler, Disaster Relief and Governance after the Indian Ocean Tsuanmi: What
Role for International Law?, 6 MELBOURNE JOURNAL OF INTERNATIONAL LAW 458, 473 (2005).
151. For a description of these forums and their results, see http://www.ifrc.org/idrl.
152. Statute of the International Law Commission (1947) art. 1, available at http://
www.un.org/law/ilc.
319
The Law of International Disaster Response
153. See Report of the International Law Commission, 58th Sess. (May 1-June 9 and July 3-
Aug. 11, 2006), U.N. Doc. No. A/61/10 (2006), at 464.
320
Contributors
Editor's Note: In order to most accurately portray the events of the conference, the bio-
graphical data in this appendix reflects the position in which the authors were serving
at the time of the conference, as set forth in the conference brochures and materials.
Professor Craig H. Allen is Judson Falknor Professor of Law at the University of
Washington, Seattle, Washington. He joined the University of Washington faculty
in 1994, following his retirement from the US Coast Guard. He is a licensed master
mariner, a Fellow in the Nautical Institute and a member of the Royal Institute of
Navigation and the US Maritime Law Association. Professor Allen is on the board
of editors of the Ocean Development and International Law journal and is the au-
thor oiVarwelVs Rules of the Nautical Road. Professor Allen served as the Charles H.
Stockton Professor of International Law at the US Naval War College in the 2006-
07 academic year.
Rear Admiral Jorge Balaresque, Chilean Navy (Ret.), teaches strategy and other
military courses at Chile's Academia de Guerra Naval (Naval War College) in
Valparaiso and is a fellow of the Chilean Maritime History Society. During his
thirty- five-year naval career, he served as a submarine officer, attended the Acade-
mia de Guerra Naval (1983-84) and was the commander of the Second Naval Zone
at Talcahuano.
Mr. John B. Bellinger III is the legal adviser to the secretary of state. He is the prin-
cipal adviser on all domestic and international law matters to the Department of
State, the Foreign Service and the diplomatic and consular posts abroad. He is also
the principal adviser on legal matters relating to the conduct of foreign relations to
other agencies and, through the secretary of state, to the president and the National
Security Council. From February 2001 to January 2005, Mr. Bellinger served as se-
nior associate counsel to the president and legal adviser to the National Security
Council at the White House. He served as counsel for national security matters in
the Criminal Division of the Department of Justice from 1997 to 2001. He served
previously as counsel to the Senate Select Committee on Intelligence (1996), as
general counsel to the Commission on the Roles and Capabilities of the US Intelli-
gence Community (1995-96) and as special assistant to Director of Central Intelli-
gence William Webster (1988-91). From 1991 to 1995, he practiced law with
Contributors
Wilmer Cutler & Pickering in Washington, DC. Mr. Bellinger is a member of the
Council on Foreign Relations and the American Council on Germany and a Fellow
of the British- American Project.
Professor Gene E. Bigler is University Professor-Practitioner of International Re-
lations and Diplomacy at the University of the Pacific, Stockton, California. Before
joining the University of the Pacific he was director of the Office of Strategic and
External Affairs, Bureau of Democracy, Human Rights and Labor in the US De-
partment of State. He served previously as a counselor for public opinion and poll-
ing in the Coalition Provisional Authority in Baghdad; as special assistant in the
Office of International Affairs, Commandant, US Coast Guard; in the US embas-
sies in Panama, Peru and Italy; and in several postings in the US Information
Agency and State Department on South American and Latin American public
opinion and information matters. He has taught in a number of schools and pro-
grams, including Hendrix College in Conway, Arkansas, and in Venezuela and Ec-
uador. Professor Bigler is a frequent conference speaker and consultant, as well as
the author, coauthor or a contributor to numerous agency reports, books, edited
collections and journals.
Rear Admiral Michael A. Brown, US Navy, serves in the Office of the Chief of Naval
Operations as director, Information Operations Division and deputy director of
the Cryptology Division. During his first three years as a commissioned officer he
served on board the USS Vogelsang and the USS Connole. He next attended the Na-
val Postgraduate School and following graduation he was assigned to the National
Security Agency/Central Security Service in the Electronic Warfare and Technol-
ogy Directorate.
In 1989, Rear Admiral Brown transferred to US Naval Security Group Activity,
Edzell, Scotland, where he served as an operations watch officer, communications
department head, and the Collection, Processing, and Reporting Division officer.
Following that tour, he was assigned to Commander, Cruiser Destroyer Group
Two in Charleston, South Carolina. His next assignment was at the Naval War
College; he graduated in 1995. After graduation, he served as the executive offi-
cer, Naval Security Group Activity, Winter Harbor, Maine. In May 1998, Rear Ad-
miral Brown was assigned as the branch chief of the Information Operations Policy
Branch on the chief of naval operations staff. His follow-on assignment was as ex-
ecutive assistant to the commander of Naval Security Group and executive assis-
tant to the special assistant to the chief of naval operations for information
operations. Rear Admiral Brown then became the commanding officer, Naval In-
formation Warfare Activity in Suitland, Maryland. He next became the deputy
322
Contributors
commander/chief of staff, Naval Security Group Command where he was selected
to the rank of rear admiral in 2005.
Lieutenant Colonel Evan Carlin, Australian Defence Force, is the command legal
officer at Headquarters Joint Operations Command in Sydney, Australia. Lieuten-
ant Colonel Carlin's previous positions include chief legal officer at the Deployable
Joint Force Headquarters, staff officer to the judge advocate general of the Austra-
lian Defence Force and Australian exchange legal officer at Headquarters Land
Command in the United Kingdom. While posted to the United Kingdom, Lieuten-
ant Colonel Carlin was deployed to northern Macedonia as the legal adviser at the
Kosovo Verification and Coordination Centre, a NATO headquarters established
prior to the bombing campaign in Kosovo. On his return to Australia, he deployed
to Baghdad as the legal adviser at the Australian National Headquarters in Camp
Victory. In 2004 he deployed with a planning team to Fiji to conduct combined
contingency planning for humanitarian assistance/disaster relief operations in the
South Pacific. In January 2005 he deployed to northern Sumatra with the Austra-
lian task force in response to the tsunami that struck there on Boxing Day. Most re-
cently he has been involved in advising on Australian operations in Iraq and East
Timor.
Mr. Gus Coldebella is the deputy general counsel for the Department of Homeland
Security. He works with the general counsel in managing the Office of the General
Counsel and is responsible for advising the secretary and other senior leadership
on legal issues arising throughout the Department of Homeland Security, as well as
coordinating with legal officers at other executive branch agencies and at the White
House on homeland security-related issues. Mr. Coldebella spearheaded the effort
to respond to congressional and other related inquiries regarding Hurricane Ka-
trina. Until September 2005, Mr. Coldebella was a partner at Goodwin Procter LLP
in Boston. He also prosecuted crimes as a special assistant district attorney in Cam-
bridge, Massachusetts.
Professor Yoram Dinstein is the Yanowicz Professor of Human Rights at Tel Aviv
University (Israel) and a former president of the university. Professor Dinstein
served two appointments (1999-2000, 2002-03) as the Charles H. Stockton Pro-
fessor of International Law at the US Naval War College. He was also a Humboldt
Fellow at the Max Planck Institute for Comparative Public Law and International
Law at Heidelberg (Germany) in 2000-01. Professor Dinstein is a Member of the
Institute of International Law and a member of the Executive Council of the Amer-
ican Society of International Law. He has written extensively on subjects relating to
323
Contributors
international law, human rights and the law of armed conflict. He is the founder
and editor of the Israel Yearbook on Human Rights. He is the author of War, Aggres-
sion and Self-Defence, now in its fourth edition. His latest book is The Conduct of
Hostilities under the Law of International Armed Conflict.
Brigadier General Mari K. Eder, US Army, is the Army's deputy chief of public af-
fairs. She has over twenty-nine years of Army service and has served as an Army
public affairs officer at the installation, division, theater support command and
unified command levels. She has served as an active and reserve officer and as an
Army civilian public affairs officer. Brigadier General Eder has commanded at the
company, battalion and brigade levels. Prior to her current assignment she served
as commander of the 6th Brigade (Professional Development), 80th Division (In-
stitutional Training) while concurrently serving on active duty as chief of staff with
the Reserve Forces Policy Board in the Office of the Secretary of Defense. She has
served at the US European Command in Stuttgart, Germany as the deputy director
of public affairs and at the George C. Marshall European Center for Security
Studies in Garmisch-Partenkirchen, Germany as the director of public affairs. Be-
fore her European assignments, Brigadier General Eder served as director of public
affairs at the US Army Combined Arms Support Command and Fort Lee and in a
variety of reserve positions as both a military police and public affairs officer.
Mr. David Fisher is the senior legal research officer for the International Federa-
tion of Red Cross and Red Crescent Societies' International Disaster Response
Laws, Rules, and Principles (IDRL) Programme, based in Geneva, Switzerland.
Previously, Mr. Fisher held legal research posts for the Office of the United Nations
High Commissioner for Human Rights, the Brookings Institution's University of
Bern Project on Internal Displacement and the Georgetown University Institute
for the Study of International Migration. Mr. Fisher earned his Juris Doctor degree
in 1997 from the University of California's Hastings College of the Law and his
Master of Laws degree in international and comparative law from the Georgetown
University Law Center in 2002. His US legal experience has included both civil and
criminal trial advocacy and a clerkship with the Honorable Stephen H. Levinson of
the Hawaii Supreme Court.
Captain Dana A. Goward, US Coast Guard (Ret.), is the US Coast Guard's director
of Maritime Domain Awareness (MDA) Program Integration. His responsibilities
include development and coordination of maritime surveillance and decision sup-
port systems, and coordination of US Coast Guard efforts with international and
domestic partners. He and his staff also serve as the executive secretariat for the US
324
Contributors
National MDA Implementation Team, which is composed of members from
across the federal government. Captain Goward is a retired Coast Guard officer
who, when on active duty, served afloat, as a federal magistrate, as a regional direc-
tor of human resources and as the director of the world's largest public safety and
security boat operation. Most of his military career, however, was spent as a heli-
copter pilot and he was the commanding officer of the Coast Guard's air station in
New Orleans.
Vice Admiral Lowell E. Jacoby, US Navy, is the director, Defense Intelligence
Agency. His first sea duty tour was as an intelligence officer with Fighter Squadron
Twenty-Four, flying F-8Js off USS Hancock. Following a combat deployment, he
served with the Seventh Fleet Detachment in Saigon, Republic of Vietnam. A series
of shore and sea duty assignments followed his return from Vietnam. Vice Admiral
Jacoby has served as the command's senior intelligence officer in each assignment he
has held, dating back to October 1985. These include Carrier Group Eight, Second
Fleet/ JTF 120, Naval Military Personnel Command and US Pacific Fleet. He was the
second commander, Joint Intelligence Center Pacific and director for intelligence,
US Pacific Command. He served as commander, Office of Naval Intelligence, fifty-
seventh director of Naval Intelligence and Joint Staff J-2 before assuming his present
duties.
Captain Kurt A. Johnson, JAGC, US Navy, is the staff judge advocate for the com-
mander of the North American Aerospace Defense Command and US Northern
Command at Peterson Air Force Base, Colorado. His initial assignments included
tours of duty at Naval Legal Service Office, Guam; Naval Air Station, Whidbey Is-
land, Washington; and at the Port Hueneme Detachment of Naval Legal Service
Office, Long Beach, California. In 1990, Captain Johnson began duties as flag aide
to the judge advocate general of the Navy and served in that capacity at the Penta-
gon until 1992. Upon completion of his postgraduate studies in international law
at the University of Virginia in 1993, he was assigned as staff judge advocate for the
commander, Carrier Group Six (USS America) Battle Group. Captain Johnson's
following assignments included service on the staffs of the commander in chief, US
Pacific Fleet and commander in chief, US Pacific Command, and as the executive
officer, Trial Service Office East, Norfolk, Virginia. In January 2000, he became
commanding officer, Trial Service Office East before returning to duties as execu-
tive officer in September 2000. In August 2001, Captain Johnson became the force
judge advocate for commander, US Naval Forces Central Command, and fleet
judge advocate for commander, US Fifth Fleet, in Manama, Bahrain, and served in
that capacity during Operations Enduring Freedom and Iraqi Freedom. In August
325
Contributors
2003, Captain Johnson took command of Naval Legal Service Office Central, head-
quartered in Pensacola, Florida.
Professor Stuart Kaye was appointed dean of law at the University of Wollongong
in July 2002. Prior to his appointment, he was head of the Law School at James
Cook University in Cairns. He is admitted as a solicitor of the Supreme Court of
New South Wales and as a barrister of the supreme courts of Tasmania and
Queensland and of the High Court of Australia. Professor Kaye has an extensive re-
search interest in the law of the sea and international law generally, and has pub-
lished extensively in these areas. He has written a number of books, including
Australia's Maritime Boundaries, The Torres Strait and International Fisheries Man-
agement. He was appointed by Australia to the International Hydrographic Orga-
nization's Panel of Experts on Maritime Boundary Delimitation in 1995 and in
2000 was appointed by Australia to the list of arbitrators under the 1991 Madrid
Protocol to the Antarctic Treaty. Professor Kaye is the current national chair of the
Australian Red Cross International Humanitarian Law Committee. In 2007, he
will take up a chair in law at the University of Melbourne.
Secretary Paul McHale is the assistant secretary of defense for homeland defense.
In this position, he is responsible for the supervision of all homeland defense activ-
ities of the Department of Defense. In 1972 Secretary McHale entered the US Ma-
rine Corps and spent two years on active duty, including an overseas deployment
as a rifle platoon leader in Okinawa and the Philippines. After release from active
duty, Secretary McHale entered Georgetown Law Center in 1974 and received his
Juris Doctor degree in 1977. For the next five years, he practiced law in Bethlehem,
Pennsylvania. Secretary McHale began his civilian public service career in 1982
when he was elected to the Pennsylvania House of Representatives, where he served
five consecutive terms. He resigned in 1991 following Iraq's invasion of Kuwait,
volunteering for active duty as an infantry officer with the Marine Corps during
Operations Desert Shield and Desert Storm. In January of 1993, Secretary McHale
was elected to represent the 15th Congressional District of Pennsylvania in the US
House of Representatives, where he served for three terms. He is currently a colo-
nel in the Marine Corps Reserve. Secretary McHale has frequently lectured on gov-
ernment, law and military policy on the campuses of many colleges and
universities, including the US Army War College, where he is an adjunct professor,
and the US Naval Academy, where he served as a member of the Board of Visitors.
Secretary McHale is a former member of the Board of Advisors at the US Naval
War College. In 1999, then congressman McHale retired from the House of
326
Contributors
Representatives and became a shareholder in the Allentown law firm of Tallman,
Hudders & Sorrentino, PC. He assumed his current position on February 7, 2003.
Professor Francisca Moller teaches international law at Chile's Academia de Guerra
Naval (Naval War College) in Valparaiso. From 1982 to 2001, she served as a legal
adviser for the Chilean Navy at the Maritime Authority (General Maritime Direc-
torate). Professor Moller is a member of the Board of the Chilean Society of Inter-
national Law, a member of the Chilean Society of Maritime Law and a researcher at
the Center for Strategic Studies of the Navy.
Vice Admiral John G. Morgan Jr., US Navy, is the deputy chief of naval operations
for information, plans and strategy (N3/N5). He graduated from the University of
Virginia in 1972 with a degree in economics. His sea tours include duty in a diesel
submarine, a frigate, a guided-missile destroyer, an Aegis destroyer and cruiser and
a destroyer squadron, as well as on the Second Fleet staff. Major deployments dur-
ing those tours span duty in the US Pacific Command, US Southern Command,
US European Command and US Central Command areas of responsibility. Com-
mand tours include the commissioning of USS Arleigh Burke; commander, De-
stroyer Squadron 26 in the USS George Washington Carrier Battle Group; and
commander, USS Enterprise Carrier Battle Group, which participated in the first
strikes of Operation Enduring Freedom in Afghanistan. Between tours at sea, Vice
Admiral Morgan was assigned to the Joint Chiefs of Staff, the Office of the Chief of
Naval Operations, the Ballistic Missile Defense Organization and the Naval Surface
Forces staff in the Pacific. As a flag officer, his assignments ashore include duty as
the deputy for acquisition strategy in the Ballistic Missile Defense Organization
and the senior military assistant to the secretary of the Navy.
Rear Admiral Joseph L. Nimmich, US Coast Guard, is the assistant commandant
for policy and planning. Prior to this assignment, he served as director of the Mari-
time Domain Awareness Program Integration Office. His twenty- seven-year career
as a Coast Guard officer has been divided between operational assignments ashore
and afloat, and staff assignments in the resource management field. Rear Admiral
Nimmich has served aboard the cutters USCGC Woodrush and USCGC Mesquite
and he has commanded the cutters USCGC Point Ester v, USCGC Red Beech and
USCGC Sorrel. Rear Admiral Nimmich has also served as commander, Coast
Guard Group Key West and has held various staff assignments in both districts and
headquarters, including in the Office of Operational Law Enforcement and the Of-
fice of Budget and Planning and Policy and as deputy chief of staff of the Coast
Guard.
327
Contributors
Professor Harvey Rishikof holds the Chair, Department of National Security
Strategy and is a professor of law and national security studies at the National War
College in Washington, DC. He specializes in the areas of national security, civil
and military courts, terrorism, international law, civil liberties and the US Consti-
tution. His career includes experience in both teaching and public service. He has
served as the legal counsel to the deputy director of the FBI (1997-99) and as the
administrative assistant to and chief of staff for the chief justice of the US Supreme
Court (1994-96). At the National War College, Professor Rishikof has taught
courses in national security law, civilian/military relations and governmental pro-
cess. As dean of the Roger Williams University School of Law, Bristol, Rhode Island
(1999-2001), he introduced courses in national security law and the Constitution
at the US Naval War College. He has authored numerous articles on subjects in
which he specializes. Professor Rishikof s most recent writings have appeared in
such publications as the Villanova Law Review, The Yale Journal of International
Law, 100 Americans Making Constitutional History (Melvin Urofsky, editor), the
Suffolk Journal of Trial & Appellate Advocacy, The Providence Journal and The New
York Times.
Ms. Linda Robinson is a senior writer for U.S. News & World Report specializing in
national security issues. She received the Gerald R. Ford Prize for Distinguished
Reporting on National Defense in 2005. She was a Nieman Fellow at Harvard Uni-
versity and was awarded the Maria Moors Cabot Prize by Columbia University.
She has also been a Senior Consulting Fellow at the International Institute for Stra-
tegic Studies and a Media Fellow at Stanford's Hoover Institution. Before joining
U.S. News in December 1989, Ms. Robinson was senior editor at Foreign Affairs
magazine. Her book about the US Army Special Forces, Masters of Chaos, was pub-
lished in 2004. Since September 11, 2001, Ms. Robinson's work has focused on ter-
rorism and national security. She has written cover stories for U.S. News on US
counterterrorism strategy, intelligence reform, the counterinsurgency in Iraq, the
hunt for Osama bin Laden and the US Special Operations Command. As bureau
chief for Latin America in the 1990s, she covered democratic transitions, coups, six
insurgencies and US military operations in Panama and Haiti. Ms. Robinson's
work has been published in Foreign Affairs, World Policy Journal, Survival, SAIS Re-
view, The New Republic, The New York Times, Outside, Conde Nast Traveler and
elsewhere. She appears frequently on cable and public television programs to dis-
cuss military and international issues. Ms. Robinson is a member of the Council on
Foreign Relations and the International Institute for Strategic Studies.
328
Contributors
Doctor Yann-Huei Song is executive editor of the Chinese (Taiwan) International
and Transnational Law Review and presently a Fulbright visiting scholar at the
Shorenstein Asia-Pacific Research Center, Stanford University. He received a doc-
toral degree in international relations from the Department of Political Science,
Kent State University, Kent, Ohio, and Master of Laws and Juris Doctor degrees
from the School of Law (Boalt Hall), University of California at Berkeley. He is a re-
search fellow at the Institute of European and American Studies, Academia Sinica,
Taiwan, and adjunct professor at National Taiwan Ocean University. Dr. Song's
research interests are in the fields of the law of the sea, international fisheries law,
national ocean policy studies, naval arms control and maritime security. He has
published articles in journals such as the Political Geography Quarterly, Asian Sur-
vey, Marine Policy, Chinese Yearbook of International Law and Affairs, The American
Asian Review, Ocean Development and International Law, Ecology Law Review, In-
ternational Journal of Coastal and Marine Law and The Indonesian Quarterly. Dr.
Song is the author of a book entitled The United States and the South China Sea Dis-
pute: A Study of Ocean Law and Policy.
Colonel James P. Terry, US Marine Corps (Ret.), serves as the chairman of the
Board of Veterans' Appeals. He previously served as principal deputy assistant sec-
retary and deputy assistant secretary for regional, global and functional affairs with
the Bureau of Legislative Affairs at the Department of State from 2001-05. Com-
missioned in 1968, Colonel Terry served as an infantry officer in Vietnam and as
commanding officer of a Marine detachment aboard the USS Ticonderoga. Follow-
ing his graduation from law school at Mercer University in 1973, he served as a Ma-
rine Corps judge advocate until his retirement as a colonel in 1995. He served his
final four years of active duty as legal counsel to the chairman of the Joint Chiefs of
Staff. Following his retirement, he accepted a position in the Senior Executive Ser-
vice in the Department of the Interior. He served as deputy director of the Office of
Hearings and Appeals with responsibility for managing the department's adminis-
trative law judge system. He later served as a judge on the Board of Land Appeals
with responsibility for adjudicating offshore oil and gas royalty cases. In July 2001,
he left the Interior Department to accept the appointment in the Department of
State. Colonel Terry has written more than twenty- five articles on coercion control
and national security law. He is currently completing a book on Soviet military in-
tervention in former Warsaw Pact States for the period 1945 to 1991.
Rear Admiral Frank Thorp IV, US Navy, is the deputy assistant secretary of de-
fense (joint communication), where he is responsible for overseeing Department
of Defense activities directed at shaping department-wide communications
329
Contributors
doctrine, organization and training for the joint force. Prior to this assignment, he
was the special assistant for public affairs to the chairman of the Joint Chiefs of
Staff. During Operation Iraqi Freedom, Rear Admiral Thorp was deployed to
Qatar as the chief of media for US Central Command (forward). From 2000 to
2003 he served as special assistant for public affairs to the chief of naval opera-
tions. His other assignments have included public affairs officer for the Bureau of
Naval Personnel; Naval Surface Forces, US Pacific Fleet; Joint Task Force Middle
East; Cruiser Destroyer Group Twelve; and USS Dwight D. Eisenhower. He has
also served as director of public affairs and congressional notification at the
Navy's Office of Legislative Affairs. Rear Admiral Thorp has also had several as-
signments at the Navy's Office of Information. Prior to specializing in public af-
fairs, Rear Admiral Thorp served as a surface warfare officer forward deployed to
Sasebo, Japan.
Professor Robert F. Turner holds both professional and academic doctorates from
the University of Virginia School of Law, where in 1981 he cofounded the Center
for National Security Law. He has served as its associate director since then except
for two periods of government service in the 1980s and during 1994-95, when he
occupied the Charles H. Stockton Chair of International Law at the US Naval War
College. A veteran of two Army tours in Vietnam, he has served in the Pentagon as
special assistant to the under secretary of defense for policy, in the White House as
counsel to the president's Intelligence Oversight Board, at the State Department as
principal deputy assistant secretary for legislative affairs, and as the first president
of the congressionally established US Institute of Peace. Professor Turner is a for-
mer three-term chairman of the American Bar Association's Standing Committee
on Law and National Security (and for many years editor of the ABA National Se-
curity Law Report). He is the author or editor of a dozen books and monographs,
and of numerous articles in law reviews and professional journals. Professor
Turner has testified before more than a dozen different congressional committees
on issues of international or constitutional law and related topics. He is a member
of the Committee on Present Danger, the Council on Foreign Relations and other
professional organizations.
Professor Bakhtiyar R. Tuzmukhamedov is the counselor to the Constitutional
Court of the Russian Federation. He provides international legal advice both to judges
and to the secretariat of the court. He concurrently serves as professor of international
law at the Diplomatic Academy of the Russian Foreign Ministry. In 1994-95 he was a
civil affairs officer with the UN peacekeeping forces in the former Yugoslavia. In 1999-
2003 he was a member of the group of experts on the International Committee of the
330
Contributors
Red Cross's study on the customary rules of international humanitarian law. Professor
Tuzmukhamedov has authored and coauthored several books published in the former
USSR and in Russia, as well as in the United States and elsewhere. He has also authored
numerous scholarly articles and has been a regular contributor to major national
newspapers. Professor Tuzmukhamedov is deputy editor in chief of the Moscow Jour-
nal of International Law and a member of the Editorial Board of the International Re-
view of the Red Cross. He is a member of the Executive Committee of the Russian
Association of International Law and formerly a rapporteur of the Committee on
Arms Control and Disarmament Law of the International Law Association.
Brigadier General Ikram ul Haq, Pakistan Army, joined Headquarters, US Cen-
tral Command as Pakistan's senior national representative on October 4,
2005. Before assumption of this assignment, he commanded an independent
infantry brigade. Brigadier General ul Haq was commissioned in the Pakistan
Army as an infantry corps officer in April 1981. He has had various command ap-
pointments, including company commander, battalion commander of an infantry
battalion and an antitank battalion. His staff appointments were as a general staff
officer, grades I and II (operations). He is a graduate of Pakistan's Command and
Staff College and National Defence College, and of the Royal Jordanian War Col-
lege. Brigadier General ul Haq has served in Bosnia as part of the United Nations
peacekeeping mission. He has extensive experience performing internal security
and disaster relief duties in Pakistan.
331
Index
Abu Ghraib 184, 199, 207, 211-212, 226
Aljazeera 183
AlQaeda 190
aliens 52, 57
Allen, Craig H. xv-xvi, xxiii, xxvii, 21, 321
al-Qaida 94,271
anti-Americanism 219,231
arms trafficking 158
Article 2, US Consitution 8-10, 85, 87, 89, 31 1
Article 51, UN Charter xix, 85-86, 90
ASEAN 105-106, 127, 131-132, 140, 142, 147, 153-154, 159, 167, 171, 299, 301, 307, 309, 315
Atomic Energy Agency 49, 296
Automatic Identification System 26, 64, 121
B
Baathist 191
Balaresque, Jorge xviii, xxvii, 157, 321
battle of ideas 200,219
Bellinger, John B. xiv-xv, xxi, xxvi, 205, 321-322
Bigler, Gene E. xxii, xxvii, 217, 322
blockade 30, 34, 37, 48
blue on blue 62
Brown, Michael A. xxiii, xxvii, 47, 80, 149, 251, 253, 322
Bush, George W. 10, 84, 91, 100, 103, 106, 108, 110, 144, 150, 192, 194, 199, 202, 207, 210,
213, 219, 225-226, 228-229, 234, 236, 268
Bush administration 100, 199, 213, 228
Carlin, Evan xxiv-xxv, xxviii, 267, 323
Caroline incident 89, 95
Central Intelligence Agency 2, 101, 182, 199,202
Chechen 84
Chernobyl 296,312
civil defense 297,308
civil liberties 13, 197,328
civilian law enforcement xiv, 6, 9, 1 1-12, 16
Clinton administration 244
coastal State 172
333
Index
Cold War 5, 30, 169, 221, 227, 233
Coldebella, Gus xxv, 323
communication strategy 212
computer network attack xix-xx
criminal organization 158
Council for Security Cooperation in the Asia Pacific 106, 135-136, 140, 146, 154-155
Cuba 44,60,65, 187, 199
cyber attacks 158
cyberspace xvii, xix, xxvii, 23, 31, 39-41, 51-52, 55
D
detainee xv, 184, 199, 209-210, 213, 223
detention 197, 199, 207-210, 213, 281
Dinstein, Yoram xix-xx, 91, 323
disaster management 122, 260, 263-265, 295, 306
disaster relief xiv, xxiv-xxv, 132, 259, 262, 264-265, 267, 270, 277-279, 285, 287-289, 293-
296, 301, 307-309, 312, 323, 331
disaster response xxv, 259, 264, 279, 293, 295-305, 307, 311
domestic deployment 8
domestic intelligence 13
drug trafficking 104,158-159
Economy Act 10, 17
Eder, Mari K. xxii-xxiii, xxvii, 235, 324
embedded media 180, 192-193, 200
environmental attack 159
environmental protection 111, 127-129, 168, 295
equal protection 14
espionage 182, 185
exclusive economic zone xvii, 69-70, 73, 76, 92, 158-160, 163-164, 171
executive power 8, 10, 236
extrajudicial 189
Eyes in the Sky xviii, 100, 125, 139
Federalist papers 4-5
Federal Emergency Management Agency (FEMA) 17, 278-279, 281, 289, 302
Fisher, David xxiv, xxvii, 293, 324
fisheries 172, 329
Food Aid 297,313-314
freedom of navigation xviii, 48, 60, 70, 78, 168
334
Index
friendly forces 41, 263-264
From the Sea 30, 45
Geneva Conventions of 1949 xxvii, 189-190, 195, 206, 208, 210, 223, 225-226, 270, 274, 293,
309
Geneva Protocol I xxvii, 189
global economy xxvii, 53, 158
global maritime commons 23, 51, 55, 166
Global Maritime Partnership 32
global perception 224, 252
globalization 23, 41, 53, 55, 158, 161, 252
Guantanamo 187, 199, 206-209, 226, 231
H
Haditha 188, 191-192, 194, 207, 211-212, 252
hegemony 25, 30, 42, 45, 169, 230
Hezbollah 36, 43, 48, 252
hijack 71,74, 102, 115
homeland defense 8, 277, 280, 288
homeland security 8, 106
Homeland Security Act 10, 17, 284, 290
hot pursuit xviii, 85, 91-92, 125, 170
Hughes, Karen P. 207, 211-212, 220, 232, 236-237, 245, 253
human rights 158, 184, 207, 211, 219, 323
humanitarian assistance 263, 267-268, 300, 316, 323
humanitarian law 293, 310, 331
Hurricane Katrina xiv, xxiv-xxv, 9, 11, 13-16, 43, 277, 281-282, 288, 302-303, 305, 307, 316,
323
I
illegal immigration 159,303
imminent threat xix, 84, 86-87, 90
International Maritime Organization (IMO) 48, 64-65, 74, 78-80, 106-107, 1 10-1 11,115,
119, 121, 128-131, 134, 138, 140, 142, 147, 152, 162, 165, 167-168, 170-173
incursions 60, 93
information age 41, 52, 55, 61
information operations 222-223, 238, 240, 252-253
information vacuum 259
innocent passage 36, 72, 118
insurgents xxi, 84, 93, 189-190, 200, 222, 275
intelligence collection 13
335
Index
intelligence oversight 287,291
internal attack 5
internal invasion 5-6
international airspace 25-26, 34, 70, 87, 89
International Criminal Court 226
International Relief Union 295, 311
Iran 73-74, 182, 219, 222, 231, 251, 317
Iraq xi, xiii, 7, 30, 37, 73, 79, 180, 183-184, 186-194, 197, 199-200, 206-207, 218-219, 222-
223, 226-229, 231-234, 237, 242-243, 252, 323, 325-326, 328, 330
irregular belligerencies 188
Israel ix, xi, 15, 26, 36, 43, 48, 178, 182-183, 213, 251-252, 312, 323
J
Jacoby, Lowell E. xv-xvi, xxvii, 22, 25, 29, 41-42, 51, 325
Johnson xxv, xxviii, 277, 325-326
Joint War Committee 99, 119, 127, 139-140, 143, 148-149
journalist 179-180, 183, 185-186, 188, 193-194, 198, 200-201, 227, 239
K
Kaye, Stuart xvii-xviii, xxvii, 69, 173, 326
Kurds 191
Kyoto 206,226,296,312-313
law of the sea 24, 85, 162, 169, 171, 326, 329
lawfare 21, 22, 31, 33, 35-36, 49
lawless 206,281-282
League of Nations 295,311
Lebanon 48,251-252
legal norms 205
legal obligations xxii, 205, 208-210
littoral States 111, 117, 119, 121-122, 124, 127, 139, 151-152
Luce, Stephen B. 28
M
Mahan, Alfred Thayer 27-30, 39, 44-45, 159, 171
mainstream 188,190,201,207
maritime awareness 159
maritime commons 23, 51, 55, 166
maritime community 57-58, 61-62, 64, 142
maritime domain xvi-xvii, 26, 31-32, 58-59, 61, 64, 101, 105-107, 110, 129, 144, 146, 166
336
Index
maritime domain awareness 26, 32, 61, 129
maritime governance 159
maritime security xv-xvi, xviii, 30-32, 38, 57, 58, 71, 97, 99-102, 105-111, 115, 121-124, 126-
127, 129, 132-134, 136, 138-143, 146, 153, 166-170, 329
maritime terrorism 26, 74-75, 98-99, 114-115, 118, 120, 136-139, 141-142, 170
maritime transportation 58-60, 72, 118
mass media 40, 211
McHale, Paul xiv-xv, xxv-xxvii, 3, 326
media coverage 192, 197, 264
Military Purpose Doctrine 8-9
Morgan, John G. xvi, xxvii, 22, 166, 171-172, 327
Muslim extremist 190
N
National Crisis Management 258
National Defense Authorization Act 3, 281-282, 290
National Guard 9, 11-12, 14, 194, 280-284, 290
national interests xviii, 36, 95, 106, 159, 161, 164, 178, 224
National Response Plan xxv, 280-281, 285, 290
NATO 169, 218, 262-263, 269, 273, 307-309, 318-319, 323
natural disaster xiii, xiv, xxiv-xxv, 9-10, 136, 158, 267-270, 273, 277, 282-283, 285, 288, 309-
310,316
neutrals 33, 35, 48
nongovernmental organization (NGO) 36, 48, 181, 208, 212, 259, 260-262, 265, 268-275,
296-297, 299, 301, 304-306, 317
Nimmich, Joseph L. xvi-xvii, xxvii, 22, 32, 46, 57, 172, 327
noncombatants 189, 191, 232
non-lethal weapons 14-15
North Korea 43, 153, 219, 251, 316
Nuremberg 84, 91
O
opinion makers 179,208,212
organized crime 133,159,167
Oslo Guidelines 270, 274-275, 300, 308-309, 319
Panama Canal 97, 160-161
peacekeeping 94, 135, 192, 219, 252, 268, 273, 330-331
piracy xviii, 43, 72-74, 79, 97-99, 101-104, 106, 108, 114-116, 118, 120-121, 123-125, 127-
128, 130-134, 136-142, 144, 147, 149-151, 153, 158-159, 167-171, 173, 282
pirates 30, 32, 60, 73, 102, 113, 119, 123, 149, 167, 170
337
Index
pollution 98, 137, 163
Port Facility Security Code 71, 107, 162, 172
Posse Comitatus 8-9, 11, 13-14, 281
power projection 7, 24, 28-29, 47
preemptive xix, 84, 86, 88-90, 95, 218, 229-230, 234
Presential Sea 160, 163-165, 171-172
Proliferation Security Initiative xvi, 31-32, 71, 77-78, 103, 105-107, 114, 141, 143, 168-169,
173
propaganda xxi, 219, 231, 233, 235, 245, 251
proportionality 88-89
public affairs officer 233, 239, 242-245, 324, 330
public diplomacy xiv, xxi, 181, 183, 205-208, 211-214, 217, 219-222, 224, 226-228, 230, 232-
234, 236-238
public opinion 178, 181, 184, 202, 208, 221, 231, 252, 322
public order 282
public perception 177, 180, 183-185, 192, 195, 197, 308
Q
Quadrennial Defense Review (QDR) 238, 240-241, 244, 253
R
Rapid Response Center 236
reconstruction 200, 219, 259, 261-262, 265, 272, 317
Red Crescent xxiv, 213, 270, 272, 275, 293, 296, 300-301, 305, 309-311, 313, 315-319, 324
Red Cross xxiv, 199, 213, 268, 270, 272, 275, 293-294, 296, 300-301, 305-306, 309-311, 313,
315-319,324,326,330-331
Regional Maritime Security vi, 97, 100, 103, 105, 107-108, 111, 126, 145, 151, 155, 168, 173
Rishikof, Harvey xx, xxvii, 177, 328
Robinson, Linda xx-xxi, xxvii, 197, 199, 201, 219, 231, 245, 328
rule of law 32, 165, 205, 208, 213, 268
Russia vi, xix, 35, 44, 49, 83-90, 92-95, 153, 155, 173, 178, 183, 330-331
Sea Power 21 24,32,42
seabed 70
search and rescue 122, 136, 153, 279, 285-286, 300
search and seizure 9, 169, 281
Secretary of Defense xiv, 3, 191, 219, 231, 233, 237-238, 241-242, 245, 278, 281-284, 286, 288,
290, 324
Shangri-La Dialogue 108, 112, 114-115, 125-126, 138, 140, 145
Singapore xviii, xxiv, 97, 99-104, 108, 110-122, 124-131, 133-134, 137-142, 144, 146-155,
173,271-272
338
Index
slavery xviii, 159, 170
smugglers 123
smuggling 52, 127, 132-133, 159
So San 26, 43
soft power 184, 217-220, 224-225, 228, 230-231, 233
SOLAS 130-131, 133, 149, 153, 173
Song, Yann-Huei xviii, xxvii, 97, 173, 329
sovereignty xviii-xix, xxiii, xxiv, 34, 41, 48, 51, 72, 94, 104-105, 108, 112-113, 116, 118-119,
122, 125-128, 134, 137, 139-140, 148, 158, 161, 169, 230, 279, 307, 309
Soviet Union 29-30, 83, 331
Stafford Act 10, 278-279, 282
strategic communication xxii-xxiv, 37-38, 40, 206, 217-220, 223-225, 227-228, 230-232, 235,
238-241, 243-245, 251-253
SUA 74-77, 79-80, 130, 133, 142-143, 152, 169-170
submarine cables 73
Supreme Court 179, 184-186, 236, 324, 326, 328
surveillance 23, 26, 51-52, 54-55, 60, 62-63, 99, 110, 121, 135, 149, 164, 171, 198-199, 285,
314,324
Taliban 207
Tampere Convention 296-297, 309, 313
territorial sea xvii-xviii, 71-75, 77-78, 88, 91-92, 104, 158
territorial waters 48, 52, 71, 106, 112, 125-126
terrorism xiv, 11-13,26,36,41,49,51-53,55,74-75,93,98-100, 102-108, 110-112, 114-115,
117-124, 126-128, 130-133, 136-142, 144, 149, 155, 157-160, 167-170, 197, 209, 217-
218, 221, 225-226, 228-229, 231, 328
terrorist xviii-xxi, 5-7, 9, 11, 13-14, 26, 36, 41, 43, 48, 52-53, 71-74, 77, 79, 83-88, 90-94, 97-
99, 101-105, 107-108, 114-116, 120, 123-124, 126, 128, 133, 135-139, 141, 144, 147,
159-160, 166, 170, 189-190, 194, 197-199, 202, 206, 208-209, 211, 218-219, 225, 229,
236, 253, 280, 282
Terry, James P. xxi, xxvii, 187, 189, 191, 193, 195, 272, 275, 329
Thorp, Frank xxii, 223, 244-245, 329-330
threat environment 16, 22, 25, 42
Title 10, US Code 11-13, 281-284, 290
Title 32, US Code 12, 281, 283-284, 290
torture 189,209,213,226
transnational maritime threat 97, 103-105
tsunami xxiv, 43, 267-271, 273-274, 289, 297, 299, 302-308, 311, 313, 316-318, 323
Turner, Robert F. xxi, 50, 145, 330
Tuzmukhamedov, Bakhtiyar R. xix, xxvii, 83, 330-331
339
Index
U
ul Haq, Ikram xxiv-xxv, xxvii, 257, 331
UN General Assembly 93, 269, 300
United Nations xviii-xix, xxiv, xxvii, 26, 36, 43, 47, 69, 78, 80, 85, 90-93, 98, 106-107, 115,
143, 152, 162, 164-165, 168-172, 229, 252, 260, 270, 273-274, 295, 297, 300-301, 307-
308,312-313,315,318,324
United States Information Agency 22 1
unity of command xxiii, xxvi, 16, 62, 283-284
unity of effort xvi, xxiii, xxvi, 16, 62, 64, 106, 283-284
unlawful combatants 188,190,210
US Northern Command vii, 277-278, 280, 282, 284, 286, 288, 290, 325
USSCole 27,78, 101, 144
W
war on terrorism 102-103, 110, 126, 183, 187-189, 197, 217-218, 221, 225, 228-229
warrantless surveillance 198
Weapons of Mass Destruction (WMD) 26, 46, 52-53, 70-71, 74, 98, 101, 103, 108-109, 114,
122, 131, 135-136, 144, 169
World Food Program 268, 272
World Health Organization 263, 267, 298, 303, 311, 314
world trade 115,161
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