The Dark Side of Maritime Awareness

By Commander James Kraska, U.S. Navy

It is critical that the United States develop an enhanced capability to identify threats to the Maritime Domain as early and as distant from our shores as possible by integrating intelligence, surveillance, observation, and navigation systems into a common, operating picture accessible throughout the United States.

In a nutshell, MDA seeks to obtain, as far as possible, perfect information about the maritime realm to deter and suppress threats at sea.

These efforts make it easier to sort large numbers of merchant ships bound for port and locate anomalous behavior at sea that might suggest the transit of illegal immigrants or drug traffickers. Consequently, the Coast Guard has been the foremost advocate of maritime domain awareness. By linking countries together, MDA affords partner nations the benefits of shipping information collected by all.

Both the Department of Defense and the Coast Guard promoted maritime domain awareness as an unmitigated international public goodcan ideal foundation on which to build the multilateral coordination called for in the 2007 A Cooperative Strategy for 21st Century Seapower . The Sea Services have received the enthusiastic support of other departments and agencies of the U.S. government, state and local authorities, and foreign coastal states, all of which share the goal of enhancing their ability to collect information about offshore shipping. In this regard, regulators at the Environmental Protection Agency, the National Oceanic and Atmospheric Administration, and the Department of the Interior, are practically giddy at the thought of obtaining shipping data that will support stricter enforcement of marine environmental protection. In effect, nearly everyone supports the means, but are simultaneously pursuing different ends.

Collision Course

While maritime domain awareness generates benefits for maritime homeland security and international engagement, it also creates associated risks. The difficulty is that between the United States and its allied nations are wildly divergent views on what constitutes a maritime threat. For DOD, the transportation of weapons of mass destruction by sea is a threat. But non-governmental organizations, other U.S. agencies, and many foreign coastal states have identified other "threats," including the use of sonar, ballast water dumping, the presence of ships near marine mammals, the mere transport of radioactive waste, transits by crude oil tankers, activities by naval oceanographic and survey ships, and the presence of sealift vessels carrying supplies for troops in Iraq and Afghanistan. Thus, MDA could be used to deter or impede lawful activity in the oceans. Its development has been divorced from a calculation of the greater strategic oceans interests of the United States in preserving global freedom of the seas. There is very little appreciation for the second order or unintended consequences of distributing information internationally about activities on the oceans.

Some coastal nations have shown a willingness to use (or more accurately misuse) technical, legal, and policy advances in maritime governance as opportunities to enforce excessive maritime boundary claims, market illegal claims of sovereignty or jurisdiction over the oceans, or impose unlawful restrictions on the rights and freedoms of navigation. Just about every new development in the international law of the sea—from the overarching 1982 Law of the Sea Convention to marine sanctuaries to ship routing measures through choke points—has been adapted by coastal states to justify their overextension into the ocean. The dangers posed by maritime domain awareness are particularly acute because it serves as a targeting mechanism for coastal states to assert their claims over foreign-flagged vessels located offshore.

Numerous foreign coastal nations, including some of the European Union, Canada, Australia, China, Vietnam, North Korea, Libya, and others, have imposed unilateral measures that purport to apply to the offshore passage of foreign-flagged merchant vessels and even warships. Maritime domain awareness helps these countries enforce laws the United States does not accept. This risks upsetting the careful equilibrium between the rights of the coastal state and the freedom of navigation long enjoyed by the world community, and that is reflected in the Law of the Sea Convention.

Similarly, within the United States, some federal departments and agencies as well as individual states—such as California—have demonstrated a cheeky appetite for seeking greater authority to regulate foreign-flagged shipping beyond the territorial sea in an effort to develop or change the law of the sea. Sophisticated environmental law concepts such as "marine spatial planning," the "ecosystem-based approach to management" of ocean areas, and the "precautionary approach" disguise these efforts in an elastic and ambiguous nomenclature that can mean different things to different people. These efforts reflect a coastal state view of the world that is at odds with a liberal order of the oceans based on freedom of navigation.

The two approaches to ocean governance—one coastal and the other maritime—represent a central and persistent theme in eons of history of the law of the sea, between the exercise of governmental authority over the sea, and the idea of freedom of the seas. 1 The coastal state model is derived from Spanish and Portuguese efforts to control the seas in the early era of colonization. Later, the penchant for control was reflected in the Napoleonic Code in which permissive conduct is prescribed in exhaustive legal concordances touching on all aspects of society. In contrast, freedom of the seas is a product of the belief in spontaneous interaction and unfettered human development that emerged in the Dutch Republic. Freedom is the principal feature of Anglo-American common law and classic law of the sea.

The Systems

Foremost among the systems developed for MDA is the Automatic Identification System (AIS). This was originally developed in the 1990s to make transit through the Panama Canal safer. Based on the VHF maritime band, its range generally only reaches to the horizon. After the 9/11 attacks, the Coast Guard led the way at the International Maritime Organization to amend the 1974 Safety of Life at Sea Convention so that all ships of more than 300 gross tons or that carry 12 or more passengers on international voyages are required to install AIS. Today the system is used throughout the world, and especially along choke points such as the Strait of Gibraltar.

The U.S. European Command has worked with African and Mediterranean basin nations to collect and fuse AIS data into a shared Internet-based application called the Maritime Safety and Security Information System. As a scalable and accessible Web-based platform, the system is called "wiki on the waves" and is a fusion point for AIS transmission from commercial vessels. It provides an unclassified, near-real-time view of vessel activity including speed and direction, cargo type, location of embarkation and destination, and ship type. All of this information is available with password-protected access over the Internet and is used by naval forces to support activities such as NATO's Operation Active Endeavour in the Mediterranean Sea.

Because of the limited range of AIS, the United States led development of a follow-on satellite-based system called Long Range Identification and Tracking (LRIT), which the International Maritime Organization adopted in 2006. 2 The system permits flag and port states to collect information on vessels worldwide and applies to the same ships as AIS. Coastal states may collect information on vessels merely transiting the littorals out to a distance of 1,000 miles. The biggest issue confronting freedom of navigation was ensuring that Brazil and China were not successful in setting the data-access distance for transiting foreign-flagged ships at 200 miles. Doing so would aid those states in their campaign to convert the 200-mile exclusive economic zone into a coastal state security zone.

Ironically, to avoid setting the distance for LRIT at 200 miles, DOD agreed to expand coastal state access to information on transiting ships to five times the distance. The system promises to provide reliable, secure, and persistent global surveillance of maritime traffic for the purposes of detecting, identifying, and classifying vessels. At the same time, however, the system is ready-made for targeting merchant vessels by rogue states. Just as worrisome, since both AIS and LRIT systems exempt sovereign warships from transmitting data, coastal states can still use the systems to locate U.S. surface ships through a process of elimination. Those vessels not transmitting data might be smugglers—or warships.

There have been suggestions that the expansion of maritime domain awareness should make the oceans like airspace, in which the location and course of every aircraft is carefully plotted by professional air traffic controllers. In 2006 Admiral Henry G. Ulrich III, then Commander, Naval Forces Europe, described AIS as providing a

shipboard broadcast system that acts like a transponder, capable of handling 4,500 data reports every minute and updates every two seconds. Like an air traffic-control system, AIS provides positive identification and greatly increases maritime awareness and safety. . . . We do it every day with airplanes, and it's time for us to start thinking about doing the same thing with ships at sea. 3

And the Navy League reported, "[k]nowing what is moving on our oceans, with the same degree of fidelity as we have in international and domestic airspace," is critical for increasing maritime security. It is probably just a matter of time until it comes to pass, in no small measure because of U.S. efforts. In the end, it will diminish freedom of the seas, providing coastal states with additional intelligence to use as they will. In the past, many nations lacked the ability to detect U.S. surface naval activities, so there was little risk of conflict erupting over disagreements surrounding the sovereignty or legal status of the water. Awareness changes that.

Three Strikes

The Sea Services developed their approach to maritime domain awareness in a vacuum, which swirled in the wake of post-9/11 urgency. In the mad dash to establish the Homeland Security Council as a shadow of the National Security Council, U.S. oceans policy was reshaped. The 2004 directive created an interagency Maritime Security Policy Coordinating Committee that was co-chaired by Navy and Coast Guard officers, creating a combined NSC/HSC forum. In theory, the committee was balanced. But major staffs within DOD made three major errors.

First, the Pentagon did not approach maritime domain awareness from a global perspective. The Navy, Joint Staff, and the Office of the Secretary of Defense assigned their respective homeland-defense desks to represent them at the committee. Further, in an admirable effort at maintaining parliamentary order, the committee co-chairs required each major staff to designate a single representative to speak on behalf of the department, agency, or staff. While the Coast Guard naturally represented DHS, the Navy, the Joint Staff, and the Office of the Secretary of Defense also assigned their Coast Guard liaison officers or officials representing homeland security or homeland defense. Thus, the committee's final make-up was heavily oriented toward homeland security, and it spent the first few years of its existence developing port security protocols and advancing maritime domain awareness. Only after the issue of piracy around the Horn of Africa entered committee discussions in 2006 did it begin to acquire a global perspective. Since then it has been renamed the Maritime Security Interagency Policy Committee and its membership has broadened. The U.S. approach to maritime domain awareness, however, had already been laid.

The Coast Guard has statutory responsibility for enforcing laws at sea and ensuring port and waterway security. The service is less affected than the Navy by foreign coastal state efforts to impair overseas transit rights. Most of the diplomatic, legal, and operational effect posed by foreign coastal states misusing maritime domain awareness will not be borne by the Coast Guard but by the four Pentagon services. In essence, MDA produces a negative impact on the United States by empowering foreign coastal nations to restrict commercial and military operations at sea, and the burden is borne by the commercial sector and the Pentagon—not law enforcement or environmental regulators.

Second, maritime domain awareness is often viewed within the Pentagon as a tactical and technical challenge to be conquered rather than as an issue of global oceans policy and warfare strategy. On the Navy staff, the Deputy Chief of Naval Operations for Communication Networks (N6) is assuming greater responsibility for maritime domain awareness, slowly acquiring the lead from the Office of the Deputy Chief of Naval Operations for Operations, Plans, and Strategy. The Office of the Secretary of the Navy has been a zealous advocate for maritime domain awareness, but it is unclear whether the resource sponsor is in sync with the global strategic priorities of the Joint Staff and the worldwide combatant commands.

Third, the Office of Global Maritime Situational Awareness is representative of a classic single-issue interest group operating inside the government. Staffed by both Navy and Coast Guard officers, but located at Coast Guard headquarters, the office has worked tirelessly with dozens of nations to expand information sharing in the maritime domain. The goal is to create a massive network of coastal states that serve as both data collectors and information consumers to help all the participating nations form an unclassified common operating picture.

The social scientist Mancur Olson explains this behavior in his study, The Logic of Collection Action . He exposed the economic dynamics of rational interests that seek concentrated benefits and diffuse costs. 4 Nobel laureate James Buchanan complemented Olson's work by showing that much like farmers, unions, or the steel industry, agencies and departments pursue goals at the expense of their constituents or the public interest.

When asked what coastal states would do with the maritime domain awareness information, one Navy officer associated with the programs responded, "we don't care what they do with it, we just want them to play." The result is that MDA has become the tail wagging the dog of maritime security. Unfettered obeisance to producing and sharing information—with anyone—can reduce, rather than improve, maritime security.

'Merely Evolution'

The profusion of information technology across the globe has changed the threat profile of the littoral regions. Information technology, instant communications, the availability of satellite bandwidth, and the introduction of sophisticated new sensors means that even third-rate powers have a great ability to monitor and interdict foreign-flagged vessels operating in their littoral areas. High-end intelligence, surveillance, and reconnaissance systems are cheap and ubiquitous, allowing for precision targeting of advanced conventional weapons. Satellites, submarines, and antiship cruise missiles are proliferating, shifting military power in the coastal regions away from blue-water forces and in favor of antiaccess/area denial strategies. Regional powers such as Iran are effectively able to patrol their littorals under an umbrella of submarines and high-speed small craft.

Proponents maintain that maritime domain awareness enables coastal nations to better fulfill their right to manage their economic zone and set conditions for offshore freedom of navigation. 5 But under article 87(1) of the Law of the Sea Convention, flag states rather than coastal states are the appropriate authority for enforcing internationally accepted standards of safety, security, and environmental protection. Coastal states step in, however, often because their unilateral rules are inconsistent with international standards. One Coast Guard lawyer reassures us that LRIT is "merely the evolution of longstanding conditions placed on freedom of navigation [by the coastal state]." 6 Therein lies the problem.



1. D. P. O'Connell, The International Law of the Sea, Volume 1, (New York: Oxford University Press, 1983).

2. Full disclosure: I served as the senior military adviser to the U.S. delegation of the IMO that adopted LRIT in 2006.

3. Richard P. Burgess, "Change in Focus, Naval forces Europe Casts its Attention on Africa and the Black Sea," Seapower, April 2006, pp.19-25.

4. Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (New York: Schocken Books, 1965).

5. LCDR Jason M. Krajewski, USCG, "Out of Sight, Out of Mind? A Case for Long Range Identification and Tracking of Vessels on the High Seas," Naval Law Review, Volume 56, 2008, 219, p. 235.

6. Ibid.

Commander Kraska is a professor of international law at the U.S. Naval War College and a guest investigator at the Marine Policy Center, Woods Hole Oceanographic Institution. The former Oceans Policy Adviser for the Director of Strategic Plans & Policy, Joint Chiefs of Staff, he was the military lead for the Freedom of Navigation Program.
 

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