Sea Power and Sea Law

On 22 October 1962, Americans received the shocking news that the Soviet Union had outflanked their multi-billion dollar defense systems, DEW line, SAGE and BMEWS, with the humble merchant ship. The Russians had transported, across the very bows of the U. S. Navy, IRBM missiles and IF28 aircraft to Cuba, their new satellite in the Caribbean Sea, 90 miles from the U.S. shore. Such a nuclear salient into the Free World could have been secured only through the use of lines of communications stretching more than 5,000 miles across the high seas. To do so, the Soviets, for Cold War purposes, had extended “freedom of the seas,” granted in peace by international law, into a license unmatched since the days of piracy. This nuclear holdup, the most daring power politics gamble since Hitler marched his troops into the Rhineland in 1936, came within days of success.

The American people neither knuckled under nor rushed for their own nuclear arms. Instead, they assumed wartime belligerent rights, also granted by international law, and through their Navy, which held “command of the seas,” took steps to cut the sea lines of communication between the Soviet Union and Cuba. A declaration of a “quarantine on aggressive weapons” and a token application of the belligerent’s right of visit and search at sea were enough to bring about the most abject retreat the Soviets had made so far in the Cold War.

This withdrawal has generally been attributed to Soviet fears that otherwise the United States would engage in nuclear war. Perhaps. A more logical explanation is that the Soviets reacted to what the Americans actually did rather than to what they might do. By assuming the belligerent rights granted by sea law, the United States declared the Cold War to be a war in fact. Under the ancient doctrine of contraband, Soviet long-range missiles and IF28 aircraft were designated offensive weapons and, therefore, absolute contraband. Transit of such contraband across the high seas to Cuba was halted by the U.S. Navy.

In the declaration issued to resolve the Cuban crisis, the euphemistic word “quarantine” rather than “absolute contraband” was used. Avoidance of the language of international law points up the dilemma the United States faces in this second half of the 20th century—the apparent contradiction between “command” of the seas, which as the major maritime power she is able to exercise, and the cherished doctrine of “freedom” of the seas, which in the 19th century was a cornerstone of her foreign policy. American naval officers, with justification, claim that the United States has the power to control and even to close sea lines of communication. Most Americans, however, believe the seas must be open and free to all. The many history books tell them that their forebears fought two wars to uphold the principle of “freedom of the seas.”

Although the Soviets in Cuba are closer to the United States than a foreign enemy has been in 150 years, there have been surprisingly few searching commentaries on the origins of this situation. This may be due to the failure of “experts” in the field of strategy and defense in the nuclear age to foresee what actually happened and to provide a guide for action. Commentaries which have appeared tend to downgrade classical international law as a factor, but the bare record shows that, despite threats and sophistry, the opposing powers both used and abided by the “Law of Nations.” The Cuban crisis demonstrated that international law of the sea, a common law of custom and court decision, is still a useful arbiter and, if updated, can serve the world today.

The confrontation in Cuba also highlighted once more the fact that the Cold War of the past 15 years has been, like World Wars I and II, essentially a maritime war. With sea power, the United States won another nonshooting victory in Cuba, but of an entirely different nature from previous successes in Greece, the Formosa Strait, and Lebanon, which had been achieved through the application of peripheral strategy on the littoral of Eurasia. Still maritime in character, the new form of Cold War is a struggle for control of the sea communication routes by the United States and the Soviet Union.

In its unprecedented step away from the concept of “freedom” of the seas toward the exercise of “command” of the seas, the United States was satisfied with a tactical victory in Cuba. It is a military axiom that to be of any value, a tactical victory must be turned to strategic advantage. Before the Americans had a chance to do so, the wily Khrushchev beat a hasty retreat. By this withdrawal, the Soviet Union, a land power, may have won the strategic victory, since it is still free to use sea lines of communication to challenge and undermine the U.S. position.

Fifteen years of living with the Cold War make it unnecessary to explain the meaning of the term. The maritime character of the Cold War, however, may not be as clearly understood. Geographically, the Soviet Union and its near satellites and allies comprise a vast land power. The rest of the world is a great sea state bound together by the oceans which cover 70 per cent of the earth’s surface. At the center of this sea world is the United States, which, together with Canada, forms a wealthy heartland criss-crossed by internal communications. This heartland faces out on two oceans across which it must communicate with the rest of the world.

The littoral where Russia meets the sea is the natural boundary between the land power of Communism and the sea power of the Free World, led by the United States. In Europe, the 600 miles across the narrow peninsula from Lubeck to Trieste is the only land border where these powers meet. At another point, 100 miles beyond the East-West border, is the Free World outpost of West Berlin.

Paradoxically, although the United States has been forced by events of the 20th century again to become a maritime nation, Americans are still largely a continental, land- minded people. They have never fully learned what the sea has to offer, what it may deny, and what must be forced from it. The United States emerged from World War II as the leading power in the world, morally charged with preserving political freedom from the encroachments of a dynamic Communist ideology. To discharge this responsibility, a military posture based on a nuclear weapons monopoly was first adopted. This monopoly was soon lost and, as the Soviet Union closed the gap, nuclear deterrence became nuclear retaliation and finally nuclear deadlock.

Sea power with its inherent freedom of action, remained. It became the primary means by which the United States could preserve its world leadership and check Soviet aggression. At the end of World War II, this country had everything necessary to keep its position as the greatest maritime nation history has known. Its sea-air Navy with attached amphibious forces could project other forms of military power across the oceans from the American heartland and protect the nation’s sea lines of communications. Its merchant marine, numbering over 5,000 ships, almost double the number under the British flag in 1939, could carry both trade and aid around the globe. With sea power, future leadership of the world beyond the Communist sphere in Eurasia seemed assured for the United States.

Bewitched by nuclear weapons, the American people almost allowed their sea power to go by default. Only a valiant fight by its professional officers, initially led by Secretary of the Navy James Forrestal, saved the naval arm. This was done primarily by incorporating nuclear weapons into it, first through carrier-based aircraft and then with the Polaris missile submarine. The other necessary component of sea power, the merchant marine, was virtually abandoned. When the Marshall Plan for economic aid to Europe was adopted in 1947, U. S. shipping was carrying 70 per cent of the world’s overseas commerce. Less than a decade later, only 13 per cent of that commerce was in U.S. bottoms, despite the fact that the American economy was still its bedrock. In the crucial year 1956, U.S.-employed merchant tonnage was less than that of Norway and Sweden combined and, more shocking, less than that of Liberia and Panama. Greek shipowners by then had gained control of 45 per cent of the tramp cargo vessels and 15 per cent of the tankers. America’s share of the employed tonnage continued to drop, until it was a mere 9 per cent at the time of the Cuban crisis.

The Cold War is generally considered to have begun in 1947 with the Truman Doctrine, which proclaimed that the United States would everywhere resist the further spread of Communism. Except in Berlin, the confrontations of this war have all been on the littoral of Eurasia, necessitating a maritime strategy. The use of sea power in the first stage of the Cold War was primarily amphibious—the projection overseas of military and economic support for the limited war in Korea, the wars by proxy in Greece and Vietnam, and the show of force in Lebanon and the Formosa Strait. Western Europe was saved through the Marshall Plan. This phase of the Cold War has been, on the whole, a victory for the Free World, although it still persists in a few areas, such as Vietnam. Sea power was employed as it had been in World War II, in conjunction with other military services and with our allies. It was the type of war in which the U. S. Navy had become proficient and which Americans had come to understand.

In 1956, Egypt seized the Suez Canal, Soviet strategy changed, and the Cold War took on a new form. Checked on land by sea power, the Bear himself now took to the sea. Instead of trying to push Communism to the littoral, he began exporting it overseas to the nations of Africa, the Near East, and Latin America. Many of these countries were new states formed out of the eclipse of colonialism and lacking both experience in maintaining order and a respect for international obligations. Others were plagued with shaky economies and were ripe for revolution. Most had been armed beyond their needs. Nuclear stalemate had removed their fears of punitive reprisals by the major powers. It had also encouraged extortion of military and financial aid in this strange new era where the creditor, not the debtor, is the suppliant. The years since 1956 have been marked by international chaos in the form of local wars, insurgencies, and bloody coups. The Arab world, Africa, Indonesia, and Cuba, all beyond the littoral of Eurasia, have become the fields for the new Soviet strategy.¹

The Cold War has remained maritime in nature, but it has become a war of trade in which the Soviets must employ an overseas strategy that requires sea power. In the classical sense, sea power is formed by the trinity of naval forces, bases, and merchant shipping. Of these three, the last is all-important in a trade war. It was readily available to the Soviet Union in the form of neutral tramps under the flags of convenience of Panama and Liberia and mostly operated by those international middlemen, the Greek shipowners. Shipping under the Liberian, Panamanian, and Greek flags comprises 20 per cent of the world’s tonnage. Shipowners of other nations are also tempted to this profitable business. The Norwegians, who possess another 10 per cent of the world tonnage, must live by the sea, and Great Britain and Japan depend on shipping as an important source of foreign exchange. In addition, the Soviet Union has its own rapidly growing merchant marine, largely built in Free World shipyards.

Besides neutral merchant shipping, the Soviet Union requires free use of the seas to execute its new strategy. In this, it is abetted by land-minded Americans who erroneously interpret freedom of the seas as an absence of sea law and who have committed themselves to a policy which had relevancy only in another age when the United States was a weak neutral. The inability of Americans to understand the complexities of sea power and sea law is perhaps defensible. There is no excuse, however, for them not to question how the Soviets have made so many inroads into the Free World in the past few years. How did arms get to Egypt across the Mediterranean patrolled by the U.S. Sixth Fleet, while we were unable to get help of any kind to the Freedom Fighters in Hungary? How did gasoline get to the Congo to fuel Soviet aircraft operating there independently of the United Nations? How did Soviet arms get to Indonesia, and how did the Indonesian oil exchanged for these arms get to China? Such questions are cause for reflection.

So misleading was the American concept of freedom of the seas that the United States failed to use its rights as a belligerent during the Korean War. The ratio of supplies imported into China by sea to what could be received over the Trans-Siberian Railroad during the first year of the war was eight to five, according to testimony given at the Senate Hearings on the Military Situation in the Far East in 1951 (the MacArthur Hearings, page 1518). It would be academic now to argue whether the U. S. Navy could have stopped this traffic into China, but had one or more ships with contraband destined for North Korea been condemned in a U.S. prize court, other legal restraints on aggressive acts in the Cold War might have followed. The U. S. position during the Cuban crisis would have rested on a more recent legal precedent, and neutrals might have been wary of the chance for profit in Soviet-Cuban trade.

The revolutionary turn taken by the Cold War was finally recognized by a change of U. S. defense policy in 1961. This new policy advocated more reliance on non-nuclear forces to deter and defend against non-nuclear aggression. Army ground units were increased and strengthened, special forces created, and “counter-insurgency” was added to the lexicon of Pentagonese. Apparently, however, Americans do not yet see the inconsistency in training forces for “brush-fire” wars and counter-insurgency while failing to resort to age-old methods of sea law to capture and condemn in prize court the arms and transporting ships which make such wars possible.

The refusal of Americans to utilize fully their command of the seas must seem almost unbelievable to the Soviets, who operate a closed society and deny every advantage within their power to the Free World. For 15 years, the United States had given evidence that it would not retaliate with sea power to curb Soviet misuse of the seas. Our reluctance, no doubt, tempted them to make the gamble in Cuba.

To solve their dilemma in the Cold War, the American people have need for a better understanding of the naval concept of command of the sea and the international law concept of freedom of the sea.

U.S. naval officers use the term “command of the seas” freely. Perhaps they understand what it means, but they have failed to convey this understanding to their countrymen. The high seas cannot be conquered, nor are they susceptible to ownership. Their primary function is to provide easy means of communication. Command of the sea is, therefore, control of maritime communications either for commercial or military purposes, preserving them for your own use and denying them to an enemy.

True command of the sea is not a matter of force alone, but also of law. The whole fabric of this command and the machinery by which it is executed are creations of the law. One of the misconceptions about the laws of war at sea prevalent during the Korean War, and again during the Cuban crisis, was that blockade meant the sinking of neutral ships. Such ships are not sunk by naval forces for performing non-neutral services; they are captured and condemned in prize courts. The actions of naval officers are thereby reviewed by civilian judges. Nothing parallels this in the laws of war on land.

Freedom of the seas is an even more difficult abstraction than command of the seas. It is definitely not license nor the absence of law. Statesmen, seamen, and international lawyers from 1783 to 1941 argued almost continuously about what it meant and how to apply its principles. Since 1945, however, during a period in which the United States has been obsessed with problems of her own security and of dangers to the Free World, almost no discussion on the subject has taken place.

The best definition of freedom of the seas is found in a work written shortly after World War I when interest in this subject was at its height. Political scientist Pitman B. Potter wrote: “At any given time, the formula ‘the freedom of the seas’ refers to that measure of liberty accorded by international law at that time ... in the use of the sea and its component parts.”

At first thought, command of the seas and freedom of the seas seem opposed, but in reality, they complement each other. Over 30 years ago, J. M. Kenworthy, a British naval officer with insight and interest beyond his profession, described these ambiguous terms thus: “So far from there being any real difference in principle between Command of the Seas and Freedom of the Seas, the former is the only material ‘sanction’ for the latter, and the latter the only moral sanction for the former. The line between the two shifts with the political situation. Under a balance of Sea Power in a period of peace it shifts in favor of Freedom of the Seas and international Law. Under a supremacy of Sea Power and in a phase of general war it shifts in favour of Command of the Seas. But the only security and sanction for international Law of the Seas is still one or more national navies.”

Command of the seas is a naval concept; freedom of the seas is a trade concept. Both are views from opposite directions of the same object—sea law. The two instruments for sanction in this sea law are navies and prize courts. The law itself operates through the doctrines of blockade and contraband.

Under sea law, the oldest belligerent right is that of contraband, the right to capture at sea goods which are susceptible of use in war and en route to an enemy along with the ships that carry them, regardless of nationality. With regard to the key phrase, “susceptible of use,” Hugo Grotius, the father of international law, wrote in 1635: “There are some things, such as weapons, which are useful only in war; other things which are no use in war, as those which minister to pleasure; and others still which are of use both in time of war and at other times, as money, provisions, ships and naval equipment.”

These distinctions by Grotius evolved into the categories of absolute contraband, noncontraband, and conditional contraband. In the whole history of maritime warfare, further breakdown has proved impossible. What type of goods constitutes what type of contraband has depended on the nature of the war in each case. In great struggles for survival, everything transported by sea tended to become contraband, whereas in Britain’s limited wars, the Crimean and Boer Wars, contraband lists were kept small. Admittedly, the question of what constitutes contraband in the Cold War will be difficult. Aggressive weapons of the type quarantined in Cuba would certainly be designated absolute contraband. But what about other weapons—short-range missiles, tanks and small arms? Obviously, petroleum would be conditional contraband.

The other major belligerent right in sea law is that of commercial blockade. When a blockade of the enemy coast or portion of it is announced and made effective by naval vessels, all merchant ships which attempt to break it, and their cargoes, become subject to confiscation.

It is essential to differentiate blockade from contraband. Failure to make this distinction during the Korean War resulted in confused thinking with accompanying reluctance to act on the part of the United States. A blockade of Dairen and Vladivostok would have been illegal by sea law, but capture of declared contraband en route to these ports and destined for North Korea would have been lawful. The Cuban quarantine was not a blockade in the real sense, but an announcement of what was contraband with the accompaning right of visit and search.

Modern weapons have made commercial blockade difficult, and there has been a growing tendency to abandon it altogether and depend on the doctrine of contraband. One type of blockade, however, known as “pacific blockade,” does appear to have application to the present international situation. A 19th century form of police action against a recalcitrant state, it has been described as “a forcible measure short of war employed in times of peace.” Pacific blockade was considered during the Cuban crisis, but abandoned in favor of quarantine. The British could have employed it effectively against the island state of Indonesia as a reprisal and to obtain compensation for the burning of their embassy at Jakarta.

A pacific blockade or quarantine could have been effectively and legally used in the Cyprus crisis of February 1964. Since both Greece and Turkey are members of NATO, it could have been kept under NATO control. If the blockade had been limited to arms and reinforcements, any nation protesting it would have condemned itself before the world. Also, a precedent for future situations would have been set. Pacific blockade had been employed previously to quell outbreaks of the age-old Greek and Turkish rivalry—in 1827, in 1886, and in 1897, when a case in Crete was almost parallel to the 1964 situation in Cyprus. Great Britain’s economic position today, however, has caused her attitude toward pacific blockade to underdo a radical change.

Contraband and blockade define the rights of belligerents; prize law defines their responsibility. In fact, almost all the lasting tenets of international law of the sea have been those derived from decisions of prize courts, whereas those pronounced by declarations and in treaties were usually jettisoned in the next war. Prize courts are national in make-up, but they adjudicate the law of nations. In the Maria or Swedish convoy case during the Napoleonic Wars, Lord Stowell, judge of the British Admiralty Court, ruled: “A prize court is a court not merely of the country in which it sits but of the law of nations. . . . The seat of judicial authority is indeed locally here in the belligerent country but the law itself has no locality.”

Other examples of famous cases that have left their impress on sea law are: the Amy Warwick (1863), in which Richard Henry Dana, Jr., best known as the author of Two Tears Before the Mast, convinced the U.S. Supreme Court that belligerent rights could be exercised in the undeclared Civil War; the Peterhojf (1866), in which the same court established the doctrine of continuous voyage which proved so effective for the British in World War I and could have been applied in the Korean War; the Kim (1914), which legalized the principle of rationing neutrals having borders continguous to an enemy; and the Zamora case (1917), which affirmed that prize courts were independent of executive direction by their own governments.

Both the Cuban crisis and the new cold war of trade point up the need for a fresh direction of study by the U. S. naval officer, who for too long has concentrated on the technical side of his profession. He should once again be joined by the international lawyer, who must now be disillusioned in his long chase after the will-o’-the-wisp of peace through international agreement. The dichotomy between these two professions, which began with the disagreements of Andrew D. White and Alfred T. Mahan at the first Hague Conference in 1899, should be ended, and both should embark upon a dual study of the new problems of sea law and sea power. The Naval War College, with its worldwide reputation in this field, could be the wellspring for this renaissance.² The naval officer and the international lawyer should also be joined by the political scientist, who is trained in modern research methods and in touch with the realities of today’s world. The significance of the acceptance of the office of Secretary of the Navy by Mr. Paul H. Nitze, a distinguished member of this group, will not be lost upon his associates.³

Unlike the amphibious cold war on the littoral, the new cold war of trade gives no promise of abating. It is a perverted form of economic competition which is in the nature of things. In this trade war, the Soviet Union has a growing advantage in an increasing petroleum potential that offers more subtle threats than missile rattling.⁴ It is later than we think!

A new and more flexible U.S. policy is called for to meet these threats. This new doctrine should clarify the concept of freedom of the seas in a cold war. It should also announce that the United States will assume the rights of a belligerent according to sea law and will exercise those rights when necessary to protect the American peoples and to maintain the peace and order of the world. Other countries should be invited to join in the declaration of this policy and be required to comply with it, not in defiance of the United Nations, but as a manifestation of the leadership that destiny has placed upon the United States. As members of the United Nations, we have pledged ourselves to world order under law. But we have failed and are failing to take advantage of the already existing sea law, which backed by sea power, can be applied today.