Command of the Commons Boasts: An Invitation to Lawfare?

• Author: Craig H. Allen
• Position: Professor of Law, University of Washington, Seattle, Washington
• Pages: 21-50

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 ofthe 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.2To silence agroup 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. 3What 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.4Second, 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 aUS

perspective on current assertions regarding the US command ofthe commons. It is

my privilege to moderate the discussion by adistinguished 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 atime when the intelligence

community has reliable indications that the Democratic People's Republic of Korea

(DPRK) has fueled one or more Taep'o-dong 2missiles, in apparent preparation

for atest 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 amissile 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 Iwas also invited to

weigh in on the involved factual and policy questions. My goals in this short article

are modest. After setting out alawyer's response to claims of command over the

commons, Iturn to abrief 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 aresponse from lawfare practitioners, a

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