BOOK REVIEW

• Pages: 04

SEA POWER AND THE LAW OF THE SEA:

THENEEDFORACONTEXTUALAPPROACH*

Jams, Mark W., Sea Power arid the Laic of the Sea. Lexington, Xsss.: Lexington Books, 1976. Pp. xvii, 99. Cost: $11.00,

Reviewed by George K. Walker

In this hook recww, rhich 7s almost on arf~ele,

Pro-

fessor Walker emmines and eialxates n book okich esplores interrelationships betzceen t h e needs arid capabilities of the irodd's nncalfleets, mi the one hand, and the decelopment qf the lax of the sea. on the other hand.

The op~mons and eonilusions expressed m this review are those of the author and do not neceisarily ~epresent the views of The Judge Advocate General'a School, the Department af the Army. or any athsr gaveinmental agency

The author dm arknowledpa his ~n!ellee!ual debt to Emeritus Professor Myrss S MeDougal and to Professor W Michael Relrman of the Yale Law School

1. INTRODUCTION

   If 1976 ivas a very good gear for naval books of general application and interest', the beginnings of the United States Nary'a third century may have signalled a rethinking of navies' roles in the international power process and ultimately in all aspects of mternational interaction. Ken Booth's .Tames aiid Foteign Policy2 ap-peared in 1976, fallouing D. P. O'Conneil's Inflitaiice qfLazc on Sea Poicer (197i),3 Edaard Luttwak's Polit?eal Csvs of Seo Power (19i4)4 and James Cable's Guntont Dzplomocy (19ii).j And, for the Soneta. Admiral S. G. Gomhkar has produced his "summa of

   ISueetman, .Va'nblr Sor'ol Bouka of 1976 103 Lr S Par. Inar Proc 85 (Jan 197i1

   'K Booth, Xaiies and Foreipn Pol~ey (19771, rediezed by S m p m ai 30 Ha,War Coll Rei, 134 (Fall 1977)

   8D O'Connell. The Influence of Laii on 80s Paver (19751. reiieard bp Harlow Bf 29 Pa\ War Coll Rev 124 (Fall 1976). and 5y Davidson at 78 Mi1 L. Rev 202 11977)

   'E Lufnvak. The Palifleal Use8 of 9ss Parer (1974). raii?urd by MeNulty, Pi

   Nab War Coll Rei. 63 (Jan -Feb 1975).

   'J Cable. Gunboat Dlplomaey' Political ipplleatian of Limlted Force (1971)

   'eontestiiai method qf tkeory." Spreifienl!y.

   naval por~er,"~

   Sea Power mid the State,? said to be "dense, neh, logical and almost overpowering in breadth."8

   The latest American study on the relationship of military power at sea to international law as the flow or proces~ of authoritative controlling decisione 1s Mark W. Janis' Sea Power oad the Law qf

   BKenne), A Pizmri m S G Gmshhov Q Sea Porn? of

   Coll. Rev. 84 (Spnng 18771.

   'S G. Gorshkar. Sea Paaer and the Srate 118761 Thia work was translated from the Ruman bi the U.S Saval Infelligenee Support Center, Warhmgtan, D.C.

   'Kenney. dupm note 6, at 94.

   Suzuki, The .S'es Hnuen School oflnterrotionol Lnu Ar Inviiofion too Policy-Orzrnlrd lunspruderra. 1 Yale Stud World Pub. Ord. 1. 30.33 11974); Moore, Prolrganirnan to tlte Jurirprudenre of .Myre8 UcDougaI and Harold Losscdl, 54 Va L. Rev. 662, 667-65 11868)

   For pnrposes of this article, the rewewer has adopted the broad. eoniexfual view of international law, and in p~rtirulsrthe Ian of the sea, erpavied by Prafes-

   ~ars

   Laesweli, McDougsl. and Reisman ofthe Nea Haven sthaal of thought This v i m mntrsm with the more traditions1 approach of the pomfii.iit thearefiema af the nineteenth century That rime ~ a w

   Napoleon, Carl van Clausewifi, Antome

   H e m J o m m Otto son Blamarek. and the Von Moltkea as the leading exponenfe af military science and statecraft. If -ai alia the era of such legal philoiophers aa John Austin in England, a farmer Brmih arm) ofticer turned lecturer in la* and John Chipman Gray I" the United States. u ho defined Is% as "the rules which the court8 . . lay doan for the dewrminstion of legal rights and duties I' J. Gra), Sature and Soumes ai Law 5 181 (19091

   The contextual and positl>~iit appraaehea may be eantraated with the functional approach This third approach 18 exemplified by the uork a i Alfred Thayer Mahan, set forth in his hook, The Influence of Sea Paher Upon History (18901, and other writings. In law, the functional apprmsh 2% represented by Oliver Wendaii Halmer, who arate that the life of the law 13 not logic systematically derived from the decisions of appellate courts. but instead 13 the experience of life itself. 0 Haimea, The Common Lax 6 IY. Have ed. 1963).

   As demonstrated by the uritings of Suzuki and Moore cited shave. the Lassweil.MeDaugs1 jurmprudenee combines law with ather discipline9 Specif-ically, the rudimentary ecleitie approaches ai the legal maiiat. hisrorieai. and aaeiologieai echmle of thought m e coupled Kith ne* intellectual methods and diseiplineb These latter inelude Bwtems analyiia and anthrapalom Far an m a l ~ d i d

   I d.3

   the S a L o

   His theme is well srated in the introduction and his final chapter:

   The law of the ea IS the creature of international order, reflecting patterns of compromise and consensus. insofar as they exiat. among the competing and complementary interests of states. Since security interests are vital to every country, it is oniy reaaonahle to expect that states will consider sea power when devising ocean policy. It would be remarkable If a wrkabie legal order for the oceans did m f accommodare national naval interests

   Sea power influences the development of the la& of the sea not only by Impomg the need to reconcile naval interests in internationai negotiations, hut 4 hen naval force is used to advance national claims to international law of the sea . . . . Savie? often have a role in this proe-em of. . law making."

   International society, like any society, needs a more complex legal system when more actors relate in more ways. The steadily increasing number of ocean users and uses means that a more detailed ocean law 1s inevitable. Saviee will be ensnarled in this new complexity. But the new ocean order will not only impede the accomplishment of same nard missions, it will facilitate others. Remem- 'Oh1 dame Sea Paaer and the Lar of the Sea 11976) .4 Princeton araduate

   ~~

   Mr Jams 18 aim a former Rhodes Scholar While at Oxford Cnlversll>, he earned the B A and >I X in junsprudenee As m offleer ~n the naval reserre, he has raucht internatlanai iaw and relatimi at the Savai Poareraduafa School Moo-t& California He is a d D candidate at Harrard Lau fchoai

   'LM Jams. 8 r p ~ o note 10, at X,II The reviewel has intentianally omitted the

   uord' ruifomary'' before the phrase "is- making " Mr. Jnnii recognizes by ~mpli- lion. and this ~ e v i e ~ illu~trate~,that the xori#s navled play a rllsl role in ahhaping other ~oureei of internarianal Is,> a8 well PI custom There other ~ourees include treaties, id at 80-86. general pmaples ai law (11 the prescriptions of "a fmal leglbiaturei be considered evidence of such pmeipieai, Id BI 13-16. and che \%intings of the man highly quahfled publlelstb. id at 75, 85, citing M McDovgal& W Burke. The Public Order airhe Oceans 12-13 (19621 (See also I C J Statute

   branee and reverence of the old ocean order will not he enough. Navies must reexamine their relationships to the law of the sea and their preferences for legal rules keeping the emerging ocean order in mind.'*

   He acknowledges that "the new ocean order is bound to create Some difficulties for naval operations," noting that the old ocean order u-as ideally suited for the mobility of powerful navies, whereas the emerging new consemus "will impose restraints on ocesn use where before there were

   This article will first review Mr. Janis' exposition of these themea. Second, we will examine his book in the context of other recent seminal publications, notably Booth's .Vavies orid Foreign Policy, O'Connell's I,Lflueiiee of Lax. on Sea Powel., Luttwakls Political Cses of Sen Poiasr, and Cable's Gunboat Dtplornacy. Third, we will examine his monograph in the context of international law to illustrate the breadth of sources that must be considered when a naval operation is being planned or when situations involving potential or actual conflict develop in the ocean environment.

   Finally, the article will illustrate the utility of the contextual method of problem solving through decision theory, particulary the polic) seienee approach. With respect to the latter, this writer's intellectual debt to Professor8 Myres s. McDougal and W. Michael Reisman is readily and happily a~knowledged.~~

   While Sea Paiier has certain shortcomings, whether vieived from the traditional perspective of a lawyer or from the policy science vantage paint, the book is a very eommendable first effort by an outstanding young scholar with real promise for the future.

   The first four chapters focus on the four major naval powers, the United States, the Soviet Union, Great Britain, and France, and on these states' interests in lawof-the-sea issues, as well as each nation's domestic intereats in ''ocean policy processes," and the reflection of naval interest8 in each country's ocean policy. Chapter Five analyzes primarily interests of states having only coastal navies in the main law-of-the-sea issues.

   j2M. Jams. dupio note 10, sl 92 "Id"Srr note 9, supra

   MILITARY LZlW REVIEW IVOL. 83

   Each of the first four chapters begins with a subchapter on naval interests in laiwf-the-aea iwm, setting forth the major powers' conceptions of their navies' missions or roles. as seen by the head of each nay>- or by an authoritative decision-maker in the equivalent of the American Department of Defenee.lS The subchapter continues by discussing the atrategic deterrent forces and those vessels that would carry OUT conventional mi~iions.'~

   Chapter 1 analyzes the principal legal issues in present iaa-of-the-aea negotiations that affect the United States Kary: right of passage through straits, inof the significance of straits crucial to American transit along coasts, and therefore. the iaiue of definition of the territorial sea. and military use of the deep seabed l'

   This theme 1% repeated in succeeding chapters to demonstrate that the positions of the Soviet Union, Britain, and France are iiimilar to that of the United States on straits and the territorial sea...