ACTION MEMORANDUM

TO: National Security Advisor Tom Donilon

FROM: James Kraska and Raul “Pete” Pedrozo

DATE: May 1, 2011
SUBJECT: U.S. Oceans Policy on an Even Keel

The United States is connected economically and militarily to its friends and allies via the global commons of the oceans. Just as strategic nuclear forces and the domain of space are critical for maintaining the nuclear umbrella of extended deterrence, so a powerful navy and the ability to exercise freedom of navigation in the seas are a fundamental prerequisite for alliance strength and cohesion. Whereas the U.S. ability to connect across the Atlantic with our oldest and most capable allies has taken pride of place historically in American strategic thinking, today U.S. alliances with Japan, Korea and Australia, which stretch across the vast Pacific Ocean, are of at least equal importance. It is as President Ronald Reagan declared in 1987: “Freedom of navigation is not an empty cliché of international law. It is essential to the health and safety of America and the health of the [NATO] alliance.”

Since the mid-1990s, however, the United States has pursued a myopic course in oceans law and policy that has profound consequences for the future of American power. Since changing the locus of the policymaking process in this area in 1995, we have abandoned the nation’s historic interest in freedom of navigation as our paramount blue-water objective and as a critical component of our national security. U.S. oceans policy has instead come to favor the “territorial” approach popular among countries that seek greater control of waters near their coasts. Many of these countries are developing anti-access strategies and area denial policies and weapons systems to counter U.S. naval power and compromise the U.S. ability to gain access to allied ports. This approach champions increasingly strict regulatory and legal restrictions on offshore maritime operations, usually in the name of environmental protection.

The U.S. government needs to reverse this dangerous drift, which has diminished the flexibility of the U.S. Navy to conduct operations in times of war and peace, impaired maritime trade at a time when the world economy is faltering, and helped states discover ways to abuse environmental rationales in order to deny access to waters off their coasts. In the meantime, the new policy approach has had no appreciable effect on improving the marine environment as a whole or on the reduction of maritime pollution, the sources of which are overwhelmingly land-based.

U.S. oceans policy is a core national security interest that has suffered a silent neglect for too long. To ensure that the United States continues to enjoy global freedom of the seas and to protect critical sea lanes of communication, we need to rebalance how U.S. oceans policy is made. A necessary first step would be to restore the focus of oceans policy to the National Security Council (NSC) where it rightly belongs, removing it from the Council on Environmental Quality (CEQ). Only in that way can we ensure that all stakeholders have a voice in the process of developing U.S. oceans policy, and that America’s critical alliances will remain viable in the face of new challenges.

Background

For more than two centuries, U.S. oceans law and policy was driven by strategic political and military interests in global access and mobility, with naval officers and diplomats working in tandem with the White House to fashion a coordinated approach. Throughout our history, our strategic view of the oceans promoted U.S. military security and economic prosperity. As an “island nation”, the United States has had a paramount concern for freedom of navigation from the very beginnings of its history as a sovereign state. Our first conflict, the Quasi-War with France in 1798–1800, was fought over the issue of unimpeded maritime trade and freedom of the seas. In time, our self-interested concerns expanded to embrace the idea that the oceans should be free and open to all states. By the end of the 19th century, the United States had joined the United Kingdom as a champion not just of free seas but also of their natural corollary, a stable world order. Thus it remained throughout the 20th century, before, during and beyond the Cold War.

The current century, however, poses challenges to this grand American tradition. One of these challenges has to do with new military technology that enables states to extend their land-based power-projection capabilities out to sea. In the future, we can expect land-based opponents to use sea mines, anti-ship cruise missiles and other anti-access weapons to keep U.S. naval forces at bay. A second, interrelated challenge concerns changing norms. There is an increasing sense in international bodies such as the United Nations and among many potential friends and foes alike that coastal states have the duty—and indeed a legal right—to restrict offshore access to foreign-flagged vessels, often ostensibly for environmental reasons but usually for more self-serving objectives. Canada, for example, recently put in place mandatory ship reporting regulations in the Arctic that will allow it to control most ship traffic 200 miles off its coastline. If the United States accepts such excessive claims, it also would have to acquiesce to Iran or North Korea doing the same thing.

The Shift in U.S. Policy

Unfortunately, the U.S. government in recent years has failed to oppose this trend. The main reason for this failure is a change in the locus of decision-making over oceans policy within the U.S. government.

In the aftermath of World War II, the Departments of Defense and State spoke with a single voice on freedom of the seas. The reason was clear: The oceans connected the United States to world markets as well as strategic friends and allies in Europe and Asia. Unity within the U.S. government was essential to resist the wave of newly independent coastal states that challenged the traditional three-mile territorial sea in favor of expansive offshore claims. During this period, the Pentagon’s de facto veto in U.S. oceans policy acted as a failsafe mechanism against U.S. acceptance of parochial coastal state interests that might try to restrict freedom of the seas. Policy was closely vetted, particularly by the Navy, which was given broad deference by a supportive State Department on issues concerning the oceans and national security.

On April 5, 1995, U.S. policy took a wrong turn with the issuance of Presidential Decision Directive 36, “U.S. Policy on Protecting the Ocean Environment.” With that directive, the Clinton Administration placed U.S. oceans policy under the “Global Environment” policy coordinating committee (PCC) of the National Security Council, an interdisciplinary committee focused on “environmental security.” The idea made sense in theory, and it might also have worked in practice, but the committee ended up becoming a sleepy backwater that rarely met. With other issues at the NSC being more pressing, oceans policy was relegated to a “sub-PCC” led by the Bureau of Oceans, International Environmental and Scientific Affairs, under the Under Secretary for Democracy and Global Affairs within the Department of State.

This shift in the locus of U.S. oceans policymaking privileged marine environmental protection and the expansion of cooperative ventures for marine scientific research over the traditional strategic purposes of U.S. oceans policy. The mission statement of the Bureau of Oceans says: “We advance sustainable development internationally through leadership in oceans, environment, science and health.” The State Department’s website adds that the bureau “promotes transformational diplomacy through advancing environmental stewardship, encouraging economic growth, and promoting social development around the globe to foster a safer, more secure and hopeful world.” Nary a word about freedom of navigation, whether for commercial vessels or for warships, graces its pages. Nor is there mention of: maritime interdiction of weapons of mass destruction; illegal drugs and terrorists at sea; counter-piracy operations; and peaceful resolution of sensitive maritime boundary disputes such as the one between Greece and Turkey in the Aegean Sea or China and Japan in the East China Sea. To be sure, the Bureau of Oceans is insulated from the various political and military aspects of oceans policy and so is not well-suited to promote broader strategic interests. But that is precisely why the Bureau of Oceans should never have steered policy over all these other strategic imperatives in the first place.

Matters deteriorated further during the George W. Bush Administration when the Council on Environmental Quality (CEQ), the White House office that sets the agenda for national environmental policy, took formal control of U.S. oceans policy from the NSC. On August 7, 2000 Congress passed the Oceans Act, which was set to become law on January 20, 2001, the last day of the Clinton Administration. The act set up a 16-member U.S. Commission on Ocean Policy to establish findings and make recommendations to the President and Congress. On September 20, 2004, the commission submitted its final report, “An Ocean Blueprint for the 21st Century”, containing 212 recommendations on many aspects of ocean and coastal policy. In response to the commission’s recommendations, President Bush issued an executive order on December 17, 2004 establishing a Committee on Ocean Policy as part of CEQ. That Committee, chaired by the CEQ and the Office of Science and Technology Policy (OSTP), was run out of CEQ offices near the White House. From that point, whatever residual formal authority the NSC had over oceans policy disappeared.

President Obama has continued and deepened this approach. The White House created an Interagency Ocean Policy Task Force on June 12, 2009 with the CEQ still leading U.S. oceans policy. The task force emphasizes “protection, maintenance and restoration of the health of the oceans” and “upholding our stewardship responsibilities.” It pays but lip service to U.S. national security interests. The Presidential Proclamation on National Oceans Month, issued on the same date as the Task Force announcement, doesn’t even do that: It doesn’t mention national security at all, instead indicating that U.S. ocean policy will “incorporate ecosystem-based science and management and emphasize our public stewardship responsibilities.”

The Administration’s Framework for Effective Coastal and Marine Spatial Planning likewise diminishes U.S. national security interests at sea. Although the framework states that coastal and maritime spatial plans will be “coordinated and compatible” with national security interests, the clear intent of the document is to place environmental interests ahead of all other oceans equities. The Final Recommendations of the Ocean Policy Task Force, released on July 19, 2010, calls for the establishment of a National Policy for the Stewardship of the Oceans, Coasts and Great Lakes and the creation of a National Ocean Council, co-chaired by the CEQ and OSTP, to strengthen ocean governance and coordination. The Task Force also recommended an implementation strategy that identifies nine priority objectives that the United States should pursue. National security is not mentioned in any of these objectives.

The result of CEQ leadership on oceans policy has been a nearly exclusive focus on advancing rules for marine environmental protection in domestic law and through U.S. diplomacy at international organizations without regard to vital national military and economic interests. Over at least 15 years, as the role of the Pentagon in oceans policy decreased, environmentalists in the White House, the Office of the Secretary of Defense, Congress and the National Oceanic and Atmospheric Administration (NOAA) have subordinated America’s global strategic interests to a single-minded “green” agenda that is intent on remaking the global order of the oceans.

It would be one thing if this green agenda were effective. Then at least the sacrifice of other U.S. national interests would not go completely wasted. But this program is in the main feckless. Unduly restricting activities at sea often promises little more than “feel good” results, since land-based sources such as agricultural waste and industrial run-off cause nearly all ocean pollution. The real problems are powerful and politically connected land-based constituencies.But rather than take on these heavyweights, environmental regulators in the United States and abroad too often choose instead to adopt rules that risk hampering naval operations and merchant shipping in the false belief that the costs of cleaning up the seas can be shifted onto foreign-flagged vessels. The temptation is for each nation to pursue ever-tighter environmental restrictions on international shipping, thus looking to other states to reduce ship-borne pollution. The net effect is that the liberal order of the oceans, the core governing principle that has enabled an explosion of international trade and global prosperity, and that underscores American sea power, is being destroyed.

Specific Consequences

The shift in authority over U.S. oceans policy has gradually created several concrete problems. One such problem arose in 1996, when, despite strong opposition from the Pentagon, the Clinton Administration obtained approval from the International Maritime Organization (IMO) in London to create two mandatory ship reporting systems along the Eastern seaboard, which had been proposed by NOAA to protect the endangered Northern Right Whale. (The Administration rejected other less-intrusive options suggested by the Defense Department.) Mandatory ship reporting compels all ships to report their movements to prevent collisions with the endangered whales. It provided an attractive sound bite for the International Year of the Ocean, but there was no evidence then, nor is there evidence today, that the mandatory ship reporting scheme reduces ship strikes against the Right Whale. Indeed, there is scant evidence that the system has helped in the recovery of the species at all. Population statistics for the species have remained constant at around 350 whales for more than twenty years. Now NOAA wants to expand the southern mandatory ship reporting system off the coast of Florida, which could affect the Navy’s decision to build a 500-square-mile undersea naval warfare training range off Jacksonville.

In 2006, NOAA and the State Department coordinated U.S. adoption of a treaty to protect the 1912 shipwreck of the famed RMS Titanic. Negotiations for such a treaty began without the Navy’s knowledge. It is a laudable goal to try to protect the shipwreck from treasure salvors, but the final treaty also applied navigational restrictions to warships, limiting the freedom of movement of the U.S. Atlantic Fleet in the water column surrounding the sunken ship. Once the treaty was signed, NOAA twisted arms to get the Navy to implement the bargain, but the Navy would not agree to regulations that excluded the Atlantic Fleet from operating in an area of the Atlantic Ocean. An acrimonious debate ultimately resulted in the development of a Rube-Goldberg-like exemption for U.S. naval vessels that is in tension with the terms of the treaty.

Perhaps the worst precedent in oceans policy was the Bush Administration’s designation of various marine monuments and sanctuaries in the Pacific Ocean. In 2006, the U.S. government established the Northwestern Hawaiian Islands (renamed Papahanaumokuakea in 2007) Marine National Monument, a vast sanctuary that stretches 1,200 miles through the Central Pacific. The 144,000 square mile area, which experiences scant international shipping, was already protected by IMO regulations and “Areas to be Avoided” restrictions designed to protect the environment. But NOAA obtained recognition of the sanctuary, the world’s largest, at the IMO, even though the United States couldn’t show any particular threat to the environment from shipping. Less than a year later, in January 2009, President Bush designated the Marianas Trench, Pacific Remote Islands and Rose Atoll as marine national monuments. Granted, the designations have a military activities exemption, but government regulators and the American public (through environmental NGOs) have made it clear that they expect the Navy to stay out of the protected areas.

The result of these ineffective initiatives is that coastal states throughout the world now have precedent for obtaining international approval for their own marine sanctuaries that could impede naval and civil shipping. And there is no guarantee that these foreign designations will have military or sovereign immunity exemptions. This explains why, while the White House supported these proposals, Pentagon officials involved in the review process opposed them. These officials were prescient. Soon after the United States carved out huge areas of the Pacific Ocean as sanctuaries to exclude international shipping, Indonesia and the Philippines announced that they were considering similar action in waters under their jurisdiction, using the U.S. actions as a precedent. Will China be next, and seek to use seemingly innocent environmental and sentimental “sanctuary” pretexts to prohibit non-Chinese military and civil shipping in the South China Sea or Yellow Sea? It would not be surprising. In 2007, the Chinese navy complained that the use of sonar technology by U.S. Special Mission ships collecting marine data in the South and East China Seas was harming fish stocks and marine mammals in China’s claimed exclusive economic zone.

Beijing’s spurious complaint coincided with an injunction issued by a U.S. District Court that enjoined the U.S. Navy’s use of mid-frequency active sonar during a training exercise off the southern coast of California. Eventually, the U.S. Supreme Court upheld the Navy’s right to use the sonar during training, citing the growth in the threat of super-quiet diesel electric submarines throughout the world, but other countries had already learned from the lawsuits the art of using phony marine environmental claims to stop the U.S. Navy. During a military exercise conducted by the Iranian Revolutionary Guard Corps Navy in 2009, French and British merchant vessels in the Strait of Hormuz were boarded, supposedly to check their compliance with “Iranian environmental law.” These actions were clear violations of the right of transit through an international strait, but nothing was done about them. The abuse of environmental law to restrict free passage of ships is becoming ubiquitous, and the U.S. government has been on the wrong side of the issue.

Back on Course

None of the changes in U.S. decision-making protocols for developing oceans policy, nor any of the changes discussed here, have ever made the front page of any U.S. newspaper or the cover of any news magazine. The erosion of the principle of free navigation on the high seas and the diminution of national security considerations within U.S. oceans policy have proceeded little by little, below the political radar, to the point that they have now accumulated into a serious, if not yet irreversible, threat to U.S. national interests. The United States is now likely to face a situation in which cumulative legal precedent and practice will force us during a military contingency either to adapt suboptimal military tactics or to defy international opinion. One would hope we would decide to do the latter and pay the soft power costs, but we should never allow ourselves to be placed in such a situation in the first place. We can act now to keep those costs from piling up still higher by asserting our international legal rights to freedom of navigation and by avoiding the establishment of further contrary precedents. To do that, we need to restore decision-making authority for oceans policy to its proper place.

The key change in U.S. oceans policy occurred when decision-making authority shifted in practice, if not at first by design, from the NSC to the CEQ. This was strategic folly, and it should be reversed. Only the NSC has the strategic perspective needed to appropriately balance the importance of the nation’s various interests in the oceans, and only the Navy possesses a grasp of the importance of freedom of access to the seas and our place in the world as a maritime power.Here is what needs to be done: A Global Access interagency policy committee should be established at the NSC and placed in charge of U.S. oceans policy. That committee should include representation from the Pentagon, State Department, Department of Commerce and U.S. Coast Guard. The chair of the committee should be a Navy or Marine Corps officer of the rank of vice admiral (lieutenant general) or higher, and be appointed by the Chief of Naval Operations. That chair should serve full-time at the NSC.

Now is the time to rebalance the way U.S. oceans policy is made. If we don’t do it soon, the drift away from a prudential 200-year-old tradition may indeed become irreversible. If it does, we will be lost at sea, with only ourselves to blame.