Bluejacket Diplomacy: A Juridical Examination of the Use of Naval Forces in Support of United States Foreign Policy

Commander Dennis R. Neutze, JAGC, USN*

Over the years, the United States Navy has evolved into a potent diplomatic weapon. In this article, Commander Neutze examines the lawfulness of the political uses of naval power in terms of domestic and international law. This examination includes a discussion of naval missions and their relation to foreign policy objectives, constitutional and legislative provisions giving birth to the Navy, and the constitutional allocation of power regarding foreign policy and the use of force. The article then focuses on current legislative restrictions on the use of force, including the War Powers Act. Finally, Commander Neutze discusses the evolving Law of the Sea regime and its potential impact on the use of naval forces for political purposes.

A study by the Brookings Institution found that the United States employed its armed forces 215 times for political purposes between 1946 and 1975.1 Naval forces participated in 80% of these instances, and more than 100 incidents involved only naval forces. If the period surveyed were narrowed to include only political uses since 1955, the Navy was involved in nine of every ten incidents.2 These figures clearly support President Warren G. Harding's assessment that "the Navy is rather more than a mere instrumentality of warfare. It is the right arm of the State Department

*Commander Neutze is the Legal Advisor to the Deputy Chief of Naval Operations (Plans, Policy and Operations) and Assistant Branch Head, Oceans Policy Branch, Politico-Military Policy and Current Plans Division, Office of the Chief of Naval Operations; B.S., United States Naval Academy, 1965; J.D., University of Maryland, 1970; M.A. (International Relations), Boston University, 1974; and LL.M. (International Law), George Washington University, 1979. Commander Neutze is a graduate of the Armed Forces Staff College and admitted to practice before the Bars of Maryland, the District of Columbia, the United States Court of Military Appeals and the Supreme Court of the United States.

1. B. BLECHMAN & S. KAPLAN, FORCE WITHOUT WAR: U.S. ARMED FORCES AS A POLITICAL INSTRUMENT 23 (1978) [hereinafter cited as BLECHMAN & KAPLAN]

2. Id. at 38-39.

"3 The Brookings' figures also support an assertion made by the Commander in Chief of the Soviet Navy, Admiral Sergey Gorshkov, that the Navy is our "pet instrument of foreign policy."

The political, or foreign policy, uses of naval forces include a broad spectrum of both nonbelligerent and belligerent use of naval forces. The list spans the innocuous transport of a former Turkish ambassador's remains on board the U.S.S. Missouri in 1945, intended to serve a subtle reminder to the Soviet Union of American support for Turkey, to the actual use of weapons in the rescue of the crew of the Mayaguez, perhaps intended as a reminder of American resolve in the wake of Vietnam.6 Every president since World War II has used naval force as an instrument of his foreign policy. For example, one newspaper article reported: Prime Minister Menachem Begin and Israel's top military and political leaders were given a splashy demonstration today of U.S. sea and air power that clearly was intended to underpin Israeli confidence in the American government's commitment to guarantee Middle East peace. Although U.S. officials persistently denied any political motive to the day-long cruise in the Mediterranean [aboard U.S.S. Eisenhower] and the noisy display of firepower, the message of Ameri

3. Speech before the Press Club of Seattle (Jul. 27, 1923), reprinted in DEPARTMENT OF THE NAVY, AMERICAN NAVAL POLICY AS OUTLINED IN MESSAGES OF THE PRESIDENTS OF THE UNITED STATES FROM 1790 TO 1924 AT 30, 31 (1924).

4. Gorshkov, Navies As A Weapon of the Aggressive Policy of Imperalist States in Peacetime in 12 MORSKOY SBORNIK (1972), reprinted in 100 NAVAL INST. PROC. 56, 61 (No. 9, Oct. 1974). The United States, however, was clearly not the innovator of the use of naval forces for foreign policy purposes. One historian noted that during the nineteenth century the "British Navy was the main implement of British foreign policy." F. HEARNSHAW, SEAPOWER AND EMPIRE 196 (1940). In its coverage of a fairly recent crisis in the Persian Gulf, the Washington Post observed that the British still regard naval force as an ingredient of foreign policy and reported that "Britain's Royal Navy . . . diverted three frigates and sent them into the Mediterranean as a political signal to back up Britain's condemnation of the Soviet invasion of Afghanistan." Washington Post, Feb. 11, 1980, at A21, col. 1.

5. Press release, March 6, 1946, 14 DEP'T STATE BULL. 447 (1946). Referring to the port visit, the American Ambassador telegrammed: "Translated into specific terms involving Turkey, foregoing means to Turks that U.S. has now decided that its own interests in this area require it to oppose any effort by USSR to destroy Turk independence and integrity." Telegram from the American Ambassador in Turkey to the Secretary of State (Apr. 12, 1946) reprinted in VII FOREIGN RELATIONS OF THE UNITED STATES 822 (1946). 6. Referring to the Mayaguez seizure, then Secretary of State Henry Kissinger remarked: "The impact ought to be to make clear that there are limits beyond which the United States cannot be pushed. . . ." N.Y. Times, May 17, 1975, § 1 at 1, col. 8. For a factual description of the event, see Paust, The Seizure and Recovery of the Mayaguez, 85 YALE L. J. 774 (1976). Compare the reported statement with Friedlander, The Mayaguez in Retrospect: Humanitarian Intervention or Showing the Flag?, 22 ST. LOUIS U. L. J. 601 (1978).

can military might was not lost on the 750 officials and guests aboard this massive nuclear-powered aircraft carrier of the Sixth Fleet.7 The widespread use of naval forces as an instrument of foreign policy began long before the end of World War II, and such use raises important legal issues related to the proper role of the Navy, the constitutional and statutory allocation of power between the President and Congress, and legitimacy under international law. Despite the growth of relevant literature and the increasing opportunities for further use of naval forces to implement U.S. foreign policy,9 the juridical consequences of such use have not been fully explored. 10 (Although primary focus will be on the use of the U.S. Navy for foreign policy purposes, the term "naval forces" herein includes participation by Marine Corps units since the U.S. Marine Corps is part of the Department of the Navy.)11

I. NAVAL MISSIONS AND THEIR RELATION TO FOREIGN POLICY OBJECTIVES.

The United States Navy is charged with four missions:

• Control of the Sea;

• Projection of Power Ashore;

• Strategic Deterrence; and

• Naval Presence.12

The first mission, "sea control," is that role historically associated with

7. Washington Post, May 11, 1979, at A25, col. 4.

8. See generally BLECHMAN & KAPLAN, supra note 1; E. LUTTWAK, THE POLITICAL USES OF SEAPOWER (1974); J. CABLE, GUNBOAT DIPLOMACY: POLITICAL APPLICATIONS OF LIMITED NAVAL FORCE (1971).

9. On January 27, 1976, Secretary of Defense Donald H. Rumsfeld advised Congress that: "Uncertainties concerning our future access to allied bases may cause us to place increasing reliance on seabased forces in many contingencies." U.S. DEP'T OF DEFENSE, REPORT OF THE SECRETARY OF DEFENSE TO CONGRESS ON THE FY 1977 BUDGET 121 (1976); see also B. DISMUKES, EXPECTED DEMAND FOR THE NAVY TO SERVE AS AN INSTRUMENT OF U.S. FOREIGN POLICY: THINKING ABOUT POLITICAL AND MILITARY ENVIRONMENTAL FACTORS 29 (1980); J. Cable, supra note 8, at 127.

10. See generally D. O'CONNELL, THE INFLUENCE OF LAW ON SEA POWER (1975). Professor O'Connell was a British Professor of International Law, and a Commander, Royal Navy Reserve. His work does not, of course, address issues of American municipal law. 11. 10 U.S.C. § 5011 (1976).

12. Chief of Naval Operations, Strategic Concepts for the U.S. Navy, NWP 1, para. 3.2 (Rev. A, 1978). The revision does not explicitly list naval presence as a mission of the U.S. Navy. However, an examination of NWP 1 (Rev. A), especially para. 3.4, reveals that naval presence continues to play a substantial role in naval force requirements. Moreover, while testifying on the FY 1981 military posture and the naval budget, the Chief of Naval Operations noted that "every U.S. administration since the end of World War II has found naval forces an invaluable and irreplaceable aid in support of foreign policy." Hearings on Military Posture and Department of Defense Authorization for Appropriations for Fiscal Year 1981, 96th Cong., 2d Sess., Pt.1, 542 (1980).

navies and still considered the fundamental function of the U.S. Navy. 13 It involves keeping open sea lanes of communication for U.S. and allied purposes while denying their use to the enemy. Although this mission may assume a political dimension, sea control is for the most part a wartime mission. A notable exception is the 1962 naval quarantine of Cuba during which sea control forces enforced the Monroe Doctrine. 14 Due to its limited application to peacetime uses of force, however, the subject of sea control receives little attention herein.

"Projection of power ashore" describes the attainment of military objectives on land by the use of Marine Corps amphibious forces. 15 Although this mission is also largely war-related, the frequent peacetime use of Marine Corps forces to support foreign policy broadens its political dimension. 16 As one of the more coercive and potent forms of naval diplomacy, amphibious operations seem to have become a recognized use of naval force in support of peacetime foreign policy objectives. Although this article pays little direct attention to the above naval missions, one should not ignore their sub rosa contribution to the use of naval forces for foreign policy purposes.

The fundamental use of naval forces for foreign policy purposes lies in the psychological impact that such forces generate in a target state.17 Thus, unless the force poses a credible threat, its attempted political use will have little effect. 18 Consequently, the perceptions of the Navy's ability to control the sea and project power ashore bear directly on the political utility of naval forces.

The third mission of the Navy, "strategic deterrence," involves the use of naval forces-principally ballistic missile submarines-to discourage adversaries from launching a nuclear attack. Although such forces play an important role in the nation's strategic defense triad (together with the

13. See Department of Defense Directive 5100.1 (1958), Functions of the Department of Defense and Its Major Components 9. According to Admiral William J. Crowe, "sea control is the Navy's preeminent function because it is a prerequisite for the successful conduct of other types of naval operations. . . ." Crowe, Western Strategy and Naval Missions Approaching the Twenty-First Century, in PROBLEMS of Sea Power as We APPROACH THE TWENTY FIRST CENTURY 14, 21 (J. George ed. 1978).

14. For a legal analysis of that operation, see Mallison, Limited Naval Blockade or Quarantine-Interdiction: National and Collective Defense Claims Under International Law, 31 GEO. WASH. L. REV. 335 (1962).

15. Projection of power ashore can also involve the use of airpower from aircraft carriers. 16. See generally Parks, Foreign Policy and the Marine Corps, 102 NAVAL INST. PROC. 18 (No. 11, Nov. 1976).

17. E. LUTTWAK, supra note 8, at 6.

18. BLECHMAN & KAPLAN, supra note 1, at 110. The authors found that positive outcomes— the fulfillment of two-thirds of U.S. operational objectives-occurred with greater frequency when U.S. Armed Forces had previously been used in a region. The authors

land-based missile and manned bomber), their political utility at levels less than nuclear confrontation are doubtful. A submarine operating in its normal mode lacks the coercive psychological impact of a surface combatant. 19 However, even the ballistic missile submarine may occasionally be called upon to perform a political task peculiarly suited to its mission. For example, the U.S.S. Patrick Henry visited Izmir, Turkey, in 1963 to reaffirm Turkey's inclusion in the scope of American nuclear protection after removal of land-based ICBMs following the Cuban Missile Crisis.20 Generally, however, the covert nature of submarine operations limits their utility for political purposes.

It is with the fourth naval mission-naval presence-that this article is primarily concerned. The term “naval presence” simply means the use of naval forces short of war to achieve political objectives. 21 The broad aims of naval presence are to encourage actions in the best interests of the United States or her allies, 22 and to deter actions inimical to those interests by projecting a stabilizing influence into an area of crisis.23

Although all armed forces function, to some extent, as an arm of foreign policy, there are several advantages to sea power. 24 Its principal advantage is flexibility. Since naval forces operate in an international medium—the high seas-they can be moved into an area without the necessity of obtaining overflight or diplomatic clearances.25 Another classical advantage of sea power is its "universality" or "pervasiveness," meaning that the sea permits naval vessels to reach distant countries independent of nearby bases. 26 Moreover, sea-based forces are not subject to host-country employment restrictions, a problem encountered by United States land-based forces during the 1973 Middle East conflict. Further, the use of ground troops generally signifies strong resolve and a long-term commitment that

concluded that demonstrated willingness to engage in a major conflict in a region prior to an incident caused leaders in the target state to be more sensitive to signals of U.S. resolve to become involved militarily, if necessary.

19. D. O'CONNELL, supra note 10, at 181.

20. Reported in E. LUTTWAK, supra note 8, at 2 n.2.

21. Turner, Missions of the U.S. Navy, 26 NAVAL WAR C. REV. 14 (No. 5, Mar-Apr 1974). Admiral Turner served as President of the U.S. Naval War College at the time he authored his article. Thereafter, throughout the Carter Administration, he served as Director of the Central Intelligence Agency.

22. Id. at 14.

23. See NWP 1 (Rev. A), supra note 12, at para. 3.4.2.

24. See R. O'CONNOR, FORCE & DIPLOMACY 2 (1972).

25. NWP 1 (Rev. A), supra note 12, at para. 3.4.3.2.

26. Bull, Sea Power and Political Influence, in 1 INTERNATIONAL INSTITUTE FOR STRATEGIC STUDIES, POWER at Sea 6 (1976).