Craig H. Allen, Command of the Commons Boasts: An Invitation to Lawfare?, 83 Int'l L. Stud. 21 (2007), https://digitalcommons.law.uw.edu/faculty-articles/89
International Law Studies
The first panel in this, the 2006 Naval War College, International Law Department conference on "Global Legal Challenges: Command of the Commons, Strategic Communications, and Natural Disasters," has been asked to offer a US perspective on current assertions regarding the US command of the commons. It is my privilege to moderate the discussion by a distinguished 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.
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 I was also invited to weigh in on the involved factual and policy questions. My goals in this short article are modest. After setting out a lawyer's response to claims of command over the commons, I turn to a brief 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 a response from lawfare practitioners, a move that could jeopardize the freedom of access and maritime mobility on which our national security depends.