The Navy as a Political Instrument: Freedom of Navigation Operations 1958-2013 Michael P. O’Hara Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Graduate School of Arts and Sciences COLUMBIA UNIVERSITY 2016 © 2016 Michael P. O’Hara All rights reserved ABSTRACT The Navy as a Political Instrument: Freedom of Navigation Operations 1958-2013 Michael P. O’Hara Through the Freedom of Navigation Program, established in 1979, the United States exercises diplomatic and military options for disputing maritime claims it judges to be inconsistent with customary international law and the United Nations Convention on the Law of the Sea. Yet, despite the United States’ universal commitment to freedom of navigation and the law of the sea, it has behaved inconsistently from 1979-2013. This dissertation examines the variation and asks under what conditions the United States demonstrates its refusal to acquiesce to maritime claims—either by issuing a diplomatic protest or driving a warship through the disputed waters. This dissertation introduces a new dataset of every coastal state in the world over this 34-year period, coding each type of maritime claim made by every coastal state in the world, whether the United States disputes that particular claim, and whether the United States takes some kind of diplomatic or operational action to dispute it. The mixed-method analysis proceeds with a large-n quantitative analysis that sets up a qualitative case study on the Strait of Hormuz. The dissertation begins and concludes with a discussion of current conditions in the South China Sea and the United States activity in this disputed region. This study finds that territorial and usage claims are twice as strongly correlated with operational assertions as a response than diplomatic protests. More specifically, coastal states that require foreign ships to obtain permission prior to entering their territorial sea are most highly correlated with operational assertions. When the United States disputes a maritime claim, military powers and wealthy states are no more likely to receive Freedom of Navigation operations (FONOPS) than others. Moreover, bilateral trade relationships and polity type hardly seem to matter. Similarly, neither the number of ships nor diplomatic representation increases the likelihood of FONOPS. Rather, a coastal state’s possession of nuclear weapons significantly increases the likelihood of receiving an operational assertion—especially if that states has made a declaration upon ratification of UNCLOS. Table of Contents List of Charts, Graphs, and Illustrations iii Acknowledgments v Dedication ix Disclaimer x Chapter 1 INTRODUCTION 1 Background: Contemporary Illustration of Freedom of Navigation Operations Question: Explaining Variation in Freedom of Navigation Operations Between the Two Poles of Idealism and Realism Dissertation Plan Chapter 2 OVERVIEW OF THE LAW OF THE SEA 16 UNCLOS: A Sea Change in Maritime Law The Freedom of Navigation Program Law of the Sea: Types of Maritime Claims and Passages Chapter 3 THEORY 47 Customary International Law Understanding State Motivation in Shaping International Law Theoretical Paradigms of Action Chapter 4 DATASET INTRODUCTION AND DESCRIPTIVE STATISTICS 82 Intro Data Coding Procedures Data-Reliability and Concerns about Missing Data Sources Descriptive Statistics Frequency of Combined Protests and Assertions Organizational Explanation Comparison to Existing Datasets Chapter 5 QUANTITATIVE DATA ANALYSIS: LARGE-N REGRESSION 124 Intro Method Correlations Regressions Interpretation Interactions Evaluation of Hypotheses Conclusion i Chapter 6 FREEDOM OF NAVIGATION IN THE STRAIT OF HORMUZ 153 Introduction Delegation, Standard Operating Procedure, and Organizational Politics Case Selection Disputed Claims in International Straits: Iran-Oman Conclusion Chapter 7 WHITHER FREEDOM OF NAVIGATION? DEFENDING LAW OR 186 SIGNALING POWER Introduction Commitment Images, and Costs Problems of Signaling on the Cheap Conclusion Bibliography 214 ii List of Charts, Graphs, and Illustrations Figure 2-1 Legal Boundaries of the Ocean and Airspace (from NWP 1-14M) 37 Figure 2-2 Territorial Sea of Islands and Low-Tide Elevations 38 Figure 2-3 Straight Baselines 42 Figure 4-1 Total Coastal States and Disputes per Year, 1958-2013 88 Figure 4-2 Coastal States Claiming Territorial Seas Beyond International Law and 104 Excessive TS Claims and EEZ Restrictions, 1958-2013 Figure 4-3 Total States with Disputed Baseline Claims, 1958-2013 107 Figure 4-4 Total Historic Bay Claims Dispute, 1958-2013 108 Figure 4-5 States with Prior Permission Requirements, 1958-2013 109 Figure 4-6 Total Coastal States and Disputes per Year, 1958-2013 110 Table 4-1 States Whose Claims the United States Disputed 1958 and 2013 111 Figure 4-7 Total Protests and Assertions, 1958-2013 111 Table 4-2 Dependent Variables-Totals 112 Figure 4-8 Warships of U.S. Navy per Year, 1958-2013 116 Figure 4-9 States Receiving Protests and Assertion in Same Year 116 Figure 4-10 Total Protests and Assertions by Continent: 1958-2013 117 Table 5-1 Correlations between Action Taken and Types of Disputed Maritime 129 Claims, 1979-2013 Table 5-2 Correlations between Action Taken and Categories of Disputed Maritime 132 Claims, 1979-2013 Table 5-3 Multivariate Regression Table 139 Table 5-4 Marginal Effects of Interactive Terms 144 iii Table 6-1 EIA Map of Strategic Chokepoints and Petroleum Shipments 161 Figure 6-2 Table of Energy Flows by Strategic Chokepoints, 2009-2013 161 Figure 6-3 Total Assertions Conducted by Country, 1979-2013 164 Figure 6-4 Activity Tracker, Iran and Oman, 1979-2013 167 Figure 6-5 Authority Trends, 1946-2013, Iran and Oman 168 Figure 6-6 Straight Baseline Maps, Oman and Iran 169 Figure 6-7 Unified Command Plan Map 175 Figure 6-8 The Strait of Hormuz 176 Figure 7-1 U.S. Navy’s Show of Force 187 Figure 7-2 Soviet Bumping of U.S. Vessels in the Black Sea, 1988 190 iv Acknowledgments First, I recognize my shipmates who are standing the watch. These women and men are at sea, in the desert, and on watchfloors around the world, sworn to defend the Constitution and working to foster stability and peace. I am grateful for their service and their families’ sacrifice. Thus, it has been a rare privilege to return to graduate school while serving as an active- duty naval officer. For that opportunity, I thank Admirals John Christensen and Phil Wisecup and Captain Russ Knight all at the helm of the Naval War College, who supported my bid, not only to become a Permanent Military Professor, but also to attend a top-tier school like Columbia University. We share a common purpose: to educate our officer corps and to assist in the creation of better strategies for addressing the challenges we and our allies face. They already knew well what I was soon to discover: Columbia University’s program in Political Science, and in International Relations specifically, stood among the best in the world. Further, they recognized the experience at Columbia would prepare me best to contribute to the faculty at the Naval War College. I soon learned why. With an advisor like Bob Jervis and dissertation sponsor like Dick Betts, I experienced the persistent, first-rate intellectual challenge to grow intellectually. Like the best leaders I ever encountered in the fleet, they generously gave their time and attention, provided ever-reliable counsel and mentorship, and led by example by sustaining simultaneously their productivity as scholars and, in the words of John Paul Jones “the nicest sense of personal honor.” With Jack Snyder who patiently helped improve my research plan, these giants fostered an environment of excellence and collegiality. These attributes were shared and emulated by professors like Jonathan Bendor (visiting from Stanford), Tanisha Fazal, Page Fortna, Stuart Gottlieb, Austin Long, Matthew Waxman, and the indispensible Tonya Putnam, whose guidance v was always on target. Professors Tim Frye, Don Green, and Bob Shapiro generously offered comments or advice at various stages, and the support from Kay Achar, Ingrid Gerstmann, and Betty Howe was constant. I would never have arrived in Manhattan were it not for the backing of my Naval War College Professors Tom Culora, John Garofano, Tim Hoyt, John Maurer, and Bill Murray who wrote letters on my behalf along with my Carrier Strike Group Commander, Admiral Kurt Tidd, and Airwing Commanders, “Sterno” Stearney, “Goose” Craig, and “Trigger” Kelley. Professors Rich Flinn, Bob Madison, and Doc White helped me discover and hone a love of teaching. By setting the bar high early, Donald Sprague ensured I was always on my tippy-toes and jumping. My development as a scholar would have been incomplete and this dissertation lopsided were it not for the daily support from my graduate cohortmates at Columbia University. The common workspace on the 7th floor resembled the “ready room” on the carrier where ideas were tested, humility gained, and jargon regularly fined. As I did at sea, I learned as much from peers as from professors, and I stand in awe of the brilliance of friends like Erica Borghard, Seung Cho, Alex Coppock, Lindsay Dolan, Grant Gordon, Chris Kaoutzanis, Trish Kirkland, Summer Lindsey, Erik Lin-Greenberg, Shawn Lonergan, Nick Lotito, Ryan Luby, Sara Moller, Costa Pischedda, Mira Rapp-Hooper, Mike Rubin, Steph Schwartz, Adam Zelizer, and others who provided feedback, listened to ideas, and kept me from going too far astray. My colleagues in the Department of Strategy and Policy provided helpful comments and feedback on my work as they guided me in the first steps of teaching in a PME environment. I am I especially grateful to Andrew Dew, Peter Dutton, Colin Jackson, James Kraska, Tom Mahnken, Dex Wilson, and Toshi Yoshihara. Among these dedicated scholars and professionals, my teaching partner and friend, Charlie Edel, deserves special thanks for his vi support and perspective as a scholar, strategist, teacher, policymaker, and friend.