There has, of late, been a notable increase in interest in the idea of maritime security. It is, necessarily, an elusive term: who is being secured, and from what? There are numerous candidates for inclusion. The idea may encompass foreign (or one's own) military activities at sea. Novel concerns about intelligence gathering and information security also reach into the maritime domain. High-seas piracy is a resurgent threat to trade and freedom of navigation off Somalia and elsewhere, while illegal fishing may endanger human food security. It has the potential to be a very wide field. Klein deals with all these questions and more, and brings to the subject an important scholarly perspective, a fresh approach to the New Haven school methodology.

Klein has already co-edited a volume of essays on maritime security.Footnote ¹ The virtue of the single author work is, of course, the ability to take a more rounded and holistic view of the subject. Klein does this excellently, while acknowledging that the breadth of the canvas means the selection of specific examples and case studies chosen to illustrate her major themes are necessarily more illustrative than comprehensive. Far from being a weakness, this allows a detailed examination of a number of issues in the law of the sea which have yet to receive such comprehensive treatment which also shed light on broader concerns. Her approach throughout is rigorous, incorporates at each step deftly-balanced discussion of the existing literature, and is written in a clear and accessible style. Maritime Security and the Law of the Sea thus represents an important contribution to a growing field and will be of interest to scholars and policy-makers alike.

The book is divided into seven chapters. These deal with the tension between the concept of maritime security and that of freedom of the high seas (Klein's ‘fundamental concepts’); military activities, especially as relates to the right of passage through coastal state waters and activities in the EEZ of foreign States; law enforcement activities; terrorism and the proliferation of weapons of mass destruction; the ‘shifting legal regimes’ of armed conflict and naval warfare; and a general conclusion.

The first chapter deals with familiar ground for Klein, her distinctive approach to the New Haven school of international law pioneered by Myres McDougal and his collaborator Harold Lasswell. McDougal, of course, posited that the development of the international law of the sea has been driven by the need to reconcile the exclusive interests of individual coastal states in control over their adjacent waters and the inclusive (or shared) interest of the international community in general in the freedom of navigation and the freedom of the high seas. This remains a fundamentally useful approach and a powerful explanatory dialectic. (Rightly, however, Klein avoids the straightjacket of the more doctrinaire and repetitive aspects of the classic Lasswell-McDougal methodology.) From this starting point Klein notes that security can mean different things to different people (p. 2), but that maritime security should be considered an inclusive interest (p. 3). To take but one example, resource security is an important issue for all States and the depletion of world fish stocks affects their collective interests. Nonetheless, States have been reluctant to surrender any part of their perceived exclusive interests in the maritime domain. (Klein offers the CARICOM agreement on shared law-enforcement powers in the members' territorial seas as a notable exception: pp. 17–18). This leads to the question of whether the present law of the sea has struck a balance between competing claims that facilitates or hampers maritime security. The question can only be resolved in relation to specific issues. There is not space here to explore everything Klein examines, but a number of examples may illustrate her approach.

Taking as one example the perennial question of the right of innocent passage for warships through the territorial sea, Klein concludes that: the right is not in serious doubt; while the test of ‘innocence’ remains one for the coastal state to apply, its discretion has been limited by a legal test which focuses on the objective character of the passage; and that there is no obvious pressing need to reform this regime (pp. 31–32, 43). The more interesting question is the rights of foreign States to conduct naval activities – especially weapons testing – beyond the territorial sea but within the exclusive economic zone (EEZ). Klein's approach here is careful and balanced. The analysis commences from the obvious, but often ignored, proposition that the EEZ regime grants limited rights to both coastal and navigating states. The key word here is limited. Coastal state EEZ jurisdiction over natural resources cannot found a claim that all foreign military activities may be prohibited by the coastal state. However, absolutist claims in favour of foreign States' rights to conduct military activities in foreign EEZs (based on the idea of preserved high-seas freedoms) are equally unconvincing. Klein notes the importance of the UNCLOS Article 58(3) requirement that states exercising rights allocated to them in foreign EEZs must exercise them with ‘due regard’ for rights and duties of the coastal state (p. 49). This due regard requirement subtly modifies the rights of navigating states and makes direct comparisons with the position obtaining on the high seas unhelpful. This balancing provision, and the failure of States to pay it sufficient attention, illustrates two themes of the study. It obviously points to the utility of the New Haven approach in exploring the law of the sea. However, it also signals a recurrent trend through the book, that being that a key obstacle to a better security regime in each area of the study is the failure of states to countenance any infringement of their individual national jurisdiction or prerogatives.

Klein's approach therefore is to call for an ‘adjustment of mindset’ and a ‘shifting of the common understanding’ of inclusive/exclusive interests in maritime security (p. 19). Such an adjustment would seem the only realistic prospect for major reform. Klein's book goes on to demonstrate thematically a succession of incremental achievements where ‘the common interest in maritime security has allowed for greater cooperative initiatives’ which have in some cases resulted in a ‘reallocation, including a sharing, of competences among states’ (p. 325). Such developments, however, must be set alongside disappointingly many instances where the common understanding has failed to shift. A challenge for the law of maritime security, then, is what can be achieved when States fail to realise and act upon their mutual self-interest.

The answer, sometimes offered by both academics and diplomats, is pragmatic: if States will not agree new rules, we must ask ‘what can be done within existing rules?’ A well-trodden literature now addresses this approach in relation to containing the proliferation of weapons of mass destruction (WMD) by sea and the possibility of high-seas interdiction of such cargoes. Principal developments in this field have been political cooperation through the Proliferation Security Initiative (PSI) and the conclusion of bilateral and multilateral ship-boarding treaties, most notably the 2005 Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation. Klein notes the principal weakness of the treaty-based approach: such treaties generally require case-by-case flag State consent and do not contain a flag state obligation to act (p. 179). This leaves the possibility of flag state inaction as ‘an unfortunate lacuna’ (p. 180). As to the PSI, its formation led to a great deal heated rhetoric and ill-judged academic commentary to the effect that its intelligence lead and largely unreported interdiction operations represented an attempt by great powers to alter the law on freedom of navigation on the high seas. On this Klein offers a novel and incisive observation: the very nature of the PSI means it is unlikely to generate new rules (p. 206). International law can only be changed by visible practice that articulates relatively clear norms capable of attracting wider support. Cooperative interdictions based on unclear criteria conducted outside public view are unlikely to crystallise widespread agreement on new rules. Further, there is an inherent limit to what such coalitions of the willing (or ‘posses’) can achieve if powerful States, such as China, choose to remain outside them (p. 196). A frequently noted alternative to high-seas enforcement operations is taking action in port, where States have stronger (and clearer) jurisdiction. Klein sounds a note of caution about this in the counter-proliferation context: port state authority will be of limited use where WMD are being transported on sovereign immune vessels (p. 199).

Of the remaining chapters no review would be complete without mention of the excellent treatment of intelligence gathering and information sharing in Chapter 5. This is an important topic as ‘[a] critical element to protecting maritime security is ensuring that states have the necessary information at their disposal to take preventative or responsive action’ (p. 211). Despite the increasing importance of ‘maritime domain awareness’ in government and policy circles, it is a somewhat neglected subject in the law of the sea literature, but shows Klein's approach at its best. By tracking how the question arises in various legal settings (military intelligence gathering, monitoring ships and seafarers, the patchwork of regimes dealing with law-enforcement at sea) Klein is able to present a picture of a body of law riddled with gaps and exceptions, and held together often with little more than obligations to cooperate and no sanction for states who fail to do so. Clearly, ‘[i]f the greater goal is achieving maritime security for all states ... then these sorts of limitations are inappropriate and states should work to overcome them’ (p. 256).

The chapters on maritime law-enforcement activities and armed conflict and naval warfare are both stand as highly useful primers to wide existing literatures. Examples of new cooperative or institutional regimes in the face of new security threats are examined, such as the expanding assertions of Security Council competence to deal with subjects such as piracy, terrorism and WMD proliferation (pp. 280–284). In particular, Klein draws out the ‘increasing grey area between armed conflict and law enforcement activities’ in the context of response to international terrorism (p. 298). The book went to print in May 2010, preventing any detailed discussion of the controversy arising from Israel's interception of the protest/aid flotilla that attempted to breach its blockade of Gaza on 31 May 2010. (Although Klein admirably notes some of the issues involved at pp. 294–5.) If there is a second edition, this would likely be a useful episode for exploring some of Klein's broader themes. One might also suggest that the phenomenon of illegal, unregulated or unreported (IUU) fishing might have been given slightly more space on the way through (it is treated largely at pp. 137–141, 250–4). The law applicable to IUU fishing certainly illustrates well Klein's concern with excessive deference to flag State jurisdiction, the weakness of international cooperation, especially as regards information sharing, and the limitations of port State control. Given its relatively short discussion in the body of the text, the subject perhaps seems somewhat disproportionately prominent in the general conclusion (where it is discussed at pp. 314–318). This is, however, a trivial concern and it is invidious for a reviewer to second-guess the hard decisions about balance that must be made in a work combining a broad survey and detailed analysis.

Maritime Security concludes with a ‘synopsis and proposal for change’. As above, Klein suggests, perhaps somewhat optimistically, that ‘the common interest in maritime security has allowed for greater cooperative initiatives’ and that in some cases this has lead to a substantial erosion of state prerogatives and a greater sharing of legal powers (p. 325). Nonetheless, she observes ‘there has still been a limit on the extent of change in the law of the sea, even in the face of the inclusive interests at stake’ because of states' strong resistance to changes affecting their exclusive ‘sovereign interests over their maritime domain and ... vessels’ (p. 325). Klein proposes that ‘[j]ust a shift in emphasis’ away from these exclusive concerns towards placing more weight on common interests ‘may be enough to produce law that will more effectively promote maritime security in the common interest’ (p. 327). It is an intriguing vision, but may also hint at something broader. One of the tensions of the classic New Haven approach was that it had the potential to be caught between an unstated assumption that States are rational actors with a clear understanding of their interests, and its express theoretical position that where the law was uncertain or needed development decision-makers within states may do what is ‘reasonable’. This, at its worst, could lapse into providing an apologist account of US foreign policy. Klein, however, is rather more clear-sighted about the fact that the applicable international law is often determinate (if unsatisfactory) and States are not always terribly good rational calculators and may not always judge their interest correctly.

The remaining question is how we persuade decision makers within states that maritime security needs a fresh perspective. We can perhaps start by recommending they read Klein's excellent book.