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China, Climate Change, Credibility: Why It’s (Finally) Time for the US to Join the Law of the Sea Convention

By Professor Mark Nevitt

(Just Security | Sept. 23, 2021) With the world’s most powerful Navy and largest exclusive economic zone (EEZ), the United States is arguably the leading maritime nation. Yet the United States has failed to join the United Nations Convention on the Law of the Sea (UNCLOS), the “Constitution of the Oceans” that codifies key principles for freedom of navigation, rule of law, and environmental issues for more than 70 percent of the earth. Since it opened for signature in 1982, a vocal minority of strident senators have thwarted U.S. ratification. Nevertheless, UNCLOS accession enjoys the support of a remarkably diverse coalition of American military, environmental, and industry leaders. As the United States resets its global agenda, it’s finally time to join the Law of the Sea Convention.

Indeed, the recent U.S. submarine deal with Australia highlights the importance of UNCLOS. As these nuclear submarines are built and delivered, they will serve as a counterweight to China’s excessive maritime claims, and uphold maritime rule of law and freedom of navigation – as enshrined in the law of the sea.

Today, 167 states and the European Union have joined UNCLOS, a testament to the treaty’s status and broad international acceptance. The U.S. absence at the table is more perplexing than ever, considering the emergence of three issues that will define international maritime governance in the 21st century. I label these issues the “Three Cs of Law of the Sea” – (1) China, (2) climate change, and (3) credibility. These three issues are coming into clearer focus as the United States resets its foreign policy and security posture after the post-9/11 era.

1. China. China’s maritime claims over an enormous swath of the South China Sea, based on an anachronistic “Nine-Dash Line,” are well-known. China invests enormous resources in building up contested “rocks” and “low tide elevations” into artificial islands. These excessive maritime claims are antithetical to core law-of-the-sea navigational provisions, maritime delineations, and sovereignty claims. This view was reaffirmed in the 2016 Permanent Court of Arbitration (PCA) decision in Philippines v. China, a resounding defeat for China’s legal claims in the region. But China dismissed the PCA’s ruling, arguing that the international tribunal lacked jurisdiction over the matter. The United States is quick to point out that China agreed to submit to the PCA’s jurisdiction in accordance with Article 287 of the convention. China brushes aside any such criticism, noting the U.S. status as a non-party. Meanwhile, China’s South China Sea buildup continues apace, and China has refused to back down from its claims.

Earlier this month, a U.S. Navy destroyer, the USS BENFOLD, conducted a freedom-of-navigation operation in the South China Sea, challenging China’s maritime claims at Mischief Reef. And China recently took another step in its maritime brazenness by updating its 1983 “Maritime Traffic Safety Law.” This revision requires foreign vessels “to inform maritime authorities, carry relevant permits and submit to China’s command and supervision.”  This law applies to all Chinese territory, both inside and outside the South China Sea.

While it remains to be seen how this traffic safety law will be implemented, it is inconsistent with core navigational principles codified in UNCLOS. And the South China Sea could serve as a proxy for a larger conflict between the United States and China, a point chillingly made in the recent, bestselling novel “2034” by Admiral (ret.) James Stavridis and Elliot Ackerman. Indeed, while the United States was fighting wars in the Middle East, China developed the largest navy in the world by size, with a force of 350 ships and submarines (the U.S. has 293).

U.S. accession to UNCLOS will not “solve” the South China Sea crisis, but doing so reaffirms the U.S. commitment to freedom of navigation in the region and positions the United States to meet the strategic competition with China. In accompanying U.S. diplomatic protests to China’s excessive claims, the United States highlights the importance of the principles enshrined in the Law of the Sea Convention. Last year, the State Department stated that the United States “stands with the international community in defense of freedom of the seas and respect for sovereignty.” The obvious question:  If these maritime principles are so important, why doesn’t the United States reaffirm them by joining UNCLOS?

2. Climate change. Climate change is fundamentally reshaping the ocean’s physical environment, resulting in a host of unresolved issues. The United States has rejoined the Paris Climate Accord, but there is now a convergence of unresolved maritime and climate governance issues where U.S. leadership is needed.

Consider the Arctic, a region that is warming at two to three times the rate of the rest of the planet, opening up trade routes and the possibility for natural resource extraction. The U.S. Alaskan continental shelf claim may extend out to 600 nautical miles, but as a non-party to UNCLOS, the United States is likely prohibited from making a submission to the Continental Shelf Commission, a key UNCLOS technical body that helps determine the scope and limitation of each nation’s continental shelf. Meanwhile, every other Arctic coastal state (Canada, Denmark, Russia, Norway) has joined UNCLOS. Not surprisingly, they have all made continental shelf submissions. Russia asserts a continental shelf that borders Alaska’s and extends to the North Pole via Lomonosov Ridge. By some estimates, the extended U.S. continental shelf is the size of two California’sa source of untapped economic potential. As the United States sits on the sidelines, Russia can rejoice at the unforced error and the resulting inability of the United States to avail itself of the Continental Shelf Commission …

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“What We’ve Learned in the Two Decades Since 9/11”: Syracuse Led Podcast and JNSLP Special Issue

In anticipation of the 20th anniversary of Sept. 11, 2001 terrorist attacks on the United States, the Institute for Security Policy and Law asked, How could we honor the memory of 9/11 and contribute to a greater good?

SPL Director the Hon. James E. Baker settled on a series of lessons-learned essays to be published in the Journal of National Security Law and Policy, drafted to inform the future rather than to adjudicate the past.

To lead this project, Baker asked Distinguished Fellow-in-Residence Matt Kronisch, who has joined SPL for 2021-2022 on secondment from the US Department of Homeland Security.

“Matt compiled a remarkable line-up of 20 authors, whose essays are clear, short, direct, and geared toward policy and legal implementation,” says Judge Baker. “They also represent a cross-section of practitioners and thought leaders.”

To announce the Special 9/11 Edition of JNSLP, SPL hosted a 9/11 Remembrance Webinar/Podcast in coordination with the ABA Standing Committee on Law and National Security with ABA President Reggie Tucker, followed by a conversation with Amb. Anne Patterson, former Under Secretary of Defense for Intelligence Michael Vickers, and Professor Sahar Aziz.

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Professor William C. Banks Publishes 2021-2022 National Security Law/Counterterrorism Law Supplement

Along with his co-authors, Professor Emeritus William C. Banks has published the 2021-2022 Supplement to his essential casebooks National Security Law (7th ed., Wolters Kluwer) and Counterterrorism Law (4th ed., Wolters Kluwer).

The 2021–2022 Supplement will help students and teachers stay up to date with national security and counterterrorism developments during the coming academic year. By including the most important recent cases, legislation, and executive branch actions, the new Supplement also underscores the critical work that lawyers do to keep this nation both safe and free.

The Supplement is co-authored by Stephen Dycus, Emily Berman, Peter Raven-Hansen, and Stephen I. Vladeck.

Recent developments addressed in the 2021-2022 Supplement include:

  • Legal issues arising from the COVID-19 pandemic
  • Fallout from the Mueller Report
  • US–Mexico border wall, emergencies, and related issues
  • Extraterritoriality and cross-border shootings
  • Russian interference in US elections
  • Congressional access to Executive Branch information
  • Anti-Riot Act prosecutions and domestic terrorism
  • The January 6 attack on the US Capitol
  • The next generation of Guantánamo litigation
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In Memoriam: Montgomery Meigs, Retired General and Former Bantle Chair

Gen. Montgomery Meigs
Gen. Montgomery Meigs (Ret.) at the 2013 Defense Strategies “Staff Ride” to Gettysburg.

Montgomery C. Meigs, a retired four-star general who commanded U.S. Army forces in Europe and served as the Louis A. Bantle Chair in Business and Government Policy at the Maxwell School, died on July 6, 2021, in Austin, Texas. He was 76.

Meigs joined the Maxwell faculty in 2004, one year after it partnered with the College of Law to form the Institute for National Security and Counterterrorism (INSCT)–now known as the Institute for Security Policy and Law. He served as a senior faculty advisor for INSCT, where he taught History of American Strategic Practice, a cornerstone of its certificate programs.

In a 2006 interview, Meigs said the institute creates a “focus for students interested in this important new branch of national security studies, and for faculty seeking sponsorship for related research projects.” He added, “It’s also crucial as a place for alumni and for foundations who recognize the importance of these issues and who are interested in contributing direct support to this type of study.”

William Banks, professor emeritus of public administration and international affairs at the Maxwell School and College of Law Board of Advisors Distinguished Professor, was the founding director of the INSCT. He says Meigs was of “tremendous importance” in guiding the Maxwell School’s role in the partnership.

“Upon his arrival in Syracuse, Monty and I quickly recognized our shared interests, became friends, and worked hard to stitch together the interdisciplinary partnership in national security studies between Maxwell and Law,” says Banks. “Together, Monty and I orchestrated INSCT-Bantle symposia on cutting edge counterterrorism topics, developed a lasting partnership with the Interdisciplinary Institute in Herzliya, Israel and planned and delivered advanced coursework for graduate and law students interested in obtaining certificates of advanced study in our field.”

Adds Banks, “Monty was energetic but wise and prudent in his judgments and recommendations. He was of tremendous value to me as a mentor, colleague and friend.”

Not long after his arrival at the University, Meigs was named director of the Department of Defense’s Joint Improvised Explosive Device Defeat Task Force, a role that had him reporting to the deputy secretary of defense. In 2005 he took a one-year leave from Maxwell to return to the Pentagon to develop ways to detect and destroy improvised explosive devices.

A West Point graduate with a doctorate in history from the University of Wisconsin, Meigs served in the U.S. Army for more than 35 years. He commanded armored units in Vietnam and during Operation Desert Shield/Desert Storm. At the time of his retirement in 2003, he was Commander of the U.S. Army in Europe, charged with the oversight of 60,000 soldiers and commanding NATO’s peacekeeping force in Bosnia. His awards included the Distinguished Service Medal, the Bronze Star and the Purple Heart.

In addition to Syracuse University, Meigs taught at the University of Texas and Georgetown University. He also worked as a military analyst with NBC and MSNBC. He published various articles on military policy and leadership, as well as a book, “Slide Rules and Submarines” (National Defense University Press, 1990). From 2010 to 2013, he was president and chief executive of Business Executives for National Security, a nonprofit organization that tries to bring awareness of strategic world problems to senior business leaders.

Meigs is survived by his wife of 53 years, Mary Ann Mellenbruch Meigs; sons, William Meigs and Matthew Meigs; and three grandchildren.

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Vaccines for Servicemembers? Professor Mark Nevitt Speaks to VOA News

(VOA News | July 17, 2021) With the rate of Americans fully vaccinated for COVID-19 stalling at close to 50%, a growing number of U.S. public schools, colleges and private companies have turned to a controversial legal tool to get more people immunized: vaccine mandates.

Nearly 600 colleges and universities will require students, faculty and staff to be vaccinated before returning to campus in the fall, according to the Chronicle of Higher Education, while some public school districts are mandating teachers and administrators to provide proof of vaccinations. Many private businesses have also announced vaccination requirements for employees.

With experts saying 70% or more of Americans need to be vaccinated or immune to COVID in order for the country to achieve “herd immunity,” mandatory vaccination has emerged as a weapon in the fight against the deadly coronavirus variants …

… President Joe Biden pledged that he would not make vaccinations mandatory in the military. However, that could change depending on circumstances, and he could waive an “informed consent requirement” for members of the military, according to Mark Nevitt of the Syracuse University College of Law …

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Trump’s Secret Subpoenas: Professor William C. Banks Discusses with Bloomberg Law

Trump DOJ Secret Subpoenas Crossed Line

(Bloomberg Law | July 15, 2021) National security law expert William Banks, a professor at Syracuse University College of Law, discusses the controversy over revelations the Justice Department under former President Donald Trump had secretly subpoenaed records from House Democrats, former White House counsel Don McGahn and members of the media.

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Professor Mark Nevitt Publishes “Is Climate Change a Threat to International Peace and Security?”

Is Climate Change a Threat to International Peace and Security?Michigan Journal of International Law, 42 (2021).

The climate-security century is here, writes Professor Mark Nevitt. Both the United Nations Intergovernmental Panel on Climate Change (IPCC) and the US Fourth National Climate Assessment (NCA) recently sounded the alarm on climate change’s “super-wicked” and destabilizing security impacts.

Scientists and security professionals alike reaffirm what we are witnessing with our own eyes: The earth is warming at a rapid rate; climate change affects international peace and security in complex ways; and the window for international climate action is slamming shut.

 

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Bonhomme Richard Fire Inquiry: Professor Mark Nevitt Discusses with Military.com

One Year After the Bonhomme Richard Fire, Questions Remain Unanswered

(Military Times | July 12, 2021) … There could be several reasons for the silence and delay, according to Mark Nevitt, a former aviator and judge advocate attorney in the Navy, who spoke with Military.com about the investigation. Nevitt is now a professor at the Syracuse University College of Law.

Aside from the usual privacy and national security redactions, Nevitt said that pending criminal charges can delay an investigation.

“If you have a recommendation that is related to training, to readiness, to how watch is done, you don’t have the same sort of criminal law due process concerns associated if [you] charge a Navy sailor with a violation of the Uniform Code of Military Justice,” he explained.

Nevitt also noted that the Navy may have already taken some administrative action, “which could be non-judicial punishment,” away from the public eye.

“Firing people … removing people from the watchstand, or having people administratively separated for some kind of underlying administrative misconduct” are all things that could have already occurred, he said.

“It seems likely to me that, if there is a formal court-martial, that would take place following the completion of the investigation and the endorsements by the [Pacific Fleet] commander,” Nevitt said.

Jeff Houston, a spokesman for the Naval Criminal Investigative Service, or NCIS, said that its investigation into the fire remains ongoing. Houston added that no charges have been filed at this time.

“Out of respect for the investigative process, NCIS does not comment on or confirm details relating to ongoing investigations,” he said in a statement.

More broadly, Nevitt argues that the wait is understandable given the scope of the incident …

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Professor William C. Banks Speaks to Bloomberg Law About Secret DOJ Subpoenas

Trump DOJ Secret Subpoenas Crossed Line

(Bloomberg Law | June 15, 2021) National security law expert William Banks, a professor at Syracuse University College of Law, discusses the controversy over revelations the Justice Department under former President Donald Trump had secretly subpoenaed records from House Democrats, former White House counsel Don McGahn and members of the media.

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Mike Flynn and Military Law: Professor Mark Nevitt Speaks to The Washington Post

Why the Pentagon isn’t heeding calls to prosecute Michael Flynn under military law

(The Washington Post | June 5, 2021) When Michael Flynn, a retired three-star general, appeared to back calls for a coup last week, critics accused him of defying military deference to civilian authority, a tenet that is central to the ethos of the armed forces.

Speaking at a QAnon-themed conference in Texas, Flynn was asked why a coup similar to one that occurred in Myanmar could not happen in the United States. Flynn, President Donald Trump’s first national security adviser, has remained a vocal supporter of the former president and the false assertion he won a second term in office.

“I mean, it should happen here,” Flynn responded to the questioner, a man who identified himself as a Marine. “No reason.”

While Flynn subsequently disavowed any support for a coup on social media, saying his words had been misrepresented by the media, the comments intensified calls from some lawmakers and other critics for the military to prosecute the former officer, who receives a military pension, for sedition …

… According to Mark Nevitt, a former military lawyer who teaches law at Syracuse University, most of the instances in which the military had used the UCMJ to hold retirees accountable have had a “clear military nexus,” for example when an incident occurs on a military base or involves a military victim …

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