SPL Blog

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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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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Professor Mark Nevitt: NATO’s Renewed Focus on Climate Change & Security—What You Need to Know

(Just Security | June 23, 2021) Last week, the 30 North Atlantic Treaty Organization (NATO) member States released two important security documents: the Brussels Summit Communiqué as well as a Climate Change and Security Action Plan. The Communiqué reaffirmed NATO’s pledge to its founding document, the 1951 Washington Treaty and stated that it is “firmly committed” to the treaty’s critical Article 5 collective self-defense provision. Article 5 bonds each NATO member together, explicitly stating that an attack against one ally is considered an attack against all allies. This Communique represented a welcome departure from the former Administration’s approach to NATO, which failed to even reaffirm the United States’ historic commitment to Article 5.

In addition, the Communiqué also reinvigorated NATO’s approach to climate change, characterizing climate as a security “threat multiplier” and “one of the defining challenges of our times.” In doing so, the Communiqué endorsed NATO’s new Action Plan on Climate Change and Security, which was released the same day. This pithy but powerful plan — just three pages – expressly acknowledges climate change’s role in state political fragility, conflict, displacement, and migration. It also specified four specific action items to keep an eye on:

  1. Awareness: Increase climate awareness among allies via an annual Climate Change and Security Impact Assessment.
  2. AdaptationAdapt to climate change by incorporating climate change considerations into its work on many areas to include defense planning, training and exercises, and disaster response.
  3. Mitigation: Mitigate NATO’s contribution of Greenhouse Gas (GHG) emissions by developing a novel “mapping and analytical methodology” for GHG emissions from military activities and installations.
  4. Outreach: Enhance outreach with a broad swath of climate-partners to include international and regional organizations, the United Nations, EU, academia, and industry.

NATO’s Climate Action Plan reinforces NATO’s commitment to prepare for the climate-security century. As I have previously argued, the future will increasingly be shaped by climate change’s destabilizing impacts — a vision now clearly shared by all 30 NATO members. NATO’s Brussels Communiqué and Climate Action Plan represent welcome, forward-looking steps on climate change. NATO’s focus on climate change is also completely aligned with President Biden’s Interim National Security Strategy, a key, strategic-level national security planning document where “climate” is mentioned 27 times.

Despite these bold pronouncements, questions remain on translating NATO’s bold, strategic climate initiatives into action. As NATO implements the Action Plan, I highlight three questions to help focus our collective attention.

1. How Does the NATO Climate Plan Translate into NATO Arctic Operations?

While the NATO Climate Plan does not explicitly mention the Arctic (a missed opportunity, in my opinion), the Plan should nevertheless signal a shift in NATO’s approach to the rapidly changing Arctic operational environment. Due to climate change, scientists estimate that the Arctic is warming 2-3 times faster than the rest of the world. That pace appears to be accelerating, due to a pernicious feedback melting loop. There even remains the possibility of an ice-free Arctic summer by 2035. This massive melt is opening new navigational trade routes for civilian and military vessels through the Northwest Passage (through Canada) and the Northern Sea Route (along the Russian coastline). Vessels are now increasingly able to transit once impenetrable waterways and are beginning to assess the risks of other historic routes, such as the crowded — and sometimes blocked — Suez Canal. Climate change is also renewing the possibility of natural resource extraction on each Arctic coastal state’s continental shelf. An estimated 13 percent of the world’s undiscovered oil and 30 percent of the world’s undiscovered natural gas lies on the Arctic seabed …

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A DPA for the 21st Century

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By the Hon. James E. Baker

Some commentators say the field of artificial intelligence is ungovernable. It covers many fields and capabilities, they note, and involves a breadth of private and academic actors, many working in secrecy to protect intellectual property and profit potentials. But it is an overstatement to call AI ungovernable.

Several existing laws and executive orders give various agencies and elected officials tools to regulate the national security development of AI, as does the Constitution. Policymakers should become familiar with these tools, examine their strengths and shortcomings, and become involved in efforts to modify and improve the AI governance architecture. As with other “ungovernable” areas, like nonproliferation, where there are also myriad actors and challenges, we can design an effective governance architecture if we are purposeful about doing so. This paper considers one of the most important potential tools in this effort, the Defense Production Act (DPA); however, it would be a more effective tool if updated and used to its full effect.

AI development depends on hardware, data, talent, algorithms, and computational capacity.1 Thus, any law that can (1) help ensure an adequate supply of these assets and in appropriate form; and (2) prioritize the use of these assets to achieve national security policy objectives is an important national security tool. That is not to say the DPA’s full authority should be used at this time. Extraordinary tools, such as the DPA’s allocation authority, might more appropriately be used at a moment of emergency, for example, in time of conflict or should another nation achieve an AI breakout creating decisive security advantage.

Thus, at this time, the most important function a debate about the use of the DPA for AI purposes can serve is to shape and condition expectations and understandings about the role such authorities should, or could, play, as well as to identify essential legislative gaps so that we do not learn of these gaps (and are not hesitant to use the authority we have) when the authority is needed. However, in less dramatic manner, the DPA’s other authorities might well be used, or more fully used at this time to shore up America’s AI supply line, as illustrated with the examples below.

While obscure to the public, the DPA got a burst of national attention in early 2020 when the coronavirus pandemic began overwhelming U.S. hospitals, first in New York City and then elsewhere. In the absence of federal leadership, in March 2020 national security specialists familiar with the DPA urged its full use to mobilize the nation’s capacity to provide medical equipment and personal protective equipment (PPE) to address COVID-19.

In April 2020, as the spreading virus was depleting national supplies of ventilators and PPE for health workers, President Donald Trump generated headlines by invoking the DPA, ostensibly to compel businesses to manufacture such equipment. A second order authorized the Secretary of Health and Human Services and the Director of the Federal Emergency Management Agency to “use any and all authority available” under the DPA to acquire N95 respirator masks from 3M. By mid-July, however, CNN noted that “the Trump administration has made only sparing use of its authorities [under DPA], leaving front-line workers in dire need of supplies like masks, gowns and gloves.”2

The Trump Administration did eventually use the DPA during the second half of 2020 to prioritize contracts (eighteen times to channel raw materials to the manufacture of vaccines and therapeutics) and to incentivize the production of medical supplies like testing swabs; however, the DPA was never used to full effect, nor in a strategic and transparent manner.

In contrast, as a candidate for the White House, President Biden promised full use of the DPA to put the United States on a “war time” footing to meet COVID supply chain challenges. Since assuming office, the Biden Administration has used the DPA, and other laws, to address bottlenecks in the supply chain for components needed for vaccine manufacture and to prioritize supply contracts to allow Merck to assist in making Johnson & Johnson vaccines. In addition, the Biden Administration has used Title III financing authorities to incentivize the building of factories and supply lines for COVID tests and rubber plants for medical gloves.

What is significant here, is not just that the Biden Administration used the DPA to provide vaccine capacity to plug supply chain gaps, it did so after the president-elect and then president conditioned industry for its use in this manner and directed the federal government to lean into the law. It also made “friendly” use of the DPA, identifying needs in consultation and partnership with industry, with a focus on the result rather than the means. These are lessons worth noting in the AI context going forward. With COVID, as with AI, the legal policy question is not whether and how to use the DPA to accomplish a task but how to use the full range of available law effectively, purposefully to meet the nation’s needs, and in a manner consistent with our values. With COVID, it turned out, the DPA was one of several laws that could be used to harness America’s industrial capacity to address the pandemic.

The government’s handling of the pandemic is a topic for another day. The point here is that the mere mention of the DPA’s potential clout reinforced the view, in some people’s eyes at least, that the law is a vehicle to “nationalize” industry, a “commandeering” authority, which empowers the government to take over and run the nation’s defense industries. This fed into an already existing narrative about government regulation and opposition from the Chamber of Commerce.

In fact, as this paper shows, the DPA contains many different authorities, some narrow and others potentially broad in scope. It is important for policymakers to understand that the DPA is not limited to military equipment and actions, and its powers are not solely addressed to, or limited to, “commandeering.” Rather, the law establishes a national mobilization capacity to bring the industrial might of the U.S. to bear on broader national security challenges, including technology challenges and public health challenges. Thus, the DPA is both a potential macro tool and a micro tool. Its application to artificial intelligence can be substantial.


  1. Ben Buchanan, “The AI Triad and What It Means for National Security Strategy” (Center for Security and Emerging Technology, August 2020), https://cset.georgetown.edu/wp-content/uploads/CSET-AI-Triad-Report.pdf
  2. Priscilla Alvarez, Curt Devine, Drew Griffin, and Kristen Holmes, “Trump administration’s delayed use of 1950s law leads to critical supplies shortages,” CNN, July 14, 2020, https://www.cnn.com/2020/07/13/politics/delayed-use-defense-production-act-ppe-shortages/index.html
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ABA Podcast: 1L Meghan Steenburgh Discusses National Security Concerns with Professor William C. Banks

Critical Issues in National Security Law

(ABA Law Student Podcast | April 20, 2021) In the daily onslaught of news from all corners of the globe, it is sometimes difficult to decipher the implications of current events within our own country.

From the pandemic, to cybersecurity, to international relationships, linking current events and national security interests to law helps us understand our country’s responses to the things we see in the media. ABA Law Student Podcast host 1L Meg Steenburgh talks with Professor William Banks of Syracuse University about the most critical national security issues facing our nation both at home and abroad, including China tensions, nuclear weapons concerns worldwide, the Jan. 6 Capitol riots, and more.

William C. Banks is a Syracuse University College of Law Board of Advisors Distinguished Professor and Emeritus Professor at the College of Law and the Maxwell School as Professor of Public Administration and International Affairs.

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Hon. James E. Baker: Ethics and Artificial Intelligence—A Policymaker’s Introduction

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Policymakers contemplating the burgeoning field of artificial intelligence will find, if they have not already, that existing laws leave huge gaps in deciding how (and whether) AI will be developed and used in ethical ways. The law, of course, plays a vital role. While it does not guarantee wise choices, it can improve the odds of having a process that will lead to such choices. Law can reach across constituencies and compel, where policy encourages and ethics guide. The legislative process can also serve as an effective mechanism to adjudicate competing values as well as validate risks and opportunities.

But the law is not enough when it contains gaps due to lack of a federal nexus, interest, or the political will to legislate. And law may be too much if it imposes regulatory rigidity and burdens when flexibility and innovation are required. Sound ethical codes and principles can help fill legal gaps. To do so, policymakers have three main tools:

  • Ethical Guidelines, Principles, and Professional Codes
    Academic Internal Review Boards (IRBs)
  • Principles of Corporate Social Responsibility (CSR)
  • Below is a primer on the limits and promise of these three mechanisms to help shape a regulatory regime that maximizes the benefits of AI and minimizes its potential harms.

This paper addresses six specific considerations for policymakers:

  1. Where AI is concerned, ethics codes should include indicative actions illustrating compliance with the code’s requirements. Otherwise, individual actors will independently define terms like “public safety,” “appropriate human control,” and “reasonable” subject to their own competing values. This will result in inconsistent and lowest-common-denominator ethics. If the principle is “equality,” for example, an indicative action might require training data for a facial recognition application to include a meaningful cross-section of gender and race-based data.
  2. Most research and development in AI is academic and corporate. Therefore, Institutional Review Boards and Corporate Social Responsibility practices are critical in filling the gaps between law and professional ethics, and in identifying regulatory gaps. Indeed, corporations might consider the use of IRBs as well.
  3. Policymakers should consider the Universal Guidelines for Artificial Intelligence (detailed below) as a legislative checklist. Even if they don’t adopt the guidelines, the list will help them make purposeful choices about what to include or omit in an AI regulatory regime consisting of law, ethics, and CSR.
  4. Academic leaders and government officials should actively consider whether to subject AI research and development to IRB review. They should further consider whether to apply a burden of proof, persuasion, or a precautionary principle to high-risk AI activities, such as those that link AI to kinetic or cyber weapons or warning systems, pose counterintelligence (CI) risks, or remove humans from an active control loop.
  5. Corporations should create a governance process for deciding whether and how to adopt CSR national security policies answering the question: What does it mean to be an American corporation? They should consider adopting a stakeholder model of CSR that is, in essence, a public-private partnership that includes input from consumers and employees as well as shareholders and the C-Suite.
  6. Policymakers, lawyers, and corporate leaders should communicate regularly about the four issues that may define the tone, tenor, and content of government-industry relations: uniformity in response, business with and in China and Russia, encryption, and privacy.
  7. Where government agencies, corporations, and academic entities have adopted AI Principles, as many institutions now have, it is time to move from statements of generic principle to the more difficult task of applying those principles to specific applications.
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Symposium Report: National Security Law and the Coming AI Revolution

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By the Hon. James E. Baker, Director, SPL

On October 29, 2020, Georgetown CSET and the Syracuse University Institute for Security Policy and Law sponsored a symposium for national security law practitioners titled “National Security Law and the Coming AI Revolution.” The discussants—lawyers, policymakers, and technologists—addressed the following topics:

  • AI as a constellation of technologies;
  • AI and the Law of Armed Conflict;
  • Al ethics, bias, data, and principles;
  • AI and national security decision-making; and
  • The role of law and lawyers.

Two of the discussants have gone on to senior national security technology posts in the Biden Administration. Former CSET Founding Director Jason Matheny is now Deputy Assistant to the President for Technology and National Security, among other titles. Tarun Chhabra is now Senior Director for Technology and National Security on the NSC staff. Other senior discussants continue their important work on AI at PCLOB, JAIC, the Naval War College, and the Office of Naval Research, and in academia and industry. A list of discussants can be found in the symposium report.

The event drew more than 180 attendees. To make the discussion available to a larger audience, the sponsors summarized many of the observations in the report. The following collective themes emerged from the panels:

  • AI will transform national security practice including legal practice. National security will be better served with the meaningful, thoughtful, and purposeful application of law and ethics to AI. It is not an either-or choice between security and law and ethics. Whatever we do to further law and ethics helps ensure our competitive advantage by improving accuracy, efficacy, and confidence in the results.
  • Policymakers, commanders, and technologists need to understand law so that they can spot issues and create the time and space to embed law and ethics in AI applications. If the government waits to apply law and ethics at the use or decision point, it may be too late to meaningfully influence outcomes. Therefore, as we consider and apply the concept of human-machine teaming, we should pay equal attention to teaming between lawyers, policymakers, and technologists to make purposeful legal and ethical AI choices.
  • It is time for national security practitioners to move from bromides and principles to the application of those principles to specific AI applications. Negotiations about AI ethics and norms will need to be on a case-by-case, scenario-by-scenario basis to be meaningful.
  • Fundamentally, AI is a computer algorithm designed to “predict optimal future results based on past experience and recognized patterns.” It is the task of policymakers to determine whether that AI or a human has the authority to act on those predictions and make decisions.
  • AI is both nimble and brittle. It has the potential to adapt in super dynamic, unstructured situations; it has the potential to adapt at machine speed and in the presence of overwhelming incoming data; and it does not feel fear or fatigue. However, the AI systems we have today are not yet safe, secure, or reliable enough to process real-time data in rapidly changing environments, then update themselves and learn in real time, and thus be used for targeting or other immediate decisional support. This is especially true because the enemy will be targeting the AI systems.
  • Part of taking responsibility for AI, including mitigating against AI bias, means involving stakeholders in all stages of development and, where possible, deployment. However, as we employ more and more autonomous systems, it will become increasingly difficult to dedicate time and resources to refining the decision-making of each of those systems. In other words, with the proliferation of autonomous systems, we may be less likely to engage in the type of meaningful human-machine teaming that ethical deployment would require.
  • Law and ethics must be applied throughout an AI lifecycle. Practitioners should think intentionally about issues such as bias from the beginning of a project. AI often fails when conditions change, and conditions will change in the national security world. Ethical failures can occur at any point in an AI software program. Moreover, large organizations, such as DOD, face the risk that a thousand-to-one or one-in-a-million type problem will occur.
  • Lawyers should distinguish between law, policy, and ethics. Without clarity, government actors may be discouraged from applying higher ethical standards lest those standards later become construed as legally binding as distinct from wise policy choices.
  • National security lawyers working in a classified environment have a heightened responsibility to be exceptionally conscious of bias.

The sponsors encourage readers of this blog to review the report, which offers detail and nuance on the themes identified above. Thank you.

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Professor Mark Nevitt: Should the COVID-19 Vaccine Be Required for the Military?

By Mark P. Nevitt

(Just Security | April 12, 2021) By some estimates, approximately one-third of U.S. military service members have opted out of the COVID-19 vaccine. Some think that number could be higher, for example, according to a new report, nearly 40 percent of U.S. Marines are declining vaccinations. An earlier December report from the nonprofit advocacy group Blue Star Families estimated that nearly half of military members would decline the vaccine if offered. In response, six members of Congress recently sent a letter to President Joe Biden, asking him to make the vaccine mandatory for all military service members.

In what follows, I address three questions that have arisen from the U.S. military’s ongoing efforts to vaccinate members of the armed forces:

  • Can military members be legally required to receive the COVID-19 vaccination?
  • What lessons from earlier military vaccination efforts (e.g. anthrax) can be applied to COVID-19?
  • What is the impact on vaccination refusal on military readiness?

Can military members be legally required to receive the COVID-19 vaccination?

Ultimately, yes—but this answer requires a bit of nuance and process. As of this writing, the president and defense secretary have not ordered mandatory vaccination for the military (or the general public for that matter). COVID-19 vaccination remains strictly voluntary for all military service members, consistent with earlier pledges by Biden that he would not make vaccinations mandatory. But that could change, particularly for deployed service members who work in tight quarters where infection rates can spike quickly. For now though, DoD appears committed to the voluntary vaccination approach.

As a statutory matter, in 2003, Congress passed a law (10 U.S.C. § 1107a) that requires informed consent prior to military members receiving vaccinations issued under an emergency use authorization (EUA). All three COVID-19 vaccinations being used in the United States —ModernaJohnson & Johnson and Pfizer—are being administered under an EUA. And all three have not been fully approved by the Food and Drug Administration. By some estimates, full approval may take up to two years.

But, according to the law, the president can waive this informed consent requirement if he determines that it is “in the interest of national security” to do so. While Biden has not done this, some members of Congress have called upon him to do just that.

If this informed consent provision is ultimately waived, military commanders can clearly order military members in their command to receive the vaccine. This is consistent with the “Failure to obey an order or regulation” under the Uniform Code of Military Justice (UCMJ). Even if the informed provision is not waived by Biden, a mandatory military vaccination order may survive challenges in military criminal courts implementing the UCMJ. Federal civil courts would likely scrutinize such a move much more closely. This is based upon prior decisions and the military’s experience in implementing the anthrax vaccination program, which I turn to below.

Relatedly, outside the military context, over 100 years ago, the Supreme Court upheld a local Board of Health’s authority to require smallpox vaccinations during a smallpox epidemic. As Professor Lawrence Gostin at Georgetown Law has previously arguedJacobson reaffirms the “basic police power of the government to safeguard the public’s health.” This decisionJacobson v. Massachusetts, has been relied upon during this pandemic to implement mandatory mask wearing and social distancing.

What lessons from earlier military vaccination efforts (e.g. anthrax) can be applied here?

Quite a few. The anthrax vaccine was administered as an “investigational new drug” (IND) in the late 1990s. Congress passed a law in 1998 (10 U.S.C. § 1107), effectively requiring informed consent from military members prior to administration of INDs such as anthrax. This is a different but analogous law to the COVID-19 emergency use authorization. President Bill Clinton signed an executive order in 1999, reaffirming the informed consent requirement and laying out the process for seeking a waiver. But both President Clinton and Bush did not waive the informed consent procedure. The mandatory anthrax vaccination program was administered anyway, although it was started and stopped several times in the early aughts. This was due to issues with the manufacturer’s ability to pass inspections and disagreements about whether the anthrax vaccine was administered consistent with its labeling. Perhaps not surprisingly, orders to take anthrax vaccinations were challenged by military service members in both military and federal courts.

As military commanders ordered anthrax vaccinations, some service members refused, arguing that they had not provided their informed consent to the anthrax inoculation. Federal courts heard civil, administrative, and constitutional challenges, while military judges heard challenges under the UCMJ …

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Professor Corri Zoli: China Changes Tone as US Changes Administration

By Corri Zoli, Director of Research

A new tone on the part of Chinese Communist Party (CCP) officials is unmistakable. This was evident in the verbal scuffles in Anchorage, AK, over a week ago at the first diplomatic meeting between China and the new Biden Administration. There, human rights and forced labor violations were raised, including with respect to the Uighurs and other Muslim Turkic minorities in Xinxiang, one of the world’s leading cotton producers. 

“These specific reports, data collection, and outreach efforts are unifying international pressure from many angles to force China to address these severe human rights issues.”

What caught the Biden team off guard was senior CCP diplomat Yang Jiechi’s pointed criticisms of the US’s own record on human rights violations (referencing the Black Lives Matter movement, for instance) and its “long-arm jurisdiction” in foreign interventions across the globe, which had also created instability. A clearly more assertive China made international foreign policy observers around the world take notice when President Xi’s delegation told US Secretary of State Antony Blinken that “they don’t have the qualification to say they speak to China from a position of strength.”

Beyond the United States, Chinese officials have recently asserted to other nations, international organizations, and now corporations (H&M, Nike, Converse, Under Armour, and others) that the “era of bullying” of China by foreign powers has come to an end. That includes, according to Chinese official statements, the use of sanctions against China (and President Joseph R. Biden Jr. has not yet removed the Trump-era tariffs and sanctions). 

Both Biden’s and former president Donald J. Trump’s secretaries of state (Mike Pompeo, officially on his last day in office) have publicly accused China of carrying out a genocide against the Uighur and other minority groups, and Canada and the Netherlands have agreed. A block of 30 countries, including the European Union, which has not imposed sanctions since the 1989 Tiananmen Square crackdown—as well as the UK, US, and Canada—have recently imposed new sanctions on China with those allegations in mind.

In addition to the EU and US coordinated response, today, the UN’s High Commissioner for Human Rights Working Group on Business and Human Rights used their mandate to express their own deep concerns that the Chinese government was violating what they see as emerging obligations to follow the United Nations Guiding Principles on Business and Human Rights. What appears to have prompted their announcement is increasingly reliable accounts of Uighur treatment (in part from BBC, Australian Strategic Policy Institute, and Human Rights Watch reporting) and results from the UN Human Rights Working Group’s own investigation into the abuses of Uighurs, which have “tainted” China’s cotton supply chains. 

The UN Working Group has reached out to many private businesses in and outside of China who are part of these supply chains involving Xinxiang, as well as 13 other governments that may be implicated in these alleged abuses (and to ensure businesses in their territory respect all human rights throughout their operations). These specific reports, data collection, and outreach efforts are unifying international pressure from many angles to force China to address these severe human rights issues. UN Secretary General António Guterres is currently holding “serious negotiations” with China to gain unfettered access to the Xinjiang region to verify reports of Uighur treatment and persecution.

In response, Chinese officials have called for its own consumer base to boycott Western brands, especially those that have criticized the Chinese government in light of its use of forced labor, detention, reeducation camps, and other reports of crimes against the Uighurs. 

China also has flooded social media with information campaigns to control the narrative and highlight other nation’s human rights’ abuses (including slavery), while trying to persuade their domestic population. Chinese “netizens” and the Chinese Communist Youth League, for instance, also have fought back, telling Western firms that major Chinese e-retailers will remove all of their products from online stores, noting on H&M’s official Weibo account, for instance: “Are you ready [to] completely disappear in China?” and “Countdown to the beginning of withdrawing from the China market,” as reported by Human Rights Watch.

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Professor Robert Murrett: China Has a Large and Growing Navy—What is the Rest of the Story?

By Robert B. Murrett, Deputy Director, Institute for Security Policy and Law

(Military Times | March 22, 2021) There is a good deal of interest these days in the growth of the Chinese navy, known officially as the Peoples Liberation Army Navy (PLAN). Most of the discussion tends to focus on the steady and significant increase in the inventory of PLAN ships and submarines, as well as the gradual expansion of the operational reach of these ships.

However, the other dimensions of seapower that constitute the real effectiveness of any navy are not always sufficiently considered. In the case of China, an assessment of strategy, operational proficiency, regional and global naval power, and leadership deserve additional emphasis.

The PLAN “order of battle” — the total number of ships, submarines, naval aircraft and supporting infrastructure continue to make gains, which will likely continue in future years. With this as a baseline, the strategic, operational and tactical proficiency of the Chinese navy has also made progress in parallel, with varied results. At the strategic level, the Chinese navy has attempted to strike a balance between regional focus on the western Pacific and adjoining waters, and other, sustained operations in distant waters.

While it is accurate that the Chinese navy has expanded the scope of their operations over the past decade, they do not have sustained global presence and reach. Concentrating maritime power in areas such as the East China Sea and South China Sea has certain advantages, although the cumulative impact of years of at-sea time and tough challenges in the world’s oceans is an important barometer of capability. The PLAN will achieve the proficiency associated with extended maritime employment in time, but a strategy which allows both a regional and global deployment posture has yet to be fully realized.

As China’s strategic naval posture is dealt with, operational-level skills associated with complex warfare challenges are a second important standard. Integrated anti-surface, anti-submarine and anti-air operations are fundamental and can only be gained by hard experience. These warfare basics should be viewed in the context of operational-level integrated joint and combined command, control and communications, and a sober assessment of Chinese capability and experience in this area cannot be overemphasized …

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