At What Cost - U.S. Navy Judge Advocate General's Corps

164 Pages·2012·1.61 MB·English

NAVAL LAW REVIEW
Judge Advocate General of the Navy
Vice Admiral James W. Houck, JAGC, USN
Commander, Naval Legal Service Command
Rear Admiral Nanette M. DeRenzi, JAGC, USN
Commanding Officer, Naval Justice School
Captain Stacy A. Pedrozo, JAGC, USN
Editor-in-Chief
Lieutenant Graham C. Winegeart, JAGC, USN
Managing Editors
Lieutenant Commander Paige J. Ormiston, JAGC, USN
Lieutenant Emily L. Dewey, JAGC, USN
Article Editors
Commander Luis P. Leme, JAGC, USN
Lieutenant Commander Sara J. de Groot, JAGC, USN
Lieutenant Andrew Coffin, JAGC, USN
Lieutenant Ann E. Dingle, JAGC, USN
Lieutenant Jonathan M. Hawkins, JAGC, USN
Lieutenant Paul A. Richelmi, JAGC, USN
Lieutenant Megan E. Romigh, JAGC, USN
Lieutenant Steven M. Shepard, JAGC, USN
Desktop Publishing
Doris M. Soares
Editorial Board
Captain Michael J. Boock, JAGC, USN
Commander Gregory J. Smith, JAGC, USN
Commander Thomas P. Belsky, JAGC, USN
Lieutenant Commander Scott W. Thomas, JAGC, USN
Lieutenant Commander Elizabeth A. Rosso, JAGC, USN
Published by the Naval Justice School, the Naval Law Review encourages frank discussion of
relevant legislative, administrative, and judicial developments in military and related fields of law.
Views expressed in published articles must be considered solely those of individual authors and do
not purport to voice the views of the Naval Justice School, the Judge Advocate General, the
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Review is published from appropriated funds by authority of the Judge Advocate General in
accordance with Navy Publications and Printing Regulations P-35. This issue of the Naval Law
Review may be cited as 61 NAVAL L. REV. [page number] (2012).

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CONTENTS
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Articles, Essays & Notes
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AT WHAT COST? AMERICA’S UNCLOS ALLERGY IN THE TIME
OF “LAWFARE” 1
Commander Robert C. “Rock” De Tolve, JAGC, USN

LET’S TALK ABOUT ETHICS 17
Lieutenant Commander Kimberly J. Kelly, JAGC, USN

THE EMERGENCY ALTERNATIVE ARRANGEMENT EXCEPTION
TO THE NATIONAL ENVIRONMENTAL POLICY ACT: WHAT
CONSTITUTES AN EMERGENCY? SHOULD THE NAVY PIN ITS
HOPES ON NOAH WEBSTER? 36
Commander Margaret Ann Larrea, JAGC, USN

DOES AFRICOM NEED ADDITIONAL FISCAL AUTHORITIES TO
ACCOMPLISH ITS MISSION SET? THE FISCAL IMPLICATIONS
OF AFRICOM’S INTERAGENCY CONSTRUCT 93
Major Maxwell S. Smart, USAF

FREEDOM OF NAVIGATION, ENVIRONMENTAL PROTECTION,
AND COMPULSORY PILOTAGE IN STRAITS USED FOR
INTERNATIONAL NAVIGATION 134
Lieutenant Commander Jeanine B. Womble, JAGC, USN
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Book Review
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7 DEADLY SCENARIOS: A MILITARY FUTURIST EXPLORES
WAR IN THE 21ST CENTURY 152
Reviewed by Major John C. Dohn II, JA, USA

Naval Law Review LXI

AT WHAT COST? AMERICA’S UNCLOS
ALLERGY IN THE TIME OF “LAWFARE”
Commander Robert C. “Rock” De Tolve, JAGC, USN*
I. Introduction
In June of 2000, nearing the conclusion of his tenure as the 26th Chief
of U.S. Naval Operations, Admiral Jay Johnson wrote to then Senate Foreign
Relations Committee Chairperson Senator Jesse Helms, “I consider UNCLOS
my most significant piece of unfinished business.”1 Nearly twelve years later,
the United States is still not a party to the 1982 United Nations (U.N.)
Convention on the Law of the Sea (UNCLOS).2
This writing seeks to highlight current and future national security costs
associated with leaving this “business” unfinished. It begins by locating
* The author is a career officer in the U.S. Navy Judge Advocate General’s Corps, currently serving
as Deputy Legal Advisor, North Atlantic Treaty Organization (NATO) International Security

Assistance Force Afghanistan. He earned a bachelor of arts degree in English literature from
Nicholls State University (Louisiana) in 1994, a doctor of jurisprudence degree from the University
of California at Davis School of Law in 1997, a master of laws degree (environmental law
concentration) from the University of San Diego School of Law in 2005, and a master of arts degree
from the U.S. Naval War College in 2010. Prior military assignments include service as Executive
Officer, Region Legal Service Office Midwest in Great Lakes, Illinois; Assistant Force Judge
Advocate for Operational and Environmental Law on the staff of U.S. Naval Forces Europe/U.S.
Naval Forces Africa/U.S. Sixth Fleet in Naples, Italy; Officer in Charge, Multinational Force Iraq,
Task Force 134 Magistrate Cell, Baghdad, Iraq; and Environmental Counsel for Navy Region
Northeast in Groton, Connecticut. The author is particularly grateful to several professors at the
U.S. Naval War College’s China Maritime Studies Institute—Michael Chase, Peter Dutton, James
Holmes, Nan Li, Jonathan Pollard, and Toshi Yoshihara—for the considerable expertise, insight, and
enthusiasm they conveyed in their classroom seminars. He is similarly grateful to Colonel Jayme
Sutton, U.S. Army for her insightful suggestions concerning a prior version of this writing, which
was submitted to the U.S. Naval War College faculty on 28 January 2010 in partial satisfaction of
the requirements of the National Security Decision Making and Strategic Studies course. Most
recently, the author is appreciative of the outstanding editorial assistance provided by colleagues LT
Graham C. Winegeart, JAGC, USN and LT David Loveless, JAGC, USN. All research done in
preparation for this article involved unclassified sources. Unless specifically otherwise attributed,
the views expressed herein are the personal views of the author and do not necessarily reflect those
of U.S. government, NATO, or any other organization or individual. Any infirmity in this writing is
certainly and solely attributable to the author.
1 Letter from Admiral Jay Johnson, U.S. Navy, Chief of Naval Operations, to Senator Jesse Helms,
Chairperson, U.S. Senate Committee on Foreign Relations (June 29, 2000) (on file with the
Committee).
2 United Nations Convention on the Law of the Sea, opened for signature 10 Dec. 1982, 1833
U.N.T.S. 3 [hereinafter UNCLOS].
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UNCLOS within the broader context of U.S. national security interests and
continuing U.S. political ambivalence over membership in international
institutions. It then traces a further connection between UNCLOS and the
contemporary notion of legal warfare—“lawfare”—as a means of opposing or
accomplishing military and, ultimately, political objectives. The significance of
U.S. UNCLOS abstention in the context of the current situations in Asia and the
Arctic is then examined, as are attendant operational and force structure
implications. In conclusion, it assesses the balance of U.S. national security
equities as tipping sharply in favor of prompt U.S. UNCLOS accession.
II. The Evolution of UNCLOS
UNCLOS was opened for signature on 10 December 1982, at the
conclusion of the Third United Nations Conference on the Law of the Sea in
Montego Bay, Jamaica.3 Its comprehensive framework for oceans governance
has been dubbed the “constitution”4 and “Magna Charta” of the oceans.5 In
dividing the world’s oceans into contiguous legal regimes,6 UNCLOS has
succeeded in sustainably balancing coastal state sovereign rights with the
traditional navigational freedoms guaranteed all nations.7 Despite the
overwhelming majority—over eighty percent—of nation states’ which are now
members of UNCLOS,8 the ambivalence of the world’s leading maritime power
3 Id.
4 Official Records of the Third United Nations Conference on the Law of the Sea, 11th Sess., 185th

plen. mtg. (Vol. XVII) at 13, U.N. Doc. A/CONF.62/SR.185, ¶ 47 (6 Dec. 1982), available at
http://untreaty.un.org/cod/diplomaticconferences/lawofthesea-1982/docs/vol_XVII/a_conf-62_sr-
185.pdf [hereinafter Official Records].
5 The United Nations Convention on the Law of the Sea (Treat Doc. 103-39): Hearings Before the S.
Comm. on Foreign Relations, 110th Cong. 74 (2008) (statement of Admiral Vernon Clark, U.S.
Navy (Ret), Former Chief of Naval Operations). A detailed exposition of UNCLOS’ substantive
provisions is beyond the scope of this writing.
6 UNCLOS, supra note 2, NAVAL WAR COLL., INTERNATIONAL LAW STUDIES VOL. 73, ANNOTATED
SUPPLEMENT TO THE COMMANDER’S HANDBOOK ON THE LAW OF NAVAL OPERATIONS 85 fig.A1–1
(A.R. Thomas & James C. Duncan eds., 1999) (providing a visual representation of the jurisdiction
scheme established by UNCLOS). Pursuant to UNCLOS, as a general matter, coastal states may
exercise: Sovereignty over a territorial sea extending up to 12 nautical miles from shore, UNCLOS,
supra note 2, arts. 2–3; customs, fiscal, immigration, and sanitation enforcement authority within a
contiguous zone extending up to 12 nautical miles from the seaward limit of its territorial sea, id. art.
33; and limited, environmental, and resource related sovereign rights within an exclusive economic
zone extending up to 200 nautical miles from shore, id. arts. 55–57. Coastal state rights remain
subject to circumscribed rights of other states to navigate under, on, and above these waters. Id. arts.
34–44, 90 & 124–32. The seabed beyond the jurisdiction of all coastal states is known as “the
Area.” Id. art 1. The extraction of resources from “the Area” is administered by the UNCLOS
International Seabed Authority. Id. arts. 156–57.
7 Official Records, supra note 4, at 13.
8 U.N. OFFICE OF LEGAL AFFAIRS, TREATY SECTION, MULTILATERAL TREATIES DEPOSITED WITH
THE SECRETARY GENERAL, (Vol. III) at 441, U.N. Doc. ST/LEG/SER.E/26, U.N. Sales No.
E.09.V.3 (2009) [UNOLA], available at
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over UNCLOS membership continues to be a source of military and diplomatic
friction.
While the Reagan administration was instrumental in UNCLOS’
negotiation and drafting, the U.S. delegation ultimately voted against and
refrained from signing it due to concerns over deep seabed mining technology
transfer provisions contained in Part XI.9 In a remarkable, multilateral effort to
induce U.S. membership, the bulk of UNCLOS member states cooperated over
the succeeding decade to revise the objectionable provisions.10 The revisions
satisfied the Clinton administration, which signed the revised Part XI
implementing agreement in 1994.11 In the fall of 1994, President Clinton
transmitted UNCLOS and the Part XI implementing agreement to the Senate
requesting its advice and consent.12 Despite consistent support from President
Clinton, each of his successors, and an ideologically diverse array of
stakeholders, the Senate has since withheld the consent required for the
President to internationally bind the United States to UNCLOS.13
While UNCLOS cleared the Senate Foreign Relations Committee
(SFRC) during the 108th14 and 110th Congresses,15 its progress continues to be
hamstrung by significant pockets of political ambivalence over U.S.
participation in international institutions. Most recently, 111th Congress SFRC
Chairman Senator John Kerry included “voting out” UNCLOS for full Senate
http://treaties.un.org/doc/Publication/MTDSG/Volume%20II/Chapter%20XXI/XXI-6.en.pdf
(website brings written volume current as of 12 Dec. 2011, EDT 7:31 AM) (indicating that 162 of

197 recognized states and entities had ratified or acceded to UNCLOS).
9 Id.; Convention on the Law of the Sea, 18 WEEKLY COMP. PRES. DOC. 887 (July 9, 1982).
10 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the
Law of the Sea of 10 December 1982, 28 July 1994, 1836 U.N.T.S. 41, 33 I.L.M. 1309; U.N. Office
of Legal Affairs, Div. for Ocean Affairs and the Law of the Sea, United Nations Convention on the
Law of the Sea: A Historical Perspective,
http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm (last
visited 1 Feb. 2012).
11 Id.
12 S. Treaty Doc. No. 103-39 (1994).
13 See United Nations Convention on the Law of the Sea, U.S. SENATE COMMITTEE ON FOREIGN
REL., http://www.foreign.senate.gov/treaties/details/103-39 (last visited Jan. 12, 2012) [hereinafter
SCFR] (indicating that no action has been taken on UNCLOS since it was referred back to the
Committee on Foreign Relations on 2 January 2009, the date the 110th Congress adjourned).
14 S. EXEC. REP. 108-10 (2004).
15 S. EXEC. REP. 110-9 (2007).
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consideration among his highest priorities.16 This did not occur, and no Senate
action has been taken on UNCLOS by the 112th Congress.17
III. American Ambivalence Toward International Institutions
[I]n the cathedral of international human rights, the United
States is more like a flying buttress than a pillar—choosing to
stand outside the international structure supporting the
international human rights system, but without being willing
to subject its own conduct to the scrutiny of that system.18
Professor Henkin’s late 1970s observation concerning the international
human rights law system remains remarkably apropos of UNCLOS in the
current political environment. Contemporary UNCLOS criticisms are largely
rooted in a leeriness of U.S. participation in normative international governance
entities on a relatively egalitarian footing vis a vis other states.19 This leeriness
appears partly fueled by a general antipathy toward the U.N. and, to some
extent, by a misconception that UNCLOS membership subjects the United
States to the authority of U.N. regulatory bodies.20 Indeed, the proliferation of
politicians and pundits painting the U.N. as a paragon of prolixity and anti-
Americanism has perhaps prompted some UNCLOS proponents to deemphasize
the U.N.’s role in its creation by favoring the generic moniker, “LOST” (Law of
the Sea Treaty) over UNCLOS.21 For example, former SFRC Chairman Jesse
Helms successfully prevented full Senate consideration of UNCLOS during his
1995–2003 tenure,22 citing concerns over sovereignty cession.23 Another
16 Allison Winter, Sen. Kerry Looks for Window to Ratify Law of the Sea, N.Y. TIMES (May 7, 2009),
available at http://www.nytimes.com/gwire/2009/05/07/07greenwire-sen-kerry-looks-for-window-

to-ratify-law-of-th-12208.html?pagewanted=all.
17 SCFR, supra note 13.
18 Harold Hongju Koh, Childress Lecture: A United States Human Rights Policy for the 21st
Century, 46 ST. LOUIS U. L.J. 293, 308 (2002). Professor Koh attributes the statement to Louis
Henkin, a distinguished international legal scholar and long-time professor at Columbia University.
Id. Professor Henkin was awarded the Silver Star for his service in the U.S. Army during World
War II, and he passed away on 16 October 2010. Emma Brown, Columbia Professor Was Pioneer
of Human Rights Law, WASH. POST, Oct. 22, 2010, at B7.
19 See John Norton Moore & William L. Schachte, The Senate Should Give Immediate Advice and
Consent to the Law of the Sea Convention: Why The Critics Are Wrong, 59 J. INT’L AFF. 1, 7
(2005).
20 See id. (“The United Nations has no decision authority over an oceans issue under the Convention
and no organization created is a branch of the United Nations. Rather, the three strictly limited
organizations created report to the States parties to the treaty, not the United Nations.”).
21 Among the larger community of U.N. critics, at least one website has been devoted solely to
cataloging its purported evils. U.N. IS EVIL, http://www.unisevil.com (last accessed Nov. 20, 2010).
This website is no longer publically accessible at the time of this writing’s publication.
22 Baker Spring, All Conservatives Should Oppose UNCLOS, 12 TEX. REV. L. & POL. 453, 456
(2008).
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