Thursday, January 17, 2008

US Military Review of the Law of the Sea Treaty Lacking: Planned Outsourcing Risks Triggering Logistics Nightmare

By Lawrence A. Kogan, Esq.

October 4, 2007

High-ranking members of the US Military have come out in favor of ratification of the UN Law of the Sea Convention/Treaty (LOST) even though many of them are unfamiliar with this treaty’s numerous environmental provisions and their likely negative impact on the military’s civilian supply chain. Their statements of support also clearly omit any reference to the treaty's more than 45 environmental articles, regulations and protocols, and numerous other technical standards that are likely to be used by other nations individually or collectively to diminish the ability of the US military, during peacetime, to exercise its right to freedom of navigation/ innocent passage.

Predictably, global environmental activist groups and the environmentally-obsessed nations of Europe are calling for the US to ratify this treaty. And, based on past experience and the prior activities engaged in by these countries and groups, it is likely that the LOST’s many environmental provisions will be interpreted against US national interests as imposing on government, industry and the military new costly and disruptive environment-based UN sustainable development obligations incorporated within numerous other United Nations environmental treaties, some of which are also now before the US Senate for ratification. The Council on Foreign Relations has described this phenomenon as ‘lawfare’.

“The intersection of globalization and the emergence of international law has resulted in a variant of warfare described by some as lawfare. Lawfare is a strategy of using or misusing law as a substitute for traditional military means to achieve military objectives. Each operation conducted by the U.S. military results in new and expanding efforts by groups and countries to use lawfare to respond to military force. Although not a symmetrical threat to American military power, lawfare can be used to undercut American objectives. For example, it can be used as a decapitation strategy as in Colombia where international groups encourage peasants to file human rights suits with few grounds against military figures. Regardless of their validity, the legal costs of fighting these suits can effectively remove a particular commander from active duty for years at a time as the cases work their way through the court system. In addition, lawfare can be used to goad American forces into violations of the Law of Armed Combat, which are then used against the United States in the court of world opinion. Armed combatants may conceal weaponry or themselves amongst civilians, encouraging attacks that can be used as propaganda against American forces. This can have a dramatic effect on the use of American air power, making commanders reticent to attack targets and dragging out the conflict. Too much concern over the legality of each and every decision can be harmful to soldiers involved in ground combat as well” (emphasis added).[1]

The problems presented by lawfare are manifold. For example, “lawfare is often conducted during peacetime by international groups and service organizations...its definition and the limits of the phenomenon are still vague...The lack of a clear definition and the many activities covered by the term make it impossible to plan one response to all types of lawfare.”[2] In other words, lawfare could be used to further limit the right of freedom of navigation/ innocent passage so that it is no longer ‘absolute’. Therefore, unless the U.S. Senate and other congressional committees possessing oversight jurisdiction over the environment, armed forces, judiciary, energy and commerce, science, etc. immediately get involved to review the more than 45 environmental regulatory articles contained with the LOST,[3] American military preparedness, sovereignty and national security may be severely compromised.

That the US military has increasingly outsourced its commercial, industrial and technology products and processes to private contractors has made the US military only more susceptible to the LOST’s strict environmental provisions, and thus, to the threat of ‘lawfare’. Recently released reports which have analyzed the US military’s evolving logistics strategy for the 21st century, have described how it intends to further outsource what is already arguably the largest industrial and technology supply chain in the world.[4]

“The Department of Defense (DoD) directs the largest and most complex supply chain in the world. DoD spends at least $150 billion a year on goods and services and their delivery to end users. The Defense Logistic Agency, for example, manages an inventory of tens of thousands of items valued at approximately $80 billion. The DoD supply chain also includes hundreds of original equipment manufacturers, many of which not only produce new items but help support systems and platforms in the field.” [5]According to the reports, the US military will be increasing its reliance on private commercial contractors more than 50% during the next 5-10 years,It should be noted that private corporations provide a wide variety of supply chain services to the Department of Defense. Much of the DoD’s peacetime transportation needs are met through contracting with the private sector. For decades, Maersk has been under contract with DoD to move virtually every type of equipment and commodity to and from hostile zones around the globe. DoD contracts with a set of approved commercial air carriers to move its people around the world. Experts believe that DoD outsourcing of logistics activities will increase by 50 percent over the next five to ten years.[6]And this will entail greater use of private commercial contractors both off and on the battlefield.[7]

If this is true, then the US military’s private civilian commercial and technology supply chains will fall increasingly subject over time to the LOST”s strict environmental regulatory provisions, as much as other US commercial suppliers have fallen subject to European environmental regulations unilaterally imposed down company supply chains, most of supply major US and foreign retailers.[8] And, since the LOST”s environmental provisions incorporate the non-science and non-economics-based European legal norm known as the extra-WTO Precautionary Principle, which has been frequently employed to ban or severely restrict products, technologies and activities on mostly hypothetical rather than scientifically provable environmental grounds, the US military may never see (sea) many of the products and technologies it wishes or plans to procure.

This result would obtain even if the products, technologies and activities are designed, formulated, manufactured, tested, delivered and/or deployed first within US coastal seas and exclusive economic and contiguous zones, and/or within the continental US itself – i.e., on sovereign US land, on or below sovereign US internal waterways, and in US sovereign skies. LOST environmental provisions would require the US government to amend its laws to incorporate the treaty’s environmental obligations, especially the extra-WTO Precautionary Principle, in order to ban or severely restrict land, air and water-based emissions within US sovereign territory that are now permitted under US federal law.

The high technology-based products supplied by such contractors, even if construed as ‘dual-use’ technologies, however, are highly unlikely to qualify as exempt ‘military activities’ under the LOST Article 289 exemption-to-jurisdiction provision, unless strictly related to battlefield use. Senior US military officers and their legal eagles are quite confident, at least publicly, that they possess the legal authority under this treaty to unilaterally determine whether each particular commercial contractor activity, product, substance or technological device falls within the definition of a ‘military activity’ for this purpose. However, it is an entirely different matter whether or not the US military has the ability to persuade an UNCLOS or other international tribunal to adopt its determination, especially after it has already invoked jurisdiction over the US military or its contractors. Other LOST treaty party nations are eager to commence an action to secure an interpretation of UNCLOS’ strict environmental provisions that would further confirm application the Precautionary Principle as legally necessary under the LOST. In other words, the products, services and activities of the private and commercially independent contractors and subcontractors (i.e., the supply-chain) that supply the US military are likely to become ensnared within the LOST’s broad environmental net, and there is little, if anything, that the US military can do to prevent it.

For these reasons, alone, the US Congress must fulfill its constitutionally mandated role and assume the obligation it has to the American people, to thoroughly review the LOST before it is ratified by the Senate. This can only occur if those House and Senate committees possessing oversight jurisdiction exercise that right in the name of the American people with respect to the various other dimensions of the LOST that have not, and will likely not, be considered by the US Senate Foreign Relations Committee now holding LOST ‘hearings’.

As a matter of constitutional due process, the American people are entitled to know from their elected representatives how this expansive environmental regulatory treaty, premised on Europe’s Precautionary Principle, which will reach into US sovereign territory (land, internal waterways and air above) and the US regulatory and free enterprise systems, will affect Americans’ pocketbooks, small businesses and daily lives.

[1] See "Lawfare, the Latest in Asymmetries - Part One", Council on Foreign Relations (March 18, 2003) at: .

[2] See " Lawfare, the Latest in Asymmetries - Part Two", Council on Foreign Relations (May 22, 2003) at: .

[3] See J.W. Middendorf and Lawrence A. Kogan, “The ‘LOST 45’ UN Environmental Restrictions on U.S. Sovereignty”, Institute for Trade, Standards and Sustainable Development (Oct. 2007).

[4] See “Getting to a 21st Century Supply Chain”, Lexington Institute (April 2007) at: .

[5] See “Getting to a 21st Century Supply Chain”, supra, Executive Summary at p. 1. “... If the DoD supply chain were a for-profit company, it would be number 9 on the Fortune 500, accounting for $151 billion in spending for Fiscal Year 2005. The 1 million uniformed, civilian and contract employees who support all aspects of the Department’s supply chain manage $79.5 billion in inventory and keep 15,000 aircraft, 300 ships and 30,000 combat vehicles capable of fulfilling their mission. The Defense Logistics Agency (DLA) alone would be in the Fortune 500 as a $35 billion business...” Id., at p. 6.

[6] Id., at p. 6, citing J. Davidson, “Outsourcing: The Definitive Trend in Supply Chain Management”, Logistics Quarterly, Vol. II, No. 5 (Dec. 2005).[7] See "Contractors on the Battlefield", Lexington Institute (Feb. 2007) at: . “Civilian contractors have a larger presence on today’s battlefields than ever before. Over a decade ago, as the U.S. military began downsizing, it began transferring many of its support functions to private sector contractors. From the provision of food, shelter and water to fuel and security, functions once performed by uniformed personnel have to a large degree been outsourced. As part of the Department of Defense transformation, contractors also became a part of complex weapons system support on the battlefield. In essence, contractors are now a de facto third force — a support force — integral to the conduct of modern warfare. Managing this support force well is the new challenge...Contractors have been largely responsible for the construction and maintenance of the complex infrastructure that supports U.S. expeditionary forces. In this process, more than 600 civilian contract workers have been killed in Iraq alone.” Id., Executive Summary at i.

[8] For example, "Maersk has provided the DoD with distribution services around the globe and currently manages a portion of the U.S. fleet of prepositioned ships...Companies such as Maersk, C.H. Robinson, UPS and others have commercially proven SCM [supply-chain management] capabilities that could assist DoD in eliminating seams in the supply system and improving asset visibility. The DoD should leverage the experience of Maersk and the other global SCMs in managing global, commercial supply chains for major retailers such as Walmart, Target and Home Depot.” Id., at p. 18.

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