The Best Defense

Law of the Sea: Less boring than you think

By Will Rogers

Best Defense bureau of natural security

Washington is gearing up for another fight over the Law of the Sea Convention (LOSC) as the U.S. Senate Foreign Relations Committee prepares to hold hearings in the coming weeks. But while the thirty year LOSC debate may start to sound like a broken record to some, the stakes of not ratifying the convention are the highest they have ever been for the United States.

Although the United States has safeguarded its interests at sea by relying on customary international law, this approach is becoming increasingly risky. Critics of LOSC routinely argue that the convention's most important provisions -- including maritime navigational rights -- are already accepted international norms, recognized by other countries as the rules of the road at sea. However, critics fail to appreciate that customary international law can change, as it appears to be doing today.

Rising maritime powers across the globe are reinterpreting customary international law to promote their own national interests -- including in ways that may conflict with longstanding maritime norms and American interests. Nowhere is this more apparent than in the South China Sea, where China's outsized claim to the entire region flies in the face of both traditional practices and LOSC. But China is not the only offender. Burma, Thailand, and others are joining China in more restrictive interpretations of maritime navigational rights, including anti-access norms that could constrain the U.S. Navy's ease of access in this crucial maritime domain.

Unfortunately, the United States is not in a position to rebuff these restrictive interpretations and protect the maritime norms that have been so beneficial to the global economy and U.S. security. U.S. failure to ratify the treaty has prevented the United States from taking a seat at the table to avail itself of the convention's established legal frameworks, such as the Law of the Sea Tribunal. And while the United States sits on the sidelines, other countries are engaging in discussions of maritime law, and in some places working toward consensus on issues that could have consequences for the United States for decades. Joining the treaty will allow the United States to lead these important discussions and, more importantly, enable the United States to negotiate with countries from a position of strength to protect the customary practices codified by the convention.

Ratifying LOSC will also strengthen a range of ongoing U.S. security activities. The U.S. Navy and U.S. Coast Guard are our key instruments of power at sea and ratifying LOSC will strengthen their ability to do their job and work with others to protect U.S. interests, including areas such as counter proliferation and counter piracy. More importantly, ratifying the convention would give the U.S. Navy and Coast Guard the strongest legal footing for their actions, including in places like the Strait of Hormuz, where Iran has threatened to close access to the international passageway in direct violation of the convention. As Chairman of the Joint Chiefs of Staff General Martin Dempsey recently said, "It validates the operations we conduct today and realizes our vision for a secure future."

For some, the most pressing reason to ratify LOSC is to acquire legal jurisdiction to the estimated trillion dollars of energy and mineral resources on the extended continental shelf, an area beyond the recognized 200-nautical mile Exclusive Economic Zone (EEZ). Ratifying the treaty will allow the United States to submit a claim to the U.N. Commission on the Limits of the Continental Shelf, expanding U.S. sovereignty to critical energy and mineral resources on the extended continental shelf. "Not since we acquired the lands of the American west and Alaska have we had such an opportunity to expand U.S. sovereignty," Secretary of Defense Leon Panetta recently said. 

To date, many U.S. companies have been reluctant to operate beyond the U.S. EEZ due to the lack of U.S or international legal protections that significantly raise the risks for companies operating beyond any national jurisdiction. Securing sovereign rights to the extended continental shelf will provide U.S. businesses the recognized title and protection to resources there, expanding domestic production of oil and natural gas, strengthening our assured access to energy resources. What is more, U.S. businesses would be able to lay claim to mineral resources, including rare earth metals that are critical to defense technologies, helping to reduce risky U.S. reliance on Chinese rare earths by bolstering U.S. domestic production.

Ratifying LOSC will not address every challenge the United States will confront at sea, but it will substantially improve America's ability to protect its global interests by providing a stronger legal foundation for its own maritime activities and helping to shape and enforce international norms and legal authorities. Most importantly, it will restore U.S leadership at sea. The United States has always been a maritime power. Given the growing importance of the maritime domain to U.S. interests and the rapidly changing global security environment, the United States needs every tool at its disposal to ensure that America will remain a strong global leader at sea.

The U.S. Senate should ratify the Law of the Sea Convention today.   

Will Rogers is a research associate at the Center for a New American Security, a non-partisan national security and defense policy think tank in Washington. He is the author of Security at Sea: The Case for Ratifying the Law of the Sea Convention.


The Best Defense

The cadre: Thinking outside the box about how rotation affects operations

By Andrew Person

Best Defense department of personnel-as-policy affairs

After over a decade spent fighting in Afghanistan, American officers are still having their first cups of tea with key Afghan leaders in government, tribes, and villages. As I argue in a piece I wrote for the Small Wars Journal titled "Getting Past the First Cup of Tea" (available on page 10 at this link), the Lazy Susan style rotation of American leadership in Afghanistan makes our mission impossible.

What would an alternative model look like? If the U.S. had established a permanent cadre of military leaders on the ground in Afghanistan from the outset, with the understanding that they would serve there for the duration of the war, these leaders could have built the personal relationships and knowledge required to effectively wage a counterinsurgency campaign. Viewing the past ten years of the war with 20/20 hindsight, it seems clear that such an approach would have dramatically improved our chances of success.

A permanent cadre of American leaders would enjoy a number of advantages over officers serving on year-long rotations through Afghanistan. Those who have waged counterinsurgency in Afghanistan know that every village and valley has its own cast of characters whom it would take years to truly understand. The cadre could come to understand this complex and foreign human terrain. To hand over security responsibility to the Afghan government, you have to know who can be trusted to use their power wisely and effectively. And if you're building up a security force or constructing a road without the intimate understanding of how such actions are impacting the human terrain, you can't really know whether such actions are advancing or undermining your mission. This knowledge takes years to develop, and thus most American leaders rotating on a yearly basis have not achieved a sufficient familiarity with the human terrain to effectively execute their mission.

It takes trust for an Afghan to risk Taliban retribution by working with U.S. forces -- a trust that is nearly impossible to establish over the course of a year-long tour. Over the years, Afghan leaders could come to know and trust the permanent cadre. A deeper relationship of trust would open up communication between Americans and Afghans, improving intelligence sharing and helping Americans protect Afghan villages from Taliban reprisals. Further, Afghans would know that cheating or lying to permanent cadre could risk poisoning a valuable relationship over the long term. As it is now, some duplicitous Afghans have a fresh crop of Americans to tee-off on every year.

The men and women who volunteer to serve in such a permanent cadre would by definition be an exceptional and unusual breed. They would have few commitments back home and could immerse themselves completely in the mission. The cadre would develop strong language skills and not be dependent on contracted translators. They would not worry about getting back to base to Skype with their loved ones and wouldn't be marking time until their year-long rotation is over. Unlike the current system, there would be no incentive to kick problems down the road.

Now, on to the mechanics of how the permanent leadership cadre would function. The cadre would have a loose internal hierarchical structure with the highest echelon reporting directly to the top military commander in Afghanistan. It would have absolute command over military operations in Afghanistan, down to the battalion level. No U.S. entity -- special operations and CIA included -- could operate in the cadre's area of responsibility without its complete knowledge and approval. 

Battalions would fall in under the cadre's command for year-long rotations. A non-cadre garrison commander would train and equip battalions to ready them for battle and a change of command would be carried out upon approved inspection in Afghanistan. The cadre would have authority to hire and fire company, platoon, and squad leadership and could send an entire battalion back to garrison if not up to standard. Platoon and company leadership would compete to take the limited number of cadre positions that opened up.

While on patrol, the cadre would enjoy easy access to a variety of key combat enablers which would demonstrate their authority to the Afghans with whom they work. An AC-130 gunship would escort every night patrol. A-10s would escort day patrols. The cadre would have helicopter gunships available on any moment's notice. It would have lift at all times. If there were not enough lift to satisfy the cadre's demand, then the U.S. commander in Afghanistan would immediately proceed to Congress to testify that more damn helicopters are needed in Afghanistan. These enablers are expensive but they're worth the price. When Afghans see them, they would know that cadre members can come and go as they please on a moment's notice, and that they can call massive fire support to come raining in from the sky. The cadre would be the personification of American power.

Could America really find men and women interested in such a brutally long assignment? By offering certain incentives we could attract a number of military leaders for such duty. Members of the cadre would have the peace of mind knowing they never have to command in a garrison environment and never have to do a battalion fun run or worry about where their PT reflector belt is. Cadre leadership could be shielded from paperwork and random one-star generals "circulating the battlefield." The cadre could be offered generous compensation based on this general rule of thumb: Double the pay of any general in garrison who can't pass a PT test. A special IG for overpaid and overweight Pentagon Generals could monitor and enforce the rule. Of course, the cadre would be offered periodic vacations from theater to rest and recover.

The draw of prestige and power would also attract volunteers for the cadre. It's remarkable what young men go through to earn a ranger tab or join the Navy SEALs. A cadre post could conceivably grow to become much more coveted by ambitious and dedicated young leaders.

There are countless details required to implement such a proposal that I have yet to consider, particularly how this structure would work with an international force. The risk of cadre leaders going off the rails Colonel Kurtz-style must be acknowledged and mitigated. But one fact is abundantly clear to anyone who has ever served in Afghanistan: The annual rotation of leaders in Afghanistan is fatal to our mission. If we ever try to do this again, we should give serious consideration to an alternative model.

J. Andrew Person served as a U.S. Army officer and paratrooper from 2001-2006, including year-long tours in Iraq and Afghanistan. He is now a fellow with the Truman National Security Project and works on Capitol Hill. This essay is intended as a thoughtful piece and has no connection to his day job.