U.S. ratification of UNCLOS will not undermine Proliferation Security Initiative
U.S. participation in UNCLOS will in no way undermine its participation in the Proliferation Security Initiative. In fact, ratification will do more to help bolster the PSI regime as critically important democratic Pacific countries have indicated a desire to support our counter-proliferation efforts, but will not do so as long as the U.S. is a non-party to UNCLOS.
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Launched in 2003, “the Proliferation Security Initiative (PSI) is a global effort that aims to stop trafficking of weapons of mass destruction (WMD).”70 The PSI is not a treaty, but instead relies on preexisting international legal frameworks – including the Law of the Sea Convention – and voluntary commitment to a “Statement of Interdiction Principles” to guide cooperation and prevent proliferation.71,72 Despite the endorsement of ninety-eight nations, major players have proved wary to join the United States in this partnership.73,74,75
Conspicuously absent from PSI are both Indonesia and Malaysia who both border the worlds busiest maritime straight. With nearly 525 million metric tons traveling this corridor annually, the failure to expand PSI to this SLOC puts international interdiction efforts at a significant disadvantage and complicates an already difficult problem in the PACOM AOR.76 This failure to expand PSI should come as no surprise, however. As former to in 2007, many critical Pacific countries would like to support PSI, but are unable to “convince their legislatures that PSI interdiction activities will only occur in accordance with international law, including the Law of the Sea Convention, when the leading PSI nation, the United States, refuse to become a party to the Convention.” "77 The legitimacy obtained through ratification of UNCLOS would solve this problem immediately. Recruiting countries to PSI is just the first step, however, as enhanced legitimacy has second-order effects.
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PSI is explicitly based on, and requires partner nations to act consistently with, national legal authorities and relevant international law frameworks."* That is the heart of PSI. It allows us to bring together a whole host of partners, authorities, and jurisdictions to work cooperatively. Virtually all of our partners in PSI are parties to the Law of the Sea Convention. Clearly, they see no conflict.
Far from impeding PSI, if we accede to the Law of the Sea Convention, it will help our PSI efforts. It will remove the invalid, incorrect, bogus argument that PSI is a renegade regime that flies in the face of international law." The result, if we accede, is that there will be more partners, more intelligence, and more preemptive actions that will help to protect us from serious and significant threats.
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Post-9/11 terrorists attack, the US has taken several counter-terrorism initiatives to deter the non-state from executing their nefarious plans. In this regard, Proliferation Security Initiative (PSI) was launched by then President Bush during the G-8 meeting at Krakow, Poland on May 31, 2003. Besides other objectives, the PSI seeks to effectively interdict maritime transport of WMDs delivery systems and related material to and from entities of proliferation concern. However, many states have indicated their reluctance to be part of the US –led PSI initiative. It is expected that accession to the LOS Convention would promote the willingness of other countries to cooperate with the US on emerging maritime security architecture - the Proliferation Security Initiative (PSI).
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Some commentators and maritime security experts in the United States have asserted that activities envisioned as being part of the PSI would be inconsistent with UNCLOS, and that U.S. accession to UNCLOS therefore would prevent or inhibit the United States from implementing PSI.15 There are also Republicans in the U.S. Senate, such as Senator James Inhofe (R-OK) and Senator John Ensign (R-NV), who opposed U.S. accession to UNCLOS on the basis that it could hinder the U.S.-led PSI.16 However, officials from the U.S. Navy, the Department of Defense, and the Department of State, who testified at the six hearings on UNCLOS held during the 108th Congress, clarified: that PSI is consistent with UNCLOS; that U.S. accession to the Convention would not present any difficulties for implementation of the Initiative; and that the United States becoming a party to UNCLOS would strengthen the interdiction efforts under the PSI.17 In January 2005, during the Senate nomination hearing for Condoleezza Rice as U.S. secretary of state, Senator Richard G. Lugar (R-IN) raised a number of law of the sea questions, which included the relationship between the PSI and UNCLOS. Rice pointed out that the Initiative requires participating parties to act consistently with national legal authorities and “relevant international law and frameworks,” which includes the law as it is reflected in UNCLOS.18 John Bolton, during his April 2005 nomination hearing to become U.S. representative to the United Nations, repeated the Bush administration’s position saying that U.S. accession to UNCLOS would not have any negative impact whatsoever on the implementation of the Initiative.19
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Which view is correct? It is shaky, if not totally ill-founded, for UNCLOS opponents to suggest that the implementation of the PSI will be affected negatively by U.S. accession to UNCLOS. No persuasive arguments exist to the contrary.
Gaffney provided some reasons explaining why U.S. accession to UNCLOS would hinder its ability to pursue PSI’s goals. However, he failed to mention the possibility that the United States could stop and board a vessel on the high seas which was flying the flag of a country like Panama, Liberia, the Marshall Islands, Croatia, Cyprus, or Belize, all of which have signed bilateral shipboarding agreements with the United States. "155 In addition, it is also likely that the United States would obtain the consent from a flag state to interdict a vessel on the high seas, if reasonable evidence is provided or it is supported by reliable intelligence that the vessel concerned is indeed carrying or transporting WMD- related cargo. Moreover, while UN Security Council Resolution 1540 does not explicitly authorize the interdiction of a foreign-flagged vessel on the high seas which is suspected of carrying or transporting WMD-related cargo, it can still be argued that action taken under the PSI would not be inconsistent with the call for cooperation to confront the threat posed by WMD proliferation set out in the Resolution. Furthermore, Gaffney argued that the ability of the United States to undertake PSI interdiction action would be affected by Article 88 of UNCLOS, which declares that the high seas are reserved for peaceful purposes, and by Article 301, which obligates states parties to refrain from “the threat or use of force against the territorial integrity or political independence of any State.”156 However, these two provisions can also be cited by the United States as grounds for interdicting foreign- flagged vessels on the high seas if it is reasonably suspected or sufficiently proven that these vessels are carrying or transporting WMD-related cargoes that are to be used by the “states of proliferation concern” for nonpeaceful purposes or have the potential to affect international peace and security. The foreign-flagged vessels’ right to enjoy the freedom of navigation on the high seas in accordance with Article 87 of UNCLOS and the exclusive jurisdiction of the flag state over these vessels on the high seas under Article 92 are to be subject to certain limitations.
Gaffney may be correct where a vessel flying the flag of North Korea and having declared in the ship’s manifest that it is transporting Scud missiles to Yemen could not be intercepted without a breach of the UNCLOS.157 However, interdiction on the high seas is not the only option for stopping the transport of WMD-related goods or technologies from a state of proliferation concern. As the 1993 Yinhe incident demonstrates, the U.S. Navy could follow a suspect vessel and request cooperation from the port state to conduct an investigation once the vessel enters its port. Under UN Security Council Resolution 1540, a port state is obligated to take cooperative action to prevent illicit trafficking in WMD and WMD-related materials.158
Gaffney also argued that, if the United States remains nonparty to UNCLOS, it would not be subject to the limitations under the Convention.159 However, as pointed out by Moore, it is wrong to assume that the United States is free from any constraints in relation to its ocean actions if it does not accede to UNCLOS since the United States is bound by the 1958 Geneva Conventions on the law of the sea which are more restrictive than UNCLOS on issues relating to the PSI.160
In sum, the better view is that of the Bush administration regarding the potential impact of U.S. accession to UNCLOS on the implementation of the PSI. The views held by some of the opponents to UNCLOS are arbitrary and shaky, and lack persuasive reasoning. It is incorrect to argue that the PSI is barred by UNCLOS. After all there are 18 states fully participating in PSI and more than 70 countries that have expressed their support for the Initiative, and most of these countries are party to UNCLOS. Moreover, while UNCLOS is considered the most important legal instrument in dealing with the rights and obligations of states in the oceans, there are other international treaties, regimes, and frameworks that can be relied on if interdiction actions against suspect vessels that carry or transport “WMD, their delivery systems and related materials” to and from “states and non-states of proliferation concern” are necessary.
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This article concludes that U.S. accession to UNCLOS would not adversely affect the implementation and effectiveness of the PSI. On the contrary, U.S. accession to UNCLOS could help increase the U.S. credibility and leadership in dealing with the threat to inter- national peace and security posed by WMD proliferation. On August 31, 2005, Admiral James Watkins (retired) and Leon Panetta, chairs of the U.S. Commission on Ocean Policy and Pew Oceans Commission respectively, along with over 70 other national leaders and top ocean law and policy experts, sent a letter to Senate Majority Leader William H. Frist, calling on the Senate to move expeditiously to consider and approve U.S. accession to UNCLOS.219 The signatories to the letter agreed with President Bush that accession to the UNCLOS supports vital U.S. national security, economic, and international leadership interests. They also stated that accession to the Convention will strengthen the U.S. ability to defend its important maritime rights, in particular, freedom of navigation and overflight, which are essential to U.S. military mobility, and will enhance U.S. national and homeland security efforts. This call is consistent with this article’s argument that accession to the UNCLOS will not hurt U.S. security interests in pursuing the goals of the PSI, but instead will enhance them.
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On this specific point, it is worth looking at the example of the President’s Proliferation Security Initiative, or PSI. PSI began in May 2003, when 10 like- minded countries joined the United States to prevent the proliferation of weapons of mass destruction, their delivery systems, and related materials. Those 11 countries endorsed a series of PSI founding principles, including two essential principles from an operational perspective: One, that all States have broad domestic authorities to act against proliferators and, two, that acting cooperatively, they can use those authorities and international law---including the Law of the Sea Convention--- to prevent proliferation. The Law of the Sea Convention recognizes numerous legal bases for taking action against vessels suspected of engaging in proliferation activities, including port State control measures, flag State authority, and the right of warships to approach and visit commercial vessels.
In just four years, PSI has expanded from its original 11 partner-nations to almost 90, and we have had specific operational successes in preventing the proliferation of weapons of mass destruction under PSI. However, our failure to be a Party to the Law of the Sea Convention is limiting further expansion of PSI. Critically important democratic Pacific countries have indicated a desire to support our counter-proliferation efforts, but they tell us that so long as we are not a Party to the Law of the Sea Convention, they will not be able to convince their legislatures to endorse PSI. How, they ask us, can they convince their legislatures that PSI interdiction activities will only occur in accordance with international law including the Law of the Sea Convention, when the leading PSI nation, the United States, refuses to become a party to the Convention?
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Ratifying LOSC will bolster the U.S. ability to create bilateral and multilateral agreements with other countries to counter WMD proliferation, one of the biggest threats to U.S. security according to numerous analysts both in and outside of government.17 Government efforts to strengthen land-based interdiction efforts are increasing maritime tran- sit of dual-use technologies critical to developing and deploying WMD. In just one striking example, in June 2011 a U.S. Navy destroyer trailed a Belize-flagged ship suspected of carrying missile components to Burma and pressured the vessel to return to its origin in North Korea.18
In particular, ratifying LOSC will strengthen programs such as the Proliferation Security Initiative (PSI), since key partner and potential partner countries often voice skepticism over U.S. commit- ments to these transnational programs in light of the U.S. failure to ratify the convention. President George W. Bush launched PSI in 2003 to leverage existing national laws to improve interception of materials in transit and halt WMD-related financial flows. LOSC ratification will give PSI a stronger legal foundation under international law by removing “the bogus argument that PSI is a renegade regime that flies in the face of international law,” according to Rear Admiral William D. Baumgartner, former U.S. Coast Guard Judge Advocate General. “The net result will be more partners, more intelligence, more preemptive actions that help protect us from this most serious threat.”19 Indeed, removing this excuse for other countries’ non-participation in programs to counter proliferation would benefit the United States diplomatically and could help in negotiating future innovative solutions and programs.
[MYTH] The Convention adversely affects activities to be undertaken pursuant to the Proliferation Security Initiative.
- On the contrary, joining the Convention would strengthen PSI efforts.
- PSI’s own rules require that PSI activities be consistent with relevant international law and frameworks, which include the Convention’s navigation provisions.
- The Statement of Interdiction Principles pursuant to which the PSI operates explicitly specifies that interdiction activities under PSI will be undertaken “consistent with national legal authorities and relevant international law and frameworks.” The relevant international law framework for PSI includes customary international law that is codified in the Law of the Sea Convention.
- The Convention provides solid legal bases for taking enforcement action against vessels and aircraft suspected of engaging in proliferation of WMD, e.g., exclusive port and coastal State jurisdiction in internal waters and national airspace; coastal State jurisdiction in the territorial sea and contiguous zone; exclusive flag State jurisdiction over vessels on the high seas (which the flag State may, by agreement, waive in favor of other States); and universal jurisdiction over stateless vessels.
- All of the United States’ partners in the PSI are parties to the Convention and accordingly observe its provisions.
- As Admiral Michael Mullen, Vice Chief of Naval Operations, testified before the Foreign Relations Committee, being party to the Convention “would greatly strengthen [the Navy’s] ability to support the objectives” of PSI by reinforcing and codifying freedom of navigation rights on which the Navy depends for operational mobility.
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The Proliferation Security Initiative. Similar to concerns related to intelligence activities, the effect of convention accession on the PSI is best addressed by those executive branch departments responsible for its creation and execution. Ambassador John R. Bolton, undersecretary of state for arms control and international security affairs during the creation of the PSI, has stated: “I don’t think that if the Senate were to ratify the Law of the Sea Treaty and the president were to make the treaty, that it would have any negative impact whatsoever on PSI.”35
The vice chief of naval operations has provided testimony that indicates joining the convention is necessary for, not harmful to, further PSI success: “[O]ur failure to be a Party to the Law of the Sea Convention is limiting further expansion of PSI. Critically important democratic Pacific countries have indicated a desire to support our counter-proliferation efforts, but they tell us that so long as we are not a Party to the Law of the Sea Convention, they will not be able . . . to endorse PSI.”"